Ferguson and Leishmann

[2017] FCCA 2152

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERGUSON & LEISHMANN [2017] FCCA 2152

Catchwords:
FAMILY LAW – Interim arrangements for care of children 10 & 8 – children have previously been in the care of mother living in Adelaide – father lives in Perth – mother arranges for children to live in Perth with father as a consequence of her exposure to family violence – father asserts mother’s care represents risk to children – nature of interim hearing – assessment of risk – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4(1), 60CA, 60CC

Cases cited:
Deiter & Deiter [2011] FamCAFC 82

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Deiter & Deiter [2011] FamCAFC 82

Applicant: MS FERGUSON

Respondent: MR LEISHMANN

File Number: ADC 4375 of 2012

Judgment of: Judge Brown

Hearing date: 23 August 2017

Date of Last Submission: 23 August 2017

Delivered at: Adelaide

Delivered on: 23 August 2017

REPRESENTATION

Counsel for the Applicant: Mr G. Hemsley

Solicitors for the Applicant: Legal Services Commission of South Australia

Counsel for the Respondent: Ms Holgate

Solicitors for the Respondent: Lewis Blyth & Hooper

ORDERS

1. Pursuant to section 11F of the Family Law Act the parties and the children attend a child inclusive family dispute resolution conference at the Family Court of Western Australia, (Family Court Counselling and Consultancy Service, Level 3, 150 Terrace Road, Perth, Western Australia) with Ms K, a family consultant, on Wednesday, 18 October 2017 on a date and time to be advised, to discuss the care, welfare and development of the children in an endeavour to resolve any differences between the parties in relation thereto.  The parties are to telephone the Registry on 1300 352 000 to confirm their attendance NOTING the mother can attend by phone/video if she requests by no later than 9 October 2017.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The children X born (omitted) 2007 and Y born (omitted) 2009 live with the father in Perth.

2. The mother spend time with the children in Perth during the September/October school holidays at such times and on such conditions as the parties agree from time to time.

3. The mother communicate electronically with the children on such terms and conditions as the parties agree from time to time.

4. A copy of the oral reasons provided today be transcribed and provided to the parties.

5. Further consideration of the matter is adjourned to 6 November 2017 at 9:30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4375 of 2012

MS FERGUSON

Applicant

And

MR LEISHMANN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a difficult case, which arises at the interim stage, against a background of significant emergency involving serious issues of family violence.  It also involves the interstate relocation of two children far away from the parent, who has hitherto been their primary provider of care.  The competing considerations arising from these two disparate factors frame the difficulty arising in the case.

2. The parties to the proceedings are Ms Ferguson and Mr Leishmann.  They are the parents of X, born (omitted) 2007 and Y, born (omitted) 2009. 

3. The proceedings relate to interim or provisional arrangements for the care of X and Y, particularly whether they should live in Perth, pending further investigations in the care of their father, or be returned forthwith to the care of their mother, who lives in Adelaide.

4. By way of background, the parties married in (omitted) 2004.  They separated in March of 2011.  They have been divorced since January of 2013.  Mr Leishmann lives in (omitted), a suburb of Perth.  He is a (occupation omitted).  He has remarried.  He is comfortably off and has been settled in Perth for the last few years.  His home is large and well equipped. 

5. It is common ground that following the parties’ separation, which occurred when Y, in particular, was very young, the two children concerned have been in the primary care of the mother.  She has lived in South Australia, but also in Queensland.  When the parties separated, she and the children were living in (omitted), a suburb of Adelaide. 

6. Ms Ferguson has also re-partnered.  Her partner was Mr Ferguson.  In her affidavit material the mother has conceded that Mr Ferguson is a violent and drug-addicted person.  The mother separated from Mr Ferguson in difficult circumstances in April of 2017. 

7. Currently Ms Ferguson, X and Y are the subject of an interim intervention order made on 26 June 2017, which names Mr Ferguson as the defendant.  I have not been provided with any statement made by the mother in support of the order or any material specifically from the police who assisted in the application for the order.  The order itself refers to an incident which is alleged to have occurred on 6 February 2017, when Mr Ferguson abused the mother and grabbed and pushed her into a car. 

8. It is the father’s position that he has reliably provided a reasonable amount of child support – $800 per month – to the mother, for X and Y’s financial support and has seen the children regularly, during school holidays when they have travelled to Perth.  He has funded the necessary travel concerned. 

9. It is also his case that he has had longstanding concerns about the nature of Ms Ferguson’s relationship with Mr Ferguson and its implications for the wellbeing of X and Y.  He asserts that these concerns are longstanding, but crystallised in August of 2014 when the mother, Mr Ferguson and the children moved precipitately from Adelaide to Queensland without reference to him. 

10. However, Mr Leishmann asserts that, up to this stage, he has not been minded to institute proceedings regarding care arrangements for the children, whilst he has been able to see them regularly in school holidays.  It is his position that he has been apprehensive about metaphorically rocking the boat with Ms Ferguson, when he has been able to maintain a conduit of interaction with the two children concerned. 

11. For her part, Ms Ferguson points to the fact that Mr Leishmann has not hitherto been sufficiently concerned enough to begin proceedings in respect of the children.  From her perspective, he has opportunistically utilised a crisis arising in her life to advance his own agenda in respect of the care of the two children concerned. 

Background

1. In this context, it is necessary to outline the circumstances, which bring the parties to this point.  There is no controversy that the longstanding arrangements for the care of X and Y came to a dramatic end on 26 June 2017, when Ms Ferguson contacted Mr Leishmann and asked him to collect the children in Adelaide and take them to his home in Perth for what she described as an extended holiday. 

2. On this day, 26 June 2017, Ms Ferguson was at the drive-through of a McDonald’s with the children.  She recounts what happened then as follows: 

   “I saw Mr Ferguson out of the corner of my eye.  Mr Ferguson ran to the car and I locked all of the doors and drove off and called the police straight away.  I was driving while on the phone to police and Mr Ferguson was following alongside of me, terrorising me and the children and shouting at me to pull over, saying he wanted to talk to me.  I kept driving and police intercepted Mr Ferguson on the road.”[1]

   [1] See mother’s affidavit filed 3 August 2017 at paragraphs 25 - 26

3. It appears to be the position that Mr Ferguson had been able to track Ms Ferguson through the GPS attached to her car.  Accordingly, it is not an unreasonable conclusion to draw that Mr Ferguson had been stalking Ms Ferguson. 

4. In my view, the incident was serious.  Its emotional impact on the children is as yet unclear to me.  In her affidavit the mother describes Mr Ferguson as “having gone psycho and tried to run us off the road”.  She concedes that she telephoned Mr Leishmann in Perth because she was scared for her safety and the safety of the children.  From her perspective the children going to Perth, which was not too long before the midyear school holidays, was a temporary arrangement. 

5. From Mr Leishmann’s perspective, he was of the view that the children needed to settle with him for a longer period of time until the way forward was clearer.  It is his position that he canvassed with Ms Ferguson the possibility of a stay for the second-half of the school year or around six months. 

6. Although I am not in a position to make definitive findings, it seems to me more likely than not that the parties did not have a definitive agreement with one another about the arrangements.  This is understandable given the extreme circumstances which had arisen. 

7. It is now the mother’s position that she has finished with Mr Ferguson forever and has now taken appropriate steps for her and the children’s protection in Adelaide.  She has moved to secure accommodation in suburban Adelaide, which has had security cameras fitted to it.  In the jargon, it has been red-flagged, which means that if there is a call from the premises, to the police, they will come forthwith. 

8. In addition, Ms Ferguson is consulting a psychologist and/or a domestic violence counsellor attached to a domestic violence service in Adelaide.  However, fundamentally it is her position that the children have been well settled in Adelaide for many years, where they have many friends and family, particularly on their maternal side. 

9. It being her case that the children’s paternal family live, as I recall, mostly in Tasmania and their father has been in Western Australia only since the parties separated.  Accordingly, she asserts that the children’s major ties are in Adelaide, where they have lived for the greater majority of their lives to date.

10. Essentially, in these circumstances, it is the mother’s case that the danger and threat of Mr Ferguson having passed, the children should be returned to the longstanding status quo of living in Adelaide with her. 

11. It is the father’s position that since X and Y arrived in Perth he has formed the view that they are not performing as well as they could academically.  He attributes this academic failing to a lack of stability in the mother’s life and the fact that since 2012 the family have moved home and school on at least six occasions. 

12. It is his position that before and if the children are returned to Adelaide they need a period of stability and for a full appraisal of how they are travelling emotionally, socially and scholastically to be made.  He puts it as follows in his affidavit evidence:

    “I am concerned that sending the children back to Adelaide now will mean further disruption to their education and mental health.  I still have concerns about the children’s safety from their step-father, Mr Ferguson.”[2]

    [2] See father’s affidavit filed 18 August 2017 at paragraph 39

13. Essentially it is Mr Leishmann’s case that the most recent episode, which Ms Ferguson disclosed to him, at a time of crisis when she really had no alternative other than to reveal it, may well be the tip of a much bigger iceberg demonstrating a previous life of instability for the two children concerned. 

14. To her great credit, Ms Ferguson has disclosed much that is concerning about her life with Mr Ferguson.  She says that she and Mr Ferguson were involved with one another for nearly five years, during which he was abusive and violent towards her.  She says that she was too scared to leave him, as he threatened to kill her if she did so.  Significantly, she deposes as follows:

    “Mr Ferguson uses ice.  I would use ice every couple of days.  I started using ice before we left for Queensland.  Mr Ferguson would purchase it and supply it to me.  Mr Ferguson and I were evicted from our property in Queensland for non-payment of rent, as Mr Ferguson had control of our finances.  Mr Ferguson and I and the children moved back to Adelaide 12 months ago.  I have all my family here in Adelaide.  Mr Ferguson and I stayed together and I told him I was done with drugs and I stopped using ice.  I have not used illicit substances for 12 months and I only drink alcohol socially.”[3]

    [3] See mother’s affidavit at paragraph 15 & 18 - 19

15. In this context she asserts that Mr Ferguson continues to use ice and this caused his behaviour towards her to escalate to a level where it was occurring on a daily basis.  She asserts that she has arranged for the two children to see a school counsellor.  I have not been provided with any evidence from the counsellor concerned. 

16. On any view, what Ms Ferguson has disclosed is concerning.  She has not provided extensive details of her previous drug use and its impact upon her and the children, other than that she has now stopped.  She has not provided any evidence as to whether she has sought professional assistance to stop her drug use or, indeed, what was the previous level of her use, other than it was every couple of days. 

17. I do not know the means of her use of the drugs, whether she was smoking or injecting drugs and what quantity of it she was using and what psychotropic consequences it had for her personally.  Most significantly, apart from the concession that she has been concerned enough to take the children to see a counsellor, she has not given evidence of the emotional impact of Mr Ferguson’s behaviour on the children or indeed of her own behaviour. 

18. In his affidavit, Mr Leishmann has asserted as follows:

    “X on many occasions has said things like she is sick of the drama or there is always drama.  X has said that Ms Ferguson was constantly asking her whether she still wanted to come home during phone calls.  This resulted in X refusing to speak to Ms Ferguson, although I try and encourage her to do so.”[4]

    [4] See father’s affidavit at paragraphs 21 - 22

19. Mr Leishmann has enrolled the children at a private school close to his home and purchased new uniforms and other apparel for them.  Ms Ferguson complains of a unilateral action on his part.  The children have now been in Perth for a period of approximately two months. 

20. On my understanding, the Western Australian school holiday, and it may be different so far as the private school the children are attending, is going to be at the end of this current term from 22 September to 9 October.  For reasons which will become clear in due course, this is a significant timeframe. 

21. In her application, which was filed on 3 August 2017 and listed urgently, the mother seeks the delivery up of the two children to her and on both a final and interim basis that the two children live with her and spend regular periods of time in the school holidays with their father.  On a final basis she proposes that the parties have equal shared parental responsibility for the two children. 

22. The father, in his response, which was filed on 18 August 2017, seeks on both an interim and final basis that the two children live with him by necessary implication in Western Australia and spend time with the mother, as agreed.  In terms of the on-going procedural management of the case, he seeks an order that the proceedings be transferred to the Family Court of Western Australia and an independent children's lawyer appointed.

23. From the mother’s perspective, these procedural provisions are tactical in nature and designed, in the short to medium term, to engineer a status quo whereby the children become more and more ensconced in Perth. 

24. From the father’s perspective, the mother’s interim orders, if made, will result in the concealment of issues and give her the ability to sweep difficult problems under the carpet. 

Legal Principles

1. It is now necessary for me, as best I can, to outline the legal principles I must apply to this difficult case.  The legal principles are complicated and I will try and encapsulate them under five basic headings.  Firstly, how the court determines the best interests of the child.  Secondly, then nature of an interim hearing.  Thirdly, how the court assesses risk.  Fourthly, issues to do with the unilateral relocation of children, and fifthly, issues to do with family violence.

   a)Best interests

2. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. 

3. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

4. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

5. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

6. There are two primary considerations, which are as follows:

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

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

7. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

8. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

9. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[5] 

   [5]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

10. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[6] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[7] 

    [6]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [7]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

11. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

12. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

13. In this current case the following additional considerations which I will refer to by reference to the letters under which they are appear in the section are likely to be central, both now and more significantly at the final hearing stage.

14. Subsection (a), refers to any views expressed by the child.  In this context, I am required to bear in mind the maturity of the child concerned and factors which are relevant to the weight that should be given to the child’s views.  At this stage I have not had an opportunity to have the children’s views canvassed in any significant way. 

1. From the mother’s perspective she is likely to be concerned that the attractions of the father’s home in Perth may skew any such exercise, in the sense that the children may find the material comforts and current novelty of life in Perth very attractive and this will lead them to express their approbation for the father’s home too readily and unrealistically. 

2. From the father’s perspective, he is likely to contend that, given the life that the children have led for the last few years, which, from his perspective, is likely to have been characterised by exposure to significant family violence, the two children, notwithstanding their tender years, are likely to have a preference to lead a different and more stable life and, as such, it is the responsibility of the court to canvas their views sooner rather than later.

3. To paraphrase what X is said to have told him, the children may be sick of the drama.  These are important considerations about which there is current no evidence.  The father contends that it is likely to be a comparatively simple exercise for the court to canvas the children’s view through some form of family report.

4. Another relevant additional consideration is contained in subsection (b) which deals with the nature of the children’s relationship with their parents and other significant individuals, including relatives.  This consideration also interacts with the consideration contained in subsection (d), which deals with the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from their parents or significant persons, such as grandparents. 

5. It is a very significant plank of Ms Ferguson’s case that she is the children’s undisputed primary carer and has been for the last five years or so at least.  From her perspective, it must be very significant for the children’s wellbeing, particularly their emotional wellbeing, that they have been separated from her for such a long period of time and, indeed, the life they know in Adelaide.  I acknowledge that that is a very significant consideration in this case, indeed.

6. Finally, I have to consider the matters raised in subsections (f) and (i), which, in general terms, deal with the parental capacity and level of parental insight of the parties concerned.  It is the significant flavour of Mr Leishmann’ case that, on her own case, Ms Ferguson has conceded that there have been significant deficits in her parenting of the two children because, for all sorts of complicated reasons, she has been trapped in an emotionally abusive relationship, involving long standing issues of substance abuse. 

7. From Mr Leishmann’s perspective, this has led to a neglect of the children’s educational needs.  I hasten to say that I am not in a position to resolve these issues at this stage.  That is because of the nature of this hearing. 

b)      The nature of an interim hearing

1. Interim hearings very often arise against a background of serious family crisis and controversy.  That is certainly the case in this particular matter.  Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.  As a consequence, the hearing concerned is truncated.  As a consequence, there is no extensive examination of the relevant evidence and, as such, the various factual issues in dispute cannot be resolved in the context of these interim proceedings. 

2. In addition, at the interim hearing stage it is rarely the case that there has been sufficient time for any independent and expert evidence to be prepared evaluating the case from the perspective of any children concerned, particularly in the context of the nature of their relationship with each of their parents and what is their preferred outcome in the case and if what factors are influencing such views.  All these difficulties are present in the current matter. 

c)      Assessment of risk

1. However, in cases involving serious allegations of parental misconduct, including exposure to family violence, notwithstanding the limitations implicit in interim hearings, the court must nonetheless make a decision and put in place the orders which it considers will best regulate the situation so far as any child is concerned. 

2. Although at the interim stage, the nature of the hearing is different to the one provided at the final hearing stage, the legal principles applicable are the same.  Essentially I am called upon to assess risk and put in place a proportionate response to the degree of risk involved.

3. In Deiter & Deiter[8] the Full Court said as follows:

   “The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”

   [8]  See Deiter & Deiter [2011] FamCAFC 82 at [61]

d)     Interim relocation

1. Cases involving the relocation of a child far away from one of his or her parents are particularly difficult for the court, both at the interim and final hearing stage.  For obvious reasons, issues to do with relocation invariably have very significant implications to the welfare of children, particularly in terms of how they maintain parental relationships. 

2. In this case the two children concerned have predominantly lived in South Australia with their mother.  This longstanding arrangement has been brought to an end.  It was brought to an end against an uncertain background as to how long the children would be going to Perth. 

3. The Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regards to of his or her parents, particularly if that recent development has been created by the actions of one parent alone. [9]

   [9] See Morgan & Miles (2007) FamCA 1230

4. However, in the context of a consideration of the best interests of the child concerned, a unilateral relocation may be justified if the parent relocating has had to confront a situation of significant emergency pertaining to him/her or the relevant child.

5. In this particular case, to a certain extent, the emergency which resulted in X and Y moving to Perth had nothing to do with Mr Leishmann.  He has not unilaterally removed the children from Adelaide.  They moved with the mother’s acquiescence, albeit possibly on a limited or provisional basis. 

6. The emergency concerned emanated solely with matters arising in Ms Ferguson’s household.  However, the fact remains that, if I accede to Mr Leishmann’s position, there will be a relocation of the children on an interim basis and this is likely to be a very significant development.

e)     Family violence

1. The concept of family violence is defined by section 4AB(1) of the Act.  It means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.  On Ms Ferguson’s own evidence there is no doubt in my mind that she has been subject to serious family violence over a number of years. 

2. Pursuant to section 4AB(3) a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effects of family violence. 

3. In this case there can be no doubt that X and Y have been exposed to family violence in respect of the incident which occurred at the McDonald’s drive-through.  They are still living with its effects, because they have been moved from Adelaide to Perth. 

4. At this stage I do not know if they are suffering more long-term sequelae of being exposed to family violence.  Family violence by its nature is something that frequently occurs behind closed doors in the private confines of the family home.

5. As such, it may be difficult, if not impossible, for there to be independent verification that it has occurred.  However, the lack of corroboration is not of itself sufficient cause for the court to underestimate its significance, particularly so far as the emotional wellbeing of children are concerned. 

6. As I have already indicated, the legislation concerned directs me to prioritise issues of family violence so far as children are concerned.  Family violence is a multifaceted threat to children. 

7. For obvious reasons, it can put them at risk of being actually hurt if they come between two parents in conflict.  But more significantly, it has the potential to do them emotional harm.  For example, if they are subjected to the exposure of a well-loved family member being hurt or frightened by another person, it is likely to be detrimental to them. 

8. In addition, such behaviour does not provide appropriate role models for children.  At this stage I am concerned about the potential impact on these children of having been exposed for a significant period of time to conduct which is likely to fall within the definition of family violence. 

Discussion

1. I am concerned about issues to do with Ms Ferguson’s previous drug use.  If she is clear of a dependence on amphetamines or other drugs, I am pleased for her.  The import of her case is that, having freed herself from the control of Mr Ferguson, she has no longer any need to take drugs and has now, in effect, had the scales removed from her eyes and  been able to see what Mr Ferguson has done to her and the children. 

2. That may be so, but at this stage, it is a difficult issue for me to unpack, particularly at this interim or provisional stage.  I cannot assess the probity of Ms Ferguson’s assertion that she is now totally drug abstinent.  Rather, I must remain focussed on the children’s best interests, particularly in respect of my responsibility to assess the degree of risk to which they may be exposed in any given situation.

3. I have already alluded to some of the additional considerations which are likely to be germane to this case and about which I cannot make definitive findings at this stage.  The two primary considerations are, of course, finely balanced in a case such as this one. 

4. From the mother’s perspective, if the children are not returned forthwith to Adelaide, the children will be deprived of the benefit of having what up to this stage she would categorise as the most meaningful relationship in their lives, that is, with her as their primary carer. 

5. She asserts that the need to protect the children from physical or psychological harm, from being exposed to Mr Ferguson’s behaviour and his infliction of family violence has passed.  I am regrettably not so sanguine.  In my view, at this early stage, I would be lax if I did not put in place at least some additional inquiries, which relate to the views expressed to the children and their past exposure to family violence.

6. On Ms Ferguson’s own case, the children were exposed to a significant episode of family violence involving Mr Ferguson stalking the family and then trying to force their vehicle of the road.  The incident was of sufficient seriousness for Ms Ferguson to request Mr Leishmann’s help. The emotional impact of this incident on the children is not clear as yet.  In my view, this aspect of the case warrants further investigation.  As does the issue of Ms Ferguson’s drug use. 

7. I mean not to be critical of Ms Ferguson for being candid about her previous drug use.  However, from my perspective, what she has said about her previous drug use is a little bit glib.  She has not indicated what was the extent of her use, apart from it being every couple of days. More significantly, she has not indicated how she ceased her drug use and what were the implications of her use for the care and emotional security of the children.

8. I appreciate that she did not have a lot of time to put in place a longer affidavit, perhaps give more information about her use of drugs and so on and so forth.  However, at this stage, in assessing the risk that arises for the children, in my view, I need more evidence, particularly in respect of the support available to Ms Ferguson to remain drug free. 

9. In my view, the significance of the incident which led to the children being sent to Perth and the lack of clarity about the children’s current level of emotional functioning pending some greater insight into their own feelings, militate in favour of the court taking a cautious approach before considering the immediate return of the children to Adelaide.

10. As I indicated on Monday, part of the reason for the adjournment was so that I could approach the Family Court Counselling and Consultancy Service of the Family Court of Western Australia and determine what could be done in terms of a child-inclusive conference.

11. I have been informed by Mr K, who is the Manager of Family Court Counselling and Consultancy Services at the Department of Justice in Perth that the parties can have a consultation with Ms K on 18 October and what I propose to do is make an order for that to occur. 

12. As I indicated, the Western Australian school holiday will conclude on 9 October, which is a little over a week after that appointment.  And it may well be the case that Ms Ferguson will be able, although I do not know if she has the financial resources to do so, to attend personally at that intervention and also perhaps spend some time with the children in the school holiday period in Perth.  That is not an issue I have canvassed in any detail with the lawyers for either of the parties.

13. So on that basis I am going to make an order, until further or other order that the two children live with the father in Perth.  I have come to the view that at this interim stage it is not appropriate for me to apply the presumption of equal shared parental responsibility and, in any event, that it is not practicable for there to be a substantial and significant or equal time sharing arrangement at this stage. 

14. I will direct that the children spend time with the mother during the forthcoming September/October school holidays at such times and on such conditions as the parties agree and that the mother communicate with the children by electronic means on such terms and such conditions as the parties agree from time to time. 

15. I will adjourn the further hearing of the matter before myself on 6 November 2017 at 9.30 in the morning, Australian Central Summer Time.  I will also direct that a copy of these reasons for judgment, which I appreciate are somewhat lengthy and it has been a burden for the parties to hear them, I will direct that they be transcribed and released to each of the parties.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         6 September 2017