Caterson & Caterson
[2021] FedCFamC1F 155
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Caterson & Caterson [2021] FedCFamC1F 155
File number(s): SYC 3210 of 2021 Judgment of: CHRISTIE J Date of judgment: 22 October 2021 Catchwords: FAMILY LAW – INTERIM PARENTING – Change of circumstances – Unacceptable risk – Substantial and significant time with the father suspended. Legislation: Evidence Act1995 (Cth) s 135
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.09
Cases cited: Goode and Goode (2006) FLC 93-286
King and Finneran (2001) FLC 93-079
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 20 October 2021 Place: Sydney Counsel for the Applicant: Ms Clifford Solicitor for the Applicant: Barkus Doolan Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Swaab Attorneys ORDERS
SYC 3210 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CATERSON
Applicant
AND: MR CATERSON
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT, PENDING FURTHER ORDER:
1.That the Previous Orders be suspended.
2.That X born … 2011 and Y born … 2013 (together referred to as “the children”) live with the mother at all times the children are not spending time with the father pursuant to these Orders.
3.Subject to compliance with Orders 5, 7, 8 and 9, the children spend time with the father each Sunday from 9.30am – 12.30pm or such other time as is agreed between the parties in writing.
4.That the children's time with the father:
(a)be suspended between 14 and 25 December 2021;
(b)be suspended during periods of time that the mother is travelling outside Sydney with the children, with the mother to give not less than 28 days' notice of such travel dates, provided that it is no more than one weekend each school term and one weekend each school holidays.
5.That the time the children spend with the father be supervised by a private, commercial supervisor as agreed between the parties in writing, with the father to meet the costs of supervision, and with the supervisor to be responsible for transporting the children to and from the mother's care.
6.That the father may telephone the children on X or Y's mobile phone between 6.30pm and 7pm no more than once every second day.
7.That upon a request being issued by the mother, such requests to be made on no more than a fortnightly basis, the father undertake Carbohydrate Deficiency Transferrin (“CDT”) testing in accordance with the Australian Standard at an accredited testing laboratory within 48 hours of a request being made by the mother's solicitors, with such testing to occur under the guidance of the father's treating medical practitioner or his treating specialist for the detection of alcohol in the father's system, and the father do all acts and things to cause the results of such testing to be provided direct to the mother's solicitor as soon as they are available (and to enable such to occur, the father forthwith provide an irrevocable authority to the treating practitioner and laboratory to provide the results of such testing to the mother and the mother's solicitors).
8.That upon a request being issued by the mother, such requests to be made on no more than two (2) occasions in a six (6) month period, the father undergo hair follicle testing with an accredited laboratory within 48 hours of a request being made by the mother's solicitors on the following terms and conditions:
(a)collection is to be conducted by a qualified and certified collector;
(b)chain of custody procedure is to be applied to the sample;
(c)testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;
(d)either head or body hair may be collected for testing.
9.To give effect to Order 8 (above):
(a)the father is required to maintain his head hair at a length of not less than 4 centimetres and neither head hair nor body hair is to be cut, bleached or dyed pending further Order;
(b)the hair drug test is to screen for amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites;
(c)the father do all acts and things to cause the results of such testing to be provided direct to the mother and the mother's solicitors as soon as they are available (and to enable such to occur, the father forthwith provide an irrevocable authority to the practitioner and laboratory to provide the results of each such testing to the mother and the mother's solicitors.
10.That the father meet the costs of testing pursuant to these Orders.
11.In the event:
(a)any CDT test undertaken returns a result of 2.2% or higher;
(b)the hair follicle testing undertaken produces a positive result, other than identifying the presence of any prescription medications prescribed to the father by his treating medical practitioner(s) and which have been taken by the father in accordance with the legitimate directions of those treating medical practitioner(s);
(c)the father fails to undertake the testing requested by the mother on the terms and conditions required as applicable; then the children's time with the father is immediately suspended pending further Order or written agreement between the parties.
12.That either party or the Independent Children’s Lawyer is granted liberty to relist the matter at short notice in the event of Order 11 resulting in a suspension of time.
13.That the father be and is hereby restrained from:
(a)consuming alcohol and any non-prescription and prescription drugs (save in accordance with legitimate directions of a treating medical practitioner) during all periods the children are spending time with him, and for a period of 24 hours prior to the children spending time with him; and
(b)administering any prescription medication to the children while they are in the father's care in the absence of prior agreement in writing with the mother; and/or
(c)filling any prescriptions issued to the children.
14.That pursuant to s 68B of the Family Law Act 1975 (Cth), the father be hereby restrained by injunction from the following, save and except in compliance with these Orders:
(a)approaching or entering the mother's or the children's place of residence; and
(b)approaching or entering the mother's place of work.
15.Pursuant to s 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed for the children and the Legal Aid Commission of New South Wales is requested to provide such representation.
16.Once appointed, the parties provide to the Independent Children’s Lawyer copies of all documents filed by them in these proceedings, together with all existing orders and copies of any relevant reports, within seven days of such a request being made.
17.Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.
18.Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena or pursuant to s 69ZW of the Family Law Act1975 or ss 245D and 248 of the Children and Young Persons (Care and Protection Act) 1998 (NSW) in these proceedings.
19.Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.
20.There be no order as to costs.
THE COURT NOTES THAT:
A.Pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
B.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Caterson & Caterson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for interim parenting orders in respect of two (2) children, X born in 2011 and Y born in 2013 (“the children”).
Final parenting orders were made by consent on 13 April 2017 (“the 2017 orders”) which provided for the children to live with their mother and spend substantial and significant time with their father.
Ms Caterson (“the mother”) filed an Initiating Application on 5 May 2021. The mother seeks orders as set out in her Case Outline filed 19 October 2021 – which provide for weekly supervised time between the children and the father and a drug/alcohol testing regime to be undertaken by him.
Mr Caterson (“the father”) filed a Response on 12 May 2021.The father proposes that the mother’s application be dismissed. That would effectively mean that the children would spend time with the father in accordance with the 2017 orders.
Orders were made on 13 May 2021 which had the effect of suspending the operation of the 2017 orders. The matter was listed for interim hearing on 29 September 2021 but was vacated because of changes to the Court calendar. The interim hearing was rescheduled for 16 November 2021 but was able to be brought forward to 20 October 2021.
At the hearing on 20 October 2021 the mother relied on:
(a)A Case Outline filed 19 October 2021 (containing a Minute of Orders Sought) (marked as exhibit 1);
(b)An affidavit of Ms Caterson filed 27 August 2021;
(c)A Notice of Risk filed 4 May 2021;
(d)A tender bundle (marked as exhibit 2); and
(e)The Child Dispute Conference (CDC) Memorandum dated 20 October 2021 (exhibit 3).
At the hearing on 20 October 2021 the father relied on:
(a)A Case Outline filed 19 October 2021 (marked as exhibit 4);
(b)Response to Final Orders filed 12 May 2021;
(c)An affidavit of Mr Caterson filed 19 October 2021;
(d)An affidavit of Mr B Caterson filed 27 August 2021;
(e)A Notice of Risk filed 12 May 2021; and
(f)A tender bundle (marked as exhibit 5).
The evidence of the parties was untested. At the commencement of the hearing counsel for the father made an application that he be permitted to cross-examine the mother. He submitted that the mother’s evidence fails to satisfy the test established in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) thus the determination of this application could be dispositive of the case on a final basis.
Rule 5.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that cross-examination will be permitted at an interim hearing in “exceptional circumstances”. Here, independent of the mother’s evidence, there was a body of relevant evidence produced on subpoena and tendered into evidence and accordingly the test of exceptional circumstances was not met and the application was declined.
Counsel for the mother sought to tender the CDC memorandum. Objection was taken by counsel for the father in reliance upon the provisions of s 135 of the Evidence Act1995 (Cth). Counsel for the father suggested that the report was biased and prejudicial. The report writer relied on what she had been told by the parties during the interviews (as is usual). I admitted the report and noted that the concerns raised by counsel may be legitimate bases upon which to accord little weight to the document. Having read all of the evidence and heard the submissions I accept that until the parties’ evidence is tested the CDC memorandum is of little weight – save where its observations are supported by the objective evidence.
AGREED FACTS
As with any interim application it is useful to record that which is uncontroversial.
As recorded above, the parties entered into consent parenting orders which became Final Orders of the Federal Circuit Court of Australia on 13 April 2017.
The children were aged five years and three years at the time of the making of the consent orders. They are now ten years and eight years.
The children love and are loved by both parents.
Until April 2021 the children were living with the mother and spending substantial and significant time with the father pursuant to the 2017 orders.
From 9 April 2021 the mother has not complied with her obligations pursuant to the 2017 orders to make the children available for time with the father and the children have not seen their father face to face since 9 April 2021.
In the period since the children ceased to spend time with the father the children have expressed they missed their father.
THE EVIDENCE POST THE 2017 ORDERS
Since the making of the 2017 orders the evidence suggests that the following has occurred:
(a)On 25 January 2019 police records show that the father and his partner “have drunk large amounts of alcohol causing them to become well intoxicated”, an argument ensued and the police attended in the early hours of 26 January 2019 having received multiple calls from neighbours;
(b)On 31 August 2019 police records suggest that the father was identified as the victim in what was described as a verbal argument. The record does say that an involved party was “[u]nder the influence of alcohol”. The children are named in the COPS record as being present during the argument;
(c)On 1 October 2019 the father was convicted of low-range PCA and disqualified from driving;
(d)On 5 October 2019 the mother says the father and children were involved in a car accident;
(e)On 23 December 2019 the father was the subject of a random breath test and was subsequently charged and convicted of mid-range PCA and driving while disqualified. The children were in the car at the time and the COPS record says “a moderate smell of alcohol could be smelt in the accused’s birth, his eyes were watery, his speech appeared slurred and he was unsteady on his feet”;
(f)On 31 March 2020 NSW Police records state that the father and his partner began arguing after drinking. At about 3am on 1 April 2020, as a consequence of the argument, a child in the household called the police who attended at 3:15am;
(g)On 8 November 2020 Y broke her arm in her father’s care (and received medical attention when returned to mother);
(h)On 7 January 2021 X sent text messages to her mother about the father;
(i)On 13 January 2021 Y sent her mother a text message which read in part “dad is drunk as hell”;
(j)On 28 February 2021 while the children were in his care the father attempted to start his car but was unable to do so after his blood alcohol was measured by the interlock device and recorded a result of 0.033 (in the morning);
(k)Between 10 February 2021 and 5 April 2021 the children sent text messages to the mother while in the father’s care;
(l)On 9 April 2021 while the children were in his care the father endeavoured to start his car but was unable to do so because the interlock device recorded a result of 0.054; and
(m)On 25 May 2021 on application of the New South Wales Police a Provisional ADVO issued that named as protected person the mother, the children and the mother’s father. The application for final orders is listed on 22 July 2022.
The father says as a symptom of depression he can from time to time have difficulties leaving his bed for up to a few days at a time. He further contends that a condition Selective Immunoglobin Deficiency (SID) can cause him to be bedridden.
THE LAW
In Goode and Goode (2006) FLC 93-286 the Full Court at [81]–[82] set out the procedure for determination of interim applications.
The father raised by his Response the question of the applicability of the principles enunciated in Rice and Asplund to the facts and circumstances of this case.
Both parties agreed as to the content of that principle and its characterisation as “merely a manifestation of the best interests principle” (SPS and PLS (2008) FLC 93-363 at [48]).
Accordingly, where, as in this case the parties have final orders, it is necessary to determine whether upon a consideration of all matters relevant to the best interests of the subject children those interests are best served by dismissal of the Initiating Application or by the continuation of proceedings.
Counsel for the father referred to a decision of Collier J in King and Finneran (2001) FLC 93-079 as authority for the proposition that the Court has a deep reluctance to allow repeated litigation because of the potential harm of litigation itself on children. That is so. In King and Finneran his Honour observed at [62]:
What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh…
DO THE FACTS INDICATE CHANGE?
In essence counsel for the father pointed to the fact that the mother had raised concerns about the father’s drinking, drug use, driving issues and mental health in affidavit material in the proceedings which resulted in the 2017 consent orders. He submitted that since the subject matter of the mother’s complaints in 2017 and 2021 was the same then she could not establish the requisite change in circumstances.
The difficulty of that approach is that it fails to acknowledge the fact that ultimately it is for the Court to determine whether the children’s best interests will be promoted by one proposal or the other.
The fact that the parties entered into consent orders in 2017 following the mother having raised risk issues in those proceedings is relevant but not determinative. The children are now of an age where it is plain they have been directly impacted by their father’s alcohol consumption. Most starkly on the occasion when he was charged with mid-range PCA.
The subpoenaed material (such as has been tendered and become part of the evidence) is informative of matters within the father’s knowledge but not set out in his evidence:
(a)The father tells the Court in his affidavit that he does not have an “alcohol dependency problem”;
(b)The materials produced by the father’s psychiatrist Dr C suggest that whatever medical label may be attached to the father’s drinking, it is an issue relevant to these proceedings because it is relevant to his capacity to provide care to the parties’ children.
(c)The notes of Dr C detail a period after the making of the final consent orders and provide detail in respect of matters known to the father and his psychiatrist;
(d)The notes record the father reporting to Dr C:
(i)On 31 January 2018 drinking four to five nights per week and six to seven whiskies;
(ii)On 9 (or 19) March 2018 “drank too much over the W/E [weekend] and didn’t go to work”.
(iii)On 26 June 2018 drinking up to a bottle of whiskey a night and experiencing shaking and worried about withdrawal after abstaining for two days;
(iv)On 15 March 2019 drinking two bottles of wine a day;
(v)On 8 July 2020 having reduced from 12 standard drinks a day to six standard drinks a day;
(vi)On 4 May 2021 drinking “through the roof” – 10 standard drinks a day.
(e)Dr C and the father (it would appear from the notes) have discussed Alcoholics Anonymous and rehabilitation.
Another issue which arose from the subpoenaed material is the question of whether or not the children are at any risk arising out of the (prescription) drug use of the father’s partner Ms D. The father reported to Dr C on 15 March 2019 that Ms D had been hospitalised following a pill overdose.
The father had an “interlock device” installed in his car following his second conviction for driving with more the prescribed content of alcohol in in his system. The device prevents him from operating the car unless his blood alcohol measured by breath test reads at nil. On two occasions the data records (and the father concedes) he attempted to start his car after drinking while the children were in his care.
It is of no moment that he was unable to drive. Concern arises from his decision or attempt to drive and more generally from his failure to follow through with medical advice to decrease his drinking.
The risk to the subject children does not arise only from drink driving but from the manner in which excessive alcohol consumption may impact on parenting capacity more generally.
The issues which arose at the interim hearing were:
(a)Does the father use alcohol to excess? If yes, what are the consequences for the children?
(b)Does the father abuse prescription medication? If so, what are the consequences for the children?
(c)Has the mother, to use counsel’s expression, adopted an approach to “the cataloguing of issues of throwing it all up in the hope that some sticks”?
(d)Is there an issue in respect of the father’s supervision of the children when in his care?
(e)Does the manner or style of communication of one or both of the parents have consequences for the children?
(f)Is the father unavailable to the children for any reason (during the children’s time with him)?
It is unnecessary to rely on the evidence of the mother to conclude that the father’s drinking poses a serious issue to his health, undermines his capacity to provide a safe home for his children and exposes them to conflict. The father’s denial creates an additional concern.
The father did not file an affidavit by his mother or his de facto partner both of whom have been present at different occasions where it is plain alcohol has been consumed by the father.
The mother makes serious allegations about the father’s misuse of his daughter’s prescription medication. The father denies those allegations. I am not able to make a finding beyond the fact that her medication went missing. The fact that I cannot make a finding does not dispose of the issue. If the mother’s allegations are true then this conduct is also a risk to the children.
The father’s own evidence creates a concern that he may be unavailable to the children for extended periods.
It should be observed that the communication between the parties recently has been poor and it is to the advantage of their children if they can take steps to improve it.
Counsel for the father submitted, and I accept, that some of the matters relied upon by the mother to ground a change of circumstances if considered individually would not be sufficient to cause the Court to revisit final consent orders. Those include his failure to appreciate that Y’s arm was fractured, his treatment of X’s injured finger and complaints about take away food.
However, a combination of the serious nature of the matters advanced by the mother and conceded by the father and the matters set out in the documents from New South Wales Police, Dr C and E Service, place beyond contention that the father’s conduct has exposed the children to risk and unless that conduct changes has a likelihood of further exposing the children to risk. I am satisfied that it is in the children’s interest that they spend time with their father provided such time is professionally supervised.
I have to balance the risk against the fact that the consent orders provided the children with substantial and significant time. It is plain that notwithstanding some of the more serious issues to which the children have been exposed they love and miss their father. The Family Law Act 1975 (Cth) is plain when balancing the benefit to the children of a meaningful relationship with their father it is necessary to give greater weight to the requirement to protect them from harm and I do so here.
PROPOSED ORDERS
Telephone communication
The mother’s minute made no provision for telephone communication. The father was effectively seeking a continuation of Order 12 of the consent orders, which provided for communication no more than every second day. The May 2021 orders provided for time no more than once every second day and I find that order is appropriate.
Testing
The mother sought a series of orders for the father to undertake drug and alcohol testing. Such testing is of benefit to both parents. If the father’s results demonstrate that he has remained abstinent then it is likely (absent other issues) that after an appropriate period supervision will no longer be necessary. Similarly, should the results indicate continued use of drugs or alcohol to excess then this will provide objective data which may be relevant to any subsequent determination by the Court. Ultimately testing orders if made are made because they are in the best interests of the children.
The father relied on CDT results dated 24 May 2021, 28 June 2021 and 6 August 2021. Each of those results was within a range which the test result document described as equivocal. Further (and random) testing is appropriate. Hair follicle testing will provide a longer and more comprehensive picture.
It is the interests of the children that there be some objective measure of their father’s capacity to remain abstinent.
Injunction
The mother sought the protection of an injunction the effect of which would be to prevent the father from approaching the parties’ residence or the mother’s place of work. That order was made on 13 May 2021 on a without admissions basis and there is no evidence is has been breached. In circumstances where there has been a previous breach of ADVO it is appropriate that the order be made as sought – acknowledging that its terms have been complied with in the period 13 May 2021 to date.
Suspension of time
The mother sought that the father’s time be suspended to enable the children to have holidays with her. There is no evidence of a specific holiday but the general proposition that the children would enjoy a holiday is uncontroversial.
As to the order permitting suspension if the mother gave notice – such order is too broad. It needs to be limited to make sure it cannot be used as a means of curtailing the father’s time. Suspension ought only be permitted on one weekend per school term and one weekend per school holiday period.
Independent Children’s Lawyer
The mother’s application sought the appointment of an Independent Children’s Lawyer. The father through his counsel indicated that if I determined the matter was to proceed he would not be heard against the appointment.
It is appropriate in the circumstances of this case that the children be independently represented.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 22 October 2021
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