AUSTIN & AUSTIN
[2010] FMCAfam 1461
•15 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AUSTIN & AUSTIN | [2010] FMCAfam 1461 |
| FAMILY LAW – Children – Interim parenting Orders – best interests of the children – allegations of abuse – family violence – alcohol issues. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65Y, 68L Federal Magistrates Court Rules 2001 r. 15.08 |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 |
| Applicant: | MR AUSTIN |
| Respondent: | MS AUSTIN |
| File Number: | SYC 7002/2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 December 2010 |
| Date of Last Submission: | 13 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Rees SC |
| Solicitors for the Applicant: | Watts McCray |
| Counsel for the Respondent: | Ms Hausman |
| Solicitors for the Respondent: | Broun Abrahams Burreket |
| Solicitor for the Independent Children’s Lawyer: | Ms Youseff |
| Solicitors for the Independent Children’s Lawyer: | Marsdens Law Group |
ORDERS UNTIL FURTHER ORDER
That the children of the marriage [X] born [in] 1995 and [Y] born [in] 1997 are to spend time with the Applicant father and the paternal grandfather from 19 December 2010 until 4 January 2011.
That the father and the paternal grandfather are to return the children [X] and [Y] to Sydney for two (2) days and one (1) night during the period specified in Order (1) above to spend time with the Respondent mother provided that during such time a member of the mother’s family is present with the children.
That the mother is permitted to remove the children [X] and [Y] from Australia for the purpose of travelling to New Zealand between
4 January and 17 January 2011.
Should the mother be staying in New Zealand on 4 January 2011 the father is to make all necessary arrangements for the children [X] and [Y] to travel to New Zealand to be delivered to the [property] of the mother’s parents Mr B and Ms B on 4 January 2011.
The mother must return the children [X] and [Y] to Australia by
17 January 2011.
The mother’s care of the children in New Zealand must generally be supervised by one or other of the mother’s parents Mr B and Ms B.
From and after the date of these orders the mother must undertake a chain of custody urinalysis testing procedure for the purpose of testing for alcohol as directed by Dr. K or the Independent Children’s Lawyer.
The mother is to authorise and direct Dr K to notify the father’s solicitors and the Independent Children’s Lawyer within twelve (12) hours of the receipt of an adverse urinalysis report.
Leave is granted for the report and the supplementary report of Dr W to be released to Dr R, the psychiatrist for the child [X], and to Dr K, the psychiatrist for the mother.
THE COURT NOTES that the child [X] may choose not to spend time with the father.
The application is adjourned to 18 January 2011 for further mention at 10.00 am.
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 7002/2010
| MR AUSTIN |
Applicant
And
| MS AUSTIN |
Respondent
REASONS FOR JUDGMENT
Application
The father of two boys has commenced proceedings against the mother, claiming that she is unable to care for them properly because of her excessive drinking. There are allegations of abuse.
The two boys are [X], who was born [in] 1995, and [Y], who was born [in] 1997.
The mother denies these claims and seeks that the father’s interim application should be dismissed. She wants to take the children to New Zealand for a holiday with her parents.
Orders Sought
The interim orders sought by the father (summarised) are that:
a)[Y] should live with the father and the paternal grandfather from 15th December 2010;
b)That the father and grandfather should return [Y] to Sydney for two days and one night each week during January 2011 to spend time with the mother provided that a member of her family is present;
c)From the commencement of the first school term [Y] should live with the father and paternal grandfather at the premises in [omitted] and spend one afternoon each week with the mother until 8.00 pm provided that a member of the mother’s family is present;
d)That [X] should live with the father and spend time with the mother in the same way as is provided for [Y], noting that [X] may choose not to spend time with his father;
e)That the order made on 25th July 2007 that the children live with the mother be suspended; and
f)That the orders made on 27th August 2009 providing that the children should spend time with father be suspended.
The orders sought by the mother (summarised) are that:
a)The mother may be permitted to remove [X] and [Y] to New Zealand during the school Christmas holiday period so that:
i)The father spends time with the children from 19th to 25th December 2010 and for a further period in January 2011, with the father being required to deliver the boys to the mother’s parents’ [property] in New Zealand in January;
ii)The mother’s time with the children in New Zealand would commence on 25th December; and
iii)Whilst the children are in New Zealand their time with their mother should generally be supervised by one or other of her parents, Mr B and Ms B.
b)That leave be granted for a report by Dr W prepared for the purposes of these proceedings to be released to [X]’ psychiatrist, Dr R, and the mother’s psychiatrist, Dr K.
c)The mother should undertake a chain of urinalysis testing for alcohol as directed by Dr K and the Independent Children’s Lawyer; and
d)The mother should authorise Dr K to notify the father’s solicitors and the Independent Children’s Lawyer within twelve hours of the receipt of any adverse urinalysis report.
The Independent Children’s Lawyer supported the immediate proposal by the mother that the children should spend the holiday time in New Zealand, although she made it clear that this was not to say that she supported the mother’s application long-term.
Areas of Agreement and Issues in Dispute
There was no agreement between the parties on the immediate issues. The father is of the view that the mother cannot care for the children because of her uncontrolled drinking, which the mother denies.
Background
The applicant father is 45 years of age. He was born [in] 1965. The mother is now 42 years of age. She was born [in] 1968.
The parties were married [in] 1994. There are two children of the marriage, [X], born [in] 1995, and [Y], who was born [in] 1997. They normally live with the mother.
The parties separated on 20th April 2007 and their divorce became final on 30th November 2009.
The father has lived in worked in Hong Kong since 2001. He has a residence in [omitted], Hong Kong, and another in one of the Eastern suburbs of Sydney. When the parties separated in 2007, the mother moved back to Sydney with the children. The father deposed in his initiating affidavit that he has travelled to Australia approximately
13 times each year since he and the mother separated.[1]
[1] Affidavit of Mr Austin 4.11.2010 at paragraph [7]
The mother lives in another suburb of Sydney.
Both children attend [C] School, in Sydney. The older boy, [X], aged 15, has been attending as a weekly boarder with the option of either remaining at school or going home on the weekend. The younger boy, [Y], aged 13, has been attending school on a day basis, but the father deposes that there is a place for him as a boarder from the commencement of the 2011 school year.
[X] has not been attending school since 6th August 2010. He has been diagnosed with an anxiety disorder by a psychiatrist, Dr R.[2]
[2] Affidavit of Ms Austin 21.11.2010 at paragraph [15]
[Y] has been described by his father as having “some special developmental and learning needs”[3] and by his mother as “a special needs child having been diagnosed with Attention Deficit Disorder in 2001 and has learning difficulties which affect his literacy and numeracy”.[4]
[3] Affidavit of Mr Austin at [6]
[4] Affidavit of Ms Austin at [[9]
There have been earlier proceedings between the parties.
On 25th July 2007 the parties entered into consent orders in the Family Court at Sydney relating to parenting, property, child support and adult child maintenance.[5] Only the parenting orders are relevant for the purposes of this application. Those orders provided that:
a)The children should live with the mother;
b)The children should spend time with the father as agreed between them; and
c)The parties should share the responsibility for making decisions about making decisions about major long-term issues affecting the care, welfare and development of the children.
[5] Austin & Austin SYC 3935 of 2007
The father commenced proceedings against the mother in this Court on 19th February 2009. Those proceedings were finalised by consent orders entered into on 27th August 2009. Those orders provided that:
a)The earlier orders for the children to spend time with the father and for the parties to share the responsibility for making decisions about major long-term issues affecting the care, welfare and development of the children were discharged;
b)The parties were to have equal shared parental responsibility for the children;
c)The children should spend block periods of time with the father during the [C] School holiday periods;
d)The parties were able to take the children interstate or overseas on six weeks notice to the other party;
e)The children would spend time with the father in December in alternating years, with the changeover being at 3.00 pm on Christmas Day;
f)The father would collect the children form the mother’s home or the home of the maternal grandparents in New Zealand if they were holidaying there;
g)The parties were permitted under the provisions of s.65Y(2)(b) to take the children out of the Commonwealth of Australia on provision to the other party of relevant information such as itineraries and telephone numbers not less than 14 days prior to departure;
h)The parties were restrained by injunction from permanently relocating the children’s place of residence outside the Commonwealth of Australia;
i)The parties were restrained by injunction from removing the children from their current schools and enrolling them in any other schools;
j)The father would purchase a mobile telephone for each of the children so that he could speak to them each day;
k)Other ancillary arrangements about telephone communication; and
l)The mother would ensure that the children had six-monthly general health and dental check-ups.
The father commenced these proceedings by filing an application and an affidavit in support on 5th November 2010. He sought on an interim basis to suspend the earlier orders so as to provide that:
a)He should have sole parental responsibility for the children;
b)The children should live with him or the paternal grandfather;
c)The mother should spend time with the children on alternate weekends under supervision of the paternal grandfather or one or other of the maternal grandparents;
d)The mother should be restrained from consuming alcohol;
e)The mother should submit to Carbohydrate Deficient Transferrin testing through a pathology service;
f)The mother should obtain a written report from her treating psychiatrist, Dr K and provide it to the father;
g)The mother should attend Dr K for treatment as frequently as he recommended;
h)The mother should enrol in and attend Alcoholics Anonymous; and
i)The mother should be restrained from consuming illicit substances or prescription drugs otherwise than as prescribed.
The reasons for this application stemmed from an incident on
28th August 2010 which led to the Police obtaining an Interim Apprehended Violence Order against the mother in favour of the children [X] and [Y]. The mother was directed to attend the [omitted] Local Court on 17th March 2011.[6]
[6] Affidavit of Mr Austin 4.11.2010 at Annexure “C”
According to the father’s affidavit, the child [X] had telephoned the mother’s brother, Mr D, and said that the mother was screaming at him, had “shoved him around the house and verbally abused him”.[7] Mr D called the Department of Human Services, who called the police. [X] was interviewed at the [omitted] Police Station on 2nd September 2010 in the presence of his maternal grandfather, Mr B. A copy of [X]’s statement to the police forms Annexure “D” to the father’s affidavit of 4th November 2010.
[7] Ibid at [13]
In his statement [X] told the interviewing officer, Constable T:
A8: Um, well this weekend my Mum was really intoxicated and she was being verbally abusive and this has happened quite often and normally when this happens I call up one of my uncles. I have two uncles, [Mr A] or [Mr D]. Then I stay with one of them for the night and I leave a note for Mum. And so as I said this has happened quite a lot and my uncles, my grandad and my whole family actually know this is going on and they have told me that mum’s problem has been going on since before I was born…
A9: um well it varies from incident to incident. It depends on how stressed she is and what problems have been happening recently. My Dad divorced my mum because of it and the Hong Kong Police were involved in that. My Mum blames me for just about every problem she has under the sun whether it be money, the divorce, whether she lost her wallet, whatever it is she will blame me. She has told me that I’m a horrible son and she just gives me shit…
A10: Like for example, that night I was trying to avoid her. So when she starts screaming when she’s had enough I just try to avoid her. When someone’s that intoxicated you can’t reason with them. And so she took some food out of the fridge, ate half of it, then put the other half of it on the floor outside my room and told me to put it in the bin cause she knew I would have to walk past her so that she could start shouting at me again. When I asked her why she said ‘because your Dad left me and he’s a piece of shit and so you’re a piece of shit”. It feels like she drinks as an excuse to fight and get angry.
[X] told Constable T that his mother would combine “a ridiculous amount of alcohol” with prescription medication and very little food, which he described as “a pretty nasty combination”.
When asked if anything else happened when his mother was abusive and yelling at him, [X] said:
A14: Well, anything else wouldn’t be as often, it’s mostly verbal but very rarely it’s only when it’s really bad she has hit me. It’s not like a punch or anything it’s more of a push or she’s waving her arms about at me. I know she’s not trying to hurt me or anything, she can’t even remember it the next day. It’s like sometimes she’ll get drunk and pass out on the couch and I’ll have to put my younger brother to bed it’s OK, but other times she’ll get, come home so drunk she can’t even get the key in the door and I try to help her but she gets really angry and pushes me out of the way…
A15: I’ve never been hospitalised for that cause normally she’s so drunk she can’t land a hit.
[X] specifically described the events of Saturday 28th August:
Um well, she got very very drunk and she was stressed she was doing some sort of course for which she had a lot of homework so she was drinking and she started shouting at me shoving me around and being a nuisance multiple times. I tried just to leave her alone and she kept on following me around saying things like ‘You’re the worst thing that’s ever happened to me, you’re a horrible person you can go and live with your Dad or go to foster care’ and lots of swearing and generally treating me like shit and this started about 11 o’clock in the evening…
[X] also said:
A26; ‘You’re a horrible son, I don’t love you, you’re as bad as your Dad, you’re as bad as that scumbag dad of yours who cheated on me, you can go into foster care or live with your dad for all I care’…
A27: It was more like pushing me and shoving me around like that. She was pretty intoxicated so she couldn’t really do much.
When asked how often these kinds of things happened, [X] said:
A29: Um, it depends, sometimes I’m at boarding school but almost always every weekend and when I am at home through the week it happens. I’m not sure how much it happens to my little brother when I’m at boarding school.
The father deposed that [X] has been under the care of a psychologist, Ms S, and has been under the care of a psychiatrist, Dr R, since August 2010.[8]
[8] Affidavit of Mr Austin 4.11.2010 at [17]-[18]
He further deposed that the mother agreed to admit herself to the Sydney Clinic on 20th September 2010 for treatment for her drug dependence but was discharged the next day.[9]
[9] Ibid at [22]
The father deposed that on 16th October 2010 at 1:15 am he received an SMS message from [Y]’s mobile telephone which read:
Dad mum at 1 in the morning waken me with the brightens of her phone then kept me up and then told of that she didn’t care about me then after that hit me.[10]
[10] Ibid at [31]
He later received a message from [X] saying that [Y] was fine and everything was under control. Later, on the weekend of 23rd and 24th October the father deposed that the boys told him words to the effect of:
‘It was the usual situation…Mum was drinking and taking tablets…Grandad was there but he was asleep. Mum apologised 100 times the next day and was sobbing’.[11]
[11] Ibid at [33]
The mother filed a response and affidavit in support on 22nd November 2010.
The mother denied in her affidavit of 21st November 2010 that she had been physically, emotionally or verbally abusive to the children.[12] It is her proposal that she should be permitted to relocate the children’s residence to New Zealand, where her parents and sister live. She feels very isolated in Sydney.[13] She stated that the father, instead of taking a position with is employer that would have facilitated his return to Sydney, had chosen instead to sign an eight year contract with another entity that would require him to be permanently based in Hong Kong with frequent travel to London and New York.[14]
[12] Affidavit of Ms Austin 21.11.2010 at paragraph [36]
[13] Ibid at [37]
[14] Ibid at [39]
The mother also deposed that the relationship between the father and [X] is “strained” and:
[X] regularly and persistently refuses to spend time with
Mr Austin…[X]’s ongoing mental health issues are only exacerbated by the continued pressure from Mr Austin to spend time with [X] irrespective of [X]’s express wish not to do so.[15]
[15] Ibid at [44(b)]
The application came before the Court on 23rd November 2010. An order was made under s.68L of the Family Law Act that the children’s interests should be independently represented. An order was also made under Rule 15.08 that Dr. W should be appointed as a single expert to prepare a report.
Dr W prepared a report dated 9th December 2010 which was released the following day. He also prepared a supplementary report dated
12th December 2010, which was released on 13th December 2010.
The Single Expert’s Report and Supplementary Report
Dr W interviewed the following people for the purpose of his reports:
a)The mother, both alone and with the two children;
b)The father, both alone and with the two children;
c)The children, separately and together;
d)The maternal grandparents, Mr and Ms B; and
e)The paternal grandfather, Mr Austin, senior.
Dr W expressed a number of conclusions. He described [X] as “a very anxious, insecure boy who is highly conflicted”.[16] He was extremely antipathetic towards his father and refused to see him during the interview process, blaming him for having caused all the problems, including the current proceedings. Dr W expressed concern about [X]’s absence from school. He described both boys as having an anxious attachment to their mother:
…probably most consistent with an ambivalent relationship based on the one hand on their strong attachment to her as their primary care giver, but on the other hand a vigilance and sensitivity associated with her behaviour in general and towards them when she has been intoxicated. At the moment both children seem to be in a state of relative denial about this, with [X] being most evidently very defensive and protective of her.[17]
[16] Dr W Report 9.12.2010 at page 39
[17] Ibid at page 41
Whilst [Y] had complained of having a headache and not wanting to participate in the interview process, his attitude changed markedly when he saw his father. Dr W reported:
…and by the time he had spent three quarters of an hour with his father and grandfather in the concourse beneath my office, he was in very good spirits and was quite demonstrably affectionate with his father, to the point that he was almost clinging. It was difficult to be certain as to the full state of [Y]’s relationship with his father, but certainly one aspect of it is that he seems to have quite an affectionate relationship with him and I think he probably sees his father as a relative island of stability and low stress at the moment.[18]
[18] Ibid
Both boys expressed the wish to live with their mother.
Dr W’s assessment of the mother was that she had a long standing drinking problem:
Overall I formed the view that Ms Austin has a significant drinking problem, and that it has persisted this year at a significantly higher level than she was prepared to admit. Her presentation seemed to be consistent with a high degree of evasiveness about this and a fairly typical pattern of rationalisation and shifting the blame. I formed the view that she does not have full insight into the nature and consequences of this and that she has not yet fully committed to change.[19]
[19] Dr W’s Report at page 44
Dr W expressed the view that the mother’s drinking problem was not under satisfactory and enduing control and there was a significant risk of relapse.
He described [X] as “a very troubled boy” and noted that children whom anxiety is keeping away from school are extremely difficult to reintegrate back into school. Dr W was not optimistic about the chances of success of moving to New Zealand and attempting to start [X] at school there, pointing out that it will be difficult in trying to reintegrate him into a school where he is well known, “much less trying to start him at school where he is not known at all”.[20]
[20] Ibid at page 46
He took the view that both boys would probably be better off not living with their mother at the present time, but noted that [X] absolutely rejected spending any time with his father, much less living with him.
Submissions
The Court has had the benefit of very perceptive submissions from counsel for the parties and from the Independent Children’s Lawyer.
Senior counsel for the father, Ms Rees, submitted that her client’s proposal was that the children would travel with him to Noosa the following day and stay at the paternal grandfather’s home.[21] The father is staying in Australia until 4th January, when he will return to Hong Kong. What the father then proposes is that the children stay with their grandfather either in Noosa or in the residence in Sydney, spending some periods of time with their mother during that time. They would stay there until the beginning of the school term.
[21] The paternal grandmother is deceased
One difficulty, of course, as I mentioned at the time, was that the child [X] appeared to be implacably opposed to spending any time with his father. However, Ms Rees told the Court that the father believed that the two grandfathers might be able to persuade [X] to participate in this arrangement. If [X] were not to be persuaded, then it was submitted that at least [Y] should be subject to that arrangement. It was conceded that if [X] were not to participate, then the father’s options in relation to him would become more limited. The father understood that if [X] were adamant that he would not co-operate, there was nothing that he could do.
Counsel for the mother, Ms Hausman, submitted a report from Dr K, the mother’s psychiatrist, showing that the mother’s latest results indicated a very significant reduction in the mother’s alcohol intake.
The mother was proposing that the father would spend time with the boys from Sunday 19th December until 3.00 pm on Christmas Day, and then for a period of time in January, as was set out in the consent orders. What the mother wished to do was then to take the boys to
New Zealand with her, to spend time with her parents. Ms Hausman submitted that there was nothing in the evidence that raised significant concerns about the tow boys staying in the care of their mother if it was under the supervision of the maternal grandparents.
It was further submitted that there was no urgency in making the extreme application that the father proposed, to separate the boys from their mother, without even having the benefit of testing the evidence of Dr W or hearing from Dr R. The submission was that it would be better for the boys over the forthcoming eight week period to spend time with their maternal family in New Zealand. There was nothing urgent before the Court that called for the boys to be removed from the care of their mother, their primary caregiver, which would be a draconian step.
The Independent Children’s lawyer, Ms Youseff, told the Court that the two boys had expressed very clear views to her. The Court needed to proceed with caution. [X] was very clear in his views. He was supporting his mother, regardless of what her faults, which has put him under a considerable burden. He is a very troubled boy who has not been to school for all of Term 4. There is a need to assist [X] without “losing him altogether”; there is a risk that the Court would not be able to put any orders in place that would gain his confidence in the process, in his representative and in his parents. He has taken on a protective role for the mother which needs to stop. He should not be made responsible and should not be her guardian.
[Y], she submitted, was a little bit more ambivalent and would be more able to adapt to any set of orders. The difficulty would be in adopting a course that would separate [X] and [Y], a course she did not support. The boys support one another and derive strength from one another.
The issue before the Court was solely in relation to the Christmas and January school holidays. Ms Youseff submitted that Dr R needed to be asked how any arrangement would impact on [X]. Dr W’s Report and supplementary report needed to be put to Dr R.
If the mother’s reports about her alcohol consumption continue to be provided randomly and weekly whilst the mother is away, then the Independent Children’s Lawyer would support the children spending time with the maternal family in New Zealand. It would have a detrimental effect if the boys did not spend time with their maternal extended family in New Zealand, which they expected to do. It would, she submitted, have a negative impact on their relationship with their father, as well.
Ms Rees of counsel further submitted that the report of Ms S, psychologist, showed that the current level of stress was intolerable for [X]. He needed to feel safe, which would not be possible if his mother’s alcohol addiction continued.
One of the father’s concerns was that if [X] were to go to
New Zealand, even though it were only for a holiday, then he might well refuse to return to Australia. Dr W placed great importance on [X] re-starting school at [C], in Sydney. [X] had told Dr R that he wanted to live with his grandparents in New Zealand.
As for [Y], it was submitted that he probably sees his father as a relative island of stability, as Dr W observed. It was possible that he might feel safer under his father’s supervision than he appeared to feel under that of his mother. The father appreciated that “forcing the issue” with [X] spending time with him would be fruitless, but if both of the children cannot be treated the same way, then it would appear that they must be separated, for [Y]’s sake. Dr W had suggested that there would be an alleviation of pressure on [X] if he did not also have the responsibility of looking after [Y] as well as his mother. Whilst [X] is rejecting of his father, Dr W was of the view that [X]’s living with his mother whilst she was recovering was risky, because he has a dysfunctional relationship with is mother that centres on a great deal of over-protectiveness and taking responsibility for her.
The orders proposed by the father would provide that if either of the children were not living with their mother, then they would be seeing her regularly. If the boys were not living in the same household, Dr W was of the view that they should be reunited wherever possible.
Ms Rees confirmed that her client was returning to Hong Kong on
4th January 2011.
Relevant Considerations
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA). In order to determine what is in children’s best interests, the Court must consider:
a)The primary considerations set out in s.60CC(2) of the Act;
b)The additional considerations set out in s.60CC(3);
c)The extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent; and
d)Where the child’s parents have separated, events that have happened and circumstances that have existed, since the separation occurred.
I have done so in this case.
The Court must also consider the presumption in s.61DA of the Act that it is in children’s best interests for their parents to have equal shared parental responsibility for them, and consider whether that presumption should apply in the particular circumstances of the case (see Goode & Goode[22]). In these circumstances, where the Court is making interim orders that are to have a short-term effect, I am not satisfied that it is appropriate for the presumption to be applied.
[22] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422
In any event, when making final parenting orders, the Court must disregard the allocation of parental responsibility made in any interim orders (s.61DB). This is more a matter for consideration at the final hearing.
Conclusions
The Court is dealing with two troubled boys who appear to have a dysfunctional relationship with their mother. The older boy, [X], currently has an antagonistic relationship towards his father, although [Y] obviously benefits from being with his father.
The father himself normally resides and works in Hong Kong and visits Australia frequently, for what are usually short visits.
The boys’ mother has had a history of addiction to alcohol which seriously affects her relationship with her sons. [X], in particular, apparently feels responsible for her and for his younger brother as well. Dr W does not believe that the mother has fully come to terms with her alcohol problem, in that she is still attempting to minimise its effect and is yet to come to terms with the extent of her alcohol dependence.
The Court must make orders to protect the children from physical and psychological harm. The source of the harm is the mother’s behaviour when she is under the influence of alcohol.
The Court has evidence of the views expressed by the boys. This evidence comes from the report of Dr W and the statements made by the two boys to the Independent Children’s Lawyer. The boys are old enough for their views to be given weight, although Dr W has reservations about the maturity of the boys’ views in the situation in which they find themselves.
The father has commenced these proceedings because of the behaviour of the mother. Whilst [X] now resents his father’s actions in commencing these proceedings, it seems apparent that the mother’s drinking has worsened, which led to the incidents of the 28th August. There is an interim apprehended violence order in force.
Each parent has proffered interim orders intended to deal with the issue of what is best for the boys over the Christmas/January school holiday period. Each plan has advantages and disadvantages, and neither appears to offer the perfect solution.
The father suggests that the boys should live with him and his father, the boys’ paternal grandfather, immediately and continue to do so, either at the grandfather’s home at Noosa or the father’s home in Sydney, with weekly periods of two days and a night with the mother, under the supervision of a member of the mother’s family.
One obvious difficulty is the father’s plan to return to Hong Kong on 4th January, thereby leaving the boys’ grandfather to look after them. Whilst there is much to be said for [Y], at least, in spending a period of almost three weeks with his father, because he obviously has positive feelings for his father, the father is then due to depart. Thus, the responsibility will fall onto the paternal grandfather, with the father exercising the parenting by “remote control”, so to speak.
The other difficulty in the father’s plan comes from [X] himself, who made it clear to Dr W that he wanted nothing to do with his father. There is no guarantee that [X] would cooperate at all. The father acknowledges this problem, but submits that the proposal might at least benefit [Y].
The Independent Children’s Lawyer does not support this proposal, and is concerned about separating the two boys, who support each other.
The mother’s proposal is that the boys would stay with her until
19th December, when the father would collect them as envisaged by the existing arrangement. They would stay with him until the afternoon of Christmas Day, and they would then join their mother in New Zealand, where she would stay with her parents. Her time with the children would be supervised by her mother or her father.
The boys’ father could also spend time with the boys in January, by collecting them from and returning them to the maternal grandparents’ [property] in New Zealand.
The mother also submits that Dr W’s reports should be released to [X]’s psychiatrist, Dr R, and her psychiatrist, Dr K. I have no difficulty with that proposed order at all; it seems eminently sensible and of obvious benefit.
There are difficulties with the mother’s proposal, too. To some extent, it fails to meet the seriousness of the situation, which appears to have been brought about by the mother’s drinking. It imposes a responsibility on the mother’s parents to supervise her and look after their grandsons. There is no evidence to suggest that that they would not meet that responsibility. The maternal grandparents appear to be fully aware of the extent of their daughter’s alcohol dependence.
The mother’s proposal does not appear to give [Y] sufficient time with his father, from whom he appears to draw a great deal of comfort. The report of Dr W painted a very clear picture of [Y]’s positive interaction with his father.
Counsel for the father has expressed a concern that [X] may refuse to return to Australia if he is permitted to travel to New Zealand. I am not persuaded that this is of such concern that the child should not be permitted to go. The boys must return to Australia, and I am confident that their grandparents will act responsibly in this regard.
[X] has to return to school. His anxiety has kept him out of school for all of Term 4. This state of affairs cannot continue. The boy’s education will be severely hampered if he remains away from school for too much longer. Dr W has expressed the view that [X] should go back to school in Sydney, rather than starting again in New Zealand.
What I propose to do is draw on the benefits offered by each of the proposals whilst attempting to avoid the pitfalls.
The boys should spend time with their father and grandfather and other members of their paternal extended family from the 19th December, the time when they were scheduled to go with their father. However, instead of going back to their mother on Christmas Day, they should stay with their father until he returns to Hong Kong on 4th January 2011. This arrangement should give [Y], and [X], should he be persuaded to cooperate, a break from the stress of living with their mother, whose parenting ability is hampered by her alcohol dependence.
The mother may, of course, leave for New Zealand as soon as the boys have gone to their father. She has referred to feeling isolated in Sydney, and a period of a number of weeks with her parents and other family members may assist her in dealing with the stress of this matter.
The boys can join the mother in New Zealand in January and enjoy a holiday with their grandparents for a couple of weeks. The grandparents will need to supervise the boys and do what they can to stop the mother from drinking.
The mother is going to have to submit to regular urinalysis as directed by her psychiatrist and the Independent Children’s Lawyer.
It is also important for the children to return to Australia before school starts.
This entire matter will need to be reviewed in January and can be mentioned before me on Tuesday 18th January 2011.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 10 January 2011