GALVIN & GALVIN

[2020] FamCA 711

FAMILY COURT OF AUSTRALIA

GALVIN & GALVIN [2020] FamCA 711

FAMILY LAW – CHILDREN – Interim – Where the father seeks that interim parenting consent orders that provide for an equal shared care arrangement be varied such that the child live with him and spend time with the mother only as deemed appropriate by the Court – Where the mother opposes that application and seeks a reinstatement of the interim consent orders – Where the independent children’s lawyer seeks a reinstatement of the interim consent orders – Where the father alleges that the child is at risk in the mother’s care due to her alleged excessive alcohol consumption – Where the father says that he acted on views expressed by the child and on the advice of the child’s psychologist to not return the child to the mother – Where the competing applications will be adjourned for hearing before a Registrar so as to allow time for the child’s views to be independently assessed and the interim consent orders will be reinstated in the meantime, with the independent children’s lawyer, or the child’s psychologist, to inform the child as to whom the child should contact if she has immediate concerns for her well-being when she is with either parent.

Family Law Act 1975 (Cth)

APPLICANT: Ms Galvin

RESPONDENT: Mr Galvin

INDEPENDENT CHILDREN’S LAWYER: Amanda Smerdon

FILE NUMBER: BRC 6885 of 2017

DATE DELIVERED: 28 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Brasch QC

SOLICITOR FOR THE APPLICANT: Pullos Lawyers

COUNSEL FOR THE RESPONDENT: Ms Oakley

SOLICITOR FOR THE RESPONDENT: Evans Brandon Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smerdon
Legal Aid Queensland

Orders

IT IS ORDERED BY CONSENT

1. That the parties shall do all acts and things as are necessary to ensure the child, Y born … 2007, (“the child”):

   (a)continues attending upon Ms B for therapeutic counselling pursuant to Orders made on 23 March 2020; and

   (b)attends upon Ms B for such further appointments as Ms B may recommend.

2. That Ms B be at liberty to continue to provide the parents with guidance regarding their parenting of the child as she sees fit.

3. That Ms B prepare a treatment report for the child at the request of the Independent Children’s Lawyer, with the Independent Children’s Lawyer to provide a copy of the instructions to Ms B to the parties for their comment seven (7) days prior to sending to Ms B.

4. That once the treatment report is available, the child shall attend upon Mr C for a wishes report, at the request of the Independent Children’s Lawyer, with the Independent Children’s Lawyer to provide a copy of the instructions to Mr C to the parties for their comment seven (7) days prior to sending to Mr C.

5. That the father shall initially meet the costs of the experts referred to above in paragraphs (3) and (4), with the mother to reimburse the father for her equal share thereof from any subsequent entitlements of the mother by force of Orders of the Court.

6. That paragraph 10 of the Orders of Registrar Spink of 23 March 2020 is discharged.

7. That the mother and father shall not consume any alcohol at all or use any illicit drug or substance, or be under the influence of alcohol or any illicit drug or substance at all when Y is in their respective care.

AND IT IS ORDERED

1. That the competing interim applications of the mother and the father for Orders varying the living arrangements for the child from the equal shared care arrangement provided for in paragraph 3 of the Orders of Registrar Spink of 23 March 2020 are adjourned for further hearing, along with all other current interim applications in the matter, at 2.15 pm on Monday, 26 October 2020 and, to be clear, paragraph 3 of the Orders of Registrar Spink of 23 March 2020 applies in the meantime, with the child to return to the mother’s care for the week commencing at the conclusion of her schooling today, Friday, 28 August 2020.

2. That the Independent Children’s Lawyer shall inform the child or, at her discretion, have Ms B inform the child, as soon as practicable, of the outcome of this interim proceeding and that she is to continue to live in the week about arrangement until the parents agree otherwise or until the Court determines otherwise, whichever is the sooner, and the Independent Children’s Lawyer shall inform the child or, at her discretion, have Ms B inform the child as to whom the child should contact if the child herself has immediate concerns for her well-being when she is with either parent.

3. ...

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galvin & Galvin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6885 of 2017

Ms Galvin

Applicant

And

Mr Galvin

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The parents involved in this dispute separated in late 2016 after twelve and a half years of marriage. There is one child of their relationship. She is just 13 years of age. Her name is Y. I am deciding competing applications for changes to the interim orders that regulate the parenting regime pending trial – interim orders that the parents consented to in March this year.

The History of the Matter

1. In November 2017, after proceedings had been commenced in this Court earlier that year, the parents agreed to interim parenting orders being made by consent. Those Orders conferred parental responsibility for Y on the parents equally and provided for her to live on a week about equal time basis with each of her parents. Those Orders also contained an Order that reflects concern on the father’s part at that time for the mother’s health, particularly her alcohol consumption and also included an injunction restraining each parent from consuming alcohol or “drugs or illicit substances” in the presence of the child or being affected by “alcohol in excess or drugs of any kind” during the time Y is with either parent and at changeovers.

2. In late 2018, the parents decided to attempt a reconciliation of their relationship. They agreed to travel together with Y on a bus converted to a motor home around Australia for a year, home schooling Y all the way. Judging by the evidence they have each put before the Court since then, it appears neither regarded themselves as continuing to be bound by the November 2017 consent injunction to not drink alcohol when Y was in their care. Complaints of continued excessive alcohol consumption by each parent prevail.

3. In mid-2019, whilst in the H Region of Western Australia, the parents separated again. The exact circumstances of the separation are disputed, but they involve, again, allegations of excessive alcohol consumption on the part of the mother and family violence on the part of the father perpetrated against the mother in the presence of the child. The mother returned home to the D Region and sought recovery of the child from this Court.

4. That application was resolved by consent, after the parties had the assistance of a section 11F Report from a Family Consultant. Y continued on her trip around the country with the father, interspersed by a set number of trips back home to the D Region to spend time with the mother and she was to be returned to the D Region by Christmas.

5. The Family Consultant who wrote that 11F report wrote, amongst other things:

   Y described significant alcohol use by the mother. “Wine, gin, could be anything”. Y told me her mother was “Fine” when she wasn’t drinking and described things she liked about her.

   Y expressed significant worry about her mother’s drinking. “She needs to stop drinking. Otherwise, she’s going to lose me and everything. If she’s not going to get help she’ll stay lost”.

6. The consent orders that were made at the next return date after that report reflected the Family Consultant’s recommendations.

7. The child then travelled with the father and returned to the D Region for regular visits as required by the Orders that were made by consent. Those Orders also required the mother to live with her mother, and thereby, by inference, the maternal grandmother was expected to be around when Y spent time with the mother as provided for in those Orders.

8. Interestingly, though the 2017 Order included restraint against each of the parents from consuming any alcohol or drugs whilst Y was in their care, the August 2019 consent Orders varied that restraint such that each parent was not to consume alcohol “beyond the legal limit to drive” whilst Y was in their respective care.

9. The father and Y returned to the D Region before Christmas and the family then saw Social Worker, Mr C, who prepared a family report for their assistance. He interviewed Y and reported extensively on that. For example, as for the issue of the alcohol consumption of the parents, he wrote:

Y said both her parents drink alcohol, although her father not as much as her mother. He usually has two or three beers or a glass of wine at night and does not really change his persona, except to be a bit more good humoured. If her mother drinks three glasses of wine, “she gets really angry and she just does not make sense.”

1. He wrote on:

   “[My mother] is normally a really nice person.”  I asked what she might like to change about her mother and she replied, “That she wouldn’t drink. Like she is completely different. She can go from happy to mad in under two minutes, for no reason at all.”

   I asked what she likes most about her father and she replied, “He is actually funny.”  She laughed again and added, “He does not get out of control when he drinks.”

   …

   The idea of living with her father does not bother her, provided she can see her mother on weekends: “I’d be fine with it, as long as I see Mum, I’m fine. It would be better to do week-on, week-off as long as Mum promises not to drink when I’m there.” I asked if anything might be hard about living mainly with her father and she said, “If he gets angry quicker. I couldn’t go to Mum if Dad’s being mean.” She smiled, explaining that he is stricter than her mother.

   I asked what it might be like if it were decided she lives with her mother and spends weekends with her father. She hesitated before making it clear it is her least preferred option. She is she (sic) more used to being with her father: “I’m used to seeing him because I’ve spent half the year with him.” Moreover, she is concerned that “Mum couldn’t stop drinking completely. I would love it if she could just stop completely.” Arguments with her mother are “way worse” than with her father, because he quickly resolves them, with an apology, whereas “Mum doesn’t apologise.” She added, “It just keeps going and going and going.”

   …

   I asked if there is anything else she wanted the judge to know and she said, “I really, really want to go week-on, week-off.”

2. Mr C recommended that Y live in a week about equal-shared arrangement. He also recommended that the parents provide, amongst other things, mutual assurances not to consume alcohol above the legal driving limit while caring for the child.

3. On 23 March this year, Senior Registrar Spink made further interim consent orders. They provided for Y to live with her mother and father on a week about basis “unless otherwise agreed in writing signed by them first had and obtained.”  (Paragraph 3 of those orders – my emphasis). They also provided for an extensive array of other things, including that each parent would facilitate Y’s attendance upon a child psychologist, Ms B, and “follow all reasonable directions and reasonable recommendations” made by her. The Orders included an injunction restraining each of the parents from consuming alcohol “beyond the legal limit to drive” or using any illicit drug or substance when Y is in their respective care.

4. The Orders also obliged each of the parents to engage with a therapeutic drug and alcohol counsellor for the purposes of dealing with any issues concerning misuse or abuse of alcohol or any prescription medication or the use of any illicit drug or substance.

5. The Orders included an injunction requiring each of the parents to enrol in a Circle of Security Programme and a Post Orders Parenting Programme within seven days of those Orders and to undertake those programmes as soon as they were practically able to.

6. There is evidence before me that the parents themselves signed those Minutes of Consent on 20 March before they were sent to the Court. There was, on the evidence, an incident that occurred at the father’s home later that same day or the next day. There is serious dispute between the parties as to what actually happened but the mother was at the father’s home, she says to effect a changeover of Y, when the father assaulted her, causing her “serious and significant injuries”. The mother tendered photographs of severe bruising to her face, her upper arm and her wrist. She alleges that the father has been charged with assault occasioning bodily harm, wilful damage and a breach of a temporary family violence protection order that was in place requiring him not to commit family violence towards the mother. Those proceedings are pending in the State Courts. The father does not dispute that but denies that he assaulted the mother.

7. There was an injunction in the Orders they signed that day, 20 March, restraining each of them from attending at the home of the other parent without the consent in writing, including by text message or email, of the other and requiring each to immediately leave the home of the other when requested.

8. In the father’s affidavit filed in support of his application now being considered, he deposes to having been sexually intimate with the mother at her home on 15 March and again on 16, 17 and 19 March. He said he was hopeful that they could reconcile again. He deposes to picking the mother up for lunch on 20 March (apparently after each signed the Minute of Consent) and taking her home to his house where he says they had intercourse. He says he then picked Y up from school and took her home to his place where all three of them had dinner together. He says that the mother stayed the night and early the next morning when he woke, at 8:30 am, he saw the mother awake with a vodka and orange juice in her hand. He says they had words, and he took Y to a friend’s house whilst the mother stayed at his home and continued to drink alcohol. He says that when Y came home the mother started drinking heavily whilst he cooked another meal for the family. He says that the mother went to bed soon after dinner whilst he and Y watched a movie. He says that he then heard the mother screaming for help and he went to see her. He says that she was complaining of being hot and asking for ice-cream. He says that he had no ice-cream so got some ice cubes and a cold washer and applied that to her forehead. He went back to watching the movie, but heard her screaming out again about ten minutes later. He says she was again demanding ice-cream. He told her he did not have any and gave her more ice-cubes and a washer. The father says that ten minutes later the mother came “storming into the lounge room fully naked, screaming she wanted ice-cream”. He says she was “slurring heavily and was very unstable on her feet.” He says that Y was shocked to see her mother naked and told her to put some clothes on and calm down.

9. The father says that the mother swore at them and stormed off again. He followed her to the bedroom where she continued to abuse him and throw things at him. He says she grabbed a pair of his sunglasses, twisted them until they broke and threw them at him. He says she tried to barge past him and staggered into a large decorative pot which had long protruding, woody decorative branches in it. She grabbed it and it fell with her to the floor, breaking in half. He says she got up and abused him again. He says he asked her to go upstairs to a different bedroom, when she continued to abuse him and punched him in the face. He says he then grabbed her phone and threw it in the river in anger (presumably it is a riverfront property). He says the mother then said she was going to go home and that when she went past him she had a bag of his in her hand bag. The bag, he says, is one that in which he kept some cash and pain medication in case of emergencies. He says he ran after her to get it from her and she then stumbled around the corner and fell face first into the wall. He says he saw her hit the wall with her head bent to one side and immediately tried to assist her. He says that the mother called a taxi and left. He denies assaulting the mother and says he intends to defend the charges that have since been pressed against him. It is not disputed that those proceedings remain pending.

10. The Court was told by Queen’s Counsel representing the mother, that the mother denies the father’s assertions that they had sexual intercourse over the days prior to that incident.

11. The father gives evidence that in the weeks after that incident he and the mother continued to communicate with each other by telephone, both with calls and texts, including in the very early hours of the morning. He says that they again had sexual intimacy in that time. I understood the mother’s denial of that allegation as well.

12. The father deposes to much contact with the mother and concern for the state he alleges she was repeatedly in over the months of April and May, and says that on 24 May Y called him and asked him to pick her up from her mother’s place as her mother was “screaming and yelling” at her. He says that he then received calls from the mother saying that she would not let Y come to him, then again saying “come and get her”, then again saying Y had changed her mind. He says he then spoke with Y and told her to call him again if she needed anything. Apparently, she did not call him again.

13. The father deposes to a series of further events that he says took place over the first few weeks of June in which he says the mother was drunk and there were difficulties between them.

14. During the week that Y was living with the father leading up to Friday 19 June, the father determined not to return Y to her mother’s care at the end of the week as required by the March consent orders. In his affidavit, he gives evidence about the circumstances that prompted him to act this way. Interestingly, he does not mention at all the Order he consented to in late March that required agreement with the mother “in writing first had and obtained” before Y’s week about living arrangements could be changed.

15. He says that on Tuesday 16 June, Y called her mother to ask whether she could attend, with her father, the 60^th birthday party of a family friend scheduled for the coming weekend, a weekend when Y was, pursuant to the Orders, in her mother’s care. He says that the mother refused Y’s request but refused to give her any reason for that refusal. He says that Y repeatedly asked her mother why she was not allowed to go and her mother replied “many reasons”. He says that he could see Y becoming “increasingly frustrated” at her mother’s responses. He says the mother then told Y to “fuck off” after which Y hung up. He says Y then fell to the floor sobbing saying “I’m never talking to her again.”  He says that he then started a conversation with her and she said:

    Dad, I’ve had enough, and I don’t want to go back to mum. I want to come and live with you. I can’t take her drinking and abusive and crazy behaviour anymore. I don’t feel safe there.

1. The father says that he then immediately said:

   If that is really what you want then I will support you.

   He says she then responded:

   I know this is going to cause a lot of problems because Mum will go berserk.

2. The father says that the next morning he asked Y if she still felt the same about wanting to live with him and that she said she did. He says that after he dropped Y to school, he called the school counsellor to arrange a meeting to notify of the circumstances “and changes to Y’s living arrangements”. He had an urgent meeting with staff at the school and then arranged an urgent appointment for Y with Ms B, the psychologist who Y was seeing. He took Y to see Ms B that afternoon and she spoke with Y on her own for approximately 45 minutes. He says that he then spoke with Ms B at her request and that she had told him she shared his concerns for Y’s emotional safety should she continue to live in a shared care arrangement with the mother whilst “her addictive and abusive behaviours continue”. He says Ms B told him that “under no circumstances” should he return Y to her mother. He says that he was advised by Ms B and his solicitors to go away for a while to ensure Y was in a safe environment and for the dust to settle. He says he instructed his solicitors to write to the mother’s solicitors to tell them that Y was remaining in his care until further notice.

3. The mother asserts in her evidence that the father then took Y to the friend’s birthday party which she alleges took place over three days that weekend at a F Town resort. She asserts that there were many guests and that there would have been a lot of drugs and alcohol, even “strippers”, provided for the guests’ entertainment. The mother also asserts that the father then took Y to G Town for a few days before returning her to the D Region. The father has not responded to those allegations.

4. The father says in his affidavit that he understood that Ms B was preparing a report in relation to Y’s attendance upon her on that date and that the report would be made available to the Court when available. He did not say how he had that understanding. In any event, that has not happened despite more than a month passing in the meantime.

5. The father goes on to say that he is “personally fearful and concerned for Y’s safety whilst in the care of the mother” and that he does “not feel that it is in Y’s best interests to return to the care of [her mother] at this time.” He goes on to say that “given the imminent risk of harm that [the mother] presents to Y, it was necessary for me to bring this urgent application” to vary the existing orders pertaining to the living arrangements for Y.

6. The father did just that. On 13 July, he filed an Application in a Case seeking Orders that Y live with him and only spend such time with her mother that the Court “deems appropriate”. He sought an updated report from Mr C and Orders that the mother undertake CDT testing and hair follicle testing on a regular basis. His lengthy affidavit was filed in support.

32.It is not in dispute that the father has made arrangements with the mother for Y to spend time with her in the two and a half months that have transpired since he determined to comply with the Orders. In fact, on the weekend just prior to the hearing of his application on Monday 24 August, he arranged with the mother for Y to go and stay with her mother from Thursday until Sunday whilst he travelled to K Town for some event associated with a business investment that he is considering. There is dispute about the circumstances of the arrangement that were agreed to. The father asserts that it was only agreed to on the basis that the maternal grandmother would be present at all times, so that Y would feel “safe” enough to stay with her mother for three nights. I am not sure what the mother’s position in respect to that assertion is, though it is clear that she instructed her solicitors after Y was in her care to inform the father that she was not going to return Y to his care on Sunday and would keep Y in her care until Monday until the Court determined the competing applications. She filed her Response and supporting affidavit material on that Friday after Y was in her care and served it on the father’s solicitors after that. In her Response, she sought Orders that Y live with her and spend six weeks with her without any contact with the father before returning to spend time with the father on alternate weekends only. As an alternative to that Order, she sought simple return to the week about shared care regime of the March consent Order.

1. The father says that Y told him that the maternal grandmother was there for some part of the stay but left and that the mother did not expect or require her to return. It seems that Y then asked her mother if she could go and stay at a friend’s home on the Saturday night for a sleep-over, apparently not wanting to stay with her mother for the night. The mother and Y argued about that but the mother ultimately acquiesced to Y’s request and let her go and stay at her friend’s place. Y returned to the mother’s home on Sunday morning to collect some things and late that morning, the father arrived to collect her and take her home to his place, notwithstanding having been informed that the mother intended keeping Y in her care until after the hearing on Monday and after being asked to stay away from the mother’s home.  The father says that was at Y’s request as she told him she did not want to stay there without her grandmother being there. The Court was told by Queen’s Counsel for the mother that the mother acquiesced in that at the time, despite having previously said she would hold the child over until Monday, as she was not wanting to cause a scene in front of the child.

2. The father relied on a further affidavit filed on Monday morning in which he deposed to receiving two phone calls from the mother late on Sunday evening that he did not answer. He also deposed to the fact that Y received a phone call on her mobile telephone from the mother at 2:00 am that same night but that she did not answer it. The father’s counsel tendered, at the invitation of the Court, a screenshot of Y’s phone showing the calls to her phone and purporting to show the call asserted to be from the mother at 2:00 am that day. The number it was received from was assigned the name “Mother”. As was pointed out by Queen’s Counsel for the mother, the screen shot did not identify the receiving phone in any way as Y’s phone and nor was there any evidence that the number assigned the name “Mother” was the number of the mother’s mobile telephone number. The mother had not really had an opportunity to respond to the father’s evidence about this, but Queen’s Counsel who appeared for her did not tell the Court that the mother denied making a call to her 13  year old daughter’s phone at 2:00 am that day. If she did, which appears likely, without further explanation, it would appear, at first blush, to be inappropriate and a touch chaotic.

At Court on the Monday

1. The matter was heard on Monday, 24 August 2020 in the Judicial Duty List via the Microsoft Teams online video conferencing platform. The father was represented by solicitor and counsel. The mother was represented by solicitor and Queen’s Counsel and the Independent Children’s Lawyer (“the ICL”) appeared.

2. The ICL told the Court that the parties had agreed to ensure that Y continues to attend upon Ms B and that she should attend upon her again as soon as Thursday, 27 August. They had also agreed that Ms B provide “a treatment report of Y” at the ICL’s request. They had also agreed that Y attend upon Mr C for “a wishes report” as soon as the treatment report is available. The ICL told the Court that Mr C had confirmed that he could see Y again on 16 October with a view to preparing the “wishes report”.  The ICL informed the Court that she would send through a draft of orders that could be made with the parties’ consent reflecting those matters. Counsel for the mother and the father confirmed this. This left the issue to be determined as where the child lived in the meantime, before these reports are available and the matter can be heard again. To be clear, the ICL submitted that the week about regime consented to by the parents in March this year should be immediately reinstalled.

3. Queen’s Counsel for the mother informed the Court, after hearing from the ICL, that the mother now supported that same position and no longer sought Orders for Y to live with her and not see or communicate with the father for six weeks. Counsel for the father submitted that Y should continue to live with the father in the meantime.

4. Having read the father’s evidence where he deposes to Ms B telling him, after meeting with Y for about forty-five minutes, that “under no circumstances” should he return Y to the mother’s care, I asked the ICL if she could contact Ms B and ask her to confirm or deny the father’s assertion. The ICL indicated that she would do that and I decided that I would make an Order to that effect that same day whilst reserving my judgment. Accordingly, I ordered as follows:

   That the Independent Children’s Lawyer make contact with Ms B, the child’s counsellor, as soon as possible to obtain from her her confirmation or denial as to the validity of the assertion made by the father in paragraph 13 of his affidavit of evidence filed on 10 July 2020, and to be precise, that is, did she say to him on or about 17 June 2020 that “under no circumstances should [he] return [the child] to [the mother]”, and the Independent Children’s Lawyer shall file and serve an affidavit deposing to Ms B’s response as soon as possible.

5. I also asked the ICL if she would encourage Ms B to do the “treatment report” as soon as possible and also encourage Mr C to see Y sooner than 16 October, if that was at all possible. I asked the ICL to depose in the affidavit she is to file “as soon as possible” as to the outcome of those requests so that I could determine when to list the matter for further hearing. It was hoped that could be sooner than originally planned. The ICL indicated her willingness to do that.

6. For the father, Ms Oakley of counsel, pointed to a number of matters of fact that would give the Court concern about the mother’s alcohol consumption and its impact upon her care of Y and, hence, her relationship with Y. She told the Court that the father has had ongoing drug and alcohol counselling as per the March Orders but the mother has not. The mother has not done the other parenting related courses that were ordered to be done in the March Orders either. The father has not done the Circle of Security course, saying that it is not available at the moment, but does depose to having completed an online Parenting Orders Program and to having the counselling.

7. The mother gave evidence that she had not done the counselling or the courses, saying that she had not been able to as she was dealing with the aftermath of the assault at the hands of the father in late March, some five months ago.

8. Ms Oakley referred to the matters that I have already pointed out were reported to have been said by Y to the Family Consultant who did the s 11F report and to Mr C in his family report as confirmation that Y has, historically, been concerned with her mother’s alcohol consumption and its impact upon the mother’s mood and behaviour. She referred to the father’s evidence of what Ms B told him after she had seen Y and submitted that should be accepted as there is no evidence to the contrary, no evidence from Ms B having been able to be obtained prior to the hearing.

9. Ms Oakley submitted that the March consent Orders should be departed from now as they included safeguards that the mother has not complied with and not met and that Y well-being is best protected by leaving her in her father’s care until these matters can be further confirmed through the agreed reporting process.

10. Queen’s Counsel for the mother submitted that expecting the mother to put evidence about the alleged assertions of Ms B before the Court and to show why the March Orders should not be varied would be effectively reversing the onus of proof in the proceedings.

My Concern about the Alcohol and Drug Consumption of both Parents

1. The evidence about the alcohol consumption and alleged drug consumption causes me to be greatly concerned that both parents have alcohol dependency problems, with the mother’s likely to be more severe than the father’s. This issue alone, not to mention the alleged family violence, the undisputed high conflict and the alleged difficulties they are experiencing in actually separating their emotional and physical relationship, is creating a toxic environment for this 13 year old, young adolescent female child to be living in during this relatively critical stage of her development.

2. During the hearing, I pointed out to the parties that I was troubled about the wording of the consent injunction they agreed to in the March Orders that only restrained them from drinking alcohol “beyond the legal limit to drive” and informed them I was inclined to vary that so that it restrained each of them from consuming any alcohol at all whilst Y was in their respective care. Though I considered this might be difficult for each of them, I considered it critical for Y’s well-being, the existing injunction not being precise enough for easy compliance (especially if there are dependency problems) or enforcement. Relevantly, the ICL informed the Court that she thought it was a good idea and the Court was informed by counsel for each of the parents that they each agreed to such a variation – thereby, each of them clearly committing to self-restraint from consuming any alcohol at all whilst Y is in their respective care, whatever time period that would be for. I also indicated an expectation that, whatever orders I made, the mother would comply with the obligations she agreed to be bound by in the March orders before the matter came back before the Court, whenever that might be.

3. The injunction will be varied as I proposed.

The Further Evidence from the ICL

1. On Thursday, 27 August, the ICL filed the affidavit I had directed that she file. In that she deposed to the following:

   I have spoken with Y’s counsellor, Ms B and asked her to answer the following question “Did you say to the father on or about 17 June 2020 that under no circumstances should he return Y to the mother’s care?”

   Ms B’s response is as follows

   “Y attended an urgent session with myself on the 17^th June 2020. I recorded in my clinical notes the following

   Y presented as quite anxious and upset. Given the level of Y’s anxious and upset presentation and her reported concerns regarding a recent incident that occurred between Y and her mother, I suggested to Mr Galvin, Y’s father, that it would be in Y’s best interest that she stay with him at the weekend and not return to stay with her mother for the weekend.

2. The ICL also deposed to having been told by Ms B that she could produce a “Treatment Report” by 1 October and by Mr C that he could see Y on 9 October and have a report prepared by 20 October.

The Outcome

1. Though I am quite concerned about the alcohol consumption of each of the parents, but most particularly the mother, I am not persuaded on the evidence that is before me at this point in time that Y should remain principally in her father’s care until the further reports are made available to the Court, as per his unilateral determination in late June and his desire now. The father has been expressing concern about the impact of the mother’s alcohol and drug consumption on her capacities to care for the child ever since this matter began in this Court, a few years ago. Despite that, on a number of occasions in that time, he has consented to Orders being made that Y live with the mother on an equal shared care basis, the latest being in March this year when he agreed to week about care. There was no requirement included in those Orders that the mother live with her own mother during the time that Y is living with her.

2. It is correct that those Orders also included some other safeguards such as the mother having drug and alcohol counselling that the mother has clearly not done, as well as restraint against drinking beyond the legal limit to drive whilst Y is in her care, her compliance with which appears seriously in doubt on all the evidence. However, the Orders that the parties consented to also included express obligation for Y to live week about with each of the parents “unless otherwise agreed in writing signed by them first had and obtained” as I have already mentioned.

3. The father does not put any evidence before the Court as to his consideration of that provision and his decision to act contrary to it despite its existence. He says he acted on Y’s express wishes and, significantly, advice from Ms B to withhold her from the mother. He does not explain why he did not simply assure Y that he would support her expressed position and do all he could to ensure that the existing ordered arrangements (that were in line with Y’s previous clearly expressed wishes) were changed by agreement with her mother or, in default of agreement, by a variation to the Court Order made by the Court after the hearing of a contested application. He does not give any explanation about any attempts made to reach agreement with the mother to change the arrangements to reflect what he says were Y’s newly expressed wishes. The evidence supports a finding that he very quickly made a unilateral decision just to hold on to the child, breach the existing Orders he had consented to and then, after the fact, seek the Court’s effective forgiveness through an order varying the existing arrangements that he had previously agreed to.

4. He did depose to being told by Ms B not to return Y to her mother “under any circumstances” and, apparently, placed great weight on that. The potential significance of that evidence caused me to direct the ICL to ask Ms B if that was true. If it was, the father’s unilateral action in the face of the Order might have been more excusable. However, as it turns out, Ms B did not confirm that she told the father that, but rather just not to return Y to her mother for the weekend that was coming. Of course, neither the father’s evidence about that or Ms B’s version have been tested, but at this interim stage, and with all due respect to the father, the evidence does not persuade me that Y’s immediate well-being was in such danger that she had to be withheld from her mother as he decided to do, with the time she spent with her mother and in her care being solely determined by him on an ongoing basis. Indeed, the evidence satisfies me that the father had unilaterally determined to change the arrangements even before Y saw Ms B at the time, as he deposes to his contact with the school to tell them of the changed arrangements prior to Y’s urgent appointment with Ms B.

5. It may be the case that Y has changed her views about the parenting arrangements that she wishes to live within. However, that is a matter for more thorough consideration after those wishes have been independently ascertained, considered and reflected upon by the independent family report writer the parties have agreed to have involved in this case. Y’s well-being in the meantime, whilst living with each of her parents on a week about basis, will be given the greater protection of an injunction that each parent readily agreed to, restraining each from consuming any alcohol at all, or any illicit drugs at all, whilst she is in their respective care.  Y may be told by the ICL, or, at her discretion, Ms B, that she is to continue to live in the week about arrangement until the parents agree otherwise or until the Court determines otherwise, whichever is the sooner. She may also be told by the ICL, or, at her discretion, Ms B, that if she has any immediate concerns about her safety and well-being during the time she is with either parent, that she should contact the ICL or Ms B or some other appropriate adult with those concerns.

1. By the Orders I will make, Y is to return to the week about arrangement by returning to her mother’s care after school this day, Friday, 28 August.

2. I will make the Orders set out at the commencement of these written reasons.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 August 2020.

Associate: 

Date:  28 August 2020