Cooley and Black
[2017] FCCA 2946
•29 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COOLEY & BLACK | [2017] FCCA 2946 |
| Catchwords: FAMILY LAW – Parenting – alcoholism – father sober since late 2015 – overnight time – approved, subject to father obtaining assistance for his addictive personality – interim orders made. |
| Legislation: Family Law Act 1975 (Cth), s.60CC(3) |
| Applicant: | MR COOLEY |
| Respondent: | MS BLACK |
| File Number: | MLC 10022 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing dates: | 2 & 3 October 2017 |
| Date of Last Submission: | 3 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 29 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Duckett |
| Counsel for the Respondent: | Ms C. Jenkins |
| Solicitors for the Respondent: | Carew Counsel Solicitors |
ORDERS
The proceeding is fixed for mention at 10.15 a.m. on 24 August 2018.
The parties have equal shared parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2009 (“the children”).
The children live with the mother.
The children spend time and communicate with the father as follows –
(a)for a period of four consecutive nights commencing from 30 November 2017 and each alternate Thursday thereafter;
(b)by telephone as agreed between the parties.
The father forthwith seek professional assistance to deal with his alcoholism and addictive personality disorder.
Within 90 days of the date of these orders, the father secure tenancy of long-term accommodation within close proximity to the mother’s residence, such accommodation to have proper, separate bedrooms for the children.
During any time the children are in the care of the father, the father is restrained from –
(a)consuming any alcohol;
(b)smoking, injecting or otherwise ingesting any form of narcotics, barbiturates or other drugs save for over-the-counter pharmaceuticals; and
(c)discussing with the children any aspect of the matrimonial dispute, including these court proceedings, that exists between the mother and father.
Until further order the father undertake supervised drug and alcohol screen testing (“the testing”) and for that purpose –
(a)the testing occur at a pathology centre or other appropriate place;
(b)the testing occur randomly, once in every fortnight period, within 24 hours of the mother’s solicitors making a request for the testing to occur;
(c)the results of the testing on each occasion be forwarded as soon as possible to the mother’s solicitor; and
(d)the costs of the testing be borne by the father.
By no later than 4.00 p.m. on 17 August 2018, each party file and serve any affidavits upon which they seek to rely at the mention.
There is liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Cooley & Black is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10022 of 2015
| MR COOLEY |
Applicant
And
| MS BLACK |
Respondent
REASONS FOR JUDGMENT
Introduction
On his own admission, the applicant father Ms Cooley is a recovering alcoholic who said he has been sober since the end of 2015. He contended in this case that he was entitled to orders conferring upon him overnight time with his son X born (omitted) 2007 and his daughter Y born (omitted) 2009. The respondent mother, Ms Black, argued that the father’s personality is such that he will relapse into alcoholism and that overnight time is not appropriate.
Dr S, the family consultant, gave evidence that the father should have time with the children for four overnight stays each fortnight. The father sought five overnight stays.
The lines were drawn such that –
a)the mother advocated no overnight time for the father in the absence of his sobriety;
b)the father sought time on the basis of five overnight stays per fortnight; and
c)the family consultant recommended that the father should have four overnight stays with the children each fortnight.
Synopsis
For the reasons that follow, in my judgment the father should have four overnight stays with the children each fortnight subject to several preconditions, namely –
a)the father must remain sober in the sense that he must not at any time drink any form of alcoholic liquor, no matter how small the quantity;
b)the father must seek professional assistance to deal with his alcoholism and addictive personality disorder;
c)the father must not smoke, inject or otherwise ingest any form of narcotics, barbiturates or drugs other than pharmaceuticals a layperson can obtain over-the-counter;
d)the father must, within 90 days of the date of these orders, secure tenancy of long-term accommodation in suburban Melbourne in which he provides, among other things, a purpose-built bedroom for his children (not being a room otherwise used as a sitting room or reception room) that can be closed off to other rooms in the house and in which separate beds are provided for each of the children;
e)the father does not discuss in any way with the children any aspect of the matrimonial dispute that exists or has existed between the mother and the father; and
f)the father subjects himself by consent to regular fortnightly drug and alcohol screen testing.
In making the orders set out above I have taken into account –
a)the need for the children to have a meaningful relationship with both their mother and their father;
b)while the father has asserted his sobriety since a little earlier than Christmas 2015, the risk of relapse is ever present, notwithstanding the father’s expressed intent and desire to remain sober and drug-free;
c)the mother’s acknowledgment that the father should have weekend time with the children so long as safeguards are implemented to reduce to the point of elimination any risk to the children.
Let me put this case in context by saying a little about the parents.
The father
The father was born on (omitted) 1965. At the date of trial he was 51 years of age. Since the end of 2015 he has not consumed alcohol. That much was uncontested. While the mother focused some of the case on the likelihood of the father relapsing in his alcoholism, no serious attack was made on the fact that the father had been sober since the end of 2015.
Since May 2017 the father has been gainfully employed as an (occupation omitted). His income has been regular since May 2017. He told me he will enter into discussions with his employer for a salary review in the near future.
The father said he lives in a (omitted) Melbourne suburb in modest lodgings. He said his accommodation consisted of a bedroom, a lounge room that can be converted into a makeshift bedroom for the children and a bathroom.
The father exhibited very great concern for and love and affection for his children. True, at one stage in the evidence the father spoke of the special bond between father and son but he gave no evidence of a comparable bond between father and daughter. It seemed to me that when properly synthesised, the father exhibited a comparable love for each child. The family consultant came to broadly similar conclusions.
In her cross-examination the mother provided very helpful concessions to the effect that with proper safeguards, mainly concerning the father’s sobriety, she is willing to agree to overnight time between the father and the children.
The mother
The mother was born on (omitted) 1970 and is now 47 years of age. She is employed as a (occupation omitted) for (employer omitted), working on a part-time basis four days a week at her employer’s place of business in (omitted).
The mother and father commenced cohabitation in (omitted) 2004. They married on (omitted) 2007. They separated on 12 August 2015.
Property matters have been resolved as between the mother and the father.
The children
X is ten years of age. Y is seven years of age. The children live with the mother at the former matrimonial home. Since separation, the father lives within walking distance of the former matrimonial home.
It was common ground that the children are progressing well scholastically and that they presently enjoy a balanced and normal upbringing, the mother being the primary carer.
Throughout the relationship between the mother and the father and during the lives of the children, the father has abused alcohol. The mother entertained scepticism that the father’s bad behaviour over the duration of the marriage was referrable exclusively to the influences of alcohol and instead she said such bad behaviour reflected a personality disorder unconnected to alcoholism.
It seemed to me that it was not necessary to delve into such psychological borderline psychiatric issues in this case. For that matter, evidence of a professional nature was given by Dr S, a clinical and forensic psychologist. No psychiatric evidence was adduced in this case.
It seemed to me that the evidence of Dr S was pivotal in this case, if not determinative. It is necessary to record the more important aspects of his evidence, not only in the reports he prepared but also in the evidence he gave by telephone link on 3 October 2017.
So far as overnight time was concerned, in his 17 March 2016 report[1] Dr S approved of the children having overnight time with the father each fortnight on the basis of three overnight stays with four daytime contact periods. Dr S maintained that position, or at least he did not deviate from it, at paragraph 54 of his 22 May 2017 report.[2] In cross-examination by counsel for the father Dr S referred to his 22 May 2017 report saying there could be a progression of time over the next several years from 3 to 4 consecutive nights, assuming alcohol abstinence and that there was otherwise no evidence of conflict or denigration of the mother and that the father addresses his own personality difficulties so as to seek specific treatment.
[1] Exhibit “S-2” to the affidavit of Dr S sworn 14 April 2016.
[2] Exhibit “S-3” to the affidavit of Dr S sworn 14 April 2016.
It is a fair distillation of his evidence that Dr S adopted a cautious approach to any increase in time that the father may have with the children on an overnight basis. The maximum he seemed willing to approve was four nights and only then after the father demonstrated complete abstinence from alcohol and treatment for his personality issues.
The father wanted five overnight stays. Dr S was immovable on the fact of the father suffering from some significant personality disorders, especially addiction problems. The father had not sought assistance from an addiction specialist by the time I tried this case.
Beyond the father’s own wish, there was no objective basis for making an order that corresponded to the father’s request for an order permitting the father to have time with the children on the basis of five consecutive overnight stays.
Equally, there was no rational foundation for the submission by counsel for the mother that the father should have no overnight time. I disagree with the submission advanced on behalf of the mother that Dr S did not accept what the father said about abstinence. There was no doubt the evidence revealed a lamentably poor history of the father’s alcoholism. Equally lamentable was the fact that the children were exposed to the consequences of his bad behaviour when under the influence of alcohol, a situation that cannot be tolerated. Equally, it must be said that the father has not availed himself of the opportunity to seek professional assistance for problems associated with his addictive personality as diagnosed by Dr S. That is relevant because of the risk of relapse. That risk remains ever present. Unless the father squares up to that risk and addresses the risk by reducing, if not eliminating, the consequences posed by that risk, then I will have no hesitation in revoking the orders that I am willing to make in this case.
So that there is no misunderstanding on point, the orders I make for the father to have overnight time with his children are predicated upon his compliance with the orders I have also made concerning his treatment for alcoholism and for his addictive personality.
In those circumstances, it is appropriate to monitor the progress of the father in this case. The orders I make will be for a period of no more than nine months at which time I will review the situation.
Best interests of the children
Under the provisions of the Family Law Act 1975 (Cth) (“the Act”), I am required to give specific consideration of the multifaceted provisions of sub-section 60CC(3) and to address them, seriatim, in these reasons, to which I now turn.
Under sub-section (3)(a) any views expressed by the children are relevant. Dr S provided some insight into that matter between paragraphs 25 and 32 of his 22 May 2017 report. In relation to X, Dr S reported that X told him (which I accept) that if the father was back with the mother and living with the mother things would be easier. In relation to Y, Dr S said she was seven years of age, bright yet anxious and did not wish to engage to any great degree by talking about her parents. Neither child exhibited negative sentiments towards the father, according to Dr S.
Under subsection (3)(b) the nature of the relationship between the child or children and each parent is relevant. It is fair to say that the mother has enjoyed and currently enjoys a very favourable relationship with each of her children. According to Dr S, subject to the issue of alcohol abuse and addictive personality issues being addressed, the father seems to have a positive relationship with the children. That said, a fair reading of the evidence of Dr S and having heard his viva voce evidence, I did not detect the existence of an identically positive relationship as between the children and the father as there was between the children and the mother. Yet in respect of each parent, the relationship of each child was positive.
Historically, that has not been the case. The children witnessed incidents of trauma occasioned by excess drinking by the father with consequent bouts of anger, bad language, denigration and other abuse. Since the father has been sober, those incidents have diminished.
Under subsection 3(c), it is relevant to enquire which of the children’s parents has taken or failed to take the opportunity to communicate with the children, to spend time with the children and to participate in the making of major long-term decisions concerning the children. The mother has done extremely well in each category. The father’s engagement with those issues has been impaired in the past, largely on account of his alcohol addiction. That may explain why Dr S expressed a cautious approach to the recommendations he made in this case, mainly on the basis that he is yet to see evidence of the way in which the father grapples with and overcomes his personality issues, especially his addictive personality.
Under subsection (3)(ca) it was relevant for me to investigate the extent to which each of the children’s parents had fulfilled or had failed to fulfil parental obligations to maintain the children. Throughout, the mother has been employed. She has shouldered the financial burden associated with raising the children. Conversely, for a significant period of time the father was unemployed, recently securing employment as a (occupation omitted) for which he is now receiving a salary and in respect of which he told me he will speak with his employer about an improvement of his remuneration. On balance, the mother has complied with her obligations to maintain the children to a greater extent than has the father.
Under subsection 3(d) it was necessary for me to consider the likely effect of any changes in the children’s circumstances. As has been mentioned above, the evidence in this case revealed that the children will continue to live with the mother and will spend overnight time with the father in accordance with these orders. At present, the father’s living arrangements are less than ideal. Quite properly, the mother expressed her concerns about where the children will physically sleep when they spend overnight time with the father because he lives in extremely modest circumstances and the provision of bedding for his children is commensurately modest. That must change. The children must have proper sleeping arrangements when they are spending overnight time with the father. Each must have his and her own bed in a room that can be closed off from the rest of the living area. Each must have his and her own privacy as well as security. I will not permit the father to have overnight time with the children unless the sleeping arrangements that currently apply are immediately remedied in the manner set out above.
Under subsection 3(e) another consideration for me is the practical difficulty and expense of the children spending time with the father. Presently, the father lives less than a kilometre away from the former matrimonial home. However, having regard to the comments expressed immediately above about the need for the father to secure proper residential arrangements, he may well end up living a greater distance from the mother and children. Any place he selects must not only be within his budget, obviously, but it must be within easy access by the children, both of whom are under 10 years of age.
Under subsection 3(f) it was relevant to investigate the capacity of each parent to provide for the needs of the children including emotional and intellectual needs. Dr S did not report on any complications in that regard relevant to the mother. However, in relation to the father, Dr S was insistent that any relapse by the father or failure to treat his behavioural issues will have an adverse impact on his ability to adequately parent his children.
Under subsection 3(g) cultural and lifestyle issues relating to the children and the parents or one or other of them are relevant. No maturity, sex or cultural issues emerged in this case. The only lifestyle issue of relevance was the father’s historical abuse of alcohol.
Subsection 3(h) is pertinent to aboriginal children and children from the Torres Strait Islands, neither of which is relevant to the facts of this case.
Under subsection 3(i) each parent’s attitude to the children and to the responsibilities of parenthood were relevant. The mother has discharged her obligations in an exemplary manner. The same could not be said of the father up until the time it becomes apparent that his sobriety is assured. Whether he has attains that level of evolution remains to be seen. He has yet to seek assistance for personality issues especially his addictive personality. Dr S was most sceptical about the risk of his relapse. Those matters bear upon the discharge of a parent’s responsibilities. Put differently, a responsible parent does not become uncontrollably drunk or violent as a drunkard in the presence of his or her children.
For the purposes of subsections 3(j) and (k), there was evidence in this case about family violence and I have taken into account the matters enumerated in subsection (3)(k) of the Act.
Similarly, I have taken into account the matters canvassed in subsections (3)(l) and (3)(m) of the Act.
That leaves the parties in the following situation –
a)the father must take immediate steps to seek assistance for personality issues, especially addiction issues; and
b)the father must take immediate steps to secure alternative accommodation that can provide for overnight accommodation for his children in the manner set out above.
Unless those steps are undertaken and satisfactory arrangements secured, I will recall these orders on the application of the mother.
In any event, these arrangements will last for no more than nine months at which time I will list this case for mention and hear from the parties about the manner in which these orders are working. Evidence is to be provided by affidavit.
I pronounce the orders recorded at the commencement of these reasons and I otherwise adjourn this proceeding for nine months.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 29 November 2017
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