Bindle and Seppett

[2010] FamCA 636

FAMILY COURT OF AUSTRALIA

BINDLE & SEPPETT [2010] FamCA 636

FAMILY LAW – CHILDREN – Application for final parenting orders – Where both parents have failed to fulfil their parenting obligations to the child – Where the father now has remarkably improved his health – Section 60CC considerations – Child ordered to live with the father

APPLICANT: Ms Bindle

RESPONDENT: Mr Seppett

FILE NUMBER: BRC 4104 of 2008

DATE DELIVERED: 23 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 24, 25 & 26 March 2010 and 11 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Pratt

SOLICITOR FOR THE APPLICANT: Peter Hofstee & Associates

COUNSEL FOR THE RESPONDENT: Mr Ashcroft

SOLICITOR FOR THE RESPONDENT: James White Lawyers

COUNSEL FOR INDEPENDENT

 CHILDREN’S LAWYERS:

Mr Fleetwood

SOLICITOR FOR THE INDEPENDENT

 CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

1. That the child L born … February 2002 live with the father.

2. That the father and mother have equal shared parental responsibility for the long-term care of the child.

3. That each party be responsible for the day-to-day care, health, welfare and development of the child while the child is in their respective care.

Weekend Time with the Mother

1. The mother shall spend one weekend each month with the child from 5.00pm Friday to 5.00pm Sunday with the first weekend commencing 6 August 2010.

2. Changeovers shall occur at the McDonalds restaurant located in B unless otherwise agreed upon by the parties.

School Holidays and Special Days

1. That the mother spend time with the child:

   (a)For the second half of the gazetted school holiday periods during 2010 and alternating every year thereafter.

   (b)For special days such as Father’s Day, Mother’s Day, Easter, Christmas and birthdays – as agreed upon between the parties.

Telephone Communication

1. The mother shall be at liberty to call the child on Wednesday and Thursday evenings between 6.00pm and 6.30pm and the father is to facilitate such telephone calls.

Exchange of Information

1. The father and mother shall:

   (a)Keep each other informed of their residential address and emergency telephone number; and

   (b)Give notice of any intended change to either.

2. Both parties agree that any significant medical procedure or treatment in relation to the child be with the consent and concurrence of both parents, save in the case of an emergency, in which the other party is to be notified immediately.

3. Each party shall advise the other parent of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information which that other parent may request with respect to the child.

4. The parties authorise by this Order for the school attended by the child to give to each parent information about the child’s education, progress and other related activities, at the expense of the requesting party.

5. Both parents shall be entitled to attend school functions, activities, sporting and extra-curricular activities in which the child may be involved.

Orders Pertaining to the Father

1. The father shall always have a driver to assist him during the time when the father doesn’t have a driver’s license.

2. The father shall provide a written undertaking to the Court in respect to not consume or be affected by any drugs or alcohol whilst he spends time with the child and further that he shall not drive a motor vehicle when the child spends time with him unless he has a driver’s license.

Orders Pertaining to the Mother

1. The mother shall provide a written undertaking to the Court in respect to not consume drugs or excessively consume alcohol whilst she spends time with the child.

Other Orders

1. Both parties shall undergo random drug and alcohol testing as requested and organised by the Independent Children’s Lawyer.

2. The parties shall not denigrate each other or the other party’s family members in the presence or hearing of the child or permit any other person to do so.

3. The Independent Children’s Lawyer have liberty to provide copies of the following documents to the Department of Child Safety in New South Wales and the Department of Communities (Child Safety Services) in Queensland:

   (a)       Copies of the three reports of Mr C;

   (b)       Copies of the assessments of Dr K;

   (c)       Transcripts of the oral evidence of Mr C and Dr K; and

   (d)       A copy of the Reasons for Judgment in this trial.

IT IS NOTED that publication of this judgment under the pseudonym Bindle & Seppelt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4104  of 2008

MS BINDLE 

Applicant

And

MR SEPPETT

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Bindle, the mother, for parenting orders in relation to a child of her relationship with the respondent, Mr Seppett, the father, being L born in February 2002.  The parties, as appears from the case outline of the Independent Children’s Lawyer and supported by the evidence before me, indicates that the parties commenced a relationship in or about the month of October 1999.  This relationship became about as a result, as I understand, of mutual attraction but also propinquity in that the father was in gaol on a drug related charge and the applicant mother was, at that time, employed by the gaol.

2. The parties commenced a relationship which caused (inter alia), as I understand, the applicant to be discharged from her employment and since then, for a period of approximately seven years, the parties lived together as man and wife with some separations, until in particular, one about 25 June 2006 when they separated.  They lived together for another period of two weeks.  The child, as I have said, L, was born in February 2002. 

3. Thereafter, there has been nothing else but allegations and counter-allegations made by the mother and the father.  There had been movements of the child from the mother to the father; the father to the mother - the Department of Children’s Services has been involved and has taken the child into care.  I consider that any decision in this case will be the decision based on the least detrimental alternative into which to place the child.

4. The child has had an awful existence – see Exhibit 1 A & B.  He has been faced with a mother, who not only has alcohol problems and I will touch upon that at a later stage, but also it appears as though she has personality problems.  She was admitted to hospital for a period of approximately one month in or about the month of October 2007 suffering from drug abuse psychosis, and since that time she has entered into a relationship with a Mr W, who was considerably older than herself, I make no comment on that other than as a fact, that she is living on a basic rural property in Northern New South Wales.

5. She was pregnant at the date of the trial and she has since trial been delivered of a boy child.  As I have said, the property on which she resides with Mr W is basic in the extreme.  It consists of a converted shed – by shed I mean the area where the animals are housed and probably farm machines   The child refers to it as a place of danger – see affidavit of Ms T filed 19 November 2009.  He also does not appear to be that happy residing in the premises at New South Wales. 

6. I may touch upon the applicant initially.  Her presentation is such that I am not particularly persuaded to accept her denials of alcoholism or at best dependence upon alcohol.  She has given evidence that she was dependent upon alcohol for a period but now she is in charge and in control of it, notwithstanding that the child, in his report with Mr C, is of the view that she drinks rum.

7. She has been admitted to hospital (as a result of injuries sustained when she put her hand through a glass partition and/or glass front) which necessitated the boy being removed from her possession and put in the father’s, where he remained until the end of 2009.  Her denial of excessive consumption of alcoholic liquors does not impress me at all.  She, in the admission documents, of the hospital showed that she was at that time disorientated and appears to the medical practitioner admitting her to be severely affected by alcohol.  The doctor was also of the opinion that she was untidy and dirty in appearance.

8. The dreadful situation of the child is particularised in the chronology which I have accepted as being set out as correctly as possible in the case outline filed by the Independent Children’s Lawyer on 22 March 2010, whilst this document is not sworn the evidence supports the content, and I incorporate that chronology in my reasons for judgment.  It is appalling that a child of the age of L has had to put up with the chopping and changing of his residence since that period.

9. I am more than satisfied the conduct of the mother is brought about by her excessive consumption of alcoholic liquors, her excessive consumption of dexamphetamine which was prescribed by a doctor which appears to me to be excessive and I do not accept the fact that she says she is totally in control of such addiction. 

10. Let it not be said, however, that all the criticism of the mother is the only criticism I have of the parties.  The father’s conduct since he was about 15 years of age is deplorable.  He has probably spent more time in gaol since that time than he has spent outside.  He clearly was a drug addict for a considerable number of years.  He has been involved in numerous charges of a criminal nature from assault to many drug charges.  He is an alcoholic and the report of the Queensland Government from the area Health Service – see the affidavit of Ms T filed 19 November 2009 at exhibit “A” indicates that the father’s condition has not improved.  His cognition and behaviour was severely affected by his alcoholic liver disease; hepatitis C; cirrhosis; Portal hypertension and hepatic encephalopathy.  This was at the time of his admission in November 2008.

11. She goes on to say that his behaviours now include confusion, agitation, short-term memory loss, disorientation, inappropriate behaviour (standing on the bed looking for his clothes on the ceiling) and wandering.  He now wears pads for his incontinence and is considered a falls risk.  An application was to be lodged to the Guardianship and Administration Tribunal to manage the father’s personal health and financial affairs.  That has been done and an adult guardian has been appointed.

12. Needless to say, if this had continued, this being in November 2009, there would be no necessity for me to consider the application at all.  As I said, the least detrimental alternative would apply and since it is not the intention of the Director of Children’s Safety to take the child into care, the child would have to go to the mother as there appeared to be no-one else.  The Father discharged himself from the hospital and since that time for a short period indulged in the consumption of alcoholic liquor. 

13. However, he has made an absolutely remarkable recovery.  The person that I saw earlier this year was frail looking; pasty and appeared to me to be not well.  Since that time I have seen him on at least two or three occasions and I am staggered at the improvement, as are the medical fraternity.  He appears to be a person who now has control over his condition.  Whilst his liver function is not perfect – see exhibit 5 - he indicates that he does not drink; that his health has muchly improved and I myself can see that his condition has muchly improved and he is an entirely different man.

14. Up until November, he had possession of the child as a result of an order, I believe, of Howard FM on 20 October 2008.  And as I said, up until the time of his admission to hospital he still had possession of the child.  The child was exceptionally fortunate in that neighbours of the father, the “E Family”, took the child into care and looked after him particularly as he, on or about 18 November 2009, fractured his right arm at school and was taken to Hospital – see the affidavit of Mr E dated 20 November 2009.

15. I am satisfied that the mother, according to the evidence of Mr E, was somewhat recalcitrant in taking possession of the child.  An order was made by myself on 20 November 2009 placing the child in the possession of his mother.  There were other orders made of an administrative nature in an endeavour to find out what was going on with both of the parties and that material has been forthcoming.

16. I have touched upon what I consider to be the protagonists in this case, that being the father and the mother and I must now touch upon Mr W, who is the present partner of the applicant mother.  Mr W gave his evidence by way of phone, and gave me the impression that he is a “rough diamond” – that he does drink alcoholic liquors – he says not in excess.  However, I am of the opinion that he is a man forthright, hardworking and probably consumes alcoholic liquor to an extent much more than reasonable people do and I am also of the opinion that he is able to control it.  He sounds to me to be a hardworking country man.

17. He is, as I have said, much older than the mother but that in itself is not of much moment.  There was some suggestion that the mother and Mr W were going to move from the converted shed but that appears now to have fallen by the wayside as at the time of the hearing of this matter.  The application of the mother is, in effect, that she have sole parental responsibility for the child; that the child live with the mother and that there be some contact between the child and the father, inter alia for two weekends out of four consecutive weekends from 5:00 pm Friday to 5:00 pm Sunday.

18. This necessitates, if that is the case, the child travelling a considerable distance and this concern was shared by Mr C in his final report – he having made two.  The child himself has some learning disabilities.  He appears to be a reasonably fragile child and there is concern that he does need remedial teaching.  He is at present being taught at a comparatively small school in Northern New South Wales but had been at R State School whilst in the care of the Father and was receiving one on one remedial teaching.  He had been at a school at H for a period and according to the evidence of a teacher there, namely Ms Y – see affidavit of 22 April 2009 – appears to have exhibited some concerning characteristics but that towards the end of the year and I note, of course, that he was only there for a period 31 January 2007 to 10 December 2007, had made some improvement.

19. Mr C, the Family Consultant, has given two reports in this matter both of which I think are of importance.  His first report which was dated 7 January incisively sets out the history in relation to the parties and he states at paragraph 98 of that report inter alia:

    An examination of the history of each results in the identification of potential risks.  Amongst other things, there are some evidence that both have had their parenting capacity compromised by the use of intoxicating substances.

20. My view of the parties, in particular the applicant at paragraph 100 of the report, is reinforced by statements made by the mother and secondly is once again reinforced by what the father has said to Mr C at paragraphs 104 and 105.  Mr C at paragraphs 106 and following is concerned about the question of recidivism in drug and alcohol rehabilitation and he is extremely concerned that the father and perhaps both parents – see paragraph 107 and also exhibits 3 and 5 – should they have illustrated that they have become and remain free of intoxicating substances for a reasonable period of time.

21. This interview took place in early 2009.  Since that time, the father has I believe been charged with driving whilst suspended on at least two occasions.  His driving license has been suspended for a period of two years.  He has had the “breakdown” to which I have referred, in particular, to the hospitalisation of himself in November.  The mother has been hospitalised for a short period in relation to the cut on her arm to which I have referred.

22. I am satisfied that she is still drinking.  I am satisfied on the evidence before me that the father has had control of his drinking since the early part of this year.  There is, as Mr C has referred to, a concern as to the possibility of recidivism in relation to, in particular, the father and perhaps, as he said, both parents.

23. He, at that stage of the report in early 2009, was of the opinion that the parents have equal shared parental responsibility – see paragraph 119 – although he was of the opinion in paragraph 117 that he considered it would be in the child’s best interests that he live predominantly with one parent and spend significant time with the other.  I personally think that on the material before me significant time is a concern because of the geographical distances between the parties.

24. In his second report filed on 22 March 2010, he once again sets out clearly his view that he is still of the view that the parents have equal shared parental responsibility but that the child live with the Father and that the child spent time with the Mother one weekend each month and for one half of school holiday periods.  Whilst not exclusively basing his opinion on the following, it appears that he is of the view that the child prefers his father’s company to that of the mother’s.

25. It may be that he is more a town boy – the father lives in a suburb of Ipswich, whereas the mother lives at a somewhat isolated property at which he does not have the contact with many children – he does have one friend it appears.  Mr C has raised the concerns concerning the father’s alcoholism.  He is doubtful of the credibility of the mother, Ms Bindle, in relation to her excessive consumption of alcoholic liquors. 

26. She has the difficulty of having a new baby in her care which was born in May 2010.  As a result of the admission of the father to hospital in or about the month of November last year, L has been residing with his mother.  There have been cautions in relation to his moving from school to school, however, I am satisfied that taking into consideration the doubt in relation to the mother’s excessive consumption of alcohol, her present probably inappropriate living arrangements, the fact that she now has a new child to consider and on the contrary, the fact that I am satisfied at this stage that the father has made a remarkable recovery and is complimented upon it that I believe that the child should live with the father.  The question of his supervision is something which concerns me. 

27. As a result of an application made by the father, a lady by the name of Ms F was put before the Court as a person who could supervise, in effect, the child living with the father.  Unfortunately, this lady has a record which is almost as bad as the applicant.  She, however, indicates that she has not had any charge since about the year 1997 – see exhibit 8 – but I note that the most serious charge is one of supplying drugs and that in itself would cause me tremendous concerns.  She is still on a methadone programme.

28. She appears to have been reasonably in control and would not be the person responsible for the care of the child but would be just there in case the father needed some support.  This, of course, was necessary in November of last year when he was admitted to hospital suffering badly from the consumption of alcohol and the child was particularly fortunate that he had the E Family next door who were able to adequately look after him for the period between the father’s admission to hospital and the child’s breaking of an arm.

29. I must say I am staggered that it was felt necessary on the part of the father to put this lady before the Court, if in fact, her records were not put forward in evidence in chief – were ascertained, I think, by the applicant mother’s counsel and as a result thereof I would be surprised that the child’s welfare would be advanced to any great extent by this lady being put in a supervisory capacity.  I take that into consideration as well.

1. The matters that I have to consider in relation to the section 60CC are clearly set out.  It is quite clear in my opinion that the child would have a meaningful relationship with both of the child’s parents if I make the order that I have already indicated before.  He does have a benefit in knowing his mother equally he has a benefit in knowing his father.  The child has to be protected from physical or psychological harm and at this stage I am satisfied, that the father having made a remarkable recovery, and I emphasise the word remarkable, that he is less likely to subject the child or expose the child to physical or psychological harm.

2. The child, whilst according to Mr C, is too young to make any informed decision as to his views that he would prefer to live with the father, notwithstanding that I am of the view that according to Mr C clearly his observation indicates that he has a closer relationship with his father than with his mother – that of course takes into consideration also of section 60CC 3(b).

3. Notwithstanding the evidence that is before me, it appears that the parties are able to encourage a close and continuing relationship with each other in relation to the child.  I recognise that there is a practical difficulty and expense.  The father is not allowed to drive at this stage and there is a tyranny of distance between the parties and that is the reason why I will be only allowing the mother to have contact with the child for one weekend per month.

4. Insofar as section 60CC 3(f) is concerned it appears to me that both these parties have difficulty in providing for the needs of the child either emotionally or intellectually.  I think marginally, and this has fallen from Mr C in relation to his discussion with the child, the father is better able to do so than the mother.  Insofar as section 60CC(4) is concerned, I have made it quite clear that this is a matter in which there is only left open to the Court the least detrimental alternative.

5. I believe that up until comparatively recently, neither of the parents have fulfilled their responsibility as a parent to the child.  They have failed to facilitate with the other parent making decisions about the long term issues of the child; communicating – they have failed to fulfil the parent’s obligations to maintain the child – by maintaining I am not quite sure whether that means solely money or generally maintaining the child’s welfare.

6. Needless to say, I have quite clearly taken into consideration the events that have happened and circumstances that have existed since separation occurred.  I further, in relation to the authority of MRR v GR [2010] HCA 4 (3 March 2010), have to consider since I have ordered substantial time to be enjoyed by the mother, it is necessary for me to consider whether the order is reasonably practical. In a way it is not, in that there is a considerable distance between the parties – someone said two hours by car between the father’s residence and the mother’s. That itself is not reasonably practical for the child other than as I have indicated for a period of only one weekend per month.

7. Consequently, I order that forthwith the child reside with the father; that there be contact by the mother with the child on one weekend in every four weekends. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  23 July 2010