Sheridan and Sheridan (No. 4)

[2013] FamCA 835

FAMILY COURT OF AUSTRALIA

SHERIDAN & SHERIDAN (NO. 4) [2013] FamCA 835

FAMILY LAW – CHILDREN – interim suspension of time where drugs and drug paraphernalia found – Court should take cautious approach where obvious risk to child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sheridan

RESPONDENT: Mr Sheridan

FILE NUMBER: ADC 2309 of 2009

DATE DELIVERED: 10 July 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 July 2013

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That the husband’s contravention application filed 28 June 2013 is withdrawn.

2. That the application of the wife filed 24 June 2013 and the application of the husband filed 28 June 2013 are both adjourned to 11.00am (Adelaide time) 11.30 am (Melbourne time) on Thursday 18 July 2013 for further hearing.

3. That the time between the husband and H is suspended until the return date.

4. That until further order, H reside with the wife.

5. That the wife have leave to issue a subpoena to the Officer-in-Charge of the police investigation into the asserted drug use/trafficking/cultivation by the husband with a request that oral evidence be given on 18 July 2013 at 11.00am subject only to any views of the judge presiding at the time.

6. That the reasons for judgment this day be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheridan & Sheridan (No. 4) 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 ADELAIDE

FILE NUMBER: ADC 2309 of 2009

Ms Sheridan

Applicant

And

Mr Sheridan

Respondent

REASONS FOR JUDGMENT

1. I propose to suspend time between H and the husband until the return date of hearing at 11 am on Thursday, 18 July 2013.  Until further order, H will reside with the wife.  I will give leave to the wife to issue a subpoena to the officer-in-charge of the police investigation into the asserted drug use, trafficking and cultivation by the husband to give oral evidence at 11 am on 18 July 2013, subject only to any view to the contrary by the judge on that occasion.  I will direct that the reasons be transcribed and that the contravention application by the husband filed on 28 June 2013 is marked withdrawn as he has requested.

2. This is an application in a case filed by both parties.  For my convenience only, I shall refer to them as husband and wife, notwithstanding their relationship has long ended. 

3. There was a contravention application filed by the husband but, quite sensibly, that was withdrawn. 

4. The first application in a case in time, was filed by the wife on 24 June 2013, under which she seeks that the relevant time between the husband and their child, H, be suspended.

5. The husband, by his application in a case filed on 28 June 2013, effectively seeks the resumption of his time with H.  There are other applications by both parties but for the purposes of the hearing today, none of those matters is of assistance or relevant. 

6. The matter is to be adjourned today because subsequent to the affidavit material being filed, the wife says that an investigation has been undertaken by local police, including the drug squad, which may ironically, corroborate either parties’ version of what this case is really all about. 

7. There is sufficient evidence today and I shall refer to it in a moment, for me to suspend the existing orders for a week, only to ensure that there is no more “toing and froing” for H. 

8. H is a boy who is nearly 12 years of age.  He has lived in a shared care arrangement for a number of years.  The litigation in this court is nothing short of horrifying.  The documents that I am determining even this interim hearing on, number 220 or thereabouts.  That indicates that H’s relatively short window of opportunity before he becomes an adult, is likely to be potted with further litigation unless the court steps in to stop it.

9. I will not bind what another judge does, but someone needs to have a very careful look at what has been going on here. 

10. The proceedings today arise out of an incident that occurred only about three weeks ago.  At that time, H was in the shared care arrangement.  On the night of 14 June, the wife became aware of some facts which she determined justified her not returning H to his father on the following week.

11. A subpoena had been issued to Workcover SA in relation to the apparent outstanding property proceedings between the parties, under which it was revealed that the husband had moved out of the former matrimonial home at G Street, Town E.  It seems the wife concluded that the furniture had been removed from that home and it was in a state of disrepair.  This was the home in which H had lived since he was born.

12. The wife said that she had not been told that H had been moved out of that home and it seems common ground that the husband and H had not lived there for some months.  What was disconcerting was what the wife found when she actually went to the home.  She said that when she arrived, a boarder, whom she named as T, answered the door.  She said T telephoned the husband and notified him that she and her partner were at the property.

13. The husband then telephoned her on his mobile and asked what she was doing there.  She explained that she had become aware that he had shifted out and because he had abandoned the home, she was there to find out what was happening.  She then said that the husband stated that he had not moved out.  In a curious response to that statement, the husband in his affidavit, filed on 5 July, said simply that it was “hearsay”.  I am not entirely sure what was hearsay, but presumably he was referring to the discussion with the boarder, T.

14. This is a proceeding under division 12A of the Family Law Act, as it applies to Part VII of the Family Law Act and therefore certain of the rules of evidence do not strictly apply and as such, the statement that the wife’s evidence was hearsay, is clearly irrelevant. Having simply said that the wife’s statement was hearsay, the husband overlooked the fact that he did not deny that the wife referred to the fact that he said that he had not moved out of the home.

15. What exactly he meant, is a matter that no doubt will be investigated in the future.  What then followed was that the wife obtained a locksmith who opened a locked room in the house.  I am not entirely sure how that all occurred and it may very well be that there is some argument to come about whether the evidence obtained was admissible on the basis that it was illegal anyway.  But leaving that aside, the evidence at this stage is what it is.  When the room was unlocked, it exposed a number of what were described as “growing rooms” for the purposes of growing cannabis.

16. The police were called and the drug squad and police attended and dismantled some of the operation.  The police described not only the set up as large but that it would have cost over $15,000. The wife described that the back rumpus room and garage had two growing rooms and in one room was a blow-up sex doll;  used condoms;  empty Jim Beam cans and the smell was so putrid that, even though the air filter system was extravagant, it was clear from the outside of the door that something was not right.

17. The wife then took photographs of the particular paraphernalia. The wife then said that she spoke to H and he made a reference to the fact that he had been back to the house a couple of times since having moved there, but when he had done so, he was told to stay at the back of the house while his Dad went to do something in the front of the house.  Again, looking at the affidavit of the husband, his response was to simply say that it was “hearsay”.  For the same reasons I have already set out, it is not hearsay.  More importantly however, the husband did not deny what the wife said H told her and all of this adds to the intrigue about what indeed was going on in the house. 

18. The wife asserts from the bar table today that the person known as T has been cleared of any involvement in the drug issue by the police on the basis that all of this was contained in a locked room.

19. The wife asserts that the police have investigated the matter and intend to summons the husband.  The husband says that there is no such involvement from his perspective.  I gave the wife an opportunity to make some inquiries of the police as to what they could tell her, but at least at this stage, the investigating officers are all away until the weekend.  It seems to me it is critical to find out whether the husband has some involvement or not. 

20. The wife also asserts from the bar table, and it is not in her affidavit, that the police say they have found some calculations at the home in which he does live, and there may be some drugs there as well.  Just whether that is evidence, remains to be seen. 

21. The police must be asked to be involved and indicate whether or not there is some association between the husband and this enterprise.

22. Having looked through the file, despite its size, I was unable to find any indication of a previous allegation of drug use or abuse by the husband.  However, there is significant concern expressed in a previous report about an older child with whom the wife is distant and it seems that that child has a drug addiction problem.  Whether that is still the case, I am unsure on the evidence. 

23. All that may explain how all this came about.  It seems to me, however, that I have to look at the evidence that the parties have presented.  The husband does not deny that he still had control over the house.  He does not deny that H was not permitted to go into the area where it seems that the drug paraphernalia was found and the wife’s own inquiries at the time indicate that something sinister was going on and there is no other explanation before the court.

24. The husband’s only explanation is that he has had nothing to do with drugs;  he certainly says he does not sell them and he otherwise had a good relationship with H. 

25. The husband sets out in his affidavit that he has a good relationship with H and asserts that this is just another example of the wife endeavouring to thwart the relationship he has with his son. 

26. It would be not in H’s best interests that he go back in to his father’s care at the moment, on the basis that I am not at all sure whether the police have found drugs and/or some connection with a drug enterprise at the house that he is living in and all sorts of connotations have being raised about police raiding houses.

27. I am concerned about that at this stage.  The critical question is, is H safe in the care of his father?  With the police investigation incomplete and the court being bereft of detail, the court should take a cautious approach and suspend the arrangement, which is a significant one for another week, bearing in mind that H has not had any time with his father for the last three weeks.

28. It is for those reasons that I propose to put the matter back before a court in a week’s time before another judge.  The wife wanted longer.  Having regard to the fact that there has been a significant involvement by the husband in H’s life, it is not appropriate that it be any longer and the court will need to have a very careful look at what has been going on. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 July 2013.

Associate: 

Date:  29 October 2013