EMERICK & EMERICK
[2013] FamCA 961
•10 December 2013
FAMILY COURT OF AUSTRALIA
| EMERICK & EMERICK | [2013] FamCA 961 |
| FAMILY LAW – CHILDREN – SPEND TIME WITH – SUPERVISION – Where there are two subject children – Where the children live predominantly with the mother – Where the parties agree that they should have equal shared parental responsibility but disagree as to how the children should spend time with their father – Where the mother seeks orders that the father’s time with the children be supervised – Where the father seeks to spend increasing time with the children on an unsupervised basis – Where the father has a long history of substance abuse – Where there has been past family violence perpetrated by the father – Whether the father’s drinking poses a risk to the children and warrants an order for his time with them to be supervised – Whether it is in the best interests of the children to spend increasing time with their father on an unsupervised basis – Whether the mother is supportive of the children’s relationship with the father. FAMILY LAW – CHILDREN – SCHOOLING AND RELIGIOUS EDUCATION – Where the parties disagree as to where to send the children to school – Whether the children should attend formal Jewish education. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Emerick |
| RESPONDENT: | Mr Emerick |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Bell |
| FILE NUMBER: | SYC | 1079 | of | 2012 |
| DATE DELIVERED: | 10 December 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 15 - 18 July, 18-19 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Paltos Briggs Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Snelling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stephen W Bell & Associates |
Orders
IT IS ORDERED
That the parties have equal shared parental responsibility for the children L born … 2005 and G born … 2006 (“the children”).
That the children live with the mother.
That the children spend time with the father as follows:
(a) From the making of these orders until 23 December 2013 as follows:
(i)Each Monday and Wednesday from after school (or 2.30 pm if the children are not at school) until 5.30 pm; and
(ii)Each Friday from after school (or 2.30 pm if the children are not at school) until 8.30 pm; and
(b)From 10 January 2014 until the commencement of school in Term 1, 2014 as follows:
(i)Each Monday and Wednesday from 10.00 am to 3.00 pm;
(ii)Each alternate week from 2.30 pm until 8.30 pm on Friday and from 10.00 am until 3.00 pm on Sunday;
(c)From the commencement of school Term 1, 2014 until the conclusion of school Term 2, 2014 as follows:
(i)Each Monday and Wednesday from after school (or 2.30 pm if the children are not at school) to 5.30 pm; and
(ii)Each alternate Friday from after school (or 2.30 pm if the children are not at school) to 11.00 am Saturday;
(d) During the end of school Term 2, 2014 school holiday period as follows:
(i)Each Tuesday from 10.00 am to 5.30 pm on Wednesday; and
(ii)Each Friday from 12.30 pm to 8.30 pm;
(e)From the commencement of school Term 3, 2014 until the conclusion of school Term 4, 2014 as follows:
(i)Each Monday and Wednesday from after school (or 2.30 pm if the children are not at school) to 5.30 pm; and
(ii)Each alternate Friday from after school (or 2.30 pm if the children are not at school) to 3.00 pm Sunday;
(f)During the end of school Term 3, 2014 school holiday period, in the absence of agreement as follows:
(i)Each weekend from 2.30 pm on Friday until 3.00 pm on Sunday;
(g)During the end of school Term 4, 2014 school holiday period, for three periods of three nights and four days as agreed and in the absence of agreement as follows:
(i)For the first three nights following the conclusion of school on the final day of the school term until 3.00 pm on day 4; and
(ii)From 10.00 am Monday in weeks 3 and 6 of the school holiday period until 3.00 pm on day 4 in each week.
(h) From the commencement of school Term 1, 2015 as follows:
(i)During school terms:
(a)Each Monday and Wednesday from after school (or 2.30 pm if the children are not at school) until 5.30 pm; and
(b)Each alternate Friday from after school (or 2.30 pm if the children are not at school) to the commencement of school on Monday (or Tuesday if the Monday is a non-school day)
(ii)For half of all school holiday periods as agreed between the parties and failing agreement for the first half in years ending in an even number and for the second half in years ending in an odd number.
(i) Other times as agreed between the parties in writing.
That the mother’s application to change the children’s school be dismissed.
That the parties do all acts and things to ensure the children continue to attend at X School.
That the parties do all acts and things to enrol the children in the Jewish studies program … on Mondays during school term and to keep the children so enrolled.
That the father pay the fees for the children to attend at the Jewish studies program.
That notwithstanding anything else contained in these orders:
(a)The children’s time with the father will be suspended on the weekend which includes Mothers’ Day;
(b)The children shall spend time with the father from 10.00 am to 4.00 pm on Fathers’ Day;
That notwithstanding anything else contained in these orders, the parents share each of the following Jewish holidays as follows:
(a)That the mother spend the first night of Pesach and Rosh Hashanah with the children in odd numbered years;
(b)That the mother spend the second night of Pesach and Rosh Hashanah with the children in even numbered years;
(c)That the father spend the first night of Pesach and Rosh Hashanah with the children in even numbered years;
(d)That the father spend the second night of Pesach and Rosh Hashanah with the children in odd numbered years;
(e)That the children spend Yom Kippur with the mother in even numbered years;
(f)That the children spend Yom Kippur with the father in odd numbered years.
That for the purpose of changeover the father shall collect the children from school or from the mother’s residence at the commencement of time with the children and the mother shall collect the children at the conclusion of the time with the father and neither parent shall unreasonably object to the children being collected by a nominee of the parent.
That both parents ensure that the children and the parents continue to attend upon Ms B as recommended by her from time to time.
That at the earliest available time the mother and father shall facilitate the children attending upon Ms B for the purpose of Ms B explaining to the children the effect of the final orders made in these proceedings.
That in order to facilitate order 12 above a copy of these Reasons for Judgment and orders may be provided to Ms B.
That the parents have liberty to telephone the children between 6.30 am and 7.30 am on any day when that parent is not spending time with the children pursuant to these orders.
That the father and mother henceforth provide to each other all proper particulars of his or her residential address and mobile telephone number and further that each party provide to the other party not less than 48 hours’ notice of any change of residential address or telephone number.
That each party immediately notify the other of any serious illness suffered by the children or either of them and, so far as it is practicable to do so, of any emergency admission to hospital or injury suffered by the children or either of them whilst in the care of the other party.
That the father be restrained from consuming alcohol or any illegal substance for a period of 12 hours prior to, or during, any time that he is spending with the children.
That the father’s time with the children be conditional upon the following:
(a)That the father undertake Carbohydrate Deficient Transferrin (“CDT”) testing and urine testing within 24 hours of receiving a request from the mother provided that no more than one request is made in any four week period;
(b)That the father shall authorise and direct any relevant medical practitioner or institution to provide to the mother a copy of the test results which issue as a consequence of order (a) immediately upon such results becoming available, including any analysis, memorandum or written comments made by any general practitioner or pathologist in respect of such a test;
(c)That the father cause a copy of each test result to be provided to Professor M and to Ms H;
(d)That, until … December 2022 or until such time as either Professor M or Ms H states, in writing, that his continued attendance is no longer appropriate, the father continue to consult with Professor M and Ms H as recommended by each of them. In the event that either Professor M or Ms H state in writing that continued attendance is not advisable, then a copy of that document is to be forwarded immediately to the mother;
(e)That the father undertake hair follicle testing not less than every six months and provide a copy of the reports of such testing to the mother; and
(f)That until … December 2018 any time spent by the father with the children shall be in the substantial presence of Ms K or Mrs E.
That the father be solely responsible for any expenses incurred by the father in respect of the testing and supervisory procedures set out in order 18.
That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Emerick & Emerick 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: SYC 1079 of 2012
| Ms Emerick |
Applicant
And
| Mr Emerick |
Respondent
REASONS FOR JUDGMENT
Before the Court are parenting proceedings in relation to two children L born in 2005 and G born in 2006 (together, “the children”). The children’s parents are the applicant, Ms Emerick (“the mother”) and the respondent, Mr Emerick (“the father”). The parents separated in 2011 after a relationship of some 12 years.
After separation the father remained in the former matrimonial home and the children lived with the mother in rented accommodation, ultimately moving in July 2012 to Suburb T. The mother has remained in T and intends to purchase a property in that area. Prior to the parents’ separation the children were attending X School and they have remained at that school.
The father now lives in Suburb D with his new partner, Ms K, who is employed as a nanny and home manager. He works from home in his own business.
The mother has not re-partnered. She continues to be employed, as she was when the parties were together, as a health professional. Her present employment is either at Suburb N or at Suburb Y but there is likely to be employment for her closer to her home.
the issues
Both parents agree that they should have equal shared parental responsibility for the children. They are in dispute about the time the children should spend with their father, although they each agree that the children should spend time with him, and they are in dispute about the nature and extent of supervision during those times.
At the commencement of submissions, the issues were identified to be:
6.1The extent of the father’s use of alcohol and cocaine during the marriage and its effect on the children.
6.2Whether the mother is supportive of the children’s relationship with the father.
6.3The extent of the father’s current drinking.
6.4Whether the risk to the children of the father’s drinking warrants professional supervision of their time with him.
6.5What, if any, medical supervision of the father should continue.
6.6What time the father should spend with the children.
6.7What school the children should attend and whether they should attend formal Jewish education.
6.8Whether the father would comply with any regime of testing.
the evidence
The children were independently represented by an independent children’s lawyer (“the ICL”) and Counsel.
The Court was assisted by a single expert, Dr A, who is a child and family psychiatrist. Dr A provided four reports, the last in July 2013.
The mother relied on an affidavit sworn by her.
The father relied on affidavits sworn by him, his partner Ms K, his parents, his psychologist (Ms H) and his psychiatrist (Professor M).
The parties also relied on the reports of supervisors from Dial an Angel and two of those supervisors swore affidavits in the proceedings.
On the fourth day of the hearing (the matter having been listed for five days), it became apparent that there was a lacuna in the evidence in the father’s case. The father had been asked in cross-examination about the results of Carbohydrate Deficient Transferrin (“CDT”) testing. The notes appended to the test results say that “CDT levels become elevated in most individuals consuming at least 60g of alcohol on more than 14 consecutive days”. It was made clear to those representing the father that the results of those tests would need to be interpreted by an appropriately qualified expert.
When Dr A was called to give evidence on the fourth day, Counsel for the ICL informed the Court that Dr A had assumed, for the purpose of his report, that the testing results confirmed the father’s evidence about his drinking. The Court was informed that, if the results were otherwise interpreted, then Dr A would need to re-consider his conclusions. It was therefore necessary for the matter to be adjourned part-heard so that a single expert could be instructed in relation to the interpretation of the CDT test results, and so that Dr A could consider the effect of that evidence on his recommendations.
When the matter resumed, the mother had filed, without leave, affidavits by herself and her father; the father had filed, without leave, affidavits by himself, Ms K and his mother. Ultimately, the mother did not read the affidavit of her father. The father’s mother and Ms K were not required for cross-examination and I permitted further cross-examination of the mother and the father.
In addition, the Court was assisted by a report of a single expert, Dr, the Head of Department and Director of the Diagnostic Pathology Unit at AA Hospital. Dr J’s report interpreted the CDT test results. She was not required for cross-examination. In her report, Dr J said:
If an important decision is to be made on the basis of this or any other test result, and in particular, if a high CDT result (greater than 2.2 – 2.5%) is to be used in a medico-legal situation to enforce a restriction on that person, then the individual should be seen by an appropriately qualified doctor.
In accordance with Dr J’s recommendation, the father consulted Dr R, the Medical Director of Drug Health Services at RR Hospital. Dr R prepared a report in the father’s case and was cross-examined.
the father’s substance abuse during the marriage
The breakdown of the parents’ relationship occurred in circumstances where the father, it is alleged, from the beginning of the relationship, drank heavily and abused both alcohol and cocaine. Each of the parents gave evidence about the father’s drug and alcohol consumption and the effects upon the parties and the children. Their recollections of the events are different. The mother gives a version which is far more detailed and far more serious than the father’s version.
The single expert, Dr A, summarised the police and medical records in his report, the first of four, dated 6 June 2012. In addition, documents were tendered from various treating practitioners and institutions. The evidence from those documents, including Dr A’s report, is summarised below.
The police recorded charges in relation to offences from July 1980, when the father was charged with negligent driving and unlicensed driving, and November 1991, when he was charged with assault. In addition he was charged with alcohol related driving offences on two occasions in 2001 and 2007.
In 2001 he was breath tested when riding a scooter when he was unlicensed. In 2007, after drinking until 3.00 am, he was breath tested at 9.00 am riding a scooter with his nephew as a pillion passenger and recorded a reading of .08.
The father was admitted to W Hospital on 25 April 1990 and discharged on 2 May 1990. He had been drinking with friends and took cocaine and speed and had a vague recollection of having been beaten up.
In 1994 and 1995 the father had admissions to the Z Private Clinic for detoxification. He was abstinent for less than two months after each detoxification. His alcohol use was associated with gambling and other drugs. He was also using cocaine once per week, ecstasy once every two weeks, cannabis once a month and Valium prescribed by his psychiatrist. However, he was not using the Valium as prescribed but taking ten tablets at once and then none for two weeks. The husband described himself as having a huge gambling habit and took steps to get himself banned from the Sydney casino. His doctor concluded that the father had an alcohol dependency disorder, substance abuse disorder and unresolved conflicts of dependency, self-esteem and anger.
The father’s first admission to O Clinic occurred on 26 October 1995 and he was discharged on 11 November 1995. The discharge diagnosis was alcohol dependence. The discharge summary dated 23 November 1995 indicates that the father had a history of bingeing on alcohol and drugs since 14 years of age. In the five days prior to his admission, he had consumed four bottles of Jack Daniels, at least ten doubles of vodka, four bottles of wine and five cans of beer. He had taken 12 tablets (60 mg) of Valium on the day of his admission. He had also used one gram of speed and one gram of cocaine. He had undergone detoxification on two occasions previously and his longest period without drugs had been approximately three months.
The records from this admission indicate that the father had been seeing psychiatrists since he was eight years of age. He had been seeing Dr S for the past five or six years. Dr S diagnosed him as suffering from Borderline Personality Disorder and treated him with anti-depressants.
At the time of his admission to O Clinic, the father appeared intoxicated. His speech and thought form were tangential. He described his mood as violent, depressed and upset. He was claiming current visual hallucinations of a “Star Trek” ship and also auditory hallucinations with derogatory comments.
Dr A notes that the records indicate that the detoxification was uneventful but that the father left the program earlier than expected and therefore discharge plans were not implemented.
The father was next admitted to W Hospital for one day on 1 February 1996 with a diagnosis of benzodiazepine overdose, toxication and depression. He had taken Serapax and Rohypnol together with alcohol.
He next presented to W Hospital on 15 May 1996 complaining of lower back pain, having been in police custody two days earlier while intoxicated. He had been seen at the RR Hospital but left against medical advice.
When interviewed by a doctor on 15 January 1997 the father reported that he would drink for four or five days and then stop for four or five days. During a binge he would drink a minimum of one and a half bottles of Bourbon, one bottle of wine and also beer each day.
The father was admitted to O Clinic for the second time on 8 March 1997. The discharge diagnosis was alcohol dependence. The hospital pre-admission form indicates that the father was consuming alcohol daily and drinking all day, spirits and wine. On admission he was described as angry and depressed. The self-rating scale completed by the father indicated, inter alia, that he was miserable, often felt like crying and often wished he was dead. He felt worthless and ashamed of himself.
The mother and the father commenced co-habitation in early 1998. At that time she was 21 years old and he was 32 years old.
The father had a third admission to the O Clinic between 16 and 24 February 1999. The diagnosis was alcohol dependence, gambling disorder and attention deficit hyperactivity disorder (“ADHD”). The husband had been continuing to drink on and off with periods of sobriety of up to two months. Until seven months prior to his readmission, he had been seeing his doctor weekly. He reported a regular pattern of drinking a bottle of Jack Daniels, gambling heavily and then feeling miserable and guilty the following day. This reoccurred up to every second day. There was a pattern of brief periods of sobriety interrupting a pattern of binge drinking. He was a regular gambler from 18 years of age.
He was again discharged prematurely without completing discharge planning and the discharge summary states, “Given this man’s track record and comorbidity, prognosis must be guarded.”
The father was again admitted to the O Clinic for the fourth time between 4 and 7 November 2003. The discharge diagnosis was alcohol abuse. The record states that after his discharge from O Clinic in 1999 he was abstinent from alcohol for six months but had since had alternating periods of abstinence, mild drinking and heavy bingeing of up to one bottle of vodka daily. When drinking he would use cocaine and ecstasy. He had tried marijuana and speed but not regularly. The father requested the hospital not send a copy of his discharge to his referring doctor. The notes of that admission indicate that the father regarded binge drinking as destructive to his relationships.
The father was referred to Professor M, a psychiatrist, on a referral from his own father who is a medical practitioner, for advice. The father’s first consultation with Professor M was on 21 May 2007 and at that consultation he was accompanied by the mother.
The father told Professor M that his main reason for attending was that he felt guilty about the effect of alcohol drinking, cocaine use and gambling on his wife and children. The father told Professor M that his alcohol use was increasing and that his pattern was binge drinking two to three times weekly, typically six to seven double vodka and tonics, up to a maximum of 12 drinks. He described himself as usually drinking alone and sometimes experiencing blackouts, although he denied any alcohol withdrawal symptoms.
The father told Professor M that he was using cocaine twice weekly to sober up after drinking alcohol. He also spoke of gambling mainly on poker machines, losing up to $6,000 to $7,000 in an evening or up to $10,000 to $12,000 over a week. The father told Professor M that he was in debt of several million dollars. The father said that he would “womanise” after using alcohol and cocaine, even in the presence of his wife.
The father told Professor M of verbally aggressive outbursts, more so in the past than currently, that would arise from frustration with himself and were more likely to occur when he was drinking.
The mother told Professor M that the father would gamble even when he was not drinking, though when he did drink that would perpetuate his behaviour. Professor M thought the father’s main difficultly was with impulse control, which was manifesting with problems with alcohol, gambling, womanising and cocaine.
Professor M said it was possible that the father had experienced ADHD in the past. He recommended that the father consult a psychologist for cognitive behavioural therapy.
In June 2007, the father was referred to a consultant psychologist, Ms Q. The referral was made by his then solicitor, retained in relation to the alcohol related driving offences. On 21 June 2007, a report was provided by Ms Q to the solicitor in which she stated that the father had stopped drinking but nevertheless he felt bored, restless and had lost his passion for life. The father recognised that boredom was a trigger for his gambling and drinking. He reported being unmotivated. The father told Ms Q that he had been seeing Dr S over a period of eight years but when he was asked about the benefit of the therapy with Dr S he was “very vague and unable to provide much detail”.
On 5 July 2007, Ms Q provided to the solicitor a report for use in the proceedings arising out of his driving with a blood alcohol level of .08. Ms Q indicated that she had seen the father on four occasions and that he was motivated to address his drinking. He did not thereafter continue to see Ms Q.
The father next consulted Professor M on 16 September 2010, again after a referral from the paternal grandfather, who was expressing concerns about the father’s drinking and long term self-destructive behaviour. The mother attended with him. The father told Professor M that he was drinking half a bottle, and up to three quarters of a bottle of vodka daily, usually commencing from 4.00 pm. He said that he would drink out of anger and frustration and would take cocaine to relax. The father spoke of taking out his frustration on others and being easily irritated by others. He said he was irritable with his wife and that he was intolerant of her and condescending.
The mother told Professor M that the father was drinking excessively and that he drank because of anger, frustration and poor self-worth. The mother spoke of the father’s “uncontrollable rage”.
At that consultation, Professor M felt that the major diagnostic issue was the father’s excessive use of alcohol, which seems to make his anger more intense. Professor M said that the father’s main issue was the need for him to control his alcohol use, and he made a referral to P Private Hospital and Professor C. Professor M also recommended psychological management of the father’s anger and anxiety.
The father was seen at the liver clinic at W Hospital on 4 February 2011. The record states, “Alcohol intake consistent. Mostly late afternoon. Vodka half bottle a day, six days a week”.
The father’s medical records from the BB Medical Centre indicate that he had been prescribed Temazepam, Valium, sedatives, Endone, Panadeine Forte, analgesics and Duromine. Dr A noted that all of these medications have abuse potential. The notes record that on 6 September 2011 the father had stopped drinking six weeks ago but was having “quite a fair bit” before that. On 8 September 2011, the notes recall the father having an abnormal liver function test result with a query as to whether this was alcohol related.
The paternal grandfather referred the father to Dr F at the XX Organisation who assessed the father on 14 September 2011 and reported to the paternal grandfather by letter of the same date. The father described repeated periods of depression characterised by feeling agitated, angry, argumentative and engaging in self destructive behaviour. He reported significant depressive symptoms with him feeling withdrawn, helpless and hopeless, with low energy, poor sleep and poor memory and concentration. Many of these episodes had occurred when the father had been consuming large quantities of alcohol that have also occurred when his alcohol intake had been reduced or he had been abstinent. Dr F concluded that the father had recurrent periods of depression with features of melancholia. The clinical picture was clouded by alcohol abuse and Dr F also considered that the father was affected by social phobia. He recommended that the father should remain abstinent from alcohol as there was no evidence of his being able to maintain a controlled drinking pattern.
The parties separated on 6 October 2011 after an altercation in the afternoon when the father had been out to lunch and said he had drunk four double vodkas with tonic.
On 12 October 2011, the notes of the BB Medical Centre record the father as:
feeling down off/on for a while now. Life stressors, family issues. Mood up and down at times. Nil self harm thoughts or self negative thoughts. Not doing much exercise.
The father requested a referral to a psychiatrist and was referred.
The father was admitted to the P Private Hospital on 18 October and discharged on 24 October 2011. He was admitted to address symptoms of depression and alcohol dependence. The records indicate that the father said that he would go for weeks or months without drinking and then would have a binge on a maximum of three quarters of a bottle of vodka a day. He described himself as “arrogant, self-centred and conceited”.
On 18 October 2011 the father spoke about his separation from his family when he was being admitted to the P Private Hospital. He stated that “this is a drinking issue”. The father acknowledged a binge pattern of drinking from his early 20s and, about one year ago, he increased the amount of frequency of drinking, consuming up to one bottle of vodka per day. He also spoke about having periods of depression. He acknowledged using cocaine over the years.
A letter from P Private Hospital dated 21 October 2011 confirmed that the father would be attending programs at the hospital and he was also referred to Ms H, for follow-up.
The records from the P Private Hospital indicate that the father attended an evening program from 25 October until 6 December 2011. He was expected by the hospital to continue to attend. The notes indicate that the father presented as tearful about the losses that happened as a consequence of his drinking and that he was amazed by the power of the denial of the disease.
The father was assessed by Dr F on 22 February 2012 and Dr F noted that the father had maintained his improvement despite his difficulties.
The father next saw Professor M on 12 April 2012 after the parties had separated. The father told Professor M that he had been abstinent from alcohol since October 2011 and that he had been attending as an inpatient at P Private Hospital and attending Alcoholics Anonymous (“AA”).
When Professor M reviewed the father on 27 September 2012 the father said he had not used cocaine since June 2011 and had been abstinent from alcohol for a year. He said he was continuing to attend AA regularly and consulting his psychologist weekly. On 11 November 2012 the father told Professor M that he was drinking minimally (only small amounts socially) and that he was attending AA two to four times weekly.
The history which is recounted here is based upon matters told by the father to various treating medical practitioners and records produced by police and hospitals. It does not rely upon the subjective current recollections of the mother or the father but rather on contemporaneous statements.
The evidence which has been set out above is the most reliable evidence of the father’s substance consumption. Where the father now suggests a different version, I prefer the contemporaneous evidence.
In an interview with Dr A on 25 July 2012, the father told Dr A that he had begun using cocaine in the late 1980s and then stopped but resumed using it recreationally in 2009. The father said his use of cocaine was at its worst in 2010 when he was using it two to three times per week when going on social outings.
The father said that he was not using cocaine all the time but was using it in “spurts, three weeks on and a month off” and would take it a few times per week until he stopped using cocaine “one year and two months ago”. The father told Dr A that he had not used cocaine since. The father told Dr A that he was not sure of the effect of cocaine alone, as he had previously used it only together with alcohol.
He said that, as a result of the combination of substances, he would become “potentially argumentative”. He told Dr A that he became irrational and “it would irritate [the mother]”. The father told Dr A that he “probably was verbally threatening to [the mother]” but that she “took things out of context”. He also said to Dr A:
I swore occasionally but generally I don’t swear. I probably was intimidating, when affected by alcohol or cocaine. I never really took cocaine by itself. I took cocaine together with alcohol.
He told Dr A that he had drunk alcohol by itself and said that he had been verbally threatening, but never physically threatening, to the mother or the children.
Dr A asked the father about the mother’s allegation that he had threatened to suffocate her. The father said “It could have happened. She recorded me. I accept it could have happened. It is disturbing.” When asked by Dr A what this could have meant, he replied “It means I had a blackout. It means I drank too much and that there is a problem. It means I had a significant problem with alcohol.” In his evidence in cross-examination about that incident, the father said that he did not accept that the mother would have been fearful during that incident because he had not been taking drugs. He said that the incident was not so much disturbing for the mother as it was disturbing for him because he doesn’t remember the event, although he conceded that it had occurred as the mother reported.
The father told Dr A that he had been drinking alcohol since he was 14 or 15 years of age and described a pattern of binge drinking in his late teens and early twenties. The father said his drinking became more consistent in 2009 and 2010 when he drank nearly every day consuming half a bottle of vodka per day.
When asked by Dr A whether there was any effect on the children of his consumption of drugs and alcohol the father explained that he would start drinking alcohol at 5.00 pm and, before that, he would have done all of the parenting things, like taking the children swimming and playing tennis or table tennis with them. (I note that on 16 September 2010 the father told Professor M that he started drinking at 4.00 pm)
The father told Dr A that there would have been an effect on the children only if he was having a confrontation with the mother and, in those circumstances, only the child L would be affected. He explained that L was very close to his mother and would try to defend her if the father raised his voice. L would say “Don’t shout at mummy”. The father did not think that L would become upset in those situations. The father told Dr A that the final argument between him and the mother took place in front of both of the children and that “there might have been one or two other arguments that the boys have witnessed”. He recalled L being angry with him and saying “Don’t shout at mummy”, at which point the father stopped shouting. On that occasion, the father says L did not cry and did not hit him, and the father did not think that there was any continuing effect on the children as a result of those arguments.
The father told Dr A that “[t]he kids were absolutely not affected by drug or alcohol use apart from [L] witnessing a few arguments.” On one occasion the child G told the father that he “smelt nice” which the father took to mean that he no longer smelt of alcohol. The father said that the only effect on G was that he knew the difference in the way the father smelt after drinking alcohol. He did not think that alcohol changed his behaviour towards his children, apart from him not wanting to be disturbed when reading newspapers.
It is the mother’s case that the father was verbally and physically violent towards her and the children, although there appears not to be any evidence of physical violence, other than threats of physical violence.
For the purposes of the Family Law Act 1975 (Cth) (“the Act”), “family violence” is defined in s 4AB(1) as:
…violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
On the basis of the father’s own admissions to medical practitioners about being abusive, threatening, verbally threatening and argumentative, I am satisfied that the father’s behaviour towards the mother during the period up until they separated came within the definition of family violence.
The mother alleges that on 10 August 2011 when they were in bed, the father said to her “I’ll suffocate you by putting a plastic bag around your head”. The mother said that the father walked out of the bedroom and slammed the door, breaking the doorframe. The mother recorded that conversation on her mobile phone. From that date, the mother says, and I accept, that she felt increasingly anxious about her safety and that of the children. It was not put to the father in cross-examination that this incident did not occur, in circumstances where the father had told Dr A: “It could have happened. She recorded me. I accept it could have happened. It is disturbing”. I accept the wife’s version of that event.
The mother in her affidavit said that the husband, in the early years of the marriage, when drinking, regularly became involved in physical altercations with bar patrons and complete strangers. She recalled at least eight to ten occasions when she had been with the husband when he was escorted off the premises after drinking at bars or at the casino. The mother’s evidence was not challenged but the father denied it in cross-examination. Having regard to his admitted level of consumption of alcohol on those occasions, the mother’s recollection is more likely to be reliable and I accept her evidence.
The mother said, unchallenged, that in the two years prior to separation at least once per week, and often in the presence of the children, the father would erupt in rage lasting anywhere from 10 minutes to two hours and, on occasions, two to three times per day. She said that during these rages the father frequently smashed items such as telephones, glasses, mustard jars, children’s toys and television remotes. These rages occurred when the father had been binge drinking for lengthy periods. I accept that evidence.
The mother gave unchallenged evidence, which I accept, that she made every effort to calm the father down and to remove the children and avoid confrontation. On two occasions she said the father was so uncontrolled that she removed the children from the house, booking into a hotel for the night. Again, the mother’s evidence of those events was unchallenged.
The mother gave evidence, and I accept, that from 2009 they argued over the father’s use of cocaine.
The mother gave unchallenged evidence of numerous occasions when the father shouted at the children and threatened her and the children. She gave evidence of an occasion when she and the father were driving to Thredbo with the children and the father became angry, saying:
If you don’t shut up I will drive the car into that tree then you and your pathetic little family will suffer. You think life is that easy don’t you? You fucked up my whole life, just wait and see what I can do to you. I will fuck up your whole pathetic family you have no idea what damage I can do; I know what you are trying to do and if you do it I will take down you and your kids.
The mother says that the father also said on that occasion, “I will take you and your kids down with me.”
The mother gave evidence that on a family holiday in Thredbo the father was drunk in front of the children and shouted at them, refusing to allow them to go upstairs and go back to sleep until they called him “king”. On the same trip the mother says that the father took a photograph of a ski instructor and said to the children, “Hey my boys, see this man, your Daddy is gonna get him, see his face, I’m gonna find him and get him.” The mother said to the children, “Daddy is just pretending and doesn’t really mean it” and that father said to the mother, “I do… I really do”.
In about May 2011 when the children were asleep, the mother was in their bedroom and the father came into the bedroom. The mother said to the father “Please [father], the children are asleep, please stop yelling.” She went to shut the bedroom door and the father pushed past her and threw the door open. The mother began to scream and L woke up. The father shouted, “You think you can hide in here with your little kiddly winks”; and he then said “You think you can fucking sleep in my house, I am the king, no one sleeps until I do.” The mother says that she placed her hands over L’s ears so that he could not hear the father.
The mother gave evidence that one evening in June 2011 the father could not find his wallet. The mother said that he was heavily intoxicated, slurring and unsteady on his feet. He started yelling and the mother said, “Please stop, the children are asleep.” The father ran into the children’s room and screamed “Everyone get up and find my wallet now”. The mother eventually found the father’s wallet and gave it to the father who said “You knew it was there you are trying to make me crazy”.
The next morning the mother could not find her own wallet. She asked the father if he knew where it was and he said that he did not. She searched the house and eventually found her wallet in a cupboard and said to the father “That was a mean thing to do, hiding my things for no reason.” He apologised and said to her, “I don’t really remember, I know I did something, and my throat is really sore.” The mother’s evidence was not challenged and I accept her version of those events.
The mother gave unchallenged evidence that in July 2011 when she was driving the car, a cyclist made a rude gesture. The children were in the car. The father reached over and held his hand on the horn of the car and reached for the door to get out. As the car began to move forward the father leaned over the mother and grabbed the wheel and swerved the car towards the cyclist.
The parents finally separated on 6 October 2011. The mother returned home with the children in the evening. The father had been out to lunch. He said he had consumed four double vodkas with tonic. The mother gave evidence that the father was drunk and yelled aggressively at her. The mother said the father stood over her in a threatening fashion and that she was frightened and intimidated.
The children were standing nearby. The father approached the child G and said, “You little shit, get away from me, fuck you.” G ran away and the father continued to yell. L, who was standing nearby, said to the father, “Why are you yelling at mummy?” The mother says that the father walked over to L in a menacing fashion, pointed his finger at L’s face and began to shout, “You’re a fucking little shit. Who do you think you are?” The mother gave evidence that L was terrified and ran to hide behind the kitchen counter. The father yelled at L, “You better fucking run. You’ve got no idea what I can do to you.” The father then said to the mother, “Get out of my fucking house, all of you get out.”
The mother gave evidence that she was frightened that the father would physically harm the children or her. He walked towards her and butted her with his chest and she said, “OK, OK …, we are going”. The mother collected her keys and wallet from the kitchen bench but he grabbed the wallet and keys from her saying, “No fucking way. Get out of my house. Fuck you, fuck you all. You will get nothing from me, nothing.” L was crying and said to the mother, “Mummy, why is he taking your wallet, we don’t have any money.”
The mother then collected the children and left the house, together with her mother, who was staying with them at the time. L was crying and saying to his mother, “Please mummy, can we go away from the house. I don’t want daddy to come out.” The mother and the children walked up the road and stayed at the home of the husband’s brother.
The mother has not returned to the home since that time. I accept the evidence of the mother that when she left the house on that night she was frightened and the children were frightened.
The father on the other hand has an entirely different recollection of the circumstances of separation and in his affidavit says as follows:
The breakdown of our relationship on 6 October 2012 (sic) came as a surprise to me. I was not aware that [the mother] was fearful of me as she now alleges or that she had concerns for the safety of the children in my care as she now alleges.
The father has minimised the extent and effect of his drug and alcohol use. In his affidavit he says, “I have always enjoyed a drink and there have been times when I drank more heavily than I should have.” The father denied that throughout the entirety of the relationship he was a binge drinker but said, “There were periods during our relationship when I drank too much and indulged too much when I should not have done so.”
Having regard to the statements made by the father to various treating practitioners about his lack of memory of events when he had been drinking and using cocaine, it may be the case that he simply does not have any accurate recollection of his behaviour at those times. Alternatively, he may be deliberately attempting to minimise the behaviour so as to improve his position. In either event, the recollections of the mother appear to accord with the statements made to the father’s treating practitioners and I accept her version of the father’s behaviour during times when he was drinking and using cocaine.
Dr A, in his report dated 6 June 2012, when considering the difference between the information given to him by the parents said:
(The father) acknowledged that his main problem concerns his excessive use of alcohol. He also described using cocaine from time to time, while affected by alcohol. This history is consistent with that reported by his wife and that contained in the medical records. What is less clear is the extent of his use of these substances (cocaine and alcohol). There is a difference in views between the parties concerning the frequency of his use, the time of day when he begins ingesting substances and the extent of his ingestion. For instance, [the mother] reported him starting to drink at 1pm, so that he is intoxicated by the evening, while [the father] reported having a few drinks while reading the newspaper from 5pm. What is clear though is his binge pattern of drug and alcohol use, with him sometimes using substances in large quantities on a daily basis, and sometimes going without for many months at a time.
There is also a difference in views between the parties concerning the effect of these substances on his mental state. [The mother] described him becoming unpredictable, volatile, angry, out of control and paranoid. [The father], on the other hand, took a more sanguine view of the effect of these substances on his mental state. One particular issue that arises in this context concerns the extent to which he may have been affected by alcoholic blackouts or drug induced paranoid psychosis – severe conditions associated with amnesia for events during intoxication. The difference in views between the parties may therefore represent a difference in remembering, rather than a difference in reporting the way [the father] was affected by substances.
Whilst I do not disagree with Dr A’s conclusion, I also take into account the fact that, in the course of his evidence, it became apparent that the father was on many occasions not truthful about his substance abuse. And either not truthful or completely oblivious of its effect upon the children.
In an affidavit sworn 12 March 2012, in support of an application for unsupervised time with the children, the father swore: “I do not have and never have had a drug problem”. Challenged with that statement, the father said that, at the time he swore the affidavit, he did not recognise that he had a problem and that he was in denial. That evidence does not sit consistently with the evidence of his seeking assistance on many occasions for cocaine use; his telling Professor M in May 2007 that he was using cocaine twice weekly to sober up after drinking alcohol; his telling Professor M in September 2010 that he was using cocaine to relax; and the histories related to various medical practitioners upon his admissions for detoxification. The father described the statement in the affidavit as “a mistake”.
In the course of his oral evidence the father variously said that he was in denial from time to time about his drug use and alcohol consumption or that he downplayed his drug use and alcohol consumption. He also said his reporting was “guarded” as he was conscious that cocaine use was not legal.
When cross-examined about his attitude in relation to supervision, the father said that there had never been any basis for supervision of his time with the children. When it was suggested to the father that his behaviour on 6 October 2011 taken alone would be a basis to warrant supervision of his time with the children, all that the father could say was that his behaviour was something he regretted.
He also said that he had not at any time in the children’s lives posed a risk to their health or safety. This was said despite the fact that he had earlier said in cross-examination that, when he drank and used cocaine, his ability to care for the children was compromised and their safety was compromised. He had also earlier agreed that when he started drinking at 5.00pm and drank up to three quarters of a bottle of vodka, he posed a risk to the children.
If the father has any understanding of the damaging effect of his behaviour upon the children during the time the parents lived together, then he has not articulated it.
I consider the evidence of the husband in relation to the extent of his drinking prior to separation to be unreliable. I prefer the histories given by his various treating practitioners, although I accept that those histories may have been downplayed by the father or “guarded’ and that his consumption may, in fact, have been greater than he admitted.
THE MOTHER’S ATTITUDE TO THE CHILDREN’S RELATIONSHIP WITH THE FATHER
Although the mother in the witness box spoke about her commitment to the children having a close and loving relationship with their father, her actions suggest otherwise.
The mother has told the children that the purpose of supervision is so that somebody else will be with them to make sure everything is alright when they are with their father.
She has told the children that they are not safe with their father. She has told L that his father is an alcoholic. The mother said that the children have a clear understanding that their father is an alcoholic, which arises both from their experience of him and discussions between her and the children. L and G were six years old and not yet five years old respectively when the parents separated almost two years ago.
The mother gave evidence that she cannot trust the father. For that reason, the children should be supervised by a professional paid supervisor until such time as they are 18 years old. When her cross-examination resumed the following day, she revised her position and said that professional supervision should continue until the children are 13 years old.
She said that she did not believe that overnight time with the father was to their benefit and that it would be inappropriate for them to spend school holiday periods with him. When pressed in cross-examination by Senior Counsel for the husband, the mother conceded that the children would benefit from spending one night a month with their father, provided the time was professionally supervised, and was prepared to concede that more nights per month might be possible, but only if the children are interested. She then said that she believed that both of the children should have a strong and loving relationship with their father in the same way as they have with her and that it would be in both of their interests if this were to occur. She could not concede that her insistence on the children’s time with their father being supervised until they are 18 or 13 years of age might pose any problem to them forming such a relationship with him, or that the children might draw inferences from the requirement of supervision that their father was not to be trusted.
The mother did not accept that L, particularly, is empowered by the presence of a supervisor or that the presence of a supervisor confirms with L the fact that he needs protection from his father.
The mother conceded that moving to Suburb T with the children was in part motivated by a wish to physically distance the children and herself from the father.
Although the mother in her evidence spoke about the possibility of the father’s time with the children increasing over time, it was clear that opportunities for him to spend more time with the children had been rejected by her. The mother refused the father’s request for the father to have the children for Shabbat on an occasion when she was interstate for work. Her explanation was that the additional Friday night was not covered by the Court orders.
In relation to the children’s relationship with their paternal grandparents, the mother, when asked what she had done to promote that relationship, conceded that she had done nothing other than to ask the children to call them on their birthdays. She said the children had called their paternal grandparents on a couple of occasions. She conceded that she had not taken the children to see the paternal grandparents or facilitated their seeing the children since the commencement of the proceedings.
The paternal grandparents requested that they be allowed to collect the children on Saturday prior to the father’s time commencing with the children and take the children to Synagogue. The mother refused that request because, she said, it could not be guaranteed that the father would not be there.
On 16 March 2013, after a period of time with the children when a professional supervisor was employed, the mother accused the father of having been drunk. The mother had seen the father when she dropped the children off and had no concerns that he had been drinking at that time. There was no suggestion that the professional supervisor had in any way failed in her duties. Nevertheless, the mother was prepared to make the allegation that he had been drinking when the children were returned.
The father made a donation in the children’s names to the construction of the Jewish Learning Centre. He forwarded to the mother an invitation for donors to attend the opening ceremony when their donations would be acknowledged. The father proposed that the paternal grandmother collect and deliver the children and that both grandparents would be present. The mother refused to allow the children to attend.
The father proposed that he would engage one of the supervisors as a nanny so the costs would then be reduced. Two names were proposed to the mother; they were husband and wife. The mother rejected both. She said that the wife’s qualifications were inadequate. In her oral evidence she said that, having rejected the wife, there would be a conflict of interest if the husband were engaged. She was unable to explain how that would occur. Her further objection was that she was not sure if the nanny would continue to give reports. She conceded that she made no enquiry.
The mother was aware that the father had paid more than $44,000 for supervision at the time of hearing and that the cost of supervision would be halved if the supervisor was engaged as a nanny. She was aware that the supervision was costing the father $700 per day. She gave evidence that she would accept the husband as a supervisor but not as a nanny. The mother was not, herself, willing to contribute to the cost of supervision but opposed what seemed to be a reasonable proposal, on the part of the father, to reduce the cost burden to him.
The mother does not accept that the father has succeeded in substantially changing his behaviour and, particularly, that he has not drunk to excess or used drugs for a substantial period of time. The reasonableness of her attitude will be examined later in these reasons.
The mother insisted in her oral evidence that, in her experience, the father was never able to spend more than six to eight months without resorting to alcohol and drugs. She would not accept that his pattern of behaviour might have changed. This was despite the fact that the father voluntarily undertook a hair follicle test which showed that he had not used any drugs for six months. Indeed, when the mother was asked to consent to the test being forwarded to Dr A prior to the completion of his last report, she refused to consent.
The mother, when asked why she had refused to allow the hair follicle testing report to be sent to Dr A, said that she did not believe it was necessary. I do not accept that explanation. When pressed, the mother conceded that she was aware that the result of the testing was very important. The only logical reason that can be ascribed to her refusal to allow Dr A to see the report, is that the report confirmed that the father had not used drugs for a considerable period of time and she did not want Dr A to have that evidence.
The mother has not told the children of the efforts that their father has made in order to change his behaviour so that he can be a better parent to them. The mother does not accept the evidence that he has changed his behaviour and indeed went so far as to say that she had concerns about the way in which samples were collected. She was unable to give any factual basis for those concerns.
At the conclusion of the hearing in July, the father told the Court that he would not spend time with the children if that time was to be supervised by a paid supervisor. His reasons will be discussed later. This had the effect that the only time that the father spent with the children was on alternate Fridays for Shabbat under the supervision of his mother.
On 2 August 2013, the father asked for an additional Shabbat dinner because the children’s godfather was attending. The mother did not agree.
On 26 August 2013, the father’s solicitor wrote requesting time on Rosh Hashanah and on Fathers’ Day under the supervision of his mother. The mother did not agree and the children did not see their father on Fathers’ Day.
The father requested time on Yom Kippur, Sukkot and Simchat Torah, all of which occurred in September. The mother did not respond. The father filed an application, which came before the Court on 9 September 2013 and was listed for hearing on 12 September 2013. An agreement was then reached for the father to spend time with the children on two additional occasions.
The mother’s refusal of the father’s request for additional time did not sit well with her evidence on 18 July 2013 that she believed that the children needed to spend more time with their father than alternate Friday evenings.
The mother’s reliability is further called into question by her actions in relation to the children’s religious education which is discussed fully later in these reasons.
I am satisfied that the mother will not, of her own volition, promote the children’s relationship with their father, other than to comply strictly with any order that is made. I am satisfied that I cannot rely upon her to voluntarily increase the time the children spend with their father.
THE FATHER’S CURRENT CONSUMPTION OF ALCOHOL
In his affidavit sworn 31 May 2013, the father swore: “I have a few drinks socially from time to time, i.e. over the new year period and when I went away with friend (sic) for the weekend (the first weekend in March 2013).”
In cross-examination, he told Senior Counsel for the mother, that between August and October 2012 he drank a light beer after golf or a glass of wine with dinner, estimating two drinks every few weeks. When pressed, he estimated two light beers after golf and two glasses of wine with dinner but “maybe nothing the next week”.
The father said his consumption had increased and that now he drinks sometimes three beers after golf and two or even three glasses of wine with dinner. He was adamant that, in the last six months, he would have had two light beers and three glasses of wine on, perhaps, five occasions. He said that five drinks would be his maximum, that he does not drink alone and that he does not drink vodka. When pressed, he said that, if friends came to dinner, he may have four glasses of wine.
Ms K gave evidence that she had never seen the father intoxicated or unable to drive home after an evening out, and that she observed him to have a couple of glasses of wine when they dined out.
The paternal grandfather gave evidence that the father did not drink at all in his presence which is consistent with the father’s evidence that he does not drink alcohol at Shabbat dinners.
The father had urine testing which was consistently negative for alcohol. However, the testing was not conducted on a random basis and the father decided when to present for testing.
When the matter came before the Court on 18 November 2013 and the father was further cross-examined, his evidence was different. He explained his elevated CDT levels in March 2013, by increased drinking in the two weeks leading up to a long weekend away with golfing friends. For the two weeks preceding the weekend and on the weekend, he said he had drunk up to five drinks per day on about four days of the week. This did not accord with his evidence in July of two light beers and three glasses of wine on, perhaps, five occasions in total. In November 2013, the husband’s evidence was that he was drinking about 20 glasses of alcohol per week. It is not possible to compare glasses of beer or wine with standard drinks.
Whatever may be the husband’s consumption of alcohol both before and after the hearing, his account of his drinking is neither internally consistent nor reliable.
The husband’s psychologist, Ms H, gave evidence that she supervised a breath test at the commencement of each session, the husband providing the equipment. Those tests were negative. On 9 March 2013 (only days after the golfing weekend referred to earlier) the father told Ms H that he never had more than three drinks on any occasion. That does not accord with his evidence before me.
On 9 March, Ms H noted that the father was considering not drinking at all. Thereafter, he said nothing to her about his consumption of alcohol and she assumed that he was not drinking at all “unless he stated otherwise”.
Concerns had been raised in the hearing in July about the results of the CDT testing undertaken by the father. The results were elevated. In particular, Senior Counsel for the mother pointed to the following results:
7 February 2013 1.7
7 March 2013 2.5
2 April 2013 2.3
10 May 2013 2.2
Dr J in her report stated that levels up to 2.2 per cent were considered normal but levels above 2.2 per cent are suggestive of heavy alcohol intake. She went on to state:
A sustained, significant increase in CDT over a period of at least 2-3 months is highly suggestive of heavy alcohol intake i.e. in excess of six alcohol drinks per day, most days of the week for two or more consecutive weeks.
Dr J was referring to “standard drinks”. She went on to say:
A typical example of the use of the CDT test is in monitoring a person who is alcohol dependent. If the result is elevated initially when the individual is drinking, and falls back to normal in a period of sustained abstinence (e.g. over a month or more), then periodically checking whether levels have stayed normal or have become elevated again, may help provide early warning of a relapse to heavy drinking. Typically it takes 2-4 weeks for levels to become raised with a relapse, or to fall back to normal with abstinence. If someone with a raised CDT due to alcohol completely stops drinking, it takes around 2 weeks for raised results to go half way back to normal.
Therefore, in answering the question ‘What do the results mean?’
[The father’s] results indicate that his blood/serum CDT levels were within the normal range of a social drinking population for the period November 2012 through to February 2013. The March CDT level is raised and especially in the context of the normal February (and prior normal values in the period Nov 12 to Feb 13) suggests in the immediate couple of weeks prior to the March test, that his alcohol consumption was higher than had been previously. Thereafter [the father’s] values fall in April and May to what would appear to be [his] baseline level of between 1.7% and 1.9% as measured by the [AA] Hospital method. [The father’s] values as measured by the [U] laboratory in November and December 2012 and in July 2013 are within their normal published reference range and do not per se indicate a level that would be associated with hazardous alcohol consumption.
…
In numerical terms therefore, where laboratory quotes 2.2% as the upper limit of normal for CDT, only sustained abnormalities above 2.4% should be considered as highly indicative of sustained heavy alcohol intake.
…
Based on the Measurement of Uncertainly quoted in Question 2, the one significant difference in the set is between the value of 1.7 and 2.5 in the consecutive months of February and March 2013. [The father’s] pattern of results suggests a period of higher alcohol consumption in the period after the 7th February 2013 test leading up to the 7th March 2013 test. After the March test, CDT levels fall, which in all likelihood can be attributed to a period of less alcohol consumption than in the previous month.
Typically it takes 2-4 weeks for levels to become raised with heavy or heavier alcohol consumption, or to fall back to normal with abstinence.
As previously stated, the biomarker CDT is most useful in individuals who have been shown to have high test results when they are drinking, and where the levels have been shown to fall when they stop drinking.
Dr R in his report dated 16 November 2013 stated:
After completion of this treatment, [the father] described being abstinent from alcohol for about 12 months. He resumed drinking approximately 12 months ago. Current alcohol use is described as ‘social’. [The father] reports that he drinks two beers after golf, usually on Friday and Mondays. He also drinks wine with evening meal, usually 3-5 glasses of wine 1-2x per week. Total alcohol use is estimated at about 20 standard drinks per week. This amount exceeds NHMRC guidelines for low risk drinking (14 standard drinks per week) but not by much and indeed approximately 20% of the Australian community would exceed these relatively new and rather stringent guidelines.
The CDT level in March was raised and [the father] explained that he had been drinking more than usual in the week prior to this test. He had a ‘boys weekend in early March’ drinking 3-6 standard drinks/day for four days in a row. When I indicated this level of consumption was probably not enough to cause an elevated CDT, he indicated that he had probably been drinking a little more than usual in the period leading up to that weekend away. There were no adverse events during this period and his consumption, and the CDT levels, fell afterwards.
The CDT testing results establish that for a period commencing in March 2013, the husband consumed alcohol at a level beyond that which both Dr J and Dr R considered appropriate. However, the testing results confirm that, with the exception of March and April 2013, the husband’s consumption has not been excessive.
I accept that, other than in March and April 2013, the husband has been able to control his consumption of alcohol and limit his consumption to an acceptable level.
WILL THE FATHER COMPLY WITH ANY TESTING REGIME?
The father is highly motivated to spend time with the children and understands that he will not be permitted to do so if his level of consumption of alcohol is likely to pose a risk to their physical or psychological safety.
As his Senior Counsel conceded, the continued testing is the price he pays for seeing the children.
If the orders which are made, specify continued adherence to a testing regime as a condition of spending time with the children, then I am satisfied that the father will comply with the regime of testing. If he fails to present test results to the mother then he will be aware that he cannot assume that he will continue to spend time with the children.
supervision
At the commencement of the trial the mother’s position was that the children’s time with their father should be supervised by a paid professional supervisor until such time as they reach the age of 18 years. On the second day of her evidence, that position was modified and she conceded that it would be appropriate if the supervision extended until the children reached their teenage years. She nominated 13 years of age. I infer that she would require supervision until G reaches 13 years of age by which time L would be 14 and a half years old. In her Minute of Orders filed at the commencement of submissions, the mother sought that the children be professionally supervised until G is 12 years of age.
It was the father’s case that there should be no supervision of the time which the children spend with him. In his evidence he said that, in the event that the Court imposed a requirement for paid professional supervision, he would not avail himself of time with the children but would continue only to see the children on Friday night and Friday afternoon supervised by his mother.
It was the mother’s position that she does not trust the father, does not accept that the changes which he has made in his life thus far will be enduring and does not accept that he has abstained from excessive consumption of alcohol, as he alleges. Further, her position is that, based upon her own experience of him during the marriage, he will be unable to sustain any changes which he has made and is highly likely to relapse to alcohol use and drug use.
The father for his part gave evidence that he had been participating in supervised time with the children three times per week for 14 months and that, the supervision was counter-productive to his forming an enduring relationship with the children. It is the father’s opinion that supervision empowers L to behave inappropriately towards him and constantly reminds L that he is a person who is to be feared. Both the father and Ms K gave evidence that L uses the fact of supervision as a “power tool” and says to the father “you need a supervisor”. Ms K is of the view that L acts provocatively towards his father knowing that the supervisor is a “safety net” for him.
It was the father’s view that the negative effects of having a supervisor present during his time with the children are so great that they outweigh the benefit of the children continuing to see him.
However, the father accepted Dr A’s recommendation in his July 2013 report that Ms K, his mother or his sister should be substantially present when the children were with him. I note that while both Ms K and the paternal grandmother gave evidence and were cross-examined, the father’s sister did not give evidence.
The Court must determine whether or not the risks to the children which are identified by the mother outweigh the detrimental effect of supervision. In part, that decision turns upon the Court’s assessment of the evidence in relation to the father’s claims that he has been drug free and that he has responsibly contained his consumption of alcohol.
In Dr A’s first report dated 6 June 2012 he said:
I consider that [the father’s] substance use represents an unacceptable risk to the children. I accept that his mental state changes in a way that is a risk to the children when he is affected by substances. He may be frightening, volatile or violent when intoxicated. What compounds the problem is the unpredictability of the extent and effect of his intoxication due to the binge pattern of his substance use. He may well go from a sober state one day to high levels of intoxication the next. For that reason I emphasise the importance of monitoring when discussing the options for supervision below.
Dr A also considered whether or not the father had an underlying psychiatric problem and said:
The medical records provided are less helpful in resolving questions of underlying mood or personality disturbance, because they largely reflect [the father’s] presentations in crisis or when requesting detoxification. They do not reflect [the father’s] ongoing patterns of mood and behaviour, partly because he would often discontinue treatment once the crisis has passed.
Nevertheless, I consider that this underlying problem, be it a recurring depression or a personality-related disturbance, represents an independent risk to the children. It may be an independent source of his volatility and anger, and it may also bring about his substance use, for instance when he feels depressed or bored… Although he may remain or appear well for periods of time, for instance, while under intense scrutiny in the context of current court proceedings, it is my view that there may be a risk to the children even if [the father] does not use substances, if the contact is left unsupervised.
In June 2012, Dr A recommended professional supervision together with ongoing drug and alcohol counselling, random drug testing and medical supervision, which he said must be consistent, regular and long term. At that time, Dr A was of the view that supervision by family members alone would be inadequate.
In a report dated 3 October 2012, Dr A nominated Professor M as being a suitably qualified clinician for the father and Ms H as being a suitable psychologist. There is no doubt that the father has continued to attend upon both Professor M and Ms H.
In a report dated 7 April 2013, Dr A notes that the father has been seeing his psychologist Ms H weekly, that he is in a new relationship (with Ms K) of some nine months duration and that he has been seeing Professor M regularly. The father reported to Dr A that he had been drinking socially, three to four glasses of wine or beer but not spirits each week and that he drinks at weekends but not every weekend. The father told Dr A that he can control his drinking and that he does not use cocaine or any other drugs.
Dr A concluded:
There is still some uncertainty regarding [the father’s] diagnosis. I note that Professor [M] has changed his opinion of [the father’s] diagnosis over the years, and in particular, his views concerning the relative contribution of drugs, depression and anxiety, and underlying personality traits to [the father’s] presentation. He considered the possibility of anxious, impulsive and narcissistic traits.
However, the information available suggests that [the father] has not been using drugs or drinking excessively, and has not been affected by significant symptoms of depression or anxiety at least for the last six months. As I understand, he has been working and exercising, and he commenced a new relationship. In particular, his interactions with his children have been mostly satisfactory, as shown in the supervisors’ reports.
This information suggests that although [the father] may have maladaptive traits, he does not have an underlying personality disorder. It is likely that personality disorder, if present, would have become evident during many hours of observation of his interactions with the children. The observations of supervisors, when taken as a whole, however show him being patient and restrained with his sons and in particular, [L’s] provocations, and I observed him to be restrained and patient during the interview.
I agree with Professor [M’s] view that [the father] has maladaptive character traits which can be exacerbated by depression, anxiety, drugs or alcohol to the point of him posing a risk to his children as a result of excessive anger and loss of control. For that reason he should remain under regular medical supervision, described in my earlier report, as a condition of his contact with his children until they turn 18. It is my view that provided these potentially exacerbating factors are under control, he can have contact with his children under his family’s supervision, bearing in mind that I did not make an assessment of his family.
Dr A recommended that the family should be referred to a child psychologist with the specific aims of helping L to overcome his fears and rebuild his relationship with his father; helping the father with parenting advice to deal with the challenging aspects of L’s behaviour; and helping the mother to deal with managing L’s fears in a way which does not inflame his antipathy towards his father. Dr A also recommended that handovers be managed by third parties.
In accordance with Dr A’s recommendation, the parents and the children commenced counselling with Ms B, a psychologist.
In his most recent report dated 3 July 2013, Dr A, having interviewed Ms K and reviewed the records provided by the contact supervisors over an extensive period of time, noted that the father’s contact with the children had been appropriate in its interactions. He did not therefore consider that professional supervision continued to be necessary, although he considered that a degree of oversight from the father’s family or partner would be appropriate. Dr A specifically said that he considered Ms K to be an appropriate person to provide that oversight.
In his oral evidence, given after he had read the reports of Dr J and Dr R, Dr A maintained his opinion that the father needs continued medical supervision, both by random testing and by maintaining a therapeutic relationship with Professor M and Ms H. Dr A did not resile from his recommendation that a member of the father’s family be substantially present when the children are with him.
Dr R in his report stated:
Since his divorce, his mental health has apparently improved significantly and his behaviour has likewise improved. No evidence of a mental health disorder was evident to Prof [M]. Dr [A] tended to concur. Prof [M] reports (2012) ‘the major issue leading to his behavioural disturbances over the years had been mainly due to the excessive alcohol use and associated cocaine usage. ‘…there does not appear to be an ongoing depressive illness independence of his excessive substance use. Dr [A] states (July 2013 report, p9) that “the risk would arise should [the father] become depressed, anxious or if he was to resume drinking alcohol excessively or abusing drugs…. For that reason he must remain under regular medical supervision long term … as a condition of his contact with his children.” I would concur with this view. [The father] has had lifelong problems with alcohol and drug misuse and the good control over the past two years represent the exception to the pattern of a lifetime.
…
The evidence available to me indicates that [the father] clearly meets criteria for an alcohol use disorder in the past. Indeed, he was twice admitted to drug and alcohol treatment services for treatment of alcohol dependence. It is pleasing to note that [the father] does not meet diagnostic criteria for an alcohol use disorder at present. These disorders can relapse and remit, and he would be at risk of relapse in the future. Relapse may result from various stressors, but it commonly also results from feeling strong and overestimating the sense of control of substance uses, or from the relaxation of a monitoring process.
I understand that [the father] desires continuing unsupervised visits with his children. Both Drs [A] and [M] have indicated that supervision of visits with his children is no longer necessary and from my experience as director of an alcohol and drug service, I would concur. I recommend [the father] be given specific orders to refrain from all illicit substance use at all times and that alcohol use should be limited to moderate levels at all times (no more than four standard drinks on any day and no more than 20 standard drinks per week) with no alcohol at all for 12 hours before contact with his children or while with them. Regular monitoring of substance use to monitor compliance with these orders is required in the long term I would recommend hair testing 2-3 times a year, occasional random urine testing plus targeted urine testing should there be any clinical episodes of concern. To monitor alcohol use, monthly CDT testing should continue with concurrent gGT testing. Both these latter tests have been informative in this case, as both have been elevated during periods of heavier drinking, and have fallen to normal levels when drinking lessened. [The father] should remain in clinical contact with clinician expert in substance use assessment and in forensic work who will report any problematic substance use.
The recommendations of Dr R, set out above, are recommendations of an expert called in the father’s case and I accept that they are appropriate as to the regime of testing necessary to protect the children.
In relation to the usefulness of CDT testing to detect excessive consumption of alcohol in this case, Dr R said that CDT testing has proved its usefulness in this particular case. He went on to say:
…he certainly presented to me as being sober, well behaved, responsive and reasonably insightful. But the evidence of the past, which I gained a little bit from the patient, but more from the reports by Dr [A] in particular, were of course quite troubling and therefore I felt that he is better now than he was, and has been for quite some – a reasonable period of time. But I felt that as soon as supervision was withdrawn, the risk of relapse would become significant and therefore the safety of children in his care would be compromised and therefore he should stay under fairly close scrutiny until the children are basically of age and can fend for themselves.
None of Dr A, Dr R or Professor M supported the mother’s contention that the children’s time with the father should be professionally supervised.
All of the expert evidence supports a regime where the time the children spend with the father is spent in the substantial presence of a family member. The father proposes that his partner, Ms K, and his mother are suitable persons and, in accordance with the evidence of Dr A, I find that those persons are appropriate.
The mother conceded in her oral evidence that paid supervision should cease when the children were 13 years old and, in her Minute of Orders, she proposed that paid supervision should cease when G reached 12 years of age. I propose that the requirement for there to be a family member present should also cease at that time and the requirement will be in place until late 2018 when G reaches the age of 12 years.
In relation to drug testing, random alcohol testing, CDT screening and continued attendance upon Professor M, in accordance with the recommendations of the single expert, Dr A and the husband’s expert, Dr R, that testing should occur during the children’s minority. The orders will provide for the testing regime to continue until G reaches the age of 16 years in late 2022.
schooling
Until the continuation of the hearing in November 2013, the mother maintained her application to remove the children from X School and to enrol them at a school proximate to her place of residence. On 18 November 2013, when the hearing recommenced, she agreed that the children should remain at X School.
The children have each attended X School for the whole of their schooling. The evidence shows that they are thriving in that school. L has had difficulties in the past, particularly in May 2013 when he was violent towards other children, and he has been assisted by the school’s counsellor. The mother conceded that L’s behaviour had improved since the involvement with the school counsellor, although she suggested that the improvement also coincided with L seeing Ms B, who is his therapist.
The mother also conceded that X School had provided stability for the children after separation when their lives were disrupted and they moved homes, until they settled at their present home.
The mother conceded that the children, particularly L, might be adversely affected if they were moved to another school and she was aware that the children both wanted to stay at X School.
If the children remain at X School, they can attend a Jewish studies program on Monday afternoon without difficulty.
The father is anxious for the children to remain at X School and he pays their fees. Part of his reasoning is that there are other Jewish children at X School and that the children, if they attend X School, will remain part of his community, even if they live in the Hills District. He attends parent/teacher interviews and some assemblies and communicates with the children’s teachers by letter and email.
The mother gave evidence that transporting the children to and from X School has caused her no difficulties in the past and will not cause difficulties in the future.
The mother gave evidence that her employment is sufficiently flexible for her to be able to continue to transport the children to X School or to a local school.
I make no assumption other than that the children would receive a good education at any of the previously proposed schools.
Remaining at X School will give the children stability and accord with their wishes. They will retain their association with the community into which they were born and with other Jewish children at the school. They will continue to play sport with their school mates and will have easier access to the Jewish studies program.
I consider that those benefits outweigh the benefit of attending a school closer to their home.
religious education
The father’s family is Jewish. The mother converted to Judaism on marriage. The children are being raised in the Jewish tradition.
The father has repeatedly requested that the children be re-enrolled in the Jewish studies program, where they had previously attended until the end of 2012. Until the hearing in July 2012, the mother had not responded to those requests but said in oral evidence that she had no objections to the children attending the program. When asked why the mother had ignored the father’s requests, made to her by email, she replied that she thought the matter was better addressed through her lawyers and denied that she would ignore any request that the father made of her.
Her concern about the children attending the Jewish studies program each Monday, from 3.15 pm to 5.30 pm, was that she said the 5.30 pm finish time was too late and the children would not cope with the extended day. That concern was somewhat at odds with her evidence in relation to the Tuesdays and Wednesdays when she says she collects the children and takes them to her father’s home for dinner, leaving to go home, from her father’s home, at about 6.30 pm to 6.45 pm.
The mother acknowledged the importance to the father and the paternal family of the children being raised in the Jewish tradition. As an alternative to the children attending the program, the mother said that she had considered whether a private tutor might be an option.
The mother also attends Shabbat dinner with the boys in alternate weeks at the home of friends and it was her evidence that the children’s Jewish education should take place in the home, both her home and the father’s home, apart from attendance at Synagogue on High Holy Days.
In cross-examination she conceded that she has not been to Synagogue since separation and neither had the children. She agreed that the paternal family had requested that the children attend Synagogue with them at Passover and that she had refused. The mother did not herself attend Synagogue or organise for the children to be taken. Her reason for refusing to allow the children to attend Synagogue with the paternal family at Passover was that the father’s mother was only a court appointed supervisor for the Friday night and the Court had not ordered that the paternal grandmother could supervise at Passover for the purpose of attending Synagogue.
The mother gave evidence that she had no difficultly in sharing the Jewish holidays with the father provided that, even if the children were taken to Synagogue, there needed to be a paid supervisor present.
The mother said that there is no Jewish community in the area where she will live and the nearest community is at Suburb V. Neither the mother nor the children has any connections with the V community. The children have, for their whole lives, been part of the Eastern Suburbs Jewish community.
On 18 July 2013, the mother’s solicitors wrote to the father’s solicitors saying that the mother “will be making arrangements for the boys to attend [the Jewish studies program] on Monday evenings.” The father’s concerns that the children were not attending the program had been an issue in the hearing in July. On 30 August and 2 September 2013, the father emailed Rabbi UC asking him to confirm that the children had been enrolled. The Rabbi had not received a request to enrol the children.
I have no confidence that, left to the mother to make the arrangements, the children will attend the Jewish studies program. Both parties appear to agree that the children should attend. The orders will provide for the father to enrol the children at the program and for them to be in his care on Monday afternoons during school terms so that he can ensure they attend.
conclusion
The parties agree, and I concur, that it is in the interests of the children to have the best possible relationship with their father as they can, consistently with protecting them from any physical or psychological harm arising from his substance abuse.
They agree, and I concur, that they should have equal shared parental responsibility for the children.
They agree, and I concur, that spending equal shared time with each parent is not in the best interests of the children.
The father seeks an order which would result in the children spending substantial and significant time with him. The mother seeks an order that the children spend daytimes only with the father, with the condition of professional paid supervision until the younger child reaches the age of 12 years.
The regime of time which meets the children’s best interests is to be determined by considering, so far as each is relevant, the matters referred to in s 60CC(3) of the Act.
Views expressed by the children
The children are aged eight years and six years. Both have expressed a wish to the supervisor from time to time to spend more time and overnight time with their father. The child L has also, from time to time, refused to go with his father. As recently as 14 May 2013, the supervisor reports the child G being very excited at the prospect of an overnight stay.
Since July 2013, when the father stopped seeing the children in the presence of a professional supervisor, they have asked their father for more time and expressed a wish to stay overnight with him.
The paternal grandmother has observed the children ask for more time with their father and for overnight time. Her evidence was not challenged.
Ms K has also observed the boys ask for more time and for overnight time. Her evidence was not challenged.
L told Dr A that he wants to spend more time with his mother than with his father. That will not be an issue.
The children are not of an age where their views are determinative but I am satisfied that they wish to spend time with their father and that they want that time to include overnight time.
The nature of the children’s relationship with significant adults
The child G has a loving and happy relationship with each of his parents. He is undoubtedly more attached to his mother, as she has been his primary carer. The father, in seeking that G lives primarily with his mother, recognises that fact. G will be happy spending more time with his father.
The child L’s relationship with his father has been more problematic in the past. In June 2012, Dr A observed both boys in positive interaction with their father. L, in interview with Dr A, had numerous complaints about his father. He told Dr A:
I won’t let Daddy in my house because of Mum. If she sees Daddy, she does not like it, but if mum said Dad is okay I would have him in my house, but not around me because he did nasty things. He drank alcohol and smashed glasses.
L told Dr A “that occasionally Dad smacked Mum; Mum told him about it but he did not witness it”. L told Dr A that his father did not hit him or G but then recalled “that Dad smacked me on the bottom and sat [G] on a step.”
In a later interview, L told Dr A that “Mum does not like Daddy. He has done lots of nasty things”.
In October 2012, L told Dr A about recurring dreams where his father shoots his mother and L has to protect her. L said, “if daddy chose to shoot me or mummy I would tell him to shoot me. I would sacrifice myself for mummy”. Dr A recommended that the family be referred to a child psychologist to help L overcome his fears, help the father manage L’s challenging behaviours and help the mother manage L’s fears in a way that does not inflame his antipathy towards his father.
In July 2013, Ms B reported to Dr A that L “is angry about the father, what the father did to the family, what he did to the mother. He talks about needing to protect the mother from dad.” Ms B reported that L refers to episodes between the parents which occurred before L was born.
It is likely that L loves his father (and, according to the supervisors, that he tells him so) but that he is torn between his love for his father and his understanding that his mother does not like his father.
The fact that the children are expressing a wish to spend more time with their father is encouraging, having regard to L’s formerly more negative attitude.
The mother, in her affidavit sworn 11 November 2013 and relied on in the continuation of the hearing, gave evidence that, since July when the father stopped seeing the children with the professional supervisor, “[L] is much calmer and happier.” Neither of the children has asked their mother if they might have more time with their father.
The mother in her affidavit said that the children continue to make negative comments to her about their father after spending Shabbat with him. They say such things as “Daddy said you took all our money” and “Daddy said you only married him for the money and you only had one dollar when you met him”. The mother was not cross-examined about that evidence. The father is inherently unlikely to have had such conversations with the children in the presence of his extended family and Ms K at Shabbat. It is more likely that the children still feel the need to criticise their father when they return to their mother’s care.
It is to be hoped that the parents’ and the children’s continued attendance at counselling with Ms B might assist the children and their parents to give the children permission to pass between them without anxiety about the effect on the other parent.
Ms K described a good and supportive relationship with both of the children. The supervisors report pleasant interactions between the children and Ms K and it is clear from the reports of the supervisors that the visits became calmer and more pleasant once she was participating.
The children have a good relationship with the father’s siblings and their families.
L has complained to his mother about his paternal grandparents. The extent to which his complaints (which are denied by them) are valid must be assessed in light of L’s alignment with his mother and what he perceives to be her interests. The mother does not question or test L’s complaints but accepts them at face value and repeats them. After an incident when L kicked his paternal grandmother, the mother, although she ascertained the facts, did not chastise L.
It was demonstrated to the mother that L says things to teachers and supervisors that he sources to her. The mother said she did not say the things attributed to her by L but she was unable to concede that L might inaccurately report to her.
The mother sought orders that would allow L to decide whether he spends time with his father. I do not propose to make that order. The evidence before me is that L has attended on each visit with his father, at least since March 2013. L is requesting overnight and extended time with his father. L is still in a position where he has a conflict of loyalties between his parents. To impose on L the responsibility of choosing whether to go, with G, on the visits with his father can only exacerbate that conflict of loyalties.
It may be that the mother’s past experiences with the father have led to a failure of objectivity in her perceptions of the children’s relationships with the paternal family. That would be understandable.
There is no doubt that G has a close and loving relationship with his father and his paternal family. L’s relationship is more guarded and no doubt reflects his experiences of his father’s behaviour and his mother’s distress when the family lived together.
L, in order to consolidate his relationship with his father as close and loving, needs to experience his father as someone who loves and cares for him and who is respectful of L’s mother. That can only happen if he spends time with his father.
The extent of the parents’ participation in the children’s lives
The father complains that the mother has unnecessarily excluded him from the children’s lives after separation. Whilst there may be some substance in that complaint in the period between July 2013 and the conclusion of the hearing, I do not consider that her actions in the period after separation can be criticised.
The father’s behaviour leading up to separation was such that the mother was entirely justified in her concerns to protect the children from further harm. If her protectiveness extended for a longer period than was objectively necessary, that is understandable in the light of her, and the children’s, experiences of the father when he was using cocaine and drinking to excess.
In so far as she did not accept the father’s protestations about his reformed drinking habits, that too was understandable and was vindicated by the evidence of Dr J and Dr R about the level of alcohol consumption revealed by the CDT testing results.
The father has refused to spend time with the children in the presence of a professional supervisor with the result that he has spent less time with them than was available pursuant to the orders. I accept the father’s evidence as to his reasons for that decision and I accept that his belief that his decision was made in the best interests of the children was genuine. His decision appears to have been vindicated in that all of the adults involved with the children report that the children are more relaxed since professional supervisors have not been present.
The effect of changes and separation from a parent
The orders which I will make will have the effect that the children remain living primarily in the care of their mother. They will commence overnight time with their father and Ms K which is in accordance with their wishes.
They will continue to consult Ms B, their psychologist, who will help them and their parents make any necessary adjustments to accommodate the change in their circumstances.
The capacity of the parents and other significant people to provide for the children’s needs
The mother has cared for the children after separation in difficult circumstances. The only criticism that could be levelled at her parenting of them is that she has been over vigilant and, in the circumstances of her experience of the father before separation, that is understandable.
Provided that the father is not using drugs or drinking to excess, he is capable of providing for the children’s needs and being a loving and caring parent to them.
The orders which will be made for continuing testing and for the presence of Ms K or the paternal grandmother will, according to the expert evidence, which I accept, protect the children from the likelihood that the father will be affected by drugs or alcohol when they are in his care.
The mother has sought orders restraining the father from driving a motor vehicle with the children. There is no evidence which supports the making of that order.
The attitude to the children and the responsibilities of parenthood demonstrated by the parents
During the period before separation, when the father was drinking to excess and using cocaine, his actions demonstrated complete disregard for the welfare of the children and his responsibilities as a parent.
He has applied himself to his rehabilitation and, with the exception of the period in March and April of 2013, has appeared to be able to control his drinking. I accept that the hair follicle testing demonstrates that he has not used cocaine or any other illegal substances. That the father has been able to rehabilitate himself, to the extent that he has, demonstrates his renewed commitment to his responsibilities as a father and his love for his children. Only by continuing to abstain from excessive consumption of alcohol can he demonstrate to the children, to the mother and to the Court that he is prepared to make the welfare and best interests of his children his paramount concern.
Family violence
As I have explained earlier in these reasons, I consider that the father’s actions and behaviour in the period leading up to the expulsion of the mother and the children from the family home constituted family violence. I accept the evidence of Professor M that his behaviour was caused by his excessive abuse of alcohol and cocaine. I take into account the fact that the mother gave evidence that she believes that the children need to have a relationship with their father and to spend more time with him than they presently enjoy. The imposition of the supervisory regime is intended to protect the children both from the father’s abuse of alcohol and drugs and from the violence that has, in the past, flowed from that abuse.
I consider that it is in the children’s best interests to spend time with their father in the general presence of Ms K or their paternal grandmother and to impose upon him a strict regime of testing, in conjunction with the maintenance of his therapeutic relationship with Professor M and Ms H. In those circumstances, the children can have a loving relationship with him and, at the same time, they and the mother can have some reassurance that his prior behaviour will not again be visited upon them.
I certify that the preceding two hundred thirty-two (232) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 December 2013.
Associate:
Date: 10 December 2013
Key Legal Topics
Areas of Law
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Family Law
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