Freiberg and Freiberg

[2017] FCCA 3329

FEDERAL CIRCUIT COURT OF AUSTRALIA

FREIBERG & FREIBERG [2017] FCCA 3329

Catchwords:
FAMILY LAW – Interim Orders – whether the mother’s time with an 11 year old child should be supervised by a professional supervisor or spent with the substantial attendance of family members – whether the mother’s alcohol use poses a risk to the child – where there are family violence allegations against the father.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC

Cases cited:

Mazorski v Albright (2008) 37 FLR 518

Tait & Densmore [2007] FamCA 1383

Applicant: MR FREIBERG

Respondent: MS FREIBERG

File Number: MLC 6292 of 2017

Judgment of: Judge Small

Hearing date: 8 December 2017

Date of Last Submission: 8 December 2017

Delivered at: Melbourne

Delivered on: 8 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Grant

Solicitors for the Applicant: Macpherson & Kelley Lawyers

Counsel for the Respondent: Ms Carter

Solicitors for the Respondent: Johnstone And Reimer Lawyers

Counsel for the Independent Children's Lawyer: Ms Boymal

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

THE COURT ORDERS THAT UNTIL FURTHER ORDER:

1. The Mother shall spend time and communicate with the child X born (omitted) 2006 (“the child”):

   (a)from 10:00am to 6:00pm each Sunday commencing 17 December 2017 for 8 weeks with either the Maternal Aunt or the parties’ daughter Y (“Y”) in substantial attendance;

   (b)from 11:00am to 5:00pm on Christmas Day in 2017 with either the Maternal Aunt or Y in substantial attendance;

   (c)from the third weekend in February 2018 on each alternate weekend from 4:00pm Saturday to 6:00pm Sunday for 4 weeks;

   (d)thereafter on each alternate weekend from 10:00am Saturday to 6:00pm Sunday;

   (e)from 4:30pm to 8:30pm each Wednesday commencing 13 December 2017 with the Maternal Aunt or Y to be in substantial attendance until the third week in February 2018 after which the requirement for substantial attendance shall lapse; and

   (f)at other times as may be agreed between the parties in writing.

(1A) For the purpose of clarity, the requirement for substantial attendance by a third party shall cease from and including the third weekend in February 2018. 

1. For twenty-four (24) hours immediately prior to the commencement of any time spent with the child (including any period during which the child live with her), and during all such time spent, the Mother be and is hereby restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of alcohol.

2. The Independent Children’s Lawyer shall be at liberty to require the Mother to undergo a breathalyzer test either at the commencement or the conclusion of time spend with the child pursuant to paragraph 1 and such requests shall not be made on more than 8 occasions between this date and the date of the Final Hearing on 21 May 2018.

3. The Husband shall be at liberty to travel overseas with the child from 28 December 2017 to 16 January 2018 inclusive and for the purposes of that travel:

   (a)if he has not done so already, the Husband shall provide to the Wife a detailed itinerary including flight details, accommodation details and contact telephone numbers for the duration of the holiday;

   (b)within 2 months of the child’s return to Australia the Husband shall provide the child for make-up time with the Wife on terms and conditions of paragraphs 1(a), (c), (d) & (e) of these Orders, depending on the dates of the make-up time and so that make-up time for Sunday time lost is made up on a Saturday and the make-up time for Wednesday shall be made up on another week day; and

   (c)within 14 days of his return to Australia, the Husband shall provide to the Wife a full accounting of all aspects of his holiday, including airfares, train and/or bus fares, rental car costs, accommodation costs and food costs, and the source or sources of the payment of all such expenses.

4. Should the Wife choose to attend any mental health or Drug and Alcohol Service or other allied health professional for the purposes of assessment and/or treatment in relation to her alcohol consumption, she shall provide to that professional or service copies of:

   (a)the Family Report of Ms M dated 30 November 2017;

   (b)the Psychiatric Report in relation to her of Dr G dated 28 November 2017; and

   (c)these Orders.

5. Otherwise, all previous parenting Orders made in relation to the child remain in full force and effect.

6. The parties shall obtain a joint sworn valuation at their joint expense of the property at Property A in the State of Victoria (“the real property”) by no later than 31 January 2018, with the Wife to forthwith nominate 3 appropriately qualified valuers and the Husband to select a valuer from that list within 48 hours of receipt and the parties shall do all acts and things as may be necessary to fully cooperate with the valuer to facilitate the valuation and preparation of a sworn valuation report in relation to the real property.

7. Within 7 days of the Husband completing the Men’s Behavioral Change Program ordered by the Magistrates’ Court of Victoria he shall make, file and serve an Affidavit setting out in his own words and in as much detail as possible what he has learned from that program.

8. There be liberty to apply at short notice to all parties.

AND THE COURT NOTES THAT:

(A)Pursuant to ss.65DA(2) and 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 are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6292 of 2017

MR FREIBERG

Applicant

And

MS FREIBERG

Respondent

REASONS FOR JUDGMENT

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

2. The matter of Freiberg is before me today for interim hearing in relation to the time that the respondent mother, Ms Freiberg, should spend with the parties’ child, X. 

3. X was born on (omitted) 2006 and is now 11 years old and he is living at the moment with his father, although the mother’s Final Orders application is for X to live with her.

4. The background of the matter is that the parties were married on (omitted) 1991 and they had four children, three of whom, Mr A, Mr B and Ms T, are all over 18 and X is the only child remaining under the age of 18 and therefore within the jurisdiction of the Court for parenting orders. 

5. The parties had, I think, a short period of separation in 2004 or 2005.  They then got back together again.  X was born in 2006 and the parties finally separated in April of 2017.  

6. They make certain allegations against each other, none of which I can make findings of fact about today but I can certainly say what evidence there is. 

7. The mother makes the allegation against the father that he was violent, that he was controlling that he is, in essence, to use the colloquialism, a bully and she says that, as a result, she has suffered from extreme stress and that that stress and anxiety has caused her to turn to alcohol for comfort, I suppose. 

8. The evidence that supports that is evidence of the father himself who told the family report writer, I think - or it may have been the psychiatrist, Dr G, who conducted psychiatric reports on both parties, that there were times - four or five times, he said, where he had slapped the wife when she had “played up”. 

9. That would tend to support the wife’s evidence of the husband’s controlling behaviour and of his family violence and the husband should take note of that and of the definition of family violence.  There is an intervention order in place against the husband and he has recently been found guilty of breaching that order after a contested hearing.  A conviction was not recorded, I understand, but he was fined and ordered to attend a men’s behavioural change program. 

10. The allegations against the mother relate to her drinking.  The father says that she is out of control with her drinking; that she cannot control herself; that she binge drinks and therefore her capacity to take care of X is diminished. 

11. That allegation is supported by the psychiatric report of Dr G who says that he believes that she does suffer what he calls an “alcohol-use disorder”.  He does not use the word alcoholic but he says it is an “alcohol-use disorder” and that it would greatly benefit Ms Freiberg if she were to entirely abstain from alcohol.  She has not taken that advice.  She says that she does not need to stop drinking altogether and she says that her alcohol consumption is not such that it impairs her ability to look after X. 

12. The parties come before me today with two separate sets of proposed orders which in their detail are not that far apart and I have had the benefit of not only submissions from counsel today but of three reports - two psychiatric reports from Dr G, one in relation to the husband, one in relation to the wife; and the family report of Ms M, dated on 30 November.  None of those reports are yet on affidavit. 

13. They are all very recent.  The psychiatric reports are dated 29 November and the family report 30 November. I have had the benefit of those reports and they are very enlightening, I think, about this case. 

14. Essentially, Dr G says that the husband is not suffering from any psychiatric disorder; that the wife is and I have said what he said in relation to the wife’s prognosis and treatment. 

15. The family report states very clearly that X is very keen to spend more time with his mother.  Clearly he misses his mother and he wants to spend more time.  The real issue before me today is how we can arrange that in circumstances where there is serious concern both on the part of the husband and of the Court in relation to the mother’s drinking. 

16. I cannot agree that if the mother is drinking to excess that that does not impair her parenting capacity.  I cannot see how it could not impair her parenting capacity and I note that an order was made - I think by consent - last time we were in Court in, I think, May that the mother was restrained from drinking alcohol for 24 hours before spending any time with X and for the time spent with X.  The father has provided - well, he has not provided - he says he has evidence of bank statements showing that the mother has spent what would seem on the face of it to be significant amounts of money on what he thinks is alcohol. 

17. In fact, those bank accounts - which I have not seen because the father has not provided them - but he sets out in a document annexed to his affidavit what he says is the expenditure of the wife and most of it seems to be at not alcohol-alone outlets but restaurants which may or may not be licenced, although it is unusual nowadays for restaurants not to be licenced.

18. It has been the parties’ practice throughout the relationship, marriage and beyond for them to spend most nights at a restaurant rather than eating at home.  I do not see that the document is evidence because the bank statements are not annexed to any affidavit but also, even if they were spending money in a licenced venue does not necessarily mean that it is spent on alcohol. While I am concerned about the mother’s alcohol consumption, given the assessment of Dr G, I do not infer from that document that she has broken or breached the order and, indeed, if the husband believes he has evidence that she has breached an order, he has certain processes open to him for the Court to deal with that. 

19. The real issue today is how do we deal with the mother’s drinking and there are other issues that the parties have agreed on but not in terms of the actual detail and I will deal with that in a moment. 

20. At law, of course, I am bound to make orders that are in X’s best interests. That is set out in s.60CA of the Family Law Act 1975 (Cth) in black and white.

21. And then the Act sets out 16 separate issues that the Court must consider when it is looking at what orders might be in the best interests of a child. 

22. The first of those is the child’s wishes and we have X’s wishes - very recent wishes - that he wants to spend more time with his mother. 

23. Let me go back.  That is the first of the additional factors.  The two primary factors are the benefit to a child of having a meaningful relationship with that child’s parents - both that child’s parents, and the need to keep a child safe from harm.   

24. The term “meaningful” has been discussed in several cases - most notably, I think, in the case of Mazorski v Albright (2008) 37 FLR 518, a judgment of Brown J in the Family Court, and she said that the word “meaningful” means all the things you would expect it to mean. It means important, it means significant, it means advantageous - all of those things that you would expect the word “meaningful” to mean. And then she said that the word “meaningful” is a qualitative adjective. It is not a quantitative adjective. In other words, the meaningfulness of a relationship between a parent and a child does not depend on the amount of time spent but on the quality of the time spent between the parent and child.

25. Cronin J in another judgment in the matter of Tait & Densmore [2007] FamCA 1383, I think it is called - said essentially the same things about what “meaningful” means but then said something that I think is quite salient, and that is to be a meaningful relationship between a parent and a child, the parent should provide some role model aspect to the child to teach the child what it is to be a citizen in our community, and he says that without that role model, the meaningfulness of a relationship can be diminished.

26. And I respectfully agree with His Honour on that. 

27. The second primary consideration in s.60CC of the Family Law Act 1975 (Cth) is the need to protect a child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence. And, clearly, that speaks for itself - that to abuse a child or expose a child to abuse is something we should definitely protect the child from, and I note that exposing a child to family violence on its own is an act of child abuse under the Family Law Act 1975. 

28. Children are abused and neglected in many ways and certainly uncontained and uncontrolled alcohol use by a parent is a risk factor in keeping a child safe. 

29. The Act then goes on to say, I think an amendment in 2012 or so, that when the Court is balancing those two things, the meaningfulness of the relationship and the benefit to the child of that relationship and the need to protect a child from harm - the Court must take the need to protect the child from harm - give more weight to that factor than to the benefit to the child of a meaningful relationship. 

30. So I take that very much under consideration.  And then the other 14 factors include things like the child’s wishes and we know what X’s wishes are.  He wants to spend more time with his mum. 

31. Another factor is the actual relationship - the nature of the relationship between the child and his or her parents and Ms M says that there is evidence of a close and well-attached and secure relationship with both of his parents.  X said to Ms M that he feels safe and secure in the care of both parents. 

32. There is the issue of splitting siblings and I note that while X’s siblings are not subject to this Act - and therefore to my jurisdiction - he lives with his siblings and Ms T. The youngest of those, is 19 and she, I think, sometimes spends time with the mother, depending on how their relationship is going and it seems to be a fairly up and down relationship.  Nevertheless the mother says that at the moment that relationship is good. 

33. So I take into account the splitting of those siblings.  I do not take into account the older children because they are considerably older and have their own lives. 

34. Other things that I need to take into account are the capacity of both parents to properly provide for the needs of the children, including - or the child, including that child’s intellectual and emotional needs.  Now, there is no suggestion, I think, that either parent is unable to provide for X’s material needs.  He is fed, he is clothed, he has secure housing.  It is in the area of the intellectual, but particularly the emotional needs, that I think there is some risk in this case from the drinking of the mother if it is uncontained.  As I have said, I do not accept that uncontained drinking does not impair parental capacity;  I think there cannot be any other conclusion but that it does, so I take that into consideration. 

35. Other matters include the attitude of the parents to both the child and their own parental responsibilities – and these parents both clearly love this little boy dearly.  He feels safe and secure in each of their company.  He is responsive to each of them equally, according to Ms M.  And the attitude to their responsibility as parents I think is questionable, given the allegations against the wife of her drinking and the allegations against the husband in relation to his family violence. 

36. Exposing a child to excessive drinking or to family violence does not show, in my view, a particularly responsible attitude to parenting. 

37. And then the Act specifically requires the Court to consider the issue of family violence and the issue of whether there is a family violence order in place and the terms and conditions under which that order was made.  I do take into account the mother’s allegations;  they are pretty particularised. 

38. And I also take into account the father’s conviction – no, not his conviction – the finding of his guilt in relation to a breach of intervention order and his own words in relation to assaults upon the mother during the relationship.  They indicate, as I have said, the controlling nature of that relationship and they concern me quite considerably.  I note that the intervention order was made by consent without admissions and therefore at this stage I cannot make a finding of fact as to the allegations in that application, but I do take note of a finding of guilt of breach of that order. 

39. So when I take note of all of those things, I am very concerned about both of those issues – both the family violence issue and the issue of the mother’s drinking.  It is said quite clearly on both sides and from the independent children's lawyer – that the recommendations of Dr G in relation to the mother’s drinking are quite specific.  They are that she cease drinking altogether and that she undertake treatment for alcohol use disorder. 

40. It is up to the mother to take those recommendations on board, and while it would be possible for me to make orders in relation to that, I do not intend to do so.  However, I will make orders in relation to what the wife must provide to anyone she sees in relation to that, should she choose to do that.  And, of course, that is very much an issue that is in the mother’s court between now and the final hearing.

41. In relation to the father’s family violence, I note that he has been ordered to attend a Men's Behavioural Change Program and as is my usual practice now I will require him to report to this Court about that course. 

42. But in terms of the time that X spends with his mother, the proposals are, on the mother’s side, that he spend from 10 till 6 each alternate Sunday with the maternal aunt to be in substantial attendance;  from 11 am till 5 pm on Christmas Day with the maternal aunt to be in substantial attendance;  for not less than two overnight periods each week with Ms T to be in substantial attendance, with such times to be agreed, and failing agreement, to be each Tuesday and Wednesday night, and that if Ms T is not able to facilitate the time on a Wednesday, then that time should occur between 6.30 and 8.30 on that day with the maternal aunt to be in substantial attendance. 

1. The father proposes 6.30 to 8.30 pm each Wednesday commencing next Wednesday the 13^th;  from 10 am to 6 pm each alternate Sunday commencing 17 November;  and from 2 pm to 6 pm each alternate Sunday, commencing 24 December 2017, and he proposes from 12 till 5 on Christmas Day with all of that time to be supervised by a professional contact supervisor, with the father to pay that cost at first instance with the right to seek reimbursement from the mother later.  The cost of that would be considerable.  Most people come to this Court saying, “I can’t even afford two hours a fortnight”.  The husband is proposing that there be 10 hours one week and six hours the next. 

2. And he proposes to pay for that professional supervisor.  I am not aware whether he has actually made inquiries as to the cost of that, but he does say in other contexts that he earns about $1000 a week from the business that he owns. 

3. The father also would like to re-establish the requirement for the mother to undergo a breathalyser test either at the conclusion or the commencement of her time with X, and he says that those requests should not be made more than 15 times between today and the commencement of the final hearing. 

4. There is also an agreement that the father should be at liberty to take X overseas to (country omitted) between 28 December and 16 January, although the mother proposes that there be certain orders in relation to accounting for that, given the husband’s evidence in relation to his income and expenses. 

5. When I take all of those things into account – and noting that the mother should be given a chance to address her issues with alcohol – I make the following orders.

6. There is an issue in relation to property in that the husband has – quite extraordinarily, in my view – there was an order that the property at Property A, which is registered in the name of the husband, be sold.  That order was made, I think, by consent and there are orders related to the distribution of funds from that sale.  But in the meantime, between then and now, the husband has appointed a contract of sale for that property which involves the purchaser being a friend of his.  He has done that without consultation at all with the wife or her solicitors and, therefore, the wife is concerned about the sale price of that property.

7. I think, as I’ve said, it is an extraordinary thing to do in a context where the husband has also transferred property worth some $760,000 from his company to a company set up by his two sons and he says that he owed that money to them.  Those are the orders of the court.  The court will take them out.

8. That is yet to be decided in the court but I find the circumstances of the sale of the Property A property to be quite extraordinary and, therefore, I make this order, that the parties obtain a joint sworn valuation at their joint expense at the property at Property A, the real property, by no later than 31 January 2018 with the wife to forthwith nominate three appropriately qualified valuers and the husband to select a valuer from that list within 48 hours of receipt and the parties shall do all acts and things as may be necessary to fully cooperate with the valuer to facilitate the valuer’s preparation of a sworn valuation report in relation to the real property.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 17 January 2018