Danniell & Mounce (No. 2)

Case [2021] FamCA 629

FAMILY COURT OF AUSTRALIA

Danniell & Mounce (No. 2) [2021] FamCA 629

File number(s): SYC 5699 of 2016
Judgment of: ALTOBELLI J
Date of judgment: 27 August 2021
Catchwords: FAMILY LAW – PARENTING – Where the mother and child reside in Regional NSW and the father resides in Sydney – Whether the mother’s history of alcohol use and abuse poses an unacceptable risk – Interim orders made for the child to continue living with the mother and spend time with the father pending final hearing. 
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 102NA
Cases cited:

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Huffman & Gorman [2015] FamCA 317

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Orwell & Watson [2008] FamCAFC 62

Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192; [2004] FamCA 768

W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892

WK v SR (1997) FLC 92-787; [1997] FamCA 57
Number of paragraphs: 63
Date of last submission/s: 16 August 2021
Date of hearing: 16 August 2021
Place: Sydney
Counsel for the Applicant: Mr Campton SC
Solicitor for the Applicant: Lander & Rogers
The Respondent: In Person

ORDERS

SYC 5699 of 2016
BETWEEN:

MR DANNIELL

Applicant
AND:

MS MOUNCE

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

27 AUGUST 2021

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1.All previous orders be discharged.

2.The parties have equal shared parental responsibility for the child, X (‘X’) born … 2015.

3.X continue to reside primarily with the mother in City A and spend time with the father as agreed, or failing agreement:

(a)On Father’s Day 2021 from the after school on the Friday preceding the Father’s Day weekend until 5pm on Father’s Day;

(b)During Term 4 2021, on no fewer than three occasions, or failing agreement, on the second, fourth, and seventh weekends of term from after school on Friday to 5pm on the day preceding the next school day.

4.For the purposes of Order 3 above:

(a)The time X spends with his father occur either in Sydney or City A, as the father nominates;

(b)Where X is required to travel between City A and Sydney, he is to travel by airplane as an unaccompanied minor, with each parent being at the points of departure or arrival;

(c)In the event that there are no suitable flights, X is to travel by motor vehicle, with changeover to occur at K Town McDonald’s; and

(d)Any travel occur in accordance with any relevant public health orders.

5.X spend the entirety of the September/October 2021 school holiday period with the father in Sydney by way of make up time on account of the time X has not spent with the father during the COVID-19 lockdown since June 2021.

6.For the purposes of Order 5 above, changeover is to be effected by X travelling as an unaccompanied minor travelling on Qantas flight QF… departing City A at 10.15am…

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AGLC
Danniell & Mounce (No. 2) [2021] FamCA 629
Case
[2021] FamCA 629
Decision Date

CaseChat Overview and Summary

In the matter of *Danniell & Mounce (No. 2)*, Altobelli J of the Federal Circuit and Family Court of Australia considered competing proposals regarding the parenting arrangements for a six-year-old child, X. The dispute arose between the child's mother, who resides in regional New South Wales, and the child's father, who resides in Sydney. The central issue was whether the mother's history of alcohol use and abuse posed an unacceptable risk to X, impacting the child's best interests.

The court was required to determine the primary residence of X and the time X would spend with each parent, pending a final hearing. Specifically, the court had to assess the risk of harm to X if he continued to reside with his mother, given her history of alcohol issues, and balance this against the paramount consideration of X's best interests. The court also considered proposals for equal shared parental responsibility and the specific arrangements for X's time with each parent, including travel arrangements and communication methods.

Altobelli J applied the principles of Part VII of the *Family Law Act 1975* (Cth), with the paramount consideration being the best interests of the child. The court acknowledged the father's concerns regarding the mother's alcohol use, which was supported by evidence including a report from a single joint expert, Dr P, and business records. Despite the expert's recommendation that X continue to live with the mother, this was contingent upon specific conditions related to her treatment for alcohol dependence and demonstration of abstinence. The court's reasoning led to interim orders that X continue to reside primarily with the mother, with equal shared parental responsibility and specific time arrangements with the father. These orders included conditions for the mother to abstain from alcohol when X is in her care, continue treatment, and undergo random blood tests, with an undertaking from her father and stepmother to assume care if she consumes alcohol.

Orders

Orders of the court

SYC 5699 of 2016

BETWEEN:

MR DANNIELL

Applicant

AND:

MS MOUNCE

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

27 AUGUST 2021

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. All previous orders be discharged.

2. The parties have equal shared parental responsibility for the child, X (‘X’) born … 2015.

3. X continue to reside primarily with the mother in City A and spend time with the father as agreed, or failing agreement:

(a) On Father’s Day 2021 from the after school on the Friday preceding the Father’s Day weekend until 5pm on Father’s Day;

(b) During Term 4 2021, on no fewer than three occasions, or failing agreement, on the second, fourth, and seventh weekends of term from after school on Friday to 5pm on the day preceding the next school day.

4. For the purposes of Order 3 above:

(a) The time X spends with his father occur either in Sydney or City A, as the father nominates;

(b) Where X is required to travel between City A and Sydney, he is to travel by airplane as an unaccompanied minor, with each parent being at the points of departure or arrival;

(c) In the event that there are no suitable flights, X is to travel by motor vehicle, with changeover to occur at K Town McDonald’s; and

(d) Any travel occur in accordance with any relevant public health orders.

5. X spend the entirety of the September/October 2021 school holiday period with the father in Sydney by way of make up time on account of the time X has not spent with the father during the COVID-19 lockdown since June 2021.

6. For the purposes of Order 5 above, changeover is to be effected by X travelling as an unaccompanied minor travelling on Qantas flight QF… departing City A at 10.15am on Saturday 18 September 2021, and on Sunday 3 October 2021 travelling on Qantas flight QF…, arriving in City A at 4.25pm.

Video Calls

7. X communicate with the parent with whom he is not residing, by way of a video call each Tuesday, Thursday and Sunday between 6pm and 6.30pm, and each Saturday between 10am and 10.30am, and at such other times in accordance with X's wishes.

8. For the purpose of Order 7 above, the parent with whom X is living, shall be responsible for initiating the video calls.

Mental Health and Alcohol Use

9. The mother be, and is hereby restrained, from consuming alcohol for a 24-hour period prior to X entering her care and whilst X is in her care.

10. The mother continue to attend upon her current treatment team, comprising of Psychiatrist Dr O, Treating Psychologist Ms Q, NSW Health Drug & Alcohol Counsellor Ms R, NSW Health Drug & Alcohol Specialist Dr S, and Dr T (General Practitioner), and shall do all acts and things to comply with the recommendations of these treaters.

11. Within seven days of the date of these orders, the mother procure, file and serve an undertaking from her father and stepmother in the following terms:

“That in the event I witness the mother consuming alcohol or have reason to believe she has consumed alcohol whilst X is in her care or in the 24 hours prior to X coming into her care, I will immediately notify the father and assume care of X.”

12. On a without admissions basis, the mother undergo random blood tests to identify the level of carbohydrate deficient transferrin in the mother’s blood (CDT testing), in addition to liver function tests (LFTs) and Full Blood Count (FBC), with such testing to occur as follows:

(a) The mother do all acts and things necessary to obtain within seven (7) days of the date of these orders, pathology test request forms from her general practitioner for CDT testing, LFTs and FBC;

(b) The mother is required to undertake CDT, LFT, and FBC testing within 24 hours of notification from her treating psychiatrist, Dr O or such other treating medical practitioner;

(c) The mother is required to undertake CDT, LFT, and FBC testing within 24 hours of notification from the father’s legal representatives, with such a request to be not more than one occasion per three week period;

(d) The mother shall do all acts and things and sign all documents to authorise and direct the testing laboratory and/ or her treating practitioner (as the case may be) to release the results of the tests undertaken in accordance with Order 12(b) to the father’s legal representatives within 24 hours of receipt of the results;

(e) In the event that the CDT, LFT, or FBC test is instigated by the mother’s treating psychiatrist, Dr O, then the cost of the testing is to be met equally by both parties, and

(f) In the event that the CDT, LFT or FBC test is instigated by the father, via his legal representatives, then the cost of the testing is to be met in full by the father.

Subpoena

13. The legal representatives for the father and the mother have leave to issue such subpoena as they believe necessary for the proper conduct of the proceedings between the date of these orders and the final hearing on 6 December 2021.

14. Should a Notice of Objection in respect of any documents produced pursuant to a subpoena be filed, liberty be granted to the parties to approach the Docket Registrar in respect of the filing of written submissions in respect of same.

Other

15. The mother facilitate X receiving gifts and necessary items from the father and/or from members of X's paternal family, by providing a nominated delivery address within 24 hours' notice of request by the father or members of X's paternal family.

16. Each party ensure that the other party is advised promptly of any medical emergency or significant illness suffered by, or relating to, X including sufficient details to enable both parties to be consulted in respect to, and being fully advised regarding, such illness or condition and any treatment.

17. Both parties are entitled to attend X’s healthcare appointments including consultations and any treating facilities and each party is to provide such authorities as X’s healthcare providers may require to authorise the other party to have access to X’s medical records.

18. Each of the parties are restrained from speaking to X or to any other person in X’s presence or hearing in derogatory terms about the other party or their partners or their family members

19. The time for the father to file and serve his short Affidavit, in reply to the mother's Trial Affidavit filed on 30 July 2021, be extended to 4pm on 10 September 2021.

Filing Directions

20. Each party file one short updating affidavit by no later than 4pm on 18 October 2021.

21. By no later than 4pm on 18 October 2021, the mother and the father are to file and serve a Case Outline document, setting out:

(a) a list of documents to be read in their case;

(b) a precise Minute of Orders Sought;

(c) a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

22. By no later than 4pm on 24 October 2021, the Independent Children’s Lawyer is to file and serve a Case Outline document, setting out:

(a) a list of documents to be read in their case;

(b) a precise Minute of Orders Sought;

(c) a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

23. The Independent Children’s Lawyer is granted photocopy access to all material produced on subpoena in the proceedings including any documents produced by any Local Court or pursuant to an order made under s 69ZW of the Family Law Act 1975 or ss 245D and 248 of the Children and Young Persons (Care and Protection Act) 1998 and marked as a subpoena packet for the purpose of preparing a tender bundle.

24. The Independent Children’s Lawyer shall by no later than 14 days prior to the commencement of the final hearing liaise with the parties legal representatives as to the content of the bundle with a view to the tender bundle being provided to the Registry, placed on the court file, and tendered at the final hearing for use during the hearing, NOTING THAT any copies of the completed bundle made prior to the hearing must remain in the possession of the parties’ legal representatives and the Independent Children’s Lawyer only, and FURTHER NOTING THAT if a party becomes self-represented that party may view a copy of the tender bundle at the Sydney Registry in the subpoena viewing room.

25. In respect to tender bundle, only documents which are successfully tendered during the hearing shall be in evidence.

26. In respect of the Chapter 15 Expert, Dr P;

(a) The parties are to provide copies of all Affidavits and subpoenaed documents upon which they will intend to reply upon at the final hearing to Dr P by 4pm on 22 October 2021

(b) The father be responsible for meeting Dr P’s costs of and incidental to attending the final hearing for the purpose of cross-examination, inclusive of his costs in respect of reading the material provided to him in accordance with Order 25(a) above, at the first instance.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

This case is about a child, X, who is six years old. X currently lives with his mother in City A, and usually spends time with his father in either Sydney or City A. These reasons for judgment explain the orders that the Court has made for X to spend time with his father pending the final hearing of this matter, which will commence on 6 December 2021.BACKGROUND On 9 August 2021, I vacated the final hearing of this matter which was listed to commence before me on 16 August 2021 for five days. I did so because the mother became unrepresented and this was a matter to which the provisions of s 102NA of the Family Law Act 1975 (Cth) (‘the Act’) applied. I made the relevant s 102NA orders, listed the matter for final hearing before me on 6 December 2021, appointed an Independent Children’s Lawyer, and otherwise listed the matter for possible interim hearing at 10am on 16 August 2021. The father had strenuously opposed the vacation of the hearing and raised serious issues about the welfare of X in his mother’s care. The purpose of the interim hearing was to facilitate this evidence being placed before the Court, and for both parties to make submissions. At the interim hearing the father was represented by his senior counsel, Mr Campton. The mother had by then become self-represented and made submissions on her own behalf.THE COMPETING PROPOSALS Both the parties agreed the previous order should be discharged, and that there should be an order for equal shared parental responsibility. The father’s main proposal was that X live with him in Sydney and spend time with his mother each alternate weekend either in Sydney or City A. In the alternative, however, should X continue to live with the mother in City A, he proposed an order for X to spend time with him each alternate weekend, and for the entirety of the forthcoming September/October school holidays. The mother proposed that X continue to live with her, but spend time with his father on two weekends during each school term with the choice to elect an additional weekend in City A, and for the entirety of the forthcoming September/October school holidays.THE ISSUES The main issue in this case is whether there is an unacceptable risk of harm if X continues to live in his mother’s care in circumstances where the evidence establishes that the mother has struggled with the use and abuse of alcohol for many years. The father contends that this unacceptable risk exists, but the mother contends that it does not. For all practical purposes, this is a risk assessment exercise conducted by the Court without the benefit of cross-examination, but with the benefit of considerable evidence including the single joint expert report of Dr P, as well as objective evidence by way of business records.THE APPLICABLE LAW The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.

Evidence

Evidence Before The Court

Both parties also referred to material produced by Y School in response to a subpoena issued on 15 July 2021, for which no Notice of Request to Inspect had yet been filed. The Court granted leave to the parties to inspect and photocopy the material, and the parties consented to the Court viewing the material to inform its decision. Accordingly, the material produced on subpoena by Y School was marked as exhibit C1.The evidence about the mother’s alcohol use The main sources of reliable evidence about the mother’s use of alcohol is Dr P’s report, and various business records tendered to the Court. Dr P’s report is dated 28 April 2020 and was based on interviews conducted on 2 March 2020 together with subsequent telephone conversations with various third parties. There was a further telephone attendance with the mother on 6 April 2020. Dr P was aware of the concerns in relation to the mother’s problematic use of alcohol. Nonetheless, he recommended at paragraph 813 that X continue to live with his mother in City A but spend regular time with his father in Sydney on some weekends and for half of all school holidays. There were a number of conditions, however, including the following: 813.X continue to live with the mother in the City A region [or other locale, as discussed below], and to spend regular time with the father in Sydney on some weekends and for half of all school holidays, on the condition that [unless the court is satisfied that any of the conditions below are not required, in order to ensure her reasonably reliable capacity to meet X’s needs over time]:813.1.The mother is willing to commit to the process of treatment of her alcohol dependence, PTSD, and personality/ relational vulnerabilities outlined at para 816 to 818 below, and contingent upon her constructive engagement with an initial year of treatment during which she is able to demonstrate abstinence from alcohol through the processes outlined at para 816.6, in the context of comments at 816.7813.2.For the first six months of that process, the mother and child live in the home of the maternal grandfather and his partner [even if the maternal grandfather and his partner are away], not spending overnight time away from that home for more than a set maximum, e.g. four nights per month and an occasional holiday.813.3.For the second six months of the above process, the mother and child spend at least one period of three nights in a row [e.g. a weekend] staying at the home of the maternal grandfather and his partner, each month.813.4.The maternal grandfather give an undertaking to inform the court if the mother does not comply with the above orders about living arrangements. The reference at 813.1 to paragraphs 816.6 and 816.7 is important, as is 816.5. Those paragraphs state: 816.The mother engage in a process of intensive and robust treatment of her alcohol dependence, this involving:…816.5.Consideration of medication treatment to support abstinence. This can include the medications acamprosate or naltrexone, both of which have been demonstrated to improve outcome after intensive rehabilitation and to reduce cravings and relapse, or the medication Antabuse, which creates aversive symptoms if one drinks having taken the medication, and is only effective if given daily by another adult e.g. a family member. Medications would not be essential and are not the central element of treatment, but can be useful. The mother would discuss these in the first instance with Dr N, who could then seek specialist input if need be. 816.6.Regular monthly measurement of blood CDT and “Liver Function Tests”[includes GGT, AST, ALT], on a set day for example on the first Monday of each month. The CDT would be expected to decrease to normal range within a month of abstinence, and the GGT over a few months. In this context, a subsequent rise would be strongly suggestive of relapse into problem drinking. Dr N could manage this process, seeking specialist input to interpret testing if required. Results could be shared with the mother, and with her treating team.816.7.Lapse/ relapse management. Lapse [for example, one episode of drinking] or relapse [return to a pattern of problem drinking over a few days] are relatively common during a treatment process, and should not be equated with treatment failure, if the mother [alone or with assistance] is able to seek help and to get back on track. Such a lapse or relapse needs to be acknowledged and learnt from.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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