Giles and Giles

[2013] FamCA 1005

FAMILY COURT OF AUSTRALIA

GILES & GILES [2013] FamCA 1005

FAMILY LAW - PRACTICE AND PROCEDURE - Registrar - Review of decision –Where Registrar made interim parenting orders – Where both parties have made allegations of alcohol and drug abuse against the other – Where proceedings are interim and evidence is yet to be tested - Where the father is unwilling to facilitate a relationship between the children and the mother – HELD – Registrar decision will remain in effect

APPLICANT: Ms Giles

RESPONDENT: Mr Giles

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 5711 of 2013

DATE DELIVERED: 6 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 6 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dwyer

SOLICITOR FOR THE APPLICANT: Paltos Briggs Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Warren McKeon Dickson

COUNSEL FOR THE ICL: Ms Dart

SOLICITOR FOR THE ICL: Parks Coady Family Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That notwithstanding anything in order 3 to the contrary, the children spend time with the parties during the 2013/2014 Christmas school holiday period as follows:

   a.With the mother from 5 pm on 6 December 2013 to 5 pm on 16 December 2013;

   b.With the father from 5 pm on 16 December 2013 to 5 pm on 23 December 2013;

   c.With the mother from 5 pm on 23 December 2013 to 2 pm on 25 December 2013;

   d.With the father from 2 pm on 25 December 2013 to 5 pm on 30 December 2013;

   e.With the mother from 5 pm on 30 December 2013 to 5 pm on 6 January 2014;

   f.With the father from 5 pm on 6 January 2014 to 5 pm on 13 January 2014;

   g.With the mother from 5 pm on 13 January 2014 to 5 pm on 20 January 2014;

   h.With the father from 5 pm on 20 January 2014 to 5 pm on 27 January 2014

2. That unless otherwise agreed, changeover as provided for in order 1 shall occur by the father collecting the children from the mother at her residence at the commencement of their time with him, and the mother collecting the children from the father at his residence at the commencement of her time with the children.

3. That the mother continue to attend upon Dr B, Psychiatrist and follow all recommendations of Dr B, including with respect to therapy and medication.

4. That the Independent Children’s Lawyer has leave to provide a copy of these orders to Dr B.

5. That the parents be, are hereby are, restrained from:

   a.Discussing these proceedings with the children or either of them;

   b.Showing the children or either of them any documentation relating to these proceedings;

   c.Questioning or making enquires with the children or either of them with respect to the other parents compliance with any order of this Court, including the restraints imposed;

   d.Denigrating the other parent, their partners or their family members in the presence or hearing of the children.

6. That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

AND THE COURT NOTES

A.That the father’s time with the children pursuant to order 3(a) shall commence on 30 January 2013 and continue each alternate week thereafter.

B.That the father’s time with the children pursuant to order 3(b) shall commence on 6 February 2013 and continue each alternate week thereafter.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5711 of 2013

Ms Giles

Applicant

And

Mr Giles

Respondent

REASONS FOR JUDGMENT

1. Before the court are proceedings for parenting orders in relation to two children; C, born in 2001 and now aged 12, and D, born in 2005 and now aged eight. The applicant for orders is Ms Giles (“the mother”) and the respondent is Mr Giles (“the father”).

2. The matter comes before me by way of review of a decision of Senior Registrar Campbell. On 31 October 2012, the Senior Registrar made orders that the children live with the mother and spend time with the father. The father has filed an application for review of that decision and thus the matter proceeds before me as a hearing de novo.

3. The Senior Registrar made procedural orders which are not the subject of review, being Orders 1 to 9 (inclusive). He also noted an undertaking from the father (at order 14) in relation to the safe storage of fire arms. Those orders and the undertaking remain in force.

4. The parties separated on 29 July 2012. The father asserts that after that date, the parenting of the children was approximately equally shared. The mother says that the children lived primarily with her. On the evidence before me, on an interim basis, it is not possible to determine that issue. 

5. The father alleges that the mother either has an alcohol problem, a mental health problem, or a drug issue, or perhaps some combination of all three. The mother, although she admits using cocaine on one occasion in June of 2013, denies the father’s allegations. The mother alleges that the father drinks heavily and is irresponsible, in relation to his involvement of the children, and particularly C, with firearms. Both of the children are seeing a senior social worker, Mr E, for counselling and C also sees the school psychologist at his present school, Ms F. The notes of Mr E and Ms F were tendered.

6. Because the proceedings before the Court are interim proceedings and cross-examination has not been allowed, it is not possible to test the evidence of either of the parties where they disagree. There are, however, some documents which are helpful and the Independent Children’s Lawyer (“the ICL”) prepared a helpful chronology in the matter. 

7. On 31 August 2012, C had a counselling session with Ms F. The note specifically says C reported his mother using “sweetener.” It is suggested by counsel for the husband that the only interpretation which could be given to that word, which C describes as “like a drug to make her happy”, is that the mother was using cocaine. I am not prepared to make that assumption. 

8. The mother consulted a psychiatrist, Dr B, who prepared a report dated

   
   

   30 August 2012. In that report, Dr B expresses the view that the mother presents with a borderline personality disorder and says:

   I would continue with the (medication). I have also suggested she cut down her alcohol.

9. In July or August 2012, the father states that he received a letter from the mother with words to the effect of:

   I have been drinking way too much in recent years and it is not good for me. I am going to stop drinking for a while so my mind and body can really focus.

10. In September 2012, the father states that he received a text message from the mother stating:

    I gave the drink a good going last night and I am so tired and hung over today.

11. Also in September 2012, the father says he received a letter from the mother stating words to the effect of:

    I am disgusted with the way I have behaved towards you and the children and it makes me feel worse when professional people tell me that my behaviour is totally unacceptable.

12. On 5 November 2012, the mother states that she received a telephone call from the father stating:

    I’ve lost [D], she is gone.

    The mother says that D told her:

    Daddy put my bag on my back and opened the front door and told me to get out.

13. On 14 January 2013, the father states that he received an email from the mother saying:

    I am so sorry for the other night. I clearly can’t handle any drinks and I will not do it anymore. 

14. On 15 January 2013, the father states that he received a text message from the mother stating:

    I have been thinking about my life and realised that drinking has caused so many problems. I have been drinking way too much lately and I am going to give it up. Please help me to get better and stop drinking.

15. On 18 May 2013, the mother says that following an argument between the father and C, she received a telephone call from the father in which he stated:

    Come and get C’s stuff.

    When she arrived, the father had thrown all of C’s clothes and equipment on the front lawn and C was crying. 

16. In June 2013, the mother admitted to using cocaine on one occasion.

17. On 22 June 2013, the mother was admitted to G Hospital. The mother, in her evidence, says that she had a bad reaction after drinking approximately two and a half glasses of wine. The records of G Hospital report that the mother was brought in by ambulance after a friend was unable to rouse her. She was unable to remember much of the evening and reported that she was stressed, had disturbed sleep and had lost her appetite. The mother told the staff at G Hospital that she had drunk approximately two and a half glasses of wine on that occasion. She was tested and the tests were negative for excessive alcohol or any substances.

18. On 24 June 2013, C and D were seen by Mr E. Mr E records that C was distressed and said that the mother was acting strangely. C said that he came home from camp and she woke him up to dance. C said that his mother drinks a bit, but, in general, was okay. 

19. On 13 July 2013, the mother says that she attended at H Town and located D without the husband, whom she later found drinking a bottle of beer. The mother says that she took the children home to her residence on that occasion. 

20. On 31 July 2013, C had an interview with Mr E. C told Mr E that with his mum he felt safe, except when she gets angry, and Mr E noted that the children feel safe at dads. 

21. On 4 September 2013, Mr E, in his notes, wrote, following an interview with both of the children:

    Scared when she is angry.

22. On 18 September 2013, the mother says that, without her knowledge or consent, the father collected C from school and took him to a gun shop to obtain a junior gun license and to purchase a gun. 

23. On 6 October 2013, the father says that the children stated to him words to the effect:

    Mum has a new allergy, and has told us that when she drinks wine her face gets all red and puffy and she can’t drink wine anymore.

24. On 10 October 2013, C had a session with Ms F. In the course of that session, C told Ms F that he was finding it hard to deal with his mother’s behaviour. He referred to her using insulting and abusive language. C told Ms F that he felt unsafe when his mother goes crazy, and Ms F and C developed a safety plan. The first part of the safety plan was to contact Dad; next, phone 000; next, go to a neighbour; next, call the Kids Helpline, for which Ms F provided a number. Also on 29 October 2013, C told Ms F that he was missing his mother a lot.

25. On 10 October 2013, the father was in Bali. He says that he received a call from D who was crying and said:

    Dad, mum is asleep on the floor and we haven’t had dinner.  I’m hungry and scared.

    The father states that this was confirmed by C who stated:

    Mum’s  like passed out on the kitchen floor.  I don’t know what to do and I’m hungry.

    The father says that he told C to ring the maternal grandmother and ask her to come over, which he says C did. In the father’s case, there were tendered telephone records which confirmed that a telephone call was made by C to the father and also to the maternal grandmother on that day and at the times alleged by the father.

26. It is the mother’s case that she had had a migraine and took medication, and because the day was hot, sat down on the kitchen floor and fell asleep. Neither of the children suggested to the father that their mother had been drinking or that they had seen her consume alcohol. 

27. It is a matter of some concern that if C called his maternal grandmother and told her the same thing as he told his father, then she makes no mention of the calls in her affidavit. The maternal grandmother, however, went to the mother’s home, she asserts by prior arrangement, and found the mother to be awake and, by inference, able to care for the children.

28. The next day, 11 October 2013, the father retained the children and did not return them to the mother and they lived with him until 31 October. The circumstances in which the father retained the children, specifically the time which they were then able to spend with their mother, will be the subject of further comment and, it is fair to say, criticism in these reasons. 

29. On 11 October 2013, the mother filed an application for parenting orders in relation to the children. 

30. On 27 October, 2013, C brought home and showed the mother a photograph of himself holding a gun, apparently a shotgun.

31. On 28 October 2013, both of the children saw Mr E, who states in his notes:

    They really want to go back to mum.

32. On 29 October 2013, C had a session with Ms F where he told Ms F that he was excited about mum’s new house and “making it our own”. He said that he was eager to stay at mums because he was used to it and he got to visit his cousins.

33. On 31 October 2013, the parties came before Senior Registrar Campbell, who heard the interim parenting applications and made orders that the children live with the mother and spend time with the father; in week one from after school Thursday to before school Friday; in week two, from after school Thursday to before school Monday and for half of each school holiday period. He also made orders restraining both parents from consuming alcohol.

34. The father alleges that the mother continued to drink after Senior Registrar Campbell made orders restraining both of the parties from consuming alcohol for a period of 24 hours prior to and during the time that the children spent with the parent. He says that on 7 November 2013, the mother was drinking. For that assertion, he relies upon statements made to him by the children, not to the effect that they saw their mother drinking, but that they saw a bottle of wine in the garbage bin.

35. On 8 November 2013, there were a series of events in relation to which the parties give different, but not inconsistent, evidence. The father’s version which the ICL uses in the chronology is as follows: The father states that he was contacted by H Town Public School to collect D after the mother failed to do so, and that when the mother arrived, she apologised and stated that she had a migraine and had fallen asleep. The father states that he later received a call from C stating that he was waiting at the bus stop and that he had rung the mother who stated her car had been stolen. The father stated that he drove to the bus stop to collect C and observed the mother’s car outside H Town Public School, approximately 100 metres from her residence.

36. The mother gives a different version of those events. She says that on the morning of Friday, 8 November 2013, she received a phone call from the mother of one of the students in D’s class who told her that D was not in school. Upon receiving that message, she telephoned the father, who was meant to be delivering D that morning. She says that later in the day, she started to feel ill and to get a migraine headache, and she took medication and went to sleep. She woke up at about 3.50 pm and realised that she was late collecting D from school and drove to the school. She says that she left the car at the school and walked home as she normally did, and because she was suffering from a migraine, she didn’t remember that her car was at the school.

37. It is not possible to determine which of the parents’ versions is accurate.  Neither of them is inconsistent with the other, but I am not satisfied that whatever happened on 8 November 2013 is evidence of the father’s assertion that the mother was either drinking or consuming alcohol. 

38. On 18 November 2013, the mother agreed with the father’s request that her time with the children be supervised by the maternal grandmother, and with only two exceptions to date, the maternal grandmother has been present during the whole of the time the children have been with the mother.

39. It is not in dispute that the children’s best interests are served by their having a meaningful relationship with both of their parents; neither is it in dispute that the current arrangements facilitate the children having a meaningful relationship with both of their parents. The issue to be determined is whether, on an interim basis, and until the evidence can be tested, the children’s best interests require that their arrangements should be changed. There is little evidence before the court of the children’s wishes. 

40. It is notable that C has made complaints to Ms F about the behaviour of both of his parents, and whilst I do not propose to repeat those complaints here, as they were detailed by counsel for both the father and the mother in submissions, I simply suggest that it would be wise if both of the parents considered the effect of their behaviour on the children. Apart from C’ complaints, there is no evidence to suggest that the children have other than a good relationship with each of their parents, or that their relationship with one parent is stronger or weaker than that of the other.

41. In relation to the capacity of the parents to care for the children’s emotional and psychological needs, I note that on 29 October 2013, Ms F reports C as saying that his father does not respect his request “not to put me in the middle”, although C said his mother did respect that request. 

42. However, the most significant matter, which I take into account when dealing with the capacity of the parents, is that in the period between 11 October and 31 October, when the children were retained by their father, the children report having seen their mother for two periods of about one and a half hours. 

43. These children had lived, on any version of the evidence, for at least half of the time with their mother. The father says that he did not refuse to let the mother see the children. I do not consider that to be an adequate justification, nor do I consider that the father, in any way, fulfilled his obligation to these children. He had a positive obligation to ensure that the children were able to maintain their relationship with their mother and to spend appropriate periods of time with her.

44. If the father was concerned for the children’s safety in the care of their mother, it was open to him to seek assistance from the maternal grandmother, who he now says is an appropriate supervisor. He could have proposed daytime only time. He could have proposed that she spend time with them away from home. He could have proposed that she spend time with the children in the company of other friends or relatives. He did none of those things. 

45. There is no explanation for the father’s restricting the time the children spent with their mother in the way that he did. She was the parent with whom the children had lived for the whole of their lives until separation, and after separation, on any version of the evidence, they had lived with her for half of their time.

46. The father’s actions give rise to grave concerns about his ability and willingness to foster the children’s relationship with their mother, and they give rise to grave concerns about his understanding of the children’s emotional and psychological needs, and about his ability to put their needs and interests ahead of his own. This is a matter upon which I place great weight. 

47. Counsel for the ICL made submissions about the effect of change in these children’s lives, which I accept. Since 11 October 2013, the lives of these children have been significantly disrupted. Further disruption cannot be in their interests. 

48. I do not consider that the father has made out his case that the children are at risk in the mother’s care by reason of her being affected by alcohol or by drugs. I do not suggest that he has no reason for concern; however, in my view, the evidence which supports the father’s concerns does not suggest that the risk of the children staying with their mother is so grave as to outweigh the damage of further disruption to their living arrangements. This is particularly so when I do not accept that the father is a person who is willing to, or perhaps capable of, fostering the relationship with the mother, or has sufficient understanding of the children’s psychological and emotional needs.

1. For those reasons, I propose to make the orders which are sought by the ICL that the children will remain living with their mother in accordance with the regime determined by the Senior Registrar. Orders 1 to 13 (inclusive) and 15 and 16 made by the Senior Registrar on 31 October 2013 will remain in effect.

2. The parties have reached an agreement about the time that the parents and the children will spend together in the Christmas school holidays, and that agreement is embodied in the orders proposed by the ICL.

3. I consider that the regime provided by the orders proposed by the ICL best meets the needs of the children until the evidence can be tested and the court has the advantage of evidence from a Family Consultant.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 December 2013.

Associate: 

Date:  6 December 2013