DAWKINS & BOREHAM

[2014] FamCA 974

FAMILY COURT OF AUSTRALIA

DAWKINS & BOREHAM [2014] FamCA 974

FAMILY LAW – CHILDREN – with whom a child spends time – consent orders and orders by the Court for holiday time and restraint on consumption of alcohol by the father prior to and when the child spends time.

APPLICANT: Ms Dawkins

RESPONDENT: Mr Boreham

FILE NUMBER: MLC 8489 of 2009

DATE DELIVERED: 23 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 23 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.G. Weil

SOLICITOR FOR THE APPLICANT: M K Steele & Giammario

COUNSEL FOR THE RESPONDENT: In Person

COUNSEL FOR THE ICL:	Ms A. Glaister
SOLICITOR FOR THE ICL	Macgregor Solicitors

Orders

IT IS ORDERED

BY CONSENT

1. That all previous parenting orders be discharged.

2. That the mother and the father shall have equal shared parental responsibility for the child X born … 2005 (“the child”).

3. That the child shall live with the mother.

4. That the child shall spend time and communicate with the father as follows:

   (a)From the conclusion of the child’s attendance at … class at M at 5.30 pm Friday whilst the child is enrolled in that class or at the conclusion of other Friday classes agreed between the parents in writing, otherwise from the conclusion of school on Friday or 5.30pm if a non-school day until the commencement of school on Monday or 10.00 am if a non-school day, in each alternate week commencing 10 October 2014;

BY THE COURT

(b)For one week in each term holiday period at times agreed and in default of agreement as follows:-

(i)     In Term 1 and Term 3 holidays, the first week of the said holidays commencing at the conclusion of school on the last day of the term and concluding at 5.30 pm on the last day of that week; and

(ii)    In Term 2 holidays for the last week of the said holiday period to commence at 10.00 am on the first day and to conclude at 5.30 pm on the last day of that week.

(c)During the long summer vacation period as follows:-

(i)     In 2014/2015 period for two periods of seven consecutive nights as follows:-

A.From 11.00 am 25 December 2014 to 5.30 pm 1 January 2015; and

B.From 10.00 am 8 January 2015 to 5.30 pm 15 January 2015;

(ii)    In 2015/2016 for a period of two weeks commencing at 10.00 am on 13 January 2016 to 5.30 pm on 27 January 2016;

(iii)     Commencing in 2016/2017 one half of each long summer holiday vacation period at times agreed in writing and failing agreement for the first half in 2016/2017 and each alternate year thereafter and for the second half in 2017/2018 and each alternate year thereafter.

BY CONSENT

(d)In 2014 and each alternate year thereafter from 11.00 am Christmas Day to 11.00 am Boxing Day;

(e)In 2015 and each alternate year thereafter from 11.00 am Christmas Eve to 11.00 am Christmas Day;

(f)Alternate weekend time is suspended during the school holiday periods and recommences as if the holiday had not intervened.

(g)For Father's Day, in the event the child would not otherwise be in the father’s care on that weekend the child spend the weekend from the conclusion of school or … class Friday until the commencement of school Monday in the father’s care;

(h)By telephone at all reasonable times and at 7.00 pm each Wednesday when the child is not in his care and the father shall allow the child to telephone the mother at reasonable times during alternate weekend and school holiday periods and at 7.00 pm each Wednesday in the school holiday periods when the child is in the father’s care; and

(i)As further or otherwise agreed.

1. That changeovers shall occur at school where practicable otherwise the father shall collect the child from and deliver the child to the mother’s property; such changeover to occur from outside the front gate of the property and save for an emergency situation the father shall not enter the mother’s property and the mother shall remain inside her property when the child departs or arrives, but either the mother or her nominee stand so they can be seen from the front gate.

2. That the father’s time shall be suspended in the event the child would otherwise be in his care on the weekend including Mother's Day.

3. That the mother and the father keep each other advised of their respective residential addresses, their contact telephone numbers and email addresses, and forthwith advise the other parent of any change thereto.

4. That the mother keep the father advised of the name and telephone contact details of any medical practitioner providing treatment to the child and both parents are permitted to obtain information as to the child from any treating practitioner and where practicable they will attend separate appointments.

5. That the mother and the father shall advise the other parent as soon as practicable of any illness or injury to the child when the child is in their respective care.

6. That in the event that the child is hospitalised then both parents shall be at liberty to attend the hospital but where practicable the parents shall arrange for the father to visit when the mother absents herself from the child’s bedside, such visit shall take into account the views of the child’s treating doctor.

7. That in the event there is a dispute between the parents in relation to any non-emergency medical care for the child, the parents shall consult the child’s current treating paediatrician or his or her nominee and abide by his or her direction as to medical treatment, and the parents shall each bear their own cost of such consultation, if any.

8. That the mother and the father each be entitled to receive school newsletters, reports and other information normally sent by the school to parents, including access to the school website.

9. That both parents be entitled to attend school events including but not limited to parent-teacher interviews and where practicable the parents shall arrange to attend at separate times, and during school events such as sports days or school concerts the parents shall where practicable not approach each other at such events.

10. That the Independent Children’s Lawyer shall provide a copy of this order to IH School within seven days hereof.

11. That the child’s school uniform and the school requirements are to pass with the child and each parent will endeavour to ensure all of the child’s school property is returned to the other parent in good condition.

12. That the father shall ensure the child attends:

    (a)Her pony club on the first Sunday of each month unless he has a significant prior arrangement which would prevent such attendance, and the father shall discuss his inability to take the child to her pony club with the child; and

    (b)Her classes, concerts and examinations for her dance curriculum and in the event that he is unable to facilitate her attendance at such event, he is to notify the mother and she be at liberty to collect the child to ensure her attendance at such event.

BY THE COURT

1. That the mother and the father and their respective servants and agents be and are hereby restrained from:

   (a)Denigrating the other parent or their family within the hearing and/or presence of the child; and

   (b)Discussing these proceedings with the child.

BY CONSENT

1. That in the event that the parents are unable to reach agreement about matters relevant to their shared parental responsibilities, save for:

   (a)An emergency situation; and

   (b)An alleged breach of these orders;

   then the parents shall attempt to resolve matters in dispute by attending Roundtable Dispute Management prior to issuing further proceedings.

BY THE COURT

1. That the father be and is hereby restrained from consuming alcohol for a period of 12 hours prior to the commencement of his time with the child and during any period when the child is in his care.

BY CONSENT

1. That the order appointing the Independent Children’s Lawyer be discharged.

2. That the matter be removed from the Court’s list of pending cases.

3. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawkins & Boreham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8489 of 2009

Ms Dawkins

Applicant

And

Mr Boreham

Respondent

REASONS FOR JUDGMENT

1. In the matter of Dawkins & Boreham the matters I am asked to determine relate to the parenting arrangements of the parties’ daughter, X (“the child”), born in 2005.  These are my ex tempore reasons for judgment. 

2. The child’s parents have been in dispute in relation to parenting arrangements for her since she was an infant.  There have been hearings before Cronin J and Young J in relation to the care and welfare arrangements for the child.  Today is the second day of the listing of the matter before me. 

3. To their credit the parties have come to an agreement in relation to some of the issues in dispute.  However there continues to be ongoing conflict between the parties in relation to issues around the father’s use of alcohol, in relation to whether or not there should be injunctions restraining these parties from discussing the proceedings in the presence or hearing of the child and whether there should be injunctions restraining the parties from denigrating each other or members of their family in the presence or hearing of the child.   Further, I have been asked to determine the question of the time that the child should spend with each of her parents during the long summer vacation period. 

4. By way of background I note the following.  The mother is Ms Dawkins.  She lives in N, and is aged 44 years.  She is engaged in a role as a carer both to the child X but also to her daughter, LN, who is aged 20 years and is a now adult child who has special needs.  She has re-partnered and lives with her partner, Mr S. 

5. The father is Mr Boreham.  He lives in BB.  He, too, has re-partnered and lives with his partner, Ms KT.  He is engaged in full-time employment as a skilled tradesman. 

6. The parties commenced co-habitation in August 2005 and separated in about January 2006.  At the time of their separation the child was aged approximately four months.  The parties have confirmed their consent this day to orders which will provide that they will continue to share parental responsibility for long-term decisions with respect to the child.  By consent they agree that the child will continue to live with her mother and that she will spend time and communicate with the father each alternate weekend from Friday afternoon to Monday morning. 

7. There is also agreement between them as to what should occur during the term holiday periods.  The mother seeks an order restraining the father from consuming alcohol for a period of 24 hours prior to the commencement of his time and that he abstain from consuming alcohol during periods when the child is in his care.  It is submitted on behalf of the mother that the history of the matter is such that an order in those terms is necessary.  It is submitted on behalf of the mother that the father has a long history of addiction to alcohol, that various report writers have made observations and recommendations as a result of their concerns with respect to the father’s use of alcohol, and further, that there have been findings made by Cronin J with respect to those matters. 

8. Mr Weil, who appears on behalf of the mother made detailed submissions as to the history of the father’s alcohol use and as to the history of the mother’s concerns with respect to the father’s abuse of alcohol.  I was directed to the first report of Mr L, psychologist, who is the independent expert engaged on behalf of the Independent Children’s Lawyer to report in this matter.  His first report was filed on 16 July 2007.  At paragraph 7.4 of that report Mr L observed:

   Although I was not able to conduct clinical testing in the context of reportable counselling, in my view it is highly likely from the face of the record and from interview that [the father] meets the diagnostic criteria for alcohol dependence. 

9. In his recommendations Mr L says at paragraph 7.7 of that report:

   I consider that [the father] should be restrained by injunction from consuming alcohol while [the child] is in his care and for a period of 24 hours before she comes into his care.

10. At about that time the parties were assessed by Dr E, psychiatrist.  An affidavit of Dr E was filed in those proceedings on 30 July 2007.  At page 8 of that report Dr E reports as to the father’s position with respect to his alcohol consumption.  He there notes that the father conceded that he had previously been “A reasonably heavy drinker to a degree.”

11. Further, Dr E noted:

    By his own admission he indicated that he was using alcohol as a stress release and had been doing so for years.

12. At page 15 of that report Dr E in his concluding opinions noted:

    [The father] admitted that he has a drinking problem but is unclear as to when that began.  Whether or not he had a drinking problem from earlier on in his life is unclear but it is noted that there was a drink driving offence occurring some 12 years previously.

13. They are serious and concerning observations made about the father by each of those experts at that time.  As a result of those observations orders have been in place restraining the father’s consumption of alcohol at times when the child is in his care.  Those orders have continued up until this time. 

14. Mr L has prepared a report in the context of these current proceedings.  The significance of the recommendations in that report is amplified as he has had the benefit of observing the parties and the child over an extended period. 

15. That is, he observed these parties first in or about 2007 and has now, in the context of these proceedings, prepared a further report and had the opportunity of observing the parties in the context of the preparation of that report in 2014.  In his most recent report, which is annexed to his affidavit filed 13 August 2014, Mr L continues to note the ongoing concerns around the father’s alcohol consumption.  He notes at paragraph 7.12.4 of his most recent report that what would help is for the father to address directly some of his daughter’s concerns around his alcohol consumption.  For example he should be prepared to stop or significantly moderate his alcohol use in such a way that it cannot be a trigger for apprehension in the child. 

16. The order that is sought by the mother is supported by the Independent Children's Lawyer save that it is said, on her behalf, that the prohibition prior to the commencement of the father’s time should be for a period of 12 hours instead of 24.  It is said in support of that submission that 12 hours is sufficient time to ensure that the father is not affected by alcohol at the commencement of the time and that there are sufficient safeguards if the prohibition was to that extent and that it would continue throughout the father’s time with the child. 

17. The father opposes the order as to restraint of his alcohol consumption.  He says that he has been subjected to that prohibition for many years.  He submits the prohibition gives rise to continuing conflict between he and the mother.  He alleges that on at least one occasion the mother has stalked him effectively trying to catch him consuming alcohol at a time when he otherwise would be prohibited from consuming alcohol.  He refers to paragraph 7.6 of Mr L’s report wherein Mr L notes that the prohibition has meant that the child appears to have taken on an inappropriate role policing her father’s alcohol use to report any instances to her mother.

18. It is evident from the reports of Dr E and the admissions made by the father to Dr E that there is a history of alcohol abuse by the father.  The father in his most recent trial affidavit denies that history.  He deposes in his trial affidavit at paragraph 31 as follows:

    [The mother] has always used the drink driving offences as an avenue to push a supposed alcoholism problem which has never existed. 

19. That denial gives rise to a significant concern in the face of the earlier admissions made by the father to Dr E as to his previous issues with alcohol.  The ICL has tendered the father’s history of drink driving offences.  They are exhibit ICL 3.  That exhibit notes a history of no less than three separate convictions with respect to drink driving offences. 

20. In determining this issue I am required to have regard to what is in the child’s best interests. In doing so I must have regard to the considerations set out at s 60CC of the Family Law Act. Section 60CC(2) identifies the primary considerations to which I have regard. Subparagraph (b) of that section highlights the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. I am satisfied that ensuring that the child is not exposed to the father’s drinking is a matter which falls under the umbrella of protecting her from physical harm.

21. I am satisfied on the basis of the material before me that there is sufficient evidence to warrant a continuation of an injunction restraining the father from consuming alcohol for a period of 12 hours prior to the commencement of his time and ensuring that he does not consume alcohol during periods when the child is in his care. 

22. The father has submitted that his issues with alcohol are resolved.  Seemingly, he has made great steps forward in putting that history behind him and he is to be congratulated for that. 

23. The order that I make will provide both the child and her mother with comfort and reassurance that there will be no relapse of that behaviour.  Whilst personally the father may see this as a grave imposition on his personal liberties, ultimately I have to make an order that is going to advance the child’s best interests.

ORDERS DELIVERED

1. The next issue that I am required to determine relates to whether or not there should be a continuation of an order which prevents the parties from denigrating the other party or members of their family or discussing the proceedings in the presence or hearing of the child. 

2. As I have already noted in these reasons, this matter has a long and sorry history before the court.  It is evident from the material that has been filed that the parents of the child have a highly conflictual relationship, and have had significant difficulties in communicating.  Those difficulties have infected the child’s school life and members of her school community have been embroiled in the dispute in a most unbecoming and unfortunate manner. 

3. In all of the circumstances I am satisfied that it is appropriate, and in the child’s best interests having regard to the section 60CC considerations, that there be a continuation of such an order to protect the child from such behaviour moving forward.

ORDERS DELIVERED

1. The next matter that I am required to determine is the question of long summer holiday periods.  I have heard submissions from each of the parties and a minute has been provided by both the mother and the father as to arrangements for the long summer holiday period.  Last year the child had two weeks with the father but not consecutive weeks. 

2. The mother seeks that the father have two weeks this year, that in the following long summer holiday period he have two consecutive weeks and thereafter he have one half of the holiday period.  The father seeks orders that will provide that he have approximately two and a half weeks on a consecutive basis commencing this year.  He seeks that all of his holiday time fall in the January period to coincide, presumably, with the period when he is most likely to be on leave.  He seeks the period immediately following Christmas this year because he has made arrangements for a holiday house at a seaside location.

1. It is evident from the material that the child enjoys a close relationship with both parents.  I have had the benefit of hearing some evidence from the mother.  I have observed her in the witness box being cross-examined by counsel for the Independent Children’s Lawyer.  The mother conceded in her evidence this morning that it is appropriate that the father have holiday time.  She expressed concern and anxiety that the child has not had extended periods away from her before and therefore she seeks that there be a graduated increase in the time that the child spends with her father over the long summer holiday period.

2. I am satisfied, having regard to the limited holiday time the father has had thus far that it is appropriate for this year that there be an interruption in the father’s time to provide some reassurance to the child.  However, I am mindful that the opportunity of the child to have a happy time with the father and members of his family over that holiday period will provide her with an invaluable opportunity to consolidate her relationship with the father. 

3. With that in mind the orders that I will make for the long summer vacation period for this year are as follows:

ORDERS DELIVERED

1. A significant part of that time will coincide with the father’s proposals as to the seaside holiday and will afford the child an opportunity of spending time with her father in that setting. 

2. I am satisfied that by 2015 and 2016 holidays when the child will be 10, turning 11, that it is appropriate that she have extended time with her father. 

ORDERS DELIVERED

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 23 September 2014.

Associate: 

Date:  23 September 2014