SHAKIR & SHAKIR

[2012] FamCA 795

FAMILY COURT OF AUSTRALIA

SHAKIR & SHAKIR [2012] FamCA 795

FAMILY LAW – CHILDREN – With whom a child lives – Interim Orders – Where the mother works for at least 12 hours a day and relies on a nanny to care for the children - Where the father lives in the former matrimonial home with his sister and uncle – Where the capacity of either parent to provide for the children’s needs as primary carer is untested – Where the father has a history of drug use – Orders for the children to live with the father and spend each weekend with the mother, with the father to have random drug tests

APPLICANT: Ms Shakir

RESPONDENT: Mr Shakir

FILE NUMBER: SYC 4296 of 2012

DATE DELIVERED: 31 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hamish Cumming Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Messner

SOLICITOR FOR THE RESPONDENT: Tiyce & Lawyers

Orders

IT IS ORDERED

1. That the parents have equal shared parental responsibility for the children M born … June 2006 and R born … December 2008.

2. That the children live with the wife from Friday afternoon until 7.30 pm on Sunday each week.

3. That the wife’s time with the children commence after school or day care on Friday.

4. That in the event that the wife is unable to collect the children from school or day care then she shall notify the husband not later than 7.00 pm on the preceding Thursday of the time she intends to collect the children and shall collect them from the husband’s residence not later than 7.30 pm on Friday.

5. That in the event that the wife is unable to collect the children by 7.30 pm she shall collect the children from the husband’s residence at 8.00 am on Saturday.

6. That the wife shall return the children to the husband’s residence at 7.30 pm on Sunday.

7. That at all other times the children shall live with the husband at the residence at   Property E.

8. That the husband is restrained at all times from using any prohibited substance.

9. That the husband within 21 days of this order and thereafter on no more than one occasion in each three calendar months until 30 March 2013 or further order of the court, submit himself for hair testing and provide such hair samples as directed by Occupational Toxicology Services Pty Limited for the purpose of analysis of drug use in relation to methadone metabolite, opiates, amphetamine type substances, benzodiazepines, cannabinoids, cocaine, metabolite, barbiturates and buprenorphine.

10. That the husband be restrained from taking any steps to interfere with the provision of hair samples or to interfere with the test results.

11. That the husband direct and authorise Occupational Toxicology Services Pty Limited to provide to the solicitor for the wife, Hamish Cumming Family Lawyers copies of all test results forthwith upon those results becoming available.

12. That the wife, Ms Shakir, meet in the first instance the costs of the hair follicle testing.

13. That the husband undertake random blood and / or urine analysis testing not more than once each week and within 24 hours of being notified by the solicitor for the wife at a time and place nominated by the solicitor and in the first instance at her expense and that he authorise the tester to provide a copy of the test results forthwith to the solicitor for the wife.

14. That in the event that any test result is positive for any prohibited substance not limited only to those referred in the order relating to hair testing, liberty be granted to the solicitor for the wife to apply on short notice by arrangement with the Associate to the Honourable Justice Rees.

15. That during periods of school holidays the children shall live with the wife for any period she is on holidays and available to care for them and they shall otherwise live with the husband.

16. That the matter is otherwise stood over to a Case Assessment Conference on 29 August 2012 at 11.30 am before Registrar Campbell.

17. That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shakir & Shakir 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: SYC 4296 of 2012

Ms Shakir

Applicant

And

Mr Shakir

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court concern the interim care arrangements for two children, M, born in June 2006 and therefore now aged six and R born on in December 2008 and therefore now aged three and a half years.  The children’s parents are Ms Shakir, the applicant mother, (to whom I will refer as “the mother”) and Mr Shakir, the respondent father, (to whom I will refer as “the father”). 

2. The final separation of these parties occurred on 30 June 2012 when the mother left the family home with the children and moved into rented accommodation.  There was a previous separation between December 2007 and March 2008. 

3. Most recently, on 26 February 2012, the father moved to live in a house belonging to his sister, Ms A, in Suburb C.  The parties attended marriage counselling and the father spent some nights at the family home.

4. Since April 2007, the family home has been the home of the husband’s uncle, Mr Y, in Suburb S (“Property E”).  That home was the residence of the parties, the children, the children’s nanny and since August 2011, the father’s sister, Ms A.  That is the home which is the children’s familiar residence, and the only home which they would remember.  The children’s aunt, great-uncle and nanny are all part of the children’s familiar extended group of family and carers.  The father has returned to live in that home with his uncle, Mr Y, and his sister, Ms A, and proposes to remain there.  The orders that I will make today will be conditional upon him doing so. 

5. Since separation, the mother and the nanny and the children have lived in rented accommodation. 

6. It is necessary to examine the circumstances of the care of the children during the cohabitation of the parents.  The mother is employed as a Chief Financial Officer of a corporation.  She deposes to leaving home at about 7.30 am in the morning and returning home at about 7.30 pm at night.  The evidence is that sometimes she returns later.  She returned to work soon after the birth of each child.  When M was five and a half months old, the mother returned to work and M commenced in long day care.  In March 2007, the parties hired a nanny to live-in but M remained in long day care.  After R was born, the mother returned to work and R commenced long day care.  Each party claims to have been the primary carer of these children; neither of them, in fact, was.

7. The father took them to day care and later took M to school and picked them up in the afternoon.  The director of the day care institution, who is on affidavit, says that she did not meet the mother for a year after M commenced at day care. 

8. The father was also involved with M’s soccer and, on occasions, took the children to the doctor and that is probably the extent of his involvement with the children.  It is not necessary to examine the whole of the period of cohabitation. 

9. Up until February 2010, both of the parties were in fulltime employment.  Between February 2010 and March 2011, the father did not work but the children remained in long day care.  In March 2011 until January 2012, the father was employed as the duty manager of a nightclub.  In paragraph 41 of his affidavit, he deposes to opening, running and closing the nightclub, paying off staff and balancing the cash.  Documents tendered in the mother’s case indicate that the club hours were from 8.00 pm to 6.00 am with doors opening after 9.00 pm.  If the husband balanced the cash takings in the nightclub, that must have been done after closing and presumably took some time after the closing time of 6.00 am.  If he was to be there when the club opened at 8.00 pm, he must have left home not long after 7.00 pm and presumably he got home some time after 8.00 am or at about that time and in time only to take the children to long day care.

10. The father says that he often left for work before the mother got home from her work.  For these children, their experience was a mother who worked all day for at least 12 hours a day and a father who worked all night for at least 12 hours a night.  A short time before the separation on 26 February 2012, the father left his employment and he has not been since in employment.  Up to that time, neither parent spent much time with the children.  They were in long day care while the father was at home and they were mostly asleep when the mother was at home.  The children spent less time with the father after 26 February 2012 but no more time with their mother.

11. The mother relies on the father’s history of drug taking.  She asserts that in 2005, the father was charged with drug offences and pleaded guilty.  She is unable to give any further information in relation to the offences or the nature of the charges.  There is no evidence from the father about that matter.  She asserts that in December 2007 after the parties separated and while they were in counselling, the father admitted using “ice” and “E” (which I assume to be ecstasy), and “C” (which I assume to be cocaine).  She asserts that in 2010, after his heart attack, the father asked the doctor if he could continue to take E and C. 

12. She asserts – and the father agrees – that in 2011, he lost his licence.  At paragraph 38 of the father’s affidavit, he says only that he had taken a pill, but gives the Court no details of the substance which he had ingested, or the nature of the charges.  The mother asserts that on 27 January 2012, the father admitted that he had been taking drugs.

13. In the interview with the family consultant on 30 July 2012, the father said that he had last used drugs in December 2011.  The family consultant records the following:

    The mother’s allegations about the father’s illicit drug use and the impact on his behaviour and on his parenting - The father acknowledges a history of recreational illicit drug use (including methamphetamines, speed, ecstasy, cocaine and marijuana), but denies current drug use (last used drugs in December 2011).  He stated that he has recently undergone a supervised urinalysis test (results were negative for drugs).  The father does not believe that his drug use has had an effect on his behaviour or on his parenting capacity.

14. The father admits to the recreational use of drugs.  He says that he last used drugs in December 2011, which is contrary to the mother’s evidence that he admitted using drugs on 27 January 2012.  A drug screen collected from a sample taken on 4 July 2012 did not detect the presence of any illegal substance.  The father at paragraph 32 makes the extraordinary statement:

    I now rarely take drugs and, if I have in recent times, it has only been cocaine.

15. As to the statement made to the family consultant that the father does not believe his drug use has had an effect on his behaviour or on his parenting capacity, his counsel explained that the basis of that statement was that he did not use drugs at home or where the children were. 

16. The mother in her affidavit at paragraph 80 refers to the period after the parties’ separation in February 2012.  She says that the father would occasionally stay over at Property E and that she would wake up at night and discover that he was drilling, building things or putting up shelves.  She said his behaviour was erratic and sometimes he would break into tears, at times he would become extremely abusive and scream at her. 

17. I can draw no conclusion about the reasons for the husband’s behaviour.  I take into account the fact that he had recently stopped working a 12 hour nightshift.  There is, however, no dispute that the father is a recreational drug user.  The dispute is whether or not he stopped using drugs in November 2011.  The father offers an undertaking to the court not to use drugs when the children are in his care.  To say the least, the undertaking which is offered is insufficient. 

18. However, in January 2012, the mother suggested that the father be the fulltime carer of the children and that she pay to him the money that she would otherwise have paid to the nanny.  She must have made that suggestion in full knowledge of his drug use and in full knowledge of his health problems, upon which she also relies. 

19. The father suffered a heart attack in 2010.  He suffers from diabetes and depression and he has high blood pressure.  He has had a gastric banding procedure which, on occasion, causes him to be ill and vomit.  Those are not conditions which were any surprise to the mother and are not conditions which would prevent him from caring for the children, particularly with family assistance. 

20. There are allegations by the mother of behaviour in recent times that the father has harassed her.  She gave a statement to the police on 18 June 2012.  On 9 July 2012, the father used his phone to record the mother and the children during a visit to the doctors.  His behaviour was inappropriate; it must have been distressing for the mother and distressing for the children.  The police instituted  proceedings seeking an Apprehended Domestic Violence Order (AVO) after that incident and those proceedings are before the Court on 16 August 2012.  I can make no findings, the mother’s version of the offence being contested by the father, but I am mindful that the events occurred in the context of a very recent separation.

21. The orders which the mother seeks are that the children live with her and that the father spend time with the children each alternate weekend, providing that he is residing with his uncle and his sister, Ms S, at Property E.  She also seeks orders, to which the father consents, that he undertake hair testing in relation to drugs and make a copy of the test results available to her solicitors and that he not be under the influence of illicit drugs while the children are in his care. 

22. The father seeks orders that the children live with him and spend time with the mother each alternate weekend and from after school until noon Saturday in the other weekend of each fortnight.  He seeks orders that she have the children with her for half of the school holiday periods, provided that she is personally available to care for the children.  The parties agree that they should have equal shared parental responsibility and I will make those orders. 

23. Since separation the children, by agreement, spent time with the father between 13 and 16 July 2012.  Contrary to their agreement, the father did not return the children to the mother until 19 July 2012.  However, they again spent time with the father from Wednesday of last week until Saturday.  It is clear that the mother believes that it is appropriate for the father to care for the children for periods of up to three nights and three days provided that he does so in the home of his uncle and his sister.  The parties do not dispute that there should be a meaningful relationship for the children with both of their parents. 

24. There is no evidence before me about the views expressed by the children and, given their tender age, no weight would be given to those views. 

25. There is no evidence before me of the nature of the relationship between the children and their parents.  It is likely that the children have an attachment not only to each of their parents but to their great-uncle and their aunt, Ms A, with whom they have shared their home. 

26. Both parties have arranged their working commitments in a way which suits their own interests but has not taken into account, or paid scant regard to, the children’s needs to be cared for by their parents.  Each of them has abrogated their parental responsibilities to a series of nannies and each has given his or her work priority over the needs of the children.

27. The father’s home in which the father will live is the children’s home.  Their great-uncle and their aunt have been there.  The mother has expressed her confidence in both the great-uncle and aunt, Ms A, to care for the children. 

28. The mother’s home is new to the children and is shared by the mother and a nanny of some six months.  The children, sadly, are accustomed to the absence of both of their parents.  There is no evidence before me which suggests that the children would be happier or more settled living with a nanny in the mother’s house and seeing the mother for the small period between her return from work and their bedtime and for whatever small time she may have available in the morning.  At the father’s home, the children would be in the care of their father who is available when they are not at school or day care, and of the extended families.  The parties live relatively close geographically.

29. There is a good relationship between the mother and the father’s uncle and sister and both of those factors will facilitate the children’s moving between the two households.  The capacity of both parents to provide for the children’s needs as a primary carer is untested.  Neither of them has ever done so.  I can make no findings in relation to the issue of family violence, which is disputed.  The nature of the allegations is consistent with the events arising out of the period of the parents’ separation.  However, this is a factor to be weighed against the other factors.

30. The decision, therefore, which faces the court is this:  Should the children be primarily cared for during their waking hours by a nanny or by a father with an admitted history of recreational drug use and his extended family?  My conclusion is that the children should be cared for by their mother when she is available and by their father when she is not.  To safeguard the children in the father’s care, I will make orders for random drug testing in addition to the hair tests proposed by the mother.  The orders will provide for substantial and significant time with both parents to the extent that the mother’s work commitments will allow. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 31 July 2012.

Associate: 

Date:  18 September 2012