Church and Hynes

[2018] FCCA 1074

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHURCH & HYNES [2018] FCCA 1074

Catchwords:
FAMILY LAW – Parenting – interim order – two children aged 12 and 9 years – whether the children should live with the mother or father – risk of harm to the children in the mother’s household – alcohol abuse by mother – paranoid behaviour by mother – mother leaving the children unattended – children expressed strong views to live with father – best interests of children.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:
Goode & Goode [2006] FamCA 1346

Applicant: MS CHURCH

Respondent: MR HYNES

File Number: NCC 3281 of 2017

Judgment of: Judge Middleton

Hearing date: 22 January 2018

Date of Last Submission: 22 January 2018

Delivered at: Newcastle

Delivered on: 22 January 2018

REPRESENTATION

Solicitors for the Applicant: Boyd Olsen Lawyers

Solicitors for the Respondent: Harpers Legal

ORDERS

1. The children [X] born 5 February 2008 and [Y] born 25 September 2005 (“the children”) be returned to the Father by no later than 4.00pm today.

2. The children live with the Father.

3. The children spend time with the Mother as agreed but failing agreement as follows:

   (a)Each Tuesday and Thursday from after school (or 3.30pm) until 8.00pm, commencing Thursday, 25 January 2018.

   (b)Each alternate Saturday from 9.30am until 4.30pm and each alternate Sunday from 9.30am until 4.30pm, commencing, Saturday 27 January 2018.

4. Within seven (7) days of the date of these Orders the mother undergo Carbohydrate-Deficient Transferrin (CDT) testing for alcohol abuse, with the certificate of results of same to be provided to the Father’s Solicitor within twenty four (24) hours of receipt of such certificate.

5. For the purpose of implementation of the Mother’s time with the children the Mother shall collect the children from the Father’s residence at the commencement of time and shall return the children to the Father’ residence at the conclusion of time.

6. Orders 7, 8, 9, 10, 11 and 12 of Orders dated 7 November 2017 remain in force.

7. The children [X] born 2008 and [Y] born 2005 are to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.

8. Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.

9. Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.

10. The Solicitor for the Respondent is granted leave to issue more than five (5) subpoena.

11. The matter is adjourned to 9.30am on 10 May 2018 at Newcastle for directions hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3281 of 2017

MS CHURCH

Applicant

And

MR HYNES

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Background

1. This matter was commenced on 24 October 2017 by the applicant mother.  On that occasion she was seeking a recovery order. 

2. The matter came before me on 7 November, and prior to that time the father had filed his material.  On that occasion there were allegations raised by the father that the mother posed a risk to the children due to her alleged alcoholism and some neglect issues that he was aware of.

3. On 7 November I made an order that the children be returned to the mother in circumstances where there were counter allegations and no independent evidence to support either allegation, and that the children spend substantial and significant time with their father. 

4. I also ordered that the parties attend upon a family consultant on 20 December 2017 so that I might be provided, together with the parties, with a memorandum setting out what, if anything, the children had to say in relation to the matter, and thereby assisting me in determining what interim arrangements should be put in place. 

5. A summary of the risks outlined in the memorandum to the court dated 20 December under the hand of Ms R is as follows:

   a)Heavy drinking by the mother. She admits, it’s alleged, to drinking one bottle of wine per day.  The father and children suggest it is three to five bottles per day. 

   b)A risk of domestic violence noting that the father reported two occasions of domestic violence; the mother reporting none by the father. 

   c)The introduction of a new partner in circumstances where it is alleged that that partner attends and spends overnights and he too is an alcoholic and he too leaves empty bottles of beer lying around. 

   d)The paranoid behaviour of the mother wherein she removes light fittings, it’s alleged;  pulls apart fans and televisions and, on one occasion, the air conditioner, although on that occasion the mother said it was because the air conditioner was broken; and the impact upon the children of that behaviour. 

   e)The allegation of leaving the children at home alone and the impact upon the children in relation to that allegation. 

6. The memorandum also sets out what the children had to say.  It should be noted that the children are 12 years, and nine years of age respectively. 

7. The family consultant is of the view that both children were delightful, intelligent children and were good conversationalists. 

8. It is important to note that both children reported loving both of their parents, but said historically they have always been more closely attached to their father and they feel safer with their father. 

9. They feel that the father listens to them and understands them.  They are not frightened by the father, whereas the mother’s behaviour is bizarre and frightening to them. They also reported enjoying the company of the father’s partner, Ms M, and her children. 

10. The children indicated in their estimation that the mother drinks three bottles of pink wine per day, every day, and they reported that the mother’s bedroom is strewn with empty wine and beer bottles.  They also reported seeing longneck beer bottles belonging to Mr E who comes over of an evening when the children are in bed. 

11. The father informed the family consultant that he knew of Mr E, and he too was concerned that Mr E may be an alcoholic and that, together, he and the mother abuse alcohol. 

12. The children reported being well aware of the mother’s paranoid behaviour where she dismantles electrical items and machines, and they found the behaviour puzzling and bizarre. 

13. On one occasion one of the children reported coming home from school and found their mother unconscious, naked on the bed.  They could not rouse her.  The mother confirmed that she was on the bed naked, but said she was having a rest. 

14. The children complained of being left alone on multiple occasions both day and night, and that as a result they feel scared. 

15. Another concern for the children, and indeed for the court, is the children report that the mother smokes in her bedroom when she is drinking.  It obviously poses a risk, in the event that the mother drinks to unconsciousness, of the house being set alight.  That behaviour should stop immediately if it is occurring. 

16. Both children indicated that they would prefer to live with their father because they feel safe, and the family consultant made various recommendations. 

The Law

1. Section 60CC of the Family Law Act1975 (Cth) sets out the matters I must consider when determining interim applications, and of course Goode & Goode [2006] FamCA 1346 sets out that I must follow the legislative pathway, and that has been confirmed in cases such as MRR & GRR (2010) 240 CLR 461.   

Primary Considerations

Section 60CC(2)(a)

1. The first primary consideration in determining what is in a child’s best interest is the benefit to the children of having a meaningful relationship with both of the child’s parents 

2. These children have had a long history with both parents.  They report to loving both parents. 

3. It is not surprising that the submissions made on behalf of the mother are to the extent that the mother is unaware of the children’s fears and preferences. 

4. That is, in my view, age-appropriate behaviour for children who love both parents who do not want to hurt either parent.  It is perhaps not surprising in those circumstances that the mother is unaware of the children’s fears. 

5. There is a benefit to the children having a meaningful relationship with both of their parents.  They have a good relationship and a loving relationship with both. 

Section 60CC(2)(b)

1. I also must consider the second primary consideration, and that is the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

2. In real terms, it’s the issue of alcoholism and the potential impact upon that behaviour for the children in circumstances where they complain that they are left alone day and night at times, and on one occasion have come home to what could only be described as a confronting experience - having to rouse their unconscious mother. 

3. The children complain of being scared.  They complain of feeling confused about the mother’s, as they describe, bizarre behaviour. 

4. In those circumstances, if that behaviour continues and the children continue to be exposed to it, there is, in my view, a real risk that the children may suffer some psychological harm long term as a result. 

Section 60CC(2A)

1. Section 60CC(2A) provides that I must give greater weight to the consideration in section 60CC(2)(b) when determining those two primary considerations, that is, I must give greater weight to the need to protect the children.

Additional considerations

1. Section 60CC(3) sets out the additional matters.

Section 60CC(3)(a) – views expressed by the child

1. Section 60CC(3)(a) concerns any views expressed by the children and is very relevant in circumstances where both children have told a family consultant that they feel closer to their father, safer with their father, and want to live with their father.

Section 60CC(3)(b) – nature of the child’s relationship with each parent or significant other

1. I have already discussed section 60CC(3)(b) and note that the children have a good, loving, secure attachment to both parents.

Section 60CC(3)(c) - the extent to which each of the child’s parents has taken or failed to take the opportunity to be involved in the children’s lives.

1. The issue of alcohol consumption looms large in this matter and where alcohol is being consumed to the extent that it interferes with the mother’s ability to take every opportunity to be involved in the children’s lives it is a relevant consideration. 

Section 60CC(3)(d) - the likely effect of any change in the child’s circumstances

1. The children have lived with their mother all of their lives, and on her case have spent minimal time away from the mother.

2. However, they are of an age now where time away from their mother will not be as disadvantageous as it might if they were young children.

3. Of course, I must take into account the likely effect of that change in circumstances where there are, in my view, some real risks involved in allowing the children to remain in the mother’s home, the risk of neglect, the risk of psychological harm, and the risk at worst instance of the house being set alight. 

4. There is some advantage to the children living with their father in that he provides a secure, loving household.  They have a good relationship with the father’s partner, Ms M and the children both desire to live there. 

5. They will also no longer be exposed to the potential of coming home to circumstances where they might find their mother naked or otherwise compromised or drunk, and they also would not be exposed to the mother’s paranoid behaviour on an ongoing basis. 

Section 60CC(3)(e) – the practical difficulty and expense of child spending time with parent

1. This section is not relevant to this interim hearing. 

Section 60CC(3)(f) – the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs. 

1. This consideration is at the forefront of this decision. 

2. Consuming even a bottle of wine per day will have a direct impact upon the mother’s capacity to provide for the children’s needs on an ongoing basis. 

3. The children are complaining that their needs aren’t being met.  It is very relevant. 

4. There is no evidence to suggest that the father cannot meet the children’s needs. 

5. In fact, the mother complains of no issues with the father’s home, no risks in the father’s home. 

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either parent

1. It would seem, based upon the independent evidence of the memorandum and of words of the children that resonate throughout, that the mother is enjoying alcohol and her friend, Mr E, more than she is focusing in on the children, and that’s a relevant consideration. 

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. It follows that section 60CC(3)(i) is also a relevant consideration where the children are complaining of being left unattended, of witnessing this bizarre behaviour, of having to rouse their mother on one occasion and of having Mr E attend when they are asleep.

2. All of those things would suggest, and I am satisfied, that the mother is demonstrating a poor attitude to the children at this stage. 

3. I am hopeful that attitude is being impacted upon by her alcohol use rather than any other factor, but time shall tell. 

Section 60CC(3)(j) – any family violence involving the child or family member

1. There has been some family violence between the mother and the father reported by the father. 

2. As this is an interim hearing I cannot determine as a fact whether that has occurred or otherwise, but where it is raised the Act[1] provides that I must take all action necessary to ensure that the children are not exposed to the risk of family violence in circumstances where there is an allegation that there is some family violence perpetrated by the mother and none by the father. 

   [1] Family Law Act 1975 (Cth)

3. There is some evidence of a risk of family violence being perpetrated in the presence of the children in circumstances where the mother may find herself intoxicated with Mr E. 

Conclusion

1. In considering all of those matters, I am satisfied that it is in the best interests of the children for them to live with their father. 

2. The family consultant makes recommendations in relation to the ongoing conduct of this matter, the first of which is that the mother provide evidence that she has completed a liver function and CDT test. 

3. The mother has indicated she will do that. 

4. There’s a recommendation that the children spend day time only with the mother.

5. That recommendation seems to be founded on the suggestion made by the children that the mother smokes in bed whilst drinking.  As I said, there is a risk that if the mother drinks to unconsciousness while smoking, there is a real chance that the house might be set on fire which would cause considerable damage to not only the home, but the health of the people inside it and potentially their deaths. 

6. For that reason I am satisfied that day time only time is a suitable interim arrangement for these children as it will provide for an ongoing meaningful relationship for the children, but remove any risk of the children being exposed to that significant risk.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 1 May 2018