A and B
[2001] FMCAfam 9
•11 January 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
A & B [2001] FMCAfam 9
FAMILY LAW – Residence – mother’s alcohol problem – separation of siblings.
| Applicant: | C A |
| Respondent: | D B |
| File No: | ZC 2609 of 2001 |
| Delivered on: | 11 January 2001 |
| Delivered at: | Canberra |
| Hearing Dates: | 14 & 15 November 2000 |
| Judgment of: | Brewster FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Lynch |
| Solicitors for the Applicant: | Gordon Garling Moffitt |
| Counsel for the Respondent: | Ms Hughes |
| Solicitors for the Respondent: | Legal Aid Office |
ORDERS
That the child J A, born 14 April 1996 reside with the mother.
That J have the following contact with his father:
(a)
each second weekend from 6.00pm Friday to 6.00pm Sunday, with the date of such contact to be arranged so that it coincides with a period of contact that occurs for the children C P, born
17 May 1990 and A P, born 11 November 1991 have with their father, D P or their aunt, J R;
(b)
for one half of each school holiday period so that it coincides with a period of contact that occurs for the children C P, born
17 May 1990 and A P, born 11 November 1991 have with their father, D P;
(c)by telephone on one occasion per week on a night nominated by the father between 5.00pm and 7.00pm.
That changeover occur at the McDonalds Family Restaurant at Yass unless the parties otherwise agree.
Subject to a medical practitioner providing the mother for a prescription for the drug “Campral” (or such other drug as may be agreed between the parties and prescribed by the mother’s medical practitioner) the mother shall continue to take the prescription drug “Campral” on a daily basis for a period of 12 months. The mother shall arrange with the Amcal Pharmacy chemist (or such other chemist as is nominated by the mother) to attend upon such chemist to take the dosage of the drug “Campral” with the dosage to be taken in the presence of the chemist.
That the mother shall take all reasonable steps to ensure that the chemist referred to in paragraph 5 maintains a register to record the days on which she has taken the medication. The mother shall cause a copy of the register to be sent to the father each month.
That the mother undergo liver function tests on a three-monthly basis for a period of 2 years commencing from the date of these Orders and shall provide a copy of the results to the other parties as soon as it is available including an explanation of the result if possible.
That from the commencement of the school year 2001 the mother shall not change the child’s school or primary school without the written consent of the father.
That each party be restrained from making unkind or uncomplimentary remarks about the other in the presence of the child, J and from allowing any other person to do so.
That the mother notify the father forthwith should either of the children C or A cease to reside with her.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA
ZC 2609 of 2001
C A
Applicant
And
D B
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns competing applications in relation to the residence of the child of the parties J A born 14 April 1996.
Background
The father C A is 33 years of age and the mother D B is aged 29. They commenced a sexual relationship in 1994 or 1995 and in late 1995 or early 1996 commenced to live together. The mother had two other children from a previous relationship with D P, C P born 17 May 1990 and A P born 11 November 1991. The parties separated in December 1996 when J was aged eight months. At the time the parties were living in B where their families reside.
On separation all 3 children remained with the mother. She remained in B briefly after separation but in January 1997 moved firstly to Lake Bowral on the South Coast and later to Canberra where she and the two older children had earlier lived for about two years. In about August 1999 she returned to B.
It should be noted that when in Canberra the mother moved on three occasions. The upshot was that since separation the girls attended, on her admission, “five or six schools.”
During this period the father had regular contact with J.
After the mother returned to B alcohol abuse became a problem. The evidence is insufficient to make a finding that her alcohol consumption created problems prior to this period. I am satisfied that the father’s evidence as to her activities during the time she lived in B is substantially accurate and that the mother’s care of J was severely compromised by reason of her alcohol consumption. I am also satisfied that, at least with respect to C, she sometimes used excessive physical discipline.
The upshot of this was that firstly the father took over the care of J for some weeks in September and October of 1999, secondly that the mother’s sister took over the care of C and thirdly that the father on
9 November 1999 applied in the Local Court at B for both interim and final orders that J reside with him.When the matter came before the Local Court on 19 November 1999 the father consented to interim orders that J reside with the mother. The situation in relation to the mother’s alcohol consumption did not improve however and the father had the matter re-listed. On 17 March 2000 the Local Court transferred the matter to the Family Court at Canberra and ordered that until the hearing of the matter in that court J reside with the father. No specific orders as to contact were made, the only order being that J have reasonable contact with the mother as agreed between the parties.
After this hearing the mother returned to live in Canberra.
The matter came before the Family Court on 5 June 2000. On that date interim orders were made confirming that until the final hearing J reside with his father and that the mother have contact each alternate weekend from 9am on Saturday to 4pm on Sunday. The handover point was designated as Yass. Notwithstanding those orders contact did not take place on such a regular basis. I will return to this later in this judgment.
In June 2000 the mother consulted a Dr Lang about her alcohol consumption. This does not appear to be a matter entirely of her own making as it was suggested by her solicitor. Dr Lang prescribed a drug Campral. It appears that the mother believed that this drug operated to prevent her drinking because if she did it would make her ill. There are drugs such as Antibuse and Dipsan which have that effect. Campral is not such a drug and operates to reduce the desire for alcohol.
This action by the mother was not entirely successful. On an occasion in July she consumed alcohol. She drove home. A was in the car. She had an accident on the way. She was breathalysed. She had a reading of .190. It should be noted that this was not the first time the mother has had a motor vehicle accident when driving whilst intoxicated. In November 1999 she lost her licence in similar circumstances.
It should also be noted that Dr Lang did not merely prescribe Campral. The makers of that drug indicate that it is to be used in conjunction with alcohol counselling and Dr Lang recommended this to the mother. However she attended a counsellor on one occasion only.
On the positive side the mother has recently had liver function tests performed which are consistent with a nil or reduced level of consumption of alcohol.
In paragraph 7 above reference was made to the fact that in 1999 the child C was removed from the mother by her sister J R. The upshot of this was that on 21 February 2000 Ms R applied to the Family Court for an order that C reside with her. When the matter came before the court on 26 May 2000 orders were made which in effect granted interim residence to Ms R but which envisaged a further interim hearing in August. What transpire however was that both cases were transferred to this court and set down for a final hearing. While no order was made consolidating the proceedings orders were made the two cases each be heard consecutively.
As it transpired however the proceedings in relation to C were settled. Orders were made by consent that from 10 January 2001 C reside with the mother.
Discussion
The paramount consideration in these proceedings is the best interests of J. Section 68B(2) of the Family Law Act sets out the matters that a court must consider in determining where the best interests of a child lie. While I do not propose to approach the case on the basis of discussing each of the matters contained within that subsection in turn I believe in the discussion that follows I will cover in one way or another all the matters set out in that subsection. One is the first of those set out in that subsection, that is J’s wishes. I matter that will not play any part in the decision I am required to make am not satisfied as to what those wishes are and even if he had expressed a wish little if any weight could be placed on it by reason of his age.
The factors that would indicate that J should remain with the father are as follows:
18.1He has lived with his father since March 2000. He has been well cared for. In this respect the mother’s criticisms of the father in relation to J’s medical treatment are misconceived. There is no indication that he is in any way unhappy in his father’s care, indeed the indications are to the contrary. I am satisfied that his father loves him and is solicitous of his welfare. I am satisfied that the father’s decision to apply for residence was based on a desire to protect J. The mother alleges that the father denigrates her in J’s presence. I am not satisfied that this is so. I am reluctant to alter the stability that has been a part of J’s life for some 9 months. It would require reasons of some cogency to justify altering the status quo in this case.
18.2Whilst the mother has made a number of allegations as to the father’s consumption of alcohol and other matters I am unable to make a finding that J is at any risk in his care. If he is to reside with his mother there is such a risk.
18.3The mother has lived a peripatetic lifestyle and since separation her daughters have been to a number of schools.
18.4There is a risk that the mother will consume alcohol. This is the most compelling reason that would indicate that J’s best interests would be served if he were to continue to live with his father. My comments on this aspect of the case are as follows
18.4.1I am satisfied that the mother is not able to drink alcohol in moderation.
18.4.2When the mother drinks she is unable to care properly for the children, can be provoked into violence against them and can act with complete disregard for their safety. The incident in July when she drove a motor vehicle with a reading almost 5 times the legal limit with A in the car is an appalling example of the last of these matters. If J returns to live with his mother there is a risk that he will be neglected or even possibly physically abused if she consumes alcohol. If she did so he could also be put at risk if she drove a motor vehicle with him as a passenger.
18.4.3I am concerned that the mother does not have a sufficient appreciation of the extent of her alcohol problem or the effect it has on her ability to parent the children properly. Paragraph 2.11 of the Family Report states that she denied that when she lived in B her alcohol consumption affected her ability to care for her children. In cross examination she maintained this stance and was reluctant to concede that this was not the case. The report also indicated that she was reluctant to concede that she had a problem with alcohol. This was also my impression from her evidence. In my opinion there can be no doubt that when the mother consumes alcohol her capacity to parent her children adequately is gravely compromised. In my opinion there can be no doubt that she has a serious problem with alcohol. I am also concerned that she did not pursue counselling.
18.4.4In addition there can be little doubt that, if an order were made that J reside with her and if she were to drink, J would be taken from her care and an order made that he live with his father. This is a situation of potential instability that should be avoided unless there are compelling reasons to risk its occurrence.
The factors that indicate that J’s best interests would be served by being with his mother are as follows:
19.1If he resides with his mother she will be able to be his full time carer. If he resides with his father he will be looked after by his paternal grandmother while his father, who is in full time employment, is at work.
19.2I am concerned that, while the father is clearly concerned with J’s welfare, he does not properly appreciate the importance of the role that J’s mother should play in his life, nor the importance of the relationship between J and his siblings. As mentioned above, although orders were made in the Family Court for regular contact, the contact that occurred was irregular. Although I am not satisfied with the mother’s explanation for not travelling to B to ensure contact took place I am satisfied that the main reason for this irregularity was that the father was not prepared to perform his share of the travelling on a regular basis. It should also be noted that on one occasion in April he visited Canberra with J but made no effort to try to arrange any contact between J and his mother and A. His explanation given in the witness box was that he “thought she might have been on the grog.” My impression of the father was that he did not regard contact between J and the mother as particularly important.
19.3For most of the first four years of his life J has lived with his mother. I do not doubt that there is a close attachment between him and his mother. Ms Willetts who wrote the Family Report said in evidence that it is “reasonable to assume” that J’s primary attachment is to the mother. If she is not affected by alcohol she is, I believe, quite capable of providing for J’s needs.
19.4If J were to live with his mother he would be re-united with his siblings.
Conclusion
In my opinion the critical factor in this case is the fact that if J were to live with his mother he would be part of a family comprising not only his mother but also his two half-sisters. In H and H (1995) FLC 92-599 Nicholson CJ discussed the advantages that flow from living with one’s siblings and set out some of the published research in this area. In evidence Ms Willetts also referred to those advantages. She stated that living with siblings helps a child relate to other children, that siblings get emotional support from each other and that sibling relationships last for life.
Also relevant is what I believe is a lukewarm attitude on the part of the father to fostering the relationship between J and the mother. This could also have an impact on the relationship between J and his siblings.
In my opinion giving J the opportunity of living in a family that includes his siblings as well as a parent has long term benefits that justify taking the risks involved and justify changing the current residential arrangements.
Whether or not J will be given the opportunity to live permanently in this family depends on the mother. In my opinion the only way in which this could be accomplished is if she totally abstains from alcohol. Ordering that J return to live with her is in many ways a leap of faith. I hope that faith will be justified.
The orders I propose to make are basically in accordance with the Minute of Orders Sought filed on behalf of the mother. I propose to add an order that if the residential arrangements in relation to either of the girls should alter that the mother advise the father of this.
The Orders I make are as follows:
Orders
That the child J A, born 14 April 1996 reside with the mother.
That J have the following contact with his father:
(a)
each second weekend from 6.00pm Friday to 6.00pm Sunday, with the date of such contact to be arranged so that it coincides with a period of contact that occurs for the children C P, born
17 May 1990 and A P, born 11 November 1991 have with their father, D P or their aunt, J R;
(b)
for one half of each school holiday period so that it coincides with a period of contact that occurs for the children C P, born
17 May 1990 and A P, born 11 November 1991 have with their father, D P;
(c)by telephone on one occasion per week on a night nominated by the father between 5.00pm and 7.00pm.
That changeover occur at the McDonalds Family Restaurant at Yass unless the parties otherwise agree.
Subject to a medical practitioner providing the mother for a prescription for the drug “Campral” (or such other drug as may be agreed between the parties and prescribed by the mother’s medical practitioner) the mother shall continue to take the prescription drug “Campral” on a daily basis for a period of 12 months. The mother shall arrange with the Amcal Pharmacy chemist (or such other chemist as is nominated by the mother) to attend upon such chemist to take the dosage of the drug “Campral” with the dosage to be taken in the presence of the chemist.
That the mother shall take all reasonable steps to ensure that the chemist referred to in paragraph 5 maintains a register to record the days on which she has taken the medication. The mother shall cause a copy of the register to be sent to the father each month.
That the mother undergo liver function tests on a three-monthly basis for a period of 2 years commencing from the date of these Orders and shall provide a copy of the results to the other parties as soon as it is available including an explanation of the result if possible.
That from the commencement of the school year 2001 the mother shall not change the child’s school or primary school without the written consent of the father.
That each party be restrained from making unkind or uncomplimentary remarks about the other in the presence of the child, J and from allowing any other person to do so.
That the mother notify the father forthwith should either of the children C or A cease to reside with her.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Brewster FM
Associate:
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