DODD & MOSER
[2019] FCCA 1060
•18 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DODD & MOSER | [2019] FCCA 1060 |
| Catchwords: FAMILY LAW – Parenting – where children almost 17 and 15 – children live with father and want this to continue –older child refuses all time with mother – agreed not appropriate to require older child to spend time with mother – younger child wants to maintain current time arrangements with mother – mother wants more time with younger child – mother admits past alcohol abuse but denies current issue – CTD testing indicates current alcohol abuse issues – father seeks sole parental responsibility – mother seeks equal shared parental responsibility – sole parental responsibility allocated to father – restraint on mother consuming alcohol when child in her care continued –younger child’s existing time with mother continued. |
| Legislation: Family Law Act 1975 (Cth), ss.61DA, 65DAA, 60CA, 65AA, 60B, 60CC |
| Applicant: | MR DODD |
| Respondent: | MS MOSER |
| File Number: | SYC 6430 of 2015 |
| Judgment of: | Judge Bruce Smith |
| Hearing dates: | 29 January 2019, 30 January 2019, 8 March 2019 |
| Date of Last Submission: | 8 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Todd |
| Solicitors for the Applicant: | Boyce Family Law & Mediation |
| Counsel for the Respondent: | Mr Wilkinson |
| Solicitors for the Respondent: | Winder Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Greenway |
| Solicitors for the Independent Children’s Lawyer: | John Spence & Associates |
FINAL PARENTING ORDERS
Discharge all existing parenting orders.
Parental responsibility
Mr Dodd (DOB … 1971) (“the father”) have sole parental responsibility for [X] (DOB … 2002) (“[X]”) and [Y] (DOB … 2004) (“[Y]”) (together “the children”), subject to the following conditions.
(a)The father is not to change the location of the children’s residence in a way which would interfere with the arrangements for the children to spend time with the mother set out below, without the prior written consent of the mother or an order of the Court; and;
(b)The father is to notify Ms Moser (DOB … 1974) (“the mother”) by text message at least four weeks in advance of implementing a change in respect of any major long-term issues including, education, religious or cultural upbringing, a child’s name, or health. However, in relation to any health issue which requires urgent action the father may act without notice but shall then provide notice as soon as is reasonably practicable in all of the circumstances.
Live with father
The children are to live with the father.
[X] – no time with mother
[X] is not required to spend time with nor communicate with the mother.
[X] may spend such time with the mother and communicate with the mother as [X] wishes, and the mother may communicate with [X] in accordance with [X]’s stated wishes from time to time, and the father is to do all things reasonably necessary to support and facilitate [X] spending time with the mother or communicating with the mother, if and when [X] wishes to do so.
[Y] –time with mother
Unless otherwise agreed between the parties in writing, [Y] shall spend time with the mother as follows:
(a)Every fourth weekend during all New South Wales school terms from Friday at 4:30 PM until Sunday at 4:30 PM.
(b)During the inter-term school holidays from 4:30 PM on the Sunday of the last week of school until 4:30 PM on the following Sunday.
(c)Unless otherwise agreed between the parties in writing, for the purpose of facilitating [Y]’s time with the mother under Orders 6(a) and (b) above, the mother shall collect [Y] from the father’s residence at the commencement of the time with the mother, and the father shall collect [Y] from the mother’s residence at the conclusion of the time with the mother.
During the Christmas school holiday period [Y] shall spend time with the mother as agreed between the parties in writing, or failing agreement;
(a)from 11 AM on Christmas Day until 5 PM on Boxing Day, with the father to deliver [Y] to the mother’s residence at the commencement of the time, and the mother to deliver [Y] to the father’s residence at the conclusion of the time and;
(b)from 10 AM on 9 January each year until 5 PM on 22 January each year, with the mother to collect [Y] from the father’s residence at the commencement of such time and the father to collect [Y] from the mother’s residence at the conclusion such time.
[Y] is to spend such additional time with the mother as [Y] wishes and may communicate with the mother as [Y] wishes and the mother may communicate with [Y] in accordance with [Y]’s stated wishes from time to time, and the father is to do all things reasonably necessary to support and facilitate [Y] spending such additional time with the mother and communicating with the mother, if and when [Y] wishes to do so.
Restraint on consumption of alcohol - mother
The mother is restrained by injunction from;
(a)consuming alcohol at any time within a 24-hour period immediately preceding the time [Y] spends time with the mother, and
(b)consuming alcohol at any time while [Y] is spending any time with the mother, whether or not she is in [Y]’s presence during that time.
The mother is restrained by injunction from;
(a)consuming alcohol at any time within a 24-hour period immediately preceding the time [X] spends time with the mother, and
(b)consuming alcohol at any time while [X] is spending any time with the mother, whether or not she is in [X]’s presence during that time.
General
Each party is hereby restrained by injunction:
(a)from discussing these proceedings within the presence or hearing of the children;
(b)from making derogatory remarks about the other parent in the presence of or hearing of the children and on any form of social media;
(c)from causing or facilitating any other person to engage in the activities referred to in (a) and (b) above; and
(d)to take all reasonable actions available to them to cause any other person engaged in the activities referred to in (a) and (b) above, to cease.
Each party shall provide the other with details of their contact telephone number and their residential address within 7 days of any change to such details.
These orders may be provided to the principal of any school attended by the children, and are sufficient authority for the school to provide to the mother, at her request, all reports, photographs, and notifications normally provided to parents. These Orders are not to be published by the principal or the school.
NOTES
A.The Court asks the Independent Children’s Lawyer to explain the Court’s orders and, where relevant, reasons to the children.
IT IS NOTED that publication of this judgment under the pseudonym Dodd & Moser is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6430 of 2015
| MR DODD |
Applicant
And
| MS MOSER |
Respondent
REASONS FOR JUDGMENT
A: Introduction
This case is about [X] and [Y]. [X] is approaching 17. [Y] is 15. Their parents are Mr Dodd (“the father”) who is 47 and lives in Sydney with the children, and Ms Moser (“the mother”) who is 44 and lives in Town A.
The issues narrowed significantly during the course of the hearing. The remaining issues are whether there should be equal shared parental responsibility or sole parental responsibility to the father, whether [Y] should spend a little more time with the mother than he currently does, and whether the complete restraint on the mother’s drinking whilst [Y] is with her should be maintained or varied to merely prohibit “intoxication”.
B: Agreements
Live with the father
Both children live with the father in Sydney. Their view is this should continue. It was agreed that given their ages their wishes should be respected.
Time with mother
There are consent interim orders dated 1 November 2016 in place for the children to spend time with the mother in Town A every fourth weekend during school term, for one week of all inter-term school holidays, from 9-22 January each Christmas holidays, and for time on Christmas / Boxing Day each year.
[X]
[X] now refuses to spend time with the mother. It was agreed that given [X]’s age her wishes should be respected.
It was also agreed that [X] should be encouraged to spend time with the mother as it would be in her developmental interests to do so, and that the father should facilitate such time if [X] does wish to re-engage with the mother. It would also be in [Y]’s best interests if [X] were to voluntarily spend some time with [Y] and the mother in Town A to support [Y]’s maintenance of his relationship with his mother.
The Independent Childrens Lawyer is asked to explain the orders and this section of the Judgment to [X] and to encourage her to voluntarily re-engage with the mother for her own sake and for [Y]’s benefit.
C: Outstanding issues
Parental responsibility
The father and the Independent Children’s lawyer proposed that the father should have sole parental responsibility. The mother proposed that there should be equal shared parental responsibility.
[Y]’s time with the mother
[Y] has been spending time with the mother as ordered. He wants that to continue. He does not want to be required to spend more time with the mother. The father and the Independent Childrens Lawyer submitted that [Y]’s views should be respected.
The mother’s proposal was that [Y]’s weekends be increased to every 3rd weekend during school term from the current regime of every 4th weekend, and that he spend half of each Christmas holidays with her rather than the current two weeks.
Restraint on the mother consuming alcohol
The mother admits a history of alcohol abuse. There is an issue about whether this continues. The existing orders include a condition restraining the mother from consuming alcohol in the 24 hour period preceding and when the children are in her care. The father and the Independent Childrens Lawyer submitted this restraint should be maintained. The mother submitted it should be varied to a restraint against “intoxication”, to be defined by reference to the 0.05 blood alcohol concentration criteria applicable to the driving of a motor vehicle in NSW.
D: Background
Relationship history
The parties met in the late 1990’s. The mother was living in Town A and the father in Sydney. The parties commenced cohabitation in rental accommodation in Sydney. In about November 2001 the parties separated and the mother relocated to Town A. [X] was born in … 2002. The parties resumed the relationship in about … 2002, with the mother remaining in Town A and the father in Sydney. [Y] was born in … 2004. The parties continued their relationship with the father living in Sydney and spending three out of four weekends in Town A until separation in June 2015.
Court proceedings commenced in 2015. Consent orders were made for the children to live with the father and spend time with the mother on 1 November 2016.
The mother alleges a long history of serious family violence commencing early in the relationship, witnessed in particular by [X]. The father denies these allegations. The father alleges conduct by the mother which would constitute family violence arising out of her admitted alcohol abuse, which is considered in detail below. This is denied by the mother.
The mother alleged that the father had intentionally alienated [X] and [Y] from her. The father denies this. He points to the mother’s alcohol abuse as the explanation for the nature of the children’s relationships with the mother.
The factual disputes upon which the parties were focused in their trial affidavits, and also in their oral evidence and cross examination during the hearing, were primarily directed to their differing versions of the long running conflicts between them. Their evidence was focussed on who was at fault, or more at fault, for what had transpired, including their mutual allegations of conduct amounting to family violence and alienation.
Given the agreements reached, the relatively narrow scope of the three remaining issues, the parties agreement that the children’s views were the single most important additional factor, and the availability of the evidence of the Family Consultant, the determination of the many factual disputes between the parents are not necessary to determine the outstanding issues.
The remaining relevant factual issues between the parties are the nature and extent, if any, of the mother’s ongoing alcohol abuse problem, and whether or not [X]’s alienation from the mother is the result of the father’s intentional alienation or the mother’s prior alcohol abuse.
As it is not legally necessary to determine the many other factual contests I will not do so.
E: Family Consultant’s opinion
The children were interviewed by Ms B, a Family Consultant. The children told her their views and wishes and she recorded these in a Family Report dated 30 May 2017 together with her observations and expert opinions and recommendations. She was called and, very briefly, cross examined by counsel for all parties.
Family Report - [X]
At the time of the Family Report [X] was still spending the ordered time with the mother. [X] described a positive relationship with the father. She said that she was “more relaxed, doing better at school and more organised” while living with the father.
In contrast, she described living with the mother as “stressful”. She said her relationship with the mother was “not as good as it used to be” stating that she “used to be “close to mum”. She said that this was when she was younger and was not aware of the mother’s drinking and parenting issues. She explained that, as she grew older, she became more aware of the issues with the mother and felt “let down” by her. [X] said that after learning that the mother had accessed her bank account she didn’t “trust her that much”.”
[X] stated that the mother would “get drunk a lot and argue with us, I felt like I was the parent”. Asked how often the mother was intoxicated [X] replied “maybe once a week”, and said that the mother was more argumentative when intoxicated, and would also cry a lot when intoxicated. When [X] was asked if she thought the mother had a problem with alcohol use, she said “yes, she can’t stop and has no control”. [X] said that when the mother was drinking, she “didn’t take care of us” and was “not running the house”.
[X] said that she was “hit sometimes, but rarely” by the mother and did not assert significant physical violence.
In terms of the alleged history of family violence between the parties [X] said that she has witnessed some of the arguments between her parents and that they were “loud”. She said that she had not seen any physical violence from either parent, but that she witnessed a lot of “shouting” between them towards each other.
She said that, on one occasion in 2015, she had called the father as she felt “unsafe” because the mother and [Y] were “fighting and Mum had been drinking” and that the father then called the police who attended the home.
[X] said she felt weekends with the mother were “stressful” and “not comfortable” because of the boarder living at the back of the mother’s house.
She said that the mother had not been intoxicated on the weekends she and [Y] had spent with her, but that arguments between them continued regardless.
[X] said that she would like her relationship with the mother to improve but did not feel that it would. She said that was because the mother was “not in the right state of mind” meaning that “sometimes (she is) sad, sometimes happy, it changes a lot”. [X] said that she felt the mother’s “moods are difficult to manage” and that she is “angry then okay”, and that this “makes me feel sad”.
The Family Consultant recorded that:
[X] expressed a clear wish to remain in the care of Mr Dodd and with [Y]. She said that, should there be an Order (sic) be made, in which she is placed under the permanent care of Ms Moser, that she “wouldn’t like it” because “it would be the same as before”. [X] expressed concern about the impact on her schooling if this happens and said that she does not want a further change of schools. [X] stated that she has “settled” in Sydney, that she has friends, and that living with Mr Dodd is “safe” and “stable” for her. [X] said that she only felt “safe” with Ms Moser “sometimes” and that this was dependent on Ms Moser’s “mood” which she finds “unpredictable.”
[X] told the Family Consultant that “Dad tries to encourage us with Mum”.
At that time [X]’s wishes were that the existing orders for her to spend time with mother be made into final orders.
Since then, however, she has changed her view. Although she spent time with the mother at Christmas just passed the Court was advised that she is no longer willing to voluntarily spend time with the mother pursuant to Court orders.
It is clear that [X] was significantly impacted by the mother’s alcohol abuse and its effects upon the mother’s emotional stability and parenting capacity, and that this has played a significant part in her alienation from the mother.
Family Report - [Y]
[Y] told the Family Consultant that when he was living with mother she was “stressed about everything and that makes me stressed”.
When asked about the mother’s alcohol use [Y] said that “Mum goes crazy” and that “she was always drunk”. He said that the father did not drink often. He said he was not really liking the current weekend arrangements because “I’m stressed because [the mother] is stressed”.
He said that he wanted to improve his relationship with the mother, and that she could assist with this if she could “stop smoking and stop stressing out”.
In terms of his feelings of safety he reported no issues with the father but reported an occasion where “Mum was drunk, she was fighting with [X]” and the mother then also became angry with him and that he felt “unsafe”.
[Y] told the Family Consultant that:
[Y] said that (sic) seeks to remain in the permanent care of Mr Dodd as he feels this is the best arrangement for him. He said that he would like the current Order for spending time with Ms Moser to be made the final Order. [Y] said that he is settled with his father and has made friends. [Y] when asked said that he does not have any concern in travelling to Town A once per month. He said the (sic) he does not feel that the distance or the car travel is an issue for him. [Y] said that he is happy to continue to have telephone communication with his mother.
It is clear that [Y] was also significantly impacted by the mother’s alcohol abuse and its effects upon the mother’s emotional stability and parenting capacity.
Family Report - conclusions
At the time the Family Consultant prepared her report she recommended equal shared parental responsibility, that the children live with the father, and that the children spend time with mother in accordance with the interim orders.
Family consultant – oral evidence
The Family Consultant was provided with the trial affidavits and exhibits and was made aware of [X]’s refusal to spend time with the mother. She was also provided with an outline of the three issues still in dispute.
She agreed that [X] should not be forced to spend time with the mother against her wishes. She stated that it would be appropriate to ensure that [X] was informed that that she may spend time with the mother as she wishes.
She accepted that there was a risk that if orders were made that were inconsistent with [Y]’s views he might resist compliance, which could negatively impact on his willingness to spend any time with the mother, but said that she could not assess the extent of that risk without having had recent contact with [Y].
Based on the trail affidavits and exhibits and a summary of the evidence provided to her by counsel for the Independent Childrens Lawyer, which was not objected to, the Family Consultant stated that in her opinion the mother’s alcohol consumption was still a matter for concern, noting in particular the CDT testing (considered further below). She agreed that the children were both acutely sensitive to the mother’s drinking.
While at 15 years of age [Y] would not be at risk of physical harm or neglect from the mother’s alcohol consumption in the way a younger child would be, the Family Consultant agreed that the mother’s drinking in [Y]’s presence posed a risk of negatively impacting his perception of the mother, which could further damage the relationship, or worse cause [Y] to terminate the relationship entirely as [X] had.
She agreed that in the context of the mother’s history of alcohol abuse and its impact on the children that a total restraint on consuming alcohol in their presence was appropriate, and would help to engender trust and to maintain and possibly repair the relationship between [Y] and the mother.
In terms of the alleged alienation of the children she stated that intentional alienation is usually more “black and white” than the positions of the children when she interviewed them, noting both children at the time were open to repairing their relationship with their mother.
The Family Consultant stated that the children’s poor relationship with the mother could be the result of the mother’s alcohol addiction, but could also have been influenced by to the father’s poor attitude towards the mother which had been conveyed to them, or could be a combination of both.
F: Mother’s alcohol use
Mother’s case
The mother admitted as part of her case that she had “drifted into alcohol abuse”. It was put to the father that this occurred while she was living with him and as a consequence of his behaviour. He denied that.
While the mother frankly admitted her alcohol addiction problems, she dealt with this as a historical issue and did not concede that it was a matter of current concern.
Carbohydrate deficient transferrin (CDT) testing
Because of the concerns regarding her alcohol use the mother undertook a series of tests to detect carbohydrate deficiency in the transferrin in her blood stream. The results were tendered by the Independent Children’s Lawyer without objection.
The reports tendered noted, inter alia, that:
CDT levels become elevated in most individuals consuming at least 60g of alcohol on more than 14 consecutive days. The half-life of CDT is approximately 14 days. False positives can occur, particularly in severe liver disease, or certain rare glycoprotein abnormalities. (Transferrin- D variants and Carbohydrate Deficient Glycoprotein Syndrome). Some paraproteins may interfere with the reading of CDT.
Because CDT levels correlate with excessive alcohol intake, as set out above, CDT testing is commonly ordered in parenting proceedings in this Court when alcohol consumption is an issue. That is what occurred here.
While there was no forensic pharmacological expert evidence interpreting the CDT test results, the reports themselves contain sufficient information and analysis to constitute a reliable piece of factual evidence. On that basis as a matter of practice this Court commonly accepts this testing as a valid proxy establishing excessive alcohol consumption, in the absence of evidence that might suggest a basis for a false positive result.
The table below summarises the CDT evidence tendered as exhibit ICL 3. It sets out the date a test was requested, the date the sample was collected, the date the result was reported, the CDT percentage of the tested sample, and the Report Comment. I note that the first test involves the collection date 14 days after the request, which reduced the reliability of that result.
Requested
Collected
Reported
%
Report comment
9/8/2016
25/8/2016
29/8/2016
1.0%
[no comment recorded]
23/9/2016
23/9/2016
29/9/2016
2.4%
“Although raised, this CDT is not high enough to indicate probable recent alcohol excess.”
1/12/2017
1/12/2017
7/12/2017
2.9%
“This raised CDT result indicates probable recent or ongoing excessive alcohol intake.”
8/8/2018
10/8/2018
23/8/2018
5.0%
“This raised CDT result indicates probable recent or ongoing excessive alcohol intake.”
Unknown
27/9/2018
27/9/2018
2.7%
“This raised CDT result indicates probable recent or ongoing excessive alcohol intake. The level has fallen significantly from the previous month, consistent with a substantial reduction in the amount of alcohol being consumed by the subject.”
No objection was taken to the tender of this material. Argument proceeded on the basis that the Court could rely upon this material as evidence of the mother’s likely alcohol intake in the periods tested.
I am satisfied that the above test results are reliable evidence that the mother continued to engage in excessive consumption of alcohol across at least parts of 2017 and 2018. The reading of 5% reported in August 2018 is of particular concern noting the comments in September 2018 that despite a “substantial reduction in the amount of alcohol being consumed…” the reading of 2.7% then recorded still indicated probable recent or ongoing excessive alcohol intake.
Taking into consideration the mother’s concession that she had previously engaged in chronic alcohol abuse, the children’s evidence to the family consultant on this topic, the results of the CDT testing, and that the mother did not say that she had only very recently managed to become abstinent but rather suggested her drinking was controlled during the periods covered by the CDT testing, I do not accept the mother’s evidence and subsequent submissions that her alcohol abuse was a past problem and that she has now controlled her alcohol consumption to the point where she can drink without it adversely impacting on her parenting capacity.
To the contrary I find, on the balance of probability, that the mother continues to have an alcohol addiction which is not fully controlled or in remission and which when engaged would adversely impact on her capacity to parent the children.
G: Children’s views and possible alienation
The mother alleges that the father has intentionally alienated the children from her, and that is a substantial part of the factual basis on which she seeks equal shared parental responsibility.
I am satisfied by their statements to the Family Consultant that the children’s relationship with their mother has been impacted by her alcohol abuse and its impact on her emotional stability and parenting capacity when drinking. I am satisfied that the children’s views about the mother and their wishes are clear and firmly held and are rational in view of their experience of her alcohol abuse.
I accept the Family Consultant’s opinion that it is not possible to exclude the father’s negative views of the mother as a factor influencing their views.
However, given the mother’s admitted history of alcohol abuse, the children’s histories to the Family Consultant of the impact of that alcohol abuse upon them, the Family Consultant’s oral evidence that the children’s views are not “black and white” as is commonly seen in cases of intentional alienation, and noting that [X] had been open to repairing her relationship with the mother at the time of the Family Report and that [Y] still retains his relationship with the mother and has not been entirely alienated from her, I am satisfied on the balance of probabilities that the children’s wishes as expressed to the Family Consultant should be accepted as a genuine reflection of the views they have formed as a consequence of their own observations and experience of the effects of the mother’s abuse of alcohol.
To the extent that it is relevant I do find that the father has probably communicated his negative view of the mother to the children and that this has not assisted the situation.
However, I do not accept the mother’s submission that the father advised the children to contact him if they felt they needed assistance because the mother was drinking contrary to Court orders was tantamount to his sending them to spy on her and making them anxious about her drinking. In context it was a reasonable statement to them.
Nor do I accept that the mother’s submission that the children reporting back to the father her breach of the order against drinking was evidence of their alienation by the father. In the context of the children’s past experiences with the mother’s drinking, which was the basis of the order restraining her from drinking in their presence, I find that their reporting of her drinking to the father was instead evidence that they remained highly sensitive to the issue.
I find on the balance of probabilities that the predominant cause of [X] and [Y]’s decision to live with the father, and of [X]’s decision not to spend time with the mother, is the mother’s long term and ongoing alcohol abuse.
H: Legal framework
This is a parenting proceeding pursuant to Part VII of the Family Law Act1975 (Cth). There is a rebuttable presumption of equal shared parental responsibility (s.61DA). Where that presumption is not rebutted a consideration the child spending either equal or substantial and significant time with each parent is required (s.65DAA). The allocation of parental responsibility and the determination of the time a child is to spend with each parent is to be determined by reference to the best interests of the child which is always the paramount consideration (ss.60CA, 65AA, 60B).
The child’s best interests are to be analysed first in light of the two primary considerations, being the need to protect the child from physical or psychological harm, and the benefit of a meaningful relationship with each parent. The additional considerations, which cover a wide variety of factors which may impact on the child’s best interests, must also be considered (s.60CC). The applicability of and weight to be given to each additional consideration will vary depending on the facts in each case.
The determination of what is in the best interests of a particular child is not, unfortunately, a matter allowing of scientific precision. The finding will depend upon the unique facts of each case and a careful weighing of those facts, within the legislative framework, to determine that child’s best interests.
I: Decision
Parental responsibility
The presumption of equal shared parental responsibility is rebutted where it is not in the best interests of the child. One significant factor is whether or not parental responsibility can in practice be jointly exercised by the parents.
The evidence overwhelmingly established that not only is there no trust or respect between these parents, but that they cannot communicate or co-parent effectively. This was common ground.
The father and Independent Children’s Lawyer submitted that in these circumstances the only practical solution is for one parent to exercise sole parental responsibility, and that here that would be the father with who the children choose to live. Further, and in the alternative, it was submitted to be impractical and inappropriate for the mother to exercise parental responsibility for [X] in particular and also for [Y] given their views.
The mother submitted that there should be equal shared parental responsibility despite the inability to co-parent. This was largely on the grounds that, in effect, she should not be punished and the father should not be rewarded in circumstances where she alleged he engaged in both family violence and intentional acts of alienation. She was also concerned this would send a message to the children that she did not love or was not interested in them.
I find that it is not reasonably practical for these parents to exercise equal shared parental responsibility given they cannot communicate or co-parent. The presumption in favour of equal shared parental responsibility is displaced. In this case the father, with whom the children choose to live and have a better relationship, is the parent who can practically exercise that sole parental responsibility. It would also be inappropriate to allocate sole parental responsibility to the mother for [X] in the current circumstances.
It is important to emphasise that the decision in respect of parental responsibility is not about rewarding or punishing either parent, nor is it a message to the children about who loves them more. It is about putting in place the legal regime which is most likely to promote the best interests of the children taking into account all relevant factual and legal matters. The Court asks the Independent Children’s Lawyer to explain this to the children.
The father accepted that it would be appropriate not to exercise his parental responsibility to move residence in a way which would interfere with the time with the mother being ordered, and that it would be appropriate to advise the mother of any major long term decisions prior to making them, except when urgency makes that impractical.
Restraint on the mother consuming alcohol when children present
Neither parent alleged that the children are at risk of physical abuse or of intentional emotional abuse whilst in the other parents care. All parties agreed that there is, or would be, a real benefit to the children in having a meaningful relationship with both parents, to the extent to which that can be achieved.
The only safety issue raised was the mother’s drinking. This goes to the primary considerations of protecting the children’s psychological wellbeing, and also to promoting a meaningful relationship.
The father and the Independent Children’s Lawyer submitted that the mother’s drinking created an unacceptable risk of psychological harm to [Y], or the children should [X] re-establish a relationship with the mother, when in the mother’s care. It was submitted that that risk was not an unacceptable one, but rather one that could and should be managed by continuing the existing order that the mother not consume alcohol in the period of 24 hours prior to and during the time the children are in her care. They relied upon the Family Consultant’s opinion in particular.
It was also submitted, given the mother’s history of alcohol abuse and the children’s clear sensitivity to that issue, that if they are with her and she starts drinking at all, even if not to intoxication, that could cause the children stress and also lead to a refusal to spend time with her.
While the mother candidly admitted a long-term and significant history of alcohol abuse her submission was that this is now under control so that the complete restraint against drinking is no longer required. The mother also submitted that the proposed restraint was not fair and would send a message to the children that she could not be trusted. Her submission was that a restraint against intoxication would be sufficient.
As noted above the mother still has an issue with alcohol consumption. I find that there is a genuine risk of psychological harm to [Y] if the mother is permitted to drink in the 24 hours prior to his attendance or while [Y] attends for time with her. I also consider that there is a real risk that [Y] might refuse further time with the mother if she drinks when he is spending time with her or appears to have been drinking when he arrives, even if she does not drink to the point of intoxication. I find that the risk is not unacceptable so long as the existing restraint is continued.
Given the history of her admitted significant problems with alcohol I do not accept that this is unfair, and in any event any such unfairness cannot outweigh the need to protect [Y]. I do not see how maintaining this restraint could lower the mother in [Y]’s estimation, given his past experiences of her drinking. To the contrary, I find that there is little risk of the mother falling lower in [Y]’s eyes by reason of his knowing that the existing restraint against her drinking alcohol when he is present is continuing. The reason for that order is already known to him. The real risk is of the mother drinking whilst with [Y] and his losing faith in her capacity to refrain from drinking and to maintain her sobriety when he is present which might cause him to terminate the relationship.
I will make an order in similar terms to the existing constraint on alcohol consumption by the mother. I will make a similar order for when [X] is in her care in case [X] changes her mind and is willing to spend time with the mother.
[Y] – time with mother
Fortunately [Y]’s relationship with the mother still subsists and he has been spending time with the mother in Town A pursuant to the interim orders.
The father and the Independent Children’s Lawyer submitted that at 15 years of age [Y]’s views were the only s.60CC additional consideration the court should take into account. The mother conceded that [Y]’s view was the single most important additional consideration for the court to consider, and did not make specific closing submissions on any other factor.
I am satisfied that in this case [Y]’s views are of such weight that they are the only additional consideration that should be taken into account.
The father and the Independent Children’s Lawyer submitted that in addition to respecting [Y]’s views consideration should be given to the risk that requiring [Y] to spend more time with the mother than he wants could have the unintended adverse effect of him deciding to refuse to spend any time at all with her. The Family Consultant acknowledged but could not quantify that risk.
The mother’s submission was that more time with her would be better to foster a meaningful relationship. I agree in principle that it would be better for [Y] to spend more time with her if he wanted to, as that would help with their relationship.
However, the starting point is the agreed position that the most significant factor for the Court to consider is [Y]’s wishes, which are to keep the current arrangements in place.
The next point is that, although [Y]’s time with the mother is not as frequent as might be ideal, or as might occur if the parties lived in the same city, there are still a number of weeks per year full-time living with the mother during school holidays and sufficiently regular contact during school terms to maintain a meaningful relationship, given [Y]’s age.
The current regime, though not ideal, is not insignificant given the distance between the parties and the impact on [Y] of being away from his local area and friends during these periods of time.
Weighing all of those matters I am satisfied that it is in [Y]’s best interests for him to be required to continue to spend time with the mother in accordance with the existing regime, and that it would not be in his best interests to require him to spend more time with the mother than he wishes, particularly given the real risk of an adverse reaction by [Y] to orders inconsistent with his wishes causing him to terminate the relationship with the mother completely.
I make Orders in accordance with these reasons.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Bruce Smith
Date: 18 April 2019
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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