EVERLY & EVERLY

[2020] FCCA 3620

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVERLY & EVERLY [2020] FCCA 3620

Catchwords:
FAMILY LAW – Parenting – interim hearing – change of residence for one child.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MR EVERLY

Respondent: MS EVERLY

File Number: NCC 1066 of 2015

Judgment of: Judge Terry

Hearing date: 30 November 2020

Date of Last Submission: 30 November 2020

Delivered at: Newcastle

Delivered on: 30 November 2020

REPRESENTATION

Solicitors for the Applicant: Genuine Legal

Solicitors for the Respondent: Medcalf Grant Lawyers

Solicitors for the Independent Children’s Lawyer: Kristina Wooi Lawyer

ORDERS

1. The father shall have sole parental responsibility for X born in 2009 and Y born in 2010 (“the children”).

2. The children shall live with the father.

3. The children shall spend time with the mother each Saturday from 12.00pm to 3.00 pm.

4. The mother’s time with the children is suspended from 26 December 2020 until 4 January 2021.  During such time, the children shall have telephone communication with the mother once a week at a time convenient to the children and advised to the mother by text from the father.

5. Time in accordance with order 3 shall occur at a public venue such as B Day Care Centre, Suburb C or another public venue agreed between the parents and such time will be in the presence of the father.

6. The mother is restrained from allowing Mr D to be present at any location at which the children are spending time with her pursuant to these Orders.

7. The mother is restrained from consuming alcohol for 12 hours before and during any time that she spends with the children.

8. By no later than 6.00pm on Wednesday 2 December 2020 the mother shall deliver Y to the father’s home and the order concerning the living arrangements for Y shall then continue in accordance with the orders made today.

9. The mother is encouraged for Y’s sake to assist Y to bring with her some items of clothing and favourite toys.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The matter is adjourned to 9.30am on 11 February 2021 for further consideration.

2. Each of the parties and legal representatives have liberty to attend by telephone on 11 February 2021 by dialling in using the following details:

   (a)Phone:      ... Australia, Sydney (Toll)

   (b)Conference ID:  ...

3. If the court has muted participants, when the matter is called each party and legal representative will need to press *6 to unmute themselves.

IT IS NOTED that publication of this judgment under the pseudonym Everly & Everly is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1066 of 2015

MR EVERLY

Applicant

And

MS EVERLY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. It is highly regrettable that on 2 November 2020 the mother was not willing to agree to Y spending more time with her father when no risk of harm issues were raised about the father. It appears that her opposition to that occurring may have simply arisen from the fact that the Court was not prepared to order, or the father to agree to an order, that X spend more time with the mother because of the risk of harm issues in the mother’s care.

3. This matter involves parenting arrangements for X, who is 11 and Y, who is 10.  They are close in age siblings. 

4. The parents separated when the children were very little. I have it down as June 2012, so Y would have been under two and X not much over, and following separation the children remained with the mother. 

5. That changed on 21 January 2018 when X expressed a wish to live with the father. There had been some issues between X and the mother in the previous year and on 21 January 2018 the parents facilitated X moving to live with the father. 

6. X has lived primarily with the father for almost the last three years and during that period Y remained with the mother. 

7. For most of that period the children spent regular time with the parent they weren’t living with.

8. On 3 March 2020 however the father filed an application in which he sought on a final basis that the children live with him. At that stage he was seeking that they spend some quite extensive time with the mother, Thursday to Sunday in one week and Thursday to Friday in the other. 

9. In September 2020 he amended that application and he is now proposing that the children live with him and spend reduced time with the mother.

10. The mother filed a response to the father’s application in which she proposed a continuation of what had been the existing arrangements, which were that X live with the father, Y live with her and X spend time with the mother and Y spend time with the father in pretty much a mirror image way. 

11. The matter comes before me today for an interim hearing because the father is pressing me to make an interim order that Y commence living with him and spend some fairly limited time with the mother until there is a further inquiry into the issues to do with the mother’s alcohol consumption, the family violence in her relationship with Mr D and her mental health. 

12. The mother is proposing that Y continue to live with her and X with the father. Her solicitor did not address the issue of time, but presumably she is proposing that Y spend a little more time with the father and X than is currently occurring.

13. These are interim proceedings, and at an interim stage the Court cannot usually make findings about issues in dispute, but it does have to be very careful about how it treats disputed issues. It cannot simply say that because nothing can be proved the Court should just ignore allegations which might, if true, mean that the children are at risk of harm in a parent’s care. 

14. It is an undisputed fact in this case that Y has always lived with her mother. The parents separated when she was quite young and she has lived with her mother ever since. There is also no dispute that X has lived with the father since January 2018. 

15. Both parties have re-partnered and the father and his partner have a little child, E, who is now 17 months.  The mother has a child, F who is six. Y has settled with her mother and X has settled with his father.  That is the undisputed background to the matter. 

16. The father says, though, that Y’s living arrangements should be changed and X’s time with the mother should be significantly reduced because of some risk of harm issues. 

17. One of the principal risk of harm issues is the mother’s alcohol consumption.  The evidence about the mother’s alcohol consumption is very concerning because it suggests that the mother has had a longstanding problem with alcohol use. 

18. The father gave evidence, which was not admitted but it is evidence that is sitting there, about seeing the mother drinking bourbon in October 2016, at which time he said the mother told him she had had a fight with Mr D, and that she had hit Mr D and thrown his phone. 

19. There is reference to the mother consuming alcohol in the September 2017 to January 2018 period leading up to X changing residence.  The father said that in July 2018 he visited the mother’s home and saw alcohol bottles and no furniture.

20. On the mother’s own admission in the quite recent past she has been drinking very heavily indeed. The Child Inclusive Child Dispute Memorandum, which I will mark as exhibit B in the proceedings, indicates that the mother told the family consultant that she had previously problematically used alcohol, drinking one to two bottles of wine each night for about 12 months prior to her moving into her own home in November 2019 and through to February 2020. 

21. The mother reported that Mr D’s alcohol use was also problematic during the same period. 

22. The mother reported that she and Mr D had both ceased using alcohol in February 2020.  There are several concerns about that; one is that people are often not frank about the extent of their alcohol consumption, and the other is that there is reason to suppose that both Mr D and the mother have been consuming alcohol since February 2020. 

23. There is reference in a police report in April 2020 to alcohol consumption and the mother referred to Mr D consuming alcohol quite recently in the affidavit she filed in November 2020.

24. The mother has a very lengthy history of admitted problematic alcohol use, and quite possibly a much longer history than she admits if the father father’s evidence about what he observed proves to be true, and there is some lack of credibility in the mother’s assertion that she ceased using alcohol in February 2020. 

25. The mother was asked to obtain funding to do an alcohol hair test in June 2020.  She did not do so. An order was made in September 2020 for her to do the hair test. She complied with that order but the report said that her hair was so damaged that the testing laboratory were unable to test it for anything, so I do not have any test results in relation to the mother concerning her alcohol use.

26. She has recently done another test and I do not have the result of that yet but I agree with the submission by the Independent Children’s Lawyer that the mother’s alcohol problem is, on the face of it, so extensive and so serious that I can’t just say, ‘all right, if she produces a current hair test saying she hasn’t drunk much in the last three months, I should cease to be concerned.’ 

27. There is reason to suppose that Mr D is still drinking. There is reason to be suspicious that the mother is still drinking and the situation between the mother and Mr D has resulted in the police being called to the residence on a number of occasions because of incidents of family violence, and they seem to have been connected with alcohol use.

28. The current ADVO against Mr D prevents him coming to the mother’s home if he has been consuming alcohol in the previous 12 hours. 

29. Alcohol use has been associated with family violence between the mother and Mr D, and there had been numerous police call outs.  When I say numerous, at least five or six that are in the police reports and it is exceptionally concerning that that has been going on in the home. 

30. Children who are exposed to that sort of thing become, gradually, to think there is something normal about it, that it is all right, this is how people behave and when they get out of line, the police are called and they turn up. 

31. It is not normal. It is damaging and the fact that the children haven’t been hurt or upset, at least as far as we know, by the family violence to date, doesn’t mean that I shouldn’t be gravely concerned about a child remaining in a household where that may occur.

32. The other issue is the mother’s mental health.  She has been diagnosed with bipolar. She shouldn’t be drinking whilst she’s taking her medication and she has been drinking. 

33. I cannot make a finding about the nature and extent of the mother’s alcohol abuse, but I know her drinking has been problematic.  I cannot be certain about the current status of it and even if the mother produced a clean hair test now, the fact that there have been issues with her alcohol consumption for a number of years means that it may take some time before the Court could be confident that it is no longer a problem. 

34. It has been associated with family violence and the mother has been consuming alcohol whilst she has also been taking her mental health medication, which is extremely concerning because nobody should be drinking, as there are warnings on the medication.   

35. That raises a concern about Y being in that home. 

36. Normally, I wouldn’t have a second’s hesitation in saying she should be taken out of that home because there are no allegations about the father.  There is a reference somewhere to cannabis use but it hasn’t been recently pursued and there are no allegations by the mother that there are risk of harm issues in the father’s home and the child has a sibling in the father’s home so normally I wouldn’t have a second’s hesitation about moving her. 

37. The mother’s solicitor says I shouldn’t do so, however, because Y has spoken to the family consultant and says that it’s ‘kind of more comfortable living with mum.’  There are some things she dislikes, such as not having her own room and the mother getting a bit mad and yelling, and that is making her a bit a worried and a bit sad, but she refers to the fact that her mother’s nice and listens to her and wants to spend a lot of time with her.

38. Y then goes on to refer to her mum and Mr D (Mr D) having an argument.

39. The mother’s solicitor says that it is premature for me to take Y out of that home because she is comfortable enough there.  She has always lived with the mother and I shouldn’t just rush in and remove her.  He points to the fact that in paragraph 50 of the memorandum, the family consultant appears to express a similar view. 

40. The family consultant, of course, doesn’t have all the evidence that I do.  He isn’t aware of the fact the mother didn’t do the first hair test and that the second time, the hair could not be tested. 

41. Family consultants who conduct child inclusive conferences don’t read the subpoena material, so I have more evidence before me than the family consultant had and in my view, a change of residence should be made for Y.

42. I say that because, absent the submission about her always having been there, I would have been most unhappy about leaving her there.  I accept that it will be a significant change but there are numerous reasons to suppose that it is one that she will be able to adapt to it.

43. Y told the family consultant that she missed X.  She also spoke positively about her stepmother and identified no worries or dislikes in respect of her.  She expressed verbally and non-verbally that she missed X and the father, so there is no question that she has a good relationship with the father. 

44. The balance of the evidence suggests that Y should commence living with the father and until the mother can get some runs on the board about the alcohol use, the orders the Independent Children’s Lawyer is proposing ­ and which the father ultimately adopted about the children’s time with the mother, are the orders which should be followed.

45. I am going to put the matter over for mention in February 2021.  If the mother’s hair test has come through then and it is clear, and we have some evidence that the mother’s productively engaging in drug and alcohol counselling, we might be able to have another look at it. 

46. But we might not as well. I don’t want to hold out false hope to the mother because the fact that she is still pursuing this relationship with Mr D which involves family violence as well as alcohol consumption is gravely concerning. 

47. One of the concerns is that children stuck in this situation of being in a home where sometimes people drink too much, get into fights and the police turn up, begin to think this is normal.  It’s not.  And we’ll see how things go for Y once she has been out of that environment for a little while. 

48. I didn’t address the issue of parental responsibility.  The father is now seeking sole parental responsibility although he wasn’t initially and it is appropriate that I make that order. The father needs to be able to have authority to make decisions for the child if anything else arises at the school and to ensure that she attends counselling and it is unclear that the parents are in a good position to cooperate in reaching agreements about those things.

49. It might be that on a final basis equal shared parental responsibility is appropriate, but just to give the father sufficient authority to deal with issues that arise for Y, I am, at the moment, going to make the order for sole parental responsibility that the Independent Children’s Lawyer proposes. 

50. I am going to make an order that by no later than 6:00pm on Wednesday, 2 December, the mother shall deliver Y to the fathers home. 

51. The mother is encouraged, for Y’s sake, to assist her daughter to bring with her some items of clothing and favourite toys, but I am just going to say encourage, at the moment.  Sometimes people can bring themselves to do that, sometimes they can’t. I am not expecting the mother to divest herself of everything Y owns, I am simply thinking that sometimes children have some favourite things, even at the age of 10, and if they can bring them with them, it can make the transition a little bit easier for the children. 

52. The other thing that might occur and I acknowledge this, is that the little girl is going to miss her young brother F and that is an issue in the case too, but I cannot leave her there just because of that concern.  I just have to hope the father’s sensitive to that.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 11 February 2021