AQUARO & AQUARO
[2019] FCCA 1140
•2 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQUARO & AQUARO | [2019] FCCA 1140 |
| Catchwords: FAMILY LAW – Parenting – interim – competing parenting proposals where both parents seek the Children live with them – allegations of alcohol abuse by the Mother – mental illness – discussion of unacceptable risk – held that it is in Children’s best interests to live with the Father on an interim basis – Maternal Grandparents to be in substantial attendance of time spent between the Mother and Children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 62B, 64B(1), 65DA(2), s.68L(2) |
| Cases cited: AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MR AQUARO |
| Respondent: | MS AQUARO |
| File Number: | MLC 3269 of 2019 |
| Judgment of: | Her Honour Judge C. E. Kirton QC |
| Hearing dates: | 8 and 9 April 2019 |
| Date of Last Submission: | 9 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 2 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Hoult |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondent: | Ms R. Stoikovska SC |
| Solicitors for the Respondent: | Mills Oakley Lawyers |
ORDERS
Orders 1 to 3 of the Orders made on 9 April 2019 be discharged.
UNTIL FURTHER ORDER
Parenting
The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the children [X], born on … 2012 and [Y], born on … 2013 (Children).
The Children live with the Father.
The Children spend time with the Mother:
(a)Each alternate weekend from the conclusion of school or 3.00 pm Friday until 6.00 pm Sunday, commencing 10 May 2019;
(b)Each alternate Wednesday from the conclusion of school until the commencement of school the following Thursday or 10.00 am if a non-school day, commencing 15 May 2019;
(c)Otherwise as agreed between the parties in writing (including text or email).
The Mother’s time with the Children be in the substantial attendance of Ms B (Maternal Grandmother) and/or Mr C (Maternal Grandfather) (together Maternal Grandparents).
For the purposes of change over:
(a)On the alternate weekend time the Mother shall request that the Maternal Grandparents or either of them, collect the Children from School D Primary School and the Father shall collect the Children from the Maternal Grandparents’ residence at the conclusion of their time with the Mother.
(b)On the alternate Wednesday night time the Mother shall request the Maternal Grandparents or either of them, to collect and return the Children to School D or to the Father’s residence, as the case requires.
Injunctions
For 24 hours immediately prior to the commencement of any time spent with the Children (including any period during which the Children spend time with her), and during all such time spent, the Mother be restrained by injunction from ingesting, consuming, using or otherwise being under the influence of, alcohol or any legal or illegal drug or substance, (or having a blood alcohol concentration above 0.05), save and except for:
(a)Any legal medication prescribed for the Mother by a registered medical practitioner, and taken or used by the Mother strictly in accordance with such prescription; and
(b)Any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the Mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
The Mother participate and complete any and all in-patient and/or out-patient alcohol addiction programs (Treatment Program) as may be recommended by her general practitioner and continue with all prescribed medications as advised by her general practitioner.
The Mother provide to the Father’s solicitors a certificate of completion of any and all recommended Treatment Programs.
Tests, Assessments and Counselling
That within 14 days of the date of these Orders the Mother undertake a Carbohydrate-Deficit Transferrin (CDT) Test.
The Mother forthwith attend upon a psychiatrist for a psychiatric assessment and follow any recommendations made by the psychiatrist. A copy of the Child Inclusive Memorandum to the Court, dated 9 April 2019 may be given to a psychiatrist consulted by the Mother pursuant to this Order.
The Father forthwith do all acts and things to attend psychological counselling through a general practitioner to manage grief and loss and any other matters considered relevant.
The Mother forthwith do all acts and things to attend psychological counselling through a general practitioner to manage past trauma and drug and alcohol use and any other matters considered relevant.
Parenting Courses
The Father forthwith participate and complete a Tuning into Kids Program and a Parenting After Separation Program with CentaCare.
The Mother forthwith participate and complete a Parenting After Separation Program with Relationships Australia.
Father to Complete Men’s Behaviour Change Course
The Father is to forthwith enrol in, attend and complete a Men’s Behaviour Change Program as recommended by the Men’s Referral Service located at the Family Advocacy and Support Service, Owen Dixon Commonwealth Law Court Building, 305 William Street, Melbourne.
The Father is to provide proof of attendance and completion of the Men’s Behaviour Change Program to the Mother’s solicitors by 30 November 2019.
Appointment of Independent Children’s Lawyer
Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the children [X], born on … 2012 and [Y], born on … 2013 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such an arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a)Forthwith upon appointment by Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
(b)Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents.
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ is published at ( and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
(d)The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than five business days before the trial.
Further Listing
The matter be adjourned to the Federal Circuit Court of Australia on 21 August 2019 at 9.30 am for mention.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Aquaro & Aquaro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3269 of 2019
| MR AQUARO |
Applicant
and
| MS AQUARO |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an interim decision in relation to parenting proceedings concerning the children [X] ([X]), born on … 2012 and [Y] ([Y]), born on … 2013 (Children). The Applicant is the Father and the Respondent is the Mother of the Children.
The Father raises serious allegations against the Mother concerning her consumption of alcohol and the state of her mental health. The most serious of these allegations is that on 6 February 2019 the Mother drove a car with the Children in it whilst intoxicated when collecting the Children from school (6 February Incident). Later that day the Mother was taken to the Town E Hospital by her brother and the maternal grandmother and was found to have a blood alcohol concentration of 0.224.
Notwithstanding the seriousness of other allegations the Father makes against the Mother of mental instability and intoxication prior to the 6 February Incident, the Father left the Children in the Mother’s sole care on the weekend of … 2019 whilst he went on a hunting and fishing trip in the Town F area for his own recreational purposes[1]. The Father’s behaviour also raises issues about his parenting of the Children.
[1] Mother’s Affidavit, filed 5.4.19, at [25] and [26] and Annexure “A-3”.
Issues to be Determined
The following interim issues are in dispute between the parties:
a)Who the Children should live with.
b)The time the Children should spend with the parent with whom they do not live.
c)Whether another adult should be in substantial attendance when the Children spend time with the Mother.
Synopsis
I have determined that in the interim:
a)The Children shall live with the Father.
b)The Children shall spend time with the Mother as follows:
i)Each alternate weekend from the conclusion of school or 3.00pm Friday until 6.00 pm Sunday, commencing 10 May 2019;
ii)Each alternate Wednesday from the conclusion of school until the commencement of school the following Thursday or 10.00 am if a non-school day, commencing 15 May 2019;
iii)Otherwise as agreed between the parties.
c)Ms B (Maternal Grandmother) and/or Mr C (Maternal Grandfather) (together Maternal Grandparents) be in substantial attendance when the Mother spends time with the Children.
Background
The Father was born on … 1982 and is 36 years of age. The Father is a professional and is employed full time by Employer. The Father has worked with Employer for approximately 8 or 9 years[2]. The Father is an owner of guns, hunts and fishes recreationally and operates a part-time business from the matrimonial home making …[3].
[2] Ibid., filed 5.4.19, at [3].
[3] Father’s Affidavit, filed 2 April 2019, at [26(a)].
The Mother was born on … 1987 and is 32 years of age.
The Mother and the Father married on … 2010 after commencing a relationship in about 2005[4]. [X] was born on … 2012 and is aged 7. [Y] was born on … 2013 and is aged 5.
[4] Father’s Affidavit, filed 28.3.19, at [3].
From December 2012, the Mother worked in full time employment with various employers which included … [5].
[5] Mother’s Affidavit, filed 5.4.19, at [4] and [6].
In November 2016 the Mother separated from the Father while he was on a weekend recreational hunting trip. At that time the parties were renting a property in Suburb G. The Mother engaged the support of Berry Street Services and took the Children to live with the Maternal Grandparents at their home in Suburb H[6].
[6] Ibid., filed 5.4.19, at [11].
During the time that the parties were separated the Mother did not work and she undertook a course in …. In 2017 the Mother secured her first job as a customer service officer. The parties reconciled in February 2017 when the Father moved into the Maternal Grandparents’ home with the Mother and the Children[7].
[7] Ibid., filed 5.4.19, at [13] and [17].
In about November 2017 the parties purchased the former matrimonial home at Property J, with the assistance of the Maternal Grandparents[8].
[8] Ibid., filed 5.4.19, at [19].
The reconciliation did not improve the parties’ matrimonial relationship. The parents separated again on 27 March 2019 when the Mother again left the matrimonial home with the Children. On 28 March 2019 a member of the Victoria Police obtained an ex-parte interim intervention order against the Father, with the Mother and the Children named as the affected family members.
Procedural History
The Father commenced this proceeding for parenting orders on 28 March 2019. The Father sought an abridgement of time that the Initiating Application be heard on an urgent basis and this application was granted by a Registrar of this Court.
The Father sought Final and Interim Orders in the Initiating Application[9]. The Interim Orders that the Father sought were that:
a)The Children live with the Father.
b)Any and all questions as to the Children spending time with the Mother be reserved.
c)A Recovery Order be issued pursuant to s.67U of the Family Law Act 1975 (Cth) (Act) in relation to the Children.
d)Costs reserved.
[9] Initiating Application filed, 28.3.19.
The final orders that the Father sought in the Initiating Application were that:
a)The Children live with the Father.
b)The Children spend such time with the Mother as the Court considers appropriate.
c)The Father be excused from further particularising the final relief sought pending developments in the proceeding.
At the time of commencing this proceeding the Father also filed a Notice of Risk[10] (Father’s Notice of Risk) and an affidavit which he affirmed on 28 March 2019 (Father’s First Affidavit)[11]. The Father’s Notice of Risk alleged that the Mother had an alcohol addiction. It alleged that the Children had been exposed to the Mother being “significantly intoxicated” and that on 6 February 2019 the Mother had driven a car with the Children in it whilst “severely intoxicated”.
[10] Notice of Risk, filed 28.4.19.
[11] Husband’s First Affidavit, affirmed on 28 March 2019, filed 28 March 2019.
On 2 April 2019 the Father filed an Application in a Case, returnable on the same date as the Initiating Application. The Application in a Case sought the following orders:
a)The Children live with the Father.
b)Until further order, the Children spend time and communicate with the Mother as follows:
i)Each Tuesday and Thursday from the conclusion of school until 7.00 pm.
ii)Each alternative Saturday and Sunday from 9.00 am until 7.00 pm.
iii)At such other times as agreed between the parties.
c)The Mother’s time with the Children was at all times to be supervised by the Maternal Grandparents or either of them, or the Father’s parents Ms K and Mr L (Paternal Grandparents) or any other supervisor (paid or otherwise), as agreed between the parties.
d)The Maternal Grandparents, the Paternal Grandparents and any other unpaid supervisor, sign an undertaking to the Court that:
i)They would be in substantial attendance during the Mother’s time with the Children;
ii)They will contact the Father as soon as practicable in the event that they reasonably believe that the Mother’s capacity to care for the Children is undermined due to alcohol inebriation or for any other reason and will facilitate the collection of the Children from the Mother by the Father in those circumstances.
e)The Mother be restrained by way of injunction from consuming alcohol within 24 hours of the Children being in her care and at all times whilst the Children are in her care.
f)The Mother participate and complete any and all inpatient and all outpatient alcohol addiction programs as recommended by her general practitioner and continue with all prescribe medications as advised by her general practitioner.
g)The Mother obtain a reporting letter from her general practitioner with respect to the Mother’s proposed treatment plan and provide it to the Father’s solicitor.
h)The Mother provide to the Father’s solicitors a certificate of completion of any recommended treatment programs.
i)The parties attend upon Dr M for the purposes of preparing a family report pursuant to s.62G of the Act.
The Father filed a further affidavit in support of the Application in the Case (Father’s Second Affidavit)[12]. The Father deposed that on Sunday, 31 March 2019 he was served with an Application and a Summons in respect of the Intervention Order application and Interim Intervention Order against him, naming the Mother and the Children as affected family members[13]. The Interim Intervention Order was made ex-parte on 28 March 2019[14].
[12] Father’s Second Affidavit, affirmed 1 April 2019, filed 2 April 2019.
[13] Ibid., at [24].
[14] Ibid., at [25].
On 3 April 2019 the Father’s solicitors also filed Subpoenas for production of the Mother’s records from Town E Community Health Centre and Suburb N Hospital and Town O Mental Health Service.
The Mother filed a Response on 5 April 2019 (Response). The Response sought interim orders that:
a)The Children live with Mother.
b)During the school term the Children spend time with the Father as follows:
i)Each Wednesday from the conclusion of school until the commencement of school on the Thursday;
ii)Each Sunday from 9.00 am until the commencement of school on Monday;
iii)At such other times as agreed between the parties.
c)During the school holiday time the Children spend time with the Father as follows:
i)Each Wednesday from 3.00 pm until 9.00 am on the Thursday;
ii)Each Sunday from 9.00 am until 9.00 am on the Monday;
iii)At such other times as agreed between the parties.
d)That any changeovers which cannot take place at School D Primary School take place at McDonalds Suburb P.
The final orders that the Mother sought in the Response were that:
a)The Children live with the Mother.
b)The Children spend time with the Father by agreement between the Mother and the Father, or as ordered by the Court.
The Court received correspondence from the Department of Health and Human Services (DHHS), dated 4 April 2019 in relation to the Father’s Notice of Risk pursuant to s.67Z of the Act. The Court was advised that DHHS intended to take no further action with respect to the Children.
The Mother filed an affidavit in support of the Response (Mother’s Affidavit)[15] and a Notice of Risk (Mother’s Notice of Risk)[16]. The Mother’s Notice of Risk annexed a copy of the Interim Intervention Order, made on 28 March 2019 (Interim Intervention Order).
[15] Mother’s Affidavit, affirmed, 5.4.19, filed 5.4.19.
[16] Mother’s Notice of Risk, filed 5.4.19.
The matter first came before the Court on 8 April 2019 in the Duty List. The Father was represented by Counsel and the Mother was represented by Senior Counsel. The Court ordered that:
a)Pursuant to s.11F of the Act the parties and the Children attend upon a Family Consultant of the Federal Circuit Court of Australia for the purposes of a Child Inclusive Conference on 9 April 2019.
b)The matter be adjourned to 9 April 2019 at 2:15 pm for mention.
c)The Family Consultant provide an oral report to the Court on 9 April 2019 at 2.15 pm.
On 9 April 2019 the Father was again represented by Counsel and the Mother by Senior Counsel. Family Consultant Ms Q (Family Consultant) provided her oral report to the Court at 2:15 pm, after the Child Inclusive Conference with the parents and the Children that morning. Prior to the Family Consultant providing her report to the Court, Counsel for the parties each had an opportunity of speaking with the Family Consultant about her recommendations[17]. After the Family Consultant provided her report to the Court, Counsel for the parties were each afforded an opportunity to ask questions in Court for clarification of the oral report and they each questioned the Family Consultant[18]. The Family Consultant gave evidence that she held qualifications as a psychologist[19]. The Family Consultant has subsequently prepared a Child Inclusive Conference Memorandum to Court[20].
[17] Transcript 9.4.19 T2:8-20 and T7:1-7.
[18] Ibid., T7-18.
[19] Ibid., T8:43-9:2.
[20] Child Inclusive Conference Memorandum to Court, dated 9 April 2019.
After hearing submissions from Counsel the following interim orders were made:
a)The Children live with the Mother on condition that the Mother and the Children reside with the Maternal Grandparents at Suburb H.
b)Any of the following be in substantial attendance when the Children are in the care of the Mother:
i)the Maternal Grandparents;
ii)Ms R[21].
c)The Mother be restrained from consuming alcohol.
d)The Children live with the Father from 10.00 am on 12 April 2019 to 5.00 pm on 14 April 2019.
e)Judgment be otherwise reserved.
[21] The Mother’s sister.
The Court received correspondence from DHHS, dated 17 April 2019 in relation to the Mother’s Notice of Risk pursuant to s.67Z of the Act. The Court was advised that DHHS intended to take no further action with respect to the Children. The Court was advised that:
[…] there is an active IVO in place against the father, with mother and children as protected persons, with a suspension of firearms licence for the father.
The Proposals of the Parties
At the hearing each of the parties proposed interim orders. I turn now to summarise each of the parties’ proposals.
Father’s Proposal
The Father’s Counsel produced a Minute of Proposed Orders proposing the following interim orders (Father’s Proposal)[22]:
[22] Transcript 9.4.19 T28:23-34.
a)Until further order the Children live with the Father.
b)Until further order the Children spend time with the Mother as follows:
i)Each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday commencing 19 April 2019;
ii)Each alternate Wednesday from 6.00 pm until the commencement of school the following Thursday or 10.00 am if a non-school day;
iii)Otherwise as agreed.
c)The Mother’s time with the Children be in the substantial attendance of the Maternal Grandmother.
d)For the purposes of change over:
i)On the alternate weekend time the Mother shall request that the Maternal Grandmother collect the Children from the Father’s residence and the Father shall collect the Children from the Maternal Grandparent’s residence at the conclusion.
ii)On the alternate Wednesday night time the Mother shall request that the Maternal Grandmother collect and return the Children to school or the Father’s residence.
e)Within two weeks the Mother undertake a Carbohydrate-Deficient Transferrin (CDT) test.
f)The Mother attend upon a psychiatrist and comply with all reasonable directions of the psychiatrist.
g)The Mother attend upon a psychologist in relation to the Mother’s depression and alcohol dependency and all other matters considered relevant by the psychologist.
The Father’s Counsel also submitted that the Father agreed with the further orders recommended by the Family Consultant[23], which included[24]:
a)The Mother to undertake a CDT test.
b)The Mother to attend for a psychiatric assessment and follow the recommendations including a review of current medication in relation to any diagnoses. A copy of the Section 11F Memorandum to be provided to the assessing psychiatrist.
c)The Mother and the Father to engage in psychological counselling through a GP.
d)The Father to attend a Tuning into Kids Program operated by CentaCare.
e)The Father and the Mother to attend a parenting after separation program. The Mother to attend the program operated by Relationships Australia. The Father to attend the program operated by CentaCare.
f)The appointment of an Independent Children’s Lawyer.
[23] Ibid., T27:36-28:11.
[24] Ibid., T6:12-41.
The Mother
The Mother’s Counsel proposed Orders in accordance with the interim Orders sought in the Response, which are referred to in paragraph 21 of these Reasons (Mother’s Proposal)[25].
[25] Transcript 8.4.19 T15:23-35.
The Law
The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act. In determining this application the Court must consider what orders are in the Children’s best interests: s.60CA of the Act. What this means in individual cases is determined by a number of statutory provisions.
The objects of Part VII of the Act are set out in s.60B(1) and assist in clarifying what Part VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2).
Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).
In determining what is in the Children's best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the Children. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the Children’s best interests.
The Court is not bound by the parties’ respective proposals (AMS v AIF[26] and U v U[27]).
[26] (1999) 199 CLR 160.
[27] (2002) 211 CLR 238.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).
The Full Court in Goode v Goode[28] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings[29]. It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place[30].
[28] (2006) 36 Fam LR 422.
[29] Ibid., 445, at [81]-[82].
[30] Ibid., 445, at [82].
In Marvel v Marvel[31] the Full Court made the following obiter comments:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing[32].
[31] (2010) 43 Fam LR 348.
[32] Ibid., at [120].
In Keats & Keats[33] the Full Court held in respect of interim proceedings:
[. ..] that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected[34].
[33] [2016] FamCAFC 156.
[34] Ibid., at [9].
An interim hearing is therefore by its very nature a curtailed hearing. Evidence is limited and the matter is decided on the papers.
I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford[35], Mazorski & Albright[36] and McCall & Clark[37].
[35] [2013] FamCA 33.
[36] (2007) 37 Fam LR 518.
[37] (2009) FLC 93-405.
The Family Consultant reported that the Children:
[…] have really good bonds with both of their parents. They - both [X] and [Y] presented as quite comfortable, content and relaxed with each parent. The mother […] engaged in more fantasy play and was instigating more conversations, while the father was quite affectionate and focused on spending equal time with both children[38].
[…] the children didn’t compete for attention and they seemed quite happy doing the same activities with their mother or their father[39].
[38] Transcript 9.4.19 T6:3-7.
[39] Ibid., T6:10-11.
I therefore conclude that each of the Children have a meaningful relationship with each of their parents. It was not disputed at the hearing that the Children should continue to have a meaningful relationship with both parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
A significant issue in this proceeding is the assessment of risk to the Children if they spend unsupervised time with the Mother.
I address the Mother’s excessive consumption of alcohol and her mental health and the risk posed to the Children in these reasons under the heading “Unacceptable Risk” in relation to s.60CC(3)(m).
Additionally, the Mother refers to the family violence committed by the Father.
A source of persistent tension between the Mother and Father has been the Father’s interest in hunting and fishing and his possession of knives and firearms. One of the reasons for the initial separation was the Father continuing with his hunting pursuits and purchasing a hunting rifle[40]. When the parties were separated in 2016 the Mother deposed that the Father sent her daily texts wanting to reconcile. These texts often included threats to commit suicide[41]. In an email on 26 November 2016 the Father apologised for the things that he perceived that he had done wrong and he said, amongst other things:
I am aware that it is not just the time I spend away fishing that’s the problem but how it absorbs my focus when I am at home[42].
[…] as far as hunting is concerned, I do like to provide healthy meat for my family but it simply too immersive and addictive and I don’t want my kids to lose me to hunting again so I want to give it up completely and reassess in a year or two[43].
I won’t ever have a gun in the house/garage again unless you say it’s okay. I wasn’t open about its existence and although I didn’t strictly lie about it, putting the gun down there (the garage downstairs) was deceitful[44].
[40] Mother’s Affidavit, at [9(b)].
[41] Ibid., at [14].
[42] Ibid., at [14(b)].
[43] Ibid., at [14(c)].
[44] Ibid., at [14(d)].
The Mother deposed that despite the Father’s promises to address what had become his obsession with fishing and hunting, this obsession only increased after they reconciled and moved back in together[45]. The Father started to bring rifles into their home again and the Mother believes Father now owns two or more rifles. The Father installed a gun hold in their walk-in wardrobe in the bedroom. When she raised concerns about not only having guns in the home but also his obsession with hunting he would laugh at her and tell her that she was “paranoid”. Annexed to the Mother’s affidavit is a picture of the Father standing in their bedroom brandishing two rifles doing what the Mother describes as:
“[…] showing off his rifles” and telling me to photograph him[46].
It is an extremely concerning photograph of an immature man brandishing rifles inside a home with evident pleasure.
[45] Ibid., at [20].
[46] Ibid., at [21] and Annexure “A-1”.
The Mother deposed to an incident in 2018 were she was having an argument with the Father about leaving a gun on their bed. The Mother said that she explained that to the Father that he needed to remove the gun from the bedroom as the Children were in the next room. The Father responded by counting bullets in his hand and was staring back at her with a defiant and threatening look in his eyes[47].
[47] Ibid., at [24].
The Mother expressed her concerns in relation to the knife blades that that the Father would leave around the home, which he had in his possession as part of his business. The Father would also purchase new blades online[48].
[48] Ibid., at [23].
The Mother deposed that the incident that caused her to finally separate from the Father occurred on the evening of 26 March 2019. The Mother said that the Father was sharpening his hunting knife while continuing to stare at her. He had previously said to her that if she ever left with the Children there would be “massive consequences”. The Mother deposed that she understood this to mean that the Father would cause her physical harm or possibly worse if she chose to leave him[49]. The Mother left the matrimonial home with the Children the next day.
[49] Ibid., at [41].
The Father denies the events as described by the Mother on the evening of 26 March 2019[50].
[50] Father’s Second Affidavit, at [26(f) and (g)].
In relation to the Father’s knife business the Family Consultant gave evidence that:
He did say that he stored some of the finished knives at the top of a tallboy in his bedroom. He has agreed that that would not be appropriate and that in the future he will make sure that all business-related activities and material, including knives will be stored safely in the garage[51].
[51] Transcript, 9.4.19 T3:27-30.
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
[X] is 7 years old and [Y] is 5 years old.
The Family Consultant reported that:
[…] both children appeared to be in the early stages of understanding the parental separation, so they didn’t appear to have formed opinions yet or preferences or clear wishes in relation to the separation and future arrangements. They’re still in the middle of understanding that and I think that perhaps it would be beneficial for the children to continue with any current stable arrangements and limited interruptions and changes to their routine just to make sure the impacts of this separation don’t create further anxieties and grief and loss for the children as well[52].
[52] Ibid., T5:9-15.
[X] told the Family Consultant that she enjoys school and she wishes to stay at her school and that was the extent of her wishes[53].
[53] Ibid., T5:32-37.
In relation to [Y] the Family Consultant reported:
He would like his parents to get back together, which is common at his age[54].
[54] Ibid., T5:37-38.
[…]
He doesn’t know where he’s going to live and he doesn’t know where he wants to live he just knows that he wants to spend time with both Mum and Dad. He doesn’t have any worries. If he did have worries he is comfortable to talk to both Mum and Dad […][55].
[55] Transcript: 9.4.19 T5:45-47 and T6:1-2.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
Each of the child's parents
I refer to the discussion in relation to s.60CC(2)(a). The Mother deposed that since the birth of each of the Children the parents had taken on very “traditional” and defined parenting roles. The Mother said that she had been the Children’s primary carer, with the Father being the main income earner for the family. The Father left for work at about 4:45 am each morning and returned at about 4.00 pm each day. This had been the situation for the past 8 to 9 years[56].
[56] Mother’s Affidavit, at [3].
The Mother deposed that when she was working she was responsible for taking the Children to childcare and attending to all of the Children’s needs, including the daily meal preparation, cleaning, washing clothes, the general chores and grocery shopping. The Father would occasionally collect the Children from childcare and assist occasionally with the Children in the time available when he returned home from work and when the Children went to bed. The Father was otherwise busy working long hours in full-time employment[57].
[57] Ibid., at [6].
The Mother deposed that she has continued to almost solely meet the day-to-day needs of the Children since 2016[58].
[58] Ibid., at [8].
The Father in his Second Affidavit does not deny that the Mother has been the primary carer of the Children. The Father deposes to having a “[…] close and loving relationship with both [X] and [Y]”[59].
[59] Father’s First Affidavit, at [37].
Other persons (including any grandparent or other relative of the child)
This is not a relevant consideration.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Participation in making decisions about major long-term issues in relation to the Children
There is no evidence before the Court that either parent has failed to participate in making decisions about major long-term issues in relation to the Children.
Opportunity to spend time and communicate with the Children
I refer to the matters discussed in paragraphs 50 and 51.
The Mother further deposed that the Father would often go away, sometimes fortnightly, hunting and/or fishing. During this time the Father would either turn off his mobile phone or his mobile phone would be out of range and he would not be contactable. The Mother deposed:
The children become aware and accustomed to the [Father] not being present with us as a family on almost every second weekend. As recently as … 2019 the [Father] went on a weekend away to Town F, some 280 kilometres from Melbourne, without me or the children[60].
[60] Mother’s Affidavit, at [25].
The Mother has annexed to her Affidavit a screenshot photograph of a photo that the Father posted on 18 March 2019 on his Instagram account. The photo was of a large fish that the Father caught that weekend. The Father looks very happy with his fish and has posted:
Solid battler from the weekend while paddling to a hunting spot.[61]
[61] Ibid., at [25] and “A-3”.
The Mother deposed that she had the Children with her that weekend and took them to the … on 16 March 2019[62].
[62] Ibid., at [25].
The Father deposed to only one occasion that he spent time with Children on a weekend, being the Australia Day public holiday weekend in 2019 when he took the Children to visit the Paternal Grandparents at their home in Town S[63]. There is no reference in either the Mother or the Father’s Affidavits or the evidence given by the Family consultant of the Father being involved in any extra-curricular activities with the Children.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
[63] Father’s First Affidavit, at [25].
This is not a relevant consideration for this interim decision.
Section 60CC(3)(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 his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living;
Either of his or her parents
I refer to the discussion in relation to s.60CC(3)(a).
The Family Consultant recommended that:
For the interim for the children to remain at their current school and living with their father, […], and for the children to spend substantial time with their mother, including overnight, with the maternal grandmother, […], in substantial attendance[64].
[64] Transcript 9.4.19, T6:12-15.
Consequently the Father’s Proposal in the interim best meets the needs of the Children in terms of providing stability, with limited changes at this time. Pursuant to the Father’s Proposal the Children will remain in their own home and attend their school which is close to their home.
Conversely the Mother’s Proposal would mean that the Children would not live in their own home and probably live with the Mother’s sister Ms R in Suburb T[65]. This would mean that the Children would move out of their home and would have to travel further each day to attend school.
Any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living
[65] Transcript 8.4.19 T14:16-23.
This is not a relevant consideration.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with 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;
The issue of the whether an adult should be in substantial attendance when the Children either spend time or live with the Mother has been considered with under the heading “Unacceptable Risk” in the discussion in relation to s.60CC(3)(m).
There is otherwise no practical difficulty or significant expenses associated with the Children spending time with either parent.
Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
To provide for the needs of the child, including the emotional and intellectual needs;
Each of the child’s parents
The Mother
I refer to the discussion in relation to s.60CC(3)(b) and also under the heading ‘Unacceptable Risk’ in relation to s.60CC(3)(m).
The Father
The Father has deposed:
I have significant experience in caring for the Children to the exclusion of the [the Mother]. This has occurred for the majority of the last 18 months, as [the Mother] has for the most part been unable to care for them due to her alcoholism. Even when she has experienced period (sic) of recovery from alcoholism, the effects of this have made her very sick and unable to function and meet the day-to-day needs of the Children or attend to household tasks [66].
[66] Father’s First Affidavit, at [35].
This evidence is difficult to accept as:
a)The Father deposes to taking only one day off work on 7 February 2019 due to the Mother’s excessive drinking of alcohol[67]. There is no evidence that the Father has ever had any need to take leave to otherwise care for the Children.
b)The Father left the Children in the Mother’s sole care as recently as the weekend of … 2019, when he went on a recreational fishing and hunting trip to the Town F area. I otherwise refer to the discussion in relation to s.60CC(3)(c).
c)Neither of the Children reported to the Family Consultant the sort of behaviours by the Mother that accorded with the description of the Mother’s alcoholism and intoxication provided by the Father[68].
[67] Ibid., at [27].
[68] Transcript 9.4.19 T16:1-5.
I conclude therefore that the Father has exaggerated the evidence referred to in paragraph 82 above, both in relation to the extent of his experience in looking after the Children without the assistance of the Mother and also in relation to the Mother’s capacity to function over the past 18 months due to her consumption of alcohol.
Any other person (including any grandparent or other relative of the child)
This is not a relevant consideration.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the that the court thinks are relevant;
Any other relevant factors have been discussed elsewhere in these reasons.
Section 60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The Mother’s current health difficulties impact on her responsibilities as a parent. This is discussed under the heading “Unacceptable Risk” in relation to s.60CC(3)(m).
There is evidence that the Father has not acted as a responsible parent. The Father makes serious claims against the Mother in relation to her use of alcohol. On the weekend of … 2019, the Father went on a recreational fishing and hunting trip to the Town F area and left the Children in the sole care of the Mother. I otherwise refer to the discussion in relation to s.60CC(3)(c).
The Father now contends that the Children must have an adult supervising their time with the Mother[69]. The only material change in circumstances since the 6 February Incident is that the Mother and the Children left the Father and there is an Interim Intervention Order against the Father.
[69] Father’s Second Affidavit, at [30].
The Father by leaving the Children in the Mother’s sole care on the weekend of … 2019 failed to act protectively. The reason that he did so was to indulge his own interest in fishing and hunting.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
I refer to the discussion in relation to s.60CC(2)(a).
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The nature of the order
There is an Interim Intervention Order, made at the Magistrates’ Court at Suburb U on 28 March 2019.
The circumstances in which the order was made
On 28 March 2019 a member of the Victoria Police obtained an ex-parte interim intervention order against the Father, with the Mother and the Children named as the affected family members.
The Father denies the allegations made in the Application and Summons for the Interim Intervention Order[70].
[70] Ibid., at [26].
Any evidence admitted in proceedings for the order;
The date for the next hearing of the Interim Intervention Order is on 4 June 2019. There is no evidence before the Court of any evidence admitted in proceedings for the Interim Intervention Order.
Any findings made by the court in, or in proceedings for, the order;
There is no evidence before the Court of any findings made in proceedings for the Interim Intervention Order.
Any other relevant matter;
All relevant matters have been considered.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In this case the matter first came before the Court in the Duty List. On that occasion I determined it was preferable to wait until the Court had the benefit of a report from a Family Consultant after a Child Inclusive Conference pursuant to s.11F of the Act.
The orders that will make will be interim orders until further information is obtained in relation to the Mother’s state of health and pending the appointment of an Independent Children’s Lawyer.
Section 60CC(3)(m)any other fact or circumstance that the court thinks is relevant.
A significant issue in this proceeding is whether the Mother poses an unacceptable risk to the Children, arising from her excessive consumption of alcohol and from the state of her mental health. I will now address these issues.
Unacceptable Risk
The Full Court of the Family Court recently considered the law with respect to unacceptable risk in Stott & Holgar & Anor[71]. The Full Court stated:
[71] [2017] FamCAFC 152.
[34] The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[35]The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador (2009) 43 Fam LR 268 at [89].
[36]In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
[37] As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
[38]We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67])[72].
[72] Ibid, at [34]-[38], (Thackray, Kent and Watts JJ).
In Harridge & Anor & Harridge & Anor[73] Murphy J set out criteria for judges determining issues of unacceptable risk as follows:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?[74]
[73] [2010] FamCA 445.
[74] Ibid., at [73].
Mother’s Excessive Alcohol Consumption
The Father deposed that the Mother:
[…] has suffered with alcohol addiction for a period of approximately 6 years. It has become a significant problem in the last 3 years. In the past 18 months, her abuse of alcohol has escalated further which has caused me great concern for [the Mother’s] safety and that of our Children whilst they are in her care[75].
[75] Father’s First Affidavit, at [17].
The Mother acknowledges having a drinking problem and says that in late 2017 and through 2018 she started binge drinking again on the “occasional night in the week”[76]. The Mother says that she would be classified as a binge drinker and that:
“Binge drinking” for me is consuming between six (6) and nine (9) beers in maybe three (3) hours[77].
[76] Mother’s Affidavit, at [27].
[77] Ibid., at [16].
The Mother deposed that at that time her binge drinking was approximately two to three nights a week and that it only occurred after the Children had gone to bed. She said that:
[The Father] was almost always in the house when I was drinking and my drinking would last for a couple of hours before I was relaxed enough, albeit in an alcohol induced state of mind, to sleep[78].
[78] Ibid., at [27].
In August 2018 the Mother enrolled in a drug and alcohol “Day Rehabilitation Program” at the … Health Unit. The program ran between the hours of 9:30 am and 3:30 pm every weekday for a period of six weeks (First Rehab Program). The Mother successfully completed the First Rehab Program.
The Father deposed that whilst the Mother was undertaking the First Rehab Program she was initially prescribed Antene by her treating medical practitioner Dr V at the Town E Medical Centre for the management of alcohol withdrawal symptoms. The Mother was also prescribed Campral for the long-term management of her addiction whist she was in rehabilitation and for the period subsequent to rehabilitation. The Mother also continued to take Celapram for the treatment of depression[79].
[79] Father’s First Affidavit, at [20].
In December 2018 and January 2019 the Mother started to relapse[80]. The Father deposed that the Mother stopped taking Campral altogether without medical advice, although she attempted to re-commence taking this drug after she started to relapse[81].
[80] Mother’s Affidavit, at [31].
[81] Father’s First Affidavit, at [21].
The Mother attributes this relapse to feeling emboldened, after completing the First Rehab Program, to start questioning the Father more frequently about issues in their marriage that she was dissatisfied with. The Mother believes that the Father responded by belittling her and also with controlling behaviour[82].
[82] Mother’s Affidavit, at [29].
The Father has identified four recent incidents in 2019 where the Mother was significantly intoxicated. The first occurred during the evening of either 7 or 8 January 2019. This incident involved the Mother vomiting on the ensuite bathroom floor. The Father deposed that the Mother passed out “3-4 times” and that he called the Maternal Grandmother to come to assist him with the Mother. The Maternal Grandmother is a health care worker[83]. The Father said that the Children kept coming into the bathroom whilst he was tending to the Mother. When the Maternal Grandmother arrived with the Maternal Grandfather they took over caring for the Mother, whilst the Father then cared for the Children[84]. The Mother admits vomiting in the bathroom but says the events occurred later in the evening after the Children were in bed. The Mother deposed:
[…] I confirm that the children had been put to bed well before I had consumed alcohol to excess[85].
[83] Father’s First Affidavit, at [24(d)].
[84] Ibid., at [24].
[85] Mother’s Affidavit, at [34].
The second incident occurred on 28 January 2019 on the Australia Day public holiday. The Father deposed that he returned home at approximately 8.00 pm with the Children after taking them to spend the weekend with his parents in Town S. When they arrived home the Mother was asleep, however the Children woke her up. The Father said the Mother looked and smelled intoxicated, both her knees were injured and her left cheek and jaw were visibly swollen. The Mother told him that she “fell and hit her face on the bathroom sink”[86]. The Mother admits this incident and says she does not recall how she received the bruises on her cheek and jaw[87].
[86] Father’s First Affidavit, at [25].
[87] Mother’s Affidavit, at [35].
The third incident occurred on 1 February 2019 when the Mother left the house in the early evening after an argument with the Father. At about 8.00 pm the Mother telephoned the Father and he said that he could not understand what she was saying, apart from her screaming his name down the phone. He put the Children in the car and went out to search for the Mother and found her car approximately 300 meters from the former matrimonial home, parked in a narrow dead-end lane. The Father deposed that he saw the Mother passed out across the two front seats of the car. He said that he could tell that she was breathing but the doors of the car were locked. He banged on the windows of the car for a “full minute” before the Mother woke up and eventually unlocked the car doors. The Mother was able to “stagger” to the Father’s car and when she opened the front door, both of the Children were in the back seat of the car crying[88].
[88] Father’s First Affidavit, at [26].
The Mother says that this incident is “true in a general sense, but contains a number of factual inaccuracies”. The Mother also says:
I acknowledge that on 1 February 2019 I essentially had what I consider to be an emotional breakdown[89].
The Mother deposed that she had the intention of drinking and passing out in the car, as she did not want to return home to the Father. She remembers drinking in the car and her next memory is of waking up at home the next morning[90].
[89] Mother’s Affidavit, at [36].
[90] Ibid., at [36].
The fourth incident was the 6 February Incident. The Father deposed that when he arrived home from work at about 4.00 pm he found the Mother visibly intoxicated. She was cooking in the kitchen and the oil in the pan was billowing smoke. The Mother confirmed that she was intoxicated and that the Father would need to cook the dinner and then she then went to the bedroom. The Father asked the Mother how the Children had come home from school and she informed him that “we walked home”. [X] however told the Father that they drove home. The Mother then admitted to the Father that she drove the Children home from school. The Father then called the Maternal Grandmother who said she would come over as soon as possible. The Maternal Grandmother and the Mother’s brother Mr W arrived at approximately 7.00 pm and they took the Mother to the Town E Hospital. They left the hospital at approximately 11.00 pm and brought the Mother back home. The Father did not attend work the following day[91].
[91] Father’s First Affidavit, at [27].
The Mother deposed:
I do not recall whether or not I started drinking before I collected the children from school at 3pm that day. I acknowledge that I had been drinking before the [Father] arrived home from work and acknowledge that this was a complete error of judgement[92].
[92] Mother’s Affidavit, at [37].
The Mother recalls being assessed by the Crisis Assessment and Treatment team at the Town E Hospital following this incident. The Screening Register Detail from the Town O Health Services medical records for the Mother for 6 February 2019 records the following:
Asked Ms Aquaro why she attended Town E hospital (sic), stated she attended due to a relapse of alcohol use. Reported that she was in rehab for six weeks last year and was discharged from the Suburb X rehab in September 2018. Stated that she has been clean for six months, however relapsed and commenced drinking at Christmas. Stated that she drinks beer only. Is unsure how many drinks she had. Her BAC reading tonight was 0.224. Denies feeling intoxicated. Has a high threshold despite only weighing 44kg. Started drinking at 1200hrs today. Stated that she is unsure why this has become more of an issue today. Reports her mother is concerned that she is psychotic. When asked to elaborate on psychotic symptoms she reported that they stated she is not acting herself and is emotional and irresponsible[93].
[93] Exhibit, A1.
[…]
Psychosocial/Functional. Reports that alcohol use impairs her ability to function day to day when she is not working. States she is able to still work effectively[94].
[94] Loc.Cit.
The Mother deposed that this incident was when she realised that she required further help to assist her with her excessive drinking[95]. On 7 February 2019 the Mother attended upon Mr Y at Town O Community Health to discuss her relapse and to ascertain what options were available to her for further rehabilitation. Mr Y advised the Mother that there would be a three month waiting period in order to participate in an inpatient rehabilitation program. Mr Y also advised the Mother that an outpatient program would cater for her requirements[96].
[95] Mother’s Affidavit, at [37].
[96] Ibid., at [38].
The Mother commenced her second rehabilitation program on 20 February 2019 through a program run by Western Health. It was a six week Women’s Therapeutic Day Rehabilitation Program[97] (Second Rehab Program). The Mother ceased attending the Second Rehab Program on 26 March 2019 due to the circumstances leading to the separation of the parties. The Team Leader of the Second Rehab Program has confirmed that the Mother is able to return to the program to complete the remaining seven days of treatment[98].
[97] Ibid., at [42] and Annexure “A-5”.
[98] Ibid., at [42] and Annexure “A-5”.
The Mother deposed that she has been prescribed with Naltrexone which she takes every second day[99]. The Mother also deposed that the last occasion that she drank any alcohol was on the evening of 7 February 2019, when she drank one half of a bottle of beer[100].
[99] Ibid., at [39].
[100] Ibid., at [38].
In relation to the Mother’s substance abuse the Family Consultant gave evidence that:
a)The Mother was very motivated to make changes and get some help.
However she is at a very early stage in her behaviour change and her recovery and she did appear to have some insight developing, but still a bit limited. For example, she continued to attribute responsibility to the Father, Mr Aquaro, for her drinking and her emotions and her behaviours, so in terms of even the responsibility for change it was very difficult for her to articulate how much that rests in her hands (sic) other than just motivation to change[101].
b)The Mother was not currently engaged in drug and alcohol counselling which was described by the Family Consultant as “pretty critical”[102]. She had not completed her Second Rehab Program and had seven days left to finish. There are been some significant improvement in the Mother’s alcohol use and she had reported no use for the last 60 days, which was to be “commended”. There was however:
[…] still some more work to go in relation to being at such an early stage of change and also adjusting to some challenging circumstances after separation[103].
c)Neither child made any disclosures in relation to exposure to the Mother’s substance use.
They didn’t make any disclosures in relation to their mother being unwell or sick and they both - both children appeared to be in the early stages of understanding the parental separation […][104]
[101] Transcript 9.4.19 T4:14-21.
[102] Ibid., T4:39-40.
[103] Ibid., T4:45-47.
[104] Ibid., T5:6-9.
Mother’s State of Mental Health
On 29 March 2019 the Father discovered suicide notes in the Mother’s handwriting (Notes) in two separate locations in the former matrimonial home. The Notes are addressed to each of the Children, the Maternal Grandparents and to the Mother’s brother Mr W. A copy of the Notes is annexed to the Father’s Second Affidavit[105].
[105] Father’s Second Affidavit, at [14] and Annexure “A-3”.
The Mother acknowledges having written one of the Notes in August 2017. She deposed that it was written at a time when she had been drinking and that it was a catalyst that she needed to seek help. The Mother also says:
I do not believe that I was actually suicidal but acknowledge that anyone reading that correspondence may be concerned. I confirm that I am not suicidal nor have I once, if indeed I have ever thought it, thought (sic) of committing suicide since the drafting of that letter.[106]
[106] Mother’s Affidavit, at [10].
The Screening Register Detail from the Town O Health Services medical records for the Mother for 6 February 2019 records the following:
Reports to have a Dx of PTSD from CSA and “almost being killed a lot of times” sexually abused at 15, raped in a relationship also. Never sought counselling regarding same. Was unaware of CASA.
[…]
Thought content:[…] Has some suicidal thoughts may be monthly. Denies any intent to act on same and has never had a plan. Feels worthless at times and wishes that she wasn’t born, these occur when she is intoxicated and has no other plans for the day and is alone. Stated that her family are protective and her work (sic). Denies drinking through the day usually. Stated that she doesn’t usually drink drive.
Perception: Nil hallucination of the 5 spheres.
Reported that she was washing the dishes and believes she saw her husband walk across the room to the laundry and he wasn’t there 1-2 months ago.
[…]
Had a black out today, due to drinking so much[107].
[107] Exhibit A1, page 3 of 4.
[…]
Stated that she has a history of sexual abuse and PTSD from same. […] Denies any DSH thought plan or intent. She has no suicidal ideation at present, reported that she has some thoughts that she wishes she was never born which occur infrequently around once a month when she is alone, has no activity scheduled and is intoxicated. [The Mother] has no intent to end her life. She reported her family work and dog as protective factors. She reported to a want to abstain from alcohol and “get better”. [The Mother] has not been engaging with services for D & A counselling or psychological intervention. She was not aware of CASA however was willing to link in. [The Mother] was provided with education regarding the use of her medication and drinking whilst on same.
There are nil pervasive depressive symptoms. Nil psychotic, OCD or manic symptoms reported and nil risk to self or others warranting AMHS involvement at this time.
Referral to D&A services for detox and counselling, CASA and a psychologist as well as continuing with GP for support in linking with same is recommended at this time[108].
[108] Ibid., page 4 of 4.
The records for the Djerriwarrh Health Services[109] indicate that on 11 February 2019 Mr Y made an assessment of the Mother’s mental state. The records for the Djerriwarrh Health Services indicate that Mr Y holds the position of AOD Counsellor. The records indicate that in relation to:
a)“Thoughts: Content” there was “No evidence of delusions, suicidal thought obsession or phobia”.
b)“Insight/ Judgement” the “Client appeared to have very good insight into her problem and need for treatment”.
c)“Cognition” the Mother was described as “Fully cognisant”.
d)“Mood/Affect” it was noted “Some anxiety evident. Self rated 3/10[110].
[109] Exhibit R1.
[110] Exhibit R1, at p. 24.
The records for the Djerriwarrh Health Services indicate that on 11 February 2019 the Mother told Mr Y that she was taking the following medications prescribed by a general practitioner:
a)Valium: 1x 5mg daily for anxiety.
b)Campral: 333mg daily for alcohol addiction. There is a notation “Reportedly stopped as it did not “agree” with her”.
c)Citalopram: 20mg for depression[111].
[111] Ibid., p.25.
The records for the Djerriwarrh Health Services also indicate that on 19 February 2019 the Mother attended a counselling session with Ms Z a Drug and Alcohol Counsellor, who recorded the following:
Health/Mental Health: […] Client reported a history of trauma and is taking an anti depressant – Citalopram and is monitored by her GP. Client stated she is also seeing a psychologist for the trauma[112].
[112] Ibid., p.8.
The Family Consultant gave evidence that:
[…] both parties presented as having current grief and loss in relation to the relationship breakup and both have agreed that perhaps some counselling, psychological counselling, might be beneficial in relation to adjusting to their separation[113].
[113] Transcript 9.4.19 T3:32-35.
In relation to the Mother’s mental health the Family Consultant gave evidence that the Mother:
a)Presented with “[…] some low levels of insight in relation to her mental health”[114].
[114]Transcript 9.4.19 T3:35-36.
b)[D]escribed high levels of motivation to do whatever she needs to do to see the children[115].
[115] Ibid., T3:36-37.
c)Had experienced:
“[…] multiple experiences of trauma that do not appear to be addressed or processed and she has more recently attended counselling following separation in 2016 with the father and they reunited and she was unable to articulate why she found counselling to be beneficial, so it appears that there may be, perhaps small periods of engagement, not long-standing, meaningful engagement with counselling in relation to her mental health”[116].
d)Had denied any previous diagnoses, self-harm behaviours and a history of suicidal thoughts[117]. Had stated that she believed that she had post-traumatic stress disorder[118].
e)Had been on antidepressant medication in 2016. It was recommended that the Mother undertake some psychiatric intervention[119].
f)She had difficulty obtaining information from the Mother in relation to specific details. This was attributed to:
i)Anxiety due to the Court assessment process;
ii)A trauma history that was unprocessed making it not a safe psychological space in one hour with a stranger to open that up;
iii)Memory issues reported by the Mother, which the Family Consultant was unable to assess[120].
[116] Ibid., T3:46-4:4.
[117] Ibid., T4:4-5.
[118] Ibid., T9:16-17.
[119] Ibid., T17:36-43.
[120] Ibid., T16:45-17:15.
Discussion of unacceptable risk
I intend to adopt and consider the evidence in accordance with the criteria set out by Murphy J in Harridge & Anor & Harridge & Anor[121] referred to in paragraph 104 above.
[121] [2010] FamCA 445.
What harmful outcome is potentially present in this situation?
The identified risk to the Children is the possibility of psychological harm and neglect as a result of a relapse of the Mother’s excessive consumption of alcohol.
In relation to the Mother’s mental health the Court also does not have before it comprehensive medical assessments in relation to the Mother’s psychological or psychiatric mental health. There is presently no evidence before the Court that the Mother has a diagnosed mental health condition, apart from depression. In relation to the depression, all that is known is that the Mother has been taking Citalopram and that this has possibly been prescribed by Dr V at the Town E Medical Centre.
On the evidence of the Family Consultant there is an issue in relation to the Mother’s mental health that needs to be explained by a psychiatric assessment. I note that the information that the Mother provided to the health care professionals on the evening of 6 February 2019, referred to in the Screening Register Detail from the Town O Health Services medical records, was at a time when she was highly intoxicated. These notes do nevertheless refer to repeated suicidal thoughts on approximately a monthly basis.
What is the probability of this outcome coming about?
At this stage in the proceeding the Court also does not have comprehensive evidence from the Mother’s health care professionals relating to her excessive alcohol consumption.
The following points are noted in relation to the Mother’s treatment for substance abuse:
a)The First Rehab Program was unsuccessful.
b)The Mother relapsed within a very short period of time of completing the First Rehab Program, being some three months.
c)On the Father’s evidence the Mother ceased taking Campral altogether, without seeking medical advice, although she attempted to re-commence taking the drug after she relapsed.
d)The Mother has not completed the Second Rehab Program and has a further seven days to complete.
e)On the evidence of the Family Consultant the Mother is at the early stages of her recovery.
f)At the time of the s.11F Child Inclusive Conference on 9 April 2019 the Mother:
i)Had only been substance free on her account for 60 days;
ii)Was not engaging in any drug and alcohol counselling.
As a result of the evidence it is not possible to determine the probability of a relapse of the Mother’s alcohol abuse.
What risks are probable in this situation short, medium and long-term?
In the absence of evidence from the health care professionals on behalf of the Mother, the Court can only look at the recent history of events to assess the probable risks in the short term. I refer to the matters in the preceding paragraph. In these circumstances I can only conclude that the risk of the Mother drinking alcohol to excess in the short term is probable.
In considering the medium to the long term, in the absence of evidence from health care professionals on behalf of the Mother the Court is presently unable to this answer this question. However the Court cautiously notes there are indications that the Mother’s prognosis may be favourable in that:
a)The Mother has a high level of motivation to do what she needs to do to see the Children.
b)The Mother is presently not using alcohol or other substances.
c)The Mother has a supportive family.
What are the factors that could increase or decrease the risk that is probable?
Factors which could lead to a decrease in the risk of the Mother relapsing into alcohol abuse all relate to individual factors such as the Mother’s ability to remain:
a)Engaged with her treatment.
b)Compliant.
c)Refrain from using alcohol.
Conversely, the Mother’s inability to manage these individual factors will lead to an increase in the risk.
What measures are available, whose deployment could mitigate the risks that are probable?
The Father has proposed interim orders in the Father’s Proposal in paragraphs 30(a), (b), (c) and (d) above, to minimise the risks that he contends are probable. This proposal is in substance that the Children live with the Father and when they spend time with the Mother, that time is in the substantial attendance of the Maternal Grandmother.
The effect of the Father’s proposed orders is that in the event that the Mother relapsed again, the Maternal Grandmother would be in substantial attendance. The Children could also return to the former matrimonial home to live and be in closer proximity to their school.
The Mother proposes orders in accordance with the Mother’s Proposal. This proposal is substantially that the Children live with the Mother (unsupervised) and spend time with the Father.
Conclusion
After considering all the relevant evidence and balancing the risk to the Children with the benefit of an ongoing relationship with their Mother and Father, I have determined that for the interim the orders proposed by the Father referred to in paragraph 30 above are conservative and prudent for the interim. In my opinion they balance managing the possible risk of the Mother relapsing again into excessive alcohol consumption and protecting the Children. A line was drawn with the 6 February Incident when the Mother drove the Children whilst intoxicated. Not only did the Mother put herself and the Children at risk but other members of the community as well.
I consider it appropriate and intend to make orders in accordance with the proposed orders in paragraphs 30(a), (b), (c) and (d) above, save that I intend to make the commencement of time for the Mother to be from after school instead of from 6.00 pm. I note that in the Mother’s Proposal the Father’s time was to commence from the conclusion of school. I also intend to include the Maternal Grandfather as a person who may be in substantial attendance as well as the Maternal Grandmother. I note that the Father proposed the Maternal Grandparents as suitable persons in such circumstances[122].
[122] Father’s Second Affidavit, at [34].
Appointment of Independent Children’s Lawyer
The Family Consultant recommended the appointment of an Independent Children’s Lawyer. Having considered this matter and taken into account particularly the matters discussed in relation to s.60CC(2)(b), s.60CC(3)(c)(ii) and (iii), 60CC(3)(f), s.60CC(3)(i) and under the heading “Unacceptable Risk”, I have concluded that neither parent has been acting in the Children’s best interests. I will therefore request Victoria Legal Aid to appoint an Independent Children’s Lawyer to act on the Children’s behalf in this proceeding.
Equal Shared Parental Responsibility
Section 61DA of the Act provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child. The presumption can be rebutted if it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1)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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)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.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Neither the Father’s Proposal or the Mother’s Proposal referred to parental responsibility for the Children and nether Counsel addressed the Court on this issue. The Family Consultant did not refer to parental responsibility nor did she give evidence that would support either parent having interim sole parental responsibility.
I will therefore on an interim basis apply the statutory presumption that it is in the Children’s best interests for the parents to have equal shared parental responsibility: s.61DA(1). I will make an interim Order accordingly.
Statutory Pathway
Where the parents have equal shared parental responsibility for a child, sub-ss.(1)-(5) inclusive of s.65DAA of the Act requires the Court to consider the child spending equal time, or substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
In MRR v GR[123], the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. The High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent[124].
[123] (2010) 240 CLR 461.
[124] Ibid., at [13].
As there is an interim order for equal shared parental responsibility, I am now required to address the statutory pathway as set out in s.65DAA(1) – (5).
Equal Time with Both Parents
Firstly I will address the Children spending equal time with both parents[125].
[125] Section 65DAA(1).
Neither the Father’s Proposal or the Mother’s Proposal proposes that the Children spend equal time with both parents. The Court is not bound by the parties’ respective proposals (AMS v AIF[126] and U v U[127]). In light of my determination under the heading “Unacceptable Risk”, I determine that the Children spending equal time with both parents at present is not in their best interests.
[126] (1999) 199 CLR 160.
[127] (2002) 211 CLR 238.
In considering whether the Children spending equal time with both parents is reasonably practicable[128], I have taken into account the matters discussed under the heading “Unacceptable Risk”.
[128] s.65DAA(1)(b).
Having made the determinations referred to in the preceding paragraphs I do not propose to make an order pursuant to s.65DAA(1) for the Children to spend equal time with each of their parents.
Substantial and Significant Time
The Court therefore must consider whether the Children spending substantial and significant time with each of the parents is:
a)In the best interests of the Children: s.65DAA(2)(c); and
b)Reasonably practicable: s.65DAA(2)(d).
In Ulster & Viney[129] the Full Court considered the meaning of the phrase “substantial and significant time”[130]. The Full Court said:
[87] In Eddington and Eddington (No 2) (2007) FLC 93-349, the Full Court determined the manner in which these provisions operate. The Full Court said (at 81,997):
54. It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply.
[88] Thus the test as to whether orders make provision for substantial and significant time is in two parts. The first is mandatory and requires compliance with each element of s 65DAA(3). The second requires the exercise of discretion in accordance with s 65DAA(4). If the first question is answered in the negative, the orders cannot be for substantial and significant time. However, if that question is answered in the affirmative, it is necessary to consider whether in the factual context of the case the time is both substantial and significant. It follows that a finding pursuant to s 65DAA(4) in one case is likely to be irrelevant to the resolution of that issue in a different case (see Eddington (No 2) at [66])[131].
[129] [2016] FamCAFC 133.
[130] Ibid., at [84]-[88].
[131] Ibid., [87]-[88], (Strickland, Ainslie-Wallace and Ryan JJ).
Conclusion Substantial and Significant Time
Neither the Father or the Mother’s Proposal complies with the test as set out in Eddington & Eddington (No 2)[132] or complies with each subsection of s.65DAA(3).
[132] (2007) FLC 93-349, at 81,997.
The Family Consultant has recommended that the Children should spend substantial time with the Mother, however without further comprehensive information in relation to the Mother’s health and circumstances I am unable to form an opinion as to whether this would be in the Children’s best interests[133] or whether it would be reasonably practicable.[134]
[133] Section s.65DAA(2)(c).
[134] Section 65DAA(2)(d).
Consideration and Conclusion Proposed Order
In considering this interim Decision I have adopted a conservative approach that is not likely to cause harm to the Children, as suggested by the Full Court for interim matters in Marvel v Marvel[135].
[135] (2010) 43 Fam LR 348, at [120].
I have followed the legislative pathway as require by Goode v Goode[136], to the extent that I have been able, given that this is an interim case and the evidence is untested by cross examination.
[136] (2006) 36 Fam LR 422, 445, at [81]-[82].
I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant. For the reasons set out herein, I determine that the Father’s Proposal is in the best interests of the Children as required by s.60CA of the Act and orders are made accordingly.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 2 May 2019
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