FALCONE & NEWITT

[2012] FamCA 904

FAMILY COURT OF AUSTRALIA

FALCONE & NEWITT [2012] FamCA 904

FAMILY LAW – CHILDREN - Best interests – Interim orders

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346
Collu & Rinaldo [2010] FamCAFC 53
Marvel & Marvel [2010] FamCAFC 101

APPLICANT: Mr Falcone

RESPONDENT: Ms Newitt

FILE NUMBER: MLC 6160 of 2012

DATE DELIVERED: 2 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 28 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Caroline Counsel Family Lawyers

UNTIL FURTHER ORDER IT IS ORDERED THAT

1. The child B (the child) born … October 2009 live with the father.

2. The child spend time and communicate with the mother as follows:

   a)each Sunday and Wednesday between the hours of 11:30am and 6:30pm;  

   b)each Thursday between the hours of 10:00am and 4:00pm.

   c)by telephone for no longer that 10 minutes on each evening when the child has not spent time with the mother between 6:00pm and 6:30pm with the mother to initiate the call and the father to facilitate the call.

   d)at such other times as the parties may agree in writing.

3. The mother’s time with the child pursuant to these orders shall occur under the supervision of an independent supervisor to be agreed by the parties and the cost of such supervision (if any) to be at the expense of the mother;

4. The parties meet for changeover in the lobby of the father’s apartment at Suburb C or as otherwise agreed in writing.

5. The father and the mother be and are hereby restrained by their servants and agents from removing the child from the Commonwealth of Australia and for this purpose the child’s passport shall be held by the father’s solicitors until further order.

6. The mother be and is hereby restrained from removing the child from the State of Victoria without the consent in writing of the father.

7. The mother be and is hereby restrained from consuming alcohol whilst the child is in her care or during the 12 hour period prior.

8. The father and the mother be and are hereby restrained from denigrating the other in the presence or hearing of the child or knowingly allowing any other person to do so.

9. All extant applications be listed a first day of hearing before Justice Macmillan at 10:00am on 10 April 2013 for the making of orders and directions to prepare the matter for trial.

10. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document a copy of which is annexed to these orders.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Falcone & Newitt 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 MELBOURNE

FILE NUMBER: MLC 6160 of 2012

Mr Falcone

Applicant

And

Ms Newitt

Respondent

REASONS FOR JUDGMENT

1. The applicant father and the respondent mother married in 2007 and separated under the one roof in April of this year. The child who is their only child is almost three years of age. He currently lives with his father in the apartment, which was the former matrimonial home, pursuant to orders made by consent on 13 July 2012. Those orders were made after the father issued an urgent Initiating Application seeking orders that  the child live with him and restraining the mother from removing the child from the State of Victoria after he said he discovered that she was intending to take the child to Perth without his knowledge or consent. The mother left the former matrimonial home and obtained her own apartment shortly after the commencement of these proceedings.  The child currently spends between the hours of 12.30pm and 7.30pm each Sunday and Wednesday and between 10.00am and 4.00pm each Thursday with the mother. The mother also communicates with the child by telephone between 6.00pm and 6.30pm on those days when he is not in her care. The time the mother spends with the child is supervised by the maternal grandmother.

2. At the heart of this case is the issue of the mother’s history of alcohol abuse and what risk that presents to the child’s wellbeing, whether she has continued to consume alcohol notwithstanding her assertions that she has not had a drink since 10 June 2012 and if she has in fact not had a drink since that date the risk of a relapse. It is also common ground that the mother has had an eating disorder. The mother has been hospitalised on three occasions in relation to her alcohol consumption and eating disorder.

3. Notwithstanding that this is a relatively recent separation there is significant animosity and distrust between the parties and the litigation is hotly contested. This distrust and animosity has the potential to overshadow the capacity of these parties to make decisions in relation to what is in the child’s best interests. Each complain of the other’s invasions of their privacy however ultimately, I must determine what is in the child’s best interests having regard to all of the evidence before me and at all times being mindful of the fact that I have not had the opportunity to test the evidence before me and that I am not in a position to make any findings of fact. As the Full Court said in Goode & Goode [2006] FamCA 1346 the procedure in interim proceedings such as this one is an abridged process and the Court should not be drawn into issues of fact where findings are not possible and should focus on those matters that are not in dispute.

4. The matter proceeded on the basis of the various affidavits of the parties, the affidavits of Dr D, Dr E and Mr F all filed 10 September 2012, the affidavits of the mother’s parents, Mr and Ms G, filed 13 September 2012, and the report of Ms H dated 13 August 2012. I was referred to documents produced pursuant to subpoena by Dr D, J Hospital and the K Clinic. I was also provided with video recordings made by the father of the mother prior to separation showing her under the influence of alcohol and audio recordings of conversations between  the child, the mother and the maternal grandparents which the father obtained by bugging the child’s backpack when he delivered him to the mother pursuant to the orders. No objection was taken to the admission of either the video or audio recordings into evidence although submissions were made as to the weight that should be given to them.

5. The mother proposes that, she says, having not consumed any alcohol since 10 June 2012, attending weekly sessions at Alcoholics Anonymous and undergoing supervised urine screening, she has successfully addressed the issue of her alcohol abuse, that the orders of the 13 July 2012 should be discharged. She says that the child should spend time with the father each Tuesday from the conclusion of child care until 6.30pm on Wednesday and each Friday from the conclusion of child care until 10.00am Sunday and that the child should otherwise live with her.

6. The mother says that until she and the father physically separated on 10 July 2012 the child had always lived with her and she was the one he asked for when he awoke and the one he turned to for comfort if he was ill or upset. She says that it is demonstrably not true as asserted by the father that he never left the child alone with her because of his concerns about her capacity to care for him. It is the mother’s case that the child’s ongoing separation from her is not in his best interests. The mother’s assertions are denied by the father. It is not possible for me to make findings of fact with respect to these disputed issues.

7. The mother acknowledges that she has abused alcohol and that she has had an eating disorder and says that she has come to a watershed in her life and now understands what is at stake if she starts drinking again. Although she says she has not consumed any alcohol since 10 June 2012 she would consent to and abide by orders restraining her from drinking. She submits that on that basis I can be satisfied that the child is not at risk and that supervision of her time with the child is not necessary. She relies upon the fact that she continues to work as a doctor and the affidavit of Dr E with whom she works.

8. The mother, in her affidavit filed 13 July 2012, deposed that after the child was born she “…suffered from post-natal depression and on occasions consumed alcohol to deal with these issues.” She deposed to having voluntarily admitted herself to the K Clinic on two occasions and J Hospital on one occasion. She said that she admitted herself to J Hospital the first time under duress as the father had threatened to leave her if she refused.

9. The second admission she says was to the Wellness/Lifestyle Ward at the K Clinic and was for weight restoration due to a combination of issues including a relationship crisis caused by the father’s infidelity.

10. She says the third admission was again a voluntary admission to the K Clinic and was for weight restoration due to an eating disorder. In her most recent affidavit she says that her issues with alcohol were episodic.

11. The mother in her second affidavit filed 13 September 2012 also deposed to a history of family violence. She says that the fact that the father has produced video footage of her when he says she is affected by alcohol, has bugged her conversations and hacked into her emails, speaks volumes as to the kind of man that he is and lends credence to what she says about the nature of their relationship. She questions his motives and says that he would do anything to win.

12. The mother relies upon this evidence firstly on the basis that it raises questions about the father’s parenting capacity and secondly, that it is relevant for the purposes of my assessing any risk to the child. The mother says that her relationship with the father, and in particular the father’s history of family violence, was a significant stressor and that the risk is lessened by the removal of that stressor.  This is a question of fact which cannot be determined in the context of these interim proceedings however I do note, as submitted on behalf of the father, that there was little reference to any issue of family violence in the medical records although I also note that Dr D deposes to the father having acknowledged an incident of family violence during a session either late last year or early this year. That evidence remains to be tested, however even if that were found to be true, it falls well short of the history of family violence deposed to by the mother. Nor can I conclude that, in the absence of any ongoing pattern of violence or removed from what she says was the stress of the relationship, the mother will not consume alcohol or that there is no risk to  the child in her care in the event that she does so. 

13. Based upon the history of the matter, the father questions the mother’s insight into her problems with alcohol, whether her acknowledgment of the problem is, in those circumstances, genuine and, even if her commitment not to consume alcohol is genuine, whether she has the capacity to maintain that commitment. The father’s case is that the first real step towards recovery is for the mother to acknowledge the extent of her problem which he says, based upon her evidence and the way in which she puts her case, she has not done.

14. The father’s counsel referred me to the medical records produced by Dr D, the mother’s treating psychiatrist. Dr D started treating the mother after her admission to J Hospital and it was Dr D who referred her to the K Clinic. These included letters sent by Dr D to the mother’s general practitioner on 17 September 2011,1 December 2011,15 May 2012, 16 June, 2012, 12 July 2012 and 1 August, 2012.

15. In his letter to Dr L dated 11 September 2011 Dr D sets out in some detail the history he has taken from the mother as follows:

    ….Her relationship is reasonably stable, although has been recently strained because of illness. …She does not give the most elaborate history of her problems with anxiety and depression, and I wonder if this is due to the fact that she is a [health care professional] and worried about stigma. There seems to be a history of anxiety symptoms from age 24. These seem to have fluctuated in intensity since then. There also seems to be a history of anorexia nervosa and purging, with significant restricting of her intake at times of stress. More recently with her move to [the United States] and the stressors related to this, there has been an increase in history of alcohol dependence.

    Over the last several months, she describes a combination of symptoms of depression, anxiety, increased restriction of her diet, increasing frequency of purging, and increasing use of alcohol. There are no particular stressors that can account for this…She has recently been admitted to [J Hospital] for alcohol detox. However she returned to alcohol almost immediately post discharge. She is drinking to about a level of 4 standard drinks a night, with occasionally greater binged use at times of particular stress – but I suspect greater use. Given her embarrassment at lashing out at her husband post a recent binge, she has reportedly ceased alcohol use. There was reasonable guardedness about her level of intake.

16. In his letter to Dr L dated 1 December 2011 Dr D said as follows:

    She is alcohol dependent and is non compliant with Antabuse, and my interventions around ceasing alcohol…She was seen as an outpatient on the day prior to me going on leave overseas, in the company of her husband, in crisis given an increasingly fractured relationship in the context of marked intoxication. Matters seemed to be worsened by the fact her parents were residing with them, notionally to provide support, but were found to be intrusive by her husband. On that appointment I threatened reporting her to the [health professional association] unless she would agree to inpatient detox, and compliance with the eating disorders program...

    …I note her admission was complicated by at least one episode of her drinking whilst an inpatient after she had taken leave from the hospital.

    …I made it clear that it was likely that I would need to report her to the [health professional association] if alcohol abuse was not significantly addressed.

17. In a further letter to Dr L dated 15 May 2012 Dr D said as follows:

    As you are aware she is a lady struggling with anorexia, alcohol dependence and significant marital difficulties.

    I am hoping that she may have turned a corner.

    Over the last week, she reports no alcohol use. This is thankfully a lot better than the immediate post discharge period, where she continued to drink to intoxification several times a week, and would deny this to her husband [Mr Falcone] despite evidence to the contrary. She has been attending AA. She has continued to take Antabuse, and reports significant symptoms of nausea and flushing when she does drink.

18. In a second letter of the same date he says:

    Her illness is further complicated by alcohol dependence for several years. She has not been able to maintain level of abstinence for quite some time and there is a significant degree of intoxification that occurs chronically at night. There has been multiple unsuccessful detoxes.

    The combination of her anorexia and alcohol dependence has led to significant marital strain. Her husband [Mr Falcone], a visual artist, seems to be near terminating their marriage.

    On initial review, she presented as pleasant and bright. She minimises any of the challenges that she will have in the program and her illness generally.

    In hospital….Her alcohol use decreased. However, it became apparent that on leaves she continued to access alcohol. When confronted with alcohol use, given suspicion that was prompted by her smelling of alcohol, she denied this, and continued to deny this despite blowing 0.4 on a breathalyser – attributing it to possible mouth wash use.

    Her ongoing alcohol use places significant strain on her relationship, as her husband feels trapped, as he does not feel safe to leave their son [B] in her care. With quite significant prompting, I have asked her to engage in AA, and restart Antabuse. I have been more direct with her parents, indicating to them that she is an alcoholic, because I suspect their support and minimisation of her symptoms was enabling her.

    I am really unsure how things will progress.

19. Dr D saw the mother again on 13 June 2012 and reported to Dr L on 16 June 2012 as follows:

    Unfortunately the more positive accounts from the last correspondence have not been sustained. She seems to have returned to significant alcohol use, much to the dismay of her husband, who reports her even drink driving. He has indicated that he will be separating from her. Given I think that there is a role her intoxication plays in communicating resentment and anger towards her husband, given their relationship has suffered from his increased work commitments, I suspect that dysfunctional behaviour may in fact increase.

    Child custody issues are going to be a particular stressor for her.

20. On 1 August 2012 after an appointment with the mother on 25 July 2012 Dr D reported to Dr L as follows:

    She reports no alcohol use, and no cravings for alcohol. She is conscious of the fact that there is no way for me to prove this, and self nominates the possibility of doing some liver function tests. Unfortunately, her liver function tests have always been normal. In reality, there is no way for me to definitely know whether she is using alcohol or not. When she questioned me about if she was a risk to her child, I responded that yes, if she is drinking, but no at other times. This is in keeping with her assessment. She continues to work as a [health care professional].

21. Dr D has also sworn an affidavit on behalf of the mother. He makes the following points in that affidavit:

    ·    That he has reviewed the mother’s liver function tests and that those tests have always shown that her liver is functioning normally and has not been damaged by alcohol consumption;

    ·    That the mother is maintaining her employment and attending weekly Alcoholics Anonymous meetings;

    ·    That the mother has been undertaking blood tests which have all shown a Nil reading; and

    ·    That the maternal grandmother has been attending upon Dr D and providing him with collateral accounts of the mother’s progress.

22. Whilst Dr D has not been cross-examined, the emphasis of his evidence as against the evidence contained in the documents produced pursuant to subpoena does appear to paint something of a different picture. In the absence of the subpoenaed documents I would be likely to draw a somewhat different inference based upon the evidence contained in his affidavit. For example, it is clear from the subpoenaed documents that the mother has continued to work, attend AA, and continued to show no sign of liver damage not withstanding what would appear on the evidence I do have to be the ongoing consumption of alcohol. In those circumstances it is hard to take much comfort from the fact that she is doing so now. He has also expressed in the letters concern about the mother’s parents enabling her to continue drinking whilst in his affidavit relying upon the mother’s mother for a collateral account of her progress.

23. Ultimately, the opinion he expresses in his affidavit is consistent with what he reports in the letters to Dr L and that is that the child is not at risk in the mother’s care as long as she remains alcohol free.

1. In somewhat unusual circumstances I am told that Dr D recently sent some documents to the father’s solicitor. When enquiries were made of Dr D to ensure that those documents had not been sent in error, he initially said he had sent them intentionally but then changed his mind and asked the father’s solicitor not to look at the documents. The mother agreed to the request made by the father’s counsel to inspect those documents at Court. Those documents, read in conjunction with blood test results produced by Dr D pursuant to subpoena, disclose that on 7 September 2012 the mother returned a low but positive alcohol reading. The test was taken at 3.00pm although it is clear from the correspondence that Dr D asked the mother to take the test at around 10.00am that day. He reports the mother as vehemently denying that she had consumed any alcohol and her parents reported being in close contact with her over the period of Thursday night to Friday the day on which the sample was taken. The mother alleges that the blood was taken from her arm which had previously been cleaned using an alcohol swab and suggested that that would account for the positive reading.  

2. On 13 September 2012 after receiving the test results Dr D emailed Dr M the Pathologist at N Pathology as follows:

   My patient [Ms Newitt] has a history of acknowledged alcohol problems. She has agreed to complete abstinence in the setting of matters before the family court. Part of the requirement upon her are to have random BAL ordered by me to be completed after I send her a TXT message. Any alcohol within her system would be of significant concern to me and the court. Complicating matters is a past history of her denying using alcohol when faced with objective evidence to the contrary ie positive breathalyser reassign and reporting unlikely reasons for this to have occurred. However, her parents have recently been closely monitoring her, and by their account have not seen any evidence of alcohol use recently - and she has been successfully working as a [health care professional] without concerns being raised (although she was not working on the day of the blood collection).

3. Dr M’s reply to Dr D sent on 26 September 2012 was that he had checked some references in relation to BAL and alcohol swabs and that “…they state that there is no statistical difference between the use or non use of alcohol swabs and BAL”. He added that he wished to consult experts in the field. I have also been referred to the letter from Dr O Chemical Pathologist with P Pathology of 10 September 2012 and that Dr O points out that the “sample used for analysis was also noted to be haemolysed. In our experience, with the enzymatic assay which we use, haemolysis can lead to false elevations in blood ethanol levels.”

4. On the state of the evidence before me I cannot make any findings in relation to the validity or otherwise of the test in question or the cause of the low but positive reading for alcohol however, as Dr D said in his letter to the mother:

   Obviously a low alcohol level reading is not in any way indicative of significant intoxication. However, it does call into question her believability given her account of complete abstinence.

5. He also said, although I note that this was before he received Dr M’s reply to his email that the mother’s “…account of why her sample was a false positive seems believable and I am anxious to hear whether such things can occur from the pathologist.” I do not know what, if any, effect Dr M’s response has had upon Dr D’s views about the believability of the mother’s explanation and whether this is another example of the mother attempting to cover up her use of alcohol.

6. I did, as I was asked to do by counsel for the father, view the video footage of the mother taken by the father prior to separation. I do not propose to refer to each of the incidents filmed by the father however in general terms those videos show the mother significantly affected by alcohol. Certainly they would support the father’s case and Dr D’s conclusion that if the mother were affected by alcohol she would not be able to provide appropriate care for  the child and I am satisfied that he would be at risk in her care if that were the case. I also note that the maternal grandmother is present on at least one of those occasions when the mother is clearly affected by alcohol.  

7. On the basis of the evidence of Dr D and the documents produced pursuant to subpoena to which I have been referred and the basis upon which the mother has put her case I have very real concerns about whether the mother has in fact truly acknowledged the issues she has both with respect to her use of alcohol and her eating disorder. Much of the focus of the mother’s case is on the father’s conduct rather than an acknowledgement of her problems and how she has or can address them. Whilst she now says she has reached a watershed I am conscious of the fact that she would have previously been aware that she had much to lose including her career and her marriage and yet she was unable to abstain from alcohol.

8. Even the report of Dr Q dated 6 September 2012 addressed to the mother’s solicitor upon which the mother seeks to rely raises issues about what the mother has said about her use of alcohol. He refers to the fact that there is no evidence that the mother has drunk to damaging levels on the basis of a number of liver function tests and refers to her having one objective episode of intoxication, namely her drink driving offence and that she admits to other episodes of intoxication. He then goes on to report that the mother “claims that she has turned things around since February this year, that since then she has not drunk to excess” and he says that he has no reason to doubt that statement. With the greatest or respect to Dr Q, that is not supported by the other evidence and it clearly suggests that the mother has not accurately reported the magnitude of her problems and to the contrary, has actively attempted to minimise her problems.

9. It is also clear from Dr Q report that his understanding is that the main stressor for the mother has been her relationship with the father. This would also appear to be a somewhat simplistic assessment based upon what he has been told by the mother. In all of the circumstances, I am not greatly assisted by Dr Q’ opinion, and to the contrary, it adds to my concerns about the mother’s insight into and acknowledgement of her problems.

10. I am not in a position to make a finding as to whether the mother has or has not abstained from alcohol since 10 June 2012 as she asserts. Even if I were satisfied that she had not consumed any alcohol since that date she would still in those circumstances have only maintained her sobriety for three to four months. Ms H, who was engaged by the parties to prepare a Family Report, suggests there is a need for the mother to maintain her sobriety for over a year and for at least 6 months before there is any increase in the time the mother spends with the child. Whether or not I accept her recommendation as to when the mother’s time with the child should be increased I am certainly of the view that after just three months of sobriety the mother’s application is premature.

11. The father accepts the recommendations made by Ms H for the child to spend time with the mother in accordance with the current arrangements save that he says:

    ·    The time the mother spends with the child should start and finish an hour earlier; and

    ·    The phone calls should be for a shorter period

12. The father also says that the time the mother spends with the child should be supervised by an independent supervisor engaged by the mother. The father says that the recordings of the interaction between the mother, her parents and the child evidence an unrelenting pattern of emotional abuse of the child. I have listened to those recorded conversations and am satisfied that there has been a sustained, albeit sometimes quite subtle, pattern of interrogation and manipulation of the child and denigration of the father by the mother and her parents in varying degrees. Whilst the mother may not have been personally responsible for some of the more serious attempts to undermine the child’s relationship with the father or denigration of the father she has been present and allowed it to happen on a number of occasions without objection and has herself inappropriately asked the child questions and commented on the time he spends with the father. There was little by way of acknowledgement by the mother of the inappropriateness of these conversations.

13. The mother says that to describe what has occurred whilst the child is in her care as constant emotional abuse is a gross overstatement. She says that the father’s decision to record her conversations with the child is appalling behaviour demonstrating a failure on his part to recognise appropriate boundaries and is a clear example that he will do whatever it takes to win. She says that as he has been unable to prove that she has consumed alcohol he has now refocused his case on what he describes as emotional abuse. Although there are clearly issues in relation to the recording of private conversations, there is also a possibility, given the history of this matter, that the father did so in this case out of concern for the child’s welfare. Whatever the father’s motive, which remains to be tested, those conversations are in evidence and they give rise to real concerns as to the capacity of the mother and her parents to place the child’s needs before their negative feelings and animosity towards the father.

14. The mother also points to the fact that notwithstanding that there are some weeks of recordings the father cannot point to a recording which would suggest that she has been drinking. Whilst that is encouraging, the child spends only limited time with the mother and I could not conclude on that basis that therefore the mother has not consumed any alcohol at other times when he is not in her care. It is clear from the evidence that it is not simply a question in this case of the mother not drinking when the child is in her care as she has a significant problem with alcohol and needs to demonstrate that she has not consumed any alcohol at any time.

15. Of particular concern is the behaviour of the mother’s father. Although he does not supervise the time the mother spends with the child he has clearly been present on many occasions. On a number of occasions the maternal grandmother attempts to tone down the grandfather’s comments pointing out that the child may report what has been said to the father and that it might be used against the mother in Court, however she does not always stop those conversations and in fact participates in what I would describe as the more subtle manipulation of the child.

16. This is consistent with the affidavits sworn by the mother’s parents. The grandmother deposes in some detail as to the relationship between the child and the mother and the history of the child’s care and apart from a passing reference to the mother being in hospital, does not refer to the mother’s issues with alcohol or her eating disorder. Her father deposes in some detail to the father’s aggressive behaviour and what he suspects is a history of family violence however he makes no mention of any of his daughter’s issues with alcohol or her eating disorder.

17. The concern of the grandmother seems to be in relation to the outcome of the case rather than what impact these discussions might have upon the child. The comments made by her demonstrate a clear awareness of the litigation and the need to protect the mother in the context of the proceedings but they give me little confidence in the grandmother as a supervisor or for that matter as the person providing information to Dr D as to the mother’s alcohol consumption.  

18. When making my decision it is the child’s best interests that are the paramount consideration. A determination of the child’s best interests requires a consideration of the primary and additional considerations in section 60CC, subsections (2) and (3) of the Family Law Act 1975 (Cth).  An analysis of those statutory considerations of what is in the child’s best interests must be consistent with the objectives and principles underlying those objectives outlined in sections 60B(1) and (2) of the Act. There is in many cases some overlap between the primary and the additional considerations and as the Full Court said in Collu & Rinaldo [2010] FamCAFC 53 the idea of looking first at the additional considerations before turning to consideration of the primary considerations has some attractions.

19. Turning first to the additional considerations in section 60CC(3) of the Act, which are as in most cases of varying degrees of relevance as follows:

    a)Any views expressed by the child and the weight to be given to his views.  The child is not yet 3 years of age and even if he had expressed any views, those views, given his age, would be of little significance to my determination of what is in his best interests.

    b)The nature of the child’s relationship with the parents and any other persons, including his grandparents and the likely effect of any changes in the child’s circumstances, including the effect of any separation from either of his parents or any other person with whom he has been living including his grandparents. The child currently lives primarily with the father and spends time with the mother. Although the mother alleges that  the child is missing her and that the current arrangements are not in his best interests, I am comforted in that regard by the observations of Ms H that  the child demonstrated a “…close attachment” to the father  who:

    …engaged well with him, giving him his undivided attention, allowing him to lead the play, attending to his physical needs, setting boundaries and expectations and responding creatively to the joint task.  The child demonstrated good manners and responded well to his father’s praise, encouragement and guidance. Both were relaxed and enjoyed each other’s company.

    I am also comforted by the evidence that Ms H made enquiries to the Director of R Child Care and was advised that the Centre was unaware that the mother had been living away from the child and that no change had been observed in his behaviour. Ms H observed that although the child protested his father’s removal he quickly engaged and settled with the mother. Doing the best I can on the basis of the evidence I have before me, albeit that it is untested, and in particular the evidence of Ms H the single expert, I am satisfied that the child has a good relationship with both his parents and his grandparents.

    c)The capacity of the parents and any other person including his grandparents to provide for the child, including his intellectual and emotional needs and the attitude to the child and the responsibilities of parenthood demonstrated by the parents. I have no doubt that the child is well loved by his parents and his grandparents however for the reasons already set out in some detail I have reservations about the capacity of the mother to provide for the child’s needs if she is unable to refrain from the consumption of alcohol or his emotional needs whether or not she is consuming alcohol. Both the mother and her parents have demonstrated a lack of capacity and an unwillingness to put the child’s emotional needs before their negative feelings about the father. The recorded evidence of their conversations with the child demonstrates an inability on their part to promote the child’s relationship with the father.

    d)The extent to which the parents have taken or failed to take the opportunity to participate in decisions about major long term issues in relation to the child and to communicate and spend time with the child. The parties separated relatively recently and although there is evidence in relation to the mother’s significant alcohol related issues until separation, they appear to have demonstrated a capacity to make major long term decisions with respect to the child. Although the mother is critical of the father leaving  the child to be cared for by others including his mother when the child is in his care I am satisfied that both parents have taken the opportunity to communicate and spend time with the child and that in particular the father is providing appropriate care for the child.

    e)The extent to which the parents have fulfilled or failed to fulfil their obligations to maintain the child. There is no evidence before me that either party has failed to fulfil their obligations to maintain the child.

    f)The practical difficulty and expense of the child spending time with and communicating with the parents and whether that difficulty or expense will substantially affect the child’s right to maintain a relationship and direct contact with the parents on a regular basis. The father’s proposal is that the mother’s time with the child be supervised by an independent supervisor and that that should be at the mother’s expense. The mother opposes the father’s application however it was not submitted on behalf of the mother that she would not be able to meet the costs of any supervision if I were to make such an order or that the cost of such supervision would be likely to affect the mother’s ability to maintain that relationship.

    g)The maturity, sex, lifestyle and background of the child and either of the parents and any other relevant characteristics of the child. These are not relevant factors for the purposes of this interim hearing.

    h)If the child is an Aboriginal Child or Torres Strait Islander child. This is not a relevant factor in this case.

    i)Any family violence involving the child or a member of the child’s family. There are in this case allegations of family violence. They are disputed and I am not in a position to make any findings.

    j)If a family violence order applies any relevant inferences to be drawn from that order. Neither party in this case has a current family violence order.

    k)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. The parties separated recently and these proceedings are interim proceedings. There will almost certainly be further proceedings.

    l)There are no other relevant factors.  

20. I have as anticipated in addressing the additional considerations in s60CC(3) touched on matters relevant to the primary considerations in s60CC(2).

21. I am required to consider the benefit of the child having a meaningful relationship with both his parents (s60CC(2)(a)). The evidence of Ms H clearly demonstrates that the child does have a meaningful relationship with both his parents and she concluded that the current regime of the mother spending “…relatively frequent but contained periods spend with him are adequate and appropriate for good attachment to be forged and maintained.”

22. The other factor I must consider is the need to protect the child from physical or psychological harm, neglect or family violence. Notwithstanding that I cannot make findings with respect to the mother’s allegations of family violence against her by the father, doing the best I can on the basis of the evidence I have before me I am satisfied that in the interim the child is well cared for and protected in his care.  

23. However in order to protect the child whilst in the mother’s care I am satisfied that I must err on the side of caution and that it would be premature to make orders that the child live with the mother as she proposes or in fact to increase the time she spends with the child at this time. In those circumstances I propose to make the orders proposed by the father.

24. I am also satisfied doing the best I can on the evidence that I have before me, and in particular the evidence of the single expert Ms H, that it would in the interim be appropriate for the time the mother spends with the child to be supervised. I am also satisfied based upon the evidence of the interaction between the child, his mother and her parents and my concerns about their ability to make the child’s welfare a priority in the context of these proceedings, that supervision should be by an independent person. This would have the added benefit from the mother’s point of view of protecting her from what she says are unfounded allegations that she has been under the influence of alcohol when the child is in her care.

1. Section 61DA of the Act provides that when making a parenting order the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for that child. The presumption does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests. The presumption applies when making an interim order unless the Court considers it would not be appropriate for it to be applied when making a parenting order. It is this presumption which requires the court to consider the child spending equal or substantial time with each parent (s65DAA).

2. The mother in her Response to the father’s Initiating Application sought an order for equal shared parental responsibility. The father did not in his Initiating Application seek any orders with respect to parental responsibility for the child. The focus of this case was upon how much time the child should spend with each of his parents and whether the mother’s time with the child required supervision and perhaps in those circumstances it is not surprising that neither party made any submissions with respect to s61DA(3) and whether the presumption should apply. I am not in a position to make findings of fact and in particular not in a position to make findings with respect to the allegations of family violence. Having regard to the observations of the Full Court in Marvel & Marvel [2010] FamCAFC 101 I do not consider that it is appropriate in this case to apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility and as the presumption does not apply I am not required to consider the child spending equal or substantial time with each parent pursuant to s65DAA.

3. I also propose to bring the time the mother spends with the child each Wednesday and Sunday forward by an hour and confine the telephone time to a period of 10 minutes. The child is still young and as long as the mother’s time with the child is not reduced I am satisfied that it is in his best interests for his time with the mother to start and finish an hour earlier. This will allow the father some time to prepare him for bed at 7.30pm. I am also of the view that it is unlikely for a child of B’s age to sustain a 30 minute telephone conversation. I propose to limit the mother’s telephone conversations with the child to no more than 10 minutes on each occasion. 

4. In view of the orders I propose to make it would be premature to make orders permitting the mother to travel to Western Australia with the child to visit her family, however, subject to his obligations pursuant to these orders, there would be no reason why the father should not be permitted to travel interstate with  the child and I propose to discharge the restraining order as against the father with respect to interstate travel but leaving in place, until further order, the order with respect to the mother leaving the State of Victoria or either party taking the child out of the Commonwealth of Australia.

5. Finally, it was submitted on behalf of the mother that Ms H’s report did not really address the issues on an interim basis. Whilst I do not agree with that submission I am however of the view that it may be appropriate to reconsider the time that the child is spending with the mother prior the matter being listed for a final hearing. Rather than put the parties to the cost of a further interim hearing and possibly delay a final hearing I propose to list the matter for a First Day of Hearing before me in early April 2013. This will allow the mother the time to consolidate her recovery whilst giving the matter some priority. Hopefully by that time the mother will be in a position to demonstrate that she has been alcohol free for at least 6 months or if it is ultimately established that the recent test can be explained by the use of an alcohol swab, for 10 months.

6. The orders I propose to make will require the parties to agree upon an independent supervisor of the mother’s time with the child. I will reserve liberty to apply in the event that the parties cannot reach agreement with respect to an appropriate supervisor.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 2 November 2012.

Associate:

Date:  2 November 2012