Caffell and Caffell
[2011] FMCAfam 1190
FEDERAL MAGISTRATES COURT OF AUSTRALIA
CAFFELL & CAFFELL [2011] FMCAfam 1190
FAMILY LAW – Parenting – dispute about the father’s time with a child aged 8 – issue the father’s alcohol consumption.
Family Law Act 1975, ss.60CC, 61DA, 65DAA
Byrne & Smith & Anor (No.2)[2009] FMCAfam 1115
Mazorski & Albright (2007) 37 FamLR 518
Applicant: MS CAFFELL
Respondent: MR CAFFELL
File Number: NCC 1703 of 2009
Judgment of: Terry FM
Hearing dates: 26 August 2010, 2 September 2010 and 15 June 2011
Date of Last Submission: 15 June 2011
Delivered at: Newcastle
Delivered on: 25 November 2011 REPRESENTATION
Counsel for the Applicant: Mr Duane
Solicitors for the Applicant: Paton Hooke
Counsel for the Respondent:
(26 August and 1 September 2010)
Mr Loomes
Solicitor-Advocate for the Respondent (15 June 2011): Ms Reynolds
Solicitors for the Respondent: GWM Lawyers
ORDERS
That all previous parenting orders concerning the child [X] born [in] 2003 are discharged.
That the parents have equal shared parental responsibility for the child.
That the child live with the mother.
That the father spend time with the child:
(a)each alternate Sunday from 10.00am to 4.00pm;
(b)at such additional or alternate times as may be agreed between the parties.
That the father’s time pursuant to Order (4) is suspended for half of the Christmas school holidays each year, being the first half in 2011 and each alternate year thereafter and the second half in 2012 and each alternate year thereafter.
That for the purposes of order (4) unless otherwise agreed between the parties the mother shall deliver the child to the father at McDonalds [omitted] at the commencement of the time and the father shall return the child to the mother at McDonalds [omitted] at the conclusion of the time.
That the father is restrained and an injunction is granted restraining him from consuming alcohol while the child is in his care or for 24 hours prior to the child coming into his care.
That the father may have reasonable telephone communication with the child.
That each party shall ensure that the other is kept informed of any medical problems or illnesses suffered by the child whilst in that party’s care and shall notify the other as soon as reasonably practicable upon the happening of any of the following:
(a)the child becoming seriously ill;
(b)the child being hospitalised;
(c)the child being seriously injured.
That each party must inform the other of any change of particulars of that party’s residential address, landline telephone number and mobile telephone number within 24 hours of any such change occurring.
That each party shall be entitled to obtain from the child’s school copies of school reports, notices relating to pupils, school letters, invitations to any cultural events, carnivals, sporting or social functions and any other notices directed to or normally provided to parents of children attending such school and each party shall be entitled to attend events at the school normally attended by parents.
That unless otherwise agreed between the parties the child’s residence shall remain in [omitted] area unless it is changed to the [omitted] area.
That if either party seeks a change to the orders they must initiate family dispute resolution and make a genuine effort to discuss the issues and reach agreement with the other party before filing a further application for parenting orders.
That all outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Caffell & Caffell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLENCC 1703 of 2009
MS CAFFELL Applicant
And
MR CAFFELL Respondent
REASONS FOR JUDGMENT
Introduction
1.The issue in dispute in these proceedings is the amount of time [X], aged 8, should spend with her father.
2.The mother considers the father an alcoholic. Her proposal at the end of the hearing was that [X] should spend time with the father during the day only, and preferably supervised.
3.The father considers that his drinking is under control. His proposal throughout the proceedings was that [X] should spend time with him each alternate weekend from Friday to Sunday and for half of each school holiday period.
4.The father is confident that he can comply with an order that he not consume alcohol while [X] is in his care or for twenty four hours prior to her coming into his care.
The hearing and the evidence
5.The hearing commenced in Wauchope on 26 August 2010 and continued in Newcastle on 2 September 2010.
6.The mother relied on her affidavits filed on 7 July 2009 and 13 August 2010 and the affidavit of the maternal grandmother Ms W filed on 13 August 2010.
7.The father relied on his affidavit filed on 6 October 2009 and the affidavits of his partner Ms B filed on 9 June 2010, his partner’s mother Mrs B filed on 16 April 2010, his GP Dr C filed on 9 June 2010, and a Clinical Psychologist Mr R filed on 5 August 2010.
8.A Family Report prepared by Mr P, a Regulation 7 Family Consultant, was also in evidence.
9.Mrs B and Mr R were not required for cross-examination but all other witnesses were cross-examined.
10.After Mr P had been cross-examined on 2 September 2010 the matter was adjourned at the request of the parties so that the father could undergo some Carbohydrate Deficient Transferrin (CDT) tests.
11.The final day of the hearing took place on 15 June 2011. The mother relied on a further affidavit filed on 20 May 2011 and the father relied on a further affidavit filed on 23 May 2011. The father was again cross-examined but the mother was not required.
Background
12.The mother is 39 and the father 40. They formed a relationship in about 1996, married in 2001 and separated in July 2004. [X], their only child, was born [in] 2003, and was about seventeen months old when the parties separated.
13.At the time of separation the parties were living in [omitted]. The mother has since moved to the nearby town of [W] and the father has since moved to [P], which is over an hour’s drive from [W].
14.[X] has lived with the mother since separation, and that arrangement has never been under challenge. Two rounds of litigation have occurred however over the issue of [X]’s time with the father.
The first round of litigation – August 2004 to March 2006
15.The mother filed an application for parenting orders in August 2004. She sought orders that [X] live with her and spend time with the father during the day only on two non-consecutive days each week.
16.On 3 December 2004 the mother filed an amended application seeking an order that time be supervised.
17.The mother’s proposals may have been motivated in part by [X]’s age but they were also motivated by her concerns about the father’s alcohol consumption and cannabis use.
18.The mother’s concerns were no doubt exacerbated when the father had a seizure in January 2005 while holding [X].
19.The hospital to which the father was taken after he had the seizure queried at the time whether the seizure might not be alcohol related. The father did not concede that it was, but in February 2005 he commenced a detoxification program.
20.On 10 March 2005 the father filed a Response. He sought orders that [X] spend time with him for the whole of each alternate weekend for a period of twelve months, supervised by the paternal grandmother, and that the situation then be reviewed.
21.On 22 March 2005 the mother applied for and obtained a two-year Apprehended Violence Order (AVO) against the father. The mother was asked about this during cross-examination in August 2010. She said that she had made the application because of text messages and phone calls and that there had never been any physical violence.
22.On 23 September 2005 interim orders were made which provided for father to spend supervised time with [X] at Interrelate [P] for 3 months and thereafter to spend time with her supervised by the paternal grandmother. Once the paternal grandmother became the supervisor time was to slowly increase in length until [X] was spending time with the father each alternate weekend from Saturday to Sunday.
23.In late 2005 the father commenced a relationship with Ms B. Ms B has a son [Y] born in January 2005.
24.On 29 March 2006 final orders were made by consent. They provided for the father to spend time with [X]:
·Commencing 7 April 2006 and until he obtained a drivers licence each alternate weekend from 10.00am Saturday until 5.00pm Sunday supervised by the paternal grandmother.
·Once he obtained a driver’s licence each alternate weekend from 10.00am Saturday until 5.00pm Sunday unsupervised.
25.The father was ordered to provide the mother with a letter from his GP every three months for 2 years stating that he was compliant with current medication and well enough to care for [X], and he was restrained from consuming alcohol or illicit drugs while [X] was in his care or for 24 hours prior to the commencement of that time.
Events between 29 March 2006 and June 2009
26.Time in accordance with the 29 March 2006 orders occurred regularly for the next three years save for a period of about three months between late December 2006 and March 2007.
27.In December 2006 the father became agitated over issues concerning the mother’s new partner and sent the mother a number of offensive and threatening voicemail and text messages. The mother made a complaint to police and the father was charged with breaching the AVO.
28.Between late December 2006 and March 2007 the mother refused to make [X] available to spend time with the father. She said that this was because the father sounded intoxicated in the voicemail messages.
29.Time resumed in March 2007. It was supervised at first at the insistence of the mother, but the court orders were never varied and after a while it reverted to unsupervised time.
30.The father and Ms B separated in late 2007 when Ms B went to live on the Central Coast. They reconciled in October 2008.
31.In February 2009 the father told the mother that he had been deemed temporarily unfit to hold a drivers licence. The mother rang the paternal grandmother who informed her that the father had had another seizure and had been told that he could not drive for six months.[1]
[1] I prefer the mother’s evidence about what occurred at this time to the father’s. The mother had a tendency to leap to conclusions on equivocal evidence, but her evidence about factual matters was generally more reliable than the father’s.
32.The mother suspected that this was another alcohol related seizure. The father maintained when questioned by the mother at the time and continues to maintain that a definitive diagnosis was never made. The father commenced driving again about two months after the seizure.
The second round of litigation – July 2009 to date
33.The seizure did not result in any interruption in [X]’s time with the father but in June 2009 the mother made a unilateral decision to cease the time, and on 7 July 2009 she filed an application in which she sought the discharge of the ‘contact’ order. She proposed nothing in its place.
34.In the affidavit she filed in support of her application the mother alleged that:
a)[X] had begun ringing her in distress while spending time with the father.
b)[X] had begun making comments which suggested that the father, in breach of the orders, was consuming alcohol while [X] was with him.
c)[X] had made disclosures suggesting that family violence was occurring between the father and Ms B and that [Y] was being harshly disciplined.
d)[X] had begun making some alarming comments about the father’s driving.
35.The mother made no attempt to discuss any of her concerns with the father prior to filing her application.
36.On 6 October 2009 the father filed a response in which he sought not just a restoration of his time but orders which would increase his time and permit him to spend time with [X] each alternate weekend and for half of the school holidays.
37.In January 2010 pursuant to an agreement between the parties [X] commenced spending time with the father for two hours each fortnight supervised at Interrelate [P], having spent no time with him since June 2009. The time at Interrelate was continuing when the final hearing commenced on 26 August 2010.
38.On 2 September 2010 when it was agreed that the matter would be adjourned to allow time for the CDT testing, new interim orders were made. They provided for [X] to spend time with the father each alternate Sunday from 10.00am to 4.00pm and for two hours after school each alternate Wednesday.
39.The time on Wednesdays did not occur often as it proved impractical because of distance, but the time on Sundays was continuing when the hearing resumed on 15 June 2011.
The issues of concern
40.The issues of concern at the commencement of the hearing were:
a)Whether family violence had occurred between the father and Ms B.
b)Whether the father continued to use cannabis.
c)Whether the father’s alcohol consumption was problematic.
41.I will consider the evidence about these issues before making findings about the “best interests” considerations.
Family Violence
42.The mother said in her affidavit filed 9 July 2009 that in June 2009 [X] disclosed to her that the father and Ms B had fights which involved shouting, hitting, kicking and slapping.
43.Ms W, the maternal grandmother, set out in her affidavit a conversation she had with [X] in July 2009 in which [X] said that:
Daddy and Ms B were fighting, they were hitting, punching, scratching, tripping.[2]
[2] Affidavit of Ms W filed 13 August 2010
44.Ms B and the father both denied that anything of this description had ever occurred, and Ms B’s mother, Mrs B, gave unchallenged evidence that she had never witnessed or heard about any family violence between her daughter and the father.
45.I cannot be satisfied on the balance of probabilities that family violence has ever occurred between the father and Ms B. The mother elicited information from [X] about this issue by means of leading questions[3] and the conversation between the maternal grandmother and [X] took place after this. There was no independent evidence (such as records of police being called to the father’s home) to support the mother’s claims.
[3] See mother’s affidavit filed 7 July 2009 paragraphs 23, 25
46.During final submissions the mother’s counsel did not ask me to find that family violence had occurred between the father and Ms B.
Cannabis use
47.The father used cannabis during the parties’ relationship, and the 29 March 2006 consent orders contain a prohibition on him using illicit drugs as well as alcohol for 24 hours prior to [X] came into his care and while she was with him.
48.The mother did not refer to cannabis use as an issue of concern in her 7 July 2009 affidavit but it came up during the two child dispute conferences the parties attended after proceedings were commenced.
49.At the child dispute conference in September 2009 the father denied that he was still using cannabis. However at the child inclusive child dispute conference in October 2009 he admitted that both he and his partner were using cannabis. [4]
[4] The father admitted these things during cross-examination. The memorandums prepared by the Family Consultant after the conferences were not tendered.
50.The father told Mr P in July 2010 that he had maintained a high level of cannabis use “right up until the mother stopped his time with [X].”[5]
[5] Family Report paragraph 36
51.During cross-examination in August/September 2010 the father said that he had ceased using cannabis “at the end of last year” ie at the end of 2009.
52.Mr P viewed the father’s urinalysis results from December 2009 to April 2010 and said that they were all “clean,”[6] and the father attached to his 23 May 2011 affidavit urinalysis results for 15 November 2010, 3 March 2011 and 4 May 2011 which all showed negative for cannabis use.
[6] Family Report page 2 Documents perused and paragraph 37
53.
The conflicting evidence the father gave to the family consultant, to
Mr P and to the Court in answers during cross-examination about when he ceased using cannabis does not reflect well on his credit but at the end of the hearing it was accepted, based on the urinalysis results, that he had now ceased using it.
Alcohol consumption
54.On any objective view the father’s alcohol consumption has caused problems in his life.
55.It was one of the reasons the mother gave for seeking supervised time in the first place, the reason she gave for suspending his time with [X] in December 2006 and one of the reasons she gave for suspending it in June 2009.
56.Medical authorities were suspicious in January 2005 that the father’s seizure was alcohol related.
57.The father commenced a detoxification program in February 2005 and again in February 2007 which is evidence that his alcohol consumption was perceived to be a problem at those points of time.
58.The father admitted that he had a conviction for drink driving “four or five years ago.”
59.In February 2009 the father had another seizure. Hospital notes record him as admitting that prior to the seizure he had drunk one bottle of wine at midday and smoked ten cones of marijuana. The father denied that this was an alcohol related seizure and said that “there were investigations but no diagnosis.”[7]
[7] Father’s affidavit filed 6 October 2009 paragraph 24
60.When the mother commenced proceedings in July 2009 she squarely raised the father’s alcohol consumption as an issue of concern.
61.In his 6 October 2009 affidavit the father denied that he had breached the order about consuming alcohol while [X] was with him but provided absolutely no information about his alcohol consumption, the very least he could have done if he really wanted to assuage the mother’s concerns.
62.The evidence of the father’s partner and mother-in-law in their affidavits did not take the matter very far.
63.Ms B said that the father “might have a couple of beers in the afternoon but he doesn’t drink in the mornings or all day. I don’t see him consume beer every day.”
64.Mrs B said that she had not seen the father intoxicated, but she was not in the father’s home day in and day out.
65.The father’s GP Dr C was more helpful. He said as follows:
After Mr Caffell separation he became quite depressed. I am aware that he was relying, to a large extent, on alcohol as a result of his problems at that stage.
There were occasions when I could smell alcohol on his breath when he came into the surgery.
At that stage I advised him the long terms effects of alcohol use on his health and advised him to reduce his intake of alcohol. I believe that he has an insight into the problems and that he has reduced his use of alcohol significantly.[8]
[8] Affidavit of Dr C filed 9 June 2010
66.Documents produced in answer to subpoena provided some further information.
67.The intake records for the detoxification program the father commenced in February 2005 make reference to the father admitting that he had been drinking “24 beers x 4 each week.” They also record him as admitting to the consumption of “1 carton of beer, 1 cask wine and 1 bottle of vodka” although no frequency is recorded.
68.On 21 February 2005 the father is recorded as admitting to drinking “a case of beer a day last 2/52.” Elsewhere however he is recorded as stating that he had been drinking 1 carton of beer a fortnight and was a social drinker.
69.During cross-examination in August/September 2010 the father disputed the accuracy of these notes and denied that he had ever drunk a case of beer in one day. He agreed however that at an earlier point in his life he could correctly have been described as an alcoholic.
70.The father admitted during cross-examination that he had told Dr C in 2008 that he was drinking 6 beers a day and had told him on several occasions during 2010, including on 12 June 2010, that he was drinking 4 to 5 beers a day.
71.During cross-examination Dr C said that he had advised the father that 4 to 5 beers a day was “a little bit more than he was happy with” and had urged him to cut back on his drinking. He said that the medical recommendation was that men should drink no more than 2 or 3 standard drinks a day.
72.Mr P asked the father about his alcohol consumption during the report interviews in July 2010 and he responded as follows:
When I canvassed with the father as to the current state of his alcohol consumption he indicated that he drinks “two to three schooners daily”, whilst being categorical that he does not binge drink. The father recalled that he has not been intoxicated for approximately three months, and believes that his alcohol consumption has now stabilised at his current level, whilst being adamant that he was ‘never’ intoxicated. It was the father’s belief that he could easily commit to alcohol free days, particularly if [X] was in his overnight care.[9]
[9] Family Report paragraph 37
73.During cross-examination in August/September 2010 however the father said that he sometimes drank 4, 5 or 6 beers a day.
74.One of the most troubling pieces of evidence to emerge during the August/September 2010 part of the hearing was that the father had not been able to comply with the order that he not consume alcohol while [X] was with him.
75.In his 6 October 2009 affidavit the father claimed that he had, but during cross-examination he admitted that he had not, saying in answer to a question about whether he consumed alcohol while [X] was with him:
I may have had a beer, yes
76.Ms B admitted during cross-examination that the father had consumed alcohol while [X] was in their home but said that it had been after [X] went to bed.
77.The evidence to this point established that:
·Alcohol had caused the father problems during his life
·That at one period he had been on alcoholic
·That even on his own self report he was drinking currently at a level likely to damage his health, and
·That he had been unable to comply with the order that he not drink while [X] was with him.
78.The father continued to deny however that he had an alcohol problem and was not in control of his drinking and on 2 September 2010 the CDT tests were ordered in the hope that they would cast some light on the issue.
79.Notwithstanding his reluctance to admit that his alcohol consumption was a problem the father commenced drug and alcohol counselling on 21 September 2010, and when the hearing resumed on 15 June 2011 the new evidence available included the results of the CDT tests and a letter from the father’s drug and alcohol counsellor.
80.No expert was called in the hearing before me to give evidence about the nature and efficacy of CDT tests, but the father’s counsel referred me to Byrne & Smith & Anor (No.2)[10] a case in which FM Altobelli summarised evidence about the test given by a consultant pharmacologist, and the mother’s counsel agreed that I could have regard to that evidence.
[10] Byrne & Smith & Anor(No.2)[2009] FMCAfam1115,
81.The pharmacologist gave evidence about the different methods used to perform CDT tests and FM Altobelli summarised her evidence about the different thresholds applicable when the test was performed using the immunoassay method and the High Performance Liquid Chromatography method (HPLC) as follows:
CDT Percentage
Immunoassay Method
HPLC Method
Low CDT
below 2.7%
below 1.7%
Borderline
2.7-3.0%
1.7-2.5%
Elevated CDT
above 3.0%
above 2.5%
82.The pharmacologist said as follows:
A low CDT level is seen in 95% of patients who are abstainers or who take only a “light social intake” of alcohol averaging no more than an average of 20 grams of alcohol a day averaged over the 2-3 weeks up to the time of sample collection.
Similarly it does not respond to a single heavy drinking “binge” lasting a day or less.
Note too that a small percentage of light drinkers and abstainers have levels above the “low CDT” range and this is not pathological in its own right. This is a variant of normal. However it is exceptional for a subject who is not drinking to excess to have a CDT level which falls within the “elevated CDT” range.
Now turning to subjects drinking to excess, we are still determining the exact percentages applicable to the new assay but I can speak with authority on the older assay. It is likely that HPLC will have figures which are comparable to the old.
Approximately 50% of heavy drinkers (subjects taking an average of 60 or more grams of alcohol a day averaged over the previous 2-3 weeks) will have an elevated CDT. However some subjects are much more tolerant of alcohol than others and we see occasional males who can consume up to 100 grams of alcohol a day before they produce an elevated CDT. This probably reflects the known differing tolerances to alcohol and different rates of alcohol clearance within the normal population.
I am also aware of some subjects, predominantly females and occasional young males who develop an elevated CDT with consumptions of alcohol of below 60 grams a day but above 20 grams a day. This group appears unusually sensitive to the effect of alcohol on the liver.
83.The pharmacologist said that the “gold” standard in analytical techniques was the HPLC method.
84.The father’s counsel proposed that the HPLC method be used to test the father’s samples and I made an order which specifically required this. Unfortunately [D] Pathology, to which the father’s samples were sent, did the first test using the HPLC method but then switched to using Capillary Electrophoresis (CE) to test the samples.
85.On becoming aware of this the father arranged for the 4th test done by [L] Pathology, who were still using the HPLC method. However the fifth test was done by [D] Pathology.
86.The father provided all the samples late and some significantly late. The 4th test was 21 days late, which is of concern given that in a document about CDT Testing prepared by Sullivan Nicolaides Pathology tendered at the hearing it was noted that:
During abstinence CDT normalises with a half life of 15 days[11]
[11] Exhibit D
87.During cross-examination the father said that the reason he was very late supplying four out of the five samples was that he sometimes had difficulty getting a referral from a doctor, which was a necessary pre-requisite for a test.
88.He made no mention of this in his 23 May 2011 affidavit.
89.The results of the five tests done by the father can be summarised as follows:
Date of test
Result
Testing method
Compliance with time for provision of sample
9.11.10
1.4%
HPLC
Sample 2 days late
10.01.11
4.7%
Capillary Electrophoresis
Sample 13 days late
16.02.11
3.6%
Capillary Electrophoresis
Sample 12 days late
11.04.11
1.2%
HPLC
Sample 21 days late
16.5.11
1.7%
Capillary Electrophoresis
Sample 9 days late
90.I was not provided with any expert evidence about the thresholds applicable if Capillary Electrophoresis was used to test the samples. On the reports themselves however it is stated that:
Results between 1.4% and 1.6% inclusive are considered equivocal.
91.On the assumption (which is a reasonable assumption) that if 1.4% is an equivocal result for a CDT test done using Capillary Electrophoresis then 4.7% and 3.6% must be very high, the father’s results can be summarised as low, elevated, elevated, low and elevated.
92.The father’s solicitor attempted to cast doubt on the reliability of the two very high results.
93.In his 23 May 2011 affidavit the father said as follows:
This result [4.7%] shocked me because my pattern of drinking had not changed. Further I would not have consumed excessive amounts of alcohol around this time because I had known for 2 weeks that the second CDT test was on 28 January 2011.
I can only account for this high reading because the method of testing changed to capillary electrophoresis on 18 November 2010, and the tests results say to note a ‘change of reference range.’
94.The father’s argument that the testing method and not his alcohol consumption was to blame for the high result in January 2011 is considerably undermined by the following entry in the notes of Ms G, with whom the father commenced drug and alcohol counselling in September 2010:
Last CDT results were not positive in that it was a result above the required level (4.7). Mr Caffell puts this result down to having full strength beer (approx 90g).
95.His argument is also considerably undermined by the fact that the sample tested by the CE method on 16 May 2011 gave a reading of 1.7%, less than half of the two high readings. This reading was obtained at the end of a period of two weeks when the father reported to Dr C that he had abstained from drinking,[12] rather confirming that there was a reliable correlation between the father’s drinking and test results.
[12] Dr C’s notes made on 16 May 2011 record “no grog last 2/52*”,
96.The CDT test results were of course only part of the evidence available about the father’s alcohol consumption between September 2010 and May 2011. The other evidence was that contained in the father’s affidavit, in the father’s answers during cross-examination and in the information he provided to Dr C and Ms G.
97.Unfortunately the father continued to provide contradictory information.
98.In his affidavit filed on 23 May 2011 the father said that he had reduced his alcohol in-take to “one mid-strength beer on a Saturday or Sunday, and some weeks a second mid-strength beer mid-week.”
99.This does not match up with any of the information he gave to Dr C and to Ms G, his drug and alcohol counsellor, during the period 2 September 2010 to 31 May 2011 nor does it match up with answers he gave during cross-examination.
100.Dr C’s notes[13] record that on 15 September 2010 the father told him that he had ‘cut down to 3-4 beers mid strength a day.’ On 29 November 2010 the father told Dr C that he was consuming 3 mid strength beers a day and having two alcohol free days; on 14 March 2011 he said that he was having two alcohol free days and otherwise drinking 2-3 beers a day and on 11 April 2011 that he was drinking 2 beers on weekdays and 4 beers on weekends subject to having 2 alcohol free days.
[13] Exhibit I
101.The information the father gave Ms G about his drinking during this period varied but he never suggested to her that he was drinking as little as one or two beers a week, and of course he told Ms G that he had drunk full-strength beers over Christmas, something he never seems to have admitted to Dr C.
102.During cross-examination on 15 June 2011 the father said that his current alcohol consumption was 2 or 3 mid strength beers 4 or 5 days each week. He agreed that he had grossly understated his level of his drinking in his 23 May 2011 affidavit and when asked why he had done so he replied:
“I don’t have an answer for you.”
103.When asked again in re-examination about why he had provided incorrect information about his alcohol consumption in his 23 May 2011 affidavit the father said “that was around the time I had a couple of weeks off.” This answer does explain the discrepancy however. It does not make sense that if the father was not drinking at all he would have mistakenly stated that he was drinking one or two beers a week.
104.The father provided a letter dated 19 May 2011 from Ms G about his attendance for drug and alcohol counselling. Ms G is a Clinical Nurse Consultant at the Drug and Alcohol Service, [P].
105.Ms G said that the father presented at the service on 20 September 2010 and that he was initially ambivalent about treatment and had a low motivation to change.
106.She said that at the first session she and the father discussed the benefits of the father not drinking and obtaining a reduction in the daily drinking. She said that as time went by there did seem to be an improvement, and noted that although she was relying on self-report the father’s appearance was congruent with what he reported. Ms G said that the father told her that he was no longer drinking at the hotel and had been able to stay alcohol free for his daughter’s visits.
107.The father was discharged from the program on 30 May 2011.
Conclusions about the father’s alcohol consumption
108.The father’s case about the issue of his alcohol consumption was effectively as follows:
·His current self reported level of drinking did not suggest that he was consuming excessive alcohol on a regular basis.
·The two very high CDT results did not prove anything. There was no expert evidence about the new testing method and in any event the results could have been affected by the father being ill or by some physiological peculiarity of the father.
·Even if the high CDT results were caused by heavy drinking, they had been followed by one low and one elevated but not very elevated result which showed an improvement and the father could be depended on to maintain that improvement.
·The father had fully engaged in drug and alcohol counselling and completed the program, which should confidence that the father was on his way to making a permanent positive change in his level of alcohol consumption. This should in turn should create confidence that at the very least the father would be able to refrain from consuming alcohol while [X] was with him.
109.I do not accept that there is no longer any reason to be concerned about the father’s alcohol consumption. In my view the effect of the evidence is as follows:
·The father’s alcohol consumption has created many problems for him in the past
·It is impossible for me to make a finding about the father’s actual level of alcohol consumption at any given point of time but this is because the father’s evidence on this topic was contradictory and unreliable, indeed it almost seemed to be a case for the father of “say anything” when it came to answering questions about his alcohol consumption.
·The father was not a witness of credit and I cannot accept that his alcohol consumption is currently at a low level just because he says that it is.
·The CDT results cannot be ignored. The contradictory answers the father gave about what might have caused one of the very high results and the fact that an only slightly elevated result was later obtained using the testing method the father wished to discredit leads me to be satisfied on the balance of probabilities that the CDT results mean exactly what they seem on their face to mean, namely that the father drank particularly heavily for two to three weeks before two of the tests and at a potentially concerning level before one other of the tests.
·The lowest reading the father obtained on a CDT test (1.2%) was obtained when the father did the test 21 days late. It could have been obtained by means of abstinence or reduced drinking over a period of two weeks, which would be positive if there was any possibility of it being sustained.
·A strong possibility exists however that the father achieved this result by consciously refraining from drinking or drinking heavily specifically for the purpose of ensuring a ‘good’ test result after having received two extremely high ones. The fact that the next result after that was back up calls into question whether the father is capable of sustaining a low level of alcohol consumption.
·The father did not voluntarily complete any drug and alcohol counselling prior to the commencement of the hearing in August 2010, and when he did commence it on 20 September 2010 it was noted that he was ambivalent about it and had a low motivation for change. He completed the program but this was while he was under the eye of the court.
·Mr P in his report noted the risk of the father’s alcohol consumption escalating again in the future even if it seemed at any particular time to have reduced.
·I am not satisfied on the balance of probabilities that the father is currently drinking at a modest level and is in control of his drinking.
·The father proved unable to comply with the 29 March 2006 order that he not consume alcohol while [X] was with him, and given what I find is his long standing problem with alcohol and given that that there was no evidence that he himself truly considers his alcohol consumption a problem, I cannot be confident that a change even if one has occurred as a result of the drug and alcohol counselling will persist once the court proceedings are finished.
·There is an unacceptable risk that the father will be unable to refrain from consuming alcohol while [X] is with him if she spends any extended period of time with him.
·The fact that the father had a seizure while holding [X] in 2005, has a drink driving conviction, had another seizure in 2009, and was unable to comply with the 29 March 2006 court order that he not consume alcohol while [X] was with him combined with his dishonesty about whether he had complied with the order and his dishonesty about his actual alcohol consumption as recently as 23 May 2011, would cause any reasonable person to distrust him and to be concerned about a child being left in his unsupervised care.
[X]’s Best Interests
110.In deciding whether to make a particular order about [X] I must treat her best interests as the paramount consideration, and to determine [X]’s best interests I must have regard to the matters in ss.60CC(2) and (3) of the Family Law Act.
111.The primary considerations are contained in s.60CC(2) and are as follows:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
112.The parents agreed that [X] would benefit from having a meaningful relationship with her father.
113.[X] will have a fairly limited relationship with her father if she only spends time with him for six hours each alternate weekend which was effectively what the mother proposed, although if this was supplemented by telephone communication and by the father attending school events it could still be a relationship which was meaningful in the sense of being “important, significant and valuable to the child.” [14]
[14] Mazorski & Albright (2007) 37 FamLR 518
114.On the available evidence there is no risk of [X] being exposed to abuse or family violence in the father’s care.
115.I will deal with the risk posed to [X] by the father’s alcohol consumption when considering the likely effect on her of any change in circumstances and when considering the father’s parenting capacity, rather than by straining to decide whether it might lead to neglect.
116.I must also have regard to the additional considerations in s.60CC(3), and the first of these is any views expressed by the child and any factors (such as the child’s level of understanding) that the court thinks are relevant to the weight to be given to those views.
117.Some independent evidence about [X]’s views was contained in the Family Report. Mr P said that:
[X] clearly stated that “she would like to have fun with dad away from Interrelate, to go to the beach or go to the park.”[15]
[15] Family Report paragraph 12
118.The interim orders made on 2 September 2010 allow for this to occur and even if orders are now made as the mother proposes this can continue to occur.
119.Neither party gave any evidence in their May 2011 affidavits which suggested that [X] had a view about whether she should recommence spending overnight time with the father or should commence spending holiday time with him.
120.I must consider the nature of the relationship of the child with each of the child’s parents and any other relevant persons including any grandparents of the child.
121.Mr P observed a positive and nurturing relationship between the mother and [X], and the mother’s relationship with [X] was not under challenge at the hearing.
122.Mr P observed [X] with the father in July 2010 and said as follows:
Mr Caffell was affectionate with the subject child from the outset, with [X] immediately reciprocating her father’s affection. Mr Caffell was appropriate in the questions he asked [X] about her life, whilst Mr Caffell sat on the floor and engaged his daughter in play. [X] clearly appeared relaxed in her father’s presence, and again there were no overt child protection concerns during this observation.[16]
[16] Family Report paragraph 56
123.Both parents reported in May 2011 that [X] was enjoying her time with her father pursuant to the 2 September 2010 orders. I am satisfied that the father has a good relationship with [X].
124.Ms B did not attend the family report interviews, but there was a general acceptance that she had a satisfactory relationship with [X].
125.[X] has come into some conflict with [Y], two years her junior, over the years, and she told Mr P that [Y] snatched things and yelled sometimes. There was nothing to suggest however that the relationship between the two was so bad that it should affect the amount of time [X] spent with the father.
126.I must consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
127.Some of the concerns the mother raised in her 7 July 2009 affidavit have turned out to be unfounded, but I do not consider that the mother raised a plethora of complaints about the father simply in an effort to distance [X] from him. I am satisfied that on both occasions in the past when the mother unilaterally ceased [X]’s time with the father she was intent on being protective of [X].
128.I am satisfied that the mother has the willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the father.
129.The father has the willingness and ability to facilitate a close and continuing relationship between [X] and the mother. Absent the events of Christmas 2006 there was no evidence of him denigrating the mother to [X] or attempting to undermine [X]’s relationship with the mother.
130.I must take into account the likely effect of any change in the child’s circumstances including the likely effect of separation from:
(i)either of her parents or
(ii)any other child, or other person (including a grandparent or other relative of the child) with whom the child has been living.
131.[X] will experience a significant change if orders are made as proposed by the father. She last spent overnight time with him more than two years ago, and she has never spent any block holiday time with him.
132.There would be some obvious benefits to [X] in spending more time with her father.
133.The father already does fun activities with [X] such as taking her to the beach and the [P] markets, but more time would allow these activities to be interspersed with time at home rather than crammed into one day.
134.It would allow the father to do a range of mundane caring tasks for her, including putting her to bed and getting her breakfast, as well as doing fun activities with her. Holiday time would allow for excursions to places which cannot be visited during a six hour weekend visit. More time would allow father and daughter to get to know each other better.
135.[X] has a good relationship with the father, and she is now eight. There is no reason why she should not cope with emotionally and would not benefit from spending overnight and extended holiday time with her father provided that he did not consume alcohol while she was with him.
136.If the father drank heavily while [X] was with him she could be exposed to deficient parenting, if only because the father would be unable to respond appropriately to her if she needed him. This would not be such a problem if Ms B was present, although it could be a problem even then if it resulted in the father having another seizure either at home, or worse, while driving.
137.Even if the father did not drink heavily if he drank at all while [X] was with him, it would still be a problem.
138.First of all the evidence suggests that the father is be a person who struggles to drink modestly once he starts.
139.Secondly, any alcohol use by the father, given his history arouses anxiety in the mother. She said as follows in her 20 May 2011 affidavit:
I remain fearful of [X]’s safety if she were to spend time with the father without supervision. I believe that the father’s excessive alcohol consumption continues to pose a serious risk to [X]’s safety and well-being.[17]
[17] Mother’s affidavit filed 20 May 2011 paragraph 7
140.I am satisfied that the mother is genuinely and reasonably anxious about the prospect of [X] either coming to harm or being made distressed and anxious as a result of the father’s drinking.
141.It is difficult to imagine [X] being unaware of this anxiety, and therefore if she saw the father drinking she in turn would herself likely become anxious. Any comments made by [X] to the mother which suggested that the father was drinking would very likely result in another unilateral suspension of time.
142.The difficulty for the father is that I am unconvinced that he truly understands the impact of his alcohol consumption on those around him and unconvinced that this time around he can be relied on to have alcohol free days if [X] is with him for a period which includes overnights. Therefore the likely effect of a change which saw [X] spending overnight time with the father or extended holiday time with the father would be another complete breakdown of time.
143.I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
144.The parents live about an hour and twenty minutes driving distance apart. This makes it impractical for the father to spend time with [X] during the week. It would not impede the father spending time with [X] on alternate weekends or during school holidays as he proposed, or during the day on the weekends as the mother proposed.
145.I must consider the capacity of each parent and any other person to provide for the needs of the child including her emotional and intellectual needs.
146.The mother’s parenting capacity was not under challenge. The focus was on the father’s parenting capacity and the matters with the potential to impact on it are cannabis use and alcohol consumption.
147.By 15 June 2011 it was generally accepted that cannabis use was no longer an issue for the father and the concern was his alcohol consumption.
148.Given the history of the matter the only satisfactory way for the father to provide for [X]’s physical and emotional needs while she was with him would be to abstain from consuming alcohol. I am unconvinced that he is capable of doing so for any lengthy period of time.
149.I must consider the attitude of each parent to the child and to the responsibilities of parenthood.
150.Both parents have a reasonable attitude to the child and to the responsibilities of parenthood. The mother cares well for [X] and facilitates the father spending time with her. The father has taken every opportunity to spend time with his daughter.
151.The father is paying minimal child support. This casts a burden on the mother but I am satisfied that it arises out of the difficulties under which he is labouring and is not reflective of his attitude to [X] or to his responsibilities as a parent.
152.I must consider any family violence involving the child or a member of the child’s family.
153.The father sent some abusive text and voicemail messages to the mother in 2006 and she obtained an AVO against him, but the contents of those messages does not establish that the father committed acts of family violence as that term is currently defined in the Family Law Act. The mother conceded during cross-examination that there had never been any physical violence between the parties.
154.The mother did not in the end invite me to make a finding that any family violence had occurred between the father and Ms B.
155.I must consider whether there are any family violence orders.
156.There is a family violence order in place for the protection of the mother and it is current until 22 March 2012. The order prohibits the father from entering the mother’s premises or approaching or contacting her except in accordance with family law orders. The father is also prohibited from approaching or contacting the mother if intoxicated.
157.I must consider whether it is preferable to make the order least likely to lead to further proceedings.
158.The orders sought by the mother are least likely to lead to further proceedings.
159.If I make the orders sought by the father, there is a real possibility of the matter coming back to court either on a contravention application or an application to vary if the mother gets the slightest hint that the father is failing to abide by the requirement that he not drink while [X] is with him or for twenty four hours before hand.
160.I must also consider any other relevant matter.
161.The mother has long been distrustful of the father’s claims about his drinking, and her trust will have been further eroded by the conflicting and inaccurate evidence the father gave about his drinking throughout these proceedings.
162.This lack of trust has a number of ramifications. It is likely to lead to the mother placing the worst possible construction on anything she sees or hears and failing to consider other interpretations of words and events, which in turn could easily precipitate her ceasing to comply with the court orders again in the future.
163.It could result in the mother questioning [X] and pressing her for information about whether the father had been drinking, and this could in turn result in [X] becoming very anxious if she saw any signs that the father was drinking while she was with him. Time with her father could then become a painful as well as a pleasurable experience for her.
164.I cannot restore the trust between the parties, and nothing but the father becoming abstinent might achieve this. However it does tend to a conclusion that giving the father less rather than more time with [X] is to be preferred because it will place the least strain on the father in trying to comply with orders that he not consume alcohol while [X] is with him and for twenty four hours beforehand.
165.Another relevant matter is that during final submissions on 15 June 2011 the father’s solicitor informed the court that the father and Ms B had separated, although she said that Ms B was still participating in the time on alternate weekends. This was evidence from the bar table but it is important to record it because it will be relevant later on when considering appropriate orders.
Parental Responsibility
166.Pursuant to s.61DA of the Family Law Act I am required to apply presumption that it is in [X]’s best interests that her parents have equal shared parental responsibility for her, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or family violence.
167.The presumption can be rebutted by evidence that it would not be in [X]’s best interests for it to apply.
168.The parents both sought an order for equal shared parental responsibility. They both love their daughter. Their capacity to communicate effectively ebbs and flows but no disputes have arisen between them to date about major long term issues such as choice of school. I am satisfied that it is appropriate to make an order for equal shared parental responsibility.
Conclusion
169.Although I intend to make an order for equal shared parental responsibility, there is no question of [X] spending equal time with each parent – the distance the parents live apart precludes it. Even substantial and significant time, as defined in s.65DAA(3) of the Family Law Act, is precluded by distance, as demonstrated by the father’s inability to exercise the time with [X] on alternate Wednesdays which was provided for in the 2 September 2010 orders.
170.The issue then is whether [X] should spend time with the father each alternate weekend and for half of school holidays as he proposes or each alternate Sunday for six hours (possibly supervised) as the mother proposes for some other alternative in between, as the Court is not bound by the proposals of the parties.
171.Mr P recommended in his report that [X] (who was then seeing the father only on a supervised basis) commence spending unsupervised time with him during the day on two occasions each week. He recommended that drug urinalysis continue for a further period of three months and that “assuming that there is no positive result for cannabis, nor the adulteration of any specimen relating to alcohol” [X] commence spending overnight time with the father.
172.Mr P recommended that [X] spend one week of the 2010 school holidays with the father, and that an order be made restraining the father from consuming alcohol on the day prior to or when [X] was in his care.
173.The father misled Mr P about his alcohol consumption and Mr P did not have the information about the issue which is available to me. I therefore cannot place weight on these recommendations, nor did Mr P when certain matters were put to him during cross-examination seem to adhere to them.
174.At the end of the hearing however the father, despite all the evidence which had emerged about his alcohol consumption, still sought orders for unsupervised time on alternate weekends and for half of the school holidays.
175.I accept that it is important for [X] to have a relationship with her father which is as meaningful as possible. [X] has been enjoying her time with him on Sundays and she is not a baby who could not handle some extended time away from her primary carer.
176.The only thing really standing in the way of the father spending more extensive time with [X] is his alcohol consumption, and the father’s solicitor submitted that the father’s claim that he could be trusted to refrain from drinking whenever [X] was with him should be accepted. He had engaged in drug and alcohol counselling over a period of more than six months and Ms G had given the father quite a favourable report, and he knew how much was at stake if he breached the order about drinking while [X] was with him should give the court added confidence that he would abide by the order.
177.Regrettably I cannot accept this.
178.The father was not a witness of credit and his bare assertion that he can now refrain from drinking for days and nights on end carries no weight. He was not able to comply with such an order the last time. The suggestion that his drinking moderated in 2011 depends on his self-report and the fact that two of the CDT tests showed bouts of sustained heavy drinking for at least two week, give rise to concern that he struggles to keep his alcohol consumption under consistent control.
179.If the father drank while [X] was with him she would either be placed at risk of harm or would become anxious, which would have an adverse emotional effect on her and might quickly lead to further litigation.
180.The father originally proposed that the issue of his alcohol consumption be dealt with by requiring him to produce a satisfactory CDT test result prior to the time commencing. This is not a solution to the problem however, as the father could obtain a low result by consciously refraining from alcohol consumption for a period of two weeks and then revert to a higher level of drinking once the test was done and while [X] was with him.
181.It is important that [X] continue to spend time with the father but the only realistic options are either time during the day or supervised time as proposed by the mother’s counsel.
182.The mother’s preference was supervised time but a return to the father spending two hours with [X] at a contact centre is not an acceptable solution. [X] wanted something more when she spoke to Mr P in 2010 and this is understandable. Finding a private supervisor who was willing to spend six or more hours with the father and [X] in a variety of venues might to be possible, but it could be costly.
183.Ms B is not likely to be a consistently available option in the longer term and I would be of this view even if I had not been informed from the bar table on 15 June 2011 that she and the father were no longer living together, because Ms B has a life of her own and a child of her own.
184.The father spending six hours unsupervised with [X] is probably the only solution with the chance of working uneventfully into the future.
185.It is possible to be cautiously optimistic that the father could refrain from drinking alcohol during this period of six hours, and if he drinks heavily the night before and shows signs of intoxication at the start of a visit the mother could refuse to hand [X] over.
186.I have some misgivings about it, given that the father admitted having a beer at lunchtime before attending one of his sessions with Ms G, but there is strength in the submission by the mother’s counsel that the greatest difficulty with the father and alcohol consumption in the past appears to have been in the late afternoon and evening.
187.I therefore intend to order that the time occur for six hours each alternate Sunday.
188.If the father and [X] lived in the same town time on both days or alternate weekends could be considered, but this would impose a burden on the mother given the distance the parties live apart.
189.I intend to order that the father not consume alcohol while [X] is with him or for 24 hours prior to her coming into his care. This is important because if the father was obviously suffering from the effects of heavy drinking from the night before when he collected [X] the mother would probably refuse to hand [X] over.
190.The current orders provide for the father and Ms B to pick [X] up from the mother at the beginning of the time and the mother to collect her at the end of the time. This shares the travel burden but it is not a feasible order in the longer term if the father and Ms B have separated.
191.The only feasible option is to order that the mother deliver [X] to [P] at the beginning of the time and collect her at the end, unless she and the father agree otherwise. This will be a burden for the mother, who may feel compelled to stay in [P] all day. However the mother could go shopping, to the beach or to the cinema – there are options available to her, and it would best ensure that time actually occurred.
192.An alternative would be to require that the father be accompanied by some other adult acceptable to the mother when collecting [X] but I am reluctant to make this order as it may result in frequent problems with time not occurring at all.
193.I intend to order that the father also spend time with [X] at such additional or alternate times as may be agreed between the parties.
194.The parents do not have a bad relationship, and it is possible that if the father achieved sobriety he and the mother could reach an agreement about varying the orders. It is also possible that the mother might consent to the father having slightly longer time supervised by the paternal grandmother during school holidays. If the mother is given some control over whether the longer periods occur then those periods have the best prospect of occurring uneventfully if and when they do occur.
195.The parties have been involved in two rounds of litigation, consuming more than half of the time that has elapsed since separation. It is preferable that each of them initiate family dispute resolution and make a genuine effort to talk issues over with the other before they initiate further proceedings. S.60I of the Family Law Act requires that, but to drive that home to the parents I intend to include it as an order.
196.In his minute of proposed orders the father sought an order that the mother not be permitted to relocate [X]’s place of residence from the [omitted] area unless the move was to the [omitted] area. There was no evidence in the case to support the necessity of such an order, but the parties consented to an interim order in those terms on 2 September 2011 and I therefore intend to make this order.
197.For all of the above reasons, the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding one hundred and ninety seven (197) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 25 November 2011
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