AUSTIN & AUSTIN
[2011] FMCAfam 618
•22 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AUSTIN & AUSTIN | [2011] FMCAfam 618 |
| FAMILY LAW – Children – interim parenting orders – best interests of the children – parental responsibility – equal shared parental responsibility – whether it is in the best interests of the children for the mother to move back into the home. PRACTICE & PROCEDURE – Final hearing – expedition. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB |
| Austin & Austin [2010] FMCAfam 1461 |
| Applicant: | MR AUSTIN |
| Respondent: | MS AUSTIN |
| File Number: | SYC 7002 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 June 2011 |
| Date of Last Submission: | 7 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Rees SC |
| Solicitors for the Applicant: | Watts McCray |
| Counsel for the Respondent: | Ms Hausmann |
| Solicitors for the Respondent: | Broun Abrahams Burreket |
| Solicitors for the Independent Children’s Lawyer: | Ms Youssef, Marsdens Law Group |
ORDERS
The application is listed for final hearing at 10:00 am on Monday
14 November 2011 to continue until Friday 18 November 2011.
The Applicant father is to pay the setting-down fee or obtain a reduction of that fee by Monday 31 October 2011.
The parties are to file and serve all affidavits upon which they seek to rely no later than Monday 31 October 2011 and no affidavits will be accepted for filing after that date without leave of the Court.
Parties are to arrange for an updated Family Report of Dr W prior to the final hearing on 14 November 2011.
BY CONSENT UNTIL FURTHER ORDER
The children [X] born [in] 1995 and [Y] born [in] 1997 are to continue to attend [C] School as day students.
The Respondent Mother shall be and is restrained from consuming alcohol.
The mother shall submit to chain of custody urinalysis upon request by the Independent Children’s Lawyer on at least two occasions per week under supervision, when the testing will take place on the same day as the request is made, such urinalysis to be conducted in accordance with Australian/New Zealand Standard 4308:2008: Procedure for collection, detection and quantitation of drugs of abuse in urine.
That the Independent Children’s Lawyer is to communicate such requests for urinalysis to the mother directly by telephone or SMS text message.
That the mother is to forward the urinalysis results to the Independent Children’s Lawyer and the father’s solicitor directly upon receipt.
AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER
Order 1 made by consent on 18 January 2011 is vacated.
The children [X] born [in] 1995 and [Y] born [in] 1997 are to live with the maternal grandmother and the maternal grandfather or either of them at Property W and the mother is permitted to attend at those premises as set out in Orders (11) and (12) below.
The children [X] and [Y] are to spend time with the mother at Property W or elsewhere under the supervision of either or both of the maternal grandparents as follows:
(a)From 4:00 pm to 8:00 pm each weekday during the school term PROVIDED THAT the children are not spending time with the father on that day; and
(b)Each alternate weekend during the school term from 8:00 am on the Saturday until 8:00 pm on the Sunday PROVIDED THAT the children are not spending time with the father on that weekend.
The children are to spend block time with the mother during school holiday periods as follows:
(a)From 1:00 pm on 25 June 2011 to 1:00 pm on 2 July 2011;
(b)From 7:00 pm on 13 July 2011 to 8:00 pm on 18 July 2011; and
(c)For a period of up to two (2) weeks in each subsequent school holiday period upon the mother providing the father with not less than fourteen (14) days prior written notice.
For the purposes of Order (12) above:
(a)The mother is to provide the father with the address or addresses at which the children will be residing and the contact telephone number or numbers upon which the children can be telephoned during the period; and
(b)Such time is to be supervised by either the maternal grandmother or the maternal grandfather.
The children are to spend block time with the father or, at his nomination, the paternal grandfather or the paternal aunt, during school holiday periods as follows:
(a)From 1:00 pm on 2 July 2011 to 7:00 pm on 13 July 2011;
(b)For a period of up to two (2) weeks in each subsequent school holiday period upon the father providing the mother with not less than fourteen (14) days prior written notice; and
(c)The father must provide the mother with the address or addresses at which the children will be residing and the contact telephone number or numbers upon which the children can be telephoned during the period.
The parties are to have equal shared parental responsibility for the children [X] and [Y].
IT IS NOTED that publication of this judgment under the pseudonym Austin & Austin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7002 of 2010
| MR AUSTIN |
Applicant
And
| MS AUSTIN |
Respondent
REASONS FOR JUDGMENT
Application
The mother in these proceedings, who is the respondent to the substantive Application, has filed an Application in Case seeking further interim parenting orders and seeking an order that the final hearing of the substantive Application should be expedited. Essentially, the mother seeks order that would allow her to return to live in the residence at Property W with the two children, [X], now aged 16, and [Y], now aged 13 years.
The father agrees that the final hearing should be expedited but otherwise opposes the orders that the mother seeks.
The Independent Children’s Lawyer supports the orders proposed by the father, except that she has told the Court that she would support a proposal that the mother should be permitted to return to the home on alternate weekends to spend time with the two boys, provided that this time were to be supervised by one or other of the mother’s parents.
Orders Sought
The mother seeks orders that were set out in a Minute handed up in Court:
1. The wife return to the Property W property subject to orders 2 and 3 below.
2. The wife’s parents, or at least one of them, reside at the Property W property and continue to be bound by their undertaking to notify the ICL (via the wife’s lawyers) and the husband’s lawyers as date 16 November 2010 and 6 December 2010.
3. The wife continue random urinalysis as instructed by the ICL with the husband to pay for such testing.
4. That the husband spend time from 1pm on 2 July 2011 to 7pm on 13 July 2011 with the children to holiday in Port Douglas with them.
5. That whenever the husband is in Sydney the children, or either of them, spend time with him upon giving reasonable notice.
6. That the wife spend time with the children from 25 June 2011 to 1 pm on 2 July 2011 and from 7pm on 13 July 2011 to 18 July 2011 during the children’s school holiday.
7. that the final hearing of this matter be expedited.
8. That the wife shall be and hereby is restrained from consuming alcohol.
The father seeks orders as set out in a Minute filed in Court on the day of the hearing:
1. That the children [X] born [in] 1995 and [Y] born [in] 1997 (“the children”) shall live with the father and/or his nominee noting that the paternal grandfather and/or the paternal aunt shall care for the children during periods of the father’s absence from Australia.
2. That the children shall continue to attend [C] School as day students.
3. That the children shall spend time with the mother as follows:
3.1 Each Monday, Wednesday and Friday from 4;00 pm until 5:30 pm;
3.2 On each alternate weekend as follows:
3.2.1 from 9:00 am until 1:00 pm on Saturday; and
3.2.2 from 9:00 am until 1:00 pm on Sunday.
4. That the children spend block time with the mother during school holiday periods provided that:
4.1 The mother provides the father with no less than 14 days prior written notice of her intention to spend block time with the children;
4.2 The mother provides the father with the address(es) at which the children will be residing and the contact telephone number(s) upon which the children can be reached during the said block period;
4.3 such time is supervised by the maternal grandmother or the maternal grandfather;
such time does not exceed two weeks in duration.
5. That the children spend block time with the father and/or his nominee and for this purpose order 3 shall be and hereby is suspended, provided that:
5.1 the father provides the mother with no less than 14 days prior written notice of his intention to spend block holiday time with the children;
5.2 the father provides the mother with the address(es) at which the children will be residing and the contact telephone number(s) upon which the children can be reached during the said block period; and
5.3 such time does not exceed two weeks in duration.
6. That for the purpose of effecting changeover in accordance with these orders the mother or her nominee shall collect and deliver the children to and from the father’s usual place of residence in Sydney at the commencement and conclusion of the children’s time with the mother unless otherwise agreed between the parties.
7. That in the event the father or his nominee(s) are of the view that the mother is affected by alcohol and/or any substance at the commencement of the children’s time with the mother the father and/or his nominee(s) shall not release the children or either of them to the mother’s care.
8. That the mother shall be and hereby is restrained from consuming alcohol.
9. That the mother shall submit for chain of custody urinalysis upon request by the Independent Children’s Lawyer on at least two occasions per week under supervision, when the testing will take place on the same day as the request is made, such urinalysis to be conducted in accordance with the Australia/New Zealand Standard 4308:2001[1]: Procedure for the collection and quantitation of drugs of abuse in urine.
10. That the Independent Children’s Lawyer communicate such requests for urinalysis to the mother directly by telephone or by SMS text message.
11. That the mother forward the urinalysis results to the Independent Children’s Lawyer and the father’s solicitor immediately upon receipt.
[1] The current standard is AS/NZ 4308:2008
Ms Hausman advised the Court that her client consented to Numbers 2, 8, 9, 10 and 11 of the father’s proposed orders.
The Independent Children’s Lawyers supports the orders sought by the father, but also supports an order that would allow the mother to spend overnight time in the house with the children on alternate weekends, provided that this time was supervised by the maternal grandparents.
Expedition of the Final Hearing
I am satisfied that this is a matter that justifies expedition of the final hearing. The Court has serious concerns about the welfare of the two boys, who are affected by the litigation between their parents. The maternal grandparents have been spending a considerable amount of time in Sydney to support their daughter and their grandsons, but they need to return to their home in New Zealand before too long.
I indicated to the parties that I was prepared to allocate five days in November for the final hearing of this matter. The Application will be listed for final hearing from Monday 14th November to Friday 18th November 2011.
Evidence
The mother relies on her affidavit of 20th April 2011 and the affidavit of her mother, Ms B, of that same date.
The mother deposes in her affidavit that she does not consider it practicable for her and does not consider it to be in the children’s interests for her to be excluded from the home at Property W any longer. She deposes that she attended an intensive one month program at a clinic called [S] at Byron Bay in January and early February 2011 for the purpose of addressing her alcohol abuse and other issues. She deposes that she has continued to follow the recommendations of that program, including psychotherapy, yoga and art therapy.
The mother is also seeing her psychiatrist, Dr R, on a weekly basis. She is also attending a program called Smart Recovery twice a week. She will be commencing therapy with a psychotherapist recommended by [S], Dr F.
The mother has been undertaking regular urinalysis testing with mainly negative results.
The thrust of the mother’s case, as outlined in her affidavit, is twofold:
a)She says that the boys are stressed and distressed at her not being at home to care for them, especially at night;[2] and
b)Whilst her parents have been very supportive, they will be unable to continue to assist her in supervising the children indefinitely, as they both require medical procedures and they need to spend time with her sister [name omitted], who has breast cancer.[3]
[2] Affidavit of Ms Austin 20.4.2011 at [9]-[10], [15]
[3] Affidavit of Ms Austin 20.4.2011 at [11}-[12]
The Further Report from Dr W
Dr W prepared a further report on 3rd June 2011. For the purpose of that report he interviewed:
a)The mother;
b)The children, with the mother and separately;
c)The maternal grandparents; and
d)The father
Dr W examined the record of text messages sent to the mother by the boys over the period 26th April to 30th May 2011. The messages were mainly sent at night and consisted of entreaties to her to come over and spend time with them. [X], in particular, was complaining of panic at night and difficulty sleeping.
Dr W noted with some concern that the mother had had two episodes of drinking, one on 28th December 2010 and the other on 1st January 2011. Both of those incidents had taken place before the mother had commenced her program at [S].
Dr W observed that the boys appeared to be comfortable in their mother’s presence and [X] seemed less anxious. [Y] appeared to be in a much happier frame of mind and was quite warm and affectionate with his mother.[4]
[4] Report of Dr W 3.6.2011 page 11
The maternal grandparents were distressed and frustrated about the current situation, particularly the limitations imposed by the current orders, and were concerned that the boys had difficulty sleeping. They were of the view that their daughter had taken steps to control her drinking and were optimistic about her continued abstinence.[5]
[5] Ibid page 12
Encouragingly, Dr W reported that [X] was attending school and seemed to have settled well into the school routine. He is now in year 11. [X] did not wish to see his father and Dr W did not press him to do so.
[X] told Dr W that he telephones his mother most night because his anxiety plays up. He goes to his grandparents to calm him down but, if this does not work, he rings or texts his mother. Sometimes he begs her to come over.
Dr W reported that [Y] had settled into Year 7 at [C] School. He seemed to be in good spirits and was happy to see his father for the purposes of Dr W’ report. He said he enjoys the time he spends with his father. [Y] told Dr W that he wanted his mother to come home and he thought it was stressful for his grandparents to have to look after him and his brother all the time.
Dr W’ comments about [Y] are encouraging:
[Y] seems to be going quite well under the circumstances. He seemed to be much happier overall when I saw him. Not only was he much more content in his mother’s presence on this occasion, but he was positively exuberant around his father and paternal relatives.[6]
[6] Dr W’s Report at 24
Dr W was less optimistic about [X]:
It is possible that [X]’s continuing separation anxiety concerning his mother is because he has observed evidence of continued drinking since her discharge from [S], including perhaps on the night of his birthday party. However whatever the reason, their relationship has become very dysfunctional and distorted, and I believe it is that which is driving his anxiety.[7]
[7] Ibid
Dr W expressed the opinion that there appeared to be at least two well corroborated incidents of Ms Austin drinking heavily between his initial assessment of her and her admission to [S]. He said that he was “most unsatisfied” with her responses to some of his enquiries which might have had a bearing on her drinking and he was not satisfied with her credibility. He stated:
The reason I make a point of these matters is that I felt that
Ms Austin had been in state of significant denial about her drinking prior to my initial assessment, and I am concerned that more or less the same state of denial exists at the moment and that there is a significant lack of candour. Usually if people with alcoholism suddenly abstain, they show remarkable candour about their previous drinking rather than the same glib evasiveness which characterises their previous behaviour.
I am concerned that Ms Austin’s drinking pattern has changed to fit in around the urine testing, and that there may have been breakout binges, one of which may have occurred on [X]’s birthday.
…She is still in a fragile state and I am not completely satisfied that there has been a total absence of any drinking at all since she was discharged.[8]
[8] Dr W’s Report at 26-27
Dr W did not support the mother’s plan to take over the children’s full time care, believing that it might actually make things worse. He considered that the proposal might put the mother at increased risk of relapse and exacerbate [X]’s anxiety and panic if she were to take over the full time care of the children at this time.
Submissions
Counsel for the father submitted that having the mother move back into the home at this stage would be a “recipe for disaster”. Her parents have not been able to control her and Dr W doubted the veracity of her account to him. [X] was once again being involved in the management of his mother’s illness. The mother’s drinking was not controlled and [X] was not being protected. She sought an order that both children should live with the father.
Ms Hausman for the mother submitted that the mother’s proposal would provide continuity for the children, noting that the maternal grandparents would still be there in the home.
It was further submitted that Dr W’s report was untested and that he was proposing an experiment in removing the children from the mother. No assessment had been made of the effect on the separation of the two boys who have a close bond.
Again, counsel for the mother submitted that the father’s proposal is really to share the care of the children around with the paternal grandfather and the father’s sister. Dr W had not addressed the father’s lack of commitment to the care of the children.
The Independent Children’s Lawyer, Ms Youseff, supported the father’s proposal over that of the mother, certainly until the mother has fully recovered. She conceded that the situation had come a long way, in that [X] was now attending school and his anxiety had improved. [Y]’s relationship with his father and his paternal grandfather has also improved.
Ms Youseff submitted that both parents want the boys to return to the mother’s care, as do the boys themselves. If the current were to be upset there would be a setback. The mother needed the opportunity to recover. The option of having the mother back in the home had been tried and had not worked.
However, the Independent Children’s Lawyer supported an arrangement whereby the mother could have overnight time with the children on alternate weekends, supervised by her parents.
The Relevant Law
I set out the law applicable to this matter in the earlier interim decision (Austin & Austin[9]) at paragraphs [60]-[63]. It needs hardly to be said that the best interests of the children remain the paramount consideration and there is a need to protect them from physical or psychological harm.
[9] [2010] FMCAfam 1461
When making an interim order, which is the case here, the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them will apply, unless the Court considers that it would not be appropriate for the presumption to be applied when making that order. I am no longer of the view that it would not be appropriate for the presumption to be applied, in light of the mother’s progress towards recovery. The matter will be reconsidered at the final hearing in November (see s.61DB) but, for the time being, I am satisfied that the parties should have equal shared parental responsibility for the children.
Conclusions
It is clear that the mother has made progress in dealing with the issue of her drinking and that her parents have made prodigious efforts to support her and look after their grandchildren over the past half year or so. It has been a strain on the maternal grandparents.
However, in my view it is premature for the mother to move permanently back in to the house at Property W. Clearly, the boys are missing their mother and would like her back in the home permanently. The time for that should be when the mother has managed to keep her drinking under control. Dr W considers that, essentially, it is too early to say that this stage has been reached.
The Independent Children’s Lawyer does not support the mother’s proposal at this stage, and her cautious approach is understandable and, in my view, appropriate. It is concerning that Dr W suspects that the mother may have changed her drinking pattern to fit around the urine testing. That may be speculative on his part, and perhaps a harsh judgment, but I am certainly of the view that urine testing should take place at least twice a week, on random occasions. The Independent Children’s Lawyer might well consider, with respect, that urine testing on three occasions each week would be desirable and a safeguard for the boys.
One concern about the father’s proposal is that [X] is still opposed to spending time with his father and is unlikely to cooperate in any arrangement that would see both boys spending time in his care.
[Y], on the other hand, appears to have benefited greatly from spending time more time with his father. He appears from both of Dr W’s reports to have a need to spend time with his father and his relationship with his father appears to be a warm and loving one. This does not mean that he is alienated from his mother, far from it, as he described her to Dr W as “the best mother”.[10] He wants things to get back to normal and for his mother to come home.
[10] Dr W’s Report at 23
The father is in the difficult position of living and working in Hong Kong and attempting to look after his children’s welfare by “remote control”. He is travelling between Hong Kong and Sydney more frequently and is telephoning [Y] on a regular basis, which [Y] clearly appreciates. [Y] is obviously benefiting from having his father around more frequently.
[X] remains estranged from his father.
I have considered the orders proposed by the father and by the mother. I have considered the recommendations of the Independent Children’s Lawyer.
It is too early for the mother to move back in to the home at
Property W on a full time basis. However, it would be beneficial for her to spend more time with the boys on a regular basis. That course would certainly be to their liking and would possibly take some of the strain off her parents.
I consider it would be in the children’s best interests if the mother were to spend more time with them on weekdays during school term, from 4:00 pm to 8:00 pm each afternoon. The boys are attending school during the day, and they would no doubt be pleased to have their mother there in the evenings to spend time with them, prepare their evening meal and assist with their homework.
I also propose to follow the recommendation of the Independent Children’s Lawyer that the mother could spend alternate weekends with the children, including staying overnight on the Saturday night. This may help to reduce the children’s anxiety. If this arrangement were to work without problems, then consideration could be given to the mother spending the Friday night at [W] as well. This will very much depend on her, however. The incentive to spend more time with the boys may assist the mother in her resolve to abstain from alcohol.
The mother’s proposal for block time with the children in the coming school holidays is worth considering, and the father has also proposed an arrangement for block time in the school holidays.
The mother must abstain from alcohol. The need for supervision remains, as does the need for urine testing on a frequent basis, which should be at least twice a week and preferably more often.
The father will need to maintain his visits to Sydney and his frequent telephone contact. The benefit to [Y], at least, from spending more time with his father is clear. The benefit to [Y] of having a meaningful relationship with his father as well as his mother is apparent from the reports of Dr W, and the positive effect on him of spending more time with his father amply justifies the father’s time and expense in travelling to Sydney on a regular basis.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 22 June 2011
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