Bra and BKG
[2003] FMCAfam 34
•8 January 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRA & BKG | [2003] FMCAfam 34 |
| FAMILY LAW – Children – best interests of children – allegations of alcoholism. Family Law Act 1975, ss.60B, 65E, 68F(2) Harrison & Woollard (1995) 18 Fam LR 788 |
| Applicant: | RAB |
| Respondent: | KGB |
| File No: | PAM 3472 of 2002 |
| Delivered on: | 8 January 2003 |
| Delivered at: | Parramatta |
| Hearing Dates: | 7 & 8 January 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilson |
| Solicitor for the Applicant: | Peter Cornock & Associates |
| Counsel for the Respondent: | Mr Schroder |
| Solicitor for the Respondent: | Watts McCray |
ORDERS
All earlier parenting orders are discharged;
The children, CAB, born 9 January 1994 and AKB, born 14 June 1998, are to reside with the respondent mother;
The applicant father is to have contact with said children as follows:
(a)Each alternate weekend during school term time commencing on the first weekend after school term commences from 5 pm on the Friday to 5 pm on the Sunday provided however if the Monday following the Sunday is a public holiday then contact will conclude at 5 pm on the Monday;
(b)For one half of each school holiday period at such times as the parties shall agree and in default of agreement for the first half in odd numbered years and the second half in even numbered years.
(c)On Father's Day in each year from 5 pm on a Saturday before Father's Day and 5 pm on Father's Day;
(d)By telephone at all reasonable times including the children's birthdays; and
(e)At such other times the parties shall agree.
The father is not to exercise contact on Mother's Day in each year and if Mother's Day should fall on a weekend when the father would otherwise be entitled to contact then contact would conclude at 5 pm on the Saturday before Mother's Day.
For the purpose of exercising contact the mother is to deliver the children to the home of the father's mother at the commencement of each contact period and the father is to return the children to the mother at her residence at the conclusion of each contact period.
The father is not administer to himself any prohibitive drug at any time that either of the said children is in his care or for 12 hours beforehand.
The father is not to consume any alcohol for a period of two hours prior to driving any motor vehicle in which either of the said children is a passenger.
The mother is to authorise the principal of any school attended by the children to provide to the father at his expense copies of all school reports, bulletins, newsletters and information about school photographs and such other material usually provided to parents of children attending that school.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3472 of 2002
| RAB |
Applicant
And
| KGB |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of two girls, seeking orders whereby he would have contact with them each alternate weekend, one half of each school holiday period, and each October long weekend.
In her response, filed on 26 September 2002, mother seeks orders to this effect:
a)that the children should reside with her;
b)that the father should have contact as set out in interim orders made by this Court on 30 September 2002.
The interim orders provided for contact on alternate weekends only, and restricted the father from consuming any alcohol or administering any prohibited drug to himself whilst the children were in his care. The father was also required to ensure that the children were to have their own bed when on contact with him and that they were not to share a bed with any other person. Overnight contact has been taking place at the children's paternal grandmother's home since then, and the mother wishes to have this arrangement continued, at least for the time being.
The parties were married 26 March 1994. There are two children of the marriage; CAB, who was born on 9 January 1994, and AKB who was born on 14 June 1998. C is about to turn nine years of age, tomorrow in fact, and A is four years and six months old. The mother has another child from an earlier relationship, A, who is 16 years of age. A resides with the mother, and has no contact with her natural father. Unfortunately A no longer has any real relationship with her stepfather, the father in this case.
The parties separated in November 2000, although there was a brief period of cohabitation in late December and early January 2001. The children remained living with the mother but the father had contact with C and A. The father initially resided with his friend, MD, who was going through a breakdown of his own marriage, and then the two of them moved to a motel near the T, Hotel at R in the State of New South Wales. From there the two men shared accommodation with two other divorced men at N, and then the father and Mr D moved back to Mr D's property at R. Mr D had acquired that property from his property settlement with his former wife and the father has now acquired an interest in that property.
The parties' marriage was dissolved by means of a decree nisi on
16 January 2002. The father has since formed a relationship with a lady called KC, who has been living with him since August 2002. Contact issues between the parties came to a head after the girls spent time with their father one weekend, when they attended a barbecue at a friend's place. It was arranged that a number of adults and children would spend the night at this location. During the night, the younger child A woke up and became distressed. There are differing accounts about the circumstances, but the mother placed restrictions on the father's contact as a result.
It is the mother's position that the father drinks to excess, to such an extent that she regards him as an alcoholic. She believes that his heavy drinking puts the children's safety at risk, because he is unable to supervise them.
The mother is critical of the father's friends, particularly Mr D, whom she also accuses of drinking to excess and having low morals. The mother no longer drinks alcohol. She has become a member of the Church of Jesus Christ of the Latter Day Saints, and holds strong religious views. She has joined Al-Anon, an organisation to assist relatives and friends of alcoholics.
Now the issues in this matter are that the mother is not seeking an order for supervised contact but she does believe that there should be restrictions placed on the father, because of what she says is his alcoholism. She says that he is a chronic alcoholic, but he denies it to himself and to everyone else. As a result, his drinking makes him irresponsible in his supervision of the girls.
The father says that he is not an alcoholic and that he is a responsible father. He says that he drinks in moderation, and in a responsible manner. He wants to be able to have a normal contact arrangement with his daughters, which would involve the children staying overnight at his home on weekends, and during school holidays. He also specifically wants contact during the October long weekend, as he and a number of friends in recent times made arrangements to go away for a weekend at that time, and indeed a proposal to go away with the children on that weekend figured prominently in interim proceedings before me on 30 September. The father feels that it is unduly restrictive for overnight contact to take place only at his mother's residence.
There is no issue between the parties that the children have a good relationship with their paternal grandmother, and that she is a responsible carer. There is also no issue about the fact that the children enjoy spending time at their grandmother's home.
The family report was prepared by NG, a social worker, who was formerly the director of counselling at the Family Court at Parramatta. For the purpose of preparing his report, Mr G interviewed both parents. He also interviewed both children, interviewed the child A, and on a later occasion, Ms KC. He also observed the children C and A at play with their father. Mr G was not required for cross-examination.
Both parties gave evidence by affidavit, and were cross-examined. The father also called Ms C and Mr MD, both of whom were cross-examined by Mr Schroder, counsel for the mother.
The father's mother, Mrs JB, gave evidence by affidavit. Objection was taken to certain material contained in Mrs B's affidavit, and that material was ruled to be inadmissible. Once that material had been excised from the affidavit, Mrs B's affidavit was accepted without further challenge and she was not required for cross-examination. Her evidence is in a relatively narrow compass. In effect, she says that she was of the view that her son was a social drinker. She only recalled him being adversely affected by alcohol on one occasion, on his 21st birthday. She has given evidence of, on recent occasions, having not seen her son consume alcohol.
She has given evidence that since October, the children have been delivered to her home on a Saturday morning for the purpose of contact. Her son would be there, he would collect the children, take them out for the day, and that he and the children would then spend the night at her home. She has a spare bedroom for the children and a spare bedroom for her son. He would then leave the home about 3 o'clock in the afternoon and take the children home to their mother. She lives in U on the Central Coast. The grandmother also indicated that she knows Mr MD. She speaks highly of him, she regards him as a social drinker, and she has never seen him drink to excess.
The evidence certainly was that Mr D, who did give evidence, and the father have been friends certainly since the father was about 12 years old. So theirs is a long-term friendship.
The evidence certainly is that contact took place on a regular basis until the precipitating incident early last year, when the children had been with their father at a friend's place at E. A number of families had been there, in fact Mr D gave evidence that there would be about five fathers there, and the arrangements were that there would be a family barbecue, there would be adults and children present. Arrangements had been made for everyone to spend the night there, and certainly an amount of alcohol was consumed.
There were bedrooms available, there were also blow-up mattresses and people slept on the floor. The little girl, A, who was not then four years of age, was in a bed in a bedroom. There were also other people, other children there. The father was elsewhere in the house asleep. The child A woke up and became distressed.
The accounts given are different. The mother's account is that it was retold to her by the children that Mr D had ended up sleeping in the same bed as the child A, that A was distressed by it, and displayed symptoms of distress and upset later. The mother spoke to the father about it, and he downplayed it and said it was nothing.
Mr D gave evidence of the incident. He has formed a relationship, he has a girlfriend. He and his girlfriend were asleep in one bed. He heard the child A wake up and start to cry. He got up and went to comfort her, picked her up and patted her on the back. He indicated that he has three daughters of his own, and indeed it was the evidence that one of those daughters, now aged 15, resides with him. He made the decision, it being about four o'clock in the morning he thought, that the best thing to do to comfort this child would be to put her in the bed with his girlfriend, whom this child apparently knows. The child settled down and went to sleep. He then went off and slept in the child's bed. That is his account, so it is vastly different from the account that the mother believes.
This incident has certainly had a considerable effect on the mother. It is not the only incident that causes her concern, but it does raise her concern because of her belief that the father's drinking is such that he is not able to supervise the children because of the amount of alcohol that he consumes. It is perhaps no comfort to the mother to hear the account given by Mr D, because the mother made it quite clear in her evidence today that she does not have a high opinion of him either. She regards him as a person who also drinks to excess and she also made a disparaging remark about his morals although no evidence was given which would indicate the source of that opinion.
It is interesting to look at the family report. I indicated earlier that the reporter, Mr G, who has a considerable degree of experience in this field had interviewed the relevant parties. He certainly interviewed the mother who came out with comments which were highly critical of the father, particularly about drinking, and made references to his use of marijuana.
Her view was that the father would never face up to his problems and indeed she referred to his drinking especially whilst driving a motor vehicle and it was these issues that caused her to bring the relationship to an end. She has had in her own history her mother who has had a drinking problem but who does not apparently drink now more than once a fortnight although the mother's evidence was that when her mother does drink on this fortnightly occasion she has a reasonable amount of alcohol to drink.
The mother of course attends Al-Anon. It was certainly her evidence and in fact told through counsellor that she had drunk reasonably heavily in the past and now does not drink at all.
Clearly the father, when he spoke to the counsellor, expressed the view that his drinking was well and truly under control and that it was not a problem, that he was taking the view the mother was unduly restrictive and he blames her involvement with the church. I did indicate to the parties that I do not propose to allow these proceedings to turn into an examination into the practices of the Church of Jesus Christ of Latter Day Saints and that that matter would only be relevant if it related to contact between the father and the child.
It was interesting to read the counsellor's views of the father's current girlfriend, Ms KC. The counsellor interviewed her and of course I had the opportunity of reading her affidavit evidence and hearing her being cross-examined.
The counsellor formed, it is fair to say, a high opinion of Ms C and I quote from paragraph 90 of the report:
"Ms C who impressed as a sensible and mature young woman."
I would comment having heard Ms C and observed her in the witness box that I do not disagree with that opinion at all. She seemed to be to be sensible, she has a positive view of the father but in her profession as a prison office she would certainly have the opportunity to observe a number of men and women who, as prisoners, would be not necessarily the most pleasant people to deal with so she would seem to be in a position where she has a fair view of the more unfortunate side of the life.
Certainly her evidence was that the father did not drink to excess. She knew what alcohol there was in the fridge at home because she is the one who stacks the fridge.
I was interested to note that both the mother when speaking to the counsellor and the child A referred to the father's past use of marijuana although it was not pressed in the evidence before me that marijuana use was going to be an issue in these proceedings. Nevertheless, there is some reference there to a past use and that is a matter that would obviously cause some concern.
What particularly attracted my interest was the counsellor's reports of the interaction of the two girls with their father. It is fair to say the counsellor reports a very positive interaction. Par 75 on page 76 he says:
"When he entered the room Mr B was kissed and hugged by both daughters and they proceeded to share activities and chat with him. Over the next thirty minutes their interactions were observed to be spontaneous and natural with no indications of apprehension. C and A are attached to their father and behave accordingly. For his part, the father related to his daughters in a helpful and loving manner."
Interestingly, bearing in mind the mother's concerns about the father's ability to supervise the children at least when affected by alcohol, the counsellor reports:
At one stage, A put the whiteboard pen in her mouth and Mr B quickly asked her to remove it as it was poisonous. His automatic response suggested that he would be a vigilant supervisor in similar situations.
Mr B was also observed to divide his time equally between the girls. The counsellor's conclusion was that the relationship between father and children was loving and positive.
What then should the situation be? The mother has made much in her evidence of the fact that she believes the father to be an alcoholic. An alcoholic in the sense known to us in the Courts is a person who has an addiction to or a dependence on alcohol and indeed alcoholism is regarded as a sickness from which there is no cure in effect other than total abstention. The mother says the father is a chronic alcoholic and is in denial.
The reality is, on the evidence before me, there is not the evidence to show that. There is certainly the evidence the father has consumed alcohol and consumed significant amounts of alcohol in the past. To use the vernacular "he is a man who likes a drink." I am also of the view that Mr D is a man who likes a drink. It is a matter of concern that the father has two convictions for driving with a prescribed content of alcohol in his bloodstream in the last 10 years.
The earlier one was a mid-range PCA which be blood alcohol reading of over .08 and under .15. The second one was an over .02, this is what used to be known as a special range PCA and it applies to people in certain specific categories of driver's licences. Professional drivers, particularly those with what is known as a class 4 licence, a passenger carrying vehicle licence, have additional restrictions placed on them as far as drinking and driving and a lower blood alcohol content.
The father at the time did not have a driver's licence so of course he was driving whilst unlicensed and he was therefor in the special range and accordingly he suffered penalties prescribed by the law. If he had been more diligent and attended to his licensing requirements, it may have been that he would not have attracted the same penalties.
Mr D referred to the restrictions placed on people who drive professionally. He drives semi-trailers and has a business. He indicated he was aware of those restrictions and he clearly regards his driver's licence as important and he indicated he had not had a conviction for a drink driving offence.
The descriptions of the family barbecues enjoyed by the father and Mr D and their circle of friends indicate these are a fairly regular occurrence, that they do meet together, there is a group of adults and children as Mr D said, five fathers at a time. He does not believe that they drink to excess although clearly if people have had eight to 10 beers they would certainly not be in a position where they should even contemplate driving a motor vehicle but of course the entertainment is arranged on the basis that people do not drive a motor vehicle. What they do in fact is make arrangements for everyone to stay overnight so people can drink without the worry of having to drive home.
Mr D was of the view that certainly on the occasion that caused the concern and on the occasions in question he had certainly been in the position where he had not passed out, he was able to get up to attend to the child A when she was crying and he believed that the father was in a similar view.
The father is now living in permanent accommodation. He has his girlfriend Ms C, living with him. The evidence is the children appear to have a good relationship with Ms C and in fairness to the mother she did not utter a word of criticism of Ms C. Indeed, she is reported by the counsellor, Mr G, to have expressed the view that Ms C might have had a positive influence on Mr B's lifestyle. It certainly seems to be the situation since the interim orders were made on 30 September that contact seems to have gone reasonably smoothly. The children have enjoyed spending the night at their grandmother's place and seeing their father on a regular basis.
It is this arrangement that the mother would like to continue. She is confident that if the children spend the night at their grandmother's they are going to be well looked after. She has no difficulty with the father taking them out during the day. She has concerns, however, that if they go back to his place that the father will drink in an unrestrained manner and that he will be involved with some of his friends, like Mr D, who she does not have a high opinion or of a Mr McN who did not give evidence but the mother describes him as being a person of bad character and a person who drinks to excess.
I am not of the view that the evidence shows the father is an alcoholic. I am not of the view the evidence shows that he drinks so excessively as to render him incapable of supervising his children.
What are the matters the Court has to consider in looking at contact proceedings? Mr Schroder of counsel yesterday quite properly submitted to the Court that it was not the case of complying with the father's wishes, it was not the case of complying with the mother's wishes but what the Court has to do is work out arrangements that are in the best interests of the children concerned and quite clearly that is what s.65E of the Family Law Act says. That section lays down the Court must regard the best interests of the child as the paramount consideration.
I am also mindful of course that s.60B of the Family Law Act, sub-section 2 which sets out a number of principles which the Court must take into consideration except when the application of any of them is or would be contrary to the child's best interests.
Sub-section 60B2(b) refers to the children's right of contact on a regular basis with both their parents and other people significant to their care, welfare and development.
At the moment the children are living with their mother and it is intended that this will continue. They are seeing their father on a regular basis, admittedly under restriction. They are also seeing their paternal grandmother on a regular basis and there is no issue that the children spending time with grandma is a positive influence for them.
What are the arrangements the Court should make bearing in mind the best interests of the child must be the paramount consideration? I am guided by s.68F sub-section, which sets out a number of matters the Court must consider in determining what is in the child's best interest. There are 12 of them in all, not all of them will be relevant but all of them must be considered and I have considered them in this matter.
Sub-section 68F2(a) requires the Court to consider
any wishes expressed by the child and any factors such as the child's maturity and level of understanding that may be considered to be relevant to the weight the Court should give those expressed wishes. The child's maturity as well as the child's sex and background are also to be considered under sub-section 68F2(f).
I am dealing here with a little girl who is about to turn nine and another little girl who is four and a half. Now, they are young children and indeed the child A is of such a young age that I am not of the view that any great weight can be given to her wishes at all. I would comment however that the evidence shows to me that these children have a good relationship with their father and that they want to spend time with their father. They have a good relationship with their paternal grandmother and they enjoy spending time with her.
The Court must consider the nature of the relationship with the child with each of the child's parents and with other persons. These children have a good relationship with each parent. There is just no doubt about that. The children have a good relationship with their paternal grandmother. The children appear to have a good relationship, albeit a short history so far, with Ms C. As I said Ms C impressed me favourably as a person and the family report shows she has a positive and affectionate relationship between father and children.
The Court under sub-section 68F2(c) must consider the likely effect of any changes in the children's circumstances including the likely effect of separation from a parent or any other child. There would be a change of circumstances if the Court were to make the contact orders which the father seeks although the size of that change or the extent of that change to my mind would not be great. Clearly it would be easier for the father if the children were to spend time at his home overnight and in school holidays. I am not of the view that the children, on the evidence before me, would have any difficulty in adjusting to that. They certainly like spending time with their grandmother but it may not necessarily be a convenient arrangement for the grandmother to provide accommodation for her son and grand-daughters every second weekend. If that were the only way that I was of the view that overnight contact would continue well obviously that would have to be the arrangement but I am not satisfied that it is.
The practical difficulty and expense of a child having contact with a parent is also a matter that needs to be considered. The father lives in the R area and the mother is on the Central Coast at U. So they are some distance apart but distance is not an insuperable problem. The maternal grandmother lives at R and indeed her place is being used as the delivery point which seems to suit the children very well.
The father wants a straight arrangement certainly as set out in the family report where the children live at his place rather than his having to go to R and then they can be returned to their mother on the central coast.
I am not convinced that that would necessarily be in the best interests of the children at this stage in the light of the current hostility between the parents. I am of the view that the children should be delivered to their grandmother's residence to commence for the contact. It certainly is easier for the mother if the father is not present at the time although on the grandmother's evidence he is. The children can stay with their grandmother in an arrangement which they clearly enjoy. If they have to spend time waiting for their father they are with their grandmother and they obviously like being with her. I am not of the view that that is an arrangement from a delivery point or view or pick-up point of view that I would care to change.
I am satisfied that each parent does have the capacity to provide for the needs of the children. The mother has concerns about the father's supervisory ability when he is under the influence of alcohol. I am of the view that subject to certain conditions that the father is a suitable supervisor and Mr G's report seems to bear that out.
I have already referred to the children's maturity, sex and background and I do not propose to repeat the comments there.
The mother, of course, would want the Court to consider sub-section 68F2(h) about the need to protect the children from physical or psychological harm. The mother is of the view that the child, A, suffered some psychological harm from the Ebenezer incident. The father disagrees and Mr G in his report is not of the view the child concerned suffered any psychological harm as a result of that and appears to be an incident that should be left to fade into the past.
The attitude to the child and to the responsibilities of parenthood is an issue in this case. The parents have different lifestyles. The mother is a firm follower of her religious beliefs and has made a decision to abstain from alcohol having admitted the fact that she used to consume alcohol significantly in the past.
The father, on the other hand, likes a drink. He is not a devotee of the Church of Jesus Christ of Latter Day Saints and indeed I notice he elected to make an affirmation rather than religious oath which would tend to suggest that he is not a strong follower of any religious faith.
Clearly, there is a difficulty as far as the difference in lifestyle is concerned. The father needs to respect the fact that the mother does have a religious faith and the children are involved and for the majority of the time the children live with their mother; they are going to be involved with that religion. At the same time, the father does not want the mother's religious beliefs to be forced down his throat. I am of the view the mother needs to "back-off" to use the vernacular as far as that is concerned.
There are no family violence orders in force on the evidence before me and domestic violence is not an issue.
I am always required to look at making the order which would be least likely to lead to the institution of further proceedings. I propose to make final orders in relation to contact. Mr Wilson of counsel raised the concern that the mother's proposals would involve restrictions on the father's contact, although not supervised contact which if not changed could last for up to 14 years, or nearly 14 years until the child A reached the age of 18. The mother was certainly of the view that there needs to be some reasonably long-term restrictions in place.
Mr Wilson has submitted and I am of the view with some force that the mother has not completely recognised the fact the father has moved on, that she may well be perceiving him as she saw him at the time when she decided that the continuation of the relationship was untenable. The father has moved on. He has formed another relationship. He has acquired what appears to be a suitable residence. I have seen photographs here which were part of exhibit 2. The significance of some of the photographs is not entirely clear. I am not sure what I am to make of the photograph of the dog with the piece of toast that appears prominently in the foreground except that it seems to be a very pleasant looking dog but the photographs of the residence, which I think are the chief reasons for it, indicate it is a comfortable home on wide grounds with a very pleasant looking view and the question I would ask is rhetorically perhaps why should the children not be able to spend some time there if the Court were satisfied that their safety would be preserved?
As I said I am not satisfied that father has been shown to be an alcoholic. I am concerned that the father has had, on some evidence before me, what could best be described as nodding acquaintance with marijuana. Marijuana or cannabis is a prohibited drug in the State of New South Wales. It has not been decriminalised. It certainly has not been legalised. I am not of the view that the administering to oneself of a prohibited drug is a matter that is consistent with responsible parenting and I do propose to make an order reinforcing what the Drug Misuse and Trafficking Act in New South Wales already says.
I am concerned the father has on two occasions come under notice for alcoholic driving offences in the last 10 years. That is certainly not the worst drink-driving record I have ever heard but it does give some support to the mother's concerns that drinking at least whilst driving is something that should not be tolerated and the father needs to accept certain restrictions there and I propose to make orders which will restrict the father's consumption of alcohol not during the entire period of contact but certainly to prohibit him from consuming alcohol for any period certainly for two hours period prior to driving any car in which either of the children is a passenger. I note the mother has complained the father has turned up to either collect the children or deliver them and she has smelt alcohol on his breath. I am of the view that that is only an inflammatory situation and in any event if one is driving a car with children as passengers a very conservative approach to drinking should be considered but I do not propose to restrict the father from having overnight contact with the children only at his mother's place.
I do not propose to make an order which would not permit him to have school holiday contact. At the same time, I do not propose to make an order guaranteeing him the October long weekend either. It may be an occasion that he wants to participate in but it is part of the school holiday period and I think that is something that should be negotiated as part of school holiday contact with the mother. The mother does have the need to know that if the children are going to be away with their father she would want to know where they are and what activities are involved in. I am not of the view the mother should have any fears if the children are with their father at his home whether or not Ms C is there and I accept the fact that she works shiftwork. I am not satisfied that I should make any order restricting the children from being brought into contact with Mr D. The mother's poor opinion of Mr D has not to my mind been supported by any evidence which would enable me to have similar views.
Exhibits may be returned after 30 days including the photograph of the dog with the piece of toast. Any other subpoenaed documents that were not exhibits may be returned forthwith and subject to any applications people want to make to me now I would otherwise be removing the matter from the pending cases list but I will be ordering a transcript of my reasons for this decision and written typed copies of these orders will be made available from my associate this morning.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 13 February 2003
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