Lindsay and Lindsay (No 2)

[2014] FamCA 704

FAMILY COURT OF AUSTRALIA

LINDSAY & LINDSAY (NO 2) [2014] FamCA 704

FAMILY LAW – CHILDREN – Orders – Variation – Where mother sought an order which provided that she not leave the children in the sole care of her partner and that her partner give an undertaking in relation to his drug/alcohol use to the court be vacated – Where court was noted that the material before the court fell short of satisfying it that there is presently any real risk of the children being subject to serious neglect by virtue of the new partner being under the influence of illicit drugs – Where court satisfied that in the absence of any actual evidence of drug taking by the new partner, it is appropriate for the order to be discharged – The court noted however that the undertaking made by the new partner remains in force.

FAMILY LAW – CHILDREN – Equal Shared Parental Responsibility – Where counsel pointed out that a matter such as with whom a parent of a child leaves a child with, or the circumstances in which they might spend time or be in the presence of a child, are matters within parental responsibility – Where presumption of ESPR applies the process by which the presumption may be rebutted is by consideration of the child’s bests interests - Where court not satisfied to the requisite standard that it would not be in the best interests of the child for the mother to have equal shared parental responsibility – Where court satisfied the presumption was not rebutted.

Family Law Act 1975 (Cth) s 60CC, 61DA

APPLICANT: Mr Lindsay

RESPONDENT: Ms Lindsay

FILE NUMBER: CSC 826 of 2012

DATE DELIVERED: 19 August 2014

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 19 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Cope

SOLICITORS FOR THE APPLICANT: Cope Family Law

COUNSEL FOR THE RESPONDENT: Mr Betts

SOLICITORS FOR THE RESPONDENT: Hadley Family Law

Orders

IT IS ORDERED BY CONSENT THAT:

1. The mother and the father will do all such acts and things and sign all such documents as are necessary to enrol the child C born in 2001 at F School in Melbourne as a boarder as of the 2015 school year with the father to be responsible for the costs of his boarding school fees on the basis that:

   (a)    The mother will make such contribution from time to time as she can afford; and

   (b)   The issue of the cost of the boarding school fees shall be revisited by the parties at or prior to the final hearing of the matter.

   IT IS NOTED THAT in booking flights for either B or C to travel to and from Melbourne to school the parents will use their best endeavours to book the children on flights during the day, subject to any specific requests of the child or any significant cost issues.

2. The mother and the father will do all such acts and things and sign all such documents as are necessary to enable the child C to attend at F School from 19 – 21 September 2014 for an introduction to Boarding school experience.

AND IT IS FURTHER ORDERED THAT:

1. The father’s Application in a Case filed 9 May 2014, insofar as it seeks an order for a Family Report, be dismissed.

2. Order 28 of the orders of Federal Magistrate Willis dated 6 February 2014 (as amended 12 March 2013) be discharged.

3. The costs of today’s proceeding will be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lindsay & Lindsay 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 CAIRNS

FILE NUMBER: CSC 826 of 2012

Mr Lindsay

Applicant

And

Ms Lindsay

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By order made 6 February 2013, amongst other things, then Federal Magistrate Willis ordered by paragraph 28:

   The mother will not leave the children in the sole care of [Mr E].  However, provided [Mr E] files a written undertaking with this court not to use or be under the influence of illegal drugs and not to use or be under the influence of alcohol beyond the legal limit for driving then the mother may allow the children to be in [Mr E’s] sole care for a period not exceeding two hours”.

   In her Response to an Application in a Case filed by the father, the mother seeks that that order be vacated. 

2. Ms Cope, the solicitor for the father, explained without demur that the orders that were made by consent on 6 February 2013 reflected, in a sense, a bargain between the parties, with each of them compromising in some respects in order to achieve the orders that were made on that occasion.  The parties, during the course of argument before me, read and relied upon the affidavits that would have necessarily been for the Federal Magistrate on 6 February 2013, and particularly, the father relies upon his affidavit filed 19 December 2012 and those parts of it which detail an alleged conversation between he and Mr E, who I interpolate is the mother’s new partner, in which he says Mr E admitted to a drug problem and alcohol abuse.

3. The mother relies upon Mr E’s affidavit filed 4 February 2013 in which, in broad terms he wholly denied the thrust of the conversation alleged by the father; however, did admit to some historic drug use.

4. Part of the suite of orders that were made on 6 February also included a matter which, although described as an order, is in fact a notation, namely, that Mr E will agree to random drug tests as and when requested, and will attend to same within five hours of request.  Requests are to occur no more than once each six weeks and the results to be filed annexed to an affidavit within four working days.

5. Ten requests were made by the father by his solicitors for Mr E to undertake tests.  Some have not been complied with; some have returned negative results; some have been complied with but after a long period of time had elapsed from the request.  Mr E has attempted, in his affidavit material, to explain the reasons why on occasion he was late in attending to the request, or on occasions was wholly unable to comply with it.

6. His honesty in doing so and the reliability of his denials or explanations cannot be tested in interim proceedings such as these.  However the point that is made by Mr Betts, counsel for the mother, is that the orders made on 6 February have now been in operation for something approaching 18 months, or a little longer, and nothing has ever been affirmatively established by any of the testing regime to suggest that, in fact, Mr E has, in that time, been abusing drugs, or for that matter, alcohol.

7. On the other hand, the father argues that some of what he characterises as unsatisfactory events surrounding his requests for drug testing, has far from abated his concerns in relation to Mr E’s drug abuse, but rather has raised further suspicion. 

8. There was some discussion with counsel and solicitor in relation to the appropriate pathway – as that term is frequently used – in determining an application such as that brought by the mother.  I am satisfied that the starting point in relation to consideration of an order such as order 28, is section 61DA of the Family Law Act which, by subsection (1), provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests for the child’s parents to have equal shared parental responsibility for the child.

9. Mr Betts points out that a matter such as with whom a parent of a child leaves a child with, or the circumstances in which they might spend time or be in the presence of the child, are matters squarely within parental responsibility, albeit not long-term issues.  That being the case, in my view Ms Cope correctly conceded that the presumption applies, and moreover accepted that the process by which the presumption could be rebutted would be by a consideration of the child’s best interests, and particularly the court being satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility in relation to this matter.

10. The means by which a court determines what is in the best interests of a child is well established by section 60CC of the Family Law Act. In discussions with the parties’ representatives, I identified the sole primary consideration which appeared to be relevant, and the several additional considerations which appear to be relevant.

11. The primary consideration that is relevant is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  As to that, Mr Betts appropriately conceded that it is at least arguable that a child being in the care of someone who is under the influence or effect of drugs or alcohol, could comprise serious neglect, and therefore, potentially, this primary consideration is relevant.

12. However, the material as to the assessment of the risk in this case is relatively thin.  I have already adverted to the affidavit material relied upon by the parties before Willis FM which largely dealt with an alleged admission by Mr E to the father, and the father has thereafter filed material which largely deals with Mr E’s failure to attend to relevant requests for drug testing but also deposes to, on at least one occasion, a conversation with someone else during which that person disclosed to the father that at the mother’s 40^th birthday party there had been drugs.  (I interpolate that the mother’s 40^th birthday party appears to have been relevantly recently.)  However, the material falls far short of satisfying me that there is presently any real risk of the children being subject to serious neglect by virtue of Mr E being under the influence of illicit drugs.

13. I then turn to the additional considerations. The first relevant one is section 60CC(3)(b) which is the nature of the relationship of the child with their parents and other persons. Plainly, Mr E would be an “other” person. However, the material thus far before me does not really enable me to establish the nature of the relationship of the children with him with any certainty. On the other hand, it appears as though the children have good relations with both of their parents, which is to be commended.

14. The next additional consideration which is relevant is section 60CC(3)(f) which is the capacity of each of the child’s parents and the other person to provide for the needs of the child, including emotional and intellectual needs. The father, somewhat refreshingly, concedes that the mother is a good and loving mother to the children. To the extent that he has any criticism of her care of the children, it appears to really relate to her choice of partner in Mr E, and his concerns that she may, knowingly or otherwise, permit him to be under the influence of drugs whilst around the children.

15. However, absent there being any evidence of that in fact occurring during the course of the relationship, there is little in the material before me to cause me to doubt the capacity of the mother to provide for the needs of the child in relation to matters such as this within parental responsibility.  There is nothing in the material which really would support any such adverse finding being made in an interim proceedings such as these, to the effect that Mr E doesn’t have the capacity to provide for the children’s needs during any time that they may be under his care or in his presence.

16. The next relevant additional consideration is section 60CC(3)(i), being the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. This, in large part, overlaps with the criterion I have just addressed and I repeat those observations.

17. The final additional consideration which is relevant is section 60CC(3)(k) which relates to family violence orders and particularly, any relevant inference that can be drawn from the order. It appears as though Mr E has in earlier years had a family violence order made against him. However, I am unable on the present material to draw any relevant inference from that fact.

18. Against that background of the traverse of the section 60CC factors I consider whether it would not be in the child’s best interests for the mother to have equal shared parental responsibility in relation to this matter. I am not satisfied to the requisite standard that it would not be in the best interests of the child for the mother to, in fact, have equal shared parental responsibility. The presumption is, therefore, not rebutted.

19. I am therefore satisfied, notwithstanding that in a sense the mother is attempting to undo the deal that was done some 18 months ago, at least in what the father perceives to be a material respect, that given the lapse of time since then, and particularly given the absence of any actual evidence of drug-taking by Mr E, that it is appropriate that order 28 be discharged.  There will, therefore, be an order vacating order 28 of the orders made 6 February 2013. 

20. That said, I note that the undertaking of Mr E was given on 6 March 2013, I assume in terms consistent with order 28.  That undertaking is, as I have noted, not to use or be under the influence of illegal drugs, and not to use or be under the influence of alcohol beyond the legal limit for driving.  That undertaking is not the subject of this order, nor was any application made to have Mr E released from that undertaking.  That undertaking remains in force.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 19 August 2014.

Associate: 

Date:  19 August 2014