Carr and Carr

[2014] FCCA 1956

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARR & CARR [2014] FCCA 1956

Catchwords:
FAMILY LAW – Interim parenting – concerns about the Mother’s consumption of alcohol – matter where parents involved in litigation over many years – where orders in place are to resume – whether proceeding should be continued.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA

Goode & Goode [2006] FamCA
Rice & Asplund (1978) FamCA
MRR v GR [2010] HCA 4

Applicant: MR CARR

Respondent: MS CARR

File Number: WOC 224 of 2011

Judgment of: Judge Altobelli

Hearing date: 15 August 2014

Date of Last Submission: 15 August 2014

Delivered at: Wollongong

Delivered on: 15 August 2014

REPRESENTATION

Solicitors for the Applicant: Eaves Legal

Solicitors for the Respondent: Caldwell Martin & Cox

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. PROVIDED THAT:

   (a)The Respondent Mother has entered into an undertaking to the Court in a form reasonably acceptable to the Independent Children’s Lawyer that she will abstain from alcohol in the 12 hour period before, and during any time that the Child X born (omitted) 2007 is in her care; and

   (b)Mr M has entered into an undertaking to the Court in a form reasonably acceptable to the Independent Children’s Lawyer that he will ensure that the Mother is not under the influence of alcohol at any time before or during her time with the Child X born (omitted) 2007, and that he will forthwith notify the Independent Children’s Lawyer if he observes the Mother to breach her undertaking to the Court THEN:

2. The Father is to return the Child, X born (omitted) 2014 to the Mother at her residence by 12:00 noon on 26 July 2014; and

3. From 9 August 2014 the existing orders are to resume.

4. The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the Child or any of them and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the Child or permitting any other person to do so.

5. The matter be adjourned to 3 November 2014 at 2:00pm for mention to consider whether and, if so, how the matter progresses.

6. Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 72 hours notice by application to the Court in Chambers in appropriate circumstances.

IT IS NOTED that publication of this judgment under the pseudonym Carr & Carr is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT WOLLONGONG

WOC 224 of 2011

MR CARR

Applicant

And

MS CARR

Respondent

REASONS FOR JUDGMENT

Background

1. In the matter of Carr, I provide the following oral reasons.  The war between X’s parents is now in its fourth year, it having started in 2011.  X, who was born on (omitted) 2007, will be seven years old soon and he has the dubious honour of having had litigation about him spanning almost half of his life.

2. On 10 August 2012, Foster FM, as he then was, handed down comprehensive reasons for judgment and made detailed orders after a three-day hearing.  This resulted in a reversal of X’s care from his father to his mother.  A reading of the reasons gives an insight into the intensity of the conflict between the parents who were and perhaps continue to be, completely oblivious to the harm they are causing to their son, who they both say they very much love.

3. Each made, in that litigation, serious allegations against the other, which were denied.  One of the particular allegations the father made against the mother in that case has re-emerged and it is probably the main issue in the present interim application.  The allegation by the father then, and which continues today, is that the mother’s consumption of alcohol is so problematic that it impacts on her parenting capacity and actually presents a danger to X.

4. As a result of an incident that occurred on 14 May 2014, X came into his father’s care, where he has remained pending the outcome of the present application.  Before then and pursuant to Foster FMs orders of 10 August 2012, X lived with his mother and spent time with his father, alternating weekends, some alternating Thursday overnights, half the school holidays and special days.  On the accounts given by both the mother and the father in their evidence, there have been problems in the intervening period anyway.

5. With that background, the Court considers the following matters.  Firstly, the competing proposals. The Mother’s proposal is contained in her handwritten proposed minute of order that was provided to the Court. It provides, in effect, for the existing orders to be suspended, for X to live with his mother, and for X to have no time with the Father until further order of the Court. She also sought a number of ancillary orders.

6. The order that the Father seeks is contained in his Application filed on 28 May 2014, is confirmed in his solicitor’s case outline and provides, in effect, that X continues to live with his father and spends time with the Mother.  The Independent Children’s Lawyer’s proposal is in effect that X be returned to his mother and that the existing orders, that is to say those made by his Honour Foster FM, be reinstated.

7. The Court had available to it a substantial amount of evidence.  I will include in these oral reasons a list of the affidavits that each party relied on.  However, there was a substantial quantity of background material to which the Court was referred, or to which reference was made during submissions, and the source of which is the Court’s file in relation to the previous proceedings.

8. The Applicant relied on the following documents:

   ·Initiating Application filed 28 May 2014; and

   ·Affidavit of Mr Carr filed 28 may 2014; and

   ·Affidavit of Ms L filed 10 June 2014; and

   ·Affidavit of Mr D potter filed 18 June 2014; and

   ·Affidavit of Mr Carr filed 18 July 2014; and

   ·Affidavit of Mr R filed 18 July 2014; and

   ·Affidavit of Mr D filed 16 July 2014;

   ·Affidavit of Ms F filed 18 July 2014; and

   ·Affidavit of Ms P filed 18 July 2014; and

   ·Affidavit of Ms H filed 18 July 2014.

9. The Respondent relied on the following documents:

   ·Response filed 18 June 2014; and

   ·Affidavit of Ms Carr filed 18 June 2014; and

   ·Affidavit of Mr M filed 18 June 2014; and

   ·Affidavit of Ms Carr filed 18 July 2014; and

   ·Affidavit of Mr M filed 18 July 2014; and

   ·Affidavit of Ms J filed 18 July 2014.

10. For example, as foreshadowed, the Court has obviously read the reasons for judgment of his Honour.  In addition, the Court has read the family report of Ms O, dated 11 November 2011;  her report of 3 May 2012;  two substance abuse assessments prepared by Mr G, one which appears to be dated January 2012 and the other February 2012.

Applicable law

1. The applicable law that governs an application like this is of course contained in Part VII of the Act.

2. In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

3. The objects and principles of Part VII are set out at s. 60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

4. At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

5. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

6. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

Determining child's best interests

(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)  The primary considerations are:

(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.

Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3)  Additional considerations are:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child);

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)  the practical difficulty and expense of a 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;

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)  any family violence involving the child or a member of the child's family;

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4 the High Court said

   Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

1. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

2. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Discussion

1. This interim decision about where X lives depends on whether or not events in May 2014 warrant X being retained by his father or whether he should be returned to his mother.  None of the other matters raised by the parents against each other contraindicate his return to his mother.  Why should there be a preference for him being returned to his mother unless there are risk issues? 

2. The answer is obvious.  Less than two years ago, matters relating to X were exhaustively considered by Foster FM, who made orders that are not the subject of appeal.  Prima facie, other than as to risk issues, the Court’s final ruling ought not, as a matter of principle, be revisited, indeed reversed, on an interim basis.

3. An incident occurred on 12 May 2014. The maternal grandmother and the Mother’s stepfather deposed to this in their affidavits. They deposed that in short, the mother was so intoxicated and so comatose as a result of her intoxication, that she could not breastfeed her own baby, Y, one year old. This set in train a series of events that eventually led to the father retaining X a few days later. Other things happened. The Department was notified. Others came forward from the father’s camp, deposing to their concern about the mother’s alcohol consumption, though not necessarily postdating the orders of Foster FM.

4. The Mother, unsurprisingly, provides her own version of the events on 12 May, in her affidavit of 17 June, particularly paragraphs 64 to 71 inclusive.  In short, she deposes to her being hungover and not being comatose.  Of course, if she was intoxicated or comatose, as her own mother and stepfather allege, she would hardly be in a position to know.  Even she agrees that she had a few glasses of wine.

5. In assessing the risk to X posed by this incident, the Court proposes to take the incident in the least favourable light from the mother’s perspective. This is because if the Court concludes that there is no unacceptable risk of abuse to X, even if the father’s case is unequivocally accepted, then it does not matter if the mothers version is in fact true, because X could still conceivably, and subject to conditions, be returned to her care without risk or without unacceptable risk.

6. If the Court had, hypothetically, to declare its impression of the evidence, it would probably accept the evidence of the maternal grandmother and the mother’s stepfather over that of the mother.  These are non-partisan witnesses.  Indeed, one would normally expect such witnesses to be loyal to their daughter and step-daughter.  Instead, they were so concerned about Y’s welfare and, indeed, X’s welfare by extension, that they did what they did.

7. The Mother’s response to this, in her evidence, is to minimalise and externalise responsibility.  Curiously, whilst in the one dramatic breath, at paragraph 29 of her affidavit of 17 July, she proclaims that she does not have a drinking problem such that she can abstain if she wants to, she then says that she has indeed abstained since 18 June.  What is the significance of that date?  I declined her recovery application on that date and made it very clear that her alcohol consumption was an issue of concern to the Court, even if it was not an issue of concern to her.

8. The Mother’s case, in short, is that she had a few drinks that night, but she denies that she has a drinking problem and she says that she can abstain when she wants to.  The Father’s case is that the Mother’s drinking forms part of a pattern, that it is not controlled by her and that it does present risks to X. 

9. This issue was plainly an issue before his Honour, Foster FM, who had before him considerable evidence.  In this regard, for example, he had family consultant Ms O’s first report of 11 November 2011, which records, for example, just giving one example, at paragraph 20, the father’s concern about the mother’s alcohol abuse.  Chronologically, there are then two substance abuse assessments prepared by Mr G.

10. The first one, which appears to be dated January 2011, contains an opinion at page 11. Mr G says that it is unlikely that the Mother was alcohol dependent. However, he described her drinking prior to separation as being hazardous and harmful, and he urged caution against reinstatement of regular drinking by the Mother. The final assessment, dated 26 February 2012, contains and interprets the results of liver function testing, which was in the normal range;  CDT testing, which was raised, though not high enough to indicate probable recent alcohol excess.

11. Family consultant Ms O’s second Report is dated 3 May 2012, and at paragraphs 29 to 31 of her report, she discusses Mr G’s evidence and its impact on the case.  Interestingly, Ms O clearly did not regard the concerns about the Mother’s consumption of alcohol as the main issue in the case.  She said that the main issue for X was in fact the high level of conflict between his parents.  She made this particular observation about the father at paragraph 43: “For the father, the end justifies the means.”

12. There are, of course, a number of paragraphs in the reasons for judgment of His Honour that are relevant in the present context.  The deal with not just the alcohol consumption issue but what His Honour regarded as the main issues.  They are too numerous to actually set out but I will refer to them as paragraphs 33, 34, 104, 122, 179, 202, 203 and 204.  In short, the issue about the mother’s alleged problematic consumption of alcohol was something that was thoroughly agitated before His Honour.  Notwithstanding that His Honour made findings that X be returned to his Mother’s case and, in fact, that contact and communication be suspended for a period of 6 months. 

13. In short, His Honour did not consider the issue of alcohol consumption to be one that would prevent X’s return to the Mother for the reasons that he articulates so comprehensively.  In short, the issue that the Father raises before the court presently is not a new one.  The only evidence that the Court is prepared to place any weight on at an interim hearing indicates that the mother was intoxicated, probably seriously so, on one occasion when other responsible adult family members were present and who intervened, quite appropriately so.

14. The Father’s case asks the court to extrapolate from this one event, and bear in mind that I discount the other evidence adduced by those in the father’s camp, that her drinking, that is the Mother’s drinking, is so problematic that it presents a risk for X.  But as against this, there are a number of protective factors or potential protective factors.  For example, there is no evidence to suggest that despite some departmental involvement, and as a result of notifications made, that the department has, in fact, intervened. 

15. A protective factor is that all the existing expert opinion contraindicates the indication of a pervasive and disabling problem in terms of parenting capacity and substance abuse.  Another protective factor is that the mother has offered an undertaking and can, in fact, be held to her undertaking to abstain.  Another protective factor in future is that her partner, that is to say Y’s father, could be required to enter into an undertaking to the court that requires a level of vigilance in relation to the mother’s abstinence.  The other protective factor that the court considers to be the mere pendency of litigation with the renewed involvement of the Independent Children’s Lawyer.

16. With these cumulative protective factors, the court concludes that there can be no unacceptable risk of abuse to X in his mother’s care.  It follows that he should forthwith be returned to her care.  In the context of this case where there has already been such detailed scrutiny of whether the mother has an alcohol problem, one incident of excessive drinking, even possibly binge drinking, does not an alcoholic make. 

17. Curiously, and perhaps almost extraordinarily, the Mother’s response to all of this is to say that the father’s time should be suspended. As the court observed before, the mother’s response to the incident of 12 May has been to minimise and externalise. For example, nothing seems to be her fault. She is vociferously critical of the Father for what he did and what her mother and stepfather did. The Mother should know, in the clearest possible terms, that this time the Court can find no fault in what the Father, the maternal grandmother and the Mother’s stepfather did. They were appropriately protective of the relevant children at the time.

18. The Mother has consistently minimised the seriousness of the event in question which casts doubt on her insight, even if it doesn’t necessarily cast doubt on her parenting capacity.  It shows a lack of child focus in circumstances where whatever she might feel about the Father, X has a good relationship with him.  Surprisingly, to say the least, she did not offer to abstain on 18 June when the matter first came before me, thus clearly indicating that she thought it was not a serious matter.  Regrettably, the overall picture is that of a woman who seems to have ignored Mr G’s warning about the levels of her alcohol consumption, but, nonetheless, wholeheartedly embraced his opinion that she is not alcohol dependent.  Perhaps the present application and proceedings might be a wakeup call to her. 

19. Provided Mr M enters into an undertaking in a form provided by the Independent Children’s Lawyer to report if the Mother is not abstinent and to intervene as appropriate if she is under the influence of alcohol, then X is to be returned to his mother and the existing orders are to resume.  Furthermore, of course, the Mother is to enter into an undertaking to abstain from alcohol in a form that is submitted by the Independent Children’s Lawyer. 

20. There needs to be some serious consideration by the father and mother as to whether this case progresses any further. The Court fully accepts that, at this time, it has not heard submissions on Rice & Asplund, but observes that if ever there was a case that needed for the litigation to end now, it is this case. Whilst the court is of the view that the father acted appropriately, that does not mean it is appropriate to continue this litigation in circumstances where the court has considered carefully the matters that he has raised. I urge the Independent Children’s Lawyer, who has a long history of association with the parents through this matter, to facilitate some discussions and reality testing with both the parents in this regard.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  27 August 2014