Aubert & Cranmore
[2023] FedCFamC1F 870
•25 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aubert & Cranmore [2023] FedCFamC1F 870
File number(s): SYC 6363 of 2019 Judgment of: RIETHMULLER J Date of judgment: 25 October 2023 Catchwords: FAMILY LAW – Practice and procedure – Parenting – Where the parties’ relationship is of high conflict – Where there are prior concerns by the respondent with respect to the applicant’s alcohol use – Where restraints made on an interim basis require the applicant to maintain a blood alcohol level above 0.0 when the child is in their care – Where the Court proposed orders requiring the applicant to undergo Carbohydrate-Deficient Transferrin (“CDT”) testing for alcohol consumption – Where the respondent sought to rely upon any adverse inferences drawn if the applicant did not produce evidence with respect to alcohol consumption at final hearing – Parties afforded opportunity to provide Written Submissions – Where the applicant consents to undergoing testing – No matters of principle – Orders made in accordance with applicant’s proposed terms for CDT testing. Division: Division 1 First Instance Number of paragraphs: 19 Date of last submission/s: 25 August 2023 Date of hearing: On the papers Place: Parramatta Counsel for the Applicant: Ms Lane Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Dickson KC Solicitor for the Respondent: Broun Abrahams Burreket Solicitor for the Independent Children’s Lawyer: Holmes Donnelly & Co Solicitors ORDERS
SYC 6363 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AUBERT
Applicant
AND: MS CRANMORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
25 OCTOBER 2023
THE COURT ORDERS THAT:
1.The applicant mother shall engage in CDT testing once per fortnight for a period of six weeks (being a total of three tests).
THE COURT NOTES THAT:
A.These orders were made with the consent of the applicant mother, which was given on the basis that there was no admission or concession as to the necessity for such an order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aubert & Cranmore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
These proceedings concern the parenting arrangements for a child born in 2017 who is now six years of age. The child lives with the respondent mother and there are interim orders in place for the child to spend time with the applicant mother.
BACKGROUND
The parties lived together from 2013, were married in the United States of America in 2016, and separated in September 2019. The applicant mother commenced these proceedings a little over a fortnight after separation.
On 4 August 2023, the matter came before the Court for a case management hearing and the allocation of final hearing dates.
A significant issue in the proceedings arises from the allegations of the respondent that the applicant uses alcohol in excess. In interim orders made by the consent of the parties on 6 November 2019, the applicant is restrained from having a blood alcohol level above 0.0 when the child spends time with her. I note that the restraint on the consumption of alcohol was agreed to without admission and therefore do not take it into account as some form of concession by the applicant. The intrusive nature of the injunctions is apparent from the claims that the applicant forewent contact on one occasion as she was attending a family celebration where alcohol would be served.
AVAILABLE TESTING OPTIONS
It is well accepted that scientific testing is available that provides reliable evidence of alcohol consumption. Generally, the testing is done by way of a breath test for alcohol consumed within the preceding hours, Carbohydrate-Deficient Transferrin (“CDT”) testing for consumption levels in the preceding fortnight, and hair follicle testing for consumption in the preceding three or greater months (depending upon the length of hair available for testing). The nature of the tests requires various levels of intrusion, ranging from mere collection of expired breath, to cutting of strands of hair (dead cells that nonetheless remain part of a person’s body), and with respect to CDT testing, taking blood from the person.
The inferences that are available from the tests also differ. As breath tests show only the use of alcohol in the preceding few hours, they may not demonstrate alcohol dependency as even those dependent on alcohol can often ensure that they have no alcohol for the hours necessary to pass the test if they are aware of when it is to be taken. Randomising the time of taking such a test makes it more likely to ensure that the results can be relied upon to show a general pattern of alcohol use, however many random tests may be required to make the results statistically significant.
There is little need to randomise the time of taking hair tests as the period covered by such tests is much longer (commonly three or six months). Even if a person has plenty of warning of the test time, if they are dependent upon alcohol (or other substances) they are unlikely to be able to remain abstinent for three or six months. Indeed, the ability to use hair follicle tests with plenty of warning can be a useful strategy in litigation as it results in many of those with addiction issues to confront the extent of their problems. When a person has had sufficient warning to remain abstinent long enough to obtain a clear hair follicle test, and have been unable to do so, it is difficult to avoid the proposition that there is an addiction.
Hair follicle tests, however, are of less utility in cases involving alcohol consumption as the test simply shows whether alcohol has been imbibed in the test period. As alcohol is a significant part of social life for many people in contemporary society it can be particularly onerous to effectively require a person to abstain completely from taking alcohol for three months. For this reason, such a test could also be a form of unreasonable oppression by one party against another in some cases.
CDT testing covers a period of two weeks prior to the test. The results are generally placed into one of three categories, low, moderate, or high alcohol use. If three tests are taken consecutively, a sample period of six weeks is covered, giving a reasonable period of usage levels if none of the results fall within the high category. The test allows for inferences as to binge drinking or high daily usage.
Having regard to these testing options, I raised with the parties the possibility of ordering CDT testing of the applicant with respect to alcohol consumption to ensure that the Court has the best available evidence from which to assess the applicant’s use of alcohol, a factor that is important when assessing the potential risks to the child when in her care.
Attitude of the parties to obtaining scientific evidence
The respondent’s counsel pointed out that written requests had been made by the respondent’s solicitors for the applicant to undertake testing, but the respondent had not sought Court orders to that effect. At the directions hearing, the respondent was content to rely upon the adverse inferences that may be open to the Court with respect to the applicant where there is an allegation of excessive alcohol use, a request for testing, and a failure to undertake testing that is likely to provide reliable evidence.
Drawing an inference that the failure to participate in testing was because it was likely to harm the applicant’s case would not automatically be drawn but would depend upon the circumstances of the case. For example, if a request was made despite there being no reasonable basis for the allegation, it is unlikely that the Court would draw an inference if the other party refused to undertake a test on the basis that it was simply a form of harassment in the proceedings.
The applicant objected to an order for testing on the basis that an order was unnecessary in the context of the current issues and that it would be likely to further inflame an already intractable dispute. However, whilst it is strongly contested, there is clearly a serious issue in the proceedings with respect to alcohol use and how that affects the applicant’s capacity to care for the child. The evidence of a series of consecutive CDT tests is likely to provide significant objective evidence that will be relevant to determining that issue.
As the orders were opposed by the applicant at the case management hearing, each party was given the opportunity to provide written submissions.
The applicant, in her written submissions, consented to undertaking testing. There is no issue as to the capacity of the applicant to meet the costs of testing at first instance.
The respondent, in her written submissions, now seeks lengthy orders with respect to testing. The apparent change in position between the approach of the respondent at the directions hearing and in the written submissions gives some weight to the submission of counsel for the applicant at the directions hearing that the use of Court applications may not be primarily for the purpose of preparing for the final hearing. However, such findings will be a matter for the trial judge.
In the present proceedings, I am persuaded that CDT testing for alcohol use by the applicant is likely to produce meaningful and reliable evidence relevant to the allegations of alcohol use by her, and that this is a serious issue in the proceedings which bears upon the capacity of the applicant to care for the child. If CDT testing were not undertaken in a way that produces meaningful and reliable results covering at least six weeks, there is a real risk that an adverse inference may be drawn against the applicant by the trial judge with respect to the issues concerning alcohol.
In light of the applicant’s consent to being tested and her proposed testing orders, I will make orders in the terms that she proposes. I am not persuaded that it is necessary to make different and more detailed orders from those to which the applicant consents, in the context of this case, as the applicant is ably represented and aware of the importance of producing reliable test results that are from appropriately verified and reliable samples.
I therefore make the orders proposed by the applicant mother.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 25 October 2023
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