Ellingford and Ellingford

[2016] FamCA 528

FAMILY COURT OF AUSTRALIA

ELLINGFORD & ELLINGFORD [2016] FamCA 528

FAMILY LAW – PARENTING – ENFORCEMENT – Where the father seeks the enforcement of a consent order – Where the father contends that the mother has not done all things necessary to obtain a place and treatment at a residential rehabilitation program – Whether the mother provided an accurate history to the rehabilitation program – Where the mother provided inconsistent information to the rehabilitation service compared to her oral evidence as to her alcohol consumption – Where it is held that it would not have made a difference to the mother’s acceptance into the rehabilitation program if she had provided information consistent with her oral evidence – Where the father’s application is dismissed

Family Law Act 1975 (Cth)

Biggs & Hurst [2014] FamCA 217
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Ellingford

RESPONDENT: Ms Ellingford

INDEPENDENT CHILDREN’S LAWYER: Ms Stanford

FILE NUMBER: PAC 1463 of 2012

DATE DELIVERED: 5 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 5 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Byles Anjos Lawyers

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors

Orders

1. The father’s Application in a Case filed 19 August 2015 be dismissed.

2. The Independent Children's Lawyer’s application for costs is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Ellingford & Ellingford 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 SYDNEY

FILE NUMBER: PAC 1463  of 2012

Mr Ellingford

Applicant

And

Ms Ellingford

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. At the centre of this dispute are the parties’ two children, B, born in 2003, who is currently almost 13 and C born, in 2006, who is 9 years of age (“the children”).

2. Their father originally made an application for a recovery order. The father changed that application to be only a backup position rather, seeking that I make some other type of further order for enforcement of a consent order that was made at the end a final hearing that took place before me in June 2015.

3. The relevant parts of the final consent orders made on 25 June 2015 are as follows:

   3.  That the children shall live with the mother from the date of these orders provided the mother completes her treatment pursuant to Order 4.

   4. That the mother forthwith do all things necessary to obtain a place and treatment at a [D Rehabilitation] residential program for admission to the program to treat co-existing mental health and dependency issues.

   5. That for the period of the mother’s treatment pursuant to Order 4 the children will reside in the mother’s home under the care and supervision of a responsible family member approved by the mother during each weekday and will spend time with their father on the weekends from after school Friday to before 6pm Sunday.

   …

   8. That in the event the mother does not comply with Orders 4 and 5 the children shall live with the father.

4. The father now seeks to enforce the consent orders. The issues that arise for determination are:

   4.1.Whether the mother provided an accurate history to D Rehabilitation (“D”) when applying for admission to their residential program;

   4.2.Whether the mother did all things necessary to obtain a place and treatment at D residential program; and

   4.3.Whether the mother’s behaviour triggers the provisions of order 8 made 25 June 2015.

5. The father seeks orders to implement order 8 made 25 June 2015. The mother resists such an order being made. The Independent Children's Lawyer submitted that order 8 was not triggered.  

BACKGROUND

1. Ms Ellingford (“the mother”) was born in 1971.

2. Mr Ellingford (“the father”) was born in 1971.

3. The parties commenced living together in 1994 or 1995 and were married in 1997.

4. Parenting proceedings were commenced in the Federal Magistrates Court (as it then was) in April 2012 and were transferred to the Family Court in November 2012.

5. On 31 August 2014 Dr E prepared a single expert report.

6. As indicated above, a final hearing which had commenced before me was settled on the fourth day by way of the consent orders that were made on 25 June 2015.

7. On 26 June 2015 the father’s solicitor communicated with the mother’s then solicitors requesting that they advise when the application for D was completed and the expected date of admission. Again on 2 July 2014 the father’s solicitor corresponded with the mother’s then solicitors requesting the same information.

8. On 20 July 2015 the father’s solicitor emailed the mother requesting that she advise of her progress in enrolling in the D residential program. They also stated, “Please note the terms of the order are that you enrol forthwith and failure to do so will result in a contravention application being filed.” The mother responded advising that she had been placed on a waiting list.

9. On 21 July 2015 the mother completed a telephone intake with D. On the same day, D sent a letter advising that the mother was not suitable for their services and would be better suited to outpatient treatment or counselling. The mother forwarded this letter to the father’s solicitor on the same day. 

10. On 22 July 2015 the father’s solicitor provided the previous Independent Children's Lawyer with the letter from D advising that the mother was unsuitable for the program.

11. On 27 July 2015 the father’s solicitor wrote to the wife informing her that her refusal to comply with the orders (by providing D with contradictory information to that which she provided in oral evidence) would result in the children residing with the father. The mother responded on 28 July 2015 stating, “I have contacted [D] and they are happy to discuss with you the definition of alcohol abuse that fits the criteria for enrollment (sic) in their program. There are no restrictions on any questions you may have regarding their screening process.”

12. On 7 August 2015 the father’s solicitor sent an email to the mother advising that unless she was accepted into the D program within seven days the father would relocate the children to Canberra.

13. On 10 August 2015 the mother corresponded with the previous Independent Children's Lawyer enclosing the letter from D advising that she was unsuitable for the program.

14. On 13 August 2015 the father’s solicitor wrote to the previous Independent Children's Lawyer advising of the father’s intention to relocate the children due to what he said was the mother’s misreporting to D.

15. On 14 August 2015 the father collected the children from school (in accordance with the regular alternate weekend orders) and relocated them to Suburb F to reside with him.

16. On 16 August 2015 the mother received a text message from the father stating, “as of today Sunday the 16^th August [B] and [C] have relocated to [Suburb F] to live with myself as both you and I signed consent orders on the 25 of June 2015 … To date you have not complied with order 4 & 5 so order 8 starts.” The mother received this message approximately one hour before the children were due to be returned to her by the father in accordance with the orders.

17. On 17 August 2015 the maternal grandparents attended upon the father’s partner’s parent’s home in Suburb G to enquire as to the children’s welfare. At 3:56pm that day, the mother corresponded with the father’s solicitor advising that unless the children were returned to her she would file an urgent application. The father’s solicitor responded advising the reasons why the father had changed where the children were living.

18. On 18 August 2015 the children commenced school at Suburb G Public School. On the same date, the mother collected the children from the school and took them back to Sydney. 

19. On 19 August 2015 the father filed an Application in a Case seeking the recovery of the children and that application is before me today.

20. On 25 August 2015 the mother emailed the father’s solicitor seeking an undertaking that the father would adhere to the orders and return the children to her after their weekend visit with the father. The mother sent a text message to the father on 27 August 2015 asking if he would return the children after the weekend visit. At 12:19pm that day the father responded to the mother’s message stating, “as per Family Court orders of 25 June 2015 I will be collecting [B] and [C] from School.” At 12:31pm the mother responded, “it is up to u if u make the trip, all good” (sic). The father responded, “I will collect [C] and [B] as per Family Court orders.” On 27 August at 3:10pm the mother received a reply from the father’s solicitor confirming that the father would comply with the orders. The mother responded that she would make the children available to be picked up by the father. At 5:47pm on 27 August 2015 the mother emailed the father’s solicitor stating that she needed “further thought and reassurance from you that we will not be put through the same exercise again.”

21. On 28 August 2015 the mother sent a text message to the father advising that the children would not be available for him to pick up from school as she and the children (after speaking with the father on the telephone) did not feel reassured that he would bring them home after the weekend. On the evening of 28 August 2015 the father’s solicitor emailed the mother advising that until the father’s application was determined, the father would return the children. The mother responded, “[Mr Ellingford] has not confirmed by text that he will return the girls. At this point … the girls do not want to visit with this uncertainty that they may not be returned home.”

22. The mother also did not make the children available to be picked up from school by the father on 4 September 2015.

23. On 14 September 2015 the matter was listed in Parramatta before Justice Foster who transferred the matter to myself.

24. Directions were made by me in December 2015 and February 2016 which were still not complied with when the matter was listed for hearing in March 2016. The material that I had originally requested is now available and Ms H, the Community Access Coordinator from D, gave oral evidence before me today.

THE INFORMATION GIVEN BY THE MOTHER TO D

1. The father asserts that the mother, when she contacted D on 21 July 2015 to complete a telephone intake, deliberately misled D by failing to accurately report her alcohol consumption.

2. At page 6 of the material produced by D (Exhibit 12), the mother reports in the intake interview:

   “Last drink Nov last year. Not addicted since 2011”

3. At page 6 of Exhibit 12, it was recorded by D that on the last occasion that the mother was using alcohol, namely November 2014, the quantity that she was drinking was “2 cases wine” at a frequency of “weekly” and for a duration of a “few years”.

4. At page 9 of Exhibit 12, the outcome of the overall assessment at “stage of change” for the mother was assessed as “maintenance”. I infer that means that the mother, in the assessment of D, had passed the stage of rehabilitation.

5. The father disputes the accuracy of what the mother told D. The father refers to pages 188 and 189 of the transcript of the evidence the mother gave before me in June 2015, which is in the following terms:

   HIS HONOUR:  Read it to yourself quietly.  What do you want to tell me about the first sentence, just the first sentence?  That is, last weekend - or, sorry, last week it was, she says that she found in the rubbish empty wine boxes, which I assume cartons of wine with those words on it?‑‑‑It’s not true.

   So you didn’t have cask wine boxes in your rubbish last week.  Is that right?‑‑‑No.  [B] doesn’t even go out to my bins anyway.

   No.  No.  But I’m asking you a question.  Last week you say you did not have rubbish that had cask wine boxes in the rubbish?‑‑‑No.

   Any time in the last month?‑‑‑It’s possible.  Because my neighbours use my bin as well.

   No.  Cask wine boxes that you’ve put there?‑‑‑Maybe one.  Over ‑ ‑ ‑ 

   How long ago?‑‑‑April or May was the last time I had alcohol with a friend.

   And you don’t know the brand names Harvest Lane or Golden Oak?‑‑‑No.  I couldn’t tell you where they’re from.  I don’t ‑ ‑ ‑ 

   When’s the last time you bought wine?‑‑‑Early May.

   And what did you buy?‑‑‑A bottle of white wine for a friend that had come over for a lunch when the kids were away.

   When was the last time you bought cask wine?‑‑‑Probably April.

   What brand?‑‑‑From Aldi.  I don’t know the brand name.

   You don’t know the brand?‑‑‑No.

   All right?‑‑‑It would be like a Fruity Lexia or something like light.

   Well, all wine - cask wine is about the same strength, isn’t it, when you say light?‑‑‑I don’t know.  It’s marketed as light.

   Okay.  Yes, Ms Shearman.  We might move on to the second sentence now.

   MS SHEARMAN:   Yes.

   HIS HONOUR:   And until somebody tells you to stop leading, you can do whatever you like in terms of asking your questions.

   MS SHEARMAN:   Thank you.  As the court please.

   Now, [B] said that you - “Mummy’s drinking wine at night and she mixes it with orange or apple juice,” when’s the last time you say you drank wine at night with - first of all, do you mix your wine with apple juice or orange juice?‑‑‑Not apple juice, sometimes a juice or water or soft drink.

   And when’s the last time you drank wine mixed with something else non-alcoholic?‑‑‑My friend, Pam, was over for dinner.

   When was that?‑‑‑Maybe a month ago.

6. The father correctly asserts that the mother conceded during that cross examination that:

   35.1.She consumed alcohol in April or May 2015 and bought wine in early May 2015; and

   35.2.The last time she consumed wine was towards the end of May 2015.

7. The father correctly points out that that evidence is not consistent with the representation that D records was made by the mother to them at the intake event, namely that her last drink was in November 2014. It is part of the father’s case that had D known the true situation in relation to the oral admissions made in respect of the mother’s drinking that they would have accepted the mother as suitable for admission to their residential program.

Difficulties with the construction of the orders

1. As I indicated during submissions, there is a difficulty with interpreting how the orders should work together. Order 3 provides that the children live with their mother provided the mother completes her treatment “pursuant to order 4”. Order 4 requires the mother to do everything necessary to obtain a place and treatment with D. Order 8 provides that in the event the mother does not comply with order 4, the children shall live with the father. As I will discuss, difficulties arise in implementing the probable intent of the orders because no inquiry was made prior to them being made as to whether or not, on the information that would be provided to D, the mother would obtain a placement at their residential program.

Did the mother do all things necessary to obtain a place and treatment at D?

1. I have already set out what the mother said to D at the intake interview on 21 July 2015.

2. Page 81 of the Independent Children's Lawyer’s tender bundle (Exhibit 7), is the letter sent by D on 21 July 2015. It is in the following terms:

   [Ms Ellingford], DOB: …/1971, applied for the [D] Rehabilitation Residential programme to seek treatment for substance dependence. Unfortunately, after being assessed over the phone, [Ms Ellingford] is unable to attend the service as the programme has been deemed unsuitable for her. [Ms Ellingford] has reported to us that she has not had a problem with alcohol misuse since 2011. [Ms Ellingford] also reported a high ORS (outcome rating scale) score of 33/40 which indicates that [Ms Ellingford] is functioning quite well and might be better suited for outpatient treatment or accessing counselling services.

   We would recommend that [Ms Ellingford] continue to access counselling with her psychologist or access outpatient treatment.

3. On 19 February 2016 I made, amongst others, orders 5 and 6 in the following terms:

   5.That [Ms H], the Community Access Coordinator of the [D] Rehabilitation Service (“the service”) read the following documents:-

   5.1    Pages 154 and 155 of the transcript annexed and marked “A”

   5.2    Pages 196 to 198 inclusive of the transcript evidence of [Ms Ellingford] annexed and marked “B”

   5.3    Pages 206 to 208 inclusive of the transcript evidence of [Ms Ellingford] annexed and marked “C”

   5.4    Pages 214 to 218 inclusive of the transcript evidence of [Ms Ellingford] annexed and marked “D”

   5.5    Pages 245 to 258 inclusive of the transcript evidence of [Dr E] annexed and marked “E”

   5.6    The affidavit of [Mr I] filed 24^th June 2015 annexed and marked “F”

   5.7    The D Rehabilitation Service intake assessment of [Ms Ellingford] dated 21^st July 2015 annexed and marked “G”

   5.8    The [D] Rehabilitation Service letter dated 21^st July 2015 annexed and marked “H”

   6.That by 4pm on Friday 4^th March 2016 [Ms H], the Community Access Coordinator of the D Rehabilitation Service provide to the Court by a letter addressed to Ms Kelly Stanford, Independent Children’s Lawyer, a written response to the following questions:-

   6.1    If the information about [Ms Ellingford’s] alcohol consumption as deposed to in annexures “A”, “B”, “C”, “D”, “E” and “F” had been disclosed to the service, would the outcome of the assessment as to [Ms Ellingford’s] suitability for inclusion in the program change; and

   6.2    If the evidence and recommendations of [Dr E] in annexure “G” had been provided to the service, would the assessment as to the suitability of [Ms Ellingford’s] suitability for inclusion in the program change.

4. The Independent Children’s Lawyer sent the material in Exhibit 7 to Ms H who wrote a letter on 1 April 2016 in the following terms:

   In response to the orders dated 19 February 2016:

   Based on the transcript evidence of [Ms Ellingford] in relation to her report of limited occasions of social drinking, [Ms Ellingford] would not be considered suitable for admission to the [D] Rehabilitation ([DRS]) residential programme.

   Based on the transcript evidence of [Dr E] and the affidavit of [Mr I] – if [Ms Ellingford] had reported that she was drinking most nights and that this level of drinking was leading to significant interpersonal issues, then she would have been further assessed and considered to be a suitable applicant for the service.

   The initial decision regarding [Ms Ellingford’s] suitability was made based on the information provided to us by her at the time of the initial phone assessment.

5. The Independent Children's Lawyer submits that strictly speaking, the mother has complied with her obligations pursuant to order 4 of the consent orders of 25 June 2015 in that she has undertaken a phone assessment with D. The Independent Children's Lawyer points out that in the letter from D of 1 April 16, it is clear that there were other factors taken into consideration in the assessment of the mother’s suitability, not just the question about her ‘problem’ with alcohol. One of the factors taken into account was her score on the Outcome Rating Scale (ORS). The mother’s score was 33/40 on this scale. The ORS is located at page 45 of Exhibit 7. At page 43 of Exhibit 7, a file note by Ms J (the intake officer) states, “Based on cts high ORS and not having a problem with alcohol for over 4 years - CT is not suitable for residential treatment at [DRS]”. Ms H in oral evidence said that the ORS is something D took into account but said it was only part of what the service considered when assessing suitability for the program.

6. The father’s case before me however does not simply rely upon the admissions made by the mother in her oral evidence at the hearing that concluded with the consent orders being made. He relies on the following assertions relating to the mother’s co-existing mental health issues and alcohol dependency:

   43.1.On 9 June 2011 the mother reported to D that she had been binge drinking since 16 years of age by ingesting one bottle of wine with the last consumption of alcohol being 6 May 2011 (page 15 of Exhibit 12);

   43.2.On 24 October 2011 the mother reported to D that she had been ingesting one bottle of wine 2-3 days per week for two years (page 31 of the Exhibit 12); and

   43.3.Dr E’s evidence that if the mother had been found to be under-reporting her use of alcohol then that is a concern and there is no way of determining the actual consumption (see page 253 of the transcript).

1. Further, the father relies upon evidence from Dr E which he gave orally as follows:

   … if you’ve had a period of abstinence for a month or 10 years there is a tendency in relapsing that you will eventually go back to that previous level of alcoholism or alcohol consumption. So if it’s just a brief relapse for a day or two then I guess that’s of less concern. But if its more insidious, where she’s perhaps drinking small amounts, but it’s likely that if she is doing that on a regular basis it will go back to that higher level – which I think was like about – I’m not sure whether it was four to eight litres a week that she was drinking, or something like that – but I can’t remember the exact amount. But she is likely to go back to the previous high level of alcohol that she used.

2. The father also refers to the evidence contained at [8] and [9] of the affidavit of the previous Independent Children's Lawyer, Mr I, sworn 24 June 2015, where he recorded that when he saw her for an interview on 12 June 2015 B had stated to him, “Last week I found in the rubbish empty wine boxes with the words Harvest Lane and Golden Oak on them”. B further reports, “Mum is drinking wine at night and she mixes it with orange or apple or mango juice ...”. At [9] Mr I records C as reporting, “A couple of weeks ago I blew a raspberry at mum, she was drunk and went crazy”.

3. In their letter of 1 April 2016 D make it clear that if the evidence of Dr E and the affidavit from Mr I were accepted and if it was accepted that in June 2015 the mother was “drinking most nights and that level of drinking was leading to significant interpersonal issues, then she would have been further assessed and considered to be a suitable applicant for the service”.

4. The father relies on Biggs & Hurst [2014] FamCA 217 in which Benjamin J considered orders that I had made on a final basis which provided that the father’s time with the children be tied to the father enrolling, attending and successfully completing a three month residential rehabilitation program. The father submits that Biggs is analogous to the current proceedings. There is an important difference. In the consent orders that were made in this case, order 3 requires the mother to “complete her treatment pursuant to order 4”. Order 4 requires her to do everything necessary to obtain a place and treatment at D. That is, in this case, the mother’s treatment is conditional upon her getting a place by her doing everything necessary to attempt to get one. In Biggs the order was more absolute. If the father did not successfully complete the program, then the time order which it was conditional upon, did not operate at all. The other obvious difference between the two cases is in this case the children were to ordinarily live with their mother. In Biggs they were not ordinarily living with their father.

CONCLUSION

1. The father’s contention that, had the mother given the same information to D as she gave to me in the witness box, she would have been admitted by D into their residential program, cannot be sustained.

2. The fundamental difficulties with the father’s argument are:

   49.1.The second paragraph of D’s letter dated 1 April 2016 makes it clear that based on the transcript of the mother’s evidence, she would not have been considered as suitable for admission to the program. Whilst it is clear on the evidence that the mother failed to correctly indicate to D that on her version she had been drinking in April and May 2015, the provision of that information by the mother to D was not a “necessary” thing for her to do in order to obtain a place and treatment at D. The provision of that information by the mother would have made no difference. She would still not have been admitted to the program;

   49.2.At the time the consent orders were made on 25 June 2015 and because they were made, no finding of fact had been made in respect of the competing evidence about the level of the mother’s use of alcohol in 2015; and

   49.3.No inquiries had been made as to D’s willingness to accept the mother into a residential program. Had those inquiries been made at the time, there would have been a requirement for the parties to agree upon what representations the mother was prepared to make to D about her level of alcohol use for the purposes of settling the matter. If, as it turned out, the mother continued to assert what she did in her oral evidence, then she would not have been accepted to the program and presumably no settlement would have been reached. Those steps however were not taken before the consent orders were presented to the court. In hindsight, had I known now that the mother would not be accepted into the program, then it is unlikely I would have made consent orders in the form that I did.

3. Because of those difficulties with the father’s case, it is not possible to conclude that the mother has failed to comply with order 4 and consequently it is not possible to say that order 8 becomes a self-executing order. Accordingly, the father’s application to enforce order 8 shall be dismissed.

RICE AND ASPLUND

1. There was some discussion before me as to whether or not the final consent orders made in 2015 would be the subject of the principles discussed in cases such as Rice & Asplund (1979) FLC 90-725 and those that followed it, given what has happened in this case.

2. The consent orders were made in circumstances which I described to Dr E at the commencement of his evidence in the following way:

   ... the mother has made a concession that she is in need of or will accept some treatment for her alcohol issues ...

   I then said I was required to decide

   ... The controversy as to whether or not I make an order that the mother enrol and complete the first available program at [K] Centre in [Suburb L] or I make an order that she obtain a place and treatment at [D] Rehabilitation Service, a residential program

3. I have discussed already the difficulties in the way the orders were drafted. I have no doubt that the father settled the parenting proceedings on the basis that he thought that the mother would be going to an eight week residential program at D. Given that is so, it would be my view that in the event the father commenced a new application for parenting orders in the future he would not need to satisfy the threshold test created by the June 2015 orders and Rice & Asplund and the cases that followed it. I only make these comments to make it plain that a dismissal of the father’s application for enforcement of order 8 of the orders of 25 June 2015 does not mean that an application for variation of the June 2015 orders could not be made without demonstrating a significant change in circumstances from those that existed on 25 June 2015.

4. It is now almost a year since the June 2015 orders were made. The mother asserts there have been improvements to her life in the last year. During submissions, the Independent Children's Lawyer, presumably pursuant to s 68LA(7) of the Family Law Act 1975 (Cth) (“the Act”), informed the court of the current views of the children as communicated to her, which was that they would prefer to ordinarily live with their father. I note what his lawyer has said in his written submissions about the need for the children to have some type of finality. I otherwise make no comment as to the likelihood or not of any new application for parenting orders brought by the father being successful.

The Independent Children's Lawyer’s application for costs

1. Based upon the information provided in relation to the parties’ respective financial positions, I dismiss the Independent Children's Lawyer’s application for costs. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 5 May 2016

Associate: 

Date:  16.5.16