Preston and Starkweather
[2010] FMCAfam 467
•3 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRESTON & STARKWEATHER | [2010] FMCAfam 467 |
| FAMILY LAW – CHILDREN – Interim orders – child aged 2 years and 9 months – drug abuse issues – family violence issues – whether supervision required – equal shared parental responsibility. |
| Family Law Act 1975, ss.60CA, 60CC, 60CG, 61DA, 68R |
| Applicant: | MR PRESTON |
| Respondent: | MS STARKWEATHER |
| File Number: | SYC 2298 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 May 2010 |
| Date of Last Submission: | 3 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | Legal Aid NSW |
| Solicitor for the Respondent: | Ms Smyth |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
The child X born (omitted) 2007 is to live with the respondent mother.
The child is to spend time with the applicant father as follows:
(a)Each alternate weekend from 9:00 am on the Saturday until 5:00 pm on the Sunday commencing on Saturday 8 May 2010; and
(b)Each week from 9:00 am on Tuesday until 5:00 pm on Wednesday; and
(c)At such other times as the parties shall agree.
Until 1 July 2010 the time the father spends with the child in accordance with Order 2 of these Orders is to be supervised by the child’s paternal grandmother MRS P and the father is to ensure that the paternal grandmother is present throughout all such periods of time.
The applicant father is to submit to broad spectrum drug screen urine analysis in a chain of custody setting at (omitted) or (omitted) on one occasion during the months of May, June, July, August, September and October 2010 under the supervision of his local general medical practitioner and do all things necessary to authorise, direct and ensure that the results of all urine analysis tests are provided to the solicitors for the respondent mother within seven (7) days of those results becoming available.
The father and the mother are restrained from administering to themselves any prohibited drug at any time and in the event that either party fails to comply with this order then the other party is granted leave to relist the application for further interim orders on seven (7) business days’ notice in writing.
The father is restrained from consuming alcohol at all times when the child is in his care or for twelve (12) hours before the commencement of any time that the child is to be in his care.
In the event that the father fails to comply with Orders 3, 4, and 5 of these orders, the respondent mother is granted leave to relist the application for further interim orders on seven (7) business days’ notice in writing.
Changeovers for the father’s time with the child in accordance with Order 2 are to take place as follows:
(a)The father and the paternal grandmother Mrs P or the paternal grandmother alone are to collect the child at the commencement of each contact period and return the child at the end of each contact period;
(b)On a weekend, collection and return will take place at the (omitted) Centre entrance at (omitted);
(c)At all other times at the driveway entrance to the lobby of the (omitted); and
(d)If either party is going to be late for a changeover he or she is to forward a text message to the other party no later than ten (10) minutes before the scheduled changeover time.
The father MR PRESTON born (omitted) 1978 and the mother MS STARKWEATHER born (omitted) 1979 and their servants or agents are restrained from removing or attempting to remove or causing or permitting the removal of the said child X born (omitted) 2007 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List also known as the PACE Alert system in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until the Court orders its removal.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Within twenty-one (21) days of the date of these orders the parties are to agree to a psychiatrist to be appointed as the single expert as follows:
(a)The solicitors for the respondent are to nominate three (3) such experts to the solicitors for the applicant within seven (7) days of the date of these orders;
(b)The solicitors for the applicant are to notify the solicitors for the respondent within a further seven (7) days of the chosen expert out of the three (3) nominated;
(c)The solicitors for the respondent are to be responsible for the preparation of the initial joint instructions letter to be signed by the solicitors for both parties and sent to the expert; and
(d)Liberty is granted to each party to relist the application on fourteen (14) days’ notice in writing in the event of a failure to agree or instruct the single expert.
The agreed single expert is to be nominated as the Court Expert in this proceeding as provided by Rule 15.09 to provide a report in respect of the said child X dealing with the following relevant matters:
(a)Any views expressed by the child and any factors that would affect the weight that the Court should place on those views;
(b)The nature of the relationship between the child and each of the child’s parents and with significant other persons including grandparents or other relatives;
(c)The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent;
(d)The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from:
(i)Either of the parents; or
(ii)Any other person with whom the child has been living.
(e)The practical difficulty and expense of the child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)The capacity of each parent and any other person including any grandparent to provide for the needs of the child including emotional and intellectual needs having regard to the impact of any psychiatric or psychological condition, drug use or alcohol misuse of either parent;
(g)The maturity, sex, lifestyle and background of the child and of either of the parents and any other characteristics of the child that the Court Expert considers to be relevant;
(h)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents;
(i)Any family violence involving the child or a member of the child’s family and how this may impact on each of the parents and any other person in providing for the needs of the child including emotional needs; and
(j)Any other matter relating to the care welfare and development of the child.
The applicant and the respondent are each to be liable as to one half of the costs of the Court Expert and to pay such costs as and when requested.
THE COURT NOTES that the Local Court of New South Wales at (omitted) made an Apprehended Violence Order against the applicant on 24 March 2010 and that the order is in force for a period of two (2) years.
IT IS NOTED that publication of this judgment under the pseudonym Preston & Starkweather is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2298 of 2010
| MR PRESTON |
Applicant
And
| MS STARKWEATHER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of a little girl aged 2 years and 9 months that she should live with each parent for an equal amount if time each fortnight, on a week-about basis. At present, he has not seen the child at all since he and his wife separated on 26th January this year.
The mother opposes those orders and, instead, proposes that the child spend time with the father:
a)On alternate weekends; and
b)On the Tuesday and Wednesday of each week.
The mother has expressed concern about the father’s drug use and his behaviour. She has obtained an Apprehended Violence Order from the Local Court of New South Wales at (omitted). The father consented to that order, which is in force for two years from 24th March this year.
The father has also referred to the mother’s drug use. In his affidavit, he refers to the fact that both the mother and he administered marijuana to themselves on a couple of occasions a month, until the mother ceased on 19th January this year and he ceased the following day.[1] A friend of the parties, Ms C, deposed in her affidavit that the father would use marijuana three or four times a week and the mother would do so at least once a week.[2] She also deposed that they would administer the drug ecstasy to themselves on occasions.[3]
[1] Affidavit of Mr Preston filed 16 April 2010 at paragraphs [37]-[40]
[2] Affidavit of Ms C filed 30 April 2010 at paragraph [33]
[3] Ibid at paragraph [34]
The father has tendered two urine drug tests from (omitted) dated 21st and 29th April 2010 showing that no trace of cannabis or other drugs was detected on either occasion.
The father also tendered a psychological assessment report dated 30 April 2010, based on an assessment conducted on the 7th of that month. The assessment referred to the father’s account of symptoms of depression arising from the recent breakdown of his relationship and losing contact with his daughter, together with the allegations of domestic violence.
The psychologist, Mr L., found no evidence to suggest that the applicant was a threat to himself or others and found his symptoms to be consistent with a normal reaction to a stressful event. The psychologist recommended that:
Mr Preston be referred to a psychologist under Medicare to discuss ongoing management of depressive symptoms. It is likely that this psychological treatment will …require 6 to 12 sessions to achieve this goal.[4]
[4] Report of Mr L, psychologist, dated 30 April 2010.
Background
The parties commenced living together in June 2007 and were married on (omitted) 2006. They separated, on what the father described as “a trial basis”[5], on 4th January 2010. They separated on a final basis on 26th January.
[5] Affidavit of Mr Preston 16 April 2010 at [4]
They have one child, a daughter, who was born on (omitted) 2007. The child is currently living with the mother and has been since separation.
After the birth of their daughter, both parties were engaged in part-time work and shared care of the child. On days when they were both working they would arranged that the child would be looked after by the paternal grandmother.
During their relationship, both the father and mother were involved in an intimate relationship with one Ms C. In company with Ms C., they would administer illicit drugs to themselves. The father and mother each claim that they have ceased their involvement with drugs.
At the time of the parties’ final separation on 26th January this year, the discussion between the parties became heated to the extent that the mother went to the police and sought an apprehended violence order against the father. The application came before (omitted) Court on 1st February 2010, and on that day the Court made an interim Apprehended Domestic Violence Order.
The Apprehended Violence Order was made final on 24th March 2010. The order is in force for two years. The father consented to the order without admissions.[6]
[6] Affidavit of Mr Preston 16 April 2010 at 24
The terms of the Apprehended Violence Order include the standard orders not to assault, molest, harass, threaten or other wise interfere with the mother, not to engage in any other conduct that intimidates her, and not to stalk her or any person with whom she has a domestic relationship.
In addition, the Local Court made these orders:
4. The defendant must not go within 100 metres of the premises at which the protected person(s) may from time to time reside or work, or other specified premises:
Home – The Basement (omitted)
6.[7] The defendant must approach, contact or telephone the protected person(s) by any means whatsoever except through the defendant’s legal representative or as authorised by a parenting order under the Family Law Act 1975 unless the parenting order has been varied, suspended or discharged under section 68R of the Family Law Act 1975.[8]
[7] There is no Order 5
[8] Affidavit of Mr Preston 16 April Annexure “D”
Conclusions
Subsection 61DA(1) of the Family Law Act creates a presumption that the Court must apply before it makes a parenting order, whether or not a party has sought a specific order for equal shared parental responsibility:
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that one of the child’s parents either abuse of the child or family violence (s. 61DA(2).
The presumption applies to interim orders, such as these:
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.[9]
[9] See s. 61DA(3).
In this case, there is a family violence order in place, namely the Apprehended Violence Order made by the (omitted) Court. The Court must consider the risk of family violence and make an order that is consistent with the family violence order (s. 60CG). In the circumstances of this matter, I am not satisfied that there is such a risk of family violence that it would necessitate a finding that it would not be appropriate for the presumption of equal shared parental responsibility to be rebutted. It is a matter that should be considered when making final orders.
The best interests of the child are the paramount consideration (s. 60CA). The primary considerations, set out in s. 60CC(2) are:
(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.
The evidence is that the father has spent a considerable amount of time in caring for this child and there has been no contact between them since the parties separated in late January. Against this, there is the existence of the family violence order and the evidence of illicit drug use by both parents.
I am satisfied that it is in the child’s best interests for her to recommence spending time with the father, subject to appropriate safeguards arising from the existence of the family violence order and the drug issues. It is relevant that the father not only claims to have ceased his use of illicit drugs but has produced evidence by way of two clean urine tests.
The mother seeks orders that the father submit to broad spectrum drug screen urine analysis at least once a month until further order and that he be restrained from using illicit drugs. As there is evidence that the mother has also used illicit drugs until recently, it seems appropriate that they should both be restrained from further drug use.
What the mother seeks is an ongoing order that the father should undertake urinalysis, which the father complains would be financially burdensome. Bearing in mind that he has already tendered two clear urine tests, I am of the view that the testing need not continue indefinitely but should be restricted to a period of six months. If the father reverts to his drug abuse habit, it should become clear within that time, but if he provides six clear urine tests between now and October I am of the view that the requirement for urinalysis need not continue.
The mother also seeks that the father’s time with the child should be supervised by his mother, the child’s paternal grandmother, Mrs P. It is conceded that the child has a close relationship with her as well as with the father:
The reality is that X has developed a close relationship with Mr Preston and is very close to his extended family, especially Mrs P. I want her to continue to have the benefit of those relationships.[10]
[10] Affidavit of Ms Starkweather sworn 30 April 2010 at paragraph [30]
At this early stage after the parties have separated, noting the existence of the apprehended violence order, there may be benefits in erring on the side of caution by providing that the father’s time with the child be supervised by his mother, but I am not persuaded that this needs to be a long-term arrangement, especially if the father continues to remain drug-free. For this reason, I am satisfied that supervision of the father’s time with the child by the grandmother need not continue after 1st July this year. By that time, the father should have re-established his relationship with his daughter and the mother’s fears about the father’s capacity to care for the child should be allayed or at least alleviated.
Noting the existence of the Apprehended Violence Order, the paternal grandmother should be present at changeover or the changeover should take place in a public place, as the mother proposes.
It is inappropriate for the father to consume or be affected by alcohol whilst the child is in his care and he should be restrained from this practice.
There is a need for expert psychiatric evidence for the final hearing, bearing in mind that the father has shown some understandable depressive symptoms arising from the breakup of his relationship with the mother.
These are interim orders, designed to cover the situation over the next few months whilst the situation stabilises. By the time of a final hearing, which is likely to be late in November or early in December this year, the parties should have established a stable regime which will involve the child spending beneficial time with each parent.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 12 May 2010
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