GAREY & GAREY

[2015] FamCA 1192

FAMILY COURT OF AUSTRALIA

GAREY & GAREY [2015] FamCA 1192

FAMILY LAW – CHILDREN – Interlocutory Application – Where the mother wishes to relocate with the children – Where there is a final apprehended violence order in place against the father for the protection of the mother, her partner and the subject children – Where the mother has acted protectively towards the children – Where the children continue to enjoy a very close and affectionate relationship with the father – Where evidence regarding the father’s current and past use of drugs is unclear and is a compelling reason for the children’s time with him to remain supervised – Children to live with the mother – Where the mother relocating the children would likely be detrimental to the children’s relationships with the father – Where it would not assist the children to move away from their current place of residence at this point – Children to spend regular supervised time with the father – Where it is more appropriate on an interim basis for the mother to have parental responsibility for the issues that arise for the children – Where the mother is to involve the father in her decision-making process.

APPLICANT: Ms Garey

RESPONDENT: Mr Garey

INDEPENDENT CHILDREN’S LAWYER: APJ Law

FILE NUMBER: NCC 834 of 2015

DATE DELIVERED: 15 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 15 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Everingham Solomons Solicitors

SOLICITOR FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: APJ Law

Orders

1. All prior parenting Orders in relation to C born … 2009 and A born 11 … 2011 (“the children”) are discharged.

Residence

1. The children live with the mother.

Parental Responsibility 

1. The mother have parental responsibility for the children in relation to issues regarding their welfare, including but not limited to, specialist medical treatment, religious instruction and education.

2. On each occasion such an issue arises the mother shall:

   (a)Advise the father in writing of the matter which requires a decision and of the proposal of the mother in that regard;

   (b)Invite the written response of the father within a defined period of time, to be reasonable in the circumstances;

   (c)Genuinely consider the response of the father and take his views and proposals, if any, into account before coming to a decision; and

   (d)Promptly advise the father in writing of the decision taken.

3. Each party is restrained from changing the enrolment of the children from

   
   

   S School without the prior written consent of the other party or further order of the Court NOTING that the child A will commence Kindergarten at that school in 2016.

4. The mother shall authorise the school which the children attend to provide to the father (at his cost, if any) copies of all documents relating to the progress and welfare of the children at school including, but not limited to, school reports, newsletters and applications for school photographs.

Spending Time and Communication

1. The children are to spend supervised time with the father at the T Contact Centre each week subject to the ability of the T Contact Centre to facilitate such time, but in any event, not less than fortnightly (which may take place on a week day during school holiday periods).

2. The mother shall facilitate a telephone call between the children and the father at 6.30 pm:

   (a)Each Wednesday;

   (b)On Christmas Day;

   (c)On child A’s birthday;

   (d)On Easter Sunday;

   (e)On Father’s Day;

   (f)On child C’s birthday;

   with the  mother to ring the father’s nominated mobile telephone at such time and allow each child to speak to the father in a setting of reasonable privacy.

Drug Testing

1. Within 48 hours of the date of these Orders, the father attend upon a medical practitioner to obtain a referral to an accredited pathology laboratory for the purpose of undertaking chain of custody urinalysis and hair follicle tests for the presence of drugs.

2. The father undergo chain of custody urinalysis for the presence of drugs, with such request to be:

   (a)Made in writing by email or letter by the Independent Children’s Lawyer; and

   (b)With a frequency of no greater than one test in every two week period.

3. The father undergo hair follicle tests for the presence of drugs, with such request to be:

   (a)Made in writing by email or letter by the Independent Children’s Lawyer; and

   (b)With a frequency of no greater than one test in every three month period.

4. The father do all acts and things and sign all documents that may be required to ensure that the urinalysis or hair follicle test for the presence of drugs so required is:

   (a)Completed within 24 hours of receipt by the Independent Children’s Lawyer of such request;

   (b)For the purpose of the urinalysis, an observed collection of the sample conducted in accordance with the Australian and New Zealand Standard 4308/2008 for the collection, detection and quantitation of drugs of abuse in urine or the current standard that may exist from time to time that ensures supervision of the sample and chain of custody and verified by a certificate which includes a temperature endorsement and that the collection of the sample was observed by the collecting agent; and

   (c)Carried out at the father’s cost.

5. The father do all acts and things and sign all documents that may be required to provide to the Independent Children’s Lawyer a copy of all drug screening reports within 48 hours of receiving the report.

6. Leave is granted to the Independent Children’s Lawyer to relist the proceedings in the event that the father does not comply with Orders 9 – 13 inclusive or complies with a positive result for use of illicit drugs.

Specific Issues

1. The mother will as soon as reasonably practicable advise the father in the event that either child is hospitalised, with the name of the treating medical practitioner or health professional and the outcome or diagnosis provided to the father, via email.

2. The father shall be at liberty to forward cards, presents or gifts to the children on their birthdays and at Christmas addressed to the mother’s parents, Mr and Mrs K.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garey & Garey 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: NCC 834 of 2015

Ms Garey

Applicant

And

Mr Garey

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for interim parenting orders in respect to the two children of the parties, girls, C aged six and A aged almost five.

2. The applicant is the mother, aged 33. Her household consists of herself, her partner, on a part-time basis (approximately four nights out of eight) since August 2015, and the two children. The mother lives in Town U.  She wishes to move to Newcastle. 

3. The respondent is the father, aged 34.  He lives in Town B.  He has a partner with whom he has lived since July 2015. She is reported by the father to have three children.  I am unaware as to whether they are members of the household, but those aspects do not have particular significance for this application.  

Proposals

1. The application of the mother is for interim orders that the children live with her, that she have sole parental responsibility and that she relocate the residence of the children to the Newcastle area.  Her proposal for the children to spend time with the father is either at the T Contact Centre once per month and in a Newcastle Contact Centre once per month or if she remains living in Town U, the T Contact Centre once per fortnight.  Communication is proposed to continue on Wednesday nights at 6.30 pm. 

2. The application of the father is for equal shared parental responsibility, that the children live with the mother and spend time with the father for alternate weekends, ultimately progressing to equal time.  The father opposes the relocation of the children to Newcastle. He also opposes any further supervision of his time.

3. The move to Newcastle was not supported by the Independent Children’s Lawyer, at least not on an interim basis. 

The Evidence

1. The documents relied on by the parties are as follows:

   The Mother

   a)The interim orders sought by the mother in her Further Amended Initiating Application filed 28 October 2015;

   b)A copy of a final apprehended violence order filed 18 May 2015;

   c)Notice of Child Abuse filed 10 June 2015;

   d)Affidavit of the mother filed 28 October 2015; and

   e)Parenting Questionnaire of the mother filed 20 October 2015.

   The Father 

   f)The interim orders sought by the father in his Response filed
   27 November 2015;

   g)Affidavit of the father filed 4 December 2015;

   h)Parenting Questionnaire of the father filed 27 November 2015. 

   Reports

   i)Children and Parents Issues Assessment (“CAPIA”) dated 4 August 2015.

Brief History of Relevant Events 

1. The parties began living together in Queensland in 2002. 

2. They married in 2007. 

3. The children were born in 2009 and 2011. 

4. In late 2011 the parties moved from Queensland to Town U, in order to be closer to the mother’s family, many members of whom live in Town U. 

5. The parties separated in September 2014. 

6. After separation the mother and children moved to live with the maternal grandparents nearby.  A few weeks later the father moved out of the former matrimonial home and the mother and children returned to live in it.  The father regularly saw the children from separation until early 2015, usually in the presence of the mother. 

7. In October 2014 the mother commenced her relationship with her current partner. The mother’s new partner moved into the home on or around August 2015, but has clearly been a part-time member of the household for longer than that, probably since late 2014. 

The Issues

1. The issues arising from these interim applications are:

   a)The impact of the mother’s proposal to relocate on the children and on herself, in terms of her personal safety, her wish to work in Newcastle and the distances involved for travel; and

   b)The appropriate time and communication to maintain meaningful relationships for the children with the father, with the associated issues of the impact of family violence and risk of drug abuse.

The Law

Parental Responsibility

1. The making of a parenting order triggers the application of a presumption that it is in the best interests of a child for each parent to have equal shared parental responsibility.  The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child, which aspect does not apply here, or family violence.

2. Family violence is a relevant consideration in this matter.

3. The co-parenting relationship is assessed by the Family Consultant to be extremely poor at this time. That too is a consideration. 

4. It seems more appropriate on an interim basis for the mother to have parental responsibility for the issues that arise for the children; however, it is important for the children that the father be involved in that decision-making process.

Drug Use

1. The father began using THC in 1994, when he was 13 years old.[1] 

   [1] Exhibit 4

2. The parties both used illicit drugs during the relationship.  The father refers to using MDMA socially.[2]  (The mother does not concede that use.)

   [2] Exhibit 4

3. To the Family Consultant the mother said she last used illegal drugs well before the children were born.  The father said they both continued to use drugs after the children were born.[3] 

   [3] CAPIA dated 04/08/2015, par 35

4. In her affidavit the mother says, “I deny using drugs after the birth of [C]”, who was born in late 2009.[4]  This is a slightly different account provided by the mother about her drug use which may end up being explored in a final hearing, but there are no current complaints by anyone, particularly the father, about current drug use by the mother.

   [4] Affidavit of the mother filed 28/10/2015, par 59

5. The father’s drug use has clearly been more significant and accelerated after separation. The mother is right to be concerned.  All children are at risk of harm when exposed to the care of a drug affected parent.  The father submitted that he had never used drugs when the children were in his care.  Clear drug screens will be necessary before unsupervised time is in their best interests.

6. In the first six years of the relationship the parties both used marijuana, at least.  If concerned about it, neither of them was sufficiently concerned to end the relationship. 

7. In 2013 the father’s father died.  This emotional blow led to increased drug use by the father.  Again, when the relationship between the parties ended in September 2014 the father turned to drugs.  He told the mother in electronic communication that he had, “Been stoned every night since separation”.

8. On 28 November 2014 the father went to the emergency department at T Hospital.  He reported using ice regularly, with his last injection at 11.00 pm that night. The father also referred to ceasing taking anti-depressant medication after four years of use.  He had thoughts of self-harm.  He was discharged with a referral for substance abuse counselling.

9. The father asserted that 26 September 2015 had been the last time he used illegal drugs.

10. In January 2015 the father went to the child C’s school and was arrested. The records suggest that he attempted to hang himself in police custody.  He was scheduled to hospital. 

11. On 13 February 2015 the father reported to his substance abuse counsellor a quarter an ounce of cannabis per week for at least two years and three or four shots of methamphetamine a day for the last two years. The father also stated that he was compliant now with anti-depressant medication. 

12. On 22 March 2015, in the drug and alcohol analysis tendered into evidence as Exhibit 3, the father stated that he was using both marijuana and methamphetamine. The father spent the following three months in gaol as a result of a breach of an apprehended violence order. 

13. The situation about the father’s current and immediately past use of drugs is completely unclear and inconsistently told.  It is a compelling reason for supervision. 

Family Violence

1. The father has behaved erratically since separation.  He has sent a great many text messages, some threatening, to the mother.  He reacted to the introduction of the mother’s new partner into her household. 

2. On 2 November 2014 the mother asserts that the father entered the home unannounced at night.  Police attended but the mother called on the assistance of a relative to escort the father away.

3. On 24 December 2014 there was a more serious incident.  The father had been speaking to the children on the phone.  The oldest child told him that the mother’s partner was staying over and sleeping in the father’s bed.  The father’s reaction was unconsidered and immediate.  He drove to the house and drove through the locked gate.  There was at least a verbal encounter between the father, the mother’s partner and to a lesser extent, the mother.  The father was arrested and a provisional apprehended violence order was ordered.[5] 

   [5] Exhibit 2 (flags M 1.3-1.8)

4. The consequences of that night have been playing out since. The father has hardly seen the children at all.  Exhibit 2 is a text that the father sent that was both extremely coarse and threatening to the mother. 

5. On 5 January 2015 an interim apprehended violence order was made in the U Local Court.  In that same month the father revealed to the mother in a confiding way in one of his texts or emails that he had resorted to drugs to blur reality.

6. On 16 January 2015 the father stopped work. 

7. On 28 January 2015 the father sent a threatening email to the mother,

   
   

   “I fucking hate your guts I want you to die”.[6]

   [6] CAPIA dated 04/08/2015, par 18

8. In March 2015 the father saw one of the children at school at school and did not apparently see that this was likely to lead to further trouble for him and further distress for the children. 

9. On 10 March 2015 there was an interim variation of the apprehended violence order requiring the father not to approach the children’s schools.

10. On 14 April 2015 a final apprehended violence order was made for a period of 12 months, restraining the father from approaching the mother, her partner, and both the children. 

11. As previously stated, the father spent a period of three months in gaol.  Having said all that, there is no evidence in the criminal record tendered into evidence or any other document that there has been a physical assault by the father on the mother or the children at any time.  There is no history of menacing, threatening communications prior to the separation. 

12. All of the material relates to the period after September 2014.  This is not to excuse the father’s behaviour but to see it in the context of a long and uneventful relationship before the parties separated. 

13. There is a final apprehended violence order made on 14 April 2015 which will expire in April 2016. 

Meaningful Relationships

1. Coming now to the consideration of relocation and the relationships between the children and the father. 

2. There is a meaningful relationship between the children and each of their parents.  The mother has protected the children from her own feelings and from knowledge of the father’s behaviour to the full extent that she has been able to.  It has successfully meant that the children continue to enjoy a very close and affectionate relationship with the father.  They miss him.

3. The father has also contained himself, other than on the evening of

   
   

   24 December 2014, around the children and their home.  The reports of contact visits tendered into evidence suggest that there has been a great deal of fun and free-flowing affection between the children and the father, who has been imaginatively engaging the children in the confines of a contact centre, with particular reference to bringing a build-it-yourself dolls house that kept the children interested for the whole of the two-hour period.

4. The children themselves have expressed some views about the father to the Family Consultant:[7]

   Both children excitedly reported that they wanted to see their father when asked.  During observations the children were clearly delighted to see their father (even after an absence of over seven months).  They remained excited and affectionate throughout the forty minutes of observation.  They spoke freely and openly and displayed no sign of anxiety.         

   There was more material of that kind. 

   [7] CAPIA dated 04/08/2015, pars 41-43

5. One of the children explained to the father that she cried for him because she missed him.  The mother understands this and has protected the children’s feelings. 

6. The father understands that the mother is a good mother and has protected the children from his feelings about the mother and her partner.  There was an incident in one of the visits where a child referred to the mother’s partner having taken a nude photograph of the mother and the father remained appropriately restrained in front of the children.

Relocation

1. The mother presently has a job in Town U working four days a week.  The evidence reveals that she asked for a job in Newcastle from her current employer and there is one available which she could start in January 2016. 

2. In considering this relocation for the children I take into account the following matters: 

   a)The maternal grandparents presently live eight kilometres away from the mother;

   b)The maternal grandmother cares for the younger child on Fridays;

   c)The maternal aunt is available to collect the older child from school when the mother or her partner are unavailable; and

   d)The maternal uncle and maternal great grandmother live close by and visit.

1. In Newcastle there is no family support for the children, although there are good friends of the mother.  There is therefore no family support for collecting and minding and caring for the children as needed. 

2. I take into account that the move to Newcastle would see the mother financially dependent on her partner and he would continue to be almost as absent from the home, as he is now, although the distance would be less.

3. Distance is a relevant element. 

4. The mother says that she would be prepared to drive back to Town U each alternate weekend until there was a place available in the Newcastle Contact Centre for the children to spend time with the father.  Even once per month will quickly, in my view, become a trial for the children and there is a real risk that they will become resistant to the travel of 4-5 hours each way for a two-hour visit with the father. The relationship between the children and the father is highly likely to suffer damage from this kind of travelling for very short periods of time together. 

5. In any event, in my view, once per fortnight is not enough.  The children clearly and strongly want more time with the father and would benefit from having that time.

Conclusion

1. Accordingly it seems to me that on an interim basis, where the possibility is that Newcastle would not be the final destination, is to run the risk of disrupting the children’s schooling, friendships and relationship with the father only to have further changes further down the track. 

2. I accept the submission of the Independent Children’s Lawyer that the relationship between the mother and her partner is a very new one and it remains to be seen in final hearing what the ultimate plan will be for the mother, together with her partner or not. Although, that is not to say that there is any indication that the relationship is not an enduring one. 

3. For those reasons I have come to the conclusion that it would not assist the children to move away from Town U at this point.  The father is a loving, affectionate, imaginative parent and weekly contact will be sufficient to keep the relationship as it is now. 

4. The father has dismissed the need for any parenting courses.  That is his choice. He appears not to have considered that his behaviour has been disrupting and confronting, has upset the mother and that that distress flows onto the children.  It has also established a terrible model of how to cope with relationship problems.  The father is a good parent but not able at this time to co-parent.  His anger and disappointment is getting in the way. 

5. Accordingly I make the following orders. Those Orders will now be forwarded to the address provided by the legal representatives of the father.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on

15 December 2015.

Associate: 

Date:  13 January 2016