Dawkins & Boreham

[2008] FamCA 13

FAMILY COURT OF AUSTRALIA

DAWKINS & BOREHAM [2008] FamCA 13

FAMILY LAW – CHILDREN – Interim parenting orders until evidence as to the father’s alcohol use is available

Family Law Act 1975 (Cth)

APPLICANT: MR BOREHAM

RESPONDENT: MS DAWKINS

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2611 of 2006

DATE DELIVERED: 18 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 4 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR WEIL

SOLICITOR FOR THE RESPONDENT: M K STEELE & GIAMMARIO

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MRS HOOPER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MACGREGOR SOLICITORS

Orders made on 4 January 2008

1. That each of the mother and the father be and are hereby restrained by themselves, their servants and agents from:

   (a)assaulting, molesting, harassing or otherwise interfering with the other; and

   (b)contacting the other, other than for the purposes of altering the arrangements made for the child … to spend time with the father or to advise the other of any illness or accident.

2. That pursuant to s 114AA of the Family Law Act 1975 (Cth) where a police officer of the Commonwealth or any of the States or Territories of Australia believes, on reasonable grounds, that either of the mother or the father has breached paragraph (1) of these orders by

   (a)causing, or threatening to cause, bodily harm to the other; or

   (b)harassing, molesting or stalking the other,

   the police officer may arrest the respondent without warrant.

3. That paragraphs (1) and (2) of these orders shall come into operation upon the proceedings between the mother and the father under the Crimes (Family Violence) Act (Vic) currently in the Heidelberg Magistrates Court being struck out or dismissed.

4. That for the purposes of paragraph (3) of these orders, each of the mother and the father is forthwith directed by injunction to do all things necessary and sign all such documents as may be required to advise the Registrar of the Magistrates Court at Heidelberg to give effect to paragraph (3).

AND THE COURT NOTES

Section 114AA

(3)     Where a police officer arrests a person pursuant to subsection (1):

(a)      the police officer shall:

(i)ensure that the person is brought before the court that granted the injunction, or another court having jurisdiction under this Act, before the expiration of the relevant period; and

(ii)take all reasonable steps to ensure that, before the person is so brought before a court, the person on whose application the injunction under section 114 was granted is aware that the first‑mentioned person has been arrested and of the court before which the person is to be brought; and

(b)the person shall not be released before the expiration of the relevant period except pursuant to an order of the court that granted the injunction or another court having jurisdiction under this Act;

but nothing in this subsection authorizes the keeping of the person in custody after the expiration of the relevant period.

(4)Where a person is brought before a court in accordance with subsection (3), the court shall:

(a)if there is an application before the court for the person to be dealt with for breach of the injunction--forthwith proceed to hear and determine that application; or

(b)if there is no application before the court as mentioned in paragraph (a)--order that the person be released forthwith.

(5)     Where:

(a)a person is brought before a court in accordance with subsection (3);

(b)the court proceeds to hear and determine an application for the person to be dealt with for breach of an injunction as mentioned in paragraph (4)(a); and

(c)at the expiration of the relevant period the proceedings have not been determined;

the person may be kept in custody after the expiration of the relevant period until:

(d)     the court gives its decision on the proceedings;

(e)     the court orders that the person be released; or

(f)the court adjourns the hearing for a period of more than 24 hours;

whichever happens first.

IT IS FURTHER ORDERED

1. That the judgment in respect of parenting issues litigated this day be reserved.

Orders made arising from these reasons for judgment

1. That the resumption of the hearing commenced on 4 January 2008 be adjourned to a date to be fixed.

2. Subject to any order of a judge to the contrary, the part-heard application is not to be listed for a resumption until the Independent Children’s Lawyer certifies that all evidence relating to a counsellor/therapist’s views about the husband’s consumption of alcohol is ready to be presented and heard.

3. That the husband at his expense, attend upon a duly accredited counsellor or therapist relating to his past and present alcohol consumption, such person to be nominated by the Independent Children’s Lawyer.

4. That the counselling and/or therapy referred to in paragraph 3 of these orders shall be reportable.

5. That upon the appointment of the counsellor/therapist referred to, the Independent Children’s Lawyer advise that person in writing that the progress, attendances and prognosis of the father during and arising out of the counselling/therapy may be the subject of evidence including cross-examination and that that person may need to be a witness in the proceedings.

6. That the Independent Children’s Lawyer provide to the counsellor/therapist a copy of the reports of Mr T and Dr E.

7. That the father authorise and direct the counsellor/therapist to advise the Independent Children’s Lawyer:

   (a)that the counsellor/therapist agreed to be so involved in the process; and

   (b)should there be a breakdown in communication between the father and the counsellor/therapist to such an extent that that person declines to continue to be so involved, such decision.

8. Upon the Independent Children’s Lawyer certifying that the evidence referred to in paragraph 2 hereof is ready to be heard, the parties attend a mention by telephone before Registrar Kaur to determine what (if any) other material is to be filed in readiness for the final hearing.

9. That upon compliance by the parties with the orders of the said Registrar, the Registrar arrange for the matter to be relisted for mention before me to determine the final hearing date.

10. That until further order, the father spend time with the child … born … October 2005 on a two-weekly cycle as follows:

    (a)in the first week, on Tuesdays and Thursdays between 10.00am and 4.00pm; and

    (b)in the second week, on Thursday and Saturday between 10.00am and 4.00pm.

11. That on Tuesday and Thursday, subject to the availability confirmed by the B Centre in W, the mother or her nominated agent, deliver the child to B Centre at the commencement of each period and collect the child from the Centre at the conclusion of the period.

12. On the Saturdays referred, the father collect the child from and return the child to the mother at her residence on condition:

    (a)that he is driven to and from the mother’s residence or is in the presence of G Boreham, M Boreham and L Boreham; and

    (b)the father does not get out of the car at the point of collection and delivery.

13. That for the purposes of these orders referring to the Saturdays, the mother hand the child to any one of the three brothers referred to in paragraph 17 hereof and she be restrained by injunction from attending at the motor car in which the father is present at the time of the collection or return of the child.

14. That there be liberty to apply generally for the matter to be relisted before me.

15. Reserve all questions of costs of the parties this day.

16. 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 IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Dawkins & Boreham.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2611  of 2006

MR BOREHAM

Applicant

And

MS DAWKINS

Respondent

REASONS FOR JUDGMENT

1. 4 January 2008 was the first day of the trial of the parenting dispute between the mother and the father. 

2. The process under Division 12A of the Family Law Act 1975 (Cth) (“the Act”) was followed as I shall set out.

3. This case is about the child who was born in October 2005.  She is the only child of the relationship between the parties. 

4. There are a number of unresolved issues between the parties.  I indicated I could not make final orders at this stage because of the age of the child, the uncertainty of the evidence and the unresolved issue about the father’s use of alcohol.  This last issue was the focus of most of the attention at the hearing.

5. I propose to make interim orders only but to bring the case back for its resumption at a point in time when the Independent Children’s Lawyer says that the critical evidence to which I shall refer is ready to be led such that the case could be finally determined.

6. The question of when that next and final stage of the hearing resumes is a vexed one.  The father does not see it quite that simply.  He is keen to get on with the case and advance his relationship with the child.  For reasons that I shall set out from the evidence, the father’s position tends to show that he does not fully understand the parameters of the problem. 

7. In the course of the hearing, a number of matters including the management of the future part of the trial were canvassed. I shall turn to those matters in due course. Personal injunction orders were also made by agreement between all parties to enable them to avoid having a further hearing in the Heidelberg Magistrates Court over a disputed intervention order. At that court, the mother has an application for an intervention order which for reasons only he understands, the father was contesting. There was no application as I understand it against the mother. However, in a very sensible solution, Mr Weil on behalf of the mother proposed that there be mutual injunctions in this Court upon which basis, his client would withdraw from the proceedings at Heidelberg. It was a condition however that my orders included a provision under s 114AA making it clear that under certain circumstances police had the power of arrest. I have made those orders at the same time as I reserved judgment.

8. The background of the parties is important to endeavour to understand the current family dynamics and the dilemma.  The parties lived together between 2005 and January 2006. 

9. The mother has a child, an older daughter, who was born in October 1993.  The older daughter is 14 years of age.  The older daughter lives with her mother and the child of the parties.  She is extremely disabled, suffering a neurological condition. 

10. Shortly after cohabitation commenced, alcohol became a problem and in October 2005 there was a separation when the father left the place where the parties were staying for three weeks to live with his brother.  I accept on what I have read that that was as a direct result of the mother expressing her concern.  Apparently there were then promises by the father that he would abstain from alcohol and seek professional assistance but according to the mother, that did not eventuate.  The particular problems descended into aggression and hostility according to the mother.

11. In December 2005, the father was stopped by the police and had his licence suspended immediately.  I am not surprised about that having regard to the fact that he had a reading of .170 per cent blood alcohol.

12. The personal relationship between the parties descended further and was exacerbated by the mother’s older daughter being unwell.  The mother asserted that the parties’ child was crying during the night and that the father became aggressive towards her.  This is a subject of considerable dispute and may have to be determined in the final trial.

13. On 28 December 2005, the parties attended a medical practitioner who referred the father to a psychiatrist. 

14. Separation occurred in January 2006. 

15. The father concedes that he was prescribed a drug for depression but denies having received a drug associated with alcohol dependence.

16. The proceedings began between the parties when the father filed an application on 4 September 2006.  He sought that he and the mother equally share the residence of the parties’ child who was then aged 10 months.  His amended application was filed two months later on 16 November 2006 wherein he repeated that desire.  Unrealistic as that my well have sounded, it certainly has not changed save that when I asked the father what he ultimately wanted to achieve he said “seven days on and seven days off” once the child starts school.  In the meantime, he wanted to build up to a shared care arrangement.  On any view of the current state of the relationship of the parties as well as the limited time that the father has had with the child, his ultimate desire must be seen as a forlorn hope.  Things will have to change radically for such an arrangement to be successful.

17. The mother filed her response on 26 September 2006 and sought that the child live with her and that the father have limited time with the child at the B Centre at W. 

18. In September 2006, the father said that his application was based on the fact that the child had been living with both parents at the time of her birth until she was three months old and that subsequent to separation, the father could only see the child at the whim of the mother.  In his material at that time, he described his contact with the child as minimal, inconsistent, unknown and reliant upon the moods of the mother.

19. The mother replied to that affidavit saying that she was concerned to allow any time between the father and the child on the basis that the father would attend at the home in a drunken state and when she refused him entry to the home he would become aggressive and abusive towards her which in due course caused distress to the child as well as her.  She went on to say that the father had demonstrated an incapacity for any appropriate parental responsibility and that she had serious misgivings about his capacity to care for the child at all.

20. An Independent Children’s Lawyer was appointed on 2 October 2006 because the dispute between the parties was escalating. 

21. On 31 October 2006, the parties agreed to orders that the father see the child on Mondays and Fridays between the hours of 9.30am and 11.30pm but on condition that he not consume alcohol for 12 hours before the contact period as well as not drive. 

22. On 28 November 2006, Senior Registrar Fitzgibbon extended the time marginally.

23. The matter came back before Senior Registrar Fitzgibbon on 12 January 2007 at which time in a contested hearing, he varied the hours to six hours on each of two days per week.  The matter then came to me on 8 March 2007.  I declined to vary the hours but brought into play the changeover centre in an endeavour to get some relationship developing.

24. Notwithstanding those orders, the father alleged breaches of orders and brought a contravention application but on 12 October 2007, Bennett J dismissed that application by consent of both parties.  However, even on Christmas Day 2007 there were issues between the parties despite the fact that they had come to court only weeks before, seeking and ultimately agreeing, for the times to be fixed.

25. Orders were also made during 2007 for the appointment of experts Dr E and Mr T to see the parties and prepare reports for Court.  The parties attended the experts in May and June respectively and each filed a report encompassed in an affidavit.

26. I ordered that the first day of the final hearing commence with the parties giving a brief overview personally of what they had hoped to achieve. 

27. I had been told that both parties were represented and as a matter of courtesy, Mr Marchetti of counsel appeared on behalf of the father and indicated that his instructions had been to withdraw and that the father was to proceed on his own.  I ordered that the statements of both parties which were to be given on oath were to be made in the presence of Mr T and Dr E.

28. I then had the experts affirm and they gave evidence together in the witness box.  Each brought their own professional opinion to the hearing but having them side by side enabled me to hear their opinions on the same questions almost contemporaneously.  It was instructive because they had different views, had undertaken different tasks and come from different disciplines but they were united about the father’s problems relating to alcohol.  Before dealing with their oral evidence, their opinions can be selectively set out.

29. Dr E saw the mother in June and reported that the mother was not against the father having contact with the child but more importantly, believed that it was appropriate that the contact occur.  She expressed concern to Dr E about increasing the amount of time between father and daughter because of the father’s “chronic drinking problems”.  She alluded to two drink driving offences before the courts.

30. In the proceedings that I conducted in 2007, I was told that the father had two appeals against magistrates’ orders pending.  The father had no hesitation in telling me from the bar table that those matters were concluded and he had lost his licence for 34 months of which he had already done approximately 12 months.  He would therefore be without a licence for almost a further two years.  He made it clear that he was always “guilty” but had adopted a technical defence.  His attitude about this was rather blasé but as I indicated to Dr E and Mr T, whilst .05 convictions were indicative of a drinking problem, I was more concerned about the other issues associated with alcohol such as aggression and violence.  The father subsequently told me that in respect of the second of the two appeals, having regard to what had occurred in the first, he abandoned the second.

31. Dr E reported that the mother showed no signs or symptoms of any formal psychiatric condition.  He said she reiterated her concerns about the father’s ability to care for the child and more importantly, his promises to reform his behaviour which had failed.

32. Of the father, Dr E said that he was told that there was no history of significant illnesses, accidents or operations.  According to Dr E, the father said that he drank “socially” and that was mid-strength beer but he drank red wine when he went out.  He described the fact that the father told him he had taken control of his drinking and that it was the stress of the relationship which contributed significantly to his tendency to drink.

33. Dr E said that the father did not regard himself as having a drinking problem and that he did not drink the way that he had done previously.  Ironically, he told Dr E he had clearly made a “mistake” in regard to the drink/driving situation.

34. Dr E said that the father denied any formal past psychiatric history.

35. Of the relationship, Dr E reported that the father said that the mother saw everything in terms of his drinking and that the problems were entirely on his side of the table and that the mother was disinclined to admit her own problems.

36. Most importantly, under the heading of “Insight”, Dr E reported:

    [The father] demonstrated some insight as to his drinking behaviours being linked with hurt and disappointment.  The degree to which prior drinking behaviours are linked to earlier unmet emotional needs however may not be fully understood by him.

1. Of both parties, Dr E said that in addition to the alcohol problem of the father, there were issues in relation to the over-protectiveness of the child by the mother.  That issue was unclear.  As for the father, there was no doubt in Dr E’s mind that he genuinely cared for this daughter and had a close bond with her and presented with no signs of any psychiatric condition that would prevent him from proceeding to overnight and further contact with the child.  However, Dr E reported that the Court would need to decide whether or not the father’s drinking problems were long-standing and much greater than he would care to admit.  If they were in fact a problem, the Court needed to be careful about a step by step introduction over a prolonged period and that drug and alcohol counselling may not only be of assistance, it may be necessary.

2. Only weeks later, the parties saw psychologist Mr T.  He said of the father that he minimised the impact of his alcohol use and that he was disingenuous about the extent to which alcohol dependence had already disrupted his life.  Mr T gave credit to the father for having ultimately owned up about the matter but it does leave one wondering just how much he understands about the problem and whether it really has gone away bearing in mind the matters to which Dr E referred above.

3. Mr T commented that the question of changing behaviour was more important than simply trying to explain it away.

4. Mr T met the mother and again she expressed overwhelming concern about alcohol abuse.  Mr T said that it was the principal factor that precipitated the separation and remained the primary impediment to a resolution of the future relationship between father and daughter.

5. The mother told Mr T that she wanted the contact to be supervised and expressed reservations about the capacity of the paternal grandparents to undertake that task.

6. I think it is important to set out the view that Mr T took of the mother.  He said:

   My sense was of a woman whose concerns for her daughter’s safety were realistic, and who was prepared to go to some lengths to address them if she did not feel they were being managed otherwise.

7. Mr T observed the child with the father but also the mother.  He said she recognised her father and seemed genuinely happy to see him moving to him without any separation anxiety signs.  There were no signs of acting out or disruptive behaviour and the father managed the child well and affectionately.  Interestingly, when that session was concluded, the child returned to her mother with ease and he concluded that the child seemed reassured that her mother’s absences were temporary.

8. Mr T opined that there should be substantial and significant time with the father to allow their relationship to consolidate and flourish but about his alcohol issues, Mr T said:

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

9. Mr T then went on to say:

   Sustained full remission from alcohol dependence is clinically demonstrated by the absence of defining criteria for substance dependence or abuse over a twelve month period.

10. It is quite clear that on any view twelve months of absence has not passed by.

11. Mr T considered that supervision in the form of monitoring was necessary until such time as a treating practitioner had been engaged for a sufficient period of time to be able to certify that dependence was not present.  On this issue, I asked both Dr E and Mr T about that professional opinion.  Dr E told me that it was common knowledge within the medical profession about just what was needed and that when he was read a letter from the treating general practitioner for the father, he said that that was not a certification of the type that he was envisaging.

12. Mr T was very strong in saying that the certification by a general practitioner who knew the father and had been in constant contact with him was what was really needed.

13. Mr T said that:

    If these conditions are in place, the strength of the bond between [the child] and her father, […], is already such that I would suggest that the time [the child] spends with him could be increased to include overnight stays immediately without detriment to her development.

14. Fundamentally therefore, whilst Mr T was happy to recommend overnight time between father and daughter over six months ago, the conditions for that to occur have not been implemented.  Until such time as that occurs, it is hard for me to see how I could do otherwise than follow the advice of the two experts.

15. In his opening statement under oath, the father told me that he felt forced to have to come to court and that he wanted significant time with the child because she needed him and he needed her.  He said he understood that he had to go step by step and that he was willing to listen to what the experts had to say.  As for alcohol, he said it was a problem in the past and he acknowledged that he had the driving convictions and expressed that he was “worse than a bloody idiot”.

16. In her opening statement under oath, the mother said that she saw the care and safety of the child as the fundamental issue.  She had a concern about past drinking as well as violence and aggression in front of the child but drinking was the greatest problem.  She said she had a lot of trouble believing the father’s position. 

17. In their conjoint evidentiary session, Mr T and Dr E told me that the father was a binge drinker and that even at this stage, they would recommend that there be somebody present at the start and the conclusion of the contact periods to ensure that what the father said about alcohol was true. 

18. However what both experts agreed was that the father needed to produce some credible evidence of the type to which I have referred about alcohol management.  The father pointed to the general practitioner report but as I have pointed out, it does not resolve the issue. 

19. Counsel for the mother highlighted the fact that the father had not been candid with Dr E nor with Mr T but in respect of the latter had been caught out.

20. I express at this point, a concern that the father does exude confidence in his own ability to handle the problem.  In fact, as I perceive it, he says there is no problem.  He wants to focus on “moving on”; I do not have the same confidence that he understands the dilemma.  That was highlighted by Dr E in the observation he made to which I have already referred about the insight of the father.

21. Mr T said that the father was minimising the drinking issue.  I agree.

22. Dr E said that the father was not admitting his problem about his medical background or being aware of his drinking problem being a concern.  He felt that before his assessment could be soundly accepted, he, Dr E, needed to know all of the history and he had not been provided with that. 

23. The father said that he had done the blood tests and proved his point but he humorously acknowledged that he did not do the blood test after his birthday drinking session because he knew what the result would have been.  In my view, that epitomises the problem. 

24. On an interim basis therefore, I have to still deal with the legal issues.  Simply put, equal shared parental responsibility is not an issue because I cannot determine how it would work and for that purpose, I rely on s 61DA(3).

25. In respect of the time issue, the applicable law is let out in s 60B, s 60CA and s 60CC. 

26. The father’s position is that we should immediately move to an alternate weekend from 9.00am Saturday to 5.00pm on Sunday plus each Thursday from 10.00am to 6.00pm. 

27. The mother’s position was that a counsellor ought to be appointed nominated by the Independent Children’s Lawyer who was qualified in alcohol counselling.  Her position is that should be reportable and in my view, there ought to be an agreed onus on that counsellor to be proactive and report progress including negative issues associated with the father’s behaviour.  In so far as any such counselling might be seen as therapy and therefore better not to be placed under scrutiny, I reject such a concept.  The welfare of the child is paramount in a case such as this and having regard to the reservations expressed by the experts, I cannot see how anything ought to be other than transparent.  To a very large degree, the father agreed but expressed the concern that as he now had no licence and lived some considerable distance away from the city, getting to the appropriate person may be difficult particularly having regard to the fact that he had already developed a relationship with a particular counsellor who apparently has the qualifications.  I indicated that that was a matter for the Independent Children’s Lawyer. 

28. The mother’s position is that until the matter is clarified and determined properly, the father should see the child on Tuesdays and Thursdays in one week and Thursdays and Saturdays in the other week.  That proposal was put on the basis that Saturday is difficult for the mother because she has no assistance for her older daughter.  However, if the father could not get a professional person to collect the child, the mother would agree to one of three named brothers of the father.  They could then do the collection and return and that gave the mother an alternate weekend with her children.

29. Mrs Hooper for the Independent Children’s Lawyer pointed out the dilemma of making too many obligations during the week days because it impacted upon the father who already had problems without a licence.  The father is a licensed tradesman conducting his own business.  Against that, there is the problem that the father pays nominal monthly child support.  I indicated to him that I was not interested in the assessment but in his capacity to make a meaningful contribution towards the support of the child.

30. The dilemma I face is that any movement of the days creates a problem for either or both parties.  I am concerned also however because of the age of the child that the relationship continues with the frequency that has been occurring until now.

31. It goes without saying however that I could not countenance an overnight period at this time under any circumstances having regard to the reservations of each of the experts to which I have earlier referred.

32. Mr Weil on behalf of the mother indicated that the mother would accept the brothers doing the travelling on the Saturday on condition that the father was not present.  I think that is unduly restrictive and unnecessary having regard to the fact that there are now injunctions in place but I propose to adopt the suggestion of the Independent Children’s Lawyer that the mother be restrained from going to the car and the father be restrained such that he remains in the car whilst the handover occurs.

33. In relation to the brothers, I asked the father whether he would agree to his brothers being the appropriate transporters of the child and he was hesitant if not reluctant to agree.  He said there should be any number of people including his mother but as I pointed out, they were the only three named persons acceptable to the mother.  Having regard to the lack of any meaningful relationship between the parties at this stage, I do not think that any further uncertainty in relation to the handover can be positive or helpful to the ongoing relationship between father and daughter.  For that reason, I think it is sensible to have a limited number of persons involved.  In so far as all of the brothers are unavailable, the onus will be on the father to be in touch with the Independent Children’s Lawyer to seek some alternative negotiated solution.  If that is not workable, then the parties will have to return to the B Centre and go through the unpleasant formalities of the changeover there.

34. Fundamental to the position of the Independent Children’s Lawyer is the fact that she would not recommend overnight time between father and daughter at this stage.  That almost seems common sense having regard to the reservations expressed by the two experts.  Although the father may see that as hampering his “moving on”, I have serious reservations about his capacity to care for the child if he were affected by alcohol and despite all his protestations that he has that problem under control, I am left with the experts saying that the father does not meet the accepted professional standard for the conquering of an alcohol problem.

35. As I earlier pointed out, ultimately any decision I make has to be determined upon the basis of what is in the best interest of the child.  Section 60CC sets out how I am to determine what is in the best interests of the child and in particular says that I must take into account all of the matters there set out. 

36. This is clearly a case in which the child’s views cannot be taken into account having regard to her age. 

37. I am satisfied that there is a good relationship between each of the parents and the child albeit at this stage, the relationship between the father and the child is limited.  The evidence at this stage is that the mother is willing to foster the relationship between the child and the father but is reticent to move quickly because of the alcohol issue and having regard to what I have heard in evidence, that position must be seen to have been justified to this date.

38. Section 60CC requires that I take into account the likely effect of any change in the child’s circumstances and in particular the separation from a parent.  Mr T told me that he did not see any reason why the child would undergo separation anxiety if she spent time other than what is currently occurring but in reality, that is still something of an unknown.  Without the evidence being properly and fully tested, it is hard for me to see how I could say that the child would not be adversely affected by the separation from her mother for periods longer than that which had occurred to date.  That is not to say that Mr T is incorrect about overnight contact nor that it ought not appropriately occur in the foreseeable future.  It simply means that at this stage, I am not comfortable about the evidence as to what would happen to the child if she separated from her mother for the period proposed by the father.

39. A significant issue in this case is the capacity of each of the child’s parents to provide for the needs of the child.  It is a significant problem because of the alcohol issue.  The father is now without a licence and that complicates the matter.  Because of that, I am not able to say that anything more than what is currently occurring is appropriate.

40. As for the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents, I can find no evidence at this stage about which I could criticise the mother.  The father certainly raises issues about her desire to be over-protective of the child but that is a matter that will need to be tested in the fullness of time on the evidence.  As for the father however, I do not know just how responsible he would be having regard to the alcohol issue.  Whilst he might say that he would not drink whilst he is responsible for the child, the unknown question is whether or not he has his alcohol problem permanently under control and for that reason, I am obliged to be cautious.

41. Section 60CC requires that I also take into account family violence and family violence orders.  The parties have agreed on an order in circumstances where their current relationship is clearly not good.  Undoubtedly, the conflict which the child presumably witnessed has not impacted adversely upon her at this stage because she is quite content to travel between her mother and father as observed by Mr T.  However, in respect of any extended period of time between the child and the father, I would need to be satisfied that there is some reasonable level of ability to communicate with each other without the relationship descending into chaos in circumstances where each has a considerable role in bringing up the child in the future.  On the current state of the relationship regardless of who is responsible for it, I could not be satisfied that the child’s best interests would be served by putting her in a position where she was away from her mother and if something went wrong, or there needed to be communication about her needs during that period of time, that they would be successfully communicated between the parties.

42. Because of the alcohol issues and the mother’s problems in caring for the older daughter, I am not prepared to make any findings of the type set out in s 60CC(4) and (4A) until the evidence is properly tested.

43. Section 69ZQ(1)(a) requires that I must decide which of the issues in the proceedings require full investigation and hearing and to my mind, the fundamental stumbling block for this case to proceed further is the alcohol issue.  I want to make clear that that does not mean that a simple certification by an alcohol counsellor overcomes all of the problems making the determination easy.  Quite the contrary, but I am not able to be confident that anything other than the limited period of time thus far ordered is appropriate for the child.

44. Accordingly, I propose to make the orders in relation to the time to be spent as I have set out.

45. As for where the case proceeds in the future, I make it clear that it is not to be relisted for the resumption towards a final hearing until such time as the Independent Children’s Lawyer advises my associate that all of the evidence is now available and that a determination can properly be made upon that evidence.  I will clearly give the parties liberty to apply in the event that there is a dispute about that.

46. I have also discussed with the parties the question of what evidence is to be canvassed at that final hearing and I will say no more than the issues about which I am concerned are those set out in s 60CC(b), (c), (d), (f), (i), and (j).  That evidence should be gathered now but does not need to be filed until the alcohol issue in some way is sorted out. 

47. As I canvassed with the parties, it may very well be that the counsellor says that the relationship between that person and the father may take time.  If that be the case, these orders will remain until such time as the situation otherwise changes.

48. I have also indicated that the mutual injunctions made on 4 January 2007 cover not only the parties but their servants and agents.  To that extent, if there are problems associated with the orders working, rather than the father involving members of the police force as he has in the past, it seems to me preferable that the matter be brought back to court and I will retain control of the matter until such time as it is finalised.  It goes without saying that these orders require the mother to notify the father in the event that there is a problem with the child being handed over.  The obligation will be on her to ensure that he is told well in advance and to that extent, although I do not order it, the parties might like to investigate SMS or email communications to assist them.

I certify that the preceding Eighty Four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 January 2008