MASONS & MULLINS
[2015] FamCA 633
•28 July 2015
FAMILY COURT OF AUSTRALIA
| MASONS & MULLINS | [2015] FamCA 633 |
| FAMILY LAW – PARENTING – interim children orders – best interests – drug testing – copy documents other proceedings |
| Family Law Act 1975 (Cth) s 60CC |
| APPLICANT: | Mr Masons |
| RESPONDENT: | Ms Mullins |
| FILE NUMBER: | DNC | 300 | 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: | Mr Barry |
| SOLICITOR FOR THE RESPONDENT: | Darwin Family Law |
Orders
The father is to provide the results of the drug testing as ordered in Action No DNC 221 of 2015 (Masons & Masons) (Order 3 thereof refers) to the solicitors of these proceedings within forty-eight [48] hours of receiving that drug test result.
The father and the mother shall have equal shared parental responsibility for the child F born on … 2006 (“the child”).
The father and the mother shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) they shall inform the other about the decision to be made;
(b) they shall consult with each other on the terms that they agree; and
(c) they shall make a genuine effort to come to a joint decision.
Except as otherwise provided in these orders, the child shall live with the mother.
Until the father produces a clean drug test as ordered in Action No DNC 221 of 2015 (Masons & Masons) (Order 3 thereof refers) the child spend time with the father during school term time as follows:
(a) each Wednesday from 2.30 pm to 6.30 pm;
(b) each Saturday from 9.00 am until 3.00 pm.
Upon the father providing such clean drug test as previously ordered the child spend time with the father each alternate weekend from 2.30 pm Friday until 3.00 pm on Sunday during school term time.
When the father is due to spend time with the child should there be an extracurricular activity or that the child would usually attend the father shall take The child to that event, or communicate with the mother and permit the mother to do so and further the father shall ensure that the child is always available to participate in his sports related activities.
The father shall keep the mother informed as to his place of employment and his working hours, in relation to periods when the father is scheduled to spend time with the child.
The child shall spend time with the father from 3.00 pm to 6.00 pm on the father’s birthday, father’s day, the child’s birthday and on Christmas Day, unless the mother has taken the child away from Darwin for such times.
In the event that the mother wishes to take the child away for a holiday overseas, or within Australia for more than five [5] days the mother shall notify the father of the intention to do so not less than twenty-one [21] days prior to departure, and shall provide the father a general itinerary of where the child will be whilst away on holidays and a telephone number at which the child may be contacted whilst away.
During the school holiday time the father spend time with the child at times to be agreed and in default of agreement as ordered by the Court with liberty to the parties to apply for the time spent.
Handover shall occur at school on school days and on any other day otherwise the child shall be exchanged at the mother’s residence.
Having regard to the child’s wishes and his age and development each of the father and the mother shall be permitted to communicate with the child at any reasonable time and in a reasonable manner and by what method that parent wishes when the child is with the other parent.
Each of the father and the mother shall immediately notify the other of any serious illness or any emergency involving the child.
This order shall authorise the child’s school and or his medical practitioners to provide to the other parent all records, notices or other material affecting his education, health and welfare including but not limited to school report, notices of parent/teacher interviews and medical records.
The father shall keep the mother informed as to the names, ages and general details of any persons who are staying at his home, when the child is in the father’s care.
Each of the father and mother shall keep the other informed of where the child is living or holidaying and a telephone number at which he/she can communicate with the child during the time that the child is with that parent and notify all changes in those contact details as soon as possible of the change being known to that parent.
Within forty-eight [48] hours of receiving the psychiatric report which has been ordered in Action No DNC 221 of 2015 (Masons & Masons) (Order 4 thereof refers) the father is to provide a copy to the mother’s solicitors in these proceedings.
The mother and the mother’s solicitors may obtain copies of any documents filed and also inspect any material obtained by subpoena in relation to Action No DNC 221 of 2015 (Masons & Masons).
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 & Mullins 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: DNC 300 of 2015
| Mr Masons |
Applicant
And
| Ms Mullins |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
In relation to this matter I am being asked to make orders in relation to the child, F who was born in 2006 (“the child”) and is therefore aged nine. The matters that are brought into account are also similar to those of the judgment I have just given on an ex tempore interim basis in the matter of Masons & Masons. I refer to that decision in making this decision.
The issues that are again the primary considerations are the relevant factors, but there are significant differences in this matter, in that the child is aged nine and the children in Masons & Masons are aged four and two. What is also significant is that the father’s affidavit material does not give me particulars of the regular time he says he has spent with the child, but it is conceded by the mother that arrangements were made in the past for the child to spend time with the father, but certainly not to the extent that the father is now seeking, including overnight time and approximately six days and nights a fortnight.
The primary considerations are the need to ensure that the child is protected, and to consider the benefit to the child of having a meaningful relationship with both parents. It is conceded that the child should live with the mother. The mother is proposing that the parents have equal shared parental responsibility. It is therefore necessary to take into account whether it is in the best interests of the child to spend substantial or significant time with the father. In relation to those matters, even on an interim basis, I need to consider all of the factors under section 60CC.
The Court has already ordered the father to provide a drug test in relation to the matter of Masons & Masons. I will now make an order requiring the father to provide the results of that drug test to the solicitors in these proceedings within 48 hours of receiving the drug tests.
When determining what would be in the best interests of the child, I take into account his age and the fact that he has in the past had a relationship with his father which has been interrupted since the issues arose in March of this year.
The mother’s concerns about renewing overnight time are based upon what she now claims to be her reflection on the matters which have been raised and her fresh knowledge of the extent of his drug abuse problems in the past.
The Court takes into account that the father has refused to voluntarily agree to the orders in relation to drug testing, and cannot at this stage determine whether that refusal is considered reasonable. This does, however put into context the concerns of the mother of the child in these proceedings. The orders which the father seeks include significant overnight time, which is a substantial increase in the time the child has spent with his father away from the care of his mother in the past.
In contrast, the mother is seeking limited time and proposing each Wednesday from 2.30 pm until 6.30 pm, and each Saturday from 9.00 am until 3.00 pm. Albeit that they are not overnight times, they are still significant times each Wednesday, and need to be considered in the context of the child’s age and the benefit to the child of having a meaningful relationship with his father.
Weighing all of the factors I consider that the orders sought by the mother by way of interim orders are in the child’s best interests and are appropriate:
I certify that the preceding nine (9) 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
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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