Blain & Blain
[2021] FedCFamC1F 202
•17 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Blain & Blain [2021] FedCFamC1F 202
File number(s): WOC 731 of 2019 Judgment of: CHRISTIE J Date of judgment: 17 November 2021 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the mother seeks sole parental responsibility. Allegations of alcohol abuse and family violence. Risk of harm. Professionally supervised time. Legislation: 60CC, 60CC(2A), 65DA(2) of the Family Law Act 1975 Cases cited: Eaby & Speelman (2015) FLC
SS & AH [2010] FamCAFC
Deiter & Deiter [2011] FamCAFC
Huda & Huda (No 2) [2020] FCCA
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 12 November 2021 Place: Sydney Counsel for the Applicant: Ms Ingenito Solicitor for the Applicant: Venus & Smart Counsel for the Respondent: Mr Steward Solicitor for the Respondent: Carter Ferguson Solicitors Counsel for the Independent Children's Lawyer: Mr Sperling Solicitor for the Independent Children's Lawyer: Walkden Law and Mediation ORDERS
WOC 731 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BLAIN
Applicant
AND: MS BLAIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
17 NOVEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children, X born … 2013 and Y born … 2015, (“the children”) in respect of:
a. Medical issues;
b. Educational issues.
2.The children live with the mother.
3.The children spend time with the father from 10.00am to 12.00pm each alternate Sunday supervised by B Contact Centre or such other organisation nominated by the Independent Children's Lawyer, such time commencing on the second Sunday from the date of these orders.
4.For the purposes of implementing Order 3:
4.1 Within five days the mother and father shall contact B Contact Centre and thereafter forthwith do all acts and things including signing all documents and attend as directed by B Contact Centre to enable time to commence, including attending any assessment interview, and attend any orientation visit if required and if requested, with the children.
4.2 Both the mother and the father shall inform the Independent Children's Lawyer in writing that they have complied with the above order, Order 4.1.
4.3 The mother and father shall thereafter comply with all reasonable directions of B Contact Centre.
4.4 The father shall meet all fees of B Contact Centre (including to obtain written reports).
5.For the purpose of the child spending time with the father changeover shall take place at a location nominated by B Contact Centre.
6.The father not consume alcohol, drugs or any illicit substances within 24 hours prior to being in the presence of the children, or be in any way affected by them while the children are in the father’s care.
7.Within seven days of the date of these orders and thereafter every four weeks, the father is to do all acts and things necessary to undertake, at his own expense, Carbohydrate Deficient Transferrin (CDT) testing to detect excessive alcohol use and for this purpose:
7.1 The father will use his best endeavours to obtain a standing referral for CDT testing from his General Practitioner;
7.2 The father will promptly attend upon a pathology collection centre to provide samples for CDT testing;
7.3 The CDT test is to be analysed using the High Performance Liquid Chromatography (HPLC) analysis method;
7.4 The father will forthwith confirm in writing to the mother and the Independent Children's Lawyer that he has undertaken on each such test including details of the date of his attendance and the name and address of the pathology centre.
8.The father will authorise release of the CDT testing results to the mother and the Independent Children's Lawyer concurrently with the release of the test results to the father. For this purpose, the father must request that the test results be provided to him within seven days of the conduct of each test.
9.The father will be responsible for the costs associated with the CDT testing.
10.The father shall not operate a motor vehicle with the children present in the motor vehicle unless he has the mother’s consent in writing.
11.Both parties be and are hereby restrained from criticising or denigrating the other party and/or their family or friends in the presence of or within the hearing of the Children or on any forms of social media and shall ensure that no third party does so in the presence and/or hearing of the Children.
12.Each party refrain from discussing the Family Court proceedings or the current living/spending time arrangements for both parents with the children or in their presence or hearing.
13.Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.
14.The mother and father shall:
14.1 provide each other with and keep each other advised of the names and addresses of the children’s treating doctors;
14.2 inform each other in writing as soon as practical or any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist :”specialist medical consultant”) in relation to the children; and
14.3 ensure that the other parent is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the receipt of the report.
15.These orders authorise the father to obtain information from the school the children may attend from time to time, that the school forward directly to the father copies of all of each child’s school reports and merit cards, including any written material pertaining to each child’s academic and extra-curricular activities.
16.During any period referred to in these orders, in the event of either child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
17.Subject to Order 18, the father is hereby restrained from contacting the mother, directly or indirectly in relation to any matters whatsoever and for the purpose of facilitating communication between the parties, all communication shall be via the parties’ legal representatives, or while the father is unrepresented, by email or written correspondence between the Mother’s legal representative and the Father.
18.The father is not to contact the mother or the children unless it is in writing or in the case of emergency or, attempt to contact the mother or the children using a third person without the mother’s prior written consent.
19.The Independent Children’s Lawyer has liberty to relist the matter on 48 hours notice to the court and the parties in the event that:
a. There is a difficulty in implementing any of these orders;
b. The father’s CDT test results demonstrate a reading above 2.2;
c. The father fails to undertake CDT testing as ordered.
THE COURT NOTES THAT:
1.This matter is listed for case management and allocation of a hearing date on 11 April 2022 at 9.30am.
2.Pursuant to s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blain & Blain is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Annexure “A” - Parenting orders – obligations, consequences and who can help
This information is for parents and other people, such as grandparents, who are subject to a parenting order. It includes information, pursuant to section 65DA(2) of the Family Law Act 1975, about the legal obligations created by a parenting order and the consequences that may follow if it is contravened (breached).
This document also includes information, pursuant to sections 62B and 65DA(3) of the Family Law Act, about:
■ courses, programs and services in the community that can help people understand their responsibilities and adjust to a parenting order, and
■ the options available to ensure that people comply with (follow) a parenting order.It is important that you read this information
You have been given this document because a court has made a parenting order which requires you to take certain steps.Note – If this document is attached to a parenting order, the information provided pursuant to section 65DA(2) of the Family Law Act forms part of the order.
It is important that you understand the terms of the order and the obligations it creates. If you are unsure about any of the terms or obligations, ask your lawyer if you have one. You can also seek legal advice about a parenting order if you were not represented at court.
Community courses, programs and services
There are courses, programs and services in the community that can help you:
■ reach an agreement with the other party
■ understand your parental responsibilities, and
■ adjust to and follow court orders.For more information about these options, go to call 1800 050 321 or visit a Family Relationship Centre near you.
A court may order you to attend a post-separation parenting program. You must attend. If you fail to go to a program as ordered, without reasonable excuse, you may be in breach of the parenting order and be penalised.
What is a parenting order?
A parenting order is a set of orders made by a court about parenting arrangements for a child. A court can make a parenting order based on an agreement between the parties (consent orders) or after a court hearing or trial. When a parenting order is made, each person affected by the order must follow it.A parenting order may deal with one or more of the following:
■ who the child will live with
■ how much time the child will spend with each parent and with other people, such as grandparents
■ the allocation of parental responsibility
■ how the child will communicate with a parent they do not live with, or other people
■ any other aspect of the care, welfare or development of the child.A parenting order can require the parties to follow certain steps before applying to a court to change an order. It can also state the process for resolving disputes that arise from the order.
If the parenting order provides that two or more people have equal shared parental responsibility, any decision about a major long-term issue in relation to a child must be made jointly. This requires each person to consult with the other person and make a genuine effort to reach a joint decision.
Note – The status of a parenting order may be altered if a parenting plan is developed by both parties in the future. For more information about parenting plans, go to call 1800 050 321 or visit a Family Relationship Centre near you.
Your legal obligations
■ You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. There are agencies in the community that can help you and your family adjust to and comply with the order (see details above).
■ The order remains in force until a new parenting order or parenting plan changes it in some way.
■ Even if the needs or circumstances of you, the child or the other party change, the court order applies until it is formally changed by a court or, in some situations, you enter into a parenting plan with the other party.
■ Sometimes people talk to each other about changing arrangements set out in a parenting order. These talks do not change the order.If you and the other party agree to change the arrangements, you may enter into a parenting plan or apply for consent orders that vary the existing orders. For more information about consent orders, go to call 1300 352 000 or visit a family law registry near you.
If you want to change a parenting order and the other party does not agree, family dispute resolution can help you and the other party work through your disagreement. Resolving issues this way is less formal than going to court and should cost less in money, time and emotion. If an agreement cannot be reached, you may consider applying to a court for orders.
Legal advice
You should seek legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you reach an agreement without going to court. You can seek legal advice from a legal aid office, community legal centre or private law firm. Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.Penalties for failing to comply with a parenting order
A court can only penalise someone for failing to comply with a parenting order, which has not been altered by a parenting plan, if another person files an application alleging the person did not comply with the order. After considering all the facts of the case and applying the law, a court may decide that:
1. the alleged contravention was not established
2. the contravention was established but there was a reasonable excuse
3. there was a less serious contravention without reasonable excuse, or
4. there was a more serious contravention without reasonable excuse.If a court finds that you have failed to comply with a parenting order without reasonable excuse, it may impose a penalty. Depending on the situation and the type and seriousness of the contravention, a court may:
■ vary the primary order
■ order you to attend a post separation parenting program
■ compensate for time lost with a child as a result of the contravention
■ require you to enter into a bond
■ order you to pay all or some of the legal costs of the other party or parties
■ order you to pay compensation for reasonable expenses lost as a result of the contravention
■ require you to participate in community service
■ order you to pay a fine
■ order you to a sentence of imprisonment.In addition to these orders, a court may also adjourn the case to allow you or the other party to apply for a further parenting order.
The penalties are listed in Division 13A in the Family Law Act. To view the Act, go to For more information about compliance, see the fact sheet ‘Compliance with parenting orders’.
Location and recovery orders
If you breach a parenting order and you cannot be found, a court may make a location order. This order requires other people or organisations, including government departments, to give any information they have about where you and the child may be located.
If you breach a parenting order by failing to return the child as required, a court may also make a recovery order. This is an order issued to the Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers to find and recover the child. The order may also allow a search of any vehicle, vessel, aircraft or any other premises where the child may be found.This fact sheet provides general information only and does not provide legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court. The Family Law Courts cannot provide legal advice.
Distributed in accordance with sections 62B and 65DA of the Family Law Act.
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for interim parenting orders in respect of two children, X born in 2013 and Y born in 2015 (“the children”).
Mr Blain is the applicant father (“the father”).
Ms Blain is the respondent mother (“the mother”).
The parties each anticipated that the parenting proceedings between them would be heard and determined on a final basis in a trial which was due to commence on 25 October 2021. For reasons which are discussed later in this judgment, that trial was adjourned on the application of the father.
On 25 October 2021, his Honour Judge Smith transferred the proceedings to Division 1 of the Federal Circuit and Family Court of Australia and stayed the interim orders which provided for the children to spend time with the father.
BACKGROUND
The parties commenced to reside together in 2008 and married in 2009.
The mother’s affidavit material sets out in detail what she says is a significant and long standing alcohol dependence issue for the father throughout the parties’ cohabitation. The father disputes some (but not all) of the mother’s contentions.
The mother contends that the father was physically violent and on one occasion after drinking heavily, he put his hands around her throat and tried to choke her.
The father was involved in a car accident in 2017 and police needed to intervene. It would appear on both parties’ evidence the father had been drinking. He subsequently entered a rehabilitation program and became involved with Alcoholics Anonymous. There followed a period of abstinence. Later in 2018 he began to drink alcohol again.
The parties separated on 23 January 2019.
An interim apprehended domestic violence order (ADVO) was made for the protection of the mother by the Local Court on 30 January 2019.
As a result of an incident on 10 May 2019, the father was charged with breach of the interim ADVO. On 22 May 2019 he pled guilty and received a fine.
On 22 June 2019, the father attended at the mother’s home in the early hours of the morning. The mother says he was intoxicated. The father was charged with breach of the ADVO. On 3 July 2019 he entered a guilty plea.
On 15 July 2019 the father commenced proceedings by filing an Initiating Application in the Federal Circuit Court of Australia. On 13 August 2019 the mother filed a Response to Application for Final Orders.
The parties entered into consent orders on 23 August 2019 that provided for the father to undertake Carbohydrate Deficiency Transferrin (CDT) testing. On 23 August 2019, an Order was made to appoint an Independent Children’s Lawyer (“ICL”).
On 3 September 2019, the Local Court made an ADVO for two (2) years.
On 17 February 2020, further interim parenting orders were made providing for continuation of CDT testing. Time with the children was to be facilitated by a professional contact changeover service and was to be unsupervised provided the father undertook CDT testing in accordance with the orders (and same was within an acceptable range).
On 14 April 2020, orders were made for appointment of a single expert, Dr C. Dr C’s report was released to the parties on 13 October 2020.
In June 2021 the child X was diagnosed with Autism Spectrum Disorder and Attention-Deficit/Hyperactivity Disorder.
On 21 June 2021, orders were made by her Honour Judge Neville providing day only time between the children and the father with changeover facilitated by a neighbour.
A subpoena was issued to both the laboratory conducting the CDT testing and the father’s GP. The documents produced indicated that the CDT results for two tests were not identical with the documents the father had discovered.
THE LAW: INTERIM PARENTING
It should be noted that in the parenting case the mother makes serious allegations of violence and problematic alcohol consumption which are, in the main, denied by the father. In Eaby & Speelman (2015) FLC 93-654 at [18] the Full Court observed:
[T]hat does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.
It is not possible to ignore or put to one side serious allegations just because they are in dispute. This is particularly the case where those allegations have some objective support, for example, from subpoenaed material. Until the evidence can be tested, it is necessary to appreciate the impact on the children if the allegations are subsequently found to be accurate (SS & AH [2010] FamCAFC 13 at [41] and [100]).
The Full Court has analysed the process of assessment of risk in the decision in Deiter & Deiter [2011] FamCAFC 82 at [61]:
Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
As a consequence of the issues of risk identified by the material, more weight is to be given to the protection of the children from potential harm until the evidence can be tested. Accordingly, in approaching the considerations set out in the Family Law Act 1975 (Cth) s 60CC (“the Act”), s 60CC(2A) of the Act applies.
When making a parenting order, the Court is required to apply the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility.
There are several ways in which that presumption may be displaced.
ASSESSING RISK ON THE BASIS OF THE UNTESTED EVIDENCE
The mother seeks an order for sole parental responsibility. Her counsel contended that the presumption was displaced by evidence of family violence. The evidence (even untested) supports that proposition – I note in particular the father’s guilty pleas in respect of ADVO breaches.
It is open, notwithstanding the rebuttal of the presumption, to make an order for equal shared parental responsibility if the evidence otherwise supports that such an order would be in the children’s best interests. Here the evidence of both parents suggests significant communication difficulties and I could not be satisfied that an order for equal shared parental responsibility would function in the best interests of the children.
It follows that it is appropriate to make a parental responsibility order allocating parental responsibility to the mother on an interim basis. The issues that would appear to arise on the material relate to education and health and so I will allocate responsibility for decision making in respect of those matters only to the mother.
The allocation of parental responsibility on an interim basis does not determine the issue on a final basis.
Turning to the question of time; the two risks which present on the basis of the material before the Court are: a risk to the children arising out of the father’s excessive alcohol consumption and a (perhaps related) risk to the children arising out of the father’s conduct meeting the definition of family violence.
In this case the father has entered guilty pleas in respect of some of the incidents that are the subject of evidence in the mother’s case.
In addition, the material produced on subpoena indicated that the CDT results provided by the father were not the same as though produced on subpoena. The father provided to the mother and ICL by way of email a result for a test undertaken on 4 March 2021. The email read:
Please see latest CDT result attached. Hopefully this assist the mother with agreeing to my ongoing requests to make things easier on our children with regards to transportation.
The attached test result suggested the CDT level was 1.8. When documents were produced on subpoena for the test undertaken 4 March 2021 it is plain that the result was actually 2.7.
On 23 April 2021 the father again sent an email to the ICL and mother’s solicitor purporting to attach CDT test results for 1 April 2021. The document attached suggested that the CDT level was 1.4. When documents were produced on subpoena for the test undertaken on 1 April 2021 it is plain that the actual result was 2.4.
The father’s affidavit of 10 October 2021 is silent about those test results. While the father’s silence is not conclusive in and of itself, the absence of any explanation by the father requires the court to operate at this interim stage on the basis that in due course it may be established both that the father had consumed alcohol to excess over a significant period and that he sought to conceal those results.
The father did not provide to the ICL or the other side the test results for the CDT test undertaken on 9 July 2021 as he was obliged to do under the orders of his Honour Judge Altobelli (as he was then known) dated 17 February 2020.
Of consequence, there is an appropriate caution in the position adopted by the ICL about whether the father’s denials about drinking (and perhaps other issues) can be given much weight.
The evidence establishes a pattern of elevated CDT levels for the father:
Father’s CDT Results Date Result (%) Page Reference of the Mother’s Affidavit 10.11.2021 and Court Book 26.08.2019 4.0 12 18.12.2019 2.3 17 28.02.2020 1.9 26 01.05.2020 2.0 2CB22 23.07.2020 1.8 46 04.03.2021 2.7 (note father said 1.8) 53 2CB28 01.04.2021 2.4 (note father said 1.4) 56 2CB29 21.05.2021 2.6 2CB34 09.07.2021 3.3 2CB32 01.09.2021 2.3 2CB31 30.09.2021 2.2 2CB30
The test results indicate that a result greater than 2.2 “is highly suggestive of chronic harmful alcohol abuse”.
The father’s minimisation of the significant issues he has experienced with alcohol consumption is of itself a concern.
The medical evidence points squarely to the need for the father to acknowledge and address the issue of his alcohol consumption to the benefit of his children. At the time of the interviews with Dr C and indeed through the submissions made on his behalf at this hearing the father appeared to be reluctant to follow a course of abstinence from alcohol.
If the father continues to externalise the problem (as his internet posts and text messages suggest he has done) as being caused or created by the mother or the court, he will miss the opportunity to be the father Dr C indicates he is capable of being.
The evidence, in particular that of the single expert, suggests the children enjoy spending time with their father. Dr C also described the father as “insightful, kind and sensitive in his interactions with the children”.
In balancing the competing primary consideration it is necessary to place greater weight on protection of the children from harm.
Because the father does not acknowledge the risk (and it would appear as though he has taken steps to hide its magnitude from the mother and the Court) the Court can have no confidence that anything other than professionally supervised time is appropriate.
The mother seeks orders for no time. There can be no criticism of her for taking that position. She needs to act protectively towards the children and ensure that her capacity to parent the children is not itself undermined by the parenting orders.
The ICL seeks orders for supervised time. I accept that the children love and are loved by their father and the father has the potential to offer them more than adequate parenting provided he is not effected by alcohol. It is for that reason that in weighing the balance between protection from harm and protection of the children’s relationship with their father it is necessary to ensure that the children’s time is not suspended at this stage.
Counsel for the mother suggested that there may be a further risk posed by unexplored mental health issues of the father. The evidence in that regard is fairly limited and to the extent that it suggests any diagnosis (leaving aside alcohol misuse disorder) is of depression. The interactions between the children and the father during their time with the single expert did not suggest to her that the children’s relationship with their father had been adversely affected by his having suffered from depression. The most significant risk would appear to be the impact of alcohol misuse on parental capacity.
That said, I do not intend to order that the father is breathalysed prior to his time with the children absent evidence that the agency is willing to undertake this role. Professional supervision is designed to address harm. If the father shows indications of excessive alcohol consumption I would expect that time will not occur – the function of supervision is to monitor the father and his interactions with the children and decline to provide the session or bring the session to an end if it would be in the interests of the children.
I will make an order which restrains the father from drinking prior to, or during time, as he has indicated his consent to that order.
It is not necessary to make an order about an interlock device as on an interim basis the father will not be responsible for transport of the children. In that regard I intend to continue Order 4 of the orders of 21 June 2021 which was made by consent.
I decline to make an order for telephone or video communication on the basis that it cannot effectively be professionally supervised.
Counsel for the mother also submitted that the court should be cautious in making orders for time between the children and the father because he may speak to the children in a manner that undermines the children’s relationship with their mother. Again, it is necessary to place faith in the skill of professional supervision to swiftly bring to an end any inappropriate conversation. The professional supervisors will be asked to furnish reports and concerns can be addressed if they arise.
I was told by counsel for the father that he has engaged with appropriate supports. The evidence to support that submission was not available at the interim hearing.
Should the father enter rehabilitation of his own volition and address his consumption of alcohol while this matter is adjourned it may be very relevant to the orders to be made at final hearing.
Both parents sought a range of other orders about provision of information concerning the children, medical treatment, non-denigration and the like. There is considerable overlap between the proposals of the parents and the ICL on these specific issues and so I have made the orders common to all applications.
Counsel for the mother (presumably on instructions from the mother) asked the court to refer the father’s conduct as regards the CDT testing to the Director of Public Prosecutions. The referral of a party or lawyer by the court is not a judicial but an administrative function and is undertaken where in the opinion of the Principal Registrar a referral is warranted (Huda & Huda (No 2) [2020] FCCA 1804 at [12]).
In the context of hearing and determining this interim application and making directions for the further conduct of the matter on a final basis I decline to refer the matter.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 17 November 2021
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