FENECH & FENECH
[2020] FCCA 2569
•17 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FENECH & FENECH | [2020] FCCA 2569 |
| Catchwords: FAMILY LAW – Bitterly contested parenting dispute in which parties emotions strongly influenced by inter-related property matters – father concerned to prove alleged alcohol dependency, and denial thereof on part of the mother – mother equally concerned to prove non-dependency on alcohol – parties concentration on the alcohol dependence issue obscuring consideration of best interest of 2 young children – no party adopting recommendations of family report – court making alternate orders dependent on proximity of parent residences. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65 Evidence Act 1995 (Cth), s.136 |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS FENECH |
| Respondent: | MR FENECH |
| File Number: | DGC 1949 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 3, 4, 5, 6 &17 August 2020 |
| Date of Last Submission: | 17 August 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 17 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gates |
| Solicitors for the Applicant: | Anchorage Legal |
| Counsel for the Respondent: | Ms Dellidis |
| Solicitors for the Respondent: | Marsh and Maher Richmond Bennison |
| Counsel for the Independent Children's Lawyer: | Dr Alexander |
| Solicitors for the Independent Children's Lawyer: | Cape Kearns Lawyers |
ORDERS
THAT the parties have equal shared parental responsibility for the two children of the marriage namely X born in 2014 and Y born in 2017 SUBJECT TO paragraphs 14, 15, 16, 16A, 21, 29, 30 and 31 herein.
THAT the children live with the Husband.
THAT the children spend time and communicate with the Wife as follows:
(a)on a fortnightly basis until the commencement of the 2021 school year (NOTING that the children attend B Kindergarten on Mondays, Tuesdays and Wednesdays):
(i)commencing 25 September 2020 in week one from 3pm on Friday until Monday before kindergarten (or 9am if a non-kindergarten day); and
(ii)commencing 30 September 2020 in week two on Wednesday from after kindergarten (or 3pm if a non-kindergarten day) until Friday at 3pm.
(b)commencing term 1 in 2021 on a fortnightly basis during kindergarten/ school terms:
(i)in week one from after kindergarten/school on Friday (or 3.30pm if a non-kindergarten and/or a non-school day) until Monday before kindergarten/school (or 9.00am if a non-kindergarten and/or a non-school day)
(ii)in week two from after kindergarten/school on Wednesday (or 3.30pm if a non-kindergarten and/or a non-school day) until Thursday before kindergarten/school (or 9.00am if a non-kindergarten and/or a non-school day).
(c)for one half of all kindergarten/school term holidays commencing in term 1, 2021 on dates to be agreed and in default of agreement for the first half with the Wife in odd years and for the first half with the Husband in even years with 12noon on the middle Saturday being the half-way date of the holiday period.
(d)for the long summer holidays on a week- about basis in 2021/2022 (except for the Christmas period) and in 2022/2023 (except for the Christmas period) with changeover taking place at 12noon on Saturdays commencing the second Saturday of the holiday period.
(e)for half of the long summer holidays commencing 2023/2024 on dates to be agreed and in default of agreement, the children to spend the first half with the Wife in odd years (except for the Christmas period) and the first half with the Husband in even years (except for the Christmas period), with 12noon on the middle Saturday being the half-way date of the holiday period.
(f)in the event the division of school holiday time does not result in two equal halves the parent having the care of the children in the first half of the school term holidays shall have the additional night; and
(g)at any other times as agreed between the parties in writing.
IN THE EVENT that the Wife moves to and remains living in a residence within 4 (four) kilometres of the Husband’s residence, then Order 3(b)(ii) is to be extended by 24 hours so that the children spend time with the Wife from after kindergarten/school on Wednesday (or 3pm if a non-kindergarten and/or non-school day) until before kindergarten/school on Friday (or 9am if a non-kindergarten and/or a non- school day).
THAT unless otherwise provided, fortnightly time pursuant to Orders 2 and 3 shall be suspended during term and long summer holiday periods and shall resume in the same pattern throughout the year as if the holiday period had not occurred.
THAT when the children are in the care of one of the parties pursuant to these Orders, that party facilitate the children’s contact with the other party by Skype or Facetime for a duration of 10 minutes commencing at 6pm each second day that a parent does not spend time with the children and otherwise at such reasonable times as requested by either of the children or as agreed in writing between the parties.
Mother’s Day/ Father’s Day
THAT the children spend time with the Wife from 5pm on the day prior to Mother’s Day until the commencement of kindergarten/ school/childcare or 9am on the following Monday if Mother’s Day falls on a weekend when the children are not otherwise spending time with the Wife pursuant to these Orders.
THAT the children spend time with the Husband from 5pm on the day prior to Father’s Day until the commencement of kindergarten/ school/childcare or 9am on the following Monday if Father’s Day does not fall on a weekend when the children are not otherwise spending time with the Husband pursuant to these Orders.
Christmas period
THAT the children spend time with the Wife from 12noon on 24 December until 12noon on Christmas Day in 2020 and in even years thereafter and from 12noon on Christmas Day until 12noon on Boxing Day in 2021 and in odd years thereafter.
THAT the children spend time with the Husband from 12noon on Christmas Day until 12noon on Boxing Day in 2020 and in even years thereafter and from 12noon on 24 December until 12 noon on Christmas Day in 2021 and in odd years thereafter.
Children’s birthdays
THAT the children spend time with each parent on each of their birthdays if they are not already in that parent’s care as follows:
(a)if the child’s birthday falls on a kindergarten/school day, then from after kindergarten/school (or 3.30pm) until 6pm; and
(b)if the child’s birthday falls on a non-kindergarten or non-school day, then from 1pm to 6pm.
Parents’ birthdays
THAT on each parent’s birthday the children spend time with that parent if they are not already in that parent’s care as follows:
(a)if the parent’s birthday falls on a kindergarten/school day, then from after kindergarten/school (or 3.30pm) until 6pm; and
(b)if the parent’s birthday falls on a non-kindergarten or non-school day, then from 1pm to 6pm.
Changeover
THAT changeovers take place:
(a)at the children’s kindergarten/school/childcare where applicable;
(b)otherwise the wife shall collect the children from the husband’s residence at the commencement of her time and the husband shall collect the children from the wife’s residence at commencement of his time; or
(c)as agreed between the parties in writing
Kindergarten and school
THAT the children continue to attend B Kindergarten for the remainder of 2020 (NOTING that they attend on Mondays, Tuesdays and Wednesdays).
THAT the parties sign all forms required for the child Y to continue to attend B Kindergarten in 2021 and for the remainder of his pre-school education unless otherwise agreed by the parties in writing.
(15A) THAT the parties sign all forms required for the child Y to be enrolled in and attend C Primary School commencing in Grade Prep
THAT the parties sign all forms required for the child X to be enrolled in and attend C Primary School commencing 2021 and for the remainder of his primary school education unless otherwise agreed by the parties in writing.
(16A) THAT the parties sign all forms required to secure a place for each of the children commencing in Year 7 at D School, E School and F School.
THAT for the purpose of the interpretation of these Orders, school term holidays are to be in accordance with the Victorian government gazetted holidays, commencing on the last day on which the children are required to attend school and concluding on the day before the children are required to attend school.
THAT each party be at liberty to:
(a)attend at the children’s kindergarten/school on each of the children’s first day of each kindergarten/school year;
(b)be listed as the primary emergency contact on the enrolment forms for the children’s kindergarten/school/childcare;
(c)communicate with the children’s kindergarten/school/child care and request copies at their own expense of notices, reports, newsletters, photographs and similar correspondence usually provided to parents; and
(d)attend all children’s kindergarten/school/childcare functions including concerts, plays, fetes and sporting activities usually attended by parents.
Communication
THAT both parents use Our Family Wizard App for the purpose of communicating all matters relating to the care, welfare and development of the children, and for the purposes of any proposed variation to these Orders and to implement a joint calendar regarding the children’s time with each parent and other commitments and activities save that the parents shall communicate by telephone in the case of an emergency.
THAT each party notify the other party in writing of any changes to their email and telephone contact details within 48 hours of any such change and provide 21 days written notice of any proposed change to their home address.
Medical Treatment
THAT each party:
(a)Be restrained from causing the children to attend upon a psychologist, counsellor or like allied health practitioner without the express written consent of the other party;
(b)forthwith notify the other in writing in the event the children attend upon any medical practitioner and provide details of diagnosis and any treatment prescribed;
(c)be restrained from taking the children to any other medical centre save for G Medical Centre, save in the event of an emergency or, unless otherwise agreed in writing;
(d)advise the other of the details of any specialist medical or allied health professional appointments for the children within 48 hours of the scheduling of the appointment; and
(e)be authorised, at their own expense, to obtain information from any medical or allied health professional that the children attends upon and be permitted to communicate with such medical or allied health professional; and
(f)And these Orders shall be evidence of any authorisation required.
Wife
THAT the Wife be restrained from consuming alcohol.
THAT the Wife continue to attend upon psychologist Dr H (or his nominee) for a further 18 months to address issues related to substance (alcohol) use disorder, substance dependence and personality functioning, no less than once per month, and to follow all of his reasonable directions.
THAT the Wife continue to attend upon psychiatrist Dr J (or his nominee) for a further 18 months to address issues of substance (alcohol) use disorder, no less than every three months, and follow all of his reasonable directions.
THAT within the next 3 (three) months from the conclusion of these proceedings, the Wife develop a relapse safety plan in consultation with her psychologist and psychiatrist including a specific care plan for the children AND provide written details of the relapse care plan to the Husband.
THAT the Wife submit to hair follicle testing by an accredited laboratory for the detection of drugs and alcohol once every 3 (three) months for a period of 18 months and provide results thereof to the Husband as soon as available SUCH tests to commence taking place in the second week of October 2020 and to continue taking place in the second week of each quarter thereafter namely in January 2021, April 2021, July 2021, October 2021, January 2022 and April 2022.
Husband
THAT the Husband continue to attend upon psychologist Mr K (or his nominee) if such psychologist deems it necessary, and at such intervals as recommended by him and the Husband is to follow all of that psychologist’s reasonable directions.
THAT the Husband be restrained from consuming alcohol to excess or having a blood alcohol concentration level of over .05 during any time he has the care of the children.
Wife and Husband
THAT both parties attend upon clinical psychologist Dr L, or such other agreed psychologist, to jointly consult in relation to the development of a joint parenting style approach/plan for as long as the psychologist considers it beneficial AND each party is to pay half the costs of joint sessions.
THAT for this purpose in Order 29, Dr L (or other psychologist agreed upon) be provided with copies of the final Orders and judgment, the reports of Dr M (two reports), Dr J (two reports), Dr H (two reports) and the MMPI-2 dated 5 March 2020 about the Wife.
IN THE EVENT that the parties cannot agree on matters relating to the major long term care, welfare and development of the children, they will consult with and defer to the advice and recommendations of Dr L, or such other agreed psychologist.
THAT if they have not yet done so, each party attend and complete a Parenting Orders Program as soon as practicable and provide proof of completion to the other party.
That unless otherwise specified herein, both the Husband and Wife be restrained by injunction from the following:
(a)using or consuming illicit drugs or prescription or over the counter medication or pharmaceutical substances other than those which are prescribed by their treating medical practitioner in strict accordance with such prescription or directions appearing on such medication or pharmaceutical substance;
(b)abusing, insulting, belittling or otherwise denigrating the other party or their family in the presence or hearing of either or both of the children and from allowing anyone else to do so;
(c)discussing these proceedings, adult matters or exposing the children to parental conflict within the presence or hearing of either or both the children or allowing anyone else to do so;
(d)exposing either or both of the children to all forms of family violence or allowing anyone else to do so.
Passports and Travel
Each party do all such acts and things and sign all necessary documents to maintain valid a passport for the children:
(a)X’s passport shall be held by the husband and Y’s passport shall be held by the wife (and a copy to be provided to the other parent); and
(b)the passport is to be released to the other parent no less than 21 days prior to the other parent travelling overseas with the children pursuant to these Orders and the other parent shall return the child’s passport within 7 days of the children returning from said travel; and
(c)in the event the children’s passports are required to obtain visas prior to proposed international travel each parent shall provide the passport to the other parent upon request for this purpose.
Each party be permitted to travel with the children interstate or outside Australia on the following conditions during times the children are in their care pursuant to these Orders:
(a)the travelling parent provides the non-travelling parent with 60 days written notice of their intention to travel;
(b)one month prior to the travel, the travelling parent provides the non-travelling parent with the following:
(i)copy of the itinerary;
(ii)copy of airline tickets;
(iii)evidence of travel medical insurance; and
(iv)the addresses at which the children shall be residing and a contact telephone number on which the travelling parent can be contacted.
Notwithstanding paragraph 35 herein, commencing 2024 each party be permitted to travel with the children outside Australia once a year for a period of up to 21 days during the school year on the condition the holiday must include the travelling parent’s time with the children during their school term holiday period.
Independent Children’s Lawyer
THAT all previous orders, including the order appointing the Independent Children’s Lawyer, be discharged.
Pursuant to s 65DA and s 62B of the Family Law Act 1975, 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 the parties to 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 under the pseudonym Fenech & Fenech is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1949 of 2019
| MS FENECH |
Applicant
And
| MR FENECH |
Respondent
REASONS FOR JUDGMENT
This is a parenting dispute about the best interests of two young children, X born in 2014 and Y born in 2017. Both parents are well-resourced financially and the bitterness of the dispute has given rise to four days of hearing conducted with what I can only describe as concentrated malice by the legal practitioners of the two parents against the clients of the other. The parties have filed, since the originating application filed on 21 June 2019, no fewer than 141 individual items indexed onto the court file, which occupy some six folders. The mother in particular has filed affidavits of inordinate length, but the material filed by the father is likewise extensive. Any endeavour to traverse each and every matter raised by the parties would lead to a judgment on an epic scale.
In truth, however, the issues between the parties are, in my opinion, ultimately relatively confined. For this reason, I will not be following my usual template which involves a traverse of the parties’ affidavits and evidence given at court. I am going to set out the issues the Court is required to determine. I will examine the independent expert evidence. I will offer some brief observations about the credit of the witnesses and then move directly to the statutory pathway. My conclusions as to the relevant matters in dispute will then be itemised when I deal with the questions of the children’s best interests pursuant to section 60CC of the Family Law Act1975 (Cth) (“Act”).
The Issues the Court is Required to Determine
The question of parental responsibility is in issue. The mother and Independent Children’s Lawyer seek an order for equal shared parental responsibility. The father seeks an order for sole parental responsibility for himself.
The parties’ positions as to the primary residence of the children are likewise in dispute. Each of the parents seeks that the children live primarily in their care. The positions of both parties have changed as to the actual configuration of time, from time to time. The family report writer, Dr M, recommended equal time, but none of the parties or the Independent Children’s Lawyer has unequivocally supported this outcome.
The other issues in this case relate to the alleged alcohol dependence of each of the parents. It is the mother’s case that the father regularly consumed alcohol to significant excess and that he abused her and was violent towards her as a result. That issue plainly requires determination.
In truth, however, the real issue that occupied so much of the case’s time was the burning desire on the part of the husband to prove that the mother is an alcoholic who is in denial about her addiction. The mother has an even greater determination to disprove that proposition, although she concedes some difficulties with alcohol in the past. She says she does not crave alcohol and is not an addict. It would not be unfair to describe this aspect of the proceeding as having been conducted on a titanic scale. It has, in my view, tended to obscure the attention of the parties from the substantive and real issue that the Court is required to determine, namely how the best interests of the children are to be reflected in appropriate parenting orders.
Some Agreed or Not Controversial Matters
The mother was born in 1979 and the father was born in 1964. They commenced cohabitation in 2007 and married in Country N in 2012. They separated on 6 May 2019.
The mother had worked as a retail worker prior to the commencement of this relationship (it was the second marriage for both parties) but has no post-school qualifications and has not worked since the commencement of this relationship. The father is an extremely successful businessman with his own business, Fenech Company, which, although affected it would appear unsurprisingly by the COVID emergency, continues to function and produce a substantial income for him. The parties’ compromising of the property pool, hammered out with much squabbling on the first day of the proceeding, relevantly provides that the mother can live at the parties’ former holiday home in Suburb O until January 2021 when she must vacate it, and she will receive $100,000. She will also receive $20,000 in August 2021, 2022 and 2023. In 2024 at the earliest, but no later than March 2025, the father will pay the wife $1,640,000. Until then, he will pay $125 per week for each child by way of periodic child support, together with private health insurance and other benefits, together with $1,500 per week.
It should be noted that these financial arrangements are in my view directly relevant to the proposals that the parties put as to how the parenting orders should be resolved.
The father has two elder daughters from his first marriage, namely Ms P aged 29, who currently lives with him, and Ms Q aged 26, who lives independently. Both of these daughters lived with the parents for at least part of the marriage.
The children presently live in an 8/6 arrangement in favour of the father, which has been in place since orders made by the Court on 21 November 2019.
The children have attended B Kindergarten on Mondays, Tuesdays and Wednesdays since February 2020. X will commence primary school in 2021.
The Reports and Evidence of Dr M
Dr M has produced two reports. I, of course, have read and had careful regard to his first report, but it is the second and updated one to which I pay particular attention.
It should be noted that Dr M is a clinical and forensic psychologist with an altogether impressive curriculum vitae. He is extremely experienced in providing reports to the Court. I have regard obviously to the whole report, but the following aspects of the report are worthy of note. At paragraph 9, Dr M paraphrased the issues as follows:
There were disputed allegations in this matter from both parents. The primary allegations in relation to the mother relate to her mental health status, alcohol use and dependency, other medication use and dependency such as benzodiazepines and the subsequent care of the children. Following on from those difficulties, the mother has made allegations that the father drank to excess, relied upon nannies to care for the children and was controlling in the relationship.
At paragraphs 13 to 14, Dr M noted:
It is relevant to indicate that the alcohol abuse and dependency have been a significant issue for the mother throughout the children’s early years. She was hospitalised during her pregnancy with Y, as she drunk heavily on two occasions, with the intention that drinking would terminate the child, raising obvious concerns for the potential for Y to have Fetal Alcohol Syndrome. Subsequently, following Y’s birth, the mother drank to excess, used Seroquel to sleep on a regular basis until recently.
In May 2018, there was an incident where the mother was effectively found unconscious and was hospitalised. The father identified that she was unconscious and caring for the child Y and subsequently she was taken to hospital via ambulance.
In respect of the father at paragraph 17, Dr M noted:
In relation to the father, the allegations of his alcohol abuse were not able to be determined. Nevertheless, it would appear that his lifestyle may have been oriented to regular alcohol consumption, which may have been problematic. The father’s functioning was less obviously problematic, and the risk evaluation of the father identified no major difficulties.
The report noted that both parent’s positive impression management raised questions about the validity and reliability of their self-report (paragraph 19). The report noted that the mother had been seeing the psychologist Dr H on a weekly basis since January 2020 and was also seeing a psychiatrist, Dr J, although it was not certain how often she had seen him (paragraph 37). Dr M’s endeavours to elicit the mother’s alcohol usage are recorded at paragraphs 38 to 41, as follows:
When asked directly regarding issues of her insight regarding her own personal problems to date, Ms Fenech was extremely vague and non-specific with respect to alcohol and alcohol use, making general motherhood statements about health, reduction of stress.
As such, it was difficult to determine her insight into her own issues with alcohol as essentially she avoided this until it was repeatedly asked of her. Ms Fenech’s account of her difficulties with alcohol is that they reflect a “very unhappy situation … with no inner belief”. She spoke generally of having negative self-esteem, not liking what she had done, especially in pregnancy with Y, and the need for her to forgive herself. She described, when asked directly about whether or not she would drink alcohol in the future, again she was extremely vague, outlined that drinking socially was different but considers that if she is feeling okay and/or stable that she may be able to drink socially, but went on to say that she does not fit with someone with an alcohol problem.
When asked directly regarding her views on this matter, Ms Fenech stated “I don’t think I have a problem with alcohol … I’m not an alcoholic”. She acknowledged abusing alcohol in the past but spoke about this as being in a terrible situation and that she would never find herself in that again. She perceives herself as not vulnerable to going back to alcohol as she now has the tools and methods rather than using alcohol, and that she would never put herself back in that situation again.
Ms Fenech acknowledged that she would not exclude using alcohol again. She went on to say that she would do whatever people suggest. When it was pointed out to her that the previous family report identified that in terms of risk to the children, abstinence of alcohol would be appropriate, she acknowledged that that was the statement in the previous family report.
I note that at the time that the mother saw Dr M, it was her proposal that the children live with her in an 11/3 arrangement. As the written submissions of the Independent Children’s Lawyer point out, the mother’s position has varied from time to time. Indeed, the Independent Children’s Lawyer is correct to submit that in oral evidence the mother was not entirely clear whether she was proposing a 9/5 or 10/4 arrangement.
Dr M observed in respect of the mother at paragraphs 61 to 63:
It is noteworthy throughout the evaluation with Ms Fenech that she was extremely evasive and vague. She was circumspect regarding issues to do with alcohol, in particular, but also prescription medications. It was clear from the evaluation that she does not perceive herself as a person with difficulties with alcohol, irrespective of the reasons. Ms Fenech attributed the difficulties externally, identifying that the matters related to stress, rather than her own, whether biological or personality based, difficulties with alcohol and its effects.
Ms Fenech presented a rather stylised and idealised view of parenting and framed the care needs of the children in gender terms, as in the previous evaluation.
Ms Fenech did not present as open but was highly aware of the context of the family law proceedings. Throughout the evaluation she identified the difficulties with X. She does not attribute any of these difficulties to her own parenting style and approach, but as with alcohol, attributes this to other external factors.
The report assessed the mother pursuant to the FNSA test as being in the low to moderate risk rating.
The report noted possible skill deficit on the mother’s part in dealing with X (page 36 and 37) and that X needs boundaries (page 37 of 67).
At paragraph 98, Dr M observed of the father:
Mr Fenech presented similarly to previously, although there was less positive impression management clinically and he appeared more realistic and more open in his evaluation. He presented as not especially negative regarding the mother and throughout the evaluation managed the boys well.
The report noted that the father has been seeing a psychologist for about 15 sessions over six months with the last session in December 2019 (paragraph 122). The FNSA testing assessed the father in the low range of risk.
At page 54 of 67:
Overall, the evaluation showed evidence of good relationships and sound parental skills, with good understanding of the children’s needs and accommodation to their moods and requirements. The father presents as permissive but having clear boundaries with the children. His approach does not appear to be systemised or artificial. Neither of the children appears to have any significant anxiety attachment, the relationships from the children to the father appears sound.
The conclusions are set out at paragraph 165 and following. Relevantly, at paragraphs 171-174 Dr M opined:
It appeared likely that the mother has had problems with alcohol abuse and medication use that has significantly affected her parenting, as well as placing the children’s care at risk on occasions. The extent to which her alcohol and/or medication use directly affected her parenting is somewhat less certain, as it is possible that she has used alcohol more in a binge-drinking cycle, with problematic results on several occasions. Similarly, the mother’s mental health, especially anxiety and depression, appears to have been an ongoing issue, with evidence of antidepressant medication used early in the relationship. This factor is also likely to have indirectly affected her parenting, in conjunction with the substances.
As such, the previous evaluation identified that the mother has had problems with alcohol abuse and dependency, problems with anxiety and depression and personality vulnerability factors that appear to underpin those issues. Additionally, she appeared to have little insight into these issues, and had not taken responsibility for treatment prior to the previous family report.
The father’s alcohol use was not able to be determined despite the allegations of consistent use, and indications of a lifestyle that supported alcohol use, however there was no indication of functional problems in recent years due to alcohol use. Similarly, the mother’s accounts of emotional control were not able to be validated, while not excluding this dynamic, considering the parent’s contrasting personality traits. In both parents, there was marked positive impression management and distortion in the previous evaluation and this factor raised questions about the reliability of the self-report in both parties. This issue, while not unusual in custody evaluations, limits the confidence in the psychometric results, and the extent to which clear conclusions could be made regarding either parent from those data.
Despite the issues identified, the previous evaluation suggested that despite the above issues, care of the children should be shared, despite the concerns. The father’s account of being able to care for the children on a full-time basis, despite running a large private company, presented as unrealistic. Additionally, the father’s alleged alcohol use, while entirely possible based on historical accounts, while possibly not an issue at the time, raised concerns about lifestyle factors. Recommendations were made for the mother to receive treatment.
The report noted the parties’ parallel proposals (paragraph 176) and the ongoing allegations that the mother had distorted or avoided testing for drugs and alcohol (paragraph 177). At paragraph 178, the report continued:
Broadly speaking, the mother has broadly carried out the recommendations of the previous family report with respect to attending psychological treatment, psychiatric treatment and drug and alcohol treatment. Based on my reading of those reports, despite her claims, it is unlikely that she has received benefit in the main problem areas, addiction vulnerability and personality vulnerabilities, from the treatment. This is in part as she denies that she has a problem with alcohol or prescription medication, despite placing herself and the children at risk through the combined effects of these substances. She minimises the extent of the problems, externalises the issue to stress, or the marital issues, etc, and claims control where clearly in the past she has shown an inability to deal with this issue. She has also reported she considers abstinence is not required, despite recommendations of specialists/clinicians, and despite arguing that she would do anything for her children. This avoidance and denial presents as a personality characteristic. This externalisation also relates to her parenting, such as, with issues to do with X’s behaviour, she considers as separate to her parental functioning.
At paragraphs 181-182, the report continued:
Nevertheless, the evaluation identified broadly that the mother is functioning appropriately, if the drug and alcohol testing is accurate, and that the relationship between the children and the mother, while not having resolved the issues identified previously, is generally sound, and may respond to assistance post-court. However, these conclusions may need to alter depending on the Court’s views of the mother’s lack of preparedness to be abstinent of alcohol. There are concerns connected with the fact that the mother does not regard alcohol abstinence as a pathway for her, despite being the obvious protective intervention.
The father’s evaluation identified him to be able to care for the children, however, while his company remains active, it is likely that his time will be significantly influenced by his responsibilities and possibly his lifestyle, irrespective of his statements otherwise.
The report went on to say at paragraphs 185-186:
Despite the issues identified, the two evaluations identified that the care of the children should be shared, despite the reported concerns. The children have relied on their mother as their central caregiver in the past, despite the discussed problems and while she remains substance free, cares for the children appropriately, particularly with ongoing assistance and longer term functioning without alcohol abuse. The father’s account of being able to care for the children the majority of the time, while running a substantial private company, presents as unrealistic. He has appeared to manage the last year of care of the children, however.
This evaluation, and the previous evaluation, identified that X, as before, has emerging behavioural issues, which are likely to be a function of temperamental factors in conjunction with parenting and family stress related factors. Both parents, but particularly the mother, will need help via a clinician in their parenting of him, rather than therapy of him directly, and will need to work together to provide a joint approach, however, this is unlikely to happen immediately but may occur in the future.
The substance of the report concluded at paragraphs 189 to 190:
This parenting dispute is likely to be influenced by the ongoing financial negotiations. It is possible that following these matters being resolved, the disputes regarding time will reduce.
Parental responsibility in this matter should be shared, in that both parents appear to have similar values, have similar goals for the children, and both are capable of coming to reasonable decisions regarding health and education and other central care matters.
The report went on to recommend that the parents live within four kilometres of each other to assist with the equal time regime recommended. The report recommended regular video conferencing/calls each day or two days for up to 15 minutes and the possibility of holiday time for one week if possible next year. The report recommended the parties should use an electronic application such as My Family Wizard to communicate and the children should spend three days a week in childcare in the next year to assist with development. The report recommended “it is appropriate that the mother care for the children alcohol-free. The mother would function best if completely abstinent from alcohol indefinitely, as alcohol will produce negative mental health effects, particularly anxiety and depression. It is appropriate, therefore, that the mother not use alcohol in the 48 hours prior to caring for the children.”
The report recommended that the father should not parent with a blood alcohol level of over .05 and that both parents undertake random drug and alcohol testing for the next 12 months including hair analysis. The report recommended that a parent co-ordinator be engaged to assist the parties with co-parenting and that the children go to local state or community-based school up to grade 6 to communicate community integration. The report recommended the mother to continue psychological treatment with her current clinician over the next two years and noted both parents might benefit from a consistent nanny or au pair to help them manage. A number of uncontroversial ancillary recommendations were also made.
What follows is taken from my notes.
When called, Dr M adopted his two family reports. He confirmed that he had read the MMPI report in respect of the mother. Counsel for the Independent Children’s Lawyer traversed the parties’ competing positions. Dr M confirmed his reports recommended a new court-initiated time arrangement but only if the parties live within four kilometres of one another. If the mother was to remain in Suburb O overall, bearing in mind the parental risk involved, primary care should be with the father. Dr M confirmed that the MMPI-2 report did not really affect his view of the matter.
Counsel for the mother put it to Dr M that the mother would go where the children are. It was put that the mother would prefer to stay in Suburb O but if she needed to move closer to the father she would do so.
It was put to Dr M that Dr H (the mother’s treating psychologist) says that MMPI-2 was a generic test and only one tool for a psychologist. Dr M said this was a complicated issue and it would be different answers from different professionals. It can be both a tool and a report and can stand alone, as does the PAI. It is most useful in treatment where people are open. Nonetheless, the findings of the report are still useful. He had not spoken to Dr H or Dr J (the mother’s psychiatrist) although he had read their reports. When it was put that Dr H was preferred to continue treatment, Dr M’s response was qualified.
The mother still has some difficulties in engaging help. This was evident in the MMPI and the PAI and his report. The mother finds it difficult to admit her problems. The most important thing would be for the mother not to drink and take drugs which might likewise cause her difficulty. He had asked the mother if she would take specialist advice and she had said yes but that she did not think that she needed to. This was problematic. She had said she would drink socially. He had given the mother four to five opportunities to say she would not drink.
Counsel traversed the affidavit of Mr R which detailed had significant drinking on the father’s part. Dr M said those affidavits were not any great surprise. When it was put that the mother had said she had not been alcohol affected since May 2018, Dr M said that his experience was that these statements are areas of estimate and usually a distortion. The mother may well have been abstinent but she tends to underestimate. Serious alcohol problems has led to risks. The mother has a problem with alcohol. It is a dangerous mix. She should be abstinent totally. Uncontrolled binge-drinking is an ongoing risk.
Historically the mother has been the caregiver but not since separation. The boys are attached to both parents. Their initial attachment was to the mother but overall this was of little relevance now. Both parents have significant strengths. If the risks with the mother were curtailed, he recommended equal time. Dr M went on to say that the number of days is not important. The children want time with both their parents. In this case, the children need greater stability. It is very important that the parents live near each other.
Dr M said he had read the report of Ms S. It was not for her to make recommendations (as she had done) as to a spend time regime. She was in a counselling role. He had not found her recommendations useful and they had not informed him.
Under cross-examination by counsel for the father, Dr M said the personality vulnerabilities create a risk factor. In the mother’s case, this was underpinned in alcohol and drugs. There were similar issues with the father with control and so on. Psychological counselling was necessary. He does not claim to be an expert in alcohol treatment. It appears nonetheless that the most effective approach to addictions is an acknowledgement. The ongoing difficulty is the mother’s denial and this puts her at risk for relapse. Many parties require court orders as rules. Denial relates to personality issues. A court order would help the mother.
The anxious attachment on the part of X relates to parenting style. The mother says it is to do with X and not her. Counsel put to Dr M a text from the mother on 15 October 2018 in which the mother made a number of remarks, including that X was fucking her up. Dr M conceded that this raised concerns. The father was the calmer of the parents and more able to cope, particularly with X. The mother has greater difficulty. The primary issues with the mother are issues of risk with alcohol and personality difficulties. The father has a different approach with X and it is possible that might be more effective.
The Evidence of Dr J
Dr J is a psychiatrist and filed an affidavit sworn on 24 June 2020. That affidavit appends his report dated 23 June 2020. He confirmed that he has been treating the mother since 6 April 2020 and has reviewed her on three subsequent occasions. The report relevantly asserts:
I have now reviewed Ms Fenech on 4 separate occasions. Over this longitudinal period, I am satisfied that Ms Fenech currently does not experience a treatable major mental illness, though she has previously experienced problems with depression and anxiety. I am not convinced that Ms Fenech has an enduring personality disorder, though I acknowledge Dr M’s opinion that Ms Fenech has “personality vulnerabilities” which include a need for acceptance, defensiveness and reluctance to discuss personal problems. Ms Fenech has previously had a substance use disorder (alcohol), currently in remission. I note recent testing (including follicle samples), which indicate total abstinence from alcohol and other drugs.
At paragraph 6, the report continued:
Ms Fenech appears to have benefited from treatment with her psychologist, Dr H. She should be encouraged to continue with Dr H. At present, medications do not appear to be indicated.
When called, Dr J adopted his affidavit as true and correct.
Under cross-examination by counsel for the father, Dr J indicated that he had not spoken to Dr H. He is aware of his affidavit. The MMPI interpretation was by Dr H. Dr J is not trained in MMPI and does not use it. He has a different focus, which is more medicalised. His role was to identify any treatable mental illness. Any diagnosable illness that might benefit from treatment, whether medical or a psychologist. The mother would benefit from the support of Dr H. He had no other information than the letter from the general practitioner dated 14 April 2020 about alcohol. He had asked the mother how she was going. If her use was more extensive, it might change his recommendations for treatment.
He was aware of the car accident in 2012, when the mother had a reading of .219 through reading the affidavits, but the mother had not told him about this. She had mentioned hospitalisation on at least one occasion in 2017. He could not remember a level of .303 in 2018 being discussed. When asked if these might change his diagnosis, Dr J said “no”. Alcohol use disorder was clear from the information the mother gave him. So far as prognosis, there is always a risk of relapse. It needs management over time. If there was history of relapse, it can impact on the prognosis. Anyone with the mother’s history will need ongoing support. Alcohol use disorder always has a risk of relapse, especially when under stress. This was a case of at least moderate severity.
When asked about time the support should continue, Dr J said this was best put to a drug and alcohol counsellor, but he thought it would be long-term. He understands the mother has seen a drug and alcohol counsellor and appears to have been abstinent since last year. There is always a risk of relapse. It may be useful for the mother to be reassessed by a specialist service.
Under cross-examination by counsel for the Independent Children’s Lawyer, Dr J confirmed he had seen the mother five times. Alcohol problems are common and so is illicit substances problems. The mother had said she went to Alcoholics Anonymous and also Smart Recovery. Alcoholics Anonymous is voluntary. It may not suit everyone. The mother has suffered from alcohol use disorder. His assertion that she was in remission came from her own account and from the testing of Mr T. He had not given the mother any prescription. The general rule is not to drink to excess if you are on prescription drugs, which includes Zoloft. Quetiapine is given in smaller doses for anxiety and is not used to manage alcohol withdrawal. Diazepam and Valium are given for alcohol withdrawal. Insomnia can be a symptom of alcohol withdrawal but also a symptom of multiple conditions. There was no bizarre thinking exhibited by the mother before him to suggest a psychotic illness. In the longer term it will not be necessary for the mother to see a psychiatrist. It is difficult to place the risk of degree of relapse.
In re-examination, Dr J said the mother was more into binge-drinking. No one can say for certain about relapse. It depended on the mother’s circumstances.
The Affidavit and Evidence of Dr H
Dr H’s affidavit sworn 24 June 2016 annexes his report. He has treated the mother on 21 appointments, approximately at one session per week. He noted the deficiencies of treatment in circumstances where the treatment is court-reportable and said at paragraph 3:
I wish to make this as clear as possible: Ms Fenech is engaging as well as anyone can, given she knows that anything she says might be used against her as part of a family court process. Ms Fenech appears to speak relatively openly and freely. Ms Fenech brings ‘agenda items’ to therapy. There is no evidence to my mind of a reluctance to engage or as distorted or ‘manufactured’ (i.e. false) management style.
In paragraph 4, Dr H noted:
My observations of her progress are that Ms Fenech is developing some insight into: her personality and coping style, the family dynamics that have perhaps led to some elements of her personality being formed over time, and; the way in which she has been affected by the experience of her marriage and its subsequent breakdown.
He went on to say at paragraph 5:
I do not Ms Fenech as having a mental illness of any sort and therefore do not see treatment as ‘necessary’.
At paragraph 6, he said:
I see no evidence from my period of working with Ms Fenech, nor at any evidence stemming from the use of the MMPI-2, that Ms Fenech is minimising mental health or alcohol issues.
At paragraph 7, Dr H noted:
…It is my opinion that Ms Fenech does portray herself as relatively free of shortcomings and that this is an accurate portrayal of her accurate state. That is, she is relatively free of shortcomings.
Dr H said at paragraph 11:
…However, I see insufficient evidence from psychological therapy, psychometric assessment or supplied affidavit material to support the notion that (a) Ms Fenech currently has an alcohol abuse and/or dependence diagnosis, or; (b) that Ms Fenech must engage in abstinence from alcohol.
I note that Dr H generally gave the mother what might be described as a clean bill of health and was clear that the mother did not have a personality disorder of any kind. I note that Dr H had filed an earlier affidavit dated 1 April 2020, which in large part addressed the issue of the mother’s MMPI-2 test and related matters but in my view this has been overtaken by events.
When giving evidence, Dr H adopted his affidavits as true and correct.
Under cross-examination by counsel for the father, Dr H confirmed that the mother did not spend all her time in therapy on this case. It was put that the mother was consumed by the litigation. Dr H said this was episodic. It happens in bursts. The mother is defensive about allegations of alcohol abuse. She is defensive about issues in the case, but this was not the totality of her presentation. He agreed that there had not been enough time to address the mother’s difficulties and that the trial compromised the therapy process. He understood the mother was not taping the sessions, as she had denied it. It was then put that the wife had conceded in affidavit material on 15 June 2020 that she was. Dr H appeared to have difficulty with this.
When asked if they had discussed Y, Dr H said this was discussed in broad terms including the stress and strain of pregnancy and the strain of early development. It was a pleasure to watch the mother’s development over the last 12 months. X struggles with separation. Transition is particularly difficult. He displays emotional disregulation at home. There are concerns about X’s reactions to Mr Fenech. X was struggling to leave the car and crying in the car with the father. He was avoiding FaceTime and showing obvious signs of distress. When asked how the mother reacted, Dr H said her overwhelming concern was for the father and how to stop X’s problems. She expressed concerns as to how she and the father parented X. The mother was concerned about the lack of response of the Independent Children’s Lawyer to her request for an independent assessment of X.
Dr H was aware of the reports of Dr M and Ms S. He had not read Ms S’s, because he only received it the day before. He had quickly read Dr M’s second report. It was put that those reports suggested that X’s difficulties were to do not with X but with the mother’s parenting capacity. Dr H said he understood this and had discussed it with the mother. The mother is concerned about X’s behaviour on an ongoing basis. She spends time with Y and X and soothes X when he is distressed. She is talking about seeing Mr Fenech in a positive light and tries to suggest he will enjoy seeing his father. This has been the pattern since separation. This leads the mother to want an independent assessment. He had not discussed treatment after these proceedings were over. The outcome will influence the content of ongoing therapy.
Counsel for the Independent Children’s Lawyer raised the question of an independent assessment of X. Dr H said the mother was raising concerns that raising her concerns for X had been met with a lack of interest. She wanted an assessment of X’s distress. This was before Ms S and he had not read Ms S’s report. When asked about the overexposure of X to questions, Dr H said the mother had not mentioned this and he had not raised it. The MMPI had been at his request. He questioned some of the MMPI findings. When asked why the report was not appended to his affidavits, Dr H said it was used to help prepare the report. But the rest of the MMPI was filtered through his understandings of the client. He does not want the report re-interpreted. He was concerned it was a fishing expedition.
When it was put to him that he had been selective about the MMPI, Dr H agreed. His role is a psychologist. It was the same as Dr M with the PAI. It is extremely poor practice to accept a computerised report. Computerised interpretation was something that he disagreed with in this instance. It was not a correct understanding. When it was put to him that Dr M had suggested that the mother was minimising her alcohol and drug use, Dr H agreed that this was what Dr M had said. When it was put that the MMPI suggests that the mother blames others and refuses to accept responsibility for her conduct, he did not agree. He disagreed with all of Ms S’s assertions as to the mother minimising her alcohol problems and personality vulnerabilities. He disagrees with Dr M, Ms S and the MMPI. Therapy should be voluntary, rather than court-ordered. He agreed that the mother would need ongoing therapy for 12 months and that this would be in the children’s best interests.
His notes from 15 June 2020 record that the mother conceded that she had made an epic blunder recording the meeting between Mr Fenech and Ms S. Mr Fenech was in control of the interview.
In re-examination, Dr H said he was prepared to engage in ongoing therapy with the mother to help her cope with stress and alcohol. There were problems taking the MMPI at face value. They are not normally published. If I understood him correctly, he appeared to suggest that the MMPI was useless without interpretation.
The Report and Evidence of Ms S
Ms S’s affidavit was sworn on 6 July 2020 and appends her confidential court report. I note that the orders of 3 April 2020 had requested that Ms S provide reportable counselling for the children. The report noted that it was the mother’s position that X was experiencing anxiety when spending six nights away from her. It is probably sufficient to say that the report was highly critical of the mother and approving of the father. At paragraph 2 the report asserts:
Ms Fenech’s presentation changed across the consultations depending on what she needed to achieve. She appeared not to have engaged in a consistent or meaningful way throughout the sessions. Mr Fenech however presented as integrated and consistent during all consultations, with an ability to focus on the needs of the children and appearing open to hearing recommendations.
At paragraph 10 the report noted:
It became apparent halfway through the parent session that Ms Fenech had been taping the session. The writer is unclear if Ms Fenech has taped all the sessions, in addition to taking notes, and what she had done with the material and the contents of the sessions. This breached the aim of the session, which was to increase communication and to rebuild trust between the parents and to form a parenting relationship.
It can be said fairly, I think, that the report, as Dr M noted, rapidly moved away from any notion of therapy for the family to effectively set out Ms S’s assessment of the parties and the children. The report went on to recommend that the children live with the primary care of Mr Fenech in Melbourne. I would say shortly that I agree with Dr M that the report is not of any great assistance.
Ms S was called and adopted her affidavit and report. She had received the MMPI report which added to the risk factors regarding conflict and time.
Under cross-examination by counsel for the mother, Ms S confirmed that reportable counselling had been ordered. It was not possible to engage in therapeutic counselling. She was asked to write the report and had done family reports before. Due to the issues of risk and concern, she thought it was important to report. It was difficult to understand if X was distressed. It was not possible to give advice to the mother about X because of the issues raised. The father had given her the updated kinder report. She had made recommendations. She had gone above and beyond her appointed role. She was taxed with Dr M’s report but said that she can hold an opinion in terms of risk impacting on the children. There were other issues why there were no more sessions. She did not feel there could be any therapeutic work because of the high conflict in the case.
Under cross-examination by counsel for the father, Ms S confirmed she saw X with both parents. The mother has a lot of energy and is tactile. She was loving and nurturing. X could cuddle with her and she stroked his head. She was child-focused. She had not seen her with Y, who was on the floor. X had not seen the mother for six days but was quickly comfortable with her. The father was more seated in his chair. He spent more time watching them being at play. X was not presently ready for school. He was quite a competitive child.
The Relevant Exhibits
Exhibit R1 is a blood alcohol testing conducting upon the mother at the U Hospital Emergency on 10 August 2012 which discloses that the mother had a blood alcohol reading of .219. Exhibit R4 is from Transition Learning and Development Statement Suburb V 2020 which is the childcare, as I understand it, that X attends. I note that the report observes on the first page:
It is an extremely rare occasion to see X cry when being dropped off, but once mum or dad are out of view can be settled immediately with a hug and re-direction back to social play or a teacher-led activity.
Exhibit R6 are notes from the W Hospital which includes notes on 30 June 2017 which relevantly asserts:
Ms Fenech arrived to delivery suite. Admitted for assessment of alcohol abuse. Minimal coherence and rambling at times. Required a wheelchair unable to walk. States “she has consumed 2 bottles of vodka”, has only taken her normal daily doses of Zoloft. Is very concerned over son “X” 3 year old’s safety, reassured son is at home with his father.
Exhibit ICL1 is the MMPI-2 test conducted in relation to the mother on 5 March 2020. I have regard to all of the report but I note that on page 3203 the report asserts:
She appears to have a number of personality characteristics that have been associated with substance abuse or substance use problems. Her scores on the addiction proneness indicators suggest the possibility of an addictive disorder.
Some Brief Observations about the Credit of the Witnesses
The Independent Children’s Lawyer’s submissions assert on page 3:
The Wife’s evidence was inconsistent. At times she was vague and rambling. At other times she was defensive and resistant. Most of her affidavit material was focused on allegations against the husband. Most of her oral evidence was focused on herself and her future. Only a small part of her evidence was child-focused.
I can say that I agree with those submissions. A number of the mother’s answers were vague and evasive, particularly when she was being cross-examined about her alcohol use. It should be noted that cross-examination was not perhaps as extensive as counsel might have wished, as I had to make a ruling under section 136 of the Evidence Act 1995 (Cth) that cross-examination on a particular report was, in my view, likely to be unfair to the mother in the circumstances. It was clear when questions were put to her about parental responsibility that the mother has no informed, or indeed, any understanding as to what that concept means in terms of the Family Law Act 1957 (Cth). The mother’s answers at all times sought to minimise or explain away her use of alcohol in terms that I find unbelievable.
A number of the mother’s answers were indeed properly described as rambling. When taxed as to where she was going to live, whether in Suburb O or close to the city, the mother’s answers were indirect and nonresponsive. When taxed as to whether she had looked for rental, the mother said she had investigated Suburb Z and Suburb AA but none of this was in her affidavits and her answer was, in my view, completely unconvincing. Her answers about the benefits to the children of living in Suburb O were also, in my view, unconvincing. When asked about Alcoholics Anonymous her answers, which were to the effect that she had been but did not need to because she does not herself crave alcohol, were in my view largely non-responsive and indeed, unusually lengthy.
Ms BB, who was called by the mother, is the mother’s best friend. She answered questions put to her directly and responsively, but was clearly entirely partisan. Further, her appreciation and knowledge of the father struck me as being extremely limited.
Dr H was, in my view, albeit that I suspect he would not have appreciated it himself, extremely sympathetic to the mother’s position. He was very directly concerned to try and ensure that no weight was given to those aspects of the MMPI-2 testing that were antithetical to the mother’s case. In my view, his report must be approached with some hesitation and qualification in the light of his obvious and considerable sympathy for the mother, with whom he has had now a relatively lengthy period of engagement.
The father was generally an unremarkable witness. One area of his evidence that I found unsatisfactory was his responses to the evidence given against him as to his own drinking habits. His answers were, in my view, to an extent prevaricating and evasive, and it is clear that on occasions he has drunk far more than he presently now wishes to admit. His answers to questions about his financial control of the wife were, in my view, unconvincing and evasive.
Dr M was not significantly challenged in cross-examination. It is not generally necessary to comment on the personal credibility of professional witnesses because they have no reason, most commonly, to do anything other than give their professional opinion. For the avoidance of any confusion, however, I should make it clear that Dr M’s evidence was given with evident composure and fairness. He was an expert giving evidence within his field of expertise, and I found his demeanour at all times to be compelling.
Ms S, in sharp contra-distinction, struck me as being thoroughly defensive under cross-examination by counsel for the mother and some of her answers were unhelpfully non-responsive to the questions put.
The other supporting witnesses (and a number of the supporting witnesses’ affidavits were read without cross-examination, in any event) all struck me as being generally responsive to the questions put, but it is not possible to avoid the clear impression that they were all closely aligned with those whom they were called to support. I would only observe in passing that Ms P, who was after all responding to a number of matters which must have been deeply distressing to her about her early life and circumstances, was an admirably composed and patently honest witness.
As earlier indicated, I do not propose to traverse the parties’ full affidavits and very extensive oral evidence. The above conclusions say, I hope, enough to give an introduction to the statutory pathway.
Goode v Goode [2006] FamCA 1346
I turn now to the statutory pathway which is set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless 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 (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
Parental Responsibility
The Independent Children’s Lawyer and mother both seek an order for equal shared parental responsibility. The father, through counsel in final address, has indicated that this was not opposed, save for the issues of medical treatment, counselling and school. It was submitted that if the father did not have the, as it were, deciding voice, this would be likely to become a major battleground between the parties.
In this regard, I agree with the view of Dr M that equal shared parental responsibility is indeed in the children’s best interest. The presumption, of course, must be applied unless one of the parents has engaged in abuse of the child or family violence (section 61DA(2)) or because the presumption is rebutted by evidence that satisfies the Court that such an order is not in the children’s best interest (section 61DA(4)).
I do not accept that the children have been the subject of abuse by either parent. There are significant issues as to the mother’s care of the children when she has been seriously affected by alcohol, a matter to which I will return, but it was the mother’s evidence that the father has not hurt the children and would never do so, and it was the father’s evidence that the mother was a wonderful mother.
In the circumstances, in my view, the presumption cannot possibly be rebutted and Dr M’s forthright and sensible assessment of the matter (see paragraph 29 above) is obviously correct.
It should be noted that this of course gives rise to a requirement on the Court to consider the matters in section 65(DAA), but these matters are better addressed, as the decision in Goode v Goode makes clear, by addressing matters in section 60CC of the Act.
Section 60CC(2) – The Primary Considerations
In this case, all parties agree that is to the benefit of X and Y to have a meaningful relationship with both of their parents. There is nothing to suggest the contrary, despite the parties’ mutual and significant cross-recriminations. The real question is the issue of risk. This, of course, is at the heart of the position of both parties.
Before coming to deal with the parties’ various asserted risk factors, it is important to note, however, that the positions of both parties are to an extent internally inconsistent. The father raises in the strongest possible terms concerns about the mother’s alcohol and drug-related risks. Nonetheless, it is his own proposal that the children live with him but spend either four or five nights with the mother in a fortnight, depending on where she lives. The mother’s proposal, as the Independent Children’s Lawyer’s written submissions rightly point out, had been somewhat harder to pin down – but were close to being a mirror image in reverse. For the parents to be proposing for this amount of time plus holiday time puts the measure of their concerns into proper perspective.
Having said this, now is the time, in my view, to deal with the parties’ various difficulties, associated most particularly with alcohol.
There is no getting away from it. The mother has significant and in my view ongoing vulnerabilities with alcohol abuse. As I indicated at the start of this judgment, much of the battle seemed to be to be fought out over the father’s concern to prove that the mother was an alcoholic in denial and the mother’s equally determined attempts to show that this was not the case, despite acknowledging some alcohol abuse.
The mother has sought to explain away or minimise all the disastrous incidents of past alcohol abuse. Not only, as I have already indicated, was she by no means a satisfactory witness, most particularly when pressed on alcohol and prescription drug abuse, but the objective facts are overwhelming. Despite her endeavours to quibble with it, there is no doubt that she had a car accident in 2012 when she had a blood alcohol reading of .219. Equally, the photographs taken by the father in Country CC clearly show the mother passed out and drunk in 2015. She was the subject of several hospital admissions in 2017. Her attempts to deny the issue of the wheelchair and the like are, I regret to say, concerning because they only go to show her lack of appreciation of her situation. Even the mother agrees that the incident in May 2018 was an extremely serious one.
Unlike the parties, I do not think it matters if the mother is technically an alcoholic or not. I am not a doctor, and no direct evidence was called viva voce from any treating medical practitioner or specialist in the field to give a conclusive answer to this question. For what it is worth, and noting Dr M’s qualified view of his own expertise in the field, I tend to agree with Dr M that the mother is what is more probably characterised as a binge drinker. It would appear that she has been abstinent for quite some time, and although I have not mentioned it before, the father’s paranoid endeavours to show that the mother’s hair follicle and other tests did not mean what they said has been conclusively negatived by the evidence of Mr T.
Having said that the mother has achieved a commendable measure of abstinence, it would appear for some time, the mother’s ongoing position was equivocal and unsatisfactory. She appeared to suggest that she should not go to Alcoholics Anonymous because she was not the sort of person who attended. They all are alcohol-craving, where she is not. Nonetheless, the mother’s assertion that she should be allowed to drink on festive occasions, and even indeed that she should be allowed to go on drinking as long as she was under control, is deeply troubling. It is clear that the mother continues to minimise her use of alcohol in the past, and I accept that she does not really fully understand both the extent of her past use and the ongoing risks that it poses in terms of possible relapse. I note, however, to her credit, that she has said that if the Court orders her to be abstinent, she will comply.
So far as prescription medication abuse is concerned, I note that this must be a concern but it would appear that the mother’s present use of prescription drugs is not presently problematic.
The father’s asserted difficulties are grossly excessive consumption of alcohol, controlling behaviour, and significant verbal abuse of the mother. The father actually conceded in his evidence that there had been occasions when he had yelled at the mother, and I have no doubt that he has, during the relationship, screamed at her. It is equally plain, however, that she has screamed at him – and indeed, a video showing her doing so was one that she described as making her ashamed. Nonetheless, it is clear from the evidence taken overall, and particularly that of Mr R, that the father has used alcohol more than he is prepared to admit. I have no doubt that on occasions at least, he has spent very long hours downstairs in the business drinking before returning inebriated, or at the very least significantly affected by alcohol. His hair follicle test appears to be congruent with this observation.
The mother’s many and embittered complaints of the husband’s controlling behaviour are more probably, in my view, a reflection of her own tendency to see the world in this way, as evidenced in the MMPI-2 and other reports, including Dr M’s own observations. Nonetheless, the husband’s taking of photographs, many in secret, suggests an unattractive quality. I agree with the counsel for the Independent Children’s Lawyer’s submission that taking of the photographs of the mother, admittedly blind drunk, but in states where her clothing is a state of disrepair, is not at all attractive. He says that the mother asked him to take these photographs, but I do not believe him. He took these photographs not to assist her but rather to record them for his own purposes, which must have included, at least from time to time, a thought they might be useful to him in litigation. There would be no other reason to keep them.
This then brings us to the obvious issue of how these matters play out in considering the primary considerations in section 60CC(2). The Court is of course required to give greater weight to the need to protect the children from the risk of family abuse or family violence.
Once again, I repeat, however, that in a sense the parties’ positions in this regard put their submissions in proper context. For all practical purposes, both parties want the children to spend time with both parents. What they are arguing about is who gets how much of the time.
The additional considerations, section 60CC(3)(a)
The children have not expressed any meaningful views, and given their ages, any views would have to be approached with considerable caution.
Section 60CC(3)(b)
Once again, this important subsection can be dealt with relatively briefly. There is no doubt that the mother was the primary carer of the children earlier on in their lives. The husband was at that time working in his various and significant business interests. He had the business downstairs and he had his other business, which was in a far more expanded state than it is now. He had not then, as he has now, effectively divested himself of both. Even now, I share Dr M’s view that the husband’s business interests must take up at least some proportion of his time.
It should also be noted that the mother’s care of the children was by no means as significant as would perhaps ordinarily be the case. She and the father have had the very considerable assistance of night nannies, nannies and au pairs on and off throughout. Moreover, both children have been in childcare for very extended periods of time from a very early age. In my opinion, this arises from the fact that the mother was not coping with looking after the children and was, as the Independent Children’s Lawyer submits more generally, concerned with herself to a greater extent than she was with the children. This is not a matter of criticism. It arises out of the mother’s various frailties which, unlike the way it was put by the father, are not a matter for criticism but rather for sympathy. Nonetheless, the children on any view of the matter have a very well-established relationship with their mother and of course also with their father. The Independent Children’s Lawyer is correct to submit that “both parents love their children and the children love both their parents and enjoy spending time with each of them. By all accounts, the children are close.” I say this notwithstanding the mother’s apparent difficulties with X and separation. The evidence of the professionals is clear, even if I approach Ms S’s evidence with considerable caution, as I do. The problem is not X, it is the mother’s own anxiety, and she will need counselling to deal with this.
Section 60CC(3)(c)
Both of these parents have sought to participate in making decisions about long-term issues in relation to the children and to spend time and communicate with them. The mother has much to say about the father’s absences, which appear to have been work-related (even including those to Country DD and the like). It should be noted that these absences were, it would appear, designed to further his business interests and benefit the family financially, in any event. I repeat: both these children love their parents and the children love them, which tends to suggest in the strongest terms the involvement that each of the parents has spent with the children.
Section 60CC(3)(ca)
Plainly, the father has been the sole financial provider for the children but it is clear that the mother’s stay-at-home role, so to speak, was one agreed between the parties. I note that the financial settlement entered into enables the wife fully to provide financially for herself and the children while they are in her care. The father is also going to pay on an ongoing basis a substantial number of what would otherwise be described as the ancillary costs associated with the children.
Section 60CC(3)(d))
The children have lived most of their short lives in the former matrimonial home in Suburb G, now occupied by the father and his daughter, Ms P. Ms P evinced considerable affection for her half-siblings, and there seems no reason to doubt that for whatever period of time she lives there, she would be a beneficent figure in their lives. The children have, however, spent more time of late at the parties’ former family home in Suburb O, where the mother is living, although she will have to move out by January 2021. The children are both enrolled at day-care or kindergarten in Suburb B and appear to be well-settled there. They are aware of the school to which X will be sent next year if he stays living in Suburb G because they go past it on their way to kinder. These matters militate very strongly in favour of the children staying living in the area where they have predominantly lived for their lives.
It is appropriate under this heading also to consider the mother’s proposal to stay in Suburb O. I accept the submissions of the Independent Children’s Lawyer. The mother’s emphasis in her evidence about her desire to live in Suburb O was really far more concentrated on her own needs than those of the children. Her evidence generally was not child-focused, and I agree that her affidavits bespeak a concentration on matters other than the children directly. I would observe that the mother’s lengthy depositions as to matters concerning the father’s children are concerning, because they both in some instances trampled on the dignity and privacy of those children, and because, in truth, they are at best, tangential to the matters the Court is being required to consider. While the mother’s best friend lives in Suburb EE and has children of her own, it is, in my view, immediately apparent that the children should stay in the inner part of Melbourne which in truth is where they have always lived. The question is the configuration of the time they spend with their parents in that regard.
I note that the eight-six arrangement in place since orders were most recently made appears to have worked reasonably well, but given that X is starting school next year, this configuration cannot continue in any event if the mother remains in the Suburb O area. Dr M deposed that it was not about the numbers, but that is only his point of view. For the parents, it is all about the numbers. Dr M recommended equal time, and in closing submissions, counsel for the mother appeared to suggest that this is the result that should be put in place.
In my view, Dr M is right and the children would sustain any regime of time provided that the time with the non-primary parent was not reduced to a point that led to distress. I will return to this matter, obviously, in considering the overall outcome.
Section 60CC(3)(e)
If the mother stays living in Suburb O, there will obviously be considerable difficulty in any time regime. This would be the case whether the children would be her primary care or that of the father. If the mother relocates to somewhere within 4 kilometres or thereabouts of the father’s residence, then this difficulty will disappear. I note that, given the financial arrangements between the parties to which I have already referred, expense is not going to be an issue.
Section 60CC(3)(f)
It is implicit in the parties’ positions that each of the parents can care for the children. I repeat again: the father said the mother was a wonderful mother. The father has been assessed by Dr M as the better parent, if that was what the choice was to come to. The real question, of course, is the question of the risk in the mother’s alcohol abuse. This is a matter I will address separately when I come to deal with the specific matters raised by the Independent Children’s Lawyer’s submissions. As indicated, at least for the moment, Ms P appears to be a beneficent factor in the children’s circumstances.
Section 60CC(3)(g)
The father is a dynamic and extremely successful businessman. To the extent that the mother has described him as controlling, without repeating all that I have already said, I would observe that he is a person who appears to be thoroughly organised in all aspects of his life, including his proposed and current care for the children. The mother, most unfortunately for her, has had some serious difficulties and frailties. It would seem that she has personality vulnerabilities, and these are reflected in her ongoing difficulties with alcohol and, from time to time, it would appear, with prescription drugs. Nonetheless, and to her credit, she has been able to be abstinent. Equally, however, she has no relapse plan and no insight into her difficulties with alcohol, about which she remains in stout denial. These are matters I will return to in due course.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The father’s attitude to the responsibilities of parenthood appears to be unremarkable and appropriate.
I would agree with the Independent Children’s Lawyers submission that: The wife was focused on herself and her needs. She agreed that she had seen a number of psychologists and psychiatrists in the past, mostly for anxiety and depression as “everyone needs support.” Little of her oral evidence was child-focused. I note that the mother proposed that if the children lived with her, she would still have hired help, and that X would be at school and Y in local childcare for three days a week to enable her to look for employment. I have no doubt whatever that the mother loves her children dearly, but her personal frailties qualify, at least to an extent, her notions of herself as a parent.
It should be noted that the changes the wife proposes would, as the Independent Children’s Lawyers submit, reduce the father’s time from eight nights a fortnight to just over half that, being five nights a fortnight, a not insignificant matter.
Section 60CC(3)(j)
There has undoubtedly been family violence. The wife has screamed abuse at the father on occasions. The father undoubtedly has screamed at her also. There has not, however, been family violence in the sense of assaults.
Section 60CC(3)(k)
Unless I misunderstand the matter, there are no extant intervention orders, if there ever have been.
Section 60CC(3)(l)
This dreadful saga plainly needs to come to an end. It has been an observable stressor during the proceedings on both the father and the mother, and there can be no doubt, taking the materials as a whole, that the sooner this is out of the way the better. I agree that much of the stress in this proceeding will have been finance-related. The mother has complained vividly of the father’s control over her in this regard from time to time. I think it is likely that now that that is resolved, things will at least be free of that aspect of the dispute, and it is plain on any view that these parties need to move decisively to a final conclusion.
Section 60CC(3)(m)
In a sense, this now brings us to the critical question. Should the children live predominantly with the father or the mother, or in an equal care arrangement as recommended by Dr M?
While I would express the greatest of respect for Dr M’s opinions, and I acknowledge again his unquestioned expertise, there is one aspect of his proposal for shared care if the parties live within 4 kilometres of one another that I think he has underestimated or overlooked. That is the toxicity of the relationship between the parents. The parties have written at great length and in the most derogatory terms about one another. As I say, this is in my view, largely emanated from the misconceived concentration upon the ultimately non-decisive question as to whether or not the mother is indeed an alcoholic. The proceeding was not conducted by counsel, no doubt on their instructions, with any apparent concern for the feelings of the other party. The final submissions made by counsel for the father were lacerating for the mother to have to hear, and I have recorded that she sustained herself through the criticisms of both counsel for the father and the Independent Children’s Lawyer with some dignity. The vitriolic way in which both parties conducted their cases will not have done anything to improve each party’s perception of the other, quite the reverse. Having seen and heard the evidence and the submissions, it would be utterly unrealistic to assume that things will immediately start to get better. One would hope this in a perfect world, but all the evidence and submissions point to the contrary conclusion. An equal shared care arrangement is not, in my view, desirable where the parties have such very significant interpersonal difficulties.
Furthermore, Dr M was of the view that the father, if it came to it, was the more proficient parent. The fact is that the father has restructured his affairs to enable him to be, in effect, a close to full-time parent.
As the Independent Children’s Lawyer’s submissions correctly observe, “The wife’s proposal reflects lack of foresight and planning and lack of insight about the need for structure, certainty, stability and routine for two young children.” In the ultimate, I think the children’s interests would be best served by living with their father in Suburb G. He is the more stable and organised of the two parents. He has already taken positive steps to chart the children’s future, and I have no doubt he will continue to do so appropriately.
The eight-six regime presently in place is plainly unworkable if the parties continue to live as far apart as they are. I will order that the children live in a ten-four arrangement if the mother elects to stay in Suburb O, but I have no doubt that she will, as she says, go where the children are. Assuming this latter to be the case, I think that the regime proposed by the Independent Children’s Lawyer is appropriate. It will give the Father a full weekend with the children. It also has the benefit, as I see it, of placing the children in the predominate care of the parent better equipped to provide for their day to day needs.
The Specific Issues Raised by the Independent Children’s Lawyer
The Independent Children’s Lawyer’s submissions deal with a number of matters set out which have not perhaps been directly touched on thus far.
For reasons it is not necessary to elaborate at any length, I propose to adopt the Independent Children’s Lawyer’s proposal that kindergarten, school holidays and special occasions should be shared equally. No submission to the contrary has really been advanced by either parent. Equally, since the children will be living with the father at Suburb G, they should attend a local primary school and kindergarten/childcare, as proposed by him. This is not to derogate from the order for equal shared parental responsibility already referred to. Rather, it gives effect to the evidence of the father’s appropriate choices that have already been made.
I note that Dr M had proposed in his most recent report that the parties appoint a parent coordinator to enable them to assist with co-parenting in the future and to deal with parenting strategies or further referral, particularly related to X. The Independent Children’s Lawyer recommended Dr L to assist the parents in this role, as she is “a clinical psychologist and an expert in child, adolescent and family psychology.” The Independent Children’s Lawyer has sought an order that the parties attend upon Dr L or other agreed psychologist to jointly consult in relation to the development of the joint parenting style, as long as the psychologist considers it beneficial, with each party to pay half the costs. Given the parties’ significant financial resources, there is no obstacle to that order being made, and given the difficulties that the parents have and the difficulties the mother has in recognising X’s difficulties, it is a plainly an appropriate order to be made.
The Independent Children’s Lawyer has sought an order that the wife be restrained from drinking alcohol. At one level of analysis, this is a very significant infringement of the mother’s entitlement to do something that a very substantial proportion of the population do as a matter of course.
I have already dealt with the question of the mother’s issues with alcohol. I note that on one occasion in 2018, she relapsed, despite her best intentions to the contrary, within a matter of weeks. I further note, as I have already mentioned, Dr M’s clear view that alcohol is for the mother a very dangerous mix and his very clear recommendation that the mother should abstain from alcohol altogether. I am of course concerned that an order of this character requires something akin to constant supervision, something courts do not ordinarily entertain. Nonetheless, what militates most decisively in favour of making this order in the best interests of the children is the fact that the mother herself has indicated that if it is ordered, she will abide by it.
Given that that is the case, and the mother’s risks of relapse, and/or of the dangers of risk should she do so for the children, it is plainly appropriate in these exceptional circumstances to make what is clearly an exceptional order. There will be an order that the mother be restrained from drinking alcohol. As an ancillary order, the Independent Children’s Lawyer seeks an order that the wife undertake hair follicle tests for the next 18 months until April 2022. Ordinarily, the major difficulty with hair follicle testing is the cost, but that is not an extant factor in this case. It is plainly an order that is in the children’s best interests to be made. It will have the benefit of enabling the mother to prove that she is able to do what she says she is indeed able to do, and should allay the in my view slightly overblown fears of the father in this regard. It should build trust, in the ultimate, between the parents, which is entirely in the children’s best interests.
The Independent Children’s Lawyer also seeks orders that the mother continue to see Dr H, or his nominee, and the psychiatrist, Dr J, or his nominee for the next 18 months. The attendance upon Dr H in particular will enable the mother to address issues relating to substance use disorder, substance dependence and personality functioning, and should be ordered no less than once per month with an order that all of his reasonable directions be followed.
The Independent Children’s Lawyer seeks that the mother continues to see Dr J and that she develop a safety plan in consultation with her psychologist and psychiatrist, including a specific care plan for the children, and provide written details of the relapse care plan to the husband. I think that this is eminently in the interests of all concerned. It is something that the mother’s dependence and difficulties makes desirable for her, and it will have the further effect of making her concentrate, perhaps, in a more focused way than her present presentation suggests has been the case.
The Independent Children’s Lawyer also seeks an order that the father continue to attend upon his psychologist, Mr K, or his nominee if the psychologist deems it necessary, at such intervals as recommended by the psychologist with the father to follow all reasonable directions. I note that Dr M was of the view that the husband’s alcohol use was not able to be determined despite allegations of consistent use and indications of a lifestyle that supported alcohol use. As earlier indicated, I have been perhaps somewhat less equivocal. I think that the father’s alcohol use in the past has been, at least from time to time, problematic. The order that the Independent Children’s Lawyer seeks is in my view appropriate and in the children’s best interests. The assistance the father will get will assist him to be a better father. Similarly, the Independent Children’s Lawyer order that the father be restrained from consuming alcohol to excess or having a blood alcohol concentration of over .05 during any time he has care of the children, is an appropriate order notwithstanding the constant supervision element it involves.
Conclusion
As earlier indicated, I have done my best in this judgment to cut to the chase. The parties’ prolixity of material and savagery of combat has in my view distorted the focus of these proceedings significantly. Instead of being focused on the children and their needs, it has been focused upon the father’s attack on the mother and her self-defence and counter-attacks against him. It is to be hoped that this judgment enables the parties to begin, with appropriate assistance, to try and get over the difficulties that these proceedings have generated for them and to enable these two parents, both of whom love their children and are loved by their children, to develop the children’s lives in a fashion where love will be at the forefront and recrimination will slowly recede into the distance, where it deserves to be.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 17 September 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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