BRYANT & WATSON

[2015] FamCA 76

FAMILY COURT OF AUSTRALIA

BRYANT & WATSON [2015] FamCA 76

FAMILY LAW – Parenting: Limited dispute about restrictions on use of alcohol.

Family Law Act 1975 (Cth)

Sealey and Archer [2008] FamCAFC 142

APPLICANT: Ms Bryant

RESPONDENT: Mr Watson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2090 of 2014

DATE DELIVERED: 18 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE APPLICANT: Moores

COUNSEL FOR THE RESPONDENT: Ms Bonney

SOLICITOR FOR THE RESPONDENT: Stacks The Law Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That for a period of 12 months from this date, the mother be and is hereby restrained from consuming any alcohol during the period she has the direct care and control of B, C and/or D (and it is to be noted that this order is made notwithstanding paragraph 21(b) of the minutes attached to the orders made 13 February 2015).

2. That 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2090  of 2014

Ms Bryant

Applicant

And

Mr Watson

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. There was only one parenting issue that the parents of B aged 2 years required the Court to determine. To their credit, the parents were able to sort out all major issues including the sharing of parental responsibility.

2. The unresolved issue is the period of time during which the wife is not able to consume alcohol if B is in her care. Her position was that it should be for a year. That is a significant concession. The husband wanted the order for an indefinite period; that is, until this two year old turns 18.

3. A brief synopsis of the background in this case will suffice.

4. The husband is Mr Watson. He is 46 years of age and a company director. He lives in New South Wales. The wife is Ms Bryant. She is 36 years of age engaged in home duties and runs her own small business. The parties lived in a relationship from about 2007 and then married late in 2011. They separated permanently on January 2014.

5. B is the only child of the husband and wife. The husband has two children in his care from his previous relationship. Those two children saw the wife as a mother figure and there was affection between them. The tyranny of distance precludes a strong relationship between those two children and B.

6. The parties through their respective counsel and with the assistance of counsel for the Independent Children’s Lawyer had resolved the main unresolved issues but requested that the Court hear submissions on two discrete matters. The first was as I have set it out above. The second was similar to the first namely the length of time that the wife should live with her mother, the maternal grandmother.

7. The focus of the husband’s case for the discrete matter lay in the history of what could only be described as a conflictual and unsettled relationship. Therefore, the period from 2007 until the marriage is of some importance because despite all of their personal dramas, the parties went ahead and not only married but also had B.

8. The traumatic background can be seen in the material tendered in evidence. The facts about that period were not disputed. There were questions of an historical nature about the wife’s choices of partner in the past and that was evident from the evidence. I have no current concerns based on the evidence of the maternal grandmother of B.

9. It is not necessary that I deal with each fact as a synopsis will suffice. In the course of this tumultuous relationship, the wife attacked the husband one night when she was affected by alcohol. A knife was involved. She was charged by police and ultimately, released by a court on a bond. That was 2009. The outcome as reflected in the court record must give some indication that the court did not see the facts as serious or that there were exculpatory facts involved. That offence seems to have arisen out of an argument between the husband and wife but again, it was common ground that there was a significant amount of alcohol involved.

10. In the previous year, the wife was convicted of driving under the influence of alcohol and lost her licence and was fined. What is significant about that is the size of the reading. I can take judicial notice that a blood alcohol reading of 0.19 is high. Indeed, the offence referred to the “higher” range. It would indicate a lot of alcohol was consumed on that occasion and there was risk taking behaviour in her driving.

11. The history of both parties is littered with police intervention relating to family violence. Both parties are shown at various times as victim and perpetrator. The wife was also accused by the husband of attempting to burn down the house. The wife disputed that and I make no finding about it. It is another indicator of the dysfunctional relationship. There were other problems but they were all prior to the marriage.

12. When the wife was in this relationship, she was obtaining professional help. It is hard to tell whether that made any difference because the personal problems continued. There were suicide attempts. Before the relationship, the wife was a victim of sexual assault on a number of occasions one of which was in circumstances where the wife was affected by drugs or alcohol. She was apparently unable to identify the perpetrator. In obtaining professional help, the wife acknowledged that she had problems with boundaries. No similar difficulties now subsist but it was the husband’s position that absent the control or overseeing by the grandmother, there was a risk of reversion to past behaviour. The Court does not have a crystal ball and in cases involving children, it should take a cautious approach. Here, the evidence of the grandmother assists to enable a finding that lessons by the wife have been learned and she is stable and competent as a parent. I take comfort in the fact that much of that past behaviour (although not all of it) occurred during or before the marriage relationship.

13. Since separation, the wife has been seeing a counsellor whose notes (albeit cryptic) were tendered. They show a varying degree of the wife feeling she was making progress and seeking strategies whilst also expressing hopelessness. Whilst the counsellor described these under the heading of suicide ideation, she went on to note that there was no “plan”. The objective evidence enables a finding to conclude that there is no current  risk.

14. The family consultant who prepared the family report noted in August 2014 that progress was being made by the wife but that it would be better if she did not drink alcohol. That recommendation led to injunctive orders in October 2014 to which the wife consented. I am satisfied there is no reason to continue the orders in the way they were framed but there is a basis for the order now drawn by the wife which covers the ensuing 12 month period.

15. I find therefore that the history justifies the husband’s concern but also that of the Independent Children’s Lawyer. Having said that, I accept that the explanation for the behaviour was associated with the poor relationship. The question therefore is whether the wife has turned the corner and that despite what looked like alcohol dependence, the Court could be confident that there is no risk to B by her parenting creating risks or of her being irresponsible.

16. After much debate and accepting the grandmother’s undertaking about what she would do if concerns appeared to her about B, I asked that she give evidence. She did so and was cross-examined by all counsel and by the Court. I am satisfied that she is not only a genuine and honest person but one who would not put her grandson at risk in her daughter’s care. The evidence disclosed the “warts” of the past which were no doubt uncomfortable but I accept that she will protect her grandson.

17. The grandmother was strong in her view that B is attached to the wife. In her household, the wife is the primary attachment figure. The wife has been responsible and focused in her parenting. All of this has occurred when (on the evidence) there have been occasions of stress when the parties spoke to one another. Nothing seemed to show that the wife could not manage her affairs which included B. She now has obtained separate residential premises not far from the grandmother. She has taken a lease for 12 months.

18. On that basis, there is no reason for me to require that the wife continue to live with the maternal grandmother. The grandmother said she would not only comply with the terms of the undertaking but also attend regularly and speak regularly to her daughter to ensure that she kept an eye on her grandson. I accept she will not only be vigilant but also if a conflict occurs between loyalty to her daughter and the interests of her grandson, his interests will prevail.

19. There is an obvious and natural reticence for extended families in many cases to extend the hand of friendship and maintain a relationship with a former partner of their child where serious allegations have been made and accepted by that person to be true. In this case, the relationship between the husband and the maternal grandmother is cool but it does exist. I am satisfied if any problem arose, the grandmother would make the call to her former son in law. In addition, she agreed that if he rang to check on her perception of the progress of B, she would provide information to reassure him.

20. Even the limited inquiry here which peers into the conduct and lifestyle of the parents, must not be distracted from the proposal that would best promote the welfare of B. 

21. Section 65D of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings for a parenting order, the Court may, subject to ss 61DA (which is the presumption of equal shared parental responsibility when making parenting orders) and 65DAB (dealing with parenting plans) make such parenting order as it thinks proper. Because of the discrete nature of the issue to be determined, neither of those matters is contentious. Thus, the Court needs to contemplate, amongst other things, what is proper here.

22. A parenting order may deal with, amongst a variety of things, any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. Both of those matters seem to be the basis upon which the husband seeks the injunctive type orders. It was not suggested that the injunctive powers in Part VII of the Act should be applied but rather, it would seem, the welfare provision.

23. Section 60CA of the Act requires the Court in deciding whether to make a particular parenting order, to regard the best interests of the child as the paramount consideration. The use of the word “paramount” must mean that there are other considerations as well but the best interests of the child must take precedence. Thus, whilst it is necessary to consider B’s interests as the primary matter, the Court is entitled to take into account the restriction of the wife’s lifestyle. If there is a basis to consider that B is at risk in some way, the wife’s interests must give way.

24. The presumption (s 61DA) is that it in B’s best interests that his parents have equal shared parental responsibility.  The parties have agreed on that yet they have significant communication problems and limited trust in each other as parents.

25. The making of an order for equal shared parental responsibility requires the Court to contemplate the sharing of time between the parents. The parties have worked that out themselves and do not require a Court determination.

26. To determine what is in the best interests of a child, the Court is required to consider the factors set out in s 60CC of the Act. Those factors have to be considered in the light of not only the philosophical guide set out in s 60B but also in the context of the respective proposals of the parties.

27. In respect of those s 60CC factors, the Full Court observed in Sealey and Archer [2008] FamCAFC 142, that whilst the considerations are mandatory, the order of contemplation of them is not.

28. Section 60CC(2) sets out the primary considerations and s 60CC(3) the additional considerations. The Court is required to consider them all so far as they are relevant. I shall consider them sequentially.

29. There is no suggestion here that the orders sought will have an impact on the benefit that B will get from having a meaningful relationship with both parents. The husband focused on the risk to B if the wife has untrammelled rights to move away from the grandmother and to drink alcohol bearing in mind the concession she has made.

30. B’s views cannot being considered relevant having regard to his age. The question of the wife’s capacity as a parent was very much the issue. The husband’s position was that if she had any alcohol, there was a risk of B being hurt. All of that was based on history. Two things convince me that I should not be so restrictive. First, there is no evidence of poor parenting associated with alcohol. Secondly, I have the evidence of the grandmother who said that until orders were made in 2014, she enjoyed a glass of wine with the wife and there was no sign of irresponsibility. In the period since the orders were made on the recommendation of the family consultant, there has been no indication of aberrant behaviour in respect of parenting.  The grandmother saw no reason to doubt that situation would continue.

31. There is no doubt that the wife provides all of the physical, intellectual and emotional needs for B. The husband had sufficient confidence in her to agree to the orders he otherwise did even if it was on the conditions he pursued. His counsel said that the husband was not seeking a change of residence if the Court was disinclined to make the orders about the alcohol restrictions and where the wife was to live.

32. There are clearly practical difficulties in the contact between the husband and B as well as the other two children. Those difficulties also make it hard for the husband to check that B is not at risk in the wife’s care because of her alcohol use. I am satisfied that the grandmother’s evidence and the comments of the wife’s counsellor indicate that she realises how serious any dereliction of duty would be.

33. One of the factors in s 60CC concerns the question of the responsibilities of parenthood. Alcohol abuse is one example of poor responsibility where a parent knows of having a problem because the standard of care falls and the child can be put at risk of not just physical harm but also psychological harm. Exposure to aberrant adult behaviour, abusive conduct and violence are all symptoms of the wife’s past conduct when affected by alcohol. It is obvious that in that environment, a child would be affected. The evidence here supports the conclusion that the wife is now responsible.

34. Other issues in s 60CC(3) were not matters of contention.

35. I am therefore satisfied that the wife’s concession and the evidence of the grandmother justifies the order sought by the wife.

I certify that the preceding Thirty Five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 February 2015.

Associate: 

Date:  18 February 2015