Byrne and Smith and Anor
[2009] FMCAfam 338
•15 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BYRNE & SMITH & ANOR | [2009] FMCAfam 338 |
| FAMILY LAW – Interim parenting orders – Department of Community Services intervention – drug and alcohol consumption – postponement of the final hearing – supervised or unsupervised time. |
| Family Law Act 1975, Pt VII |
| Goode & Goode [2006] FamCA 1346 Hogan and Hogan [2008] FMCAfam 1219 |
| Applicant: | MS BYRNE |
| Respondent: | MR SMITH |
| Second Respondent: | DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES |
| File Number: | SYC 3151 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 26 March 2009 |
| Date of Last Submission: | 26 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carr |
| Solicitors for the Applicant: | Athena Touriki Solicitors |
| Solicitor-Advocate for the Respondent: | Ms Carroll |
| Solicitors for the Respondent: | Legal Aid Commission of NSW |
| Solicitor-Advocate for the Department of Community Services: | Ms Dart |
| Solicitors for the Department of Community Services: | Crown Solicitor Office |
| Solicitor-Advocate for the Independent Children’s Lawyer: | Ms Adams |
| Solicitors for the Independent Children’s Lawyer: | Hamish Cummings Family Lawyers |
THE COURT ORDERS PENDING FURTHER ORDER OF THE COURT:
Order 5 made by consent on 6 February 2009 be vacated.
The children, [X] born in 2002 and [Y] born in 2003, spend time with the father once each month in Sydney from 10am to 4pm on a Saturday and a Sunday, such time to be undertaken in the presence of the father’s sister, Ms S, and otherwise conditional on:
(a)The said Ms S being properly qualified and accepted as a supervisor by the 2nd respondent; and
(b)The said Ms S entering into a written undertaking to the court, in a form provided by the solicitor for the 2nd Respondent, to:
(i)Be present at all times when the children are collected, returned and are otherwise with the father; and
(ii)Forthwith terminate the father’s time with the children, and return them to the 2nd respondent or its nominee, if the father consumer alcohol or is under the influence of alcohol, whilst in the presence of the children; and
(c)the father entering into a written undertaking to the court, in a form prepared by the solicitor for the 2nd respondent, to:
(i)not consume alcohol in the presence of the children, or be under the influence of alcohol in the presence of the children, and not consume alcohol within 24 hours prior to spending time with the children; and
(ii)not to bring the children into the presence of any undesirable or inappropriate person, or anyone who is under the influence of alcohol; and
(iii)not to take the children outside of the Manly and northern beaches area of Sydney.
The children spend time with the mother in Sydney as follows:
(a)Commencing from the first Monday after the making of these orders, and continuing until further order, for a period of 2 hours during the week unsupervised, but with the 2nd respondent arranging for the collection and return of the children and their supervision at the time of change-over; and
(b)Commencing from the sixth weekend after the making of these orders, and subject to the availability of a service that can supervise the mother’s collection and return of the children, for a period of 5 hours on either Saturday or Sunday, depending on and at the times nominated by the service providing supervision at change-over; and
(c)Commencing from the 12th weekend after the making of these orders, and subject to the availability of a service that can supervise the mother’s collection and return of the children, for a period of 8 hours on both Saturday and Sunday depending on, and at the times nominated by the service providing supervision at change-over; and
(d)At all other times as agreed to between the mother, the 2nd respondent and the Independent Children’s Lawyer.
The mother’s time with the children in accordance with these orders is conditional on the mother:
(a)Continuing to satisfactorily engage with all services approved by the 2nd respondent to deal with her addiction issues; and
(b)Complying with all requests made by either the 2nd respondent and/or the Independent Children’s Lawyer for urinalysis, hair testing, or CDT testing, provided that the mother is not required to undertake more than 2 such tests each calendar month; and
(c)The mother not consuming alcohol for a period of 24 hours before or during any time she spends with the children, or being under the influence of alcohol whilst in the presence of the children, or permitting any other person to do so.
Either the 2nd respondent or the Independent Children’s Lawyer is at liberty to immediately re-list the matter before Federal Magistrate Altobelli and/or decline to make the children available for time with their mother if:
(a)The results of the testing in order 4(b) are such that there is reasonable evidence to conclude that the mother has failed to comply with order 4(c); and/or
(b)There is a report from the supervisors at the time of collection and return of the children such that there is reasonable evidence to conclude that the mother has failed to comply with order 4(c).
The Independent Children’s Lawyer has leave to file in chambers an agreed order relating to the appointment of an appropriate expert to prepare a report to assist the court as regards the parents’ consumption of alcohol and/or other narcotic drugs.
The hearing commencing 1 June 2009 is vacated.
The matter is set down for final hearing commencing 21 September 2009 at 10.00am for a period not exceeding 4 days.
Each party file and serve any affidavits on which they intend to rely by no later than 7 September 2009. No further affidavits to be filed after that date without leave of this Court.
The Applicant pay the hearing fee or obtain a waiver of that fee by no later than 7 September 2009.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which each party will rely at hearing; and
(b)The Orders sought at hearing.
The parties have liberty to apply generally on 48 hours notice.
IT IS NOTED that publication of this judgment under the pseudonym Byrne & Smith & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3151 of 2008
| MS BYRNE |
Applicant
And
| MR SMITH |
Respondent
And
| DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons relate to an interim application about the time two children are to spend with each of their parents. The children are [X] born in 2002, now aged seven years old, and [Y], born in 2003, now five years old. The applicant is their father who is 38 years old. The respondent is their mother who is 40 years old. The father is currently in Tasmania, the mother in Sydney. The children live in foster care in the northern suburbs of Sydney. The second respondent in these proceedings is the Director-General of the Department of Community Services. The children are independently represented by Mrs Adams, the Independent Children's Lawyer.
Background
A brief history of these proceedings is necessary. The parents lived in a de facto relationship between May 2001 and May 2007, when the father moved to Darwin and the children remained in the mother's care in Sydney. In August 2007, the mother commenced a de facto relationship with a Mr B. The mother asserts that this man is no longer cohabiting with her and lives in separate accommodation. The mother does not assert, however, that the relationship is over.
An incident occurred at the children's school on 25 September 2008 and since then the children have been in the care of the second respondent Director-General. This was initially pursuant to a series of temporary care agreements and then pursuant to interim consent orders made in this Court on 6 February 2009. The mother commenced proceedings relating to the children in this Court in May 2008. The first significant order was a consent order made, 23 July 2008, even though it was actually signed 16 May 2008. I summarise the effect of this order as follows: subject to the mother giving certain undertakings including an undertaking not to associate with Mr B, not to bring the children into contact with Mr B, to undergo within 21 days a psychiatric evaluation in relation to any risk by her of suicidal behaviour and to maintain all recommended medical treatment by her treating medical professionals, including taking her medication, then the children would live with her. The children were to spend time with the father as agreed between the parties. Neither party was to consume alcohol to excess or non prescription illegal drugs at all whilst the children were in their respective care. Neither party was to remove the children from the jurisdiction of Australia. Each party was to undergo urinalysis tests at a frequency no greater than one test every four week period at the request of the other. There were further orders about non-denigration, keeping the other informed of changes to addresses and so forth. The matter was actually set down for hearing on 11 March 2009. A family report was ordered.
The next significant order was again made by consent on 6 February 2009, and I summarise the effect of those orders as follows. Leave was granted to the Director-General or the Department of Community Services to intervene in these proceedings. The children were placed under the parental responsibility of the Minister for Community Services. The children were to live as directed by the Director-General and to spend time with each of the parents as agreed with the Director-General's delegate, such time to be in Sydney. There were a number of notations. Firstly, the Court noted that the mother and father are currently spending time with the children twice per week for one hour on each occasion and supervised by the Director-General's delegate. Further, that the parties were engaged in discussions about an increase in time and so forth. An Independent Children's Lawyer was also appointed.
Obviously a lot happened in between these two consent orders and where relevant the evidence about these events will be discussed below.
Dr Julianne Greenfield prepared a family report in this matter. It is dated 8 March 2009 and was released to the parties on the next day.
It was prepared based on interviews and observations held between
11 and 26 February 2009, however, it was clear that the family consultant did not have available to her at that time, the considerable volume of material that was put on by the second respondent, nor had she access to the subpoenaed documents. When the matter came before me for hearing on 11 March 2009 it was clearly not ready for hearing so I allocated hearing dates in June and stood over the interim hearing to 26 March 2009, particularly to take into account Dr Greenfield's report and the further evidence before the Court. In this period the children have been in foster care and have been spending limited but frequent and supervised contact with both the father and the mother, albeit at different times. On 26 March 2009, I had the benefit of oral evidence from Dr Greenfield, who had by then taken into consideration the further evidence.
Competing proposals
At the interim hearing, these were the proposals as I understood them:
The mother
The mother’s initial proposal was two afternoons weekly, after school and on Saturday 9am to 5pm and then escalating to each weekend and then over Easter as well. No supervision was proposed by the mother. In the alternative she proposed supervised time each Saturday between 9am and 4pm. The mother proposed two further orders. Firstly that she not consume alcohol for 12 hours before contact or during contact, and secondly that the children not come into contact with Mr B. During the course of the interim hearing on 26 March 2009, the mother's position changed so that in effect she was prepared to accept orders reflecting recommendations made by Dr Greenfield. The mother also proposed no contact between the children and the father unless supervised.
The father
The father proposed that the mother have no time with the children unless supervised. He proposed that the children spend time with him in Sydney one weekend per calendar month between 10am to 6pm on Saturday and 10am to 3pm on Sunday, and also in Tasmania between 18 April and 25 April 2009, and in each case, unsupervised. In the alternative he proposed one of his sisters to supervise his time in Sydney and one of his sisters, Ms J, to supervise in Tasmania.
The proposal of the Director-General, Department of Community Services
The second respondent proposed that there be sole parental responsibility for the Minister of Community Services, that the children live as directed by the Director-General of the Department and spend time with the parents, twice per week, for not more than one hour, in Sydney, supervised by a nominee.
Independent Children's Lawyer
The Independent Children's Lawyer adopted the recommendation made by Dr Greenfield in her oral evidence before me on 26 March 2009. Dr Greenfield recommended that, in effect, there be a carefully graduated programme of contact between the children and the mother, commencing with twice weekly contact in the area where the children are now living, with supervised changeovers only, that is, unsupervised time, but not for more than two hours. Then, in about six weeks’ time, the contact could be increased to five hours between 10am to 3pm on a weekend. Next, in about eight weeks, between 10am to 3pm but twice on the weekend and then finally, subject to the mother's progress in dealing with her alcohol issues, this could progress to unsupervised time at he mother's new residence, on the basis that the mother had recently sold the existing residence.
It is important to note the preconditions and reservations that Dr Greenfield mentioned in her evidence. Changeovers were to be supervised as a means of monitoring whether the mother was intoxicated or under the influence of alcohol, but subject to that, the mother's actual time with the children could be unsupervised. The escalation in the amount of contact was to be linked to the progress of the mother's rehabilitation.
In relation to the father, Dr Greenfield proposed a continuation of supervised contact, one per calendar month, but not overnight, together with telephone contact. Dr Greenfield believed that the father's sister, Ms S, would be an acceptable supervisor.
The issues
I need to decide the parenting order that is in the best interests of the children. However, in order to do this I need to focus on what the issues are.
a)Firstly, how much contact should there be and in what circumstances, e.g. supervised or unsupervised, in Sydney or out of Sydney?
b)Secondly, whether the children need to be protected from physical or psychological harm whilst in their parents' care, such that supervision was necessary.
c)Thirdly, are the drug and alcohol issues faced by each of these parents such that they are unable to protect the children from harm, and do the parents lack the capacity to meet the children's needs, and have they demonstrated an irresponsible attitude to the children and to the responsibilities of parenthood?
d)Fourthly, a procedural issue I raised with Dr Greenfield and the parties is whether, in the circumstances, it would be better to actually postpone the final hearing from June to September so as to allow more time to assess the effectiveness of any interim arrangement.
The Applicable Law
An application like this is governed by Part VII of the Family Law Act and the Full Court's decision in Goode & Goode [2006] FamCA 1346 provides some parameters, and I incorporate into these reasons paragraphs from the said decision.
68. In our view… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
I note however, that the present interim application is in a significantly different context to that of Goode & Goode. There is an abundance of evidence from the parties and their witnesses. There is a significant volume of relevant and helpful subpoenaed material. I have a family report and oral evidence from Dr Greenfield, the author of that report. Even though the evidence of the mother and father is untested by cross-examination, the scope from making findings, even at an interim level, is considerably greater.
Parenting and drug addiction
In Hogan and Hogan [2008] FMCAfam 1219 (14 November 2008) I made the following general observations:
32. In a case where it is alleged that one or both parents, or any person involved in the care of a child, are addicted to drugs, this is highly relevant because, potentially:
a) It might undermine or even destroy the meaningful relationship that exists between child and parent (s.60CC(2)(a)); and/or
b) It creates a need to protect the child from physical or psychological harm from being subjected to, abuse, neglect, or family violence attributable to the drugs (s.60CC(2)(b)); and/or
c) It adversely impacts on the nature of the relationship of the child with the drug dependent person (s.60CC(3)(b)); and/or
d) It impairs the capacity of that parent or person to provide for the needs of the child: (s.60CC(3)(f)); and/or
e) It demonstrated a poor attitude to the child and to the responsibilities of parenthood (s.60CC(3)(i)); and/or
f) It might lead to situations of family violence (s.60CC(3)(j)).
33. From a social science perspective, parenting and drug addiction are a potentially dangerous mix for the child. Drug dependence creates a pre-occupation that is inconsistent with responsible parenthood. The compulsion for drugs is not inconsistent with parental love, but is often inconsistent with the ability to meet the needs of children. Choices are often made that compromise the ability of parents to protect their children. Funding and maintaining a drug habit creates instability in family life. Children can often become secondary priorities, and thus vulnerable to harm. Routines are often disrupted. Sometimes drug dependency leads to exposure to criminal behaviour and the criminal law. Even if a parent is physically present for a child, drug dependence often leads to emotional unavailability for children, which is sometimes the most damaging impact. In short, parental capacity is grossly compromised. (See generally Barnard M., Drug Addiction and Families, London: Jessica Kingsley; 2007.)
34. This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
I believe these general comments apply as much to this case as they did in Hogan. Alcohol addiction is a form of drug addiction.
Submissions made in support of the proposals
Counsel for the mother
Counsel for the mother described the mother's progress in dealing with her alcoholism as impressive. Whilst she has not abstained, she has certainly moderated her drinking. Her urinalysis and CDT results are encouraging and the mother is to have a full drug and alcohol assessment by Dr K. Having regard to all of these matters, the mother adopted Dr Greenfield's proposal and indeed feels that the escalation suggested by Dr Greenfield can proceed quicker. The mother opposed any unsupervised time between the father and the children as he has not demonstrated a commitment to dealing with his drug and alcohol issues. The mother prefers not to postpone the hearing.
The solicitor for the father
The solicitor for the father adheres to the father's proposal notwithstanding Dr Greenfield's evidence, especially as Dr Greenfield had not properly considered the evidence of the father's urinalysis and CDT results, which do show a commitment to dealing with his drug and alcohol issues in the same way as the mother has.
The father has a good relationship with the children. He is willing to undergo further testing. The father is controlling his drinking. As the paternal grandfather in Tasmania is gravely ill, he wants the children to travel to Tasmania and he is even prepared to absent himself during the time the children are there. The father agrees in principle to supervised changeovers and is prepared to limit his time to a particular geographical area and to offer undertakings in relation to his consumption of alcohol. The father strongly opposes the mother having any unsupervised time with the children. He asserts that the mother has minimised the extent of her own drug and alcohol issues, and the extent to which she has contributed to the current situation, that the mother has breached undertakings she has given to the Court on 27 July 2008 and cannot be trusted to adequately care for and protect the children. The father's final orders are that the children live with him. He prefers not to postpone the hearing.
The Director-General of the Department of Community Services
Both parents, and, even possibly Dr Greenfield and the Independent Children's Lawyer, have not fully appreciated the seriousness of the events which led to the children being placed in the care of the Department. The mother's drug and alcohol issues are a serious impediment to her capacity to parent. All the evidence indicates the mother's inability to deal satisfactorily with her drug and alcohol issues. She has misled those who treat her about the extent of the problem. She has broken undertakings given to the Department of Community Services and to the Court. Whilst she has accessed a range of services to date, nothing has changed. She continues to drink, but she says she has moderated the same. The fundamental assumption made by Dr Greenfield, that is, that Mum has “runs on the board”, is flawed because Mum continues to consume alcohol at high levels. She faces other considerable obstacles to recovery including a dangerous relationship with her de facto. The Department of Community Services' final position is that the children should be full-time in the Minister's care, whereas Dr Greenfield and the mother's case is predicated on the hope of eventual restoration. There is a real risk to the children if the hope of restoration is held out to them and then is dashed. There is a real risk to the children of exposure to the mother on an unsupervised basis.
In relation to the father's time with the children, that should remain supervised, but it would be acceptable to have his sister provided she completes proper intake procedures. The Department prefers not to postpone the hearing because of the uncertainty in relation to the willingness of the foster parents to continue to care for the children. There is no benefit to the children in postponing the hearing. There is no disadvantage to the children in continuing supervised contact.
The Independent Children's Lawyer
None of the supervisors' reports provided in evidence by the Department give rise to any concerns or risk. Provided the changeovers are supervised, the actual time can be unsupervised, and that time should increase subject to the availability of supervision at changeover. The Independent Children's Lawyer acknowledges that the Department cannot provide supervision on weekends. The extent of the increase in contact depends on:
(1)The availability of supervisors;
(2)Whether the hearing is put off till September;
(3)The availability of the existing foster carers.
There is no evidence to indicate that a mental assessment is needed for the mother and hence a drug and alcohol report by Dr K would be better. It would be best to keep the option open for an interim hearing in June if the final hearing is postponed to September. The best outcome for the children is restoration to the mother's care. CDT testing on an ongoing basis might monitor controlled consumption, but expecting abstinence is setting the mother up to fail.
The Independent Children's Lawyer also supports Dr Greenfield's position in relation to the level of supervision needed for the father.
The above summary does not do justice to the thoughtful submissions that were made on behalf of all parties.
The Evidence and findings
There is no evidence to support the contention that the mother's mental health per se is a reason for supervised contact. She suffers from depression and is on medication for the same. I accept the evidence of Dr W in this regard. I agree with the Independent Children's Lawyer that no further mental health assessment of the mother is needed. It is not an issue in this case of significance.
The evidence raises concerns in my mind about the father's ongoing drug and alcohol issues. He has minimised the same before the Court. He has not done enough to reassure the Court that his drug and alcohol issues are being attended to. The affidavit of Ms F sworn 4 March 2009 presents a deeply disconcerting picture of the father’s attitude about the consumption of alcohol. Dr Greenfield's assessment is appropriate under the circumstances. The children do have a good relationship with him, that is not the issue in this case, so ongoing contact is important but it must be supervised by his sister, subject to her being properly qualified by the Department of Community Services. Ms S is to provide an undertaking to the Court that she will be present at all times when the children are collected, returned and at all other times when with the father. In addition, she is to undertake to the Court that she will forthwith terminate the father's contact if she believes that the father is under the influence of alcohol, or consumes alcohol whilst in the presence of the children. Subject to this and subject to the reasonable convenience of the children's foster parents, the father's contact may be once per calendar month from 10am to 6pm on Saturday, 10am to 3pm on Sunday.
For the time being, I see no benefit in the children travelling to Tasmania. The father offers to the Court and the Court accepts his undertaking to the following effect: not to consume any alcohol in the 24 hour period prior to contact or during contact, not to bring the children into the presence of any undesirable or inappropriate person, not to take the children outside of the Manly and northern beaches area of Sydney.
The issue about whether the mother's time can progress to supervised changeovers, but unsupervised time, depends on whether the children can be adequately protected from harm as a result of supervised changeovers. If it can be ascertained that the mother is not under the influence of alcohol at the commencement and conclusion of her time with the children, this will go a long way to reassuring the Court about the children's safety when they are with her. This level of supervision can certainly be achieved under the current Department initiated arrangement whereby Phoenix Rising supervises. They are not available on the weekend, but it seems to me that the same protective function can be achieved through a supervised contact centre, which facilitates changeovers and which has in place a reporting and protective mechanism if the mother attends at any time whilst under the influence of alcohol.
I would like the Independent Children's Lawyer to explore the possibility of using a supervised contact centre for changeovers, subject to a willingness on their part to adopt a reporting and protective role as I have outlined above. But the need for this protective mechanism necessarily limits the amount of time the mother can spend with the children. It could not extent to overnight, at least without supervision because at the moment, the Court is not satisfied on the evidence that the mother is adequately managing her drug and alcohol issues. The comments I make below will explain this. I therefore propose to accept in principle, Dr Greenfield's recommendations for a carefully graduated programme of escalating time between now and the final hearing. As at today, however, I am not prepared to move to unsupervised overnight time.
I therefore propose as follows: the existing arrangement for mid-week contact to continue until the final hearing and I note the Department's willingness to increase time to 2 hours per session. However, only the changeovers are to be supervised. In 6 weeks time, subject to the availability of a supervised contact centre to supervise collection and return of the children, the mother to have unsupervised time one day each weekend for a period of 5 hours, at times convenient to the supervised contact centre. In 12 weeks time, again subject to the availability of the supervised contact centre to monitor collection and return until the final hearing, and again subject to the matters I have set out above, the mother can have unsupervised time for two days each weekend, for a period of 8 hours, at times convenient to the supervised contact centre.
If the supervised contact centre is not available, but another supervisor can be found who is acceptable to the father, the Independent Children's Lawyer and the Director-General of the Department of Community Services, then that is acceptable to the Court.
For the time being I have ruled out unsupervised overnight time, but without in any way prejudging the matter, I would like the mother to know what sort of evidence might influence the Court to move to unsupervised overnight time and possibly even restoration. These comments apply in principle to the father as well.
The issues at a final hearing, that is the focus, may well be different to that which it is today. It all depends on what happens between now and then and how each of the parents deal with their respective issues. Dr Greenfield is probably right; the issue is not the relationship between the parents and the children, but the underlying drug and alcohol issues that both parents face. This involves a close consideration of the parents' willingness and capacity to protect the children from the parents' own problems, as well as the potential dangers arising from other people in the parents' lives. The Court will be very interested in evidence that monitors how each of the parents are dealing with their drug and alcohol issues. I am asked to order a report from Dr K, a leading expert in the field, and I will do so. His report will not decide the case, but of course will have an influence on it.
The Court wants to understand how committed the parents are to dealing with their problem. The Director-General says total abstinence must be the goal. Neither parent seems willing to do this at this stage, on the evidence before me. I am not saying that at a final hearing the Court will necessarily require total abstinence, but the parents need to consider very carefully a number of things. What if Dr K says that total abstinence is the preferred or only acceptable outcome? What if he recommends a programme that has already been tried by a parent but discontinued? The parents should perhaps consider doing the role reversal exercise with the Bench and ask themselves a question; what does the Court need to see from me before it will consider giving me what I want, that is, the children to live with me? What are the key performance indicators or measureable outcomes that can be used to actually measure and mark my progression in dealing with drug and alcohol issues between now and the final hearing?
It might be difficult to grant the orders that either party seeks at a final hearing on the basis of the evidence before the Court today. The father showed a certain ambivalence about drug and alcohol testing, and a rather cavalier attitude to the consumption of alcohol in the evidence before me so far. As for the mother, I have concerns on a number of levels. Whilst the mother has produced a CDT test, and the result of which is within limits, the CDT tests that were undertaken as recently as 18 February 2009 show an elevated result. The report from Dr W dated 26 March 2009, indicates that this means the mother was consuming at least six standard drinks for a period of 14 days prior to the test. But the mother met with Dr Greenfield on 25 February, a week after the test, and as a result of that meeting, Dr Greenfield reports at paragraph 81:
It appears that she (the mother) is highly motivated to come to grips with her alcohol dependency.
It may well be that the CDT test results demonstrate nothing like high motivation to come to grips with alcohol dependency.
The mother's own doctor's report, that of Dr W, dated 23 March 2009, reports that the mother consulted him several times during the periods covered by the CDT testing. Dr W states at page 3.2:
Ms Byrne has made a real effort with substances … and her alcohol abuse is now minimal (she reports three-four standard drinks every other day.
At point six on page 4, Dr W refers to the mother's fondness for substances, and how this problem has worsened over the years, culminating in the present Department of Community Services intervention. Dr W then says, and I quote:
Given that this problem is now vastly improved …
The CDT tests are hardly consistent with what Dr W says that the mother said to him. The mother met with her Department of Community Services caseworkers on 28 January 2009 and said to them, in response to the question, "When was your last drink?" that, "I haven't had one in a long time." But that is clearly inconsistent with the CDT results.
The mother has to confront this possibility at a final hearing, that she will be cross‑examined about lying to Dr Greenfield, lying to Dr W and lying to the Department of Community Services workers about the true level of her consumption of alcohol. I stress that this is not the view that the Court has formed. The Court has not heard the mother's side of the story, but the mother should perhaps consider how this evidence will play out and how it might be used against her at a final hearing, and think now "What can I do to avoid this?"
For the sake of these children, both parents need to be given another opportunity to prove that they can deal with their drug and alcohol issues. I therefore propose to vacate the June hearing dates and set the matter down on 21 September 2009 for four days. This means there is more time to examine how the orders I am about to make are working and more time for the parents to confront their issues. I fear that very little will have changed by June if a hearing is held then. Every decision in a parenting case involves a high degree of foretelling the future. In a complex case like this, if I am to predict the future, I would rather do it with the benefit of six months of trialling out an arrangement with close scrutiny by the Courts and other agencies.
I grant to all parties leave to relist before me on 48 hours notice.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date:
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