Gorman and Dreher

[2007] FamCA 255

FAMILY COURT OF AUSTRALIA

GORMAN & DREHER [2007] FamCA 255

FAMILY LAW - CHILDREN- Supervised time for the father with the children - Drug and alcohol abuse allegations

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APPLICANT: Mr Gorman

RESPONDENT: Ms Dreher

FILE NUMBER: SYF 325 of 2004

DATE DELIVERED: 27 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 29, 30 and 31 January 2007 and 1 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moss

COUNSEL FOR THE RESPONDENT: Ms Haughton

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs O’Connor

Orders

1. That all previous parenting orders be discharged.

2. That the mother have sole parental responsibility for the children, the elder daughter, born in October 1995, and the younger daughter, born in October 2000 (“the children”).

3. The mother is to consult with the father in relation to any proposed change for the children of the following:

   (a)       school

   (b)       residential address,

   (c)       extra curricular activities.

4. The mother is to promptly inform the father of:

   (a)       any significant health problems the children might develop;

   (b)       any significant awards or achievements of the children;

5. The consultation referred to in order 3 hereof and the information required to be provided under order 4 hereof may be effected in writing, by e-mail or text messuage, or by conversation at the discretion of the mother.

6. That the children live with the mother.

7. That, subject to order 5 herein, the children spend time with the father as follows:

   (a)on each alternate Sunday (or Saturday during the elder daughter’s soccer season) from 10.00 am to 6.00 pm.

   (b)on Father’s Day from 10.00 am to 6.00 pm.

   (c)from 11.30 am to 9.00 pm on Christmas Day.

   (d)during school holidays, in addition to order 7.1, an extra day in each of the holidays at the end of the 1^st, 2^nd and 3^rd school terms and an extra two days in the school holidays at the conclusion of the 4^th school term.  The days are to be agreed between the mother and the father’s sister.

   (e)at such other times as may be agreed between the parties and evidenced in writing.

8. The children’s time with the father be supervised by the father’s sister, or her husband, or any other person agreed between the parties.  The supervision is to be of the nature that the supervisor must be reasonably accessible by the children at all times during their time with their father.

9. For the purposes of the children spending time with the father, the father is to cause the children to be collected from the mother by the paternal aunt and/or paternal uncle (or any other agreed supervisor) at the commencement of contact and the mother is to collect the children from the same the residence of Mr and Mrs E at the conclusion of contact.

10. The children communicate with the father by telephone each Wednesday between the hours of 6.00 pm and 7.00 pm.

11. For the purposes of the children communicating with the father by telephone, the father shall call the children on the landline at the mother’s residence and the mother shall ensure that the children are available to speak to the father.  In the event of the mother and children being away from the mother’s residence on any Wednesday between the hours of 6.00 pm and 7.00 pm the mother is to phone the father on his mobile phone so the children may speak with him.

12. The children’s time with the father be suspended on Mother’s Day if it should coincide that Mothers Day and the fathers Sunday with the children fall on the same day.  In such circumstances the father is to have a “make up” Sunday with the children as arranged between the mother and paternal aunt.

13. The father is restrained by injunction from consuming alcohol or using any non-prescribed drug while spending time with the children or for at least 24 hours before spending time with the children.

14. Both parties are restrained by injunction from denigrating the other party to or in the presence or hearing of the children or either of them.

15. Each party be authorised to obtain a copy of the children’s school reports directly from any school attended by the children or either of them.

16. Order 3 made the 3^rd December 2004 is, by consent of the parties and the Independent Children’s Lawyer discharged.

17. Within one month of the mother receiving her portion of the parties’ property settlement the mother is to pay to the Legal Aid Commission of NSW the amount of $1,650.00 in respect of the costs of the Court expert, Dr R.  The mother is to advise the Legal Aid Commission of NSW in writing as soon as agreement has been reached with the father about the property settlement and further advise the anticipated date of receipt of funds by her under that agreement OR alternatively advise as soon as the jointly owned property of the parties has been sold, whichever event first occurs.

Notations

1. The Court notes that the father has volunteered to undergo monthly urine screening tests to detect the use by him of cannabis, opiates and excessive alcohol use.  The father has also informed the Court and wishes it noted, that he proposes to consult with a Psychiatrist within one month from the date hereof and thereafter consult at intervals recommended by the Psychiatrist in order to ensure his mental health is monitored.  He also proposes to attend upon alcohol and drug counselling with an organisation or consultant recommended by Mr K a single expert in the proceedings.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 325  of 2004

Mr Gorman

Applicant

And

Ms Dreher

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties’ elder daughter born in October 1995 (11) and younger daughter born in October 2000 (6) are the children of the mother and the father.

2. The parties separated in November 2001 after about a seven year de facto relationship.

3. The father lives at W (the former matrimonial home) and the mother lives at B.  She occupies a flat at the rear of her mother's house.

4. Prior to the hearing before me the father has been exercising time with the children supervised by his sister. The supervision was required by the mother because of the father's history of alcohol and drug abuse.

The Issues

1. The Independent Children's Lawyer in her case outline document, identified the issues for determination between the parties.  I agree that the identified issues emerged as those for determination during the course of the case.  The identified issues are as follows:

   1.The amount of time to be spent by the children with their father.

   2.Whether the time the children spend with their father should be supervised.

   3.What is the state of the father's mental health?

   4.What is the father's current alcohol and/or drug dependency/use?

   5.What is the mother's willingness and/or ability to facilitate a meaningful relationship between the children and their father?

   6.What is the capacity of each party to provide for the children's needs including emotional needs?

   7.What are the wishes of the children in relation to spending time with their father?

2. In the lead up to the trial two single expert’s reports have been provided by

   
   

   Dr R and three single expert’s reports have been provided by

   
   

   Mr K.  I will refer to those reports during the course of these reasons.

Competing Applications

1. The father's application now appears as exhibit F1, being a minute of order tendered during the course of the hearing.  In broad terms the father seeks time with the children on a progressing basis commencing with each alternate Sunday from 10.00 am to 6.00 pm, supervised by his sister;  thereafter progressing to alternate weekend from after school Friday to 6.00 pm Sunday supervised by the father’s sister;  and in approximately twelve months time moving to unsupervised time with the children each alternate weekend from after school Friday until 6.00 pm Sunday at the father's residence.  The father sought further orders in relation to spending time with the children during school holidays and other special occasions.

2. It is part of the father's application that even whilst being supervised by his sister she have a discretion to allow some unsupervised contact.

3. At the commencement of the trial the mother tendered a minute of proposed orders sought by her.  These orders provided for the father to spend time with the children each alternate Sunday from 10.00 am to 6.00 pm and on two occasions each year from Saturday at 10.00 am to Sunday at 6.00 pm.  There were also provisions for other times for the father to see the children.  It was a condition of the time the children spend with their father that it be closely supervised.  There were other conditions in relation to the father undertaking psychiatric treatment.  In submissions the mother withdrew that part of her minute of order which provided for the children to have two occasions of overnight time with their father each year.

Background Facts

1. This case really only requires a consideration of the facts which commenced shortly before the separation and which relate to the father's health together with the events taking place post separation.

2. The parties separated in November 2001.  Prior to that time and in about January 2000 there was an incident involving the father and the driving of his motor vehicle.  This incident is referred to as "road rage" by the mother in her affidavit material and is set out in paragraph 75(e) of the mother’s affidavit sworn 16 February 2006.

3. In February 2003 the father was admitted to G Hospital and later transferred to the psychiatric unit at S Hospital following an alleged attempted suicide.  He was discharged into the care of his sister and commenced to live with her after that admission.

4. In March 2003 the father commenced to spend time with the children supervised by his sister.

5. In May 2003 there was a further admission to hospital by the father because of his mental health.  On this occasion he was the subject of an order for detention in a mental health facility under the Mental Health Act.

6. During 2003 and until 12 June 2004 the father exercised time seeing his children under the supervision of his sister.  On 12 June 2004 the father collected the children from his sister's residence (without her knowledge or consent) and took the children to the former matrimonial home at W.  During late June and early July it appears that the father's mental state became unbalanced again.  The mother alleged threats by the father during this time.  I accept her evidence on this point and also accept that she became fearful that the father was intending to remove the children from her.

7. On 14 July 2004 an interim apprehended violence order was made against the father. This was dismissed at the final hearing of that matter.

8. The mother says that during the course of the relationship between the parties the father smoked marijuana regularly and consumed alcohol to excess.  There seems to be little issue about this although the father says that he smoked marijuana with the mother.  The father says that he first tried marijuana when he was in Year 7 at school.  When he was about 15 years of age he left school and commenced smoking marijuana regularly.  His description leads me to the conclusion that he was smoking heavily.  He commenced drinking alcohol when he left school at the age of 16 and at times he drank quite heavily.

9. The father says that during the marriage on weekends he quite often had episodes of binge drinking.

10. At the time of the elder daughter’s birth the father was working as a Production Manager in Sydney and commuting to and from work each day.

1. Following the separation the father spent time with the children on most weekends.  The father's overnight time with the children was supervised by the mother who stayed in the former matrimonial home with the children and the father.  This arrangement continued until about late 2002 when the father complained about the necessity of the mother to stay overnight.  The parties then reached a further agreement that the father would have contact with the elder daughter each alternate weekend from Friday until Sunday and with the younger daughter each alternate Saturday only.

2. In December 2002 the father was apprehended by police and charged with a drink driving offence.

3. In February 2003, on the father's own admission, he attempted suicide.  It was a weekend on which he had contact with the elder daughter.  He returned the elder daughter to the mother and said he was feeling low as he was about to lose his licence through drink driving.  He thought this would mean the end of him being able to spend time with the children.  He consumed large quantities of alcohol and took prescription drugs.  He was taken to the G Hospital and thereafter he attended at S Hospital for assistance.  He spent about three weeks in S Hospital.

4. Sometime after being discharged from S Hospital the father, apparently while affected by alcohol, rang the mother and read the final scene from the play Romeo and Juliet onto her answering machine.  The mother became concerned about this and rang the father's sister.  As a result of this the father was scheduled and was held in S Hospital.  He stayed there for approximately four weeks and then became an outpatient for a further four weeks before he was discharged.

5. Following the second stay in S Hospital the father moved to reside with his sister.  The mother permitted weekend contact under the supervision of the father’s sister.

6. In June 2004 the father moved back to the former matrimonial home at W.

7. Following those proceedings the father agreed to having supervised contact with the children at his sister’s house.

8. Over the Christmas period in 2004 and the New Year period of 2005 the father began binge drinking.

9. On 28 February 2005 the father was apprehended for drink driving.  His licence was suspended for four years.  He has since been advised that the RTA have suspended his licence for a further five years. 

10. On 6 March 2005 there was another occasion when the father was apprehended driving with a greater blood alcohol reading than that allowed by the law.  He was also driving whilst his driver licence had been suspended.

11. At Easter time 2005 the father entered into M House which is a detox centre.  On 10 May 2005 the father was accepted into F House which is a Salvation Army detox centre and from there he went to B House.  The program he entered into at B House was a ten month program.  The program was for drug and alcohol rehabilitation.  The father did not complete the program at B House.  He consumed liquor whilst in the program and was expelled.  The father said he did it knowingly and with the intention of being expelled.

12. The father said he stopped smoking marijuana upon entry into B House.  He says he has not smoked since.

13. The father claims difficulties in being able to have telephone contact with the children.  He attributes those difficulties to the mother.

14. The father said he was unable to continue his rehabilitation at B House because he had to deal with the mortgage on the former matrimonial home.  He said he had received threats from the mortgagee proposing to foreclose.  He left the program in late August/early September 2005.

15. Since exiting B House the father said he has been practicing controlled drinking.  He claims he now only drinks light beer.  He says he does not drink every day.

16. In September 2005 the father completed a course that allowed him to obtain a forklift licence.  He was hoping to find a casual job as a forklift driver.

17. Sometime during 2005 or early 2006 the father commenced undertaking High School years 11 and 12 through I College.  He is hoping to complete his Higher School Certificate and move on to university to study environmental science.

18. The father's affidavit is replete with complaints of not being able to exercise telephone contact with the children.

19. The mother’s affidavits set out in diary like fashion, transcripts of conversations with the father and the children.  The conversations mostly suggest inappropriate actions/words on the part of the father.

20. The father is undertaking study to complete his Higher School Certificate.  He attends I College at G.  He attends upon a counsellor there.

Credit

The Mother

1. The mother gave her evidence in a straight forward and apparently honest manner.  There was nothing about the content of her evidence or the manner of delivering her oral evidence which led me to the conclusion that she was untruthful.  I found her evidence to be more reliable than that of the father and overall I preferred her evidence to that of the father. To the extent that I have any reservations about her evidence I set them out later in these reasons.

The Father

1. The father gave his evidenced in a straightforward and mainly honest manner.  I was left with the feeling that he understated his drinking habits and I had no confidence that I had an accurate picture from him of his alcohol consumption either before or after he underwent the course at B House.  I was also left unable to accept his explanation for the circumstances surrounding his premature departure from the B House program.  He said in his oral evidence that he had left the program because he was being pressed to pay mortgage payments. He said he needed to obtain employment and pay the mortgage.  Consequently he deliberately consumed alcohol so that he would be expelled from the course.  In fact when he left the program he did not obtain employment. He elected to undertake study.  He met the outstanding liability to the mortgagee by drawing on his superannuation entitlement.

2. There was no satisfactory explanation from the father as to why he had to consume alcohol to leave the program. He could have simply walked out of the B House.

3. The father left the course after three months of a ten month course. He really didn’t give the program a chance to help him become sober and to maintain abstinences.

The father’s sister and her husband

1. Both these witnesses were impressive people.  If it was possible for me to hand out awards this couple would be at the top of my list in the award for “never failing family support”.  They are the type of people who restore your faith in the human race.  At a time when it would be very understandable for the father’s sister’s family to cast the father adrift from their family support they provide him with support.  When he abuses their trust they provide him with more support.  This occurred with his removal of the children without their consent.  They have been able to maintain a good relationship with the mother notwithstanding the support they provide to the father.  The children are exceptionally lucky to have an aunt and uncle of such high quality.

The Mother’s Mother

1. This witness added little to the evidence in the case.  Nonetheless I felt she gave her evidence honestly.

Evidence of Dr R

1. Dr R provided two written reports for the Court.  The first was dated 6 July 2005 and the second dated 24 January 2007.  In the first report Dr R set out the history of the relationship from the mother’s perspective.  I accept that she honestly recited the history as she knew it.  I accept the mother’s reports to Dr R that the father displayed strange and bizarre behaviour at the time of the separation and following.  This behaviour worried the mother and in my opinion she is entitled to remain troubled by the potential for him to display bizarre behaviour to the children in the future if his time with them was unsupervised.

2. Dr R spoke to each of the children.  The elder daughter said that she wanted her parents to stop fighting.  She reported enjoying activities with her father such as snorkelling.  The younger daughter set out the activities she enjoys.  She was unable to express an opinion about future time with her father.

3. The father told Dr R that the mother did not trust him with over night contact.  He said he decided to drink “to spite her”.  He reported that his sister had allowed him to take the children to the movies alone.  The mother had found out and was angry.  He reported that he had been binge drinking over Christmas (2004).  He had four days of solid drinking.

1. In interview the elder daughter said “It is nice to see him (father).  But I want him to stop talking to me that way.”

2. The children were seen with their father.  They were pleased to see him.  They kissed him.  They talked.  The father complained about the way his sister treated him.  He said she treated him like a child.  Historically the father had been cared for by his sister after his mother died when he was 15 years of age.  The discussion between the parents with Dr R indicates that the elder daughter is used as a messenger between the parties.  It further seems that the mother deliberately hides details of planned activities from the children so that they are unable to provide the father with any information.

3. Under the heading of “Opinion” Dr R says the following about the mother.

   “I formed the view that the two children had a close and loving relationship with [their mother].  They appeared to be developing well in her care.  I formed the view that she was a capable caring parent.  She appeared to have a great deal of insight into their needs.  She appeared to be attempting to be as well balanced as possible with the children and has encouraged the children to see the father.  I believe that she has good intuition and good insight.  The dilemma however is that she is unsure as to how safe the children are in [the father’s] care.  If she places restrictions on the contact then [the father] interprets this as a malicious act on her part.  However I do not believe that she has attempted to be malicious.  I believe that her intentions have been in trying to maintain the relationship with the children and their father but also she has attempted to ensure their safety.”

4. In relation to the father Dr R said that he formed the view that the children had a close loving bond with the father.  He said he did not think that the father would deliberately harm the children however “his use of drugs and alcohol has created uncertainty and his behaviour can be unpredictable.”  He said that if the children were with their father at a time when he was under the influence of alcohol or marijuana “they could potentially be at serious risk of harm.”

5. Dr R believed that “[the elder daughter] is happy living with her mother and also wants to continue having contact with her father as long as she doesn’t feel under too much pressure and stress from him.”

6. At the time Dr R saw the father he saw no evidence of psychiatric delusional disorder.  He did not appear to have great insight to the extent of his alcohol and marijuana problem.  Dr R believed the father has significant personality difficulties.  He said he will need ongoing supervision monitoring by a psychiatrist.

7. Under the heading “Summary” Dr R says “Should [the father] have unsupervised contact, I believe that [the mother’s] anxiety would be extremely high for good reason.”  In relation to unsupervised contact he said, “I believe there is an extremely high chance that there would be major problems of safety for the children …  He has poor impulse control and significant anger problems.”

8. Dr R supported the children residing with their mother and having supervised contact with their father.  He further recommended that the father continue to have psychiatric supervision and further alcohol and/or drug rehabilitation.

9. Dr R’s second report was dated 24^th January 2007.  He reported that the father had completed 3 stages of a 6 stage rehabilitation process.  The process was to take 10 months and the father left after 4 months.  He further recorded that at the time the father left school he was using 40 cones per day of marijuana.

10. The father told Dr R that he practices alcohol controlled drinking.  He does not drink from Monday to Thursday.

11. When interviewed for the second report the elder daughter was more reserved in her father’s company.  When asked about her father she said “Okay.  Every now and then he will make me upset.  He yells at me about my manners.  He makes me upset.” “She said that [her aunt and uncle] were very good and they were happy to see them.” The younger daughter said “Fine.  Sometimes he yells.  It’s not a worry though.  I worry about what he will say.  Sometimes he rings outside the time.”  The elder daughter added “He says I don’t do enough homework.”

12. Dr R concluded that the children have a close and loving relationship with their mother.  He said the father still had a close bond with the children.  He said it was commendable that the father had attempted to create more stability in his life.  He has made attempts to reduce his alcohol intake however Dr R said it was of concern that he interrupted his rehabilitation and rejected the path of abstinence for one of controlled drinking.  He believed there is still some concern about the father’s unpredictability.  He also thought it was of concern that he has difficulty relating to his family.  This was a reference to the evidence that two of the father’s siblings will not talk to him.

13. In updating the children’s wishes Dr R said the younger daughter did not have any particular wish to state however it was clear to him that she enjoyed seeing both her parents.  The younger daughter however, showed a little reluctance and concern about being left alone with her father.  Dr R concluded that the elder daughter was probably genuinely worried about being placed under pressure from her father.

14. In relation to the father’s psychiatric condition Dr R said:

    “[The father] had a long history of psychiatric problems.  His psychiatric problems and psychosis were triggered to the use of psycho-active drugs, such as cannabis.  [The father] has still had a very unstable life.  There has been a lot of tragedy for the family.  I also formed the view that he had anti-social and dependent personality problems and that he was likely to have ongoing problems in his interpersonal relationships and probably also current issues to do with alcohol and drugs.  He didn’t appear to have great insight into his problems and he tended to blame others for his situation.  I also believe that he should continue to see a psychiatrist to monitor his progress.”

15. Under the heading “Summary”, Dr R says the father’s “compliance and insight into his condition has been poor.”  “Should [the father] have unsupervised contact I believe that [the mother] would have understandable anxiety and concerns.  [The father] will continue to have personality difficulties with poor impulse control, anger problems and probably further problems with alcohol.”  “Should the children continue to have supervised contact with the father I believe that although they will enjoy the contact with their father, I believe that eventually the supervision will become problematic and that the father will become increasingly angry and disenchanted with the contact and ultimately may withdraw from seeing the children.”

16. Dr R recommended a gradual introduction of unsupervised contact between the children and their father.

17. In his oral evidence Dr R corrected some parts of his reports.  These corrections are on the record and include deleting reference to the father having used heroin.  He conceded that some of the history attributed to the father in terms of his drinking habits may have been misunderstood by him.

18. When asked in evidence about the difference for the father of managing abstinence from alcohol as opposed to controlled drinking Dr R said that controlled drinking was more difficult to manage.  Many people who experience problems with alcohol try controlled drinking but fail.

19. When asked about his recommendation 7 in his report Dr R said the time with the father should be reduced if the father is not continuing with counselling because he felt there was a significant chance the father would revert to alcohol abuse.  He said it takes about 3 years to stabilise.  He said he would not recommend over night time for the children with their father because it increases the risk of alcohol use.  It would increase the mother’s anxiety and increase the elder daughter’s anxiety level.  Dr R said there should be two years of sobriety before over night time for the children with their father.

20. Reports were prepared by Mr K, Behavioural scientist.  His first report was prepared in June 2006.  In this report Mr K provides a lengthy history gathered from each of the parties.  He conducted breath analysis testing on the father which showed nil alcohol present.  Other tests were carried out which showed no evidence of recent drug use or excessive alcohol use.

21. During the interview process Mr K noted in the father a poor ability to remain focused and a tendency to oversupply information.  He said this may be just a facit of his personality, however, he said “There is evidence that chronic use of cannabis has been associated with attentional problems both with regard to speed of response and with regard to accuracy of response”.

22. Mr K said that “[The father] impresses as a person who is very much in the process of coming to terms with having been very drug and alcohol dependant and with the need to re-make his life without reliance upon intoxicants.”   He further said “He has experienced an episode of major psychiatric disturbance and continues to impress as quite fragile.  There is a need to consolidate the genuine gains he has made in psychological well being, life goals and lifestyle.  When his (early) stage of recovery from substance abuse is also taken into account this author would predict that [the father] will need more time and assistance to make a successful adjustment to functioning, problem solving, dealing with people and daily affairs and managing conflict.”

23. Under the heading “Opinion” Mr K said:

    “This author would characterise [the father’s] situation in relation to alcohol and cannabis use as of a person who has been dependent;  who has ceased regular intense use;  who recognises the negative impact of such use;  but who has not yet fully accepted their susceptibility to substance dependence.

    This author has concerns about [the father’s] continuing consumption of alcohol, given his history.  At interview, he indicated that he was able to restrain his cannabis use in the past but that he would resume in a “social situation”.  In partial explanation of his recent alcohol binge he indicated that he was giving support to a friend …

    He would benefit from counselling to support the lifestyle adjustments he has made and the positive goals he has been pursuing.  …”

24. In his second report provided in January 2007 Mr K updated the history provided by the father.  He then concluded as follows:

    “[The father] described his mood as “great in general” with some “restlessness” as the hearing approaches.  Sleep and appetite were both described as positive.  [The father] denied any current rumination about the issues discussed in this author’s previous report.  He neither reported nor exhibited any gross anomalies of ideation pertaining to his ex-wife or other family members.  The contrast between his presentation at this follow-up interview and the behaviour reported of him in [the mother’s] earlier affidavit is noteworthy.  In the absence of additional data to the contrary this author has formed the impression of gradually improved psychological well being and general functioning.

    As this author suggested [the father] has been seeing a counsellor.  This person is attached to the senior college attended by [the father].”

25. Mr K further commented on the receipt of testing results undertaken by the father which were all negative to the substances screened.

26. On the 29^th January 2007 Mr K commented on further test results provided to him by the father.  Again the tests were negative to the substances screened.

27. In his oral evidence Mr K said that the father seemed to have a limited understanding of interpersonal relationships.  He said the father’s recovery from alcohol abuse and drug abuse has been self directed and so the father remains treatment naïve in drug and substance use.

28. Mr K was not overly concerned about the father attending upon a counsellor attached to his TAFE College as he thought the counsellor would on refer him if the father required specialist assistance.

29. Mr K said that ongoing use of alcohol by the father was not a good idea for him.  He said he would be able to recommend a specialist counsellor for the father.

30. The counsel for the mother asked Mr K about the possibility of the father understating the amount of alcohol he is using.  Mr K said it is not uncommon for alcoholics to minimise the amount or frequency of alcohol use.  If he is using more than that reported then Mr K says it will put at risk his general well being and his studies.

The Issues

1.The amount of time to be spent by the children with their father

1. I propose to deal with this issue in the conclusion to my reasons.

   2.Whether the time the children spend with their father should be supervised

2. I propose to deal with this issue in the conclusion to my reasons.

   3.What is the state of the father's mental health

3. This issue has been dealt with by both Dr R and Mr K.  I accept their evidence in relation to this aspect.  I have set out the relevant portions of the reports and oral evidence of both those experts which touch on this subject.

   4.What is the father's current alcohol and/or drug dependency/use

4. I accept that the father has not been using cannabis for somewhere in the region of 19 months.  In his discussions with Mr K he did not rule out ever using cannabis in the future.  I am satisfied he will not use cannabis whilst spending time with his children.  I am satisfied he is unlikely to use cannabis in the near future.

   5.What is the mother's willingness and/or ability to facilitate a meaningful relationship between the children and their father?

5. In broad terms I accept the mother is intending to facilitate a meaningful relationship between the children and the father.  During her cross-examination by the father’s counsel I had concerns about some of her answers to questions about the way in which she encourages the children to spend time with their father.  In particular she was asked about any occasion she has told the children she wants them to go and see their father.  She could only recall one occasion and that was in July 2006.  Dr R was obviously very impressed with the mother and her care for the children.  Overall I was very impressed by the mother and the way in which she has been able to continue a relationship with the father’s family notwithstanding the separation of the parties.  I also must record that I appreciate how difficult it must have been for the mother to deal with the father during times when he was mentally unwell and also whilst he was consuming alcohol to excess.

   6.What is the capacity of each party to provide for the children's needs including emotional needs?

6. The evidence of the experts clearly addresses this matter.  The mother is said to be able to provide for the children’s needs both physical and emotional.  She is assessed by Dr R as doing a good job as the residence parent.  The father has significant problems in relation to his personality and general mental health.  He also has a problem with alcohol abuse.  These matters are clearly set out in the evidence of the experts and I do not repeat them here.

   7.What are the wishes of the children in relation to spending time with their father?

7. The children’s wishes are set out in the report of Dr R and in the evidence of the mother.  I have relied upon the report of Dr R as being the most reliable indicator of the children’s wishes.  I have repeated the evidence of Dr R in relation to wishes in these reasons.

Primary Considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. This case involves the potential for the Court to make further orders for the time the children spend with their father to be supervised.  The father has been spending time with the children each alternate Sunday for some time prior to the hearing.  The frequency and extent of the time the children spend with their father, especially where that may be supervised, raises the question as to whether that might amount to the children having “a meaningful relationship” with their father.  The word “meaningful”  needs to be read in it’s broadest sense to include the amount of time the children spend with their father, the frequency of occasions they see him, the nature of the relationship and its ability to grow, a consideration of that term from the child’s perspective and a consideration of that term from the father’s perspective.

2. There is no doubt from the father’s case that he regards being able to spend time with his children each second Sunday under supervision as insufficient to enable a meaningful relationship between the children and himself.  To the extent that the term “meaningful relationship” refers to the time the father is able to spend with his children on a regular basis it is easy to see how the father could say it is not meaningful.

3. It must be said that if it was not for the concerns as to the effect on the children of the father’s psychiatric and emotional health or his abuse of alcohol or use of non prescribed drugs the children might reasonably be able to share their time between their parents equally.

4. Within the limits placed on the Court by the facts in this case I propose to make orders which will provide the best circumstances to enable the children to have a meaningful relationship with their father.  The consideration of those words must be primarily from the children’s perspective.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. This case has largely focused on assessing the risk to the children from their father.  The question which needs to be determined is whether the children would be exposed to an unacceptable risk of harm if they were to spend time with their father unsupervised.  The evidence establishes that a risk to the children’s well being would arise as a result of the father consuming alcohol to excess whilst they were in his care, consuming cannabis whilst they were in his care or decompensating in terms of his mental health whilst they were in his care.

Additional Considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. I accept that the wishes of the children are as set out in the reports and oral evidence of Dr R.  I have set out those matters earlier in these reasons.

   (b)the nature of the relationship of the child with:  (i) each of the child’s parents;  and (ii) other persons (including any grandparent or other relative of the child)

2. Dr R was engaged as the Courts expert to report on these matters.  I have referred to that evidence earlier in this judgement.  I accept the relationship between the children and each parent and with the paternal aunt and uncle is as described by Dr R.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. I have touched on this earlier in these reasons.  I accept that each of the parents has attempted to facilitate and encourage a close and continuing relationship between the children and the other parent subject to the reservations I have referred to earlier.

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents;  or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

2. In the event of the Court making orders for the children to spend time with their father for periods of time and under circumstances not supported by the mother I accept the evidence of Dr R that it would make the mother and probably the elder daughter very anxious.  Already the mother’s evidence is that the elder daughter is resistant to spending time with the father.  I accept that evidence.  The dilemma for the Court is whether that resistance is based upon the elder daughter’s own concern about spending time with her father or based upon what she perceives her mother would like, or both.  On balance Dr R was of the view that the elder daughter probably was expressing concerns which were genuinely held by her.  I accept that view is soundly based and so find that to be the fact.

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This matter did arise for consideration in relation to the cost of the transport of the children on the occasions they are to spend time with the father.  The mother receives little or nothing from the father for the financial support of the children.  She has a limited income of her own.  She is residing in premises owned by her mother.  She owns a car which she has used to transport the children to spend time with the father.  At Court on the last day of the hearing the father, through the good auspices of his sister, volunteered to do some of the travel.  I propose to make an order which will provide for the mother and the father (through the paternal uncle and aunt) to share the travel for the occasions when the children spend time with their father.

(f)the capacity of:  (i) each of the child’s parents;  and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. The evidence of Dr R would support a finding by me that the mother has the capacity to provide for the children’s needs including emotional and intellectual needs.  I accept Dr R’s evidence and so find in favour of the mother.  The father, by contrast must be seen as not having the capacity at this time, to adequately provide for the children’s emotional needs.  There is already evidence of conflict developing between the father and the elder daugfhter.  She accuses him, through the mother, of placing pressure on her to divulge information about her mother’s activities.  She is also concerned about her father’s criticism of her.

2. Given the evidence of the Court experts I must conclude that for the time being there would be concern about the father’s capacity to provide for the children’s emotional needs in a wholly satisfactory way.

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

3. The elder daughter is developing into a pre-teenage girl.  She is clearly a sensitive child and aware of her parents conflict.  She has been drawn into the parents’ dispute in that she has been required to meet with the Family Consultant and answer questions about her preferences for spending time with her father.  To the extent that she is uncomfortable about the arrangements for spending time with her father she must reasonably be expected to voice further objection in the future.  It is very important therefore that the arrangements provide a degree of comfort to the elder daughter if the time with her father is to be worthwhile to her.

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:  (i)    the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii) the likely impact any proposed parenting order under this Part will have on that right

4. This consideration does not apply in this case.

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

5. Subject to the specific criticisms of the mother raised by me herein I find that she has demonstrated and has an appropriate attitude to the children and the responsibilities of parenthood.  I am critical of the father in relation to his attitude to the responsibilities of parenthood.  He knows of the mother’s position in relation to his continued use of alcohol, namely that he cannot be trusted to remain sober if he has unsupervised time with the children, yet rather than practice abstinence he chooses to embrace “controlled drinking”.  This approach is in my opinion not placing the needs of the children ahead of his own needs and therefore in my view demonstrates a degree of irresponsibility to his role as a parent.

   (j)any family violence involving the child or a member of the child’s family

6. This is not a matter which has loomed large in this case with the exception of one matter.  That one matter relates to the father’s “road rage”.  The mother describes an event whilst the father was driving which exposed the father, the mother and the children to potential danger.  The question which arises from this incident relates to the father’s anger management skills as well as his driving skills.  Both these matters raise concerns for the children if the father exercises unsupervised time with them.

   (k)any family violence order that applies to the child or a member of the child’s family, if:  (i) the order is a final order;  or (ii) the making of the order was contested by a person

7. This consideration is not applicable in this case.

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

8. It is preferable to make final orders.  It is very much in the children’s best interests that the father conquers his battle with alcohol.  If he does then it may be time for the court to re-consider the question of supervised time with the children.  This matter should not be re-visited by the Court inside a period of 3 years.  On the evidence of the expert witnesses it would take that period of time for the father to practice abstinence and show he can sustain his abstinence from the use of alcohol.

   (m)any other fact or circumstance that the court thinks is relevant

9. The mother has raised her concern about the father’s criticism of the elder daughter in relation to her school work and extra curricular activities.  This arises because the elder daughter has complained to the mother about some of the father’s words spoken to her.  The mother said that the elder daughter now seems to be of the opinion that nothing she achieves is ever good enough for her father.  The reported criticism by the father is that the elder daughter is not fit enough to participate in sport, she does not do enough homework and at one time stated disbelief that she achieved a very high mark for school work.

10. It seems on the evidence that there is some validity to the claims as made by the elder daughter.

11. As a result of the statements made by the father to the elder daughter, which she found hurtful, she does not wish to be placed in a position where her father can make these types of statements to her.  She wants to know that her uncle and aunt are near-by in case she needs them as a refuge.

Conclusion

1. Having considered all the above matters I conclude that the children would be exposed to an unacceptable risk of harm if they were to spend time with their father unsupervised.  I conclude that the father has not seriously addressed his alcohol use.  He has been told by experts that the only way to address his problem with alcohol is through abstinence.  He does not accept that.  He has, I find, little insight as to the nature of the condition he has.  He does not seem to understand how serious a problem his alcohol use/abuse is for him.  Apart from anything else he must understand the effect it has on his children and his former partner.  If he was to embrace abstinence the reaction of the children’s mother to the prospect of his having more extensive time with the children may well be different.  The attitude of the experts engaged for this hearing in relation to the time they would recommend for the children to spend with the father may well be different.

2. The father has suffered two serious episodes of mental ill health.  These have resulted in his hospitalisation.  He has required the assistance of ongoing help from mental health workers.  These are matters which should reasonably and objectively be seen as appropriate matters to raise concern in the mother for the safety of the children if they are to have unsupervised time with their father.  The father needs to follow the recommendations of the experts who gave evidence in this case if he wishes to alleviate those concerns for the mother.

The Orders to be made by the Court

1. I need to consider section 61DA of the Act.  This section specifies a presumption which the Court needs to address.  The presumption is that parents have equal shared parental responsibility.  The presumption does not apply in some cases and may be rebutted in others.  The presumption can be rebutted if the Court is satisfied it would not be in the children’s best interests for the presumption to apply.

2. Experience shows that in most cases the presumption does apply and there is no issue in the case that it should not.  In a case with facts such as those seen in this case the Court does have to consider whether the presumption should apply whether the parties ask for that determination or not.

3. In the minute of order tendered by the Independent Children’s Lawyer (exhibit CR2) an order for equal shared parental responsibility was sought.  In the father’s exhibit F1 the orders sought by him are silent on the question of equal shared parental responsibility.  The mother sought an order for sole parental responsibility.

4. In submissions the Independent Children’s Lawyer conceded that there may be some difficulty involved in the parents being able to successfully work within an order for equal shared parental responsibility.

5. I have concluded it would not be in the children’s best interest for their parents to have equal shared parental responsibility.  I conclude on the evidence I have heard that it would be difficult for the parties to be able to sensibly and responsibly discuss the types of matters which need to be determined by the parents for the children were such an order in place.  I am of the view that to require the parties to discuss and agree upon such matters would be likely to lead them into further conflict and thereby be counter productive to the children’s best interests.

6. I propose to order that the mother be solely responsible for the long term decisions relating to the welfare of the children.  I will however, require her to consult with the father about matters such as the children’s choice of school, extra curricular activities in which the children should participate and any change in the children’s residential address with her.  This will mean that the mother will have to seek the father’s views on any such matter however, she will not have to negotiate an agreement with him.

7. I also propose to order that the mother promptly inform the father of any significant health problems for the children and any significant awards and achievements of the children.

8. I propose to make orders for the children to see their father on one occasion each fortnight.  This is to be supervised and there is to be no discretion in the supervisor to allow any unsupervised time between the father and the children.  I propose the father should have additional time with the children during school holidays and they should see him on Father’s Day.  The children should have telephone time with their father on each Wednesday.  The evidence discloses that there have been difficulties between the parties about telephone calls between the father and the children.  The elder daughter has been concerned about some of the content of the calls.  The evidence suggests that the elder daughter is becoming resistant to having telephone conversations with the children.  Multiple days each week for the children to have telephone conversations with their father is complicated because of their other after school activities and other outings with their mother.  It is I conclude in the children’s best interests to have one dedicated day when they receive telephone calls from their father.

9. I propose to make notations on the Court orders which reflect the stated intentions of the father.  The matters referred to in those notations, if embraced wholeheartedly by the father will be very much in his best interests and the children’s.  They will also serve as a reminder to the Court about the stated intentions of the father should this matter ever come before the Court again.

Other Orders

1. I am required to consider what orders of the Court best serve the best interests of the children.  That requires consideration of orders not necessarily sought by either party or the Independent Children’s Lawyer.  In this case I have done that.  The areas of concern for me were canvassed with the parties during submission.  There are no other orders I would consider making.

Costs Application by the Independent Children’s Lawyer

1. At the conclusion of the hearing the Independent Children’s Lawyer made an application for the mother to contribute to the Independent Children’s Lawyer’s legal costs.  I was advised that as the father was in receipt of a legal aid grant he would not be required to contribute to the costs of the Independent Children’s Lawyer.

2. I was able to hear something of the parties’ broader financial circumstances.  I was told that there is the former matrimonial home which is currently occupied by the father.  The property has a small mortgage registered against it and has a value asserted to be in excess of $300,000.  Given the existence of the property I do not understand why the father is to be excused from contributing to the costs of the Independent Children’s Lawyer.

3. An earlier order was made requiring the mother to contribute towards the cost of the experts reports however, she has not made any payment under that order.

4. The mother works part time.  She receives a total of $21 per month as child support from the father.  Her income is not great.  If she was required to pay the amount of $1,650 as sought by the Independent Children’s Lawyer now then the children would suffer due to the mother’s reduction in available resources to meet their needs.

5. I conclude that the amount sought by Independent Children’s Lawyer is modest and should be paid.  I propose however to allow the mother time to pay and allow that time to run until she receives her property settlement.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  27 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GORMAN & DREHER