Fort & Fort
[2025] FedCFamC1F 126
•19 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fort & Fort [2025] FedCFamC1F 126
File number(s): ADC 2560 of 2023 Judgment of: KARI J Date of judgment: 19 February 2025 Catchwords: FAMILY LAW – CHILDREN – Ex Tempore Reasons – Where the father seeks an increase in his time spending with the children – Where the father seeks the removal of the interlock device fitted to his motor vehicle – Where there is a significant lack of trust between the parties – Where the mother asserts there is a risk of harm to the children due to the husband’s alcohol use and consumption – Where the father’s CDT testing and breath test results are inconsistent for the same period of time – Where these are interlocutory proceedings - Where the evidence is unable to be tested – Where the court considers it appropriate to continue the protective measures already in place – Where the father’s time spending with the children will remain as previously ordered – Where the report writer who prepared the previous report will prepare the updated report Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 64B, Pt VII Cases cited: Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Isles & Nelissen (2022) FLC 94-092
Division: Division 1 First Instance Number of paragraphs: 70 Date of hearing: 19 February 2025 Place: Adelaide Counsel for the Applicant: Mr Robertson-Clark SC, assisted by Ms Miller Solicitor for the Applicant: Norman Waterhouse Lawyers Counsel for the Respondent: Mr Williams SC Solicitor for the Respondent: Precision Legal ORDERS
ADC 2560 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FORT
Applicant
AND: MR FORT
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS BY CONSENT:
1.No later than 4.00 pm on 28 February 2025 the father do file and serve a Response to the Application in a Proceeding filed on 29 January 2025 together with an Affidavit in support of the same.
2.Order 7 of the Orders of 3 November 2023 do apply during the father's time with the children during the school holidays or any special occasion.
3.Order 17 of the Orders of 3 November 2023 be discharged.
4.The father's time with the children during the school holidays be supervised by Ms C or Ms D in the event that he travels further than 100 kms away from the Adelaide CBD.
5.The father do provide a breathalyser reading when the children are in his care during the school holidays as follows:
(a)On one (1) occasion during the time that the children are in the care of the father at the request of the mother by text message to be provided within thirty (30) minutes; and
(b)At 9.00 pm the night prior to the commencement of time.
6.Pursuant to r 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) the parties do jointly instruct Dr G to undertake an updated psychiatric assessment of the father directed to allegations of alcohol abuse.
7.The parties do provide to Dr G for consideration as part of his updated psychiatric assessment:
(a)A copy of all documents filed in these proceedings;
(b)A copy of the report of Ms B dated 7 December 2024;
(c)A copy of the material produced by way of subpoena to:
(i)E Family Services, .
(d)All communications between the parties and F Company; and
(e)The transcript from the Court hearing before Judge Campbell on 22 December 2023.
8.The costs of the preparation of the updated psychiatric assessment be shared equally between the parties.
9.Pursuant to r 7.03 of the Rules the parties do jointly instruct a single expert to prepare a Family Assessment Report in relation to issues concerning the care, welfare and development of the children, which addresses the following matters:
(a)Any views expressed by the children and any matters (such as the children's maturity or level of understanding) that would affect the weight that the Court should place on those views;
(b)The matters set out in s 60CC of the Family Law Act 1975 (Cth);
(c)The impact upon the children and upon the children's relationship with the mother if the Court made orders as sought by the father;
(d)The impact upon the children and upon the children's relationship with the father if the Court made orders as sought by the mother; and
(e)Any other matters that the family report writer considers important to the welfare or best interests of the children.
10.The parties do provide to the single expert copies of the following documents for consideration as part of the preparation of her Family Assessment Report:
(a)A copy of all documents filed in these proceedings;
(b)A copy of Dr G's updated psychiatric assessment pursuant to Order 6 herein;
(c)A copy of the material produced by way of subpoena to:
(i)Dr J, Psychologist; and
(ii)E Family Services.
(d)The transcript from the Court hearing before Judge Campbell on 22 December 2023; and
(e)A copy of the Family Assessment Report prepared by Ms H dated 17 June 2022.
11.The costs of the preparation of the Family Assessment Report be shared equally between the parties.
12.Within seven (7) days of the date of this Order the father do sign the necessary authority and do instruct his solicitor to sign the proposed joint letter to K Company which is annexed and marked 'MSF-8' to the mother's Affidavit filed 29 January 2025.
13.The parties, by their legal representatives, be granted leave to inspect and copy the material produced pursuant to subpoena to E Family Services.
14.Until further order, the mother is not to be provided with copies of the material obtained pursuant to Order 13.
15.With respect to Christmas Eve and Christmas Day in 2025, the Children live with the parties as follows:
(a)For Christmas Day 2025 the Children live with the Father from 10.00 am on Christmas Eve until 12.30 pm on Christmas Day; and
(b)That the Children live with the Mother from 12.30 pm on Christmas Day until 3.00 pm on Boxing Day.
THE COURT FURTHER ORDERS:
16.That pursuant to Order 9 herein Ms H of L Psychologybe appointed as the single expert.
17.Leave is given to the parties to provide a copy of the material obtained pursuant to order 13 to each Dr G, Ms H and any other expert the parties agree ought be provided copies of such material.
18.All extant interlocutory parenting applications be dismissed SAVE AND EXCEPT arrangements pertaining to the children's block time spending with the father during the school holidays during 2025 as set out at paragraph 47 of the father's Affidavit filed 14 February 2025.
19.The interlocutory hearing in these proceedings on 27 March 2025 be vacated.
20.The extant interlocutory parenting proceedings (pursuant to Order 18 herein) together with the Application in a Proceeding filed by the mother regarding financial proceedings filed on 29 January 2025 be listed for hearing at 4.00 pm on 14 March 2025 (1 hour allowed).
21.Orders 4, 5, 6 and 8 made 16 December 2024 be discharged.
22.The mother file and serve an Affidavit directed to the extant interlocutory parenting proceedings with such Affidavit to particularise the orders that she seeks with the same to be filed and served no later than 4.00 pm on 28 February 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fort & Fort has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
The present interlocutory dispute concerns the parenting arrangements for the parties’ twins; X and Y, born 2013.
The proceedings before the Court, in a substantive sense, relate to both the parenting arrangements for the children and financial proceedings as and between the parties for property settlement.
The interlocutory hearing today, however, relates only to the parenting dispute, at this stage.
The current issues in dispute between the parties are somewhat narrow in compass, but - as is often the case in parenting proceedings - the devil is in the detail as to the parenting arrangements, and it must be said that these interlocutory issues are ones which are of significant moment to each of the parties.
The dispute that is presently before the Court concerns the following issues:
(a)The use of an interlock device that is presently fitted to the father's car, and whether that continue;
(b)The time spending arrangements between the children and the father, namely, whether they be extended beyond their current arrangement during both term time and the school holidays;
(c)The identity of a person to undertake a family assessment report;
(d)The instruction to an expert psychiatrist, Dr G, although I understand from concessions made at the conclusion of the hearing that that topic is no longer the subject of dispute;
(e)The inspection copying and what thereafter is to occur to material produced pursuant to a subpoena to E Family Services; and
(f)Finally, questions the mother wishes to put in relation to the interlock device presently fitted to the father’s motor vehicle, which I understand now from submissions - is no longer the subject of dispute. The father’s position in that regard is something that is not in dispute, if indeed the Court is to retain the use of the interlock device.
I pause from the outset of these reasons to indicate a couple of things:
(a)Firstly, that I intend to give short form reasons pursuant to s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), given these are interlocutory parenting proceedings;
(b)Secondly, I have had regard to all of the material that has been filed in the proceedings. That is to say, while I have specifically had regard to the material the parties have taken me to, I have indeed read the entire file, given it is a relatively new file in my docket, and I familiarised myself with the same prior to the commencement of the hearing; and
(c)Finally, I incorporate the exchanges with counsel during the course of this hearing today, and the transcript will reveal those matters, and they are incorporated into my reasons.
BACKGROUND
The background to these proceedings are such that they were commenced by the mother on 9 June 2023.
So far as the parties are concerned, the mother was born in 1981, and the father was born in 1979.
The relationship of the parties is such that they began living together in about 2010 in the United Kingdom, and they married in mid-2012, again in the United Kingdom. Some time in late 2015, the parties relocated to Australia. The parties separated on 7 May 2021 under the same roof, being the former matrimonial home at City R.
In approximately March 2022, the father moved out of the former matrimonial home and into rental accommodation in Suburb M, which he set up for himself together with appropriate accommodations for the children pursuant to an agreement the parties had reached, which I will return to shortly.
When these proceedings commenced, the mother's principal concern was in relation to the parenting arrangements for the children, and indeed, her Initiating Application was filed asking that the Court list the proceedings urgently. At that time, the mother's principal and only focus and relief sought from the Court was in relation to the parenting arrangements for the children. It was not until the father filed an amended response on 1 July 2024 that property proceedings were joined to the issues in dispute and the relief sought from the Court.
So far as the parenting arrangements for the children are concerned, from the mother’s perspective, the arrangements are significantly bound up in her concerns as to the risk presented by the father as a result of his alcohol consumption, use and abuse. That topic, the risk that it presents, has been at the forefront of the mother's thinking in relation to these proceedings, and the orders that she has sought. Importantly, however, that topic and any risk posed by the father has been central to the orders that have been made throughout these proceedings.
As I indicated earlier, the parties separated under the same roof on 7 May 2021. Some three days after the separation, the mother says the father emailed her to make some apologies about his alcohol consumption at that time.
Ultimately, the parties, with the assistance of their legal representatives, engaged in mediation with a retired judicial officer, and that took place in early 2022. At that mediation, the parties were able to reach a detailed heads of agreement in relation to the parenting arrangements for the children. Those parenting arrangements included arrangements for the father's time spending with the children, but in addition, protective measures that the parties agreed were appropriate to ensure the safety of the children. Those protective measures were directed to the very topic that has formed the basis of the mother's significant concerns, namely, the father's alcohol consumption, use and abuse, and the risk that that presents to the parties' children. The protective measures at that time that the parties agreed to included arrangements for alcohol breath testing, among other things.
Following the agreement reached at mediation, the father, as I indicated earlier, in approximately March 2022, moved to rental accommodation at Suburb M. An agreement about the father’s move from the former matrimonial home and into rental accommodation also being a feature of the agreement reached between the parties at mediation. Another topic agreed at mediation was that there would be a family report prepared by Ms H, a social worker who routinely, and with some regularity, conducts expert reports in parenting proceedings in this jurisdiction. Ultimately, Ms H prepared a report and I have had regard to the same, it is dated 17 June 2022.
Of significance in that report, the children indicated in their separate appointments with Ms H that they had an awareness of the father's alcohol use, and indeed both children, particularly X, became sad and teary when discussing the father's alcohol use. Y also became sad talking about the father's past alcohol use at that juncture. Both children were able to articulate that they did not consider that the father was currently drinking, but that they were fearful if he returned to a pattern of drinking.
X, in particular, relayed to Ms H concerns about at least one event which the mother had separately deposed to when she commenced these proceedings, namely, an event which had taken place during a holiday the parties attended. The mother has deposed to some significant concerns about the father’s alcohol consumption at dinner, and the dysregulated state in which he appeared after going to the bathroom on that occasion. X, independently and of her own volition, volunteered to the report writer, not dissimilar observations to Ms H to that deposed to by the mother in her initiating affidavit filed 9 June 2023.
Both children effectively indicated to Ms H that they were concerned and did “not feel good about the father's drinking”, being Y's words, and X indicated that she would be worried if the father did drink in her presence and when the father drinks she did not want accidents to happen. Ultimately, Ms H made a range of evaluations as set out in her report. In her view at that time, Ms H considered that the children had been exposed to conflict between the parents, but that the parents had been able to establish an effective co-parenting relationship in the post separation period.
The father’s admissions in relation to his alcohol use at that time are of some significance in the context of the current applications. The father made admissions at that time to Ms H that he had engaged in excessive alcohol consumption for a short period up to separation, but he otherwise denied that his use of alcohol impacted the children. Ultimately, however, Ms H was left with a considerable concern about the father's propensity to minimise his alcohol use and its impact on the children in the long term.
Ms H made a number of recommendations in the following terms:
(a)Firstly, that the father's time build to five nights a fortnight effective immediately;
(b)Secondly, that those time spending arrangements be on the proviso that the father continue to undertake alcohol breath testing, and that the alcohol breath testing regime remain in place until the children were 12 years of age;
(c)Thereafter, once the children turn 12 years of age, that the parties engage in mediation before moving forward as to the appropriate parenting arrangements.
As I indicated, that report was dated 17 June 2022. The mother commenced these proceedings just shy of a year later. In her initiating affidavit, the mother deposes to what can only be described as a long history of concerns in relation to the father's alcohol consumption.
During the course of submissions today, the mother’s senior counsel has reiterated those concerns. They date back to very early in the parties’ relationship. The history includes:
(a)As early as 2014 the father allegedly hiding vodka bottles to conceal his alcohol consumption, the father drinking in a parked car at the end of the driveway of the home the parties were living in in the UK;
(b)the father being convicted of a drink driving offence overseas in 2015;
(c)the father sending an email to the mother in 2015 acknowledging his drinking problem, and indeed, that email being something significant from the mother's perspective because she says that she was only prepared to consider and agree to a relocation to Australia if indeed the father addressed his alcohol consumption.
The mother otherwise deposed to her significant concerns about the father's alcohol consumption and his presentation, dysregulated behaviour and instances where the children were placed at risk between that time and ultimately leading to the parties’ separation.
The mother says that her concerns continued in the post separation period.
The Court has an affidavit filed by a partner of the father’s, Mr N, who says he was in a relationship with the father from mid-2022 until early 2023. In that affidavit, Mr N deposes two very, very significant incidents of concern in relation to the father’s alcohol consumption and his dysregulated behaviour as a result of the same The father, in the context of this litigation, has made an active choice not to respond in detail to the affidavit of Mr N.
In approximately May 2023, the mother suspended the father’s time spending with the children. The suspension of that time prompted what can only be described as a barrage of abusive messages from the father to the mother, namely, 132 text messages between 11 and 13 May 2023. As I indicated, the proceedings were commenced on 9 June 2023.
So far as parenting orders that have been made in the proceedings, the first substantive order made in the proceedings was made by a judicial registrar on 3 November 2023. Importantly, the only topic which the judicial registrar was asked to decide on that occasion were the arrangements for the children’s time spending with the father during the school holidays.
The parties, to their credit, were otherwise able to agree detailed parenting arrangements for the children. Those parenting arrangements included that the children live with the mother, and that the children spend time with the father for five nights each fortnight, namely: in week 1 from the conclusion of school on Friday, until the commencement of school on Monday, together with overnight on Tuesday in week 1, and an overnight period of time spending on the Wednesday night through to the Thursday morning in week 2.
There were also significant arrangements put in place by way of protective measures, by consent between the parties at that time. Those protective arrangements included:
(a)the supervision of the father’s time with the children if he travelled more than a 100 kilometre radius outside of the Adelaide CBD;
(b)arrangements for alcohol breath testing;
(c)the suspension of time if the father produced a positive alcohol breath test result;
(d)arrangements for the father to undertake a liver function and CDT testing;
(e)arrangements for the father to undergo an assessment with a psychiatrist, Dr G, directed to his alcohol dependency; and, in addition
(f)a range of injunctions by way of protective measures were also put in place.
The judicial registrar only made orders in relation to the school holiday time spending between the children and the father. Those orders were the subject of review application filed by the mother on 24 November 2023, which was ultimately determined by Judge Campbell on 22 December 2023. On that occasion, Judge Campbell discharged the orders made by the senior judicial registrar and made orders for defined time spending between the children and the father over the Christmas school holiday period. The parenting arrangements thereafter have largely continued unchanged since that time.
The parties, to their credit, have at various times been able to agree school holiday arrangements for the children, including most recently over the December 2023 and January 2024 school holiday period.
THE PARTIES’ COMPETING APPLICATIONS
The present interlocutory proceedings were commenced by the father with the filing of an Application in a Proceeding on 26 November 2024. The mother ultimately filed a response to that application on 29 January 2025 in the following terms:
UPON NOTING that the following paragraphs of the Orders of 3 November 2023 continue to operate:
A. paragraph 4 (breath testing regime);
B. paragraph 5 (breath alcohol analysis device);
C. paragraph 6 (ignition interlock device);
D. paragraphs 7 to 10 (suspension of the husband's time and supervised time);
E. paragraphs 13(a) and (b) (injunctions);
F.paragraphs 17(a) to (b) (conditions of the husband's school holiday time with the children); and
G. paragraph 17(c) (provision for additional random breathalyser testing).
School holidays
1. That the children spend time with the husband as follows:
1.2 In Week One:
1.2.1From 9.00 am Monday to 9.00 am Wednesday (2-night block) and each alternate week thereafter UPON NOTING that this will coincide with the husband's time with the children in accordance with paragraph 2(a)(i) A. of the Orders of 3 November 2023; and
1.3 In Week Two:
1.3.1From 9.00 am Friday to 9.00 am Monday (3-night block) and each alternate week thereafter.
1.4 At such other times as may be agreed between the parties.
Christmas care arrangements
2.That the time spending arrangement set out in paragraphs 1.2 and 1.3 herein shall continue but be varied during Christmas such that the children spend time with the parties as follows
2.1 During Christmas 2025 and each alternate year thereafter:
2.1.1With the husband, from 12.00 noon Christmas Eve until 12.00 noon Christmas Day; and
2.1.2With the wife, from 12.00 noon Christmas Day until 12.00 noon Boxing Day.
2.2 During Christmas 2026 and each alternate year thereafter:
2.2.1With the wife, from 12.00 noon Christmas Eve until 12.00 noon Christmas Day; and
2.2.2With the husband, from 12.00 noon Christmas Day until 12.00 noon Boxing Day.
3.That paragraph 7 of the Orders of 3 November 2023 do apply during the husband's time with the children during the school holidays or any special occasion.
4. That paragraph 17 of the Orders of 3 November 2023 be discharged.
5.That the mother be at liberty to request by text message random breathalyser readings from the husband when the children are in the husband's care during the school holidays as follows:
5.1On one (1) occasion during the time that the children are in the care of the husband.
5.2 At 9.00 pm the night prior to the commencement of his time.
Joint letter of instruction to [Dr G]
6.That pursuant to paragraph 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("Rules") the parties do jointly instruct [Dr G] to undertake an updated psychiatric assessment of the husband directed to allegations of alcohol abuse.
7.The parties do provide to [Dr G] for consideration as part of his updated psychiatric assessment:
7.1 A copy of all documents filed in these proceedings;
7.2 A copy of the report of [Ms B] dated 7 December 2024;
7.3 A copy of the material produced by way of subpoena to:
7.3.1 [E Family Services].
7.4 all communications between the parties and [F Company]; and
7.5The transcript from the Court hearing before Judge Campbell on 22 December 2023.
8.That the costs of the preparation of the updated psychiatric assessment be shared equally between the parties.
Family Assessment Report
9.That pursuant to paragraph 7.03 of the Rules [Ms O] of [Q Psychology] be appointed as the single expert to prepare a Family Assessment Report in relation to issues concerning the care, welfare and development of the children.
10.The parties do provide to the single expert copies of the following documents for consideration as part of her Family Assessment Report:
10.1 A copy of all documents filed in these proceedings;
10.2A copy of [Dr G's] updated psychiatric assessment pursuant to paragraph 6 herein;
10.3 A copy of the material produced by way of subpoena to:
10.3.1 [Dr J], Psychologist; and
10.3.2 [E Family Services].
10.4The transcript from the Court hearing before Judge Campbell on 22 December 2023; and
10.5A copy of the Family Assessment Report prepared by [Ms H] dated 17 June 2022.
11.That the costs of the preparation of the Family Assessment Report be shared equally between the parties.
Joint letter to [K Company]
12.That within seven (7) days of the date of this Order the husband do sign the necessary authority and do instruct his solicitor to sign the proposed joint letter to [K Company] which is annexed and marked as"[MSF]-8" to the wife's Affidavit filed together with this Response to an Application in a Proceeding.
[E Family Services] Subpoena
13.That the parties and their legal representatives be granted leave to inspect and copy the material produced pursuant to subpoena to [E Family Services].
14.That the wife be granted leave to file an Affidavit which contains more than 10 annexures.
15.That the husband pay the wife's costs of and incidental to his Response to an Application in a Proceeding.
16. Such further and other Orders as this Honourable Court deems fit.
(As per the original)
The father’s application was amended on last Friday, 14 February 2025. The significant amendment on that day by the father was to deal with the term time spending arrangements between the children and the father. The father sought the following orders:
4.That during the school holidays at the end of Terms 1, 2 and 3 in 2025 the Children live with the parties on a week about basis as follows:
In Term 1 school holidays which includes Easter:
4.1with the Father from after school or 3:00pm on Friday 11 April 2025 to 6:00pm on Saturday 19 April 2025; and
4.2with the Mother from 6:00pm on Saturday 19 April 2025 until the commencement of school on Monday 28 April 2025;
In Term 2 school holidays:
4.3with the Father from after school or 3:00pm on Friday 4 July 2025 to 6:00pm on Saturday 12 July 2025; and
4.4with the Mother from 6:00pm on Saturday 12 July 2025 until the commencement of school on Monday 21 July 2025;
In Term 3 school holidays:
4.4with the Father from after school or 3:00pm on Friday 26 September 2025 to 6:00pm on Saturday 4 October 2025; and
4.5with the Mother from 6:00pm on Saturday 4 October 2025 until the commencement of school on Monday 13 October 2025;
5.That during the school holidays at the end of Terms 1, 2 and 3 in 2026 and thereafter pending Trial the Children live with the parties on a week about basis with the Father having the second week of the school holidays.
6.That paragraph 2(a)(ii) of the Order dated 3 November 2023 be varied such that the Children spend overnight time with the Father in week 2 from the conclusion of school on Tuesday (or 3:00pm if a non-school day) until the commencement of school on Thursday (or 9:00am if a non-school day) commencing forthwith.
7.That during the December/January school holidays the Children live with the parties on a week about basis commencing from the conclusion of the school term on Friday with handovers at 3:00pm each Friday.
8.With respect to Christmas Eve and Christmas Day in 2025, the Children live with the parties as follows:
6.1For Christmas Day 2025 the Children live with the Father from 10:00am on Christmas Eve until 12:30pm on Christmas Day; and
6.2That the Children live with the Mother from 12:30pm on Christmas Day until 3:00pm on Boxing Day.
9.That paragraphs 6, 7, 8 and 9 of the Undertaking dated 23 May 2023 provided by the Father be discharged.
10. That paragraph 6 of the Order dated 3 November 2023 be discharged.
11. That paragraph 7(d) of the Order dated 3 November 2023 be discharged.
12. That paragraph 13(d) of the Order dated 3 November 2023 be discharged.
13.That paragraphs 17(a) and 17(b) of the Order dated 3 November 2023 be discharged.
14.Pursuant to Rule 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) [Ms H] (the Single Expert) is appointed as the Single Expert to prepare an updated Family Report and to enquire into and report upon issues relating to the welfare of [X] and [Y] both born […] 2013 (the Children).
15.The parties shall equally share the cost of the updated Family Report to be prepared by the Single Expert.
16.In the event that any of the parties request the attendance of the Single Expert at Court for the purposes of cross-examination, the parties shall be equally responsible for the Single Expert’s costs in respect of such attendance.
17.The Single Expert shall prepare an updated Family Report (the Single Expert Report) which addresses the following matters:
17.1.any views expressed by the Children and any matters (such as the Children’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
17.2. the matters set out in ss 60CC of the Family Law Act 1975 (Cth);
17.3.the impact upon the Children and upon the Children’s relationship with the Mother if the Court made orders as sought by the Father;
17.4.the impact upon the Children and upon the Children’s relationship with the Father if the Court made orders as sought by the Mother;
17.5. any other matters that the family report writer considers important to the welfare or best interests of the Children.
18.That within twenty one (21) days the parties, via their solicitors, shall jointly instruct [Dr G] to undertake an updated psychiatric assessment of the Father directed to the allegations of alcohol use and:
18.1.the parties shall provide to [Dr G] copies of all affidavit material filed in these proceedings since the date of [Dr G’s] initial report and the parties have leave to release same to the expert;
18.2.the parties shall do all reasonable things to comply with any request of [Dr G] for the purposes of the assessment and [Dr G’s] updated report; and
18.3. the costs of the updated report shall be shared equally by the parties.
19.In the event that the parties are unable to agree the terms of the joint letter of instruction to [Dr G], within twenty-one (21) days as required at paragraph 13 herein, then in such circumstances then each party has liberty to submit, within a further fourteen (14) days:
19.1.a draft letter of instruction for settling by the Court pursuant to Rule 7.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
19.2.written submissions with respect to the reasons for the draft letter of instruction and addressing issues in dispute with such written submissions being limited to five (5) pages.
20.That the Respondent in this Application in a Proceeding pay the Applicant’s costs of and incidental to this Application in a Proceeding.
21. Such further or other order as this Honourable Court deems fit.
(As per the original)
LEGAL PRINCIPLES
As these are parenting proceedings, and indeed, interlocutory proceedings, there are a number of legal principles which apply. First and foremost, the provisions in Part VII of the Act, which are the parenting provisions, apply. In particular, the principles underpinning the parenting provisions of the Act are that the Court “ensure that the best interests of children are met, including by ensuring their safety” and to “give effect to the Convention of the Rights of the Child done at New York on 20 November 1989”, that is contained in s 60B of the Act.
Importantly, at all times pursuant to s 60CA of the Act, when the Court is considering making any parenting order, the Court must make parenting orders which regard the best interests of the child as the paramount consideration. Parenting orders are defined in s 64B of the Act, and what are colloquially called the “best interest factors”, are set out in s 60CC(2) of the Act.
As has been said by the Full Court in Deiter & Deiter [2011] FamCAFC 82, the assessment of risk is “one of the many burdens placed on family law decision makers”. It comprises of two elements:
The first requires the prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
The Full Court recently has given further consideration to the assessment of risk, and in particular, the assessment of unacceptable risk in the context of parenting proceedings. I have had regard to the decision of the Full Court in Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”), and in particular, those matters set out at paragraphs 83 to 86 of that decision, as follows:
83. Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
84.In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material.
85.The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
86. We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.
What is clear from Isles & Nelissen is that there are two stages involved in assessing risk and understanding whether any risk is unacceptable:
(a)Firstly, the fact finding exercise relating to the allegations that have been made; and
(b)Secondly, the predictive exercise which involves the assessment of the evidence and circumstances including but not limited to any findings or lack of findings, or the inability to make findings.
That brings me to the topic of findings in relation to interlocutory proceedings. Significantly, the Full Court has said in Goode & Goode (2006) FLC 93-286 at paragraph 68 that:
...the procedure for making interim parenting orders will continue to be an abridged process where the scope of enquiry is “significantly curtailed”. Where the Court cannot make findings of facts, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible…
Those matters are of some significance to these interlocutory proceedings. I say that because there is a significant factual dispute that exists between these parties as to a range of matters. Importantly, there is a significant factual dispute surrounding the principal area of concern raised by the mother, namely, the father's alcohol consumption, use and abuse, and the extent to which it presents as a risk factor for these children. To understand the interlocutory issues that are in dispute between these parties, something more needs to be said as to what has occurred in the intervening period since the review hearing that took place.
I do not propose to set out - in any detail - matters from the transcript from the review hearing, or the orders made on that occasion. As I indicated earlier, I have had regard to all of those matters. Importantly, what has occurred in the intervening period is the following:
(a)There has been no updated family report prepared, and the only report that has been prepared and available in these proceedings is that prepared by Ms H, following the mediation in 2022.
(b)Secondly, and importantly from the father's perspective, he has undertaken what he says has been a concerted effort to address the concerns and the risk factors raised by the mother in relation to his his alleged alcohol use and abuse, and which has featured prominently in the conservative approach taken by the Court in the parenting orders previously made in these proceedings.
The efforts made by the father have included a range of things. Firstly, compliance with the orders made by the Court for breath testing and CDT testing, including voluntary testing on the father's part at various times. Importantly, from the father's perspective, he has also engaged with a therapist, Ms B, and the Court has the benefit of two reports from Ms B in relation to the therapeutic input the father has engaged in with her dated 14 November 2024 and 7 December 2024.
The Court also has reports from a number of additional experts:
(a)Firstly, the Court has reports from Dr G, who has conducted assessments of the father, dated 8 February 2024 and 22 March 2024.
(b)Secondly, the Court has a report from a, who has attempted to analyse and explain the father's CDT testing results, dated 24 June 2024.
DISCUSSION
Taking a step back from the history of the litigation, the Court is now essentially being asked what to make of what has occurred both prior to the commencement of proceedings in terms of the mother's allegations as to the long history of the father's alcohol consumption, and to effectively stack that up against what has occurred, particularly over the last 12 months.
What is clear on any view in these proceedings is that there is a very significant lack of trust between the parties, and in particular, there is a very significant lack of trust on the mother's part in relation to what the father asserts regarding his alcohol use, consumption and abuse.
Much has been made during the course of today's hearing as to the father's CDT testing results, and in particular, the result returned from a test taken in November 2023, which returned a reading of 3.0. The Court has the benefit of Mr P's report in that regard, and at this stage, the Court accepts that the reading returned on that occasion suggests alcohol consumption averaging six standard drinks or more per day, for a period of at least two weeks prior to the testing undertaken in November 2023.
The mother makes much of that matter in circumstances where, over the same period of time and indeed in the lead up to that testing, the father undertook regular and frequent breath testing, and the Court has the benefit of the readings that were returned. The position that underlies the mother's concerns is drawn into stark focus when regard is had to the CDT test result of November 2023, and the breath test results taken over a two to three week period prior to that date.
Significantly, all bar one of the breath test results returned a zero result. The explanation given by the father today is that at that time, the father had not abstained from alcohol use entirely, and that the result is explained by him not drinking or consuming alcohol to excess in the presence of the chidlren, or at all. If the father’s assertion is accepted, that would lead to the only conclusion that could be drawn from that position, and that is that at times when the children were not in the father's care, the father seemingly was drinking excessively. Those matters are of significant concern from the mother’s perspective, and they highlight and amplify the lack of trust that she has with regard to the father. That is because she says the Court can take little comfort from the breath test results in light of what occurred over that period of time and the nil readings returned.
In relation to the report of Mr P and the CDT testing, what I can take at this juncture form the test results the father has provided from January 2024 to January 2025, is that the drinking is below a level of concern, but the Court cannot at this stage make findings that there has been no alcohol consumption.
In addition, the Court has had regard to those matters raised in the review hearing, together with the material produced pursuant to subpoena from the father's then therapist, Dr J. Significantly, it appears undisputed (although not entirely clear) that the father had a breakdown in his therapeutic relationship with Dr J. The cause for that is borne out in the report in the subpoenaed material, and the matters raised during the review hearing, to which I have had regard.
They include the father's presentation at an appointment with Dr J in June of 2024 under the influence of alcohol.Significantly, from the mother’s perspective, the father having agreed to obtaining, at that stage, a report from his treating therapist, thereafter withdrawing that consent when it would have been obvious to him, as a result of his presentation to Dr J, that the report would not ultimately be favourable in relation to his presentation and alcohol consumption.
That lack of trust is a significant feature in relation to these proceedings, and it is a significant feature from the Court's perspective in terms of how the matter is to progress, and the parenting orders that are to be made today.
While the father is to be commended for the work that he has undertaken in relation to addressing the very significant concerns that the mother has raised, and which the Court has considered to be matters which present as risk factors for these children, and which, I repeat, the parties themselves understood were risk factors, including the father - by his consent to the range of protective arrangements that were put in place from as early as the mediation that took place between the parties. Fundamentally, that the father has engaged in all of that work does not remove the concerns entirely and lead the Court to conclude today at an interlocutory hearing, when findings are unable to be made, and the evidence is unable to be tested, that those are sustained changes, and that they are no longer risk factors for these children.
The Court has had regard to Ms B's report of 7 December 2024. Significantly, in that report, Ms B indicated that the father's referral to her for treatment related to psychological difficulties associated with the current proceedings, and a reported psychological, not physical, substance dependence on alcohol to cope with past relationship discord. During the therapeutic process with Ms B, the father has made certain admissions about his past and present alcohol use, and they are recorded in the report.
Importantly, the father indicated that he consumed alcohol more excessively during the later stages of the marriage due to unhappiness, adding that this continued into his subsequent same-sex relationship. Mr Fort said he would consume 10 drinks comprising spirits or wine. He admitted to binging on Friday and Saturday nights, and maybe one weekday, but not every week. So far as his current use, as reported by Ms B in her report, the father indicated to Ms B that he has not had a drink when caring for the children in a solo capacity since March 2022, except on one occasion in January 2023, when the mother consented to him having a drink at a work Christmas function.
Ultimately, Ms B opined that the father does not currently meet any diagnostic criteria for any disorder. Ms B, however, indicated that the past diagnoses for the father were a “persistent depressive disorder which was now in full remission”, and secondly, an “alcohol use disorder (moderate) now in sustained remission in a controlled environment”.
The criticisms that are made by the mother in relation to Ms B's report are varied. They include that it relies on the father's self report, and that Ms B has not had access to all of the information available to the Court in these proceedings.
While I have had regard to the list of material to which Ms B has had regard, it would appear to the Court that the criticisms made on behalf of the mother as to her access to all of the information available to the Court is a valid one.
Ultimately, the decision falls to the Court to assess the risk to these children, whether the risk is unacceptable, and if so, what steps might be put in place to ameliorate the risk to ensure the safety of the children. The parties themselves, as I have said a number of times now, considered it appropriate to implement a range of protective measures, including breath test analysis and CDT testing, together with a range of injunctions and other arrangements.
In circumstances where these are interlocutory proceedings and the dispute between the parties is unable to be fully ventilated and findings made, it is the Court's considered view that the Court should continue to err on the side of caution, and act protectively in relation to these children. The Court accepts that the father may well see this as undue punishment to him, but ultimately, he should take heed that the Court's principal concern is the safety of these children, and that orders are made that are protective of them and are in their best interests. Ultimately, these proceedings appear that they will proceed to trial. All issues will be able to be ventilated at that juncture.
What can be said at this point, is if the father continues with the positive steps that he has made, then the Court may well ultimately come to a different conclusion. The difficulty, however, at this juncture is that these are interlocutory proceedings, and findings - I repeat - are unable to be made at this point in time.
The Interlock Device
Concerns exist from the Court's perspective as to the veracity of the breath analysis results in light of the CDT testing result in November of 2023, and it is for that reason that the Court considers that the interlock device should remain fitted to the father's vehicle.
That is not a decision that has been made lightly at the Court's end. I say that because I accept the submissions made on behalf of the father as to the embarrassment that the device causes him, particularly in terms of the children being in his care, but also (and importantly) him being unable to have the children's friends in his motor vehicle as a result of the necessary arrangements that exist to keep driving the vehicle with the interlock device.
I do not dismiss the father's concerns in that regard. They are valid and they are warranted. However, the device is there for a reason. It is there to ensure the safety of the children, and as I say, where the Court has underlying concerns about the veracity of the breath test results, the interlock device is a device which is suitably protective at times when the children are in the father's care. It ensures their physical safety when he is transporting them by motor vehicle. It also ensures the children's underlying psychological and emotional welfare is protected because it acts as a second level of security in relation to the father's alcohol abstinence when the children are in his care.
Time Spending
For the same reasons, I do not consider it appropriate to expand the father's time spending with the children. Again, that is a decision that has not been made lightly. It is, however, a decision that has been made balancing risk factors and with the Court treading carefully and protectively of the children. There is a concern from my perspective that if time was increased, and the father was not to sustain the commendable steps that he has made so far, that would likely result in urgent proceedings, and a further change to the children's parenting arrangements. At this juncture, I consider that stability is an important factor for the children's parenting arrangements, and I do not consider it is appropriate to change those parenting arrangements between now and any final hearing, when all of the evidence can be tested.
Proposed Family Report Writers
I turn now to the identity of the person to undertake the family report. There is a dispute about the same. The father proposes that Ms H conduct the assessment and report, given her earlier involvement by agreement between the parties in having prepared a report. The mother promotes Ms O to undertake that exercise. The mother says that it is her preference that there be someone who undertakes that exercise who is suitably qualified.
The difficulty, however, with Ms O, is that there is nothing in the information before the Court that suggests that she has any particular expertise in dealing with families where alcohol use and abuse, and the effects thereof, are a feature of the litigation. I accept that Ms O is a psychologist, and Ms H is a social worker.
On balance, however, I consider that in circumstances where the parties themselves considered Ms H to be suitably qualified, that she continue to be the person to undertake any further assessment in these proceedings.
I say so for an additional reason, and that is Ms H is a person that these children have met and have engaged with, and I do not consider it appropriate at this juncture that they be required to engage with a new person in all of the circumstances.
Dr G & E Family Services documents
As I indicated earlier, the instructions to be given to Dr G were in dispute, but are no longer so, and nor is the issue in relation to documents pertaining to E Family Services. In light of the submissions put by the father's senior counsel in relation to the interlock device, I also take it that that issue is no longer in dispute in circumstances where I consider it appropriate to continue those orders for the use of the device.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 19 March 2025
2
4
1