MASONS & MASONS

[2015] FamCA 632

FAMILY COURT OF AUSTRALIA

MASONS & MASONS [2015] FamCA 632

FAMILY LAW – PARENTING – interim children orders – best interests of children – drug testing – health issues – capacity psychiatric assessment

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Masons

RESPONDENT: Ms Masons

FILE NUMBER: DNC 221 of 2015

DATE DELIVERED: 28 July 2015

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 28 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Black

SOLICITOR FOR THE APPLICANT: Cecil Black Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Czislowski

SOLICITOR FOR THE RESPONDENT: Ward Keller Lawyers

Orders

1. The children B born on … 2011 and C born on … 2013 (“the children”) reside with the mother.

2. Upon the father producing a clean drug test the children spend time with the father at times as the parents may agree and failing agreement as follows;

   (a)       On Monday, Tuesday and Wednesday from 3.00 pm to 6.00 pm;

   (b)handovers take place at the children’s day care centre and if not possible in the car park at the D Shopping Centre.

3. Until further order the father submit to urinalysis tests for the detection of such drugs randomly and that for the purposes of this order the following shall apply:

   (a)within 24 hours of the date of these orders, the father obtain from a medical practitioner a referral to a pathologist for the conduct of such tests;

   (b)the father submit to urinalysis tests within 24 hours of being notified by the mother or the mother’s solicitors, no being more often than once per month;

   (c)the tests be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse;

   (d)the father provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the Applicant’s lawyers and to the Respondent’s lawyers immediately upon its completion;

   (e)the father pay the cost of the first test (and the referral);

   (f)the mother pay for each subsequent test, except that father pay for any positive test;

   (g)in the event of a positive test or any breach of this order by the father, the father’s time with the children under these orders is suspended until further order and each party in that event having liberty to apply at short notice.

4. The father attend upon a psychiatrist to be agreed between the parties and failing agreement to be nominated by the Royal Australian and New Zealand College of Psychiatrists for the purpose of a report relating to the father’s mental health and its impact on his parenting capacity such report being prepared for use in these proceedings and such report be prepared at the shared equal cost of the parties on an interim basis to be adjusted if necessary at a later time.

5. The matter be transferred to the Federal Circuit Court in Darwin to be relisted for further consideration on a date to be advised to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Masons & Masons 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 DARWIN

FILE NUMBER: DNC221 of 2015

Mr Masons

Applicant

And

Ms Masons

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to the issues concerning the children, B born in 2011 and C born in 2013 (“the children”) I have before me the initiating application and accompanying documents of the father and the response of the mother.  The matters here concern the welfare of the children.  The children are young, aged four and two.

2. The history of the matter is set out in both of the affidavits of the parties and indicates that the parties separated in January 2014, having been in a relationship for some years and married in 2011. 

3. There are significant allegations made in relation to the care of the children.  In particular, the matter was referred to the investigator concerning an allegation that may have involved some abuse of the child, B. 

4. The father maintained that this information before the Court indicated that the mother was making a spurious allegation with a view to limiting his relationship with the children. 

5. The mother now concedes that the matter is not one in which the children are at risk of sexual abuse by the father or in the care of the father and that the issues now to be determined relate to the primary considerations under section 60CC in determining what is in the best interests of the children, namely, the need to protect the children from harm and the benefit to the children of maintaining a meaningful relationship with both parents.

6. I take into account the other section 60CC factors.  It is clear from the submissions of counsel and the affidavit material that the primary matters relate to those factors.  I also take into account the attitude of the parties to the care of the children and their capacity in relation to providing appropriate care of the children. 

7. The father, in his material before the Court, concedes that he ceased working with the police department due to his health issues, involving depression and post-traumatic stress disorder and that he had been and has been receiving treatment in relation to the same. 

8. The mother makes serious allegations in relation to long-term marijuana abuse and issues of violence and inappropriate behaviour of the father. 

9. The matters which are raised on behalf of the father allege that even if the drug testing proved positive, this would not prove that the father’s drug abuse necessarily has any impact upon his capacity to care for the children.  He also emphasises that since the separation and until March this year the father was spending regular unsupervised time with the children.  He is, however, now seeking substantially longer periods of time unsupervised with the children and is refusing to agree to submit to drug testing prior to the resumption of the time he spends with the children. 

10. The mother also raises a request for a psychiatric assessment of the father to be obtained in order to assist the mother, and no doubt the Court, in determining the father’s capacity to provide longer-term and longer periods of unsupervised time with the children. 

11. Whilst there may be some substance to the submission on behalf of the father that there is no current proof before the Court that his drug abuse, even if accepted, has had an impact upon his care of the children, the Court must place the need to protect the children from possible harm, whether it is physical, psychological or emotion harm as the primary consideration.  The past history of drug abuse alleged by the mother and the father’s current refusal to submit to drug testing prior to resuming time with the young children is a significant factor.

12. What is significant is the young age of the children and the need for the father to have a clear ability to provide appropriate care for such young children (aged two and four).  The matters which need to be determined on an interim basis are such that the Court must place the need to protect the children as the highest priority.  That is not to say, when the matters are fully tested, that that will necessarily be an ongoing factor in determining final orders to be made in relation to the children. 

13. Taking into account their age and the allegations which remain untested, and the father’s attitude to submitting to a drug test, it is significant that orders need to be made for the protection of the children.

14. In making those considerations I take into account the fact that since the separation the mother has allowed the children to spend unsupervised time with the father, notwithstanding her past observations in relation to the drug abuse by the father.  Her allegation is that she agreed to the father spending time with the children (two hours each Monday and Tuesday and all day Wednesday).  That is also a significant factor.  The fact, however, that the mother has, in the past, placed the children in the care of the father is not necessarily something which removes the Court’s concern about the welfare of the children and the need to protect the children. 

15. The mother seeks an order that the father be restrained from allowing the children to come into contact with any members or associates of the E Club.  I accept that there is insufficient evidence to establish that there is a need, at this stage, to make such an interim injunction.  There is nothing in the current affidavit material which might indicate that the children would be at risk and not properly protected by the father in relation to E Club members.

16. Interim orders for anger management counselling and parenting course, at this stage I consider to be unnecessary, taking into account the father’s current enrolment and intention to participate on a voluntary basis. 

17. The matter should be referred back to the Federal Circuit Court, bearing in mind the withdrawal of the allegations in relation to the risks to the children of sexual abuse in the care of the father and particularly now that the Federal Circuit Court is about to have a Judge appointed who will be able to deal with the matter but it would only be appropriate if the other matter of Mullins and Masons can also be referred back to the Federal Circuit Court.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 28 July 2015.

Associate: 

Date:  31 July 2015