Cicero & Matti
[2022] FedCFamC2F 810
•21 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cicero & Matti [2022] FedCFamC2F 810
File number(s): NCC 2769 of 2018 Judgment of: JUDGE KEARNEY Date of judgment: 21 June 2022 Catchwords: FAMILY LAW – parenting – children aged 15, 14 and 10 - whether the mother poses an unacceptable risk to the children through abusive relationship with alcohol – maintaining meaningful relationship through limited regular unsupervised time – best interests of children Legislation: Family Law Act 1975 (Cth) Cases cited: A v A [1998] FamCA 25
Aldridge & Keaton [2009] FamCAFC 229
Amador v Amador [2009] FamCAFC 196
B and B (1993) FLC 92-357
Johnson and Page [2007] FamCA 1235
M v M (1988) 166 CLR 69
Orwell & Watson [2008] FamCAFC 62
Slater v Light [2011] FamCAFC 1
Stott & Holgar & Anor [2017] FamCAFC 152
Division: Division 2 Family Law Number of paragraphs: 207 Date of hearing: 30-31 May 2022 and 1 June 2022 Place: Newcastle Counsel for the Applicant: Mr Mueller Solicitor for the Applicant: Gus Farland Solicitors Counsel for the Respondent: Mr Juhasz Solicitor for the Respondent: T F Martin Solicitor for the Independent Children's Lawyer: Ms Blackman (Solicitor Advocate) ORDERS
NCC 2769 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CICERO
Applicant
AND: MS MATTI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
21 JUNE 2022
THE COURT ORDERS THAT:
1.The applicant, MR CICERO (‘the father’) shall have sole parental responsibility for the children, X born in 2006, Y born in 2008 and Z born in 2012 (‘the children’).
2.The children shall live with the father.
3.The children shall spend time with the respondent, MS MATTI (‘the mother’) on the second Sunday of each month from 10.00am until 2.00pm, commencing Sunday 10 July 2022.
4.For the purposes of spending time and notwithstanding Order 8, the mother will collect and return the children to and from the turn-off of the public road and the start of the driveway leading to the father’s residence at the commencement and the conclusion of time; with the mother specifically restrained from:-
(a)further entering the land upon which the father’s residence is located (even if invited to do so by the children); or
(b)approaching or communicating with the father in any way (even if invited to do so by the children).
5.The mother shall have telephone communication with the children each Sunday at 7.00pm to be initiated by her telephoning one of the children’s mobile phone numbers.
6.The children are at liberty to telephone the mother in accordance with their wishes.
7.The father and the mother are restrained and an injunction shall issue prohibiting them from:
(a)Making critical or derogatory remarks about the other party in the presence or hearing of the children, and shall remove the children from the presence of any third person doing so; and
(b)Allowing the children access to any Court documents from these or any other court proceedings involving the parties;
(c)Discussing with the children these proceedings or any other court proceedings involving the parties.
8.Pursuant to s 68B of the Family Law Act 1975 (Cth) the mother is restrained and an injunction shall issue prohibiting her, from doing any of the following:
(a)Attending upon the children’s school/s; before/after school care facility; extra‑curricular activity;
(b)Further entering upon the land where the father and/or the children live, other than in accordance with Order 4;
(c)Removing the children from the care of the father, any school that the children may attend, any before/after school care facility; any extra-curricular activity or from any person in whose care the father has placed the children; and
(d)Drinking alcohol within 24 hours before spending time with the children and/or during the time spent with the children.
9.To facilitate Order 8, the father is permitted to provide a copy of these orders to an authorised officer of the children’s school/s, the children’s before/after school care facility or any service provider of any extra-curricular activity in which the children are engaged.
10.Notwithstanding the allocation of sole parental responsibility to the father, and without the need for the father’s express written permission, the mother is permitted to obtain copies of the children’s school reports and order copies of the children’s school photographs (at her sole cost).
11.The mother and the father shall keep each other informed in writing (by way of letter, email or sms text message) of their current residential address, mobile phone number and email address.
12.No later than 28 June 2022, the Independent Children’s Lawyer and the Court Child Expert shall meet with the children to explain the Orders to them.
13.No later than 5 July 2022, the Independent Children’s Lawyer is permitted to provide to the mother’s current treating general physician and her psychiatrist Dr B a copy of the family report dated 17 February 2021 and this judgment.
14.Unless impractical to do so due to an emergency, no less than seven (7) days before the next appointment with a current or new treating health professional or rehabilitation service provider, the mother shall provide to such person/s or an authorised officer from such service provider, a copy of the family report dated 17 February 2021 and this judgment.
15.All outstanding applications are withdrawn and dismissed.
THE COURT NOTES THAT:
A.In these orders the meaning of the words “in writing” can include by way of mutual SMS text messages between the father and the mother.
B.A reference to ‘health professional’ includes a drug & alcohol counsellor, mental health practitioner, psychologist, psychiatrist or authorised staff engaging in drug & alcohol rehabilitation with the mother but does not extend to unqualified or general members of the public associated with or being members of Alcoholics’ Anonymous.
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 a pseudonym Cicero & Matti has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth) (‘the Act’) between the Applicant, MR CICERO (‘the father’) and the Respondent, MS MATTI (‘the mother’).[1]
[1] Out of respect for each person’s personal preference about how they may wish to be identified in terms of their preferred honorific, persons (other than the parties or children of either party) shall be referred to by their surname only.
There are three children who are the subject of the dispute namely:-
(a)X (‘X’) is 15 years of age;
(b)Y (‘Y’) is 14 years of age; and
(c)Z (‘Z’) is 10 years of age;
collectively referred to as the children.
The children were independently represented by Ms Matheson (‘the ICL’).
The main issues to be determined by the Court were:-
(a)Whether the mother posed an unacceptable risk of harm to the children; and depending on such finding,
(b)What time and what communication the children should have with her.
The genesis for the proceedings was the father’s concern that the mother’s abusive relationship with alcohol impaired her capacity to such an extent that the only way to ameliorate the risk was for the children to not spend any face-to-face time with her.
There was no dispute that the father should have sole parental responsibility for the children who should live with him, and I shall make orders reflective of that agreed position.
For the reasons which follow, I have made orders reflecting (in the main) what the ICL and the mother (belatedly) agitated for, such that:-
(a)the children shall spend unsupervised time with the mother for four hours on the second Sunday of every month (which would automatically see them spending time with their mother on Mother’s Day without the need for the parties to have communicate about that day);
(b)the mother being at liberty to call the children each Sunday; and
(c)various orders to address the risk issues identified within the proceedings and otherwise support the tenor of the orders.
THE EVIDENCE
The father read and/or relied upon the following documents:-
(a)Affidavit of Mr Cicero filed 9 May 2022;[2]
(b)The father’s Outline of Case document filed 27 May 2022 – marked Exhibit ‘F1’;
(c)Various other exhibits marked from ‘F2’ to ‘F17’ - with those that are relevant being referred to throughout my judgment.
[2] Referred to as ‘’ with numbered paragraphs and annexures identified alphabetically identified in square brackets
Reliance by the father on an affidavit of Dr C filed 10 September 2018 was challenged, and having heard submissions, I upheld the objection. Having given oral reasons I do not intend to repeat myself here.
The mother read and/or relied upon the following documents:-
(a)Amended response to initiating application filed 22 December 2021;
(b)Notice of Risk filed 2 November 2018;
(c)Affidavit of Ms Matti filed 20 May 2022;[3]
(d)The mother’s Outline of Case document filed 27 May 2022 – marked Exhibit ‘M1’;
(e)The Indictment and Crown Case Statement dated 4 September 2019 – marked Exhibit ‘M2’.
[3] Referred to as ‘’ with numbered paragraphs and annexures identified alphabetically identified in square brackets
The mother’s reliance on records from a psychologist annexed to her affidavit were the subject of objection, and having heard submissions, I upheld the objection and struck out the relevant material. Having given oral reasons I do not intend to repeat myself here.
The ICL read and/or relied upon the following documents:-
(a)The ICL’s Outline of Case document filed 26 May 2022 – marked ‘Exhibit ‘ICL1’;
(b)Various other exhibits marked from ‘ICL2’ to ‘ICL15’ - with those that are relevant being referred to throughout my judgment.
In addition, all parties asked me to read the family report dated 17 February 2021 - marked Exhibit ‘A’[4]; which was prepared by family consultant Ms D[5] (as she then was).
[4] Referred to as ‘FR’ with numbered paragraphs identified in square brackets
[5] Referred as the ‘child expert’
As I mentioned to counsel for the father during closing submissions, any orders I make are not about punishing a party but rather reflect my view about what is in the best interests of the children. The same applies to the findings I have to make to reach a decided view about the appropriate orders to make.
Through that prism, it brings me no joy to make adverse findings about the mother’s credibility. Where there is a conflict between the mother’s evidence and a business record, the evidence of the child expert or indeed the mother’s earlier written evidence, then I prefer those records or evidence over the mother’s current evidence. The basis for my findings is set out below with some examples to support the identified proposition.
The mother’s evidence was inherently inconsistent with her own affidavit material. During cross-examination by the ICL about why the mother had not complied with an order made on 1 April 2020, for hair testing in respect of alcohol use, the mother gave various reasons why she had not complied including she did not know an order to that effect had been made as she was not present but her lawyer was and didn’t tell her, she did not have a grant of legal aid and could not afford it and/or she had bad legal advice. When it was put to her that the ICL had secured legal aid funding and had informed her solicitor by email, she denied knowledge of about it. When it was put to her that the reason she did not undertake the test was because she wanted to hide her alcohol use, she denied this assertion, saying that she had already given evidence to the Court about her alcohol use. When it was put to her that she was unrepresented at the time and had participated, she said that the event occurred over the telephone and she had difficulty hearing everything.
The ICL tendered two documents –
(a)An email from the ICL to a former solicitor for the mother, Mr E (‘MR E’) dated 23 June 2020;[6] and
(b)An affidavit affirmed by the mother on 24 July 2020 which was filed on 31 July 2020 (see paragraphs 24 to 36 under the heading ‘HAIR FOLLICLE TEST’).[7]
[6] Exhibit ‘ICL11’
[7] Exhibit ‘ICL14’
In combination the two exhibits supported findings of fact that –
(a)On 23 June 2020, the ICL had informed MR E that she had obtained funding for a hair test, recommending that it would be beneficial for the mother to have the test results available when the matter returned to court on 28 July 2020; and
(b)As part of a response, on the same day, MR E wrote –
…As for my client doing a hair follicle alcohol test, she has instructed that she is not interested in doing one.
(c)On 24 July 2020, the mother deposed to –
·being aware that on 9 April 2020 (sic) Judge Costigan (sic) had advised her to get a hair test for alcohol should she get legal funding;
·her being unable to secure funding, realising it was $750 and she couldn’t afford it;
·being very upset and frustrated that this failure was used against her in the July hearing and was one of the reasons why the children were left with the father;
·having gone out with friends and had several alcoholic drinks whilst feeling upset and frustrated and having also consumed a bottle of moscato (containing five (5) standard drinks) over her birthday weekend;
·having been told by her solicitor (sometime following the July hearing), that the ICL had now secured funding for a hair follicle test; and
·declining to submit to the test because –
….I felt it was futile to waste legal aid money on a test that may show the use of alcohol.
The mother was challenged about why she had denied that the reason she did not take the test was because she knew it would test positive for alcohol use and why she had denied any knowledge about the order and/or the ICL’s advice. No adequate explanation was given.
The mother’s written and oral evidence was inconsistent with the business records annexed or tendered before the Court. A key issue in the proceedings was the mother’s vulnerability to re-lapse and the reliance the Court should place on her anecdotal self-reporting of such occasions versus the subpoenaed business records.
Exhibit ‘F2’ was a series of clinical notes/assessments by staff from the F Hospital. On 19 March 2021, the mother was recorded as –
(a)requesting relapse prevention education after a recent lapse involving alcohol;
(b)saying she had four (4) standard drinks on the weekend of 14 March 2021;
(c)saying she had had nil alcohol since 14 March 2021;
(d)saying she had recently been consuming four standard drinks on weekends when the children were not with her;
(e)regularly attending Alcoholics Anonymous (‘AA’) meetings with a goal of abstinence.
Annexure ‘C’ (page 27 of 39) of the mother’s affidavit is a copy of a letter dated 6 September 2021 from drug and alcohol counsellor, Ms G (MS G) addressed “to whom it may concern” which confirms that the mother first contacted the Drug and Alcohol Clinical Services team on 17 March 2021, attending her first appointment on 19 March 2021. At that appointment, a full comprehensive assessment was undertaken and it was identified that the mother had consumed four (4) standard drinks during a social event on 14 March 2021 over a period of six hours with ongoing abstinence since.
The mother repeatedly said in cross-examination that this information was inaccurate and when the context of her attendance on 19 March 2021 was recorded on the face of the document as being as a result of recorded “recent” events (the most recent being five (5) days earlier), the mother denied this saying the staff had mixed up her statements because she definitely told them about her relapse being at the time of her birthday weekend in 2020. When she was challenged about how an event in 2020 could possibly be seen as a recent event during an assessment in March 2021, the mother categorically said that the timespan was “recent to me” because it was the last time she had drunk alcohol.
There are two problems with this evidence, firstly the mother annexed to her own affidavit a letter citing the relapse occurred on 14 March 2021, and secondly I found it incredulous that she considered events from eight (8) months earlier could be described as “recent”.
The mother’s written and oral evidence was inconsistent with the evidence of the child expert. At the outset I wish to record that the mother had been prohibited by an earlier order from having access to a copy of the family report and instead she said that she had had to scan the document in the presence of her lawyer some time ago. When this fact became apparent, the mother was given time to read the family report. Quite properly, no one made any submissions that adverse findings should be made about the lack of any evidence in the mother’s trial affidavit addressing challenges to the document that became apparent either from the mother’s oral evidence or questions put to the child expert in cross-examination.
Overall, and despite cross-examination from the mother challenging the basis for some of her opinions, I found the child expert to give measured and thorough evidence with the basis of her opinion clearly expressed. On that basis, unless I make a finding or express a reservation to the contrary, wherever there were inconsistencies between the evidence of the mother and the child expert, I preferred the evidence of the child expert.
Statements of facts set out below shall constitute findings of fact unless otherwise expressed.
In order to consider the various applications, it is necessary for me to set out a chronology of the parties’ circumstances. In doing so, I have (to a certain degree) not included evidence in support of the parties’ competing applications about the allocation of parental responsibility. This is because by the time the trial commenced, the parties reached agreement on a final basis about that aspect of the dispute.
BACKGROUND
The father was born in 1976 and he is now 46 years of age.
The mother was born in 1978 and she is now 43 years of age.
The parties met in about 2005 and began co-habiting in the months that followed.
In 2005, the mother was referred to a drug and alcohol rehabilitation service connected with the Region H Hospital[8] following her presentation by ambulance to the hospital after having collapsed at work due to the consumption of alcohol. The referral records the mother has having been drinking alcohol for approximately five (5) years. In cross‑examination she agreed that drinking alcohol had become a problem for her since 2004/2005 which pre-dated the commencement of her relationship with the father.
[8] Exhibit ‘F5’
In 2006, X was born.
In 2008, Y was born.
In 2012, Z was born.
On 29 October 2013, the mother voluntarily attended upon psychologist Mr J with the mother reportedly describing the reason for the referral being that her drinking was getting a bit out of control and when she drinks on weekends she finds it hard to stop such that her aim is now abstinence.[9] The document records the mother saying that she will drink 24 beers from Friday night over the weekend with her drinking slipping into the week. The mother is then reported to say that she has been drinking like this for approximately 10 years, ever since she went to university where it was part of the culture to binge drink. In cross-examination, the mother tried to minimise her recorded history and the role that the father played in supporting the children when he arrived home from work. For reasons already elucidated as to her credit, I accept the contents of the document rather than the mother’s oral evidence.
[9] Exhibit ‘ICL10’
On 20 October 2017, the mother was admitted to the F Hospital and agreed that upon admission at 4.00pm, she said that she had consumed two bottles of wine that day.[10] Upon submitting to a breathalyser, a reading of 0.318 was recorded. Because of the mother’s concerns about the father’s reaction to her presentation/attendance at the F Hospital, the medical staff decided to defer a mental health assessment of the mother. The mother told the court that in 2017/2018, her alcohol consumption became problematic as a result of the decline in her marriage and discussions the parties were having about separating.
[10] Exhibit ‘F11’
On 8 June 2018, exhibit ‘F6’ records the police reporting that the mother was transported to the F Hospital after having driven her car into a dam (which did not present a risk of submersion). The mother denied that she had been attempting suicide but agreed with the report by police that she had been self‑medicating with alcohol as well as taking pain relief medication for the surgical removal of a cyst.
The following day, exhibit ‘F7’ records the police attending the scene of a motor vehicle accident where at the very least she had struck a guard rail on the side of the K Highway (‘the June 2018 traffic incident’). Despite it being recorded by the police the mother denied having demolished a street sign. Many other facts recorded in the document were either disputed by the mother and/or she could not recall the event described to her. This included whether she had been unco-operative with police insofar as she initially refused to submit to a roadside alcohol test, refused to acknowledge the presence of the police, refused to voluntarily get out of the car (police had to prize her hands from the steering wheel) and refused to stand up after having been dragged from the car and placed on the ground. The mother was subsequently arrested for failing to submit to roadside breath test and subsequently at the police station, a breath analysis showed a reading of 0.287 grams of alcohol in 210 litres of breath. The exhibit records that after making threats of self-harm whilst in custody at the Town L police station, the mother was scheduled and transported to F Hospital.
At the F Hospital the mother stayed overnight and was diagnosed with -
(a)Acute behavioural disturbance due to alcohol intoxication; and
(b)Alcohol use disorder[11]
[11] Exhibit ‘ICL9’
The F Hospital document records the mother ‘masking’ and ‘minimising’ the frequency or pattern of her binge drinking and the effects that her drinking was having on those around her, saying “it’s not a problem for me”. She was reported to say that she would engage with a drug and alcohol counsellor upon discharge and no further action was recommended at that time.[12]
[12] Exhibit ‘ICL9’
Sometime prior to separation (the father told the Court it was “long before” he left the family home), the father penned a story about a family car being driven off a cliff which he placed on the fridge within the family home.[13] In cross-examination the father said the story was an analogy of what regularly occurred within the family home after the mother had been drinking alcohol with a consequential decline in her behaviours. The content of annexure ‘A’ is recorded below with the emboldened insertions representing the father’s evidence about who the description referred to –
A family went for a drive. The driver (the mother) aimed the car straight off a big cliff. They drove straight off it, they all survived but where (sic) very hurt. The driver got out of the car and jumped straight into another car and wanted to drive again but looked back to find the family looking at them not wanting to get in. The driver was upset and hurt and asking them, why aren’t they getting in, the family were hurt and scared and thinking they can’t (sic) getting in, the family were hurt and scared and thinking they can’t trust the driver, and each one of them came up with there (sic) own way of dealing with the situation. One just yelled and screamed ([Y]), another stood there (sic) ground and said there (sic) old enough to drive ([X]), a (sic) another just got in the car because they were used of (sic) accidents ([Z]). Another walked away a bit sat down and had to think (father).
[13] [61] & annex. ‘A’
The mother’s evidence was to the effect that she perceived the letter to contain a threat that the father would drive the family off a cliff (causing her to have heightened anxiety and fear).[14] The tenor of the father’s oral evidence was that the mother’s binge drinking had “always been a problem” except for periods of pregnancy and the family had been through “chaos” as a result.
[14] [62]
On 17 June 2018, the parties separated.[15] The same day, the police served the mother with a provisional ADVO naming her as the defendant and the father and the children as persons in need of protection with the conditions inclusive of the mother not to approach or be in the company of the persons in need of protection within 12 hours of consuming alcohol.[16]
[15] [5]
[16] Exhibit ‘F8’
The mother told the Court she could recall that on 23 July 2018 her mother taking her to her general physician at the M Medical Centre, followed by a visit to see psychologist, Dr C (‘DR C’) the same day. In cross-examination, the mother’s recollection of what happened with DR C was poor; and combined with my earlier findings as to her credibility, I prefer the account provided by DR C in her undated report about the same events.[17] In the report, the mother was referred for treatment on a diagnosis of depression. DR C described the mother as being so intoxicated that even with the help of the maternal grandmother Ms N (‘MS N’), she could not get out of the car and so DR C had to also assist with that task. The mother fell onto a coffee table and then rebounded onto the floor in the psychologist’s practice and having tried to engage her in communication, it was then that DR C realised that the mother was heavily intoxicated. The mother’s voice was slurred and inaudible and her words unintelligible. DR C concluded that there was little utility in trying to engage with the mother given her state and advised her and MS N of a new appointment about a week later. MS N was recorded as describing the mother as having an abusive relationship with alcohol which had caused her to lose her driver’s licence and her capacity for employment. MS N also said that the mother had engaged with AA and that for future appointments, the mother would be escorted by an AA support person.
[17] Exhibit ‘F13’
On 10 August 2018, the police attended the mother’s home where they were invited into her home (where the children were staying with her). The mother’s presentation was recorded as being affected by alcohol with her speech slow and slurred. She denied that she had been drinking. The police described the mother’s kitchen as being in a disgraceful state with broken plates and food remains on the floor. The mother was so intoxicated that she could not be interviewed and was subsequently charged and convicted with breach ADVO.[18]
[18] Exhibits ‘F10’, ‘ICL5’
When asked about how the children reacted to the incident, the mother said the children did not see the police inside the house but would have seen the car outside (in which the mother was escorted away). In general, her response to these events (during which the mother left with the police and the father and/or another family member came to collect the children) appeared to minimise the impact upon the children. For example, by way of explanation for the broken plates and food on the floor, she said that she was in the middle of packing. Even if I accept the mother’s evidence about what the children were exposed to, in my observation, the mother minimised the distress the children must have felt from seeing the police, the unexpected removal of their mother and the state of their kitchen.
On 13 August 2018, the mother alleged that at about 4.00am, the father had broken into her home, accused her of having men in the family home, questioned her about why there were condoms on the floor and grabbed her by the arms thereby pulling her out of bed and causing her to fall and hit her head on a cupboard. She says the father then threw her mobile phone on the ground and stomped on it and then grabbed the mother by the hair (she was naked at the time) and pulled her head down to his crotch and saying that she had been “giving every other bloke in town a blow job so she could give him one”. The mother says she then got to her feet and ran downstairs with the father in pursuit. She says the father retained her broken mobile phone and after making threats he picked up a hot fork and put it on the mother’s right hand, burning her. She says the father then made further threats and pushed past her to leave, causing her to fall onto her buttocks.[19]
[19] This summary is drawn from exhibit ‘M2’ which formed the basis of the mother’s cross-examination of the father
The indictment had two counts –
(a)On 13 August 2018, the father did break and enter the family home (where the mother was living) and committed a serious indictable offence of assault occasioning actual bodily harm, in circumstances of aggravation, namely knowing that there was a person present therein; and
(b)On 13 August 2018, the father whilst at the family home, assaulted the mother and at the time of the assault he committed an act of indecency on the mother.[20]
[20] Exhibit ‘M2’
On 14 August 2018, the father was arrested, charged and placed into custody.[21]
[21] Exhibit ‘ICL5’
On 16 August 2018, the provisional ADVO protecting the father against the mother was due for consideration in the Town O Local Court.[22]
[22] Exhibit ‘F8’
On 22 August 2018 –
(a)A final ADVO was issued for two (2) years for the protection of the father and the children from mother including conditions that the mother not be in the company of the father or the children at least 12 hours after drinking alcohol (‘the final ADVO’);[23]
(b)An interim ADVO was issued to protect the mother from the father (‘the interim ADVO’) which included a condition that the father could not approach the mother or contact her in any way, unless through a lawyer, to attend counselling/mediation/conciliation, as ordered to enable the contact with the children or as agreed in writing with the mother about contact with the children.[24]
[23] FR [25] & [31]
[24] FR [31] & [125]
Between 23 August 2018 and 13 December 2018 the father was refused bail and was in remand at the Region P Correctional Facility.[25]
[25] [114]
On 27 August 2018, police records indicate that the mother attended the Q School attempting to collect the children and holding concerns about this, the school staff spoke to the children with an agreement being reached that they would not go with the mother and arrangements were made for the paternal step-grandfather, Mr R (‘MR R’) to collect the children.
The next day, the same police record indicates that MR R collected the children (the mother says he did so before the end of the school day) and that at 3.15pm, the mother then arrived at a location where the children were, asking for a hug. One child hugged her, the other refused and when Z approached the mother, the mother picked her up and Z commenced screaming “no no no”. Another child chased after the mother asking her to stop taking Z, but the mother entered a waiting taxi with Z. The mother explained the taxi was there because she had lost her driver’s licence as a result of the June 2018 traffic incident. The mother explained that what Z was saying was words to the effect that she was not allowed to be with the mother and that another child had said this too. The mother said that initially Z would have been anxious by the events but justified her behaviour by saying that the paternal grandmother and MR R had conspired with the father to unilaterally withhold the children from her without any legal authority to do so. She conceded that ‘quite possibly’ her behaviour would have caused anxiety or angst for the children but in her defence she said that at the time, the children were being barricaded into a home and that she had no regrets for taking Z.
On 25 September 2018, the mother unilaterally entered Z’s classroom to withdraw her and (along with the older children) took them out of class from the S School citing the need to take Z to a medical appointment (it was unclear why the older children were removed). School staff later rang the medical practice and were informed that the appointment had been cancelled.[26] In cross-examination, the mother denied removing the children under false pretences, asserting that the paternal grandmother and MR R had no right to withhold the children from her and that she had only cancelled the medical appointment after talking to Z (in the car park of the surgery) and forming the view that the appointment was no longer required.
[26] Exhibit ‘ICL12’
As part of her sentence for the June 2018 traffic incident, from February 2019 until February 2021, the mother submitted to an Interlock device being installed in her motor vehicle in an effort to ensure that she did not drive whilst under the influence of alcohol. Records were exhibited that demonstrated the mother had (on multiple occasions) failed the breath test with some recorded as violations.[27] X disclosed to DR C that the mother had asked the children to breathe into the device in order to allow her to drive the motor vehicle and this was explored in cross-examination. The mother gave evidence to support an alternative theory about why she had failed the tests and otherwise denied X’s alleged account. Similar disclosures were recorded within the family report. In the absence of any more compelling independent/expert evidence, I was unable to make an adverse finding about the mother.
[27] Exhibit ‘ICL13’
On 13 December 2018, the Supreme Court of NSW granted bail to the father on condition he have no contact with the children.[28]
[28] [115]
On 21 March 2019, the father was arrested for breach of bail for failing to report in accordance with his bail conditions the previous day and was held in remand until 18 April 2019 when he again was granted bail by the Supreme Court of NSW.[29]
[29] [116] – [117]
On 9 May 2019, the family participated in a child inclusive conference event. The subsequent memorandum[30] records the children’s interviews. The overwhelming theme of the children’s views were that the father had met their needs before separation and they were now missing him (wanting to speak to him on the phone and spend time with him). They said that the greatest concern for them was their mother’s drinking but at the time of the interviews, they did not think she was drinking because ‘she spends more time listening to them and is less angry’. The children described seeing events of family violence during the parties’ relationship with both parties yelling at each other but that otherwise the mother was the perpetrator of acts of violence such as throwing things and trying to hit the father.
[30] Exhibit ‘ICL7’
In November 2019, the father was acquitted of all criminal charges and the interim ADVO was withdrawn and/or dismissed.[31]
[31] FR [31]
Since February 2020, the mother has re-engaged with AA albeit in cross-examination her recollection of what she had learned from the “steps” she had undertaken under the AA’s ‘12‑step program’ was limited.
On 17 May 2020, in what has been described as ‘the horse float incident’, the mother had an argument with X about him not returning her mobile phone to her. The police record the children saying that the mother had been consuming alcohol during the morning and into the evening and by that time, she had begun stumbling around and yelling at X and his siblings. During the incident the mother bit X’s hand, with the mother saying that she bit one of her son’s fingers and in contrast, the police observing several small lacerations on the top of his hand, which supported their reporting of the top of X’s hand being bitten (the mother said that the photograph she saw showed no signs of any lacerations). Z was recorded as alleging that when she had tried to call her father, the mother had entered her bedroom and pulled her by the hair, removing the phone from Z. The children subsequently hid in a horse float located on the property and the police came and collected them.[32]
[32] Exhibit ‘F15’
The police arrived at 7.35pm and it was not until after 9.00pm that arrangements were finalised whereby a family friend of the father’s attended the Town L police station to care for the children overnight until the paternal grandmother and MR R could arrive from Town T to care for the children. The police record that to their knowledge, the mother was not at the property that evening and was not there in the morning either. Later that afternoon the police returned to the family home where the police records say the mother told them that the previous night, she had been outside looking for a child who had her mobile phone and when she returned to the home none of the children were present. The police record the mother telling them that due to her high anxiety she then hid in a cupboard and did not come out even when she heard the police calling for her because she was scared that they would lock her up and take her children away from her.[33]
[33] Exhibit ‘F12’
In cross-examination the mother denied being intoxicated, that she had been stumbling around and that her behaviour had deteriorated. She denied ‘deliberately pulling Z’s hair but did not outright reject that it could have happened inadvertently. She rejected the proposition that the children would have been fearful during the incident. She agreed that X had rung MS N and said that her mother had then become involved and had called the police.
The mother denied hiding in a cupboard but said she had heard banging during the night but was unaware it was the police and so she did not respond.
I have already made adverse findings about the mother’s credibility and this is but one example of how discordant her evidence was, as opposed to the contemporaneous recording of events, viewed through the prism of her children’s lived experience. How anyone could consider the children would not have been fearful of someone who has bitten them and pulled their hair (regardless of whether it was intentional or not) was confounding. The same observation could be drawn as to the police not having clearly identified themselves at the time they were banging the outside of the mother’s home. Rather, I am satisfied that the mother’s refusal to disclose her whereabouts was consistent with her masking her own poor behaviour and reflective of her lived experience insofar as when the police last saw her intoxicated with the children, the children had been removed from her care and she had been convicted of breach ADVO.
On 3 June 2020, interlocutory orders were made including that:-
·The children shall with the father;
·A s 68B injunction issue prohibiting the mother from removing the children from any place of education or from the care of any person.
0n 5 June 2020, school records indicate that the father attended and advised that given the June 2020 orders, he was concerned for the children’s safety whilst the mother was at the school canteen.[34] In that same document, a visit between the school principal and Z is recorded with the school principal advising Z that her mother was in the school canteen that day. Z was observed to become visibly anxious with her cheeks flushed and her fingers moving in front of her and her fidgeting with them. Z said she had money for the canteen and she was okay to say hello to her mother.
[34] Exhibit ‘ICL4’
On 19 June 2020, interlocutory orders were made including that:-
·The children to have twice weekly telephone communication with the mother each Sunday and Wednesday;
·The children could spend supervised time with the mother at U Contact Centre (Town V or Town L) for two (2) hours per fortnight.
On 23 June 2020, the ICL sent an email to the mother’s solicitor Mr E (‘MR E’) advising that she had secured a grant of aid to cover the cost of hair test to be undertaken by the mother. In response, on 24 June 2020, MR E sent an email which advised that his client was not interested in doing one.[35]
[35] Exhibit ‘ICL11’
On 28 July 2020, interlocutory orders were made including that:-
·The father shall have sole parental responsibility for the children who shall live with him;
·The children shall have supervised time with the mother at W Contact Centre for two hours each fortnight;
·The children to have twice weekly telephone communication with the mother each Sunday and Wednesday;
·The mother and the father to be restrained from –
·denigrating each other in front of the children or permitting the children to otherwise hear someone else doing so; and
·allowing the children access to court documents or otherwise discussing these proceedings with them or permitting the children to otherwise have a third party do such things;
·differing levels of restraints imposed upon the mother and the father in relation to the drinking of alcohol.
On 31 July 2020, the mother filed an affidavit that she affirmed on 24 July 2020 and paragraphs 24 to 36 were relied upon by the ICL.[36] The mother was cross-examined about aspects of her affidavit relating to an order for her to submit to a hair follicle test. In summary her written evidence was that during a court hearing on 9 April 2020 (which appeared to be a typographical error), the mother had been advised to undertake a hair test for alcohol if she could secure legal aid funding. Her affidavit recorded her inability to fund the test herself and that sometime after having consumed alcohol on her birthday weekend in 2020, her solicitor had contacted her to inform her that the ICL had secured funding. Having been informed of this funding, at paragraphs 36 of her affidavit she said -
36.I declined as I felt it was futile to wast (sic) legal aid money on a test that may show the use of alcohol.
[36] Exhibit ‘ICL14’
On 21 August 2020, the final ADVO expired.[37]
[37] FR[31]
On 9 December 2020, X told DR C that when his mother is sober she is ‘nice’ but that she needs only one drink and cannot stop.[38]
[38] Exhibit ‘ICL3’
On 17 February 2021, the family report was produced and in particular recorded that –
(a)The children’s relationships with the mother had suffered due to their experience of physical harm and neglect in her care;[39]
(b)The children have been exposed to inappropriate and dysregulated behaviour by the father (especially around the time of separation) but currently felt safe in his care.[40]
(c)The mother said that the father had perpetrated physical and emotional family violence upon her.[41] The father had yelled at the mother about her drinking on occasions and had taken steps to protect the children from risk of harm arising from the mother’s drinking (such as to come home during his work days and removing car keys from the mother). The father was adamant he had not perpetrated any form of family violence, which was supported by the comments made by the children. He agreed he had sent the mother messages accusing her of infidelity.[42]
(d)The father alleged that the mother had perpetrated physical and emotional violence upon him and the children. The mother made concessions about using violence in the relationship. The children’s account was consistent with the father’s account over two interviews with the child expert and in circumstances where during the first interview they were primarily living with the mother.[43]
(e)X said that the mother is a different person when she drinks, noting that whereas the father can have one drink, the mother cannot stop saying “For mum, one is ten” and that this pattern of drinking made his mother “crazy”. His account of the ‘horse float incident’ is searing and accords with the child expert’s observation that the children had contacted the police with concerns for their safety;[44]
(f)The children’s views should be given some weight; notwithstanding the need to recognise that children are not entirely capable of appraising the complexity of risks which they may come across within their family;[45]
(g)X said that he would like to spend time with the mother every alternate Saturday night but that if the mother had even one drink he would call his father and get out of there. He said he would prefer that the calls he had with his mother were at his discretion rather than at set times which caused him stress because he sometimes forgot to charge his phone;[46]
(h)Y said he liked the telephone calls with the mother, but not when she told the children that she wanted them to go home to her. Y said that he and X had talked about what outcome they wanted and both agreed that they should stay with the father and see the mother every second Saturday overnight;[47]
(i)Z said she would like to see the current supervised arrangements change “a little bit” so that she could see the mother at the mother’s home and maybe have a sleepover. She was clear to say she wanted to remain living with the father.[48]
[39] FR[235]
[40] FR[237] & [240]
[41] See FR[125], [127-129] for examples of the information contained in this sub-paragraph
[42] See FR[138-140] for examples of the information contained in this sub-paragraph
[43] See FR[132-137], [140]
[44] FR[87] & [182-183]
[45] FR[230]
[46] FR[190] & [193]
[47] FR[206] & [210]
[48] FR[221]
In addition, as part of her evaluation, the child expert said this from paragraph 235 –
The children have experienced physical harm and neglect in the mother’s care. They have experienced psychological harm and fear. Consequently, the children’s relationship with the mother have suffered. Even if there were ways of mitigating the physical risks of harm to the children with the mother, there is an ongoing risk of emotional and psychological harm to the children while ever the mother denies their experiences. It is noted that even in his assessment, when presented with detailed collateral information about the experiences of the children and the events that occurred in May 2020, the mother remained fixed on her alternate version of events.
The mother will not be able to meet the children’s emotional needs if she cannot recognise and accept the harm she has caused. The children will not feel secure with the mother until she can adequately take responsibility for the impact of her alcohol abuse has had on them. The mother is presently not able to empathise with the children’s experiences, and consequently, the children do not trust her. It is difficult to forsee how the children can have a meaningful relationship with the mother into the future, if the mother continues to deny their reality and/or continues to suggest that their reality has been manufactured and ‘groomed’ by others.
There would appear to be no doubt in this matter that the children have been exposed to inappropriate and dysregulated behaviour by the father and paternal grandparents, especially around the time of the parental separation. Denigrating the mother to children, and questioning and recording the children in the context of parental conflict, is emotionally harmful. These behaviours damage the trust children experience in all of the adults in their life; compounding the impacts on the children of the trauma they are already enduring.
The child expert did not support long-term supervision but noted that from her reading of the material, those interactions appeared to be positive. The child expert was clear to say that the potential risks to the children spending unsupervised time with her are dire and reflected on the mother’s past unconsciousness in her workplace and driving her car into a pole whilst intoxicated. She could not see any period of unsupervised time ameliorating those risks unless the mother effectively addressed her alcohol abuse.[49] In making that observation, the child expert recorded that this would be a sad outcome for the children and that engagement with the child expert and/or the ICL would be of assistance in the explanation of the orders.[50]
[49] FR[245] & [246]
[50] FR[248]
In summary, the child expert made recommendations including that:-
·the father have sole parental responsibility for the children, who should remain living with him;
·the children spend no time with the mother;
·the mother undertake intensive intervention to address issues related to her alcohol use;
·the child expert and/or ICL explain the orders to the children.[51]
[51] FR [249-255]
In cross-examination, the findings and recommendations of the child expert were explored. In summary, the child expert did not resile from her recommendations because she formed the view that the children remained at unacceptable risk of harm from the mother. When asked about what intensive intervention looked like, she entirely rejected the mother’s steps to-date saying that residential rehabilitation was more appropriate but noting that given the presence of AB, the availability of such a program may be more limited. The child expert said that intensive intervention included a mixture of interventions through –
(c)medical interventions (from a trusted general physician offering anti-depressants, Antabuse and ongoing monitoring of symptoms and signs);
(d)behavioural support (from a trusted clinician with dual qualifications in the areas of drug & alcohol and mental health); and
(e)social support (with AA being able to fill this space and avoid the mother feeling isolated and without access to immediate community support).
The child expert was asked to reflect on the impact for the children, if the existing supervised time regime was terminated and, other than telephone communication, the children no longer spent time with the mother. The child expert said it would be a very sad outcome but one that would not be surprising to at least X and Y because both boys are very aware of their mother’s difficulties with alcohol and the adverse impacts this substance abuse has had on them and their mother’s ability to care for them.
The child expert disagreed that as the children continued to mature into different stages of development, their susceptibility to harm would reduce. Instead, she said their vulnerabilities would change because whilst they would become increasingly more self-reliant (in a physical sense), emotionally and psychologically they would become even more attuned to their mother’s poor behaviours which would then impact on how they interact with others into the future and in the healthy development of their own self-esteem.
The child expert discounted that the children may come to resent the father if their time with the mother ceased. The child expert was clear to say that the children presented as having a very clear basis as to why the father had them now and why supervised time had been ordered between them and the mother.
There was an exploration of the nature of the relationships between the children, the mother and AB. The child expert was clear to say that because their relationship with the mother was already developed, there attachment to her could be adequately maintained through communication only (especially if this was audio-visually). However, their relationship with AB was different because no parental attachment was required and that the bond created by the children and AB sharing the same mother, could be supported by other means besides face-to-face contact. In her view, the child expert considered that ongoing communication could fill the void and it was an arrangement that the children were already familiar with.
When pressed about the children having limited face-to-face time with the mother, the child expert said it could work but remained highly sceptical of the pressure this would place on the children, particularly X, who would feel responsible for the other children and in her view, even though he was 16 years of age, this did not mean he had the capacity to keep himself safe. In her words, it would be “too great a burden to bear” to ask X to be the monitor of his siblings’ safety. She also made it clear that simply reducing the amount of time the mother spent with the children would not correlate to a reduction in risk and this was something that I had regard to although her evidence did not necessarily convince me that I could safely make such a finding, in the circumstances of this family.
The child expert was clear to say that if the court did not find that the mother posed an unacceptable risk of harm to the children, then she would support limited infrequent unsupervised time between the mother and the children.
This type of limited infrequent time was then explored. The child expert agreed that limiting the frequency and duration of time would mitigate the risks but if the mother became intoxicated the time would not remove the risk of the mother behaving impulsively and her lack of awareness of how her behaviour impacts upon those around her. The child expert said that any special occasion time (Christmas Day, AB’s birthday, Mother’s Day and the children’s birthdays) would be beneficial but does not need to be for the same amount of time in order to support the children’s relationships with their mother and AB.
The child expert said that re-lapsing (as I have found the mother has done in 2021 and 2022) is not uncommon when dealing with chronic binge drinkers of alcohol. She agreed that by expressing remorse for her relapse in 2022, there had been a shift in the mother’s attitude from that reported by the child expert but that the mother need to demonstrate that she was addressing the underlying issues causing her to abuse alcohol.
On 26 March 2021, X told DR C that all of the children want to see the mother.[52]
[52] Exhibit ‘ICL3’
On 9 April 2021, X told DR C that he was ‘pretty sure’ his mother had given up drinking ‘but he has to see it with [his] own eyes’.[53]
[53] Exhibit ‘ICL3’
On 16 December 2021, X told DR C that his father does not pass opinions on their mother, never says negative things about her and is incredibly supportive whereas the mother hates his father.
In January 2022, MR AC was convicted of a various offences related to domestic violence.[54] The mother rejected that she was the victim and in the absence of easily obtainable supporting records from say, NSW Police, I was satisfied with her response.
[54] Exhibit ‘F3’
In 2022, the mother gave birth to AB (‘AB’) who is now four (4) months of age. AB’s father is MR AC.[55] Following his birth, DCJ have reportedly conducted at least one home visit (without incident) and have otherwise had limited involvement with the mother.
[55] [4], [134]
On 10 March 2022, the mother completed a four-week online community rehabilitation program auspiced by AD Centre.[56]
[56] [124] & annex. ‘C’
On 14 March 2022, the mother says that she conferred with a psychiatrist for the first time. Exhibit ‘F4’ is a copy of a report from specialist psychiatrist Dr B (‘MR B’) to Dr AE. The report identified a longstanding history of problematic alcohol consumption –
…[Ms Matti] said that she stopped drinking alcohol in 2018, prior to which she was binge drinking up to 14 standard drinks at the weekends. She has had a brief admission to [Region H] Hospital in 2005. She said she has had intermittent anxiety and depression in relation to conjugal tension. She was told by a social worker she may have trauma symptoms. She was on sertraline for a year and this was after a brief trial of escitalopram. She was told by a social worker she may have trauma symptoms…
In her report DR B opines under a heading of ‘Diagnosis’ that –
(1)Ms Matti has a past history of mixed anxiety and depressive disorder.
(2)She is currently stable and on no medications.
(3)She has intermittent trauma symptoms, for which she is eager to engage with a psychologist.
(4)She has a past history of drinking alcohol to excess, but has been currently abstinent for over two years. I must also finish off by saying that the entire history is based on Ms Matti’s narrative and I did not have a collateral account.
(5)I think engaging with a psychologist is a positive step.
(6)I would not consider medications currently as there is no indication.
(7)I have not given Ms Matti a review appointment, but shall be pleased to see her if needed.
In cross-examination it was revealed that either DR B, the mother or both had not been as transparent as they might otherwise have been because DR B had expressed concern/reticence about such information being the subject of closer examination during these court proceedings. I record here, my concern, as expressed to the mother after she gave this evidence, that unless a patient is transparent with her treater about her history, signs and symptoms and/or the treater is transparent in the recording of information used to make an assessment - the weight that can be placed on such evidence is diminished because the court is unclear what was the whole story either told to the treater which formed the basis of the treater’s opinion and/or whether that opinion was in fact the whole of the advice given during the assessment.
Eight days after completing the AD Centre community rehabilitation program and four days after seeing DR B, on 18 March 2022, the mother relapsed by drinking two beers at her home. The mother says the beers were left by MR AC and as result, she has banned him from coming to her home with alcohol again. From her evidence it is unclear whether MR AC will be seeing AB again and if so, in what circumstances. The mother says she reached out to her AA support person who was unavailable so another person from AA got in contact with her.
The mother says that as part of the AA’s protocol when circumstances like this occur, the mother and the AA person sought out medical treatment. On 19 March 2022, the mother attended F Hospital and as part of her intake she was variously recorded has having been abstinent for either 12 months or 2 years (depending on which part of the document you review). The document records the mother’s refusal to submit to a blood test and does not record the mother showing any signs of alcohol withdrawal. The mother says she was diagnosed with sleep deprivation arising from her being hyper-vigilant about AB’s care given the voluminous allegations being made by the father that she is a bad parent. I accept the mother’s evidence that she was remorseful of her decision to drink alcohol, something that she also reportedly said to staff from the F Hospital wherein the document she reportedly said that she felt guilty for drinking.[57]
[57] Exhibit ‘F9’
No further action was taken by medical staff, save that a referral was made to the mother’s treating doctor for a further clinical assessment for post-natal depression and to see if she needed a psychological review.
The mother was asked if the reason she refused a blood test was because she was worried about how much alcohol it would show. She rejected that assertion saying that she had had a lot of recent blood tests and it was a matter of convenience only that she did not want to wait around any longer with her son. Given the mother’s response and her lack of credibility, I was left wondering whether her refusal was consistent with the same approach taken by her and DR B of being less than transparent.
On the same day, the mother was due to spend supervised time with the children from 2.30pm at U Contact Centre but cancelled. In a document from U Contact Centre[58], the reason given by the mother was recorded as her having a flat tyre. The document records the father reporting how the children were disappointed at the short notice cancellation and that despite efforts to try and arrange some sort of communication with her, the mother failed to engage.
[58] Exhibit ‘ICL6’
The mother’s explanations for cancelling the visit were the subject of cross-examination and she variously explained that she had car difficulty, that she couldn’t use the same friend that drove her to the F Hospital to take her and AB to U Contact Centre and finally that she was emotional and tired and she didn’t want the children to see her in that state. She was evasive and focused on her needs rather than being reflective of how the children may have felt. At no time was there any explanation, either in her written or oral evidence about whether she reached out to the children herself to explain why she had cancelled so late. Her lack of insight was a concern and shall be the subject of further exploration.
On 13 April 2022, X told DR C that he and Y would like to see their mother every fortnight and possibly stay overnight.[59]
[59] Exhibit ‘ICL3’
In cross-examination, the father described X as being emotionally engaged who looks out for others but is not academically-minded, preferring to play video games. X is in year 9 at AF School, Town AG. The mother said her son was a sweet gentle child with a soft heart. The father said that his son’s challenges were his limited reading skills and to otherwise get a “grasp of the basics” from his remaining time at high school. He said that X would like to become a hospitality worker and wanted to secure part-time work as soon as he could. He said that X continued to see DR C and appeared to generally reap benefits from being able to talk through issues with the psychologist. Whilst X had initially been diagnosed with attention deficit hyperactivity disorder (‘ADHD’) during the parties’ relationship, the father said that his son was no longer the subject of any prescribed medication to treat the disorder. As far as the father was aware, X’s teacher thought it more likely that X may have dyslexia and that X was trying really hard to work through his difficulties which was showing in improved results within his school reports.
The father said that Y is a very social child who was much more physically active than his big brother who loved riding his motorbike. The father said that Y is an average student. X is in year 8 at AF School, Town AG. The father described Y’s biggest challenge as being to open up and not internalise all the trauma he had experienced. Of concern for the father was that Y had disengaged with DR C but that if he wanted to talk to a professional, the father would support this as he felt Y needed an outlet for all he had gone through. The mother agreed that Y “bottles things up” rather than giving expression to his feelings.
Z was described by the father as being extremely social who liked sports and was very bright academically. Z attends year 5 at M Medical Centre. He described his daughter’s personality as being “strong headed” and that she enjoyed doing craftwork with her mother. The mother described Z in similar terms and referenced her as being “mini mum” who was her “2IC” and shadowed her every move. She proudly recounted that Z had recently won the cross-country school event for her age group.
Currently, the mother lives alone with AB in rental accommodation at Suburb AH and is on maternity leave from her part-time employment as a labourer.[60]
[60] [132-135]
In cross-examination, the mother agreed that in her view, some of the children’s adverse views of her were as a result of the father (or his family) denigrating her. The mother was challenged about the veracity of her reported goal of abstinence and having listened to her, I accept her evidence that she genuinely seeks that outcome, if nothing else because it means that she will continue to be able to care for AB and (hopefully) have strong relationships with the children.
Currently, the father lives alone with the children in rental accommodation at Suburb AJ and he is employed on a full-time basis as a tradesman. The father is in a romantic relationship with Ms AK (‘MS AK’ ) who has two children, AL (aged 12 years) and AM (aged 17 years), none of whom live with him and the children. The father says that in the main, MS AK and AL spend time at his home every second weekend.[61]
[61] [167-171]
In cross-examination, the father said that if the children did spend time with the mother, he would prefer the changeovers occur closer to his home. When pressed about the possibility of changeovers occurring at the start of his driveway (from where it intersects with a public road), he said that he would install closed circuit cameras like he has installed at his home so as to protect himself from any allegations. In submissions it was noted that the installation of such cameras would also create a way that the father could remotely monitor the mother’s behaviour at changeovers and support the children (through their mobile phones) if they become anxious about leaving with the mother.
On 30 May 2022 the trial proceeded, at the conclusion of which I reserved my decision.
THE PROPOSALS OF THE PARTIES
Taking a broad brush approach to the final orders sought by the father in his outline of case document marked exhibit ‘F1’, his relief required orders to be made that:-
(a)He have sole parental responsibility for the children;
(b)The children live with him;
(c)He shall keep the mother informed of the schools the children attend and notify her in the event that the children are involved in an accident or medical emergency;
(d)The mother being able to obtain the children’s school reports and photographs;
(e)The children to spend no time or have any communication with the mother unless the children request communication with the mother (which the father will be obliged to facilitate);
(f)The mother and father to keep each other informed of their contact details.
Initially the mother’s relief took the form as specified within Part B of her amended response to initiating application (final orders sought). This comprehensive set of proposed orders included the children living with the father and having unsupervised time with the mother on a graduated regime of increasing amounts culminating in four nights a fortnight during school terms and seven nights with the children during all school holidays excluding the summer school holidays which will instead allow for two blocks of consecutive time, one at the beginning of January and one at the end of January. In addition the mother sought the allocation of equal shared parental responsibility and various restraints and other orders aimed at promoting parental responsibility.
However by the time final submissions were made, the mother’s relief dramatically changed to accord with the ICL’s position.
In her minute of order[62], the ICL required orders to be made (in summary) that:-
(a)The father have sole parental responsibility for the children;
(b)The children live with the father;
(c)The children spend time with the mother for four (4) hours on the second Sunday of every month;
(d)Changeovers occur at the end of the father’s driveway;
(e)The children communicate with the mother every Sunday at 7.00pm and otherwise be at liberty to speak with the mother at their discretion;
(f)The mother and the father be restrained from denigrating each other in the presence of the children and showing the children any court documents in these or any other proceedings;
(g)The mother be restrained from attending various locations where the children may be present, removing the children from such locations and drinking alcohol within 24 hours of spending time with the children and/or during the time the children spend with her.
[62] Exhibit ‘ICL15’
The ICL was clear to say that just before the trial commenced, the children had expressed a clear view that they wanted to continue spending time with their mother but that this view had not been the sole reason behind the ICL’s proposal.
THE APPLICABLE LAW – Parenting Proceedings
In these proceedings, the parties invite me to make a “parenting order” (s 64B[63] of the Act) which I can, provided I think it is “proper” to do so in light of the objects of the Act and the underpinning principles of those objects (s 60B). Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration and ss 60CC (2) and (3) set out the matters to which I must have regard to in doing so. This consideration of the child’s best interests is also mandated within s 65DAA.
[63] Unless otherwise specified, a legislative reference is to the Family Law Act 1975 (Cth)
The legislation makes clear that s 60CC(2)(a) is not intended to elevate the paramount consideration as to the benefit of a meaningful relationship for the benefit of the parent, but rather it is for the benefit of the child. For example, see the preamble within s 60B of the Act which specifies that the specified objects of Part VII are to ensure that the best interests of children are met.
In Aldridge & Keaton [2009] FamCAFC 229 (‘Aldridge’) at [25], Brown J concluded that a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child with the word meaningful being a qualitative adjective and not a strictly quantitative one.
Put another way, s 60CC(2)(a) does not invite a Court to act on an artificial view that any circumstance which would increase a parent’s involvement with a child must be in that child’s best interests. It may be that to do so would simply increase the child’s potential (if not real) exposure to parental conflict between two people they may love and for whom the child would have adverse feelings including sadness, distress or anger by seeing one parent upset, angry or frustrated by actions or decisions taken by the other parent for whom they share similar feelings.
The other paramount consideration (which takes precedence over the benefit to the child arising from a meaningful relationship with parents) is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). The ambit of this paramount consideration is affected by the definitions of “abuse” and “family violence” (ss 4 and 4AB of the Act).
Section 4AB(1) says that “family violence” is behaviour that is violent, threatening or otherwise coerces or controls a member of the perpetrator’s family or causes a family member to be fearful. A non-exhaustive list of behaviours that may constitute family violence is set out at s 4AB(2). Section 4AB(3) extends the operation of the definition such that if a child sees or hears family violence or otherwise experiences the effects of family violence then the child is considered to have been “exposed” to it.
There is no formal definition of “neglect” although the term has been considered by the Full Court in Slater v Light [2011] FamCAFC 1 where it was observed at [37] that:-
The term “neglect”, will have a similar meaning to its use in State and Territory child protection legislation. It is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of the child.
In protecting a child from the harm identified at s 60CC(2)(b), the Court has considered whether the child would be placed at “unacceptable risk” which was explored by the High Court in M v M (1988) 166 CLR 69 (in the context of allegations of sexual abuse). There the High Court said that the task is not to determine the veracity of the allegation in the manner required in the criminal jurisdiction, but rather to treat the best interests of the child as the paramount consideration and in the context of a parenting order, this means that an Order should not be made about the child’s living arrangements that would expose the child to an unacceptable risk of harm.
In Johnson and Page [2007] FamCA 1235, the Full Court endorsed comments made by the Hon John Fogarty AM as follows:-
68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
69. Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
A consideration of “unacceptable risk” can apply to other forms of risk, see for example –
(a)the decision in Orwell & Watson [2008] FamCAFC 62 where the Court rejected the proposition that the child was at unacceptable risk of sexual abuse in the care of the father but was at unacceptable risk of psychological abuse by the father due to his manipulative and over-bearing behaviour and disrespect for boundaries; and
(b)the decisions in A v A [1998] FamCA 25; (1998) FLC 92-800 at 3.15 and 3.25 and Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 at [89] where the test was applied to the risk of children being exposed to family violence.
Where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm (see Stott & Holgar & Anor [2017] FamCAFC 152 at [338]).
The Full Court in B and B (1993) FLC 92-357 at 79,778, has described the ‘unacceptable risk’ test (in that case as it related to the risk of sexual abuse) as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
Whenever the Court is asked to make a parenting order (even in circumstances where there is no contest about the allocation of parental responsibility), the Court is required to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility (s 61DA). Section 61B defines “parental responsibility” encompassing all duties, powers, responsibilities and authority conferred by law upon parents.
Where certain circumstances are made out, the presumption of equal shared parental responsibility does not apply, including for example instances of child abuse and family violence (s 61DA(2)). If the court finds that it is not in a child’s best interests for the parents to have equal shared parental responsibility then the presumption can be rebutted (s 61DA(4)). The presumption does not speak to the periods of time that a child should either live or spend with their parents, however how parental responsibility for a child is allocated by the Court may have a bearing on these issues.
Where an order allocates equal shared parental responsibility to a child’s parents, then the Court is obliged to consider both whether it is advisable and practical for a child to live equally with each of their parents, or alternatively, to live with one parent and spend substantial and significant time with the other parent (s 65DAA).
Section 60CC - The primary considerations
Section 60CC(2)(a)
Section 60CC(2)(a) mandates that I consider the benefit of the children having a meaningful relationship with both their parents.
Within her outline of case document, the ICL contended that the children’s relationships with their parents have been significantly impacted by their lived experience of parental conflict both before and after separation. I accept that proposition because:-
(a)Sometime before separation on 17 June 2018, the father had written what he described as “an analogy” to the mother of his observations and perceptions of the impact of her behaviours on the family unit. As a result, the mother said that she experienced heightened anxiety and fear and the father said the letter reflected the ongoing chaos caused by the mother’s consistent pattern of binge drinking. I accept that no matter whose evidence is accepted, the family relationships were under significant strain due to the behaviours/intentions of the parents before and after separation in June 2018;
(b)The children have been present at times when the mother has been intoxicated and the police have been called, for example when the mother drove into a dam just before separation, then when the mother was escorted away from the family by the police in August 2018, again when the mother physically removed Z from her brothers and MR R in August 2018, and finally in May 2020 when the ‘horse float incident’ occurred;
(c)The children spent no time or communication with the father for periods when he was remanded in custody (as a result of the mother giving a statement to police which resulted in the institution of criminal proceedings); and
(d)As a result of the proceedings, since mid-2020, the children have lived with the father and have only spent fortnightly professionally supervised time with the mother for two hours since (with regular telephone communication each week).
In her evaluation of the family, the child expert observed that the children’s relationships with the mother had suffered due to their experience of physical harm and neglect in her care.[64] Despite the children having been exposed to inappropriate and dysregulated behaviour by the father (especially around the time of separation), the child expert says that the children feel safe in his care.[65]
[64] FR[235]
[65] FR[237] & [240]
The child expert was clear to say that the children will benefit from a meaningful relationship with the mother provided that she accepts their reality about how her abusive behaviours towards them have adversely impacted them, rather than seeking to mask, minimise or deflect blame onto others.
There was no evidence to suggest otherwise than that the children have benefitted from the meaningful relationships they continue to have with the father.
Section 60CC(2)(b)
Section 60CC(2)(b) mandates that I consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are no current family violence orders in which either the mother or the father are named either as defendant or in need of protection.
The father was cross-examined about past allegations of family violence as between himself and the mother. The father was consistent in his responses which were supported by the absence of any records to demonstrate that he was a perpetrator. In this regard, I pause to note that the family report details conclusions based on the documents and statements of participants which in combination support that the father was the victim of physical violence perpetrated by the mother.[66] Because there is no contest about the allocation of parental responsibility and where the children shall live I won’t go further into detail at this time.
[66] FR-65, 109, 110, 111, 125, 132, 138, 139
For all these reasons, I am satisfied that the father is not a perpetrator of family violence.
This finding is made despite the father being a defendant to an interim ADVO because following the conclusion of the criminal proceedings, the interim ADVO was withdrawn and/or dismissed with no adverse findings recorded against him.
The mother has been the defendant of a final ADVO which has subsequently expired. She has been convicted of breach ADVO. She has made some concessions of perpetrating family violence (as recorded by the child expert and referred to previously) and she agreed that had bitten X although the extent of any physical injury that was caused remained contentious. The most recent act of family violence was the ‘horse float’ incident. The mother’s evidence was deeply troubling because:-
(a)she minimised the consequences of her actions (the children were not fearful);
(b)she denied she had consumed alcohol (which made her sober decision to bite her son’s hand even more bizarre); and
(c)if I accept her evidence (which I don’t) she asks me to also accept that in her sobriety, her behaviour afterwards was acceptable by a parent whose children had left home at night without any explanation (which is implausible and confirms her being neglectful of her children).
I have already made findings about the mother’s credibility. The documents exhibited before the court overwhelming identify the mother as the protagonist in a chronic history of family violence which appears to coincide with when the mother has been drinking alcohol, both during and after the parties separated.
For the above reasons I am satisfied that the mother is the perpetrator of family violence, not only upon the father but also upon her children.
Neither the mother nor the father are currently living with another partner although I accept that they have both entered new relationships since separation. Evidence was heard about MR AC’s criminal history and that until about March 2022, MR AC was visiting her home to (if nothing else) spend time with their son, AB. As noted earlier, I am satisfied from the mother’s evidence (in the absence of any subpoenaed material to the contrary) that she has not been a victim of family violence perpetrated by MR AC and there are no such risks currently present in her home.
Since May 2020 there have been no further allegations of family violence upon which I could make an adverse finding against the mother.
No one explored family violence occurring in the father’s home since separation as between himself, the children and/other visitors such as MS AK.
In the context of the common position that the father would retain sole parental responsibility and for the children to live with him, and having heard the evidence, I make no findings that the children are at risk of harm from sexual abuse or neglect whilst in his care.
There is historical evidence that the mother has placed the children in situations of neglect, arising from her pre-occupation with consuming alcohol to excess, see for example the police report of the state of her home on 10 August 2018. There is no current evidence of any concerns about that issue, despite the birth of AB and her recent engagement with the F Hospital in March 2022.
Reflecting on the observations about “neglect” in Slater v Light, I am satisfied that for the reasons above, the mother’s past lack of reasonable care (caused by her alcohol misuse) did cause unnecessary suffering for the children meaning that she has in the past been neglectful of the children’s needs.
The father presses that I make a finding that the mother poses an unacceptable risk of harm arising from predominantly from her alcohol misuse which has caused the children physical and psychological harm (mainly in the form of family violence), but also insofar as neglect is concerned. The father’s position is supported by the child expert.
Through the ICL’s proposal (which was adopted by the mother), it is apparent that the counter-argument is that any risk posed by the mother can be ameliorated by the limited monthly time the children will spend with the mother, and the various restraints proposed to support not only the regime of time, but the promotion of the children’s relationships with the mother and the father.
I will return to this topic further in the judgment.
Child’s best interests - The additional considerations
Section 60CC(3)(a)
X is 15 years of age, who by all accounts has a gentle nature and a soft heart. X has given clear views to the child expert and DR C about wanting to continue seeing his mother but not in a supervised setting. X told the child expert he would like to spend overnights with the mother but that any sign of drinking would cause him to immediately ring his father and remove himself and by inference, his siblings (given his actions in May 2020). X continues to seek psychological support, something which his father supports. The child expert was clear to say that while his views should be given some weight, it would be too “too great a burden to bear” to ask X to (essentially) be responsible for his siblings’ safety.
Y is a 14 year old boy who appears to be very physically active but emotionally withdrawn insofar as he tends to internalise his anxiety rather than openly express his feelings. In the past he has seen DR C but not recently. Y and X have formed the same view about what future time with their mother should look like, which Y has expressed to the child expert.
Z is 10 years old and is very bright academically. Z has also told the child expert that she wishes to continue seeing her mother.
The views of the children as expressed to the child expert in February 2021 are consistent with the views they expressed to the ICL in May 2022. The evidence of the child expert was that the children’s views should be given some weight despite none of them having the full cognitive capacity to assess the risk posed by (in particular) the mother.
In submissions, the ICL was clear to say that all three children want some ‘agency’ in the outcome of these proceedings because their lived experience both before and after separation, has been a sense of helplessness that they have no control over where, when and in what circumstances they can see their parents.
Clearly the children are far more “worldly” then they should be. They have seen their mother act in outrageous ways that have caused physical and psychological harm to them. They have lived in a multitude of homes either on a temporary, short-term or long-term arrangement as a result of the mother’s erratic behaviour and/or the father’s incarceration. They have experienced long periods of time without any contact with the self-described “safe” person in their lives, their father.
Although accepting that the children do not have the full cognitive capacity to understand all the risks attenuated to their desire to spend unsupervised time with the mother, I intend to give their views some weight in the formation of my decision.
Section 60CC(3)(b)
The children have a close and connected relationship with the father. The child expert rejected the proposition that those relationships would be adversely affected if the children were to blame him for a decision by the Court that they spend no time with the father.
In observation with the child expert, the children had an affectionate and comfortable relationship with the mother. It was clear from the oral evidence of the child expert that she accepted that with the passage of time during which supervised visits had occurred (both before and since the family report interviews), that the children do have a meaningful relationship with the mother.
However, the issue of trust remained an ever-present concern and one clearly articulated by X in his more recent discussion with DR C about having to see the mother’s abstinence “with his own eyes”.The child expert suggested that the mother has to act in a manner that enables the children to trust her that she will put their interests first and not succumb to alcohol once more. The child expert had concerns that should the mother fail in this endeavour, the children’s relationships with her would be irreparably damaged.
Given his recent birth, the children’s relationships with AB have not been assessed by the child expert. The child expert gave evidence, which I accept about the difference between the children’s relationship with a sibling as opposed to a person with whom they would ordinarily have an attachment to (in this case their mother). She made appropriate concessions about the maintenance of sibling relationships being enhanced by face-to-face time as opposed to telephone or audio-visual communication only.
I am unwilling to make any finding about the nature of the children’s relationship with AB other than to state the obvious, he is their half-sibling and the maintenance of a relationship between him and the children should be promoted if it is otherwise safe to do so.
I am satisfied that the strong and loving relationships the children have with the father will be unaffected, irrespective of the time or communication the children have with the mother. I am satisfied that the children have a meaningful relationship with the mother.
Section 60CC(3)(d)
The father’s proposal means that the children would stop having any regularised time or communication with the mother and that instead, he would facilitate any request they may have to speak to her via telephone. The ICL submitted that the loss of face-to-face time with the mother would leave the children “devastated”. I had significant regard to this submission given the ICL has recently spoken with the children, as opposed to the child expert who saw them over a year ago.
The child expert said that whilst this would be a sad outcome for the children, she considered that all of the children would have an understanding about why the current regime had ceased and that they would accept it without laying blame at the feet of their father. The court heard from the child expert that there is still the possibility of the children retaining a meaningful relationship with the mother because of their lived experience of the largely successful regime of supervised time to-date and the father’s clear support for the children to have a loving relationship with the mother (unimpeded by his previously dysregulated and inappropriate behaviours at about the time of separation).
The ICL’s proposal (as adopted by the mother) would see a continuation of the time being spent by the children with the mother, albeit, the frequency would diminish but the duration would be doubled in an unsupervised setting. The current regime of twice-weekly telephone calls would also drop back to once a week with an added layer of flexibility afforded in accordance with the children’s wishes. Changeovers would be in the absence of the father.
The child expert supported the ICL’s proposal on the basis that the court found that the mother did not pose an unacceptable risk.
Both proposals mean a change of circumstances for the children. Given the child expert’s evidence in particular, I am satisfied that the children could adjust to either proposal for change, albeit I am mindful of the ICL’s submissions about the loss of agency the children would feel in not having their voices heard and seeing for themselves whether their mother truly has decided to put them first and obliterate alcohol from her life.
Section 60CC(3)(e)
The father reluctantly says that he could accommodate changeovers if they occur away from his home and without him being present. When reflecting on this proposition, he spontaneously said he would install closed circuit security cameras at the start of his driveway to ensure the mother’s compliance with any order to that effect and to protect him from any allegations made by the mother.
Section 60CC(3)(f)
Given the agreed position that the children should live with the father, it was understandable that there were no submissions about the father’s capacity to provide for the children’s needs. The evidence was overwhelming, and it is a credit to the father that despite the adversities he has faced both before and after separation, he has managed to nurture the children and support their relationships with the mother.
The mother’s capacity to provide for the children’s needs is so impaired that even she has accepted that the time she should spend with the children should be limited to four hours once a month.
I was concerned about the lack of responsibility the mother took insofar as her past behaviours were concerned. I have carefully listened to the father’s submissions about the mother being “downright dangerous”. I have noted counsel’s submissions about her inability to accept responsibility but rather to suggest that a variety independent persons have got it wrong, including but not limited to –
(a)the NSW Police (in making observations about her being intoxicated at the scene of the June 2018 traffic incident);
(b)the jury (in finding the father not guilty of criminal charges which arose from her complaint);
(c)DR C (about her intoxicated state in July 2018);
(d)Various clinicians (about her reported history of alcohol abuse pre-separation and her relapse in 2021);
(e)Her lawyer (for not giving her good advice about the April 2020 hair test order);
(f)The operators of the Interlock device (for why the readings tested positive for the presence of alcohol in her breath); and
(g)Her children (for example, suggesting that she was intoxicated during the ‘horse float’ incident or that they breathed into the Interlock device).
The child expert was clear to say that the first step in rebuilding trust between the children and their mother (and thus addressing their emotional needs) was that she needs to recognise and accept the harm she has caused them. The mother needs to accept the children’s reality and not blame others for ‘coaching’ the children. In cross-examination, the mother continued to suggest that at times, the father and/or his family had aligned the children against her. As recently as March this year, she had re-lapsed but had chosen not to inform the children of this nor explain why they subsequently missed a supervised visit with her the following day.
However I also heard and read evidence that suggested that the mother had accepted her alcohol use had had a detrimental impact on the children’s relationships with her and notably, earlier this year, she had immediately sought appropriate support out of remorse when she had consumed alcohol.
I also accept the child expert’s views about the inappropriateness of the mother’s past steps to redress her binge drinking and that whilst the goal of abstinence is appropriate, it is usual for there to be relapses along the way.
I also note that since her conviction for drink driving arising out of the June 2018 traffic incident, the mother has not been involved with Police in any other traffic incident involving damage to persons or property, even after the removal of the Interlock device in February 2021.
I have already explored my concerns about the mother’s neglectful behaviour toward the children and note that since the birth of AB, she has been the subject of oversight by authorities.
I am satisfied that the mother has (at best) a very limited capacity to provide for the needs of the children given her ongoing battle to remain abstinent from alcohol.
Section 60CC(3)(i)
The mother and father’s attitude towards the responsibilities of parenthood have already been discussed. It is encouraging that despite her evidence, at the start of the trial, the mother accepted that she should not be involved in the exercise of parental responsibility.
Section 60CC(3)(j), (k)
I have already addressed this consideration as part of the primary considerations.
Section 60CC(3)(l)
I have had regard to the submissions of the parties and to the oral and written views and recommendations of the child expert. This litigation has been a damaging exercise for the parties and their children.
The father submits that the best way to ensure the parties do not return to Court is to make a no time order. The ICL and the mother submit otherwise, to the effect that the proposed time and communication is so limited that the risk of re-litigation is substantially diminished.
In reflecting on the mother’s capacity to comply with any orders I make (noting the various restraints sought by all the parties irrespective of their position on “time” and “communication”) I have had regard to:-
(a)her less than satisfactory answers about why she failed to submit to a hair test in accordance with the April 2020 orders and the circumstances around her breach ADVO conviction; and
(b)the largely consistent time and communication spent between her and the children in compliance with the June 2020 orders (albeit with some hiccups such as occurred on 19 March 2022); and
(c)the lack of any evidence of her breaching the existing series of restraints imposed by the final ADVO and past interlocutory parenting orders.
CONCLUSION
There was consensus that the father should be afforded sole parental responsibility and given the findings of family violence made by me, (in any case) s 61DA mandates the rebuttal of the presumption about equal shared parental responsibility.
It is agreed that the children shall live with the father and in those circumstances, the father should have sole parental responsibility for them.
Given an order for equal shared parental responsibility has not been made, s 65DAA is not enlivened and in any event, none of the parties advocated for an order about the children having “equal time” or “substantial and significant” with the mother.
Turning then to the issue of what (if any) time the children should have with the mother. I am satisfied that the children will derive a benefit from having a meaningful relationship with the mother.
The father says that because of the unacceptable risk posed by the mother and the maintenance of the children’s meaningful relationship to-date, the benefits of such a relationship could be maintained through communication alone in tandem with the unequivocal evidence that the father has and will continue to support the children in that endeavour.
Noting the description of the ‘unacceptable risk’ test in B & B, I have to achieve a balance between the risk of detriment to the children from physical and psychological harm posed by the mother from the perpetration of family violence and neglect; and the possible benefits they would receive from the maintenance of a meaningful relationship in ways other than simply via communication. If I find that the risk of harm outweighs the possible benefits then I should find that the mother presents an unacceptable risk and therefore no face-to-face time should occur.
Even on the father’s case (where he proposes ongoing communication between the children and the mother), he recognises the benefit the children will receive from continuing to have some form of relationship with the mother (with the child expert saying that in the circumstances of this family, communication would support the maintenance of a meaningful relationship). Inherent in his proposal however he must have weighed up the nature and degree of risk of the children being psychologically harmed, should the mother be intoxicated and either the children become aware of this from the way she speaks or the mother makes inappropriate statements to them (leading to feelings including anxiousness, disappointment, fear and distress).
The decision about unacceptable risk is finely balanced. On the one hand, the father remains understandably mistrustful of the mother’s capacity for change, which to a degree was supported by the mother’s oral evidence during which (at times) she demonstrated her lack of memory/understanding/acceptance for her past behaviours (see for example her refusal to accept her children’s observations that she was highly intoxicated during ‘the horse float incident’ and them being fearful of her, and her refusal to accept medical records suggesting she had a relapse in 2021 as well as 2022).
On the other hand, the mother says that although she has relapsed, in more recent times she has immediately acted appropriately to address the issue expressing remorse which is a “shift” away from her poor attitude as observed during the family report interview process. She also submits that given her lack of engagement with NSW Police since May 2020 and her ongoing engagement with various health professionals since, her most recent history suggests that her historical binge drinking patterns have been disrupted sufficiently for the court to accept that she has changed (see for example, her continuing voluntary engagement with AA and her willingness to follow the AA protocol of presenting to F Hospital as a result of her disclosure).
I have already outlined the ICL’s proposal which clearly accepts the mother’s contentions.
Weighing up all the evidence, and having regard to the children’s longstanding desire to spend ongoing time with their mother which is demonstrative of the significant benefits they derive from their meaningful relationship with her - I am satisfied that the mother does not pose an unacceptable risk of harm because the potential for the mother to be intoxicated (and therefore engage in adverse and destructive behaviours) is ameliorated by:-
(a)The shift in the mother’s attitude towards one of taking responsibility for her drinking when she contacted AA after drinking beer earlier this year and then presenting to F Hospital at which time she expressed guilt for her actions;
(b)Two years of no adverse incidents involving authorities related to her displaying abusive, illegal or anti-social behaviours caused by intoxication;
(c)Years of no traffic incidents involving the Police and the mother;
(d)The mother’s engagement with DR B which should continue provided both patient and treater adopt a completely open, frank and transparent manner of discourse, reporting and recording which is not impinged by any apprehension that clinical records will be the subject of oversight from a judicial officer;
(e)The unsupervised time being limited to four (4) hours every second Sunday of the month, from 10.00am to 2.00pm which would constrain any potential for the children to be exposed to adverse behaviours;
(f)The imposition of a restraint upon the mother not to consume alcohol within 24 hours and during any time she spends with the children in circumstances where, if the mother is not already cognisant of it, these orders will be her last chance to maintain any form of meaningful engagement with the children until they are no longer subject to the court’s jurisdiction;
(g)The changeovers occurring in a location where the father has control of the environment (with appropriate restraints imposed such as the mother not being able to approach his residence).
I accept that the father will wonder why I have made this finding given my earlier observations about the mother’s credibility, and I owe him an explanation because this court does not tolerate that witnesses should lie in court (which on one version is how the mother’s evidence could be perceived). However, there are other reasons why a party’s evidence is inconsistent and in this case, I am satisfied that to a large degree it is because the mother has been so intoxicated at critical moments in her life, that she simply has no reliable recollection of what has occurred. Another reason, one that was vigorously agitated by the father and supported by child expert, was that the mother refuses to accept responsibility for her situation – preferring to blame others. Whilst that submission is very persuasive and at times I held the same view, I am satisfied that there has been a sufficient shift in the mother’s perception of the risk posed by her drinking that the orders I intend to make will ameliorate against the overall risk posed by her. By way of example, earlier this year the mother reached out for support rather than seeking to ignore, minimise or mask the risk (to use the child expert’s language) and secondly, she has taken a dramatic step backwards in the relief she now seeks the court make, or to use her counsel’s phrase - “the penny has dropped”. All of this weighed heavily in my mind and I want the father to know that I have carefully considered his counsel’s very persuasive arguments before forming the conclusions I have.
Whilst I continue to harbour some concerns about how much acceptance the mother has about the children’s lived experience of her abusive behaviours caused by alcohol, in my view, even the father’s proposal does not exclude her being selfish and inconsiderate about her children’s psychological state should she say things over the phone to diminish their reality of spending time with her whilst she is intoxicated. I have carefully assessed the risk of this happening in the context of the limited time and communication she will have, and I am satisfied that the benefit to the children of maintaining a meaningful relationship with her via limited face‑to‑face time outweighs those risks.
To assist in ameliorating the risks, I also intend to order that a copy of the family report and the judgment be provided by the ICL to the mother’s treating general physician and her treating psychiatrist DR B and otherwise I will order that the mother be required to provide a copy of the two documents to any clinician engaged to treat the mother’s behaviours, such as a drug & alcohol counsellor and/or psychologist and/or residential rehabilitation service provider.
To further support the children’s relationships during the periods between their face-to-face time with the mother, I will also reduce (but retain) the regularised telephone communications between the mother and the children. My intention in specifying when the calls should occur, rather than leaving it to the wishes of the children, so as to avoid any parental conflict arising from the mother not accepting that any diminution of calls is in accordance with the children’s wishes rather than the father’s intervention. I also intend that in reducing the frequency, I will also reduce any anxiety that X may feel about forgetting to charge his phone.
To support the regime of time of four (4) hours once a month, I intend to make restraints with the following effect:-
(a)The mother is not consume alcohol within 24 hours of spending time with the children or during such periods of time;
(b)The mother is not to attend the children’s schools, before/after school care facilities, extra-curricular activities or their home (the definition of which shall exclude the changeover location as ordered);
(c)The mother is prohibited from removing the children from the care of various persons/places;
(d)The parties are not to expose the children to parental conflict including by way of denigration or the discussion of these or any other court proceedings.
Changeovers will be highly prescribed so that there is no prospect of causing the father unnecessary anxiety or exposing the children to parental conflict.
I heard evidence that the children would benefit from having the orders explained to them. Given their traumatic experiences in the past, and the child expert’s concern about X being unnecessarily burdened by an implied perception of him having responsibility for his siblings, I will order that both the ICL and the child expert explain the orders to the children.
I will also make the notation sought by the ICL and the mother to make clear the method by which the parties can communicate as well as the order sought by the father which will give structure to the manner in which the mother and the father are to communicate with each other.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of the children.
I certify that the preceding two hundred and seven (207) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 21 June 2022
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