Davies and Harris - [2011] FMCAfam 127

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAVIES & HARRIS

[2011] FMCAfam 127

FAMILY LAW – Parenting – dispute as to whether five year old child should commence spending overnight time with his father – allegations that father has longstanding issues with alcohol abuse – father denies allegations and refuses to engage in counselling and/or treatment – orders made for father to continue to spend regular day time with the child and for the parties to attend mediation to negotiate an increase in the father’s time once he has engaged in a comprehensive assessment of his alcohol use and actively participated in any recommended treatment.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant:

MS DAVIES

Respondent:

MR HARRIS

File Number:

MLC 11060 of 2008

Judgment of:

Bender FM

Hearing dates:

16 & 17 February 2011

Date of Last Submission:

17 February 2011

Delivered at:

Melbourne

Delivered on:

18 February 2011

REPRESENTATION

Counsel for the Applicant:

Mr Hoult

Solicitors for the Applicant:

Marshalls & Dent

Counsel for the Respondent:

Self-represented

Solicitors for the Respondent:

Self-represented

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child of the relationship [X] born in 2005 (“[X]”).
[X] live with the mother.
The father shall spend time and communicate with [X] as follows:
(a)from after school until 6.00pm each Tuesday and Thursday; and in the event [X] has after school activities on either Tuesday or Thursday, from after school until 6.00pm on such other two days of the school week as agreed between the parties, and failing agreement on Monday if [X] has a Tuesday activity and on Wednesday if [X] has a Thursday activity;
(b)from 10.00am to 6.00pm each Sunday;
(c)from 9.00am to 1.00pm on Christmas Day;
(d)on [X]’s birthday and the father’s birthday from after school until 6.00pm if the birthday falls on a weekday and from 1.00pm to 5.00pm if the birthday falls on a weekend;
(e)by telephone on each evening [X] is not spending time with the father for a period no greater than 15 minutes, such call to be made between 6.00pm and 6.30pm; and
(f)as otherwise agreed between the parties.
[X]’s time with his father pursuant to order 4 herein shall be suspended as follows:
(a)on Mother’s Day and [X] shall spend time with his father from 10.00am until 6.00pm on the Saturday before Mother’s Day in lieu of that day;
(b)if the birthdays of the mother or [X] fall on a Sunday, from 3.00pm; and
(c)for a period of one week in one of the school term vacations and for a period of two weeks in the long summer vacation on dates and times to be nominated by the mother in writing 28 days prior to enable the mother to take [X] on a holiday.
Changeover for the father to spend time with [X] shall take place at [X]’s school and if not at [X]’s school shall take place at Meeting Place A, [omitted].
The father be and is hereby restrained from:
(a)consuming alcohol for a minimum period of 12 hours prior to spending time with [X]; and
(b)consuming alcohol during the period of time he spends with [X].
Both parties be and are hereby restrained from:
(a)exposing [X] to entertainment games and activities that are age inappropriate; and
(b)exposing [X] to any video, DVD or games that are rated for audiences above [X]’s age or that depict, violence, sexualised activity or any other illegal activity.
Upon the father providing the mother with written proof that he has:
(a)engaged in a comprehensive assessment of his alcohol use conducted by an appropriate drug and alcohol service;
(b)provided such service with a copy of these orders and reasons for judgment; and
(c)has actively participated in any recommended treatment
the parties participate in mediation in order to negotiate the father spending increased time with [X], including overnight time.
If they have not already done so, the parties forthwith attend a Post Separation Parenting Course with Relationships Australia or Centacare.
The mother and father, their servants and agents be and are hereby restrained from assaulting, harassing, molesting and intimidating each other.
At the commencement and conclusion of time spent periods the parties exchange a Communication Book, setting out any special instructions regarding [X]’s state of health, sporting or social commitments [X] is invited to attend whilst in the other party’s care or any welfare concerns in relation to [X].
For the purposes of section 68P of the Family Law Act 1975, the court notes that these orders, whilst inconsistent with the current Intervention Order, have been made in what this court has found to be [X]’s best interests.
All exhibits tendered during the running of the final hearing shall this day be returned to the party who tendered the exhibit.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 11060 of 2008

MS DAVIES

Applicant

And

MR HARRIS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

This matter relates to what the living arrangements should be for the parties’ son [X] born in 2005 (“[X]”) who is therefore five and a half years of age. The mother filed an Amended Application in this matter on 11 February 2011 in which she sought orders that the father’s time with [X] be supervised. However, when the matter proceeded yesterday, the mother indicated that she was not pursuing that component of her Application.
It is the mother’s Application that [X] live with her and spend time with the father each Thursday from after school until 6.00 pm and each Sunday from 12 noon to 6.00 pm.
The father agrees that orders be made that [X] live with his mother, however he is seeking that the existing interim orders, whereby [X] spends time with him each Tuesday and Thursday from after school to 6.00 pm and each Sunday from 10.00 am until 6.00 pm remain in place until such time as, to quote him:
“the court deems overnight visits appropriate”
after which [X] should spend time with him from 10.00 am Sunday to before school Monday as well as Tuesday and Thursday evenings, an equal sharing of school holidays and provisions for special days such as birthdays, Father’s Day, Christmas Day and the like.
Thus the central issue between the parties is if or when [X] should spend overnight time with his father.

Background

By way of background, the mother was born in 1968 and is 42 years of age. She is engaged in home duties and has not re-partnered.
The father was born in 1973 and is 37 years of age. He is self employed and he too has not re-partnered.
The parties commenced a relationship in 2002 and cohabitation in or around 2004. They separated under the one roof in 2006 and finally physically separated on 1 November 2010.
It was the mother’s evidence that she had tried to have the father leave their rented premises from 2006 onwards but he refused to do so and she felt powerless to evict him. Physical separation occurred when the mother’s lease expired. The landlord served a notice to vacate and the mother and [X] left the premises with police assistance.
The proceedings in this court commenced in December 2008 when the mother filed an Application seeking orders that [X] live with her, that the father’s time be reserved and that the father vacate the rental property in which the parties and [X] were then residing. Her affidavit in support of that Application cited the father’s ongoing excessive use of alcohol as the longstanding reason for the breakdown of the relationship.
When the matter first came before the court on 13 January 2009, it was adjourned to enable the parties to attend mediation. The proceedings were adjourned administratively on two further occasions as the parties pursued Roundtable Dispute Management in an endeavour to resolve matters between themselves. The matter came back before the court on 17 August 2009 when it was listed for final hearing on 12 February 2010 and an order was made for the preparation of a Family Report.
On 12 February 2010, and in accordance with the Family Report recommendations, the matter was adjourned to a mention date in August 2010 with a referral of the parties to further mediation. On

16 August 2010, when the matter returned to court, the parties remained living under the one roof and were no further advanced as to a physical separation or as to what the living arrangements for [X] would be if and when they did separate. Accordingly, the matter was listed for final hearing on 16 February 2011 and an order made for the preparation of an updated Family Report.
After the mother and [X] vacated the rented premises in which all parties had been residing on 1 November 2010, the father issued an urgent Application in a Case on 5 November 2010 seeking orders that [X] live with him. On 16 November 2010, interim consent orders were made that provided for [X] to live with the mother and to spend time with the father from 2.00 pm until 5.00 pm each Tuesday, Thursday and Sunday. The father was restrained from consuming alcohol 12 hours before or during the time [X] was with him.
When the matter can before the court on 16 November 2010, the parties and [X] had already attended upon Dr K for interviews in relation to the preparation of the updated Family Report. Enquiries revealed that Dr K's Report could be made available to the parties and the court on 20 December 2010. Accordingly, the father’s interim Application was adjourned to 21 December 2010.
Dr K's Report was received on 20 December 2010. On page 12 of her Report, under the heading ‘Recommendations’, Dr K made several recommendations contained in paragraphs 57 to 64 as set out below:
57.It is respectfully recommended that Ms Davies and Mr Harris retain joint parental responsibility for [X], specifically that they assume joint responsibility for the long term care and welfare of [X], and the daily care and wellbeing of [X] when in their respective care.
58.It is respectfully recommended that [X] continue to live with Ms Davies.
59.It is respectfully recommended that the existing contact arrangements between [X] and Mr Harris continue until such time that [X] commences school in 2011.
60.From [X]’s commencement at school it is recommended that Mr Harris be permitted to spend time with [X] for an equivalent period of time to the existing contact arrangements. For example being permitted three hour contact periods on two days each week, collecting [X] from school and for 8 hours on one weekend day per week.
61.Mr Harris should be required to make undertaking that he will refrain from alcohol consumption for a minimum period of 12 hours prior to contact with [X]
62.Mr Harris should be required to make undertaking that he will refrain from alcohol consumption during his contact with [X]
63.Mr Harris should be required to make undertaking that he will ensure all entertainment, games and activities are developmentally and age appropriate. Specifically, he takes responsibility to ensure that [X] is not exposed to any video, DVD, or games that are rated for audiences above [X]’s age or that depict violence or illegal activity.
64.Overnight visits should not be considered until such that that;
i.Mr Harris has provided Liver Function Test and at least six months clear random screens for ethanol and other substances.
ii.That Mr Harris has engaged in a comprehensive assessment of his alcohol use conducted by an appropriate drug and alcohol service and has actively participated in any recommended treatment.
On 21 December 2010, interim orders were made which provided for [X] to live with his mother and spend time with his father from

2.00 pm until 5.00 pm on Tuesdays and Thursdays, and from 12 noon until 6.00 pm on Sundays until such time as [X] started school in 2011 when [X]’s time with his father was to increase such that [X] spend time with his father from 4.00 pm until 6.00 pm on Tuesdays and Thursdays and from 10.00 am to 6.00 pm on Sundays. The orders restrained the father from consuming alcohol 12 hours before or during the time [X] was in his care. Both parties were restrained from exposing [X] to age inappropriate games, activities and DVDs. The parties were also ordered to attend a post separation parenting course and to commence the use of a communication book.

The evidence

The mother

As set out earlier, the mother is seeking orders that the parties have equal shared parental responsibility for [X], that he live with her and spend time with the father each Thursday from after school until 6.00 pm and each Sunday from 12 noon to 6.00 pm. The mother’s Counsel, in closing, conceded that there had not been anything his client’s evidence as to why [X]’s time with his father on a Sunday should be reduced.
It is the mother’s case that the real issue between the parties is whether [X] should spend overnight time with his father. The major reason the mother opposes [X] spending overnight time with the father is because of his alleged longstanding alcohol abuse issues. It is her evidence that for the entirety of their relationship, and whilst separated under the one roof, the father consumed alcohol to excess on a daily basis. It was her evidence he would consume up to a bottle of vodka or five to six glasses of wine each day and in the summer he would start drinking beer at lunchtime and continue such that he would regularly pass out on the couch.
It was the mother’s evidence that when intoxicated, the father became abusive, violent and threatening. It was the mother’s evidence that the father did not and does not acknowledge that he has an alcohol problem. She argued that in those circumstances she had genuine concerns as to the father’s capacity to care for [X] overnight.
The mother gave evidence that since separation she had not observed the father to be intoxicated when [X] was in his care, but reported [X] had told her of going to the bottle shop with dad where he bought:
“boxes of wine.”
The mother also raised concerns as to whether the father’s accommodation would be suitable for [X] to spend overnight time, describing it as:
“student accommodation.”
The mother was also concerned as to some of the father’s behaviours when caring for [X]. She produced the parties’ communication book. It contained photographs of [X] taken by the father which he has sent her that showed bruises on [X]’s body. One in particular was taken of [X]’s back when he was naked.
The mother also produced and tendered into evidence a pocket knife/mini tool-type gadget that the father had given [X] for Christmas. It had sharp knives and a mini saw. The mother said [X] had come home with the pocket knife and ran towards her with one of the blades extended. She was concerned as to the age inappropriateness of such a gift and the lack of insight of the father as to appropriate gifts or items that should be given to a five and a half year old.
The mother was asked why she was proposing a reduction in the amount of time [X] spends with his father. It was her evidence that [X] is currently seeing a specialist at the Royal Children’s Hospital. [X] has experienced problems with encopresis but, whilst that had resolved, he continued to have anger problems. The mother advised that [X]’s treating specialist recommended that he needed routine. The mother stated that she felt that the number of weekly visits that [X] was currently having with his father did not allow [X] to settle into any form of routine.
The mother also gave evidence that [X] is a very energetic and active child who is easily bored and thus needs to be:
“doing something”
so he has an outlet for all that energy.
[X] started school this year at [omitted] in [omitted]. It was the mother’s evidence that the school has a sport and multi-skilling after-school program on Tuesday and Wednesday, for six weeks each term and that she wants to enrol [X] in those programs to give him an outlet for some of his energy.

The father

The father categorically denies that he has an alcohol problem. The father underwent a liver function test earlier this month and the results of that test showed the father’s liver function to be within the normal range. Whilst conceding the mother had been complaining of and concerned about his level of drinking for many, many years, it was the father’s evidence there was no basis for her complaints or concerns. He denied that he drank every day and said he had never drunk vodka, let alone a bottle a night.
It was the father’s evidence that he has not had a drink since New Year’s Eve. When asked why, his evidence was that he had not felt the need since separation. It was the father’s evidence that whilst he has never thought he used alcohol excessively, since this court case started he had cut down considerably on his consumption. The father observed that he may have used alcohol to:
“block out Ms Davies”
but that now he did not see her, he did not have a need to use alcohol.
Whilst the father was adamant in his denial of excessive alcohol use, his answers to a number of specific questions was illuminating. He was asked whether he was drunk every day. His answer was, most interestingly:
“during which period of time?”
He was asked if he drank beer from lunchtime. His answer was:
“On weekends, maybe.”
He was asked about two convictions for driving in excess of the legal alcohol limit and whether that pointed to an issue with alcohol. His answer was:
“They were just two isolated incidents.”
He was asked whether using alcohol to block out Ms Davies suggested a problem with alcohol and he answered:
“No, it suggests a problem with the relationship.”
The father was asked if he would attend drug and alcohol counselling if ordered to do so by the court. He indicated, reluctantly, that he would but only if ordered to do so. The father was then asked if he would attend such counselling to allay the mother’s concerns as in so doing her opposition to overnight time may well be ameliorated. The father’s response was he would not do so as it would somehow validate her allegations.
The father was asked to describe his current accommodation. He did so. His is one of approximately 30 rooms. He has two beds in his room, a television, a fridge and an ensuite solely for his use. There is a large communal kitchen and dining room as well as an upstairs balcony and internal courtyard. The father described a mixture of people living there and indicated that there were also nearby parks and play facilities that he and [X] use regularly. He described neighbours who have children of [X]’s age with whom [X] plays and I do note the mother’s Counsel conceded, on her behalf, that there was nothing in the father’s description of his accommodation to cause the court concern.
The father was asked about the photographs in the communication book. It was his evidence he was worried about the increasing frequency of bruises on [X] when he visited him and that he had taken the photographs to document those concerns. The father was questioned as to what impact the taking of those photographs might have on [X]. He was unable to answer that question other than to say:
“We take photos all the time.”
The father’s evidence and his answers were often quite evasive, non specific and contradictory. For example, he was questioned as to the level of his child support payments and, other than to say he was paying child support, he could not or would not say the amount he actually paid.
When questioned as to the circumstances of the photograph of [X] showing the bruises on his back, he initially said he took the photograph after [X] had a shower as they had been to a water park in Whittlesea but when he saw the notes on the photograph in question and that they didn’t coincide with the date of that visit, he said:
“No, I was mistaken, it was another time”
but then couldn’t or wouldn’t explain the circumstances of the photograph in question.

In relation to the pocket knife, the father’s evidence was he had taught [X] to use tools responsibly and that he did not think [X] was too young for such an item. His evidence was that he had intended that the tool would be used under his supervision but conceded that he didn’t know [X] has taken the tool home and that he thought that [X] had lost it.

Dr K

Dr K is a consultant clinical and forensic psychologist and a Regulation 7 Family Consultant for the Federal Magistrates Court. As noted previously, Dr K prepared a Family Report in this matter dated 12 December 2010. Neither party sought to cross examine

Dr K.
I also note a previous Family Report was prepared by Dr R, Family Consultant, dated 8 January 2010. At that time the parties were not physically separated and Dr R was not able to address the post physical separation living arrangements for [X]. In these circumstances I do not intend to otherwise refer to Dr R's Report.
In her Report, at paragraph 25 and 26, Dr K described the father as follows:
25.Mr Harris stated that he believed that [X] wanted to spend time with him. He said that he believes that Ms Davies attempts to control his time with [X]. Consistent with the experience of Dr R, Mr Harris frequently became evasive during interview and consequently a full understanding of Mr Harris’s point of view was very difficult to discern.
26.Mr Harris greatly minimises his contribution to the current situation and externalises blame for the situation. For example, he acknowledges that he on occasion used “some alcohol” although denies being addicted and is somewhat dismissive of the fact that his alcohol use would have had an impact upon his behaviour and interactions with Ms Davies and [X]. Furthermore, he appeared to have great difficulty perspective taking and demonstrated limited capacity and little interest in attempting to understand Ms Davies’ concern.
Further, at paragraph 44 Dr K stated, in relation to the father, the following:
44.Mr Harris expressed a desire to be actively engaged in [X] care and while it presumed his desire is motivated by genuine concern and love for [X], his motivation was less able to be determined given his interpersonal style. His denial of any alcohol abuse, aggressive tendencies and failure to accept any responsibility for the current situation is notable and of concern. He does not present as an individual who has great capacity for insight or introspection and displayed no evidence of motivation for self development or improvement.
In relation to the mother, Dr K reports at paragraph 30 and 32:
30.As expressed to Dr R, Ms Davies reported that she is not in agreement with [X] spending overnight time with Mr Harris. She maintains that Mr Harris is an alcoholic and was more often than not passed out early in the evening on the couch. She said that she is concerned that if [X] were in his care overnight that Mr Harris would be incapable of providing adequate supervision and care of [X].
32.Ms Davies remained sceptical that Mr Harris would participate in any counselling. She stated that “he is in denial” and that he refuses to accept that he has a problem so he has no motivation to engage in counselling.
At paragraph 43 of her Report Dr K stated, in relation to the mother:
43.Ms Davies appears to be genuine in her desire to parent [X] and support Mr Harris’s relationship with [X]. She presented as balanced yet active, assertive, and vigorous in her attempts to convey concerns without being combative towards Mr Harris.
I have already set out much that Dr K recommended earlier in this judgment and will not repeat those recommendations here. Dr K, however, did make a further recommendation as follows:
64.Overnight visits should not be considered until such that that;
i. Mr Harris has provided Liver Function Test and at least six months clear random screens for ethanol and other substances.
ii. That Mr Harris has engaged in a comprehensive assessment of his alcohol use conducted by an appropriate drug and alcohol service and has actively participated in any recommended treatment.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
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).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
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.
Both parties have agreed that they should have equal shared parental responsibility for [X]. Despite their conflicted relationship and acknowledged communication problems, I am of the view that [X] will benefit from both his parents being involved in the

decision-making for him now and into the future. Such a view is supported by the recommendations of Dr K and accordingly I will be making an order that the parties have equal shared parental responsibility for [X].
Where the parents have equal joint parental responsibility for a child, section 65daa of the Act requires the court to consider the child spending equal time, or substantial and significant time, with each parent. It provides as follows:
1.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.
Sections 65daa (2) and (3) of the Act provide as follows:
2.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;
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.
Neither party, and I will note quite appropriately, is seeking orders that [X] spend equal time with each of his parents. The mother is seeking to reduce the father’s time with [X] such that it cannot be considered significant and substantial time as defined under the Act. The father’s proposal would involve him spending significant and substantial time with [X] as defined by the legislation.
When determining what arrangements should be put in place for a child, whether it be equal time, significant and substantial time or some other arrangement, the Act quite clearly sets out that the orders the court makes must be in the best interests of the child. In order to determine what is in the child’s best interests, the court must consider the matters set out in section 60cc (2) and (3) of the Act.
Each of the matters set out in those subsections, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals and a decision made as to which of those proposals, or such other proposal as the court may determine, will be in the child’s best interest.
Section 60cc (2) of the Act sets out the primary considerations and they are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

[X] does have a meaningful relationship with both his parents. He is loved and cared for by both of them and loves and cares for them.
His mother is his primary carer and it is with her he has his primary attachment. [X] also has a very close and loving relationship with his father. Any orders made by me must ensure those very important relationships are preserved and allowed to prosper and grow.

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

This goes to the central issue in this case. It is the mother’s contention that because of the father’s unacknowledged, longstanding alcohol abuse issues, [X] would be placed at risk of abuse and neglect if he were to stay with his father overnight.
The father categorically denies he has an alcohol abuse issue. His evidence is that the level of his drinking during the parties’ cohabitation has been grossly exaggerated by the mother and that further, since separation, his level of alcohol consumption has greatly diminished and he has not had a drink since New Year’s Eve.
The father pointed to the recent liver function test undertaken by him which showed his liver was functioning within normal limits as proof that he has not got any issues with excessive alcohol consumption.
Whilst the father’s most recent level of alcohol consumption may well have diminished, especially since physical separation from the mother, his evidence as to his drinking patterns prior to that time was not convincing. His evidence was evasive, contradictory and at times, unintentionally self-incriminating. For example, the father’s answer to the question:
“Were you drunk every night?”
was
“During what period of time?”
Of further concern was the father’s evidence that he may have drunk to avoid the difficulties in his relationship with the mother. It leads to the possible conclusion that his use of alcohol is related to life’s stressors and that he may resume excessive alcohol consumption if faced with such stressors in the future.
This concern is all the greater because of the father’s blanket refusal to attend any form of drug and alcohol counselling on the basis it would validate the mother’s allegations. Such counselling has little, if anything, to do with the mother’s concerns and is all about the father ensuring he has done everything within his power and control to be the best possible father he can, including opening himself to the insights such counselling could afford him.
Both parents also raise concerns about [X]’s care with the other. The father was concerned about bruising [X] had on his body when he visited him but was reluctant to accept that active little boys of five and a half fall over, bump into things and have bumps, bruises and scrapes just about all the time. The father’s claim that [X] doesn’t fall over or get bruises in his care was somewhat disingenuous.
The mother raised concerns about the father’s misuse of the communication book and the photographs of [X]’s bruises contained therein. The father should realise that it is not appropriate to question or photograph [X] in this way. If he has concerns, he should raise them politely with the mother as she should with him.
The pocket knife was not an age appropriate gift for a five year old. Such items, as with all sharp objects or tools, should only be made available to [X] under the strictest of supervision by his parents.
Having noted these concerns, I am satisfied both parents are able to care for [X] during the day. However, until such time as the father fully engages in appropriate drug and alcohol counselling, I am of the view that there has been real concerns as to his capacity to care for [X] overnight.
Section 60CC, subsection (3) of the Act sets out the additional considerations and I will consider each of these quite briefly.

Section 60cc 3(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

[X] is too young to express any views as to his living arrangements.

Section 60cc 3(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)

As set out earlier in this judgment I am more than satisfied that [X] has a close and loving relationship with each of his parents.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account sub-s.60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     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; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The father has expressed concerns that the mother is attempting to control and limit his relationship with [X] and that her allegations about alcohol abuse are, at best, exaggerated and could be seen as an attempt by her to limit his time with his son.
I do not accept that this is the mother’s motivation. She has, as the father himself acknowledges, held longstanding concerns about his level of alcohol consumption and I am satisfied her concerns are genuine and that she is acting as any protective loving parent would and should.
The parties’ current inability to communicate is of greater ongoing concern for [X]’s future welfare. Both parents need to realise that whatever their history, they need to learn how to communicate as [X]’s parents to ensure they focus on him and his best interests.

Section 60cc 3(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

Neither party is suggesting any significant change in [X]’s current circumstances.

Section 60cc 3(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

Both parents live in close proximity to each other. Whilst the father is currently unlicensed, there are appropriate bus services that enable him to collect [X] from school and to travel with [X] on outings and to other events.

Section 60cc 3(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

Within the concerns well set out already in this judgment, I have already found that I am satisfied that both parents are able to meet [X]’s emotional and intellectual needs.
My concerns as to the parties’ current communication difficulties and heightened levels of conflict have also already been set out in this judgment and I reiterate they need to move on and focus on their roles as [X]’s parents.

Section 60cc 3(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

Not relevant.

Section 60cc 3(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;

Not relevant.

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

Both parents love and wish only what is the best for their son.
The father must accept the need to address the concerns about his alcohol consumption no matter that he feels that in so doing he will somehow validate the mother’s concerns.
As I indicated earlier, it is not about the mother or the court per se. It is about him being the best father for [X] that he possibly can.
Again, good parenting requires parents to speak positively of and to each other, especially in [X]’s presence and to find ways to work together for their son. Both parties must accept their responsibility to ensure that this starts to happen.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

The mother has made allegations of domestic violence against the father throughout the relationship, especially when he was alcohol affected. There is a current interim intervention order against the father arising from an incident in January this year when the father attended the mother’s home, uninvited, seeking a copy of [X]’s birth certificate. Whilst the parties had differing views as to what occurred on that day, the reality is such behaviour is not acceptable and [X] must be protected from inappropriate interactions between his parents.

Section 60cc 3(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

Whilst the father is not necessarily going to be happy with the orders I am about to pronounce, I am of the view that they are in [X]’s best interests at this time.
If the father is able to embrace the way forward that the orders provide, there is no reason that these parties will not be able to move the arrangements for [X] forward with the assistance of mediation.

Conclusion

[X] is a much loved son whose parents care for him very deeply.
The issues to be determined in this matter are really quite narrow in many respects. The first is whether overnight time between [X] and his father should start and if it should, when and how. The second is whether [X] should spend any less time with his father than he does currently.
Taking that last matter first, I am of the very strong view that [X] should continue to spend the time he currently does with his father. That time accords with the recommendations of Dr K and further I am satisfied that it affords [X] the opportunity to have the meaningful relationship with his father that the Act contemplates.
At this time however, I am not satisfied that it is in [X]’s best interests that I make orders for him to spend overnight time with his father. There are real and genuine concerns for his safety if this were to occur because of the longstanding and unacknowledged issues of the father’s long-term excessive use of alcohol.
If the father is able to accept the necessity that he fully engage in drug and alcohol counselling and does fully engage in that counselling, then the possibility of overnight time should be explored.
Accordingly, I intend to make orders that if the father is able to provide proof to the mother of such an engagement in counselling, the parties are to attend mediation with a view to exploring an extension of [X]’s time with his father, including the introduction of overnight time.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 24 February 2011