Finhurst & Finhurst

Case [2023] FedCFamC1F 636

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Finhurst & Finhurst [2023] FedCFamC1F 636

File number(s): NCC 3522 of 2019
Judgment of: AUSTIN J
Date of judgment: 2 August 2023
Catchwords: FAMILY LAW – PARENTING – Where the parties agreed sole parental responsibility should be allocated to the mother and the children should live with her – Whether the children should spend any time with the father – Where the mother alleges the father poses a material risk of harm to the children – Where alcohol consumption has been a problem for the father for nearly 20 years – Where the father has had multiple admissions to hospital due to impaired mental health related to his excessive consumption of alcohol – Where the mother is concerned about the state of the father’s mental health – Where the father has not been diagnosed with a psychiatric or psychological condition – Where the father has attended upon a psychologist for the past five years to help prevent relapse – Where the father’s claim he has been abstinent from alcohol over the past nine months was not contradicted – Where the father has spent supervised time with the children since October 2022 – Where it was common ground the children would benefit from having meaningful relationships with both parents – Ordered that the children spend supervised spend time with the father subject to certain conditions – Where the father will need to demonstrate his continuing sobriety – Costs reserved.
Legislation:

Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65Y, 68B, 68C, 114, 114AB

Cases cited:

B & B (1993) 16 Fam LR 353; [1993] FamCA 143

Champness & Hansen (2009) FLC 93-407; [2009] FamCAFC 96

Marriage of B & B (1993) FLC 92-357; [1993] FamCA 143

Moose v Moose (2008) FLC 93-375; [2008] FamCAFC 108

Re C & J (1996) 20 Fam LR 930; [1996] FamCA 86

Re W (Sex abuse: standard of proof) (2004) FLC 93-192; [2004] FamCA 768

Slater & Light (2013) 48 Fam LR 573; [2013] FamCAFC 4

W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892
Division: Division 1 First Instance
Number of paragraphs: 109
Date of hearing: 10, 11 & 12 July 2023
Place: Newcastle
Counsel for the Applicant: Mr Flanigan
Solicitor for the Applicant: Grant & Co
Counsel for the Respondent: Ms Otrebski
Solicitor for the Respondent: Pigdon Norgate Family Lawyers
Counsel for the Independent Children's Lawyer: Mr Mooney
Solicitor for the Independent Children's Lawyer: Wooi Legal

ORDERS

NCC 3522 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR FINHURST

Applicant
AND:

MS FINHURST

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

2 AUGUST 2023

THE COURT ORDERS THAT:

1.All former orders relating to the following children are discharged:

(a)X, born 2011; and

(b)Y, born 2013.

2.The mother shall have sole parental responsibility for the children.

3.The children…

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Finhurst & Finhurst [2023] FedCFamC1F 636
Case
[2023] FedCFamC1F 636
Decision Date

CaseChat Overview and Summary

The parties, parents of two minor children, were before the court in a dispute regarding the children's contact with their father. The father sought an order for the children to spend time with him, subject to certain conditions. The mother opposed the father's application, arguing that the children's safety was at risk due to the father's history of excessive alcohol consumption and psychological issues. The Independent Children's Lawyer did not adopt a specific position but proposed certain conditions for the children's contact with the father.

The legal issues before the court were whether the children's best interests would be served by spending time with their father, subject to certain conditions, and if so, what those conditions should be. The court had to consider the objects and principles of the Family Law Act 1975 (Cth), the rebuttable presumption of equal shared parental responsibility, and the criteria in section 60CC of the Act. The court also had to weigh the mother's concerns about the father's alcohol consumption and psychological issues against the children's desire to maintain a relationship with their father.

The court found that the presumption of equal shared parental responsibility did not apply due to the family violence perpetrated by the father. The court accepted that the children would benefit from having meaningful relationships with both parents, and that the father's past alcohol consumption and psychological issues did not necessarily mean he posed a current risk to the children. The court was satisfied that the children's safety could be ensured by imposing conditions such as supervision and proof of alcohol and drug abstinence. The court also accepted that the children wanted to continue spending time with their father and that there was no plausible reason to eradicate the existing regime of supervised visits. The court ordered that the children should spend time with their father under the supervision of a family member or friend, subject to the father providing proof of sobriety and attending a post-separation parenting course.

The court ordered that the children should spend time with their father under the supervision of a family member or friend, subject to the father providing proof of sobriety and attending a post-separation parenting course. The court also ordered that the father should not be effectively eliminated from the children's lives, and that the children should have unsupervised contact with him once he had demonstrated a period of sustained sobriety. The court further ordered that the parties should cooperate in making arrangements for the children's contact with their father and that they should not discuss the proceedings with the children.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

These reasons explain why the children should spend time with the father, subject to two conditions: first, the supervision of their interaction; and secondly, continuing proof of the father’s sobriety. Fulfilment of both conditions should sufficiently attenuate the risk, help enhance the children’s sense of security, and abate the mother’s anxiety.BACKGROUND The parties commenced cohabitation no earlier than 2001, married in 2010, finally separated in August 2017, and divorced in 2019. The two children were born in 2011 and 2013. They are now aged 12 and 10 years respectively. From the time of separation in August 2017, the mother encouraged the children to spend time with the father, albeit under the supervision of either her or the paternal grandfather. The parties even sometimes socialised and went on holidays together.[1] However, the situation changed after an incident between the parties in late 2018, following which a State court made a family violence order against the father for the protection of the mother and children. The terms of the family violence order precluded the father’s contact with the mother and children, subject to certain conditions, until October 2020.[2][1] Mother’s affidavit at [88], [91], [101], [102], [103] and [104][2] Exhibit M2 These proceedings were commenced by the father in October 2019, after which time several sets of interim orders were made. In December 2019, the father was ordered to submit to testing for illicit drug use and the parties were restrained from discussing the proceedings with the children. In February 2020, the mother was ordered to submit to testing for alcohol abuse. The Independent Children’s Lawyer (“the ICL”) was also appointed at that time. In October 2020, orders were made by consent providing for the children to live with the mother and to spend time with the father under professional supervision for two hours each fortnight. The commencement of the children’s supervised visits with the father was delayed because of the COVID-19 pandemic. The father was otherwise restrained from approaching the mother and children and was ordered to complete a post-separation parenting course. In September 2022, the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1). Some delay in procuring an update Family Report from the Regulation 7 Family Consultant meant the trial was pushed back from March 2023 to July 2023. With the trial being pushed back by several months, more interim orders were made by consent in February 2023, providing for the children to live with the mother and to spend time with the father for four hours once each calendar month, supervised by an adult chosen by the mother from a fixed list of relatives and friends. The variation was needed as the professional supervisor declined to provide the parties with any more resources. Provision was also made for the children to communicate electronically with the father. The father gave unchallenged evidence the visits have since occurred without incident and have been positive experiences for both the children and him,[3] with which the mother readily agreed in cross-examination.[3] Father’s affidavit at [52]; Mother’s affidavit at [8.2], [182], [188], [194], [196]

Evidence

Evidence Before The Court

The ICL did not adopt any particular position at the commencement of the trial, but tendered a revised minute of proposed orders just before final submissions were commenced.[7] The ICL sought orders for the children to spend time with the father for one weekend each school term and for weekly periods during the school holidays (two in the summer holidays), but subject to fulfilment of certain conditions. Such conditions included the children’s visits with the father always being supervised by a paternal family member or friend, the father submitting to quarterly alcohol tests, the tests returning negative results, and the tests being promptly furnished to the mother.[7] Exhibit ICL2EVIDENCE The father relied upon his affidavit (and annexures) filed on 24 June 2023. The mother took no issue with it being filed about one week late. The mother relied upon her affidavit (and annexures) filed on 26 June 2023. The father took no issue with it being filed 10 days late. The parties and the ICL relied upon the two Family Reports prepared by the Family Consultant on 8 April 2021 and 26 April 2023. Multiple exhibits were tendered during the trial.LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The presumption of equal shared parental responsibility does not apply in certain circumstances (s 61DA(2)) and may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) It was common ground the children would benefit from having meaningful relationships with both parents. The father wants the children to remain living with the mother and thereby accepts the quality and importance of their relationships with her. The mother conceded to the Family Consultant that the children love the father, enjoy their visits with him, and she ideally wants them to spend time with him.[8] The Family Consultant observed how the children enjoyed their interaction with the father, who was calm, caring and supportive.[9] An inference is easily drawn that the children would derive benefit from developing and maintaining their meaningful relationships with the father.[8] Second Family Report at [21] and [47][9] Second Family Report at [75]

Decision

Reasons for decision

No other fact or circumstance was urged by the parties or the ICL to be relevant.CONCLUSIONS By reason of the family violence perpetrated by the father during the incident at the mother’s home in late 2018, the presumption of equal shared parental responsibility does not apply (s 61DA(2)). The parties and the ICL agreed the mother should have sole parental responsibility for the children. Their residence with her was also agreed. The children’s best interests demand that they spend supervised time with the father, as he and the ICL proposed, and that he not be effectively eliminated from their lives, as the mother proposed. There are several reasons why that is so. In summary:(a)the Family Consultant said, and I accept, the children’s interests are advanced by spending time with the father, provided they remain safe;(b)the children’s safety can be satisfactorily ensured by the imposition of numerous conditions, such as supervision and proof of alcohol and illicit drug abstinence, which the father was willing to meet;(c)the children want to continue spending time with the father;(d)no plausible reason was advanced for why the existing consensual regime of supervised visits between the children and the father should be eradicated; and(e)the Family Consultant said, and I accept, the children would likely experience emotional detriment if denied physical visits with the father, with which proposition the mother said in cross-examination she “absolutely” agreed. The supervision of the children when visiting with the father can be provided by one of the family members or friends whom the mother approved during her cross-examination. She expressly admitted they would be suitable supervisors for overnight visits. There is no need for the imposition of professional supervision. First, the mother agreed it was unnecessary when she agreed to vary the interim orders in February 2023. Secondly, one reason the orders were amended in February 2023 is because the erstwhile professional supervisor agency told the parties they had already used their allocated share of its resources and it could offer them no more, so the same situation is liable to arise again if a paid professional supervisor is engaged. Thirdly, the mother acknowledged the family-supervised visits have been occurring without incident. Although family members and friends are often not ideal supervisors (Marriage of B & B (1993) FLC 92-357 at 79,780–79,781), that is not the situation here because the mother expressly approved of some in cross-examination and earlier told the Family Consultant she trusts the father’s family members will not lie for him.[51] It will be necessary for the potential supervisors to file undertakings in the Court acknowledging the nature of their obligations.[51] Second Family Report at [20] The imposition of long-term supervision is generally regarded as undesirable (Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hansen (2009) FLC 93-407 at [209]–[215]; Moose v Moose (2008) FLC 93-375 at [119]; Marriage of Bieganski (1993) 16 Fam LR 353 at 368), but it still remains an option for final parenting orders (Champness & Hansen at [216]; Re C & J (1996) 20 Fam LR 930 at 948–949 and 959–960). Indefinite supervision is still a better outcome than the complete severance of personal interaction, which must be the option of last resort (W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at [112]–[115]; Re W (Sex abuse: standard of proof) (2004) FLC 93-192 at [54]–[56]; Re C & J at 960). Here, the father and ICL both sought indefinite supervision and it was the mother’s fall-back position.

Ratio Decidendi

Legal Principle Established

The presumption of equal shared parental responsibility does not apply in certain circumstances (s 61DA(2)) and may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) It was common ground the children would benefit from having meaningful relationships with both parents. The father wants the children to remain living with the mother and thereby accepts the quality and importance of their relationships with her. The mother conceded to the Family Consultant that the children love the father, enjoy their visits with him, and she ideally wants them to spend time with him.[8] The Family Consultant observed how the children enjoyed their interaction with the father, who was calm, caring and supportive.[9] An inference is easily drawn that the children would derive benefit from developing and maintaining their meaningful relationships with the father.[8] Second Family Report at [21] and [47][9] Second Family Report at [75] Subject to the necessity of the children’s protection against the risk of any harm, the orders should provide for the children to spend regular amounts of time with the father. It was the mother’s case that the need to protect the children from harm outweighed the benefit they would derive from meaningful relationships with the father (s 60CC(2A)).Section 60CC(2)(b) The mother contended the father poses a material risk of harm to the children for two reasons: first, his excessive alcohol consumption; and secondly, he suffers from impaired psychological health. For either or both reasons, the mother fears that if the children spend time with him, particularly without reliable supervision, he may become distracted, disinhibited, violent, or take unnecessary risks and thereby put the children in physical or emotional danger.[10][10] Second Family Report at [32], [38] and [85] The mother gave evidence of the father’s historical excessive alcohol consumption.[11] The father admitted alcohol consumption has been a problem for him for nearly the last 20 years. He conceded he was convicted of alcohol-related driving offences in 2004 (though not verified by criminal record), 2018, and 2022.[12] He had several admissions to hospital between 2006 and 2009 for self-inflicted injuries and reports of impaired mental health related to his excessive consumption of alcohol. Then, in 2017, he had another admission to a hospital due to impaired mental health related to his excessive consumption of alcohol. Regrettably for the family, the father’s past periods of alcohol abstinence have not lasted and he has relapsed. [11] Mother’s affidavit at [47]-[48], [93][12] Exhibit M3 and M6 The father has been attending a psychologist for the past five years to help prevent his relapse and claims to now be making better progress. He claims to have been abstinent from alcohol use over the past nine months,[13] which claim was not contradicted. The mother doubts his current abstinence will last, which doubt is not unreasonable based on his past conduct, but her doubt is not proof of the fact. The father gave the impression he realised how his alcohol consumption and associated anti-social behaviour had compromised the chance of him seeing much more of the children over the past few years and he was now finally intent on rectifying that situation. When challenged in cross-examination about his long history of alcohol misuse, the father plaintively said “I have been trying very hard to address those issues”. He exuded sincerity. Of course, sincerity alone will not ensure prolonged abstinence, but it is a good start.[13] Father’s affidavit at [49]-[50]