Sheridan and Sheridan (No. 3)

[2013] FamCA 584

FAMILY COURT OF AUSTRALIA

SHERIDAN & SHERIDAN (NO. 3) [2013] FamCA 584

FAMILY LAW – CHILDREN - Interim orders where evidence shows husband has some involvement in illicit drug industry – Extant week-about orders suspended pending further order.

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Sheridan

RESPONDENT: Mr Sheridan

FILE NUMBER: ADC 2309 of 2009

DATE DELIVERED: 2 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne
By video link from Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 30 July 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That until further order, the husband’s time with the child H born … September 2001 is suspended.

2. That all outstanding applications are adjourned to be heard on Monday 26 August 2013 subject only to the resources of the court being otherwise unavailable.

3. That if the court cannot accommodate the case to commence on 26 August 2013, the matter be listed before Dawe J as soon as practicable for consideration as to whether it could be heard as part of the proceedings in September 2013.

4. That each party file and serve as soon as practicable but by no later than 15 August 2013 any affidavit material upon which each intends to rely at the said hearing relating to parenting issues.

5. That all interim applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheridan & Sheridan (No. 3) 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 MELBOURNE

FILE NUMBER: ADC 2309 of 2009

Ms Sheridan

Applicant

And

Mr Sheridan

Respondent

REASONS FOR JUDGMENT

The interim applications

1. On 24 June 2013, the wife in these proceedings filed an application in a case seeking to “dismiss” a particular paragraph of final parenting orders made on 27 May 2010 relating to the child of the marriage H, (“the child”) who was born in September 2001.

2. By an application in a case filed on 28 June 2013, the husband not only opposed the wife’s application but also sought a recovery order relating to the child.

3. The matter was heard by me initially in Adelaide on 10 July 2013.  Serious allegations were made by the wife concerning the husband’s involvement in the illicit drug industry and in particular, that the South Australian police were interested in him as a suspect and that it was likely that he would be charged.  Having regard to the absence of material one way or the other, but because of the serious nature of those allegations, I permitted the wife to adjourn the proceedings to enable further material to be obtained.  I gave her leave to issue a subpoena to the relevant police officers.

4. When the matter returned to the Court, the wife indicated that she had been unsuccessful in obtaining co-operation from the police to attend court.  I again permitted the wife to adjourn the proceedings to call further evidence from the police by way of subpoena having regard to the serious nature of what was being alleged against the husband.  That was particularly important because it had come to light that the husband had a conviction associated with possession of drug paraphernalia and cultivation of drugs as little as 12 months ago.

5. The matter was therefore adjourned to 30 July 2013 and the relevant orders relating to the husband’s time with the child were suspended.

Background

1. On 27 May 2010, an agreement about the child was reached between the parties and final orders were made by the Federal Magistrates Court.  The parties were given equal shared parental responsibility.  In addition, the child was to spend a week with each parent on a week-about basis.

2. To achieve those orders, there has been considerable litigation.  Not only have there been contravention applications but the parties have also had a number of hearings which included attendances on family report writers.  Despite all of that, I found it remarkable that the property proceedings had not been resolved and those are now listed before Dawe J in September 2013. 

The facts

1. What brought this whole issue to a head was that the wife became aware that the husband was no longer living at a particular house in Adelaide and that it was apparently in disrepair.  Accordingly, the wife brought proceedings before Dawe J on 17 June 2013 whereupon orders were made giving her exclusive occupancy of the property and preventing the husband from attending there. 

2. The wife accessed that home with a locksmith and she claimed that she found cannabis growing, called the police who attended and subsequently the husband was interviewed.  She said her concern was that the husband was dealing in drugs.

3. The husband responded by affidavit in a very vague way by not denying the specific assertions but in any event indicating that the police would be questioning the wife because the home was in joint names.  He denied that he sold drugs.

Drug History?

1. It is noticeable from previous proceedings in this Court and in particular the family report, that there had not been a suggestion of illicit drug use by the husband but indeed there had been in relation to the parties’ adult son.

2. In her affidavit, the wife said that she had “extreme concerns” about the husband’s drug usage.  That became more credible when it transpired that the husband was convicted of cultivating and possessing drug paraphernalia in 2012.

The evidence of the boarder

1. During the intervening period of the adjournments, the wife called evidence from Mr N.  He said that he had lived in the house after October 2011.  He said the husband indicated through an adult son that the relevant part of the house where the drug paraphernalia was ultimately found was off limits.  Mr N said that the husband’s son said he would be kicked out if he, Mr N, went into that locked area.

2. Mr N said that when he went into the room where the drug paraphernalia was ultimately found, there were four harvested marijuana pots present.  Just who that belongs to remains a mystery.  However, I was assisted enormously by the two investigating officers who had gone to the house upon presumably being told of the presence of the drugs. 

The police evidence

1. Officer Q is a police officer at Town R.  He said he only found prescribed equipment in the relevant room as well as some in the shed.  He said there were no plants.  He was the person who interviewed the husband who he said, refused to answer questions.

2. He said there was evidence that plants had been growing in the house and as far as he was concerned, the husband was a suspect.  He said he had made a report to his superior officers and at this stage, no prosecution had been instigated.  He said that if the offences were relating to the possession of drug paraphernalia, they were summary offences where the maximum penalty was $10,000.

3. Officer S also attended the court to give evidence pursuant to a subpoena.  He confirmed what Officer Q had found.  He said the husband had previously been convicted of cultivation and possession of prescribed drug equipment in 2012.  He was not present with Officer Q when the interview with the husband was undertaken.  He did however confirm that the husband was a suspect in the proceedings.

The husband’s evidence

1. The husband’s evidence revolved around a simple proposition.  He remains largely silent on how this paraphernalia got to the house or who owned it.  As I said, he denied dealing in drugs.  His affidavit material in relation to deflecting attention to the wife by saying that the police were interested in her, was not only debunked by the police officers involved but it also did him no credit particularly having regard to the fact that he was convicted in 2012 of offences associated with drug paraphernalia.

2. The husband’s focus in this application was on the fact that he had a very close and loving relationship with the child and he wanted the resumption of that relationship. 

Findings

1. I am satisfied on the evidence, the test of which is the balance of probabilities, that the husband has had some involvement with these drugs and drug paraphernalia and consequently, that involvement places the child at some risk.  The extent of that risk is hard to assess.  Any involvement in the illicit drug industry by a parent raises questions about competence of parenting and parenting responsibility.  A parent who is involved in cultivation may very well have an explanation for why such drugs might be required for personal use but that was not the husband’s position in his affidavit.  If there is sufficient evidence, as I find here, of dealing or potential for dealing, because of the size of the operation, it is reasonable to infer that the husband was willing to break the law which creates questions about role modelling but also his preparedness to put the child at risk of contact with the seedier side of society.  Many questions arise about just exactly what the husband was doing and at this stage, they remain unanswered.

The legal issues

1. Despite the truncated hearing and the paucity of evidence, the Court must still regard the best interests of the child as the paramount consideration in deciding what (if any) interim parenting orders should be made (Goode and Goode (2006) FLC 93-286).

2. In Goode, the Full Court indicated that a court dealing with such an application should,

   ·    Identify the competing proposals;

   ·    Identify the issues in dispute;

   ·    Identify any agreed or uncontested relevant facts; and

   ·    Consider the matters in s 60CC that are relevant and if possible make findings associated with those provisions.

The determination

1. The proposals in this case are stark.  The husband says that there should be a week-about arrangement and the wife wants the husband’s activities substantially curtailed.  The wife has other matters that she wishes to litigate about concerning just what her son’s views are but in my view, they are hardly uncontroversial.  The wife did indicate in the courtroom that she was prepared for the husband to have supervised time but the husband seemed largely uninterested.

2. In terms of identifying the issues in dispute, the contrast as I have pointed out is stark.  The facts clearly favour the position put by the wife. 

3. Of the matters set out in s 60CC, there is clearly a meaningful relationship between the child and his father already.  I am very hesitant to make any finding which would indicate that the child does not benefit from a relationship with his father particularly as I have just indicated that the wife was encouraging it. 

4. Section 60CC however also requires, as a primary consideration, for the Court to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  That is wide-ranging.  The relationship between the parties is poor but I am uncertain as to the nature of any family violence involved.  The inability of the Court to rely too much on previous orders which made for a week-about arrangement with the parties’ consent indicates each had some confidence in the parenting ability and responsibility of the other, limits what I can find in this case.

5. The wife wanted to assert that the child has a view about what he wants to do but in my view, unless I have some expert evidence as to what weight I should give to the child’s view, I should largely ignore that part of the evidence.

6. The nature of the relationship between the child and his parents is also unclear.  The wife asserted that the relationship between the child and his father was not good yet the husband said that the child is wanting time with him and that that was obvious from their telephone discussions.

7. It is clear that both parties have had a significant role in this child’s life and that had been a position recommended by the social scientist giving rise to the orders in 2010.  It is therefore a significant change in the child’s life to exclude him from having time with his father.  Having regard to the risk that I think is involved because of the husband’s involvement with the drug paraphernalia, industry, a court is justified in taking a conservative and cautious approach.  That is particularly so when one of the considerations in s 60CC is to examine parental responsibility.  In my view, a parent who involves themselves in illicit paraphernalia places the child at risk of being exposed to either members of the illicit drug industry or indeed the police forces who are carrying out the law.  All of those must be frightening to a child of his age.

8. It is also important to take into account that a significant change in the child’s life will occur by being removed from his father and I propose to ameliorate that problem by having the case listed as quickly as I possibly can before a judge notwithstanding that the property issue is listed before Dawe J in September.

9. In my view, this is a case where I should take a cautious approach because although initially there were stark contrasting positions, the evidence of the police officers and the concession by the husband that he was convicted of drug associated offences in 2012, means that I can take some comfort in saying that there is a problem here even if it is not able to be comprehensively explored at this time.  Under those circumstances, I propose to seek to have the matter heard expeditiously in August and for the parties to file all of their material so that the case can be comprehensively heard either in August or if it is not then ready, in September.  I had contemplated ordering a further family report but I doubt very much whether much assistance will come from that as it seems to me that the issues of parental responsibility as well as capacity are more important.  In the meantime, the father’s face to face time with the child is suspended.

I certify that the preceding Thirty One (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 August 2013.

Associate: 

Date:  2 August 2013