BEEN & BEEN

[2020] FamCA 698

FAMILY COURT OF AUSTRALIA

BEEN & BEEN [2020] FamCA 698

FAMILY LAW – PARENTING – No appearance by the mother – undefended final hearing – where the mother has not had consistent time with the children since September 2015 – where the mother appears to have a substantial alcohol addiction – where spending time with the mother could put the children at risk of serious emotional or psychological harm or neglect – where, notwithstanding risk, the father accepts that the children should have a meaningful relationship with the mother provided there are safeguards – orders made for the children to live with the father and spend time with the mother on certain conditions

Family Law Act 1975 (Cth) ss 60CC, 61DA

Banks & Banks (2015) FLC 93-637
Tibb & Sheean (2018) 58 Fam LR 351

APPLICANT: Ms Been

RESPONDENT: Mr Been

INDEPENDENT CHILDREN’S LAWYER: Legal Aid

FILE NUMBER: SYC 5744 of 2015

DATE DELIVERED: 10 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 10 August 2020

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: Mr Been

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid

Orders

1. Orders be made in accordance with Exhibit “A” (the father’s Proposed Minute of Orders), as follows:

   1)That the father have sole parental responsibility for the children X born … 2005, and Y born … 2008

   2)That the Father inform the Mother of all major long-term decisions made by the Father in the exercise of parental responsibility within seven (7) days of such decision being made.

   3)That the father provide the Mother with details of:

   a)Any extra-curricular activities engaged in by the children; and

   b)Any medical or educational service provider, providing therapy or assistance to either of the children.

   4)This order operates as the authority of the Father, for the Mother to obtain any information she may seek in respect of any medical, or educational services provided to the children and the children’s progress and engagement in any extra-curricular activity undertaken by the children.

   5)The Children live with the Father

   6)That subject to orders 9 and 10 and the Mother having previously provided clean urine, blood and or CDT tests which evidence no probable excessive use of alcohol, the Mother spend time with the children as follows:

   a)   For the second weekend of each month during school terms from 8am to 8pm on Saturday and Sunday.

   b)     On Wednesday and Friday afternoons each week, from 4pm to 8pm.

   c)   For the first half of the school holiday period, to occur in or around the town in which the Children reside, subject to Order 7 herein.

   d)     On Mother’s Day when the children are not ordinarily in the Mother’s care from 8am – 8pm.

   e)   On the Children’s Birthdays as follows:

   i)   On school days when the children are not ordinarily in the Mother’s care, for a period of four hours from 4.00pm to 8pm on each of the children’s birthdays; and

   ii)     On weekends or public holidays when the children are not ordinarily in the Mother’s care from 8am – 8pm on each of the Children’s birthdays.

   f)   Such other time as agreed between the parents in writing.

   7)In relation to time during the Christmas period, that the Father spend time with the Children:

   a)   From the end of school to 4.30pm on Boxing day in 2020 and each alternate year thereafter; and

   b)     From 4.30pm on Boxing day for a period of 14 days, and each alternate year thereafter.

   8)That the children shall have telephone communication with the Mother at their discretion.

   9)That the Mother be and is hereby restrained from consuming alcohol for a period of 24 hours prior to and at all times when the children are spending time with her or having telephone communications with her.

   10)That the Mother do all things necessary to continue full treatment for her alcohol abuse including but not limited to:

   a)   Do all things and sign all documents as may be necessary to engage with and/or continue to engage with her therapeutic care at any rehabilitation, including but not limited to long term rehabilitation, by any alcohol counsellor or any other relevant practitioner as recommended by her General Practitioner and/or specialist Psychologist, until such time as the relevant practitioner certifies in writing that the Mother is no longer in need of care.

   b)     Keep the Father informed, in writing, of the name and contact details of the General Practitioner, specialist Psychologist, rehabilitation service and/or alcohol counsellor, or any other relevant Practitioner.

   c)   Irrevocably authorise and instruct the General Practitioner, specialist psychologist, rehabilitation service and / or alcohol counsellor, or any other relevant pratitioner, in writing to report to the Father in writing, at the Father’s request for a period of 12 months and not more frequently than once every month, about whether the Mother is attending all appointments scheduled by her treating Psychologist, the Mother’s current alcohol abuse recovery status, the nature of any medication, and her prognosis

   d)     Within 24 hours of being requested to do so by the Father for a period of 12 months and not more frequently than once every month, the Mother shall attend upon her General Practitioner for referral to a suitably qualified and experienced pathology service and shall submit to that service for the collection of blood for the purposes of liver function testing, including but not limited to specifically measuring GGT, MCV, ASV and ALT levels, with the results of such testing to be made available to the Father as soon as they become available.

   e)   Within 24 hours of being requested to do so by the Father for a period of 12 months and not more frequently than once every month, the Mother shall submit to a urine test for the screening of carbohydrate deficient transferrin and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ4308:2001, with the results of such testing to be made available to the Father as soon as they become available.

   11)Each party keep the other advised at all times of their residential address, mobile phone number and emergency contact number, and provide the other party with any new information within twenty-four (24) hours of any change of residential address, mobile telephone number and / or emergency contact number.

   FURTHER IT IS ORDERED:

   12)Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Been & Been has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5744 of 2015

Ms Been

Applicant

And

Mr Been

Respondent

EX TEMPORE REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

1. I will deliver judgement now. This is an oral judgement in proceedings SYC5744 of 2015. These are parenting proceedings in relation to two children: X, born in 2005, who is presently 14 years old, and Y, born in 2008, who is presently 12 years old.

2. The applicant in the proceedings is the child’s mother, Ms Been (“the mother”). As I will shortly describe, the mother has not participated in proceedings for some time and was not present at Court via Microsoft Teams on 10 August 2020. 

3. The respondent, Mr Been (“the father”), seeks orders which are set out in a document entitled “Final Orders sought by you the respondent”, which I will mark Exhibit “A”. In summary, the father seeks orders for sole parental responsibility, and that the children live with him and spend time with the mother in accordance with a regime of a proposed set of orders.

The mother’s absence

1. The first question which should be addressed is whether it is appropriate to deal with the proceedings on a final basis, undefended in the absence of the mother.  

2. The Independent Children's Lawyer filed an Affidavit on 30 July 2020, setting out a history of the matter going back to late 2019, and attempts to contact the mother to seek her involvement in the proceedings, pursuant to Orders made by me during the first half of 2020. 

3. I take account of the following facts; on 16 December 2019, Legal Aid organised a mediation of the parenting dispute. The mother did not attend that mediation.  The matter first came before me on 26 March 2020, when it was listed for a First Day Less Adversarial Trial. The mother did not attend Court on that occasion.  On that date, orders were made adjourning the proceedings. 

4. I note that on 3 February 2020, the mother emailed my chambers, signifying that she consented to an adjournment of the proceedings which were then listed on 27 February 2020. From this I infer two things. One is that the email address used to contact the mother was a current email address, and she was aware of the proceedings being listed by contact through that email address. The second is that she knew that the matter was adjourned on 27 February 2020.  Consequently, I am left in no doubt on the evidence that the mother knew that the matter was listed on 26 March 2020 for a First Day Less Adversarial Trial but chose not to attend Court on that day. 

5. It is also relevant to record that on 17 February 2020, the mother emailed the Independent Children's Lawyer stating “I am available at convenience with the other party for mediation.  Please advise” (Affidavit of the father filed on 3 August 2020, Annexure “J”).

6. Despite signifying her willingness to be involved in mediation, according to the evidence of the Independent Children’s Lawyer, the Legal Aid conference organiser of the Family Dispute Unit was unable to engage the mother in the mediation process, and did not receive any response from the mother in relation to organising the mediation. As a result, on 24 June 2020, the conference organiser formed the view that she was unable to progress the matter further and closed the conference file. 

7. On 24 June 2020, the Independent Children’s Lawyer emailed my chambers and sought to have the matter re-listed pursuant to leave included in Orders made on 26 March 2020.  All parties, including the mother, were notified on 29 June 2020 that the matter was listed on 7 July 2020 for mention by telephone. On that occasion, the mother did not attend by telephone or by any other means, and Orders were made for the matter to be listed for final hearing on an undefended basis on 10 August 2020.  In accordance with Orders made on 7 July 2020, the Independent Children’s Lawyer took necessary steps to email the orders made to the mother at her operative email address. These orders clearly included the listing on 10 August 2020.  By email dated 8 July 2020, the mother responded to the Independent Children’s Lawyer in the following terms:

   The children were in my care for Y’s birthday from 9- 4.30pm.  X did not mention anything about a court hearing.  The last information I had was court was on the 20^th of August. [Affidavit of the Independent Children’s Lawyer filed on 30 July 2020, Annexure “ICL 3”].

8. From this, it is clear that the mother received the Independent Children’s Lawyer’s email of 8 July 2020, enclosing a sealed copy of the Orders made in 2020.  It is plain from the mother’s response that she did not seem to engage at all with the fact that there was a final hearing listed on 10 August 2020. For example, she did not seek any guidance from the Independent Children’s Lawyer about what she might do in relation to preparing herself for any such hearing. 

9. The Independent Children’s Lawyer emailed a letter to the mother on 10 July 2020. This email made clear, inter alia, that I had noted the mother’s non-attendance at the First Day Less Adversarial Trial on 26 March 2020, and that the mother had failed to take any steps to attend mediation. The penultimate paragraph of the Independent Children’s Lawyer letter states that:

   This means the matter will be dealt with in your absence and court orders will be made in your absence on 10 August 2020. [Affidavit of the Independent Children’s Lawyer filed on 30 July 2020, Annexure “ICL 4”].

10. The final paragraph states: “I strongly suggest you seek independent legal advice”.

11. On the basis of the evidence just recited by me, I am satisfied that the mother was well aware of the listing for undefended final hearing on 10 August 2020, and she was made aware by the Independent Children’s Lawyer that failure to engage with the process would result in final orders being made in her absence. Accordingly, I am satisfied it is appropriate to proceed to deal with the matter on a final basis in the absence of the mother. 

Material relied upon

1. As I have already noted, the father proposes a range of orders, including an order that he be allocated sole parental responsibility, inform the mother of all major long-term decisions made by him, and provide details of extra-curricular activities, medical, and educational services provided to the children, and that the children live with him. He also seeks orders that the mother provide clean urine, blood and/or CDT tests as a precondition to the children spending time with the mother for the second weekend of each month during school terms, from 8:00 am to 8:00 pm on Saturday and Sunday, as well as Wednesday and Friday afternoons each week from 4:00 pm to 8:00 pm. 

2. The father has given evidence that he is happy for the children to spend time with the mother and believes that they should maintain a relationship with her. 

3. The Independent Children’s Lawyer does not make any separate proposal for a form of orders, but supports the orders sought by the father. 

4. The father relies upon the following material:

   a)His affidavit filed 3 August 2020; and

   b)His Proposed Minute of Orders, emailed to my chambers 24 March 2020 (Exhibit “A”).

5. The Independent Children’s Lawyer relies upon the following material:

   a)Affidavit of Ms Noelle Tin filed 30 July 2020;

   b)Facsimile from B School to the Independent Children’s Lawyer dated 30 July 2020 enclosing attendance report and positive incident records for X (Exhibit “ICL 1”);

   c)Semester 1, 2020 D School Report of Y (Exhibit “ICL 2”); and

   d)Notes from class teacher relating to Y as at 27 July 2020 (Exhibit “ICL 3”).

Parental Responsibility

1. Since these are parenting proceedings, the statutory pathway must be followed. I note that pursuant to s 61DA of the Family Law Act 1975 (Cth) (“the Act”), there is a presumption of equal shared parental responsibility, which applies unless there are reasonable grounds to think that a parent has engaged in family violence or the presumption is rebutted in the best interests of the children. 

2. It is made clear by the evidence of the father that the mother developed a serious addiction to alcohol after 2008, which has resulted in long-term abuse of alcohol. 

3. The best interests of the children are determined by reference to the factors set out in sub-sections (2) and (3) of section 60CC of the Act. As will become plain later in these reasons, I am satisfied that the presumption of equal shared parental responsibility is rebutted by reference to those factors in the best interests of the children, and I will turn to consider the relevant section 60CC considerations.

Section 60CC considerations

1. Noting that the Full Court has made clear in decisions, such as Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637 and Tibb & Sheean [2018] FamCAFC 142; (2018) 58 Fam LR 351, whilst it is mandatory for me to have considered each of the considerations in sub-sections (2) and (3) of s 60CC, it is not necessary for me to discuss each one. I am guided in what is relevant in a particular matter by the evidence and arguments of the parties.

2. Sub-section 60CC(2), sets out two primary considerations: sub-paragraph (a) refers to the benefit of the children having a meaningful relationship with both of the children’s parents; and sub-paragraph (b) refers to the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. Sub-section (2A) makes clear that in applying those considerations, the Court is to give greater weight to the consideration set out in sub-paragraph (b).

3. I take account of the evidence that the father agrees that the children would benefit from having a meaningful relationship with their mother. There is no doubt that they have a meaningful relationship with him. They have been living with the father now for a number of years; he provides them with their own bedroom at home. He has been in a stable new relationship for some four years, and according to him, the children have a warm relationship with his partner.  Clearly, the benefit of a meaningful relationship with their father is of some significance to the children.

4. The benefit of a meaningful relationship with the mother is significantly attenuated because of her serious problems with alcohol addiction.  The father gives evidence that from December 2015 to February 2019, the children were exposed to numerous occasions where they saw their mother in an alcohol affected state. 

5. Although the father gives evidence that the mother appeared to improve in her health and wellbeing in between February and July 2019, and that she appeared less aggressive, her behaviour has since deteriorated.

6. Although the mother expressed to the father a desire to spend more time with the children in July 2019, the father required the mother to remain sober over an extended period, with such sobriety being substantiated before he would agree to the children spending further time with the mother.  The mother provided some test results to the father on 9 September 2019 which he did not understand, but inferred from those reports that the mother had ceased drinking.

7. On 14 September 2019, by agreement, the children spent overnight time with their mother for the first time since they came into the father’s primary care. I note here that, according to the father, the reason for separation was the mother’s alcoholism, and that the children had been in his primary care since 3 September 2015. According to the father’s evidence, the experience of the children on 14 September 2019 overnight with the mother was positive, and she sought further time with them thereafter.

8. In his evidence, the father expressed a fear that the mother may relapse. On 7 October 2019, it appears the father’s fears were realised. He dropped the children at the mother’s house as agreed, and within 10 minutes received a text from X, asking him to come back because the mother was “Not good” (Affidavit of the father filed 3 August 2020, Annexure “A”). Since then, the children have not spent any overnight time with the mother, and according to the father, the mother reverted back to daytime only contact. 

1. According to the father, since 2019, the children’s time with the mother has been inconsistent, and they often request to be collected early as a result of the mother drinking.  As recently as 13 June 2020, the father’s partner dropped the children at the mother’s house at about 9:30 am, and within 20 minutes Y had sent a text message saying: “Mum isn’t so good so when you finish at F Shop can you come and get us?” (Affidavit of the father filed 3 August 2020, [29]).

2. The children were collected by the father’s partner by 10:00 am that day.  According to the father, since then, the children have expressed hesitancy about visiting their mother because, on the last few occasions, she had not presented to them very well. 

3. I am satisfied on the basis of the evidence of the father that it is more likely than not that the mother’s battle with alcohol is one that she is slowly losing. In particular, I am satisfied that the children have been exposed to her in an alcohol affected condition, and that they, in their interactions with the mother, would require some protection from psychological harm, and indeed, even possibly neglect. These are significant factual conclusions in determining what is in the best interests of the children. 

4. I turn, then, to the additional consideration in sub-section 60CC(3). As I interpret the evidence, the children wish to spend time with their mother, but they become seriously disturbed when they see her “acting weird”, as they call it, or otherwise behaving in an alcohol-affected fashion, which causes them concern and drives them to seek rapid refuge with their father (Affidavit of the father filed 3 August 2020, [36]).

5. I am satisfied that the children have a warm and positive relationship with their father, and a significantly compromised relationship with their mother. I have already adverted to some of the facts which indicate the strong relationship between the children and their father. It deserves emphasis, in addition, that as their primary carer since 2015, the father has clearly done an excellent job in providing a safe and stable environment for the children. They obviously treat him as the primary point of parental reference. It is also clear from their progress at school that they have thrived in the father’s care.  In that regard, I take account of the report from B School in relation to X, and the Semester 1, 2020 School Report in relation to Y, as well as the notes from her class teacher, all of which are recent and demonstrate that the children are doing well academically and achieving leadership roles in their secondary schooling. That suggests strongly to me that their current parenting arrangement is very much in their best interests.

6. I am satisfied the father has taken all reasonable opportunities to participate in decision making about major long-term issues in relation to the children, to spend time with them and communicate with them.  It is clear on the evidence the same cannot be said for the mother. Sadly, her addiction to alcohol has had the effect of removing the children from her life, despite the commendable and reasonable attempts of the father to organise for the children to spend time with their mother.  According to the evidence, she has been unable, herself, to seize the opportunities presented, except in a very compromised way.

7. It is clear to me that the father has taken all satisfactory steps to fulfil his obligations to maintain both the children, but the mother has not. I am also satisfied, even in the absence of any expert evidence, that any disruption to the current parenting arrangement, which has been in place with some ad hoc agreed changes for the last almost five years, would likely present a serious disruption to the development of the children and I could not be satisfied that it would not have an adverse impact upon them. There was no suggestion there is any practical difficulty or expense with the children spending time with their mother. 

8. Without repeating myself, I am also satisfied that while the father’s capacity to provide for the needs of the children, including their emotional and intellectual needs, is clearly established. Again, the mother has shown, over the past five years, very little capacity to provide in the same way for the needs of the children.  The father, similarly, has demonstrated a more than satisfactory attitude to the children and to his responsibilities as a parent, whereas the mother in this respect has been seriously undermined by her addiction to alcohol. 

9. Whilst I have taken account of the balance of the additional considerations in sub-section 60CC(3), I do not consider it necessary to discuss them. Accordingly, I am more than satisfied that it is appropriate for the children to remain in the primary care of their father, and for the orders as proposed by him, embodying the document which is now Exhibit “A”, to be made.

10. I have taken account of the fact that the orders proposed by the father seek an order compelling the mother to do all things necessary to continue treatment for alcohol abuse, and the mother is not present before me to make any comment upon that proposed order.  However, the affidavit material which the father relies upon satisfied me that such an order is entirely appropriate and would be in the best interests of the children. I also note that such an order may form part of a platform, at least, upon which a more successful framework might be erected to enhance the prospective relationship between the children and their mother.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 10 August 2020.

Associate:

Date:  25 August 2020