Danniell & Mounce (No. 2)
[2021] FamCA 629
•27 August 2021
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 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Danniell & Mounce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
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.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Unacceptable risk
A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court’s decision in W and W (Abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. It was a case that involved allegations of sexual abuse, but the same principles apply to other forms of abuse, such as physical, emotional, and psychological: see, e.g., Orwell & Watson [2008] FamCAFC 62; Huffman & Gorman [2015] FamCA 317. Whilst the following extract from W and W is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what the relevant law is:
92.The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93.In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94.Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95.We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96.The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, 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. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97.An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98.In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore 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.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99.Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100.One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101.It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102.In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103.In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104.Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105.In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106.His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107.The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108.In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109.The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110.In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111.In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112.In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113.The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114.Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115.We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR [1997] FamCA 57, the Full Court emphasised the standard of proof that applies in these cases at [47]:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at [18]-[19]:
18.In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19.The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at [38]-[39]:
38.In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39.Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
THE EVIDENCE
In support of his application, the father relied on the following documents:
(a)Single expert report of Dr P dated 28 April 2020;
(b)His Affidavit filed 16 July 2021;
(c)His Case Outline document filed 13 August 2021;
(d)A document containing extracts of material produced on subpoena by U Hospital, Dr O, and Ms Q, marked as exhibit A1; and
(e)A schedule prepared by his solicitor detailing the carbohydrate-deficient transferrin (‘CDT’) testing undertaken by the mother from 5 March 2020 to date, marked as exhibit A2.
In support of her case, the mother relied on the following documents:
(a)The Affidavit of Ms D filed 5 September 2018;
(b)The Affidavit of Mr E filed 12 October 2018;
(c)Single expert report of Dr P dated 28 April 2020;
(d)The Affidavit of Ms Q filed 5 July 2021;
(e)Her Affidavit filed 30 July 2021;
(f)The Affidavit of Ms V filed 30 July 2021;
(g)The Affidavit of Ms W filed 30 July 2021; and
(h)Her Case Outline document filed 16 August 2021.
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 816.7
813.2.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.
At paragraph 694 of his report Dr P provides expert evidence which assists the Court in interpreting the results of the mother’s CDT tests. He explains that the normal range is less than 1.8 per cent and measures alcohol excess in the preceding two weeks to one month.
Some significant events occurred after the interviews and the release of the report.
On 5 March 2020, a few days after the mother was interviewed by Dr P, her CDT result was 2.9.
The mother was hospitalised between 22 May 2020 and 19 June 2020. The records (contained in exhibit A1) indicate that the principal diagnosis was severe depressive episode without psychotic symptoms, with some additional diagnoses, including mental and behavioural disorders due to alcohol dependence syndrome. The discharge summary records that the principal diagnosis at discharge was excessive use/abuse of alcohol. The document records:
Alcohol use disorder was present prior to presentation without clear physiological dependence issues prior to admission, with consumption of up to 2 bottles of wine a night and no break days. Alcohol use had been present in various measures over the previous 12 year period with intermittent periods of abstinence (e.g. during her pregnancy). Periods of alcohol abstinence had reportedly been associated with a decreased capacity to sleep, and an increase in subjective anxiety experience related to her stated consternation regarding issues within her relationship.
During this admission CDT testing was not performed. The document records that “[it] was agreed to continue CDT testing with LFT for a further 5 months (6 months of abstinence since admission to this unit), after which the need for this close testing protocol would be reviewed”. The nursing admission form, also part of the hospital records, confirms a history of daily consumption of two bottles of wine, with the last use being the night before admission. The record indicates the mother disclosing that she had been drinking alcohol to sleep. The progress notes record that the mother was subjected to a breathalyser test at 1.30pm on 22 May 2020 which resulted in a reading of 0.076. Another record of that date indicates the mother disclosing that she had been drinking two bottles of wine per night for several years. Reasons given included to help with sleep after the breakup with the father and some drinking to cope with domestic violence whilst with the father.
On 17 July 2020, the mother’s CDT result was 1.9.
The mother was reviewed by her psychiatrist Dr O on Friday, 4 September 2020. The progress notes referred to the mother stating that her drinking has been a “hell of a lot less”. She stated that “she is now only drinking up to [half] a bottle of wine per day max” on days when X is in the father’s care. There is a record of the mother being disappointed with her recent blood test result.
On 10 September 2020, the mother’s CDT result was 1.9.
On 26 November 2020, the mother’s CDT result was 3.3.
On 22 December 2020, the mother’s CDT result was 2.6.
There was a further review with Dr O on Tuesday, 19 January 2021. This document records the mother stating that she is now not drinking daily. It further records: “Wine (reduced alcohol version) now consumed with soda water and works out to last her 3 days – now only having 1 standard drink a day”.
On 21 January 2021 Dr O seems to report to the mother’s general practitioner following the review held on 19 January 2021. For present purposes, Dr O notes that the mother’s CDT reading of 2.6 was inconsistent with what the mother told him about her current drinking.
The mother obviously undertook another CDT test following her consultation with Dr O. On 22 January 2021, her CDT result was 2.2.
On 26 February 2021, the mother’s CDT result was 2.0.
On 1 March 2021 the mother’s treating psychologist wrote to Dr O stating:
As we know, when faced with unbearable stress, Ms Mounce’s principle [sic] coping strategy has been alcohol. She continues to struggle against this pattern, with not drinking and going to the gym regularly. …Under too much pressure she, unsurprisingly, returns to alcohol, and intensifies a cycle of shame and disempowerment.
On 17 March 2021 the mother’s treating psychologist wrote to Dr O referring to the mother as “[becoming] increasingly unravelled with this pressure and it seems to have resulted in more alcohol use and some suicidal ideation”. The reference to “this pressure” is a reference to her ongoing interactions with the father and her attempts to navigate the Family Court system.
The mother was hospitalised again between 1 April 2021 and 27 April 2021. The principal diagnosis was severe depressive episode without psychotic symptoms, with some additional diagnoses, including mental and behavioural disorders due to use of alcohol (referred to as harmful use). The principal diagnosis at discharge, recorded in the discharge summary was moderate depression, cluster B personality style, and post-traumatic stress disorder. The discharge summary refers to the mother as having a past history of major depression, post-traumatic stress disorder and substance use disorder. She was admitted with a relapse of major depressive disorder on a background of increased psychosocial stressors with increased alcohol consumption. Consumption was recorded as being one to two bottles of wine per day, though with no apparent withdrawal symptoms or craving for alcohol on admission. The mother was able to recognise that the symptoms of her depression and alcohol use were linked. In relation to the mother’s drug and alcohol history, the note records a 12 year stated history of alcohol use/abuse with variable periods of abstinence in between. Under the heading of ‘Progress & Management’, it is recorded that the mother was commenced on Naltrexone on 9 April 2021 which was supplemented with Acamprosate on 13 April 2021. She was referred to City A Drug and Alcohol Services for follow-up in the community. A plan was made to undertake random CDT levels following discharge. At the time of discharge, the mother acknowledged experiencing brief thoughts regarding alcohol use but was able to dismiss these and felt more confident in avoiding alcohol use and remaining abstinent when at home. The intake form contains a box headed ‘Risk Screening’ which contains ticks for suicidality, legal issues, stressors, and substance abuse. The psychiatric history and examination form dated 1 April 2021 (the day of admission) records the mother declining to undertake a CDT test. This document, under the heading ‘Reason for Referral and Presenting Symptoms’, describes the mother’s return to alcohol use as a result of the stress from Family Court proceedings in which she may need to represent herself at a five day hearing, financial pressure, and difficulty coping. There is a reference to the mother’s ex, presumably the father, writing a letter stating that she was intoxicated at a party. There is another reference to the consumption of one to two bottles of wine per day.
Exhibit A2 records three further CDT tests: 23 June 2021 with a result of 1.5; 9 July 2021 with a result of 1.9; and 26 July 2021 with a result of 1.7.
The school records produced by Y School (where X is in kindergarten) is reassuring from the risk of harm perspective. There are no indicators of X showing behaviours consistent with having experienced any form of neglect or abuse. The only notable matters include one occasion where X was noted to be extremely tired having come home on a plane from Sydney, suggesting a visit with his father on the preceding weekend. There is also a notation that appears to have been made during the time of the mother’s hospital admission in 2021. X referred to his mother being in a “special house” because she was “drinking too much [and] not eating”. It is unclear, of course, whether this is his own observation, or whether it is something he was told by either his mother, grandfather, or someone else who is involved in his care. What is abundantly clear from this record is that X does have some understanding of what is happening in his mother’s life.
The mother submitted to the Court on 16 August 2021 that she had abstained from alcohol since her discharge from her last hospital admission, an achievement assisted by medication.
RISK OF HARM TO X IN THE MOTHER’S CARE PENDING THE FINAL HEARING
The mother’s submission to the Court that she was abstinent from alcohol is broadly consistent with the three known CDT tests since her discharge on 27 April 2021. The mother’s acknowledgement that her abstinence was assisted by medication is consistent with the hospital records indicating that the mother had commenced on the medications known as Naltrexone and Acamprosate. The Court knows from Dr P’s report that these medications have been demonstrated to improve outcomes after intensive rehabilitation and to reduce cravings and relapse. The mother has now had two month-long hospital admissions over the last two years. She clearly relapsed after the first admission and this Court believes that the greatest risk to X is the possibility of a further relapse. The history set out above does create the impression that the mother relapses when under stress, indeed almost the same stresses as presently exist in her life. She is neither more nor less supported in her life than she was after her relapse in 2020. Nonetheless, four months has elapsed since the mother’s discharge, and there is no evidence of relapse. The final hearing of this matter is less than four months away. The orders proposed by both parents provide for means of managing this risk.
The risk of relapse is not an abstract risk. The Court’s focus is on the potential implications for X if his mother relapses into alcohol use. The mother’s order proposes that X continue to live with her in the home of her father and his wife. This is a protective factor, particularly in circumstances where the mother herself proposes that her father and stepmother provide an undertaking to the Court that if they observe her, or otherwise have reason to believe that she has consumed alcohol whilst X is in her care or in the 24 hours prior to X coming into her care, they will immediately notify the father and assume care of X. The Court accepts the father’s concerns that the mother’s family have not hitherto disclosed to the father the mother’s previous hospitalisations. What is proposed, however, is that they offer undertakings to the Court, which provide the Court with greater reassurance that they will act appropriately. The Court is reasonably satisfied that X would be safe in the care of his grandfather and his wife.
The risk of the mother’s relapse needs to be measured against the alternative of X going into his father’s care, pending a final hearing which is only four months away. This would be a very significant change for X. Whilst the evidence does create the impression that his father was quite actively involved in his life before X and the mother relocated away from Sydney, there are still concerns about the impact of change on X, as well as some lingering uncertainties about the father’s parenting capacity, particularly in terms of his availability to personally care for X, even accepting that he would be perfectly entitled to work full-time. It is notable that Dr P’s recommendations only propose X live with his father if the mother is unable to meet the conditions contained in subparagraphs 813.1 to 813.4 of his report.
Another protective factor for X is that an Independent Children’s Lawyer has been appointed for him.
The other obvious safety net for X is the amount of time that he spends with his father. In circumstances where the Court is satisfied on the basis of the evidence that is before it at this point that the risk of harm to X in his mother’s care is not unacceptable, the focus will then be on his time with his father.
X’S TIME WITH HIS FATHER.
The mother proposes that X spends time with his father on two weekends during each school term including any long weekend, from after school on Friday evening until 5pm the day before he would need to return to school. The Court notes that there would be one long weekend left this year during the school term, as well as the September school holidays. The mother proposes that X travel by air between City A and Sydney as an unaccompanied minor, and at the father’s expense. The mother also proposes that the father can elect to spend one additional weekend each school term with X in the City A area.
The father proposes that X spend each alternate weekend with him, from after school on Friday until Sunday afternoon. X would travel to Sydney as an unaccompanied minor unless there were no suitable flights, in which case changeover would take place at K Town McDonald’s. The Court infers that the father would meet the costs of travel.
Even the mother acknowledged that X has not been spending time with his father in accordance with the current arrangements. She attributed this to the COVID-19 pandemic, but was somewhat sheepish in attempting to explain why she declined to comply with the order when the relevant public health order contains an exemption for arrangements for contact between parents and children.
In the circumstances, the Court prefers to make an order that facilitates X spending regular weekend time with his father during the school term. In Term 3 2021, which the Court notes ends on Friday, 17 September, X should spend the Father’s Day weekend with his father either in Sydney or in City A, as his father nominates.
Term 4 commences on 4 October 2021. The father is to spend time with X either in Sydney or in City A, as he nominates, no less than three times this term, as agreed, or failing agreement on the second, fourth and seventh weekend of the term. The Court is concerned that fortnightly travel for X may be tiring, and disruptive to his routine both at home and school.
The Court could find no reference in the evidence of the parents as to whether X has travelled before on an accompanied or unaccompanied basis. Likewise, there is no evidence about the policies of the relevant airlines in this regard. In the circumstances, the Court will make an order for unaccompanied travel, noting that it is a relatively short flight, and X’s parents will be at the points of departure and arrival.
The mother proposes that X spend the entirety of the September/October school holiday period with his father. This is consistent with the proposal made by the father, and an order will be made in these terms.
Both parties propose that X spend time with his father on the Father’s Day weekend, and this will be reflected in the orders made above for school term time.
There appears to be some commonality in the orders about video calls, and any differences are determined in favour of the orders proposed by the father.
Both parents propose restraints on the mother’s alcohol consumption, as well as treating and testing regimes.
As a general proposition the Court will adapt the wording proposed by the father in his minute of order contained in his Case Outline document. There are a number of other non-contentious orders proposed by the father at orders 18-24, which the Court will make, with some minor modification.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 27 August 2021
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