GORTON & GORTON
[2018] FamCA 799
•5 October 2018
FAMILY COURT OF AUSTRALIA
| GORTON & GORTON | [2018] FamCA 799 |
Family Law Act 1975 (Cth) Deiter & Deiter [2011] FamCAFC 82 |
| APPLICANT: | Ms Gorton |
| RESPONDENT: | Mr Gorton |
| FILE NUMBER: | DUC | 20 | of | 2018 |
| DATE DELIVERED: | 5 October 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 17 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms De Vere of Counsel |
| SOLICITOR FOR THE APPLICANT: | Jacqueline Kyle Family Law |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | Mr Gorton in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Maddox of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Dubbo |
Orders
That the children X born … 2001, Y born … 2003 and Z born … 2006 (‘the children”) live with the mother.
That the children X and Y spend time with the father in accordance with their wishes.
That the child Z (‘the youngest child”) spend time with the father:
(a) During school term from after school to 7 pm each Wednesday;
(b) During the short school holidays from 10 am to 4 pm on two days during the school holiday period as agreed between the parties or failing agreement, on the first and last day of the school holiday period;
(c) During the December/January school holidays from 10 am to 4 pm on six days during the school holiday period excluding 25 December and the period between 1 January and 14 January as agreed between the parties and failing agreement on the days set by the mother.
The father shall take the youngest child to all sporting events, social events and parties that shall take place during his time with the youngest child. If the father is not willing to take the youngest child to these events then the father’s time with the youngest child shall be suspended on that date.
In the event that the youngest child expresses a wish to return to the mother during his time with the father then the father shall return the youngest child to the residence of the mother.
The father shall collect the youngest child from the residence of the mother at the beginning of his time with the youngest child and shall return him to the residence of the mother at the end of his time with the youngest child.
That pending further order, the father shall undergo random blood tests to identify the level of carbohydrate deficient transferrin in the father’s blood (“CDT Testing”) and such testing shall occur as follows:
(a) The father shall do all acts and things necessary to obtain within seven days of the date of these Orders a pathology test request form from his general practitioner for CDT testing;
(b) That the mother notify the father by SMS or text message of her request for CDT testing;
(c) That the father is required to undertake such testing within 24hours of notification by the mother;
(d) That such requests for CDT testing occur no more than two times per month;
(e) That the test be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of alcohol abuse;
(f) That the father do all acts and things and sign all documents to authorise the testing laboratory to release the test results to both the mother and the mother’s solicitors.
(g) That the cost of the test be borne by the father; and
(h) That in the event a result is returned indicating positive for a tested substance, or the father fails to comply with a relevant request, the youngest child’s time with the father under these Orders shall be suspended until further Order.
(i) The father shall supply the results of any such testing to the solicitor for the mother and the mother within 24 hours of his receipt of such test results.
The time spent by the father with the youngest child pursuant to Order 3 shall be conditional on the father:
(a) Completing a Parenting After Separation course and providing to the solicitor for the mother a certificate showing that he has successfully completed a course;
(b) Not consuming alcohol in the 24 hours prior to him spending time with the youngest child and during his time with the youngest child;
(c) Complying with the requirements of Order 7;
(d) Spending such time with the child in a public location as agreed between the parties.
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 Gorton & Gorton 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 PARRAMATTA |
FILE NUMBER: DUC20/2018
| Ms Gorton |
Applicant
And
| Mr Gorton |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties who separated in January 2017 after the breakdown of their lengthy marriage have three adolescent children.
Although the two older children spent time with their father on a number of occasions between January and December 2017 their relationships with him have become strained and they no longer wish to spend time with him.
The youngest child, a boy aged 12 has been spending time with his father each week from Tuesday after school until Friday morning since May 2018. The mother contends that this is a parenting arrangement which was unilaterally imposed by the father but is not in the child’s best interest as he poses a risk of harm to the child. She seeks orders that would see her have sole parental responsibility for the children, the children live with her and the two oldest children spend time with the father in accordance with their wishes. She proposes orders that the youngest child spend time with the father from after school till 7 pm each Wednesday and during the school holidays for defined six hour periods that the father abstain from alcohol use when with the child and that his alcohol use be monitored and other associated orders.
The father disputes the mother’s contention in relation to any risk of harm posed by him and seeks orders that he and the mother have equal shared parental responsibility for the children. He agrees that the children should live primarily with their mother but proposes on an interim basis that the youngest child continue to spend time with him for three nights each week and also one weekend each month and half of the school holidays and that the oldest two children spend time with him in accordance with their wishes. The father also contends that the mother’s partner poses a risk harm to the oldest child and seeks an order restraining the mother from permitting her partner being alone with the oldest child.
The Independent children’s lawyer (“ICL”) proposes orders that the parents have equal shared parental responsibility for the children, the children live with the mother and the youngest child spend time with the father as the father proposes. The ICL does not support the father’s proposal for a restraint upon the mother but does support the mother’s proposal with respect to monitoring the father’s alcohol use and also proposes an order that the parties participate in family therapy.
In the course of the proceedings as the mother raised a number of matters relating to an alleged risk of harm posed by the father to the youngest child the issue arose of the father’s time with this child continuing pending delivery of these reasons. The mother consented to an order that there be no time pending delivery of these reasons but the father and ICL opposed such an order.
This judgement deals with the reasons for suspending the father’s time with the youngest child and the competing interim parenting applications.
Background
The father who is 49 and the mother who is 44 were married in 1996. They had three children over the course of their 21 year marriage. A daughter was born in 2001 and is now 17. The second and third children, both boys are aged 15 and 12 years respectively.
The father served in public service from 1989 till 2003, which included overseas service. The parties lived in various parts of Australia and overseas in the early years of their marriage.
Following the birth of the first child the mother ceased working outside the home and was engaged for a number of years in the fulltime care of the children.
The family settled in a regional town in 2005 which was the hometown of the mother’s extended family.
It appears that the parties began experiencing relationship difficulties from at least about 2014. From at least 2015 the father began misusing alcohol and drinking to excess. The mother contends that the father’s problematic drinking dates from around 2005 though this is disputed by the father.
There was an incident in 2016 when in the course of an argument the father damaged the mother’s property.
The parties separated in January 2017 and the mother moved with the children to live with the maternal grandparents. The mother subsequently moved with the children to a new home.
The parties are not yet divorced.
It is the father’s case that the mother has been controlling and emotionally manipulative towards he and the children throughout their marriage. He contends that the mother has isolated him from his family and friends and has caused the children to be distant from him and to have rejected him. The mother takes issue with these contentions.
On 17 February 2017 the father contacted the mother by text message in a manner which raised concerns about self-harm. The mother attended the family home to find a letter to police, the father’s will and an envelope with keys in it on the bench. The mother became concerned about the father’s welfare and contacted police and the father’s sister.
The father’s family members along with police found the father on his property with a loaded firearm nearby. As a result of this incident the father was detained pursuant to the Mental Health Act and spent three days in the mental health ward of the local hospital.
The father deposes that at the time of the incident he wanted to commit suicide and that upon release from hospital he has engaged in therapy with a psychologist.
The police also removed the father’s firearms temporarily after the suicide attempt. These were returned to him in October 2017.
Following separation all of the children spent time with the father under an ad hoc arrangement including weekly dinners on a few occasions. The father’s time with the youngest child was more regular and included a trip to New Zealand in August 2017. Following his return from this trip the youngest child began spending overnight time with the father once a month.
The older two children became resistant to spending time with the father and last spent time with him on Boxing Day 2017.
In July 2017 the mother commenced a relationship with Mr B (“the mother’s partner”) who had been known to both parties.
In January 2018 the father claims to have become aware of “some very concerning information” about the safety of the oldest child and the potential risk posed to her by the mother’s partner.
On 16 April 2018 the father sent an email to the mother informing her that he will be spending time with the youngest child each week from Tuesday till Thursday to commence on 8 May. This arrangement began on 15 May 2018.
On 24 May 2018 the police took out a provisional Apprehended Domestic Violence Order (ADVO) against the father for the protection of the mother. They also seized his firearms for a period of 28 days. After the ADVO was obtained the father informed the mother by email that he would be having the youngest child in his care for three days per week in the future and this arrangement was then implemented without the mother’s agreement.
On the 22 August 2018 the ADVO Application was withdrawn and dismissed at a Local Court.
In August 2018 the parties and the children attended an intake and assessment for the Child Responsive Program with a Family Consultant of this Court.
In the course of the interim hearing on 17 September 2018 the father consented to an order that he be restrained from having any firearm in his possession.
Matters in dispute
Although when considering interim orders, the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the court may or in some circumstances must have some regard to the matters in dispute. In SS & AH[1], their Honours said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[1] [2010] FamCAFC 13
The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Deiter & Deiter[3]).
[2] [2013] FamCAFC 182
[3] [2011] FamCAFC 82
In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
It is the mother’s contention that the father poses a risk of harm to the children and in particular the youngest child if orders are made as proposed by him. She contends that this risk of harm arises from his mental instability, alcohol misuse and to some extent as he is the perpetrator of family violence.
The father also contends that the mother poses a risk of emotional and psychological abuse towards the children and in particular has alienated the children against him. These allegations also fall within the definition of family violence. He also contends that the mother’s partner poses an unacceptable risk of sexual harm to the parties’ oldest child. An assessment of the risk posed by the father as alleged by the mother and by the mother and her partner as alleged by the father must be undertaken.
Family violence
The mother and father both make allegations that the other has perpetrated emotional and psychological abuse during their marriage and following separation.
The mother deposes that during their marriage the father was verbally abusive towards her and called her names such as “parasite”, “bitch” and “cunt”. Although the father deposes in his affidavit generally that all allegations of family violence made against him are malicious and vexatious and denies never being violent towards any person especially not the mother or the children he admits to verbally abusing the mother in the terms alleged following separation.
The mother further alleges that when he was drunk the father would yell and this frightened her and the children.
Both parties make allegations that during arguments the other party broke household items and damaged property. The father admits to ripping a book, throwing a ball in the proximity of the mother and damaging a DVD player during the marriage.
The mother also alleges that for about a year following separation the father sometimes engaged in stalking her and sending her abusive text messages. The father agrees that on one occasion he formed an incorrect belief about the mother and her partner on the basis of an observation of a car outside the mother’s neighbour’s house and that his response was to send an email to the mother. He says that on reflection his behaviour on this occasion was “not appropriate”.
On 24 May 2018 a provisional ADVO was made against the father for the protection of the mother. The mother does not set out in her affidavit an account of any particular incident which gave rise to the police seeking this order for her protection and although there is a police record relating to the ADVO before the court it does not shed much light on any particular incident that led to the police seeking the ADVO. The court file relating to the ADVO at the time of the hearing had been requested but not produced.
The application for an ADVO was subsequently withdrawn by police at the Local Court.
In her interview with the Family Consultant the mother expressed that she did not have a strong fear of the father currently but would feel less safe if the father were able to regain possession of his firearms from police.
The evidence in relation to the father’s current possession of firearms was quite confusing. He conceded that he had not included in his affidavit any current evidence in relation to the matter though the hearing proceeded on the basis that the police had again confiscated his firearms after the ADVO was made which is supported by police records.
However, as the application for ADVO was subsequently withdrawn by police and dismissed there seemed a possibility that the father’s firearms had either been returned to him or he was attempting to once again obtain possession of them. The father had initially indicated that he would give an undertaking in relation to the possession of firearms and he subsequently consented to an order restraining him from having any firearms in his possession.
Although each of the parties made some allegations in relation to conduct that may fall within the definition of family violence subject to one matter to which I will return family violence was not a significant matter in the interim proceedings. So far as the father is concerned although he maintains serious allegations that the mother has influenced the children against him, he accepts that it is in the best interests of all of the children to live with the mother and seeks orders only that the youngest child spend time with him.
The only matter of concern with respect to any alleged propensity to act in a violent manner relates to the father’s possession of firearms. This was dealt with to the only extent possible in proceedings of this nature by making an order that the father be restrained from having any firearm in his possession and giving leave for the parties to provide that order to the police.
The father’s alcohol use and mental state
The mother alleges that the father has had a long-standing pattern of alcohol misuse and engaged in heavy drinking from about 2005. She alleges that when affected by alcohol he was angry and aggressive towards her and the children. The father denies the mother’s observations about his behaviour when intoxicated many years ago, claiming that these allegations are “clearly ridiculous”. He also deposes to the mother’s claims that his drinking began in around 2005 as “complete nonsense”.
Although the father denies that he has engaged in excessive drinking for the period of time alleged by the mother he deposes to drinking heavily in the last two years of the marriage that is from around January 2015. He deposes that at this time he drank to excess between one and three nights a week after the children had gone to bed, consuming six to 10 standard drinks in a night. The father deposes that as the mother did not want him to drink in the house in the last six months of their marriage he would spend the night at the parties’ camping block 45 km from their home. He accepts in his affidavit that his level of drinking at this time was “poor behaviour on my behalf”.
The father gives no other evidence relating to his alcohol use and related behaviour between the period prior to separation and February 2017. In relation to the incident that occurred at that time, the father deposes only the following:
After a particular incident where [the middle child] told me words to the effect of “I don’t want you”, I wanted to commit suicide. I was admitted to the mental health unit in [the party’s home town] in February 2017. I received therapy whilst there are and on release I engaged therapeutically with a local psychologist.
According to the mother’s affidavit on 17 February 2017 following communication in which she informed the father that the relationship was definitely over the father sent a text message to her indicating that there was some paperwork on the kitchen bench and requesting the mother to pick it up on her way to work. He then sent a further text saying “I hope this was all worth it for you and has made you happy”. The mother deposes that she asked the two older children whether they had received messages from the father and they each confirmed they had received messages from him saying that he loved them. The mother deposes to becoming suspicious and attending the former family home where she found the father’s will and a letter addressed to the police. She says that a friend then contacted the police. The mother deposes that upon inspection of the house it became clear that the father had taken his firearms with him and this information was also given to police.
The mother deposes that the police then immediately attended at the parties’ out of town block of land as did the father’s sister who arrived at the block shortly before the police. The mother deposes that her sister-in-law and police found the father “extremely drunk holding a gun” and that the father was then scheduled and detained in the mental health unit at a local hospital for three days.
Police records in relation to this incident are consistent with the mother’s account. The records also indicate that the letter written by the father outlined that they would find his body at the top of the hill on his property. It is also recorded that family members of the father arrived at the property before police and located him sitting on a chair with a loaded rifle sitting on the log next to him and that five firearms were seized by police.
Police records indicate that they were called to the hospital the following day in relation to the father’s non-compliance and fears held by staff of his reaction when informed that he would be held overnight. When the police attended it is recorded that the father “began storming out of the hospital” but was prevented doing so by police and that although he was very abusive he did comply with directions. It is recorded that his demeanour was observed to be “unpredictable”.
Hospital records produced on subpoena record that on the day of the incident the father attended an event where he was going to present his son with a badge but his son didn’t want to do anything with him. The records also indicate that the father drank about six to seven glasses of whiskey before driving to the camping block. In the notes it is also recorded that the father’s sister informed hospital staff that when she and her husband arrived at the block the father came out of a shed and started crying. The father’s sister reported there was a gun propped up against a wall but denied as had been reported to police that he was sitting with a gun in his lap.
The hospital records also include a discharge summary and letter directed to the father’s doctor. That document includes the following:
Until the day of admission [the father] did not describe symptoms of major depressive disorder. He was actually doing quite well following the breakup and had reconnected with old friends in his [sports] club and had started exercising again and eating well. His sleep and mood were okay and he had lots of energy. The major precipitant was his son’s award ceremony, which made him feel acutely worthless helpless and hopeless.
Although the hospital Discharge Summary also refers to the father being referred to the community mental health team for follow-up there are no records before the court in relation to this follow up or any other medical treatment received by the father.
The father provides no detail concerning the psychologist or any other health professional from who he received treatment or any evidence at all relating to his mental health other than a letter from a psychologist to whom he was referred in August 2017 for the purposes of having “a gun licence suitability completed”.
It is apparent from the psychologist’s letter in relation to his gun licence that the father met with the psychologist on two occasions specifically in relation to his desire to retain his gun licence and that the main information upon which the psychologist made his assessment was provided by the father himself.
The father deposes to no other incidents related to excessive drinking or his mental state that may be relevant to an assessment of any risk of harm that he poses to the children. The father deposes generally that since separation his drinking “has come back to below normative levels” and says that he drinks on approximately one to two occasions per month. He denies that he has ever had “an alcohol problem” and deposes to a belief that the mother has “an aversion to alcohol and normative social drinking”.
The father opposes the order sought in relation to CTD testing for alcohol use and contends that it is unnecessary and expensive and that the mother is requesting it as a “means of imposing a financial penalty and creating maximum inconvenience for me”.
On 24 May 2018 the police attended the father’s home to serve him with the provisional ADVO and seize his firearms. The police record of this event records the following when they attended the father’s home;
[The father] appeared intoxicated, his breath smelt of alcohol and he was unsteady on his feet. [The father] stated he had been drinking rum and coke and was sleeping when police arrived. When police explained to [the father] why they were seizing his firearms, he went on to state he wanted [the mother] charged with false allegations. He stated that he would report [the mother] for being in the mafia, having sex with children and other matters “that’s all you have to do these days to get someone in trouble”. It became apparent to police he was reasonably affected by alcohol.
The father does not address this incident in his evidence.
In my view, there are significant concerns that arise in relation to a risk of harm posed by the father due to the allegations of his alcohol use and mental state and associated behaviour. In this respect and having regard to the two elements comprising risk assessment referred to in Deiter (supra) concerns in my view are raised by the likelihood that the father will engage in excessive drinking and the severity of the impact of his drinking in light of the associated impairment of his mental state and behaviour.
So far as the likelihood of the father engaging in excessive alcohol use is concerned I balance the probabilities that the father has had a long standing problem with alcohol misuse and associated concerning behaviour which is likely to be current as asserted by the mother against the probabilities that he had a short period of problematic drinking which ended some time ago and that there is currently no risk that he will drink to excess as asserted by the father. In my view it is more likely that the mother’s position is correct given the father’s own admissions as to his level of drinking towards the end of the marriage, his undoubted intoxication at the time of the serious event in February 2017 and recent observations by police which is not challenged by the father concerning his intoxication in May 2018. Further, when interviewed by the family consultant for the purposes of the Child Responsive Program the middle child reported that the father “drinks a lot”.
It is also in my view a matter of concern that the father is resistant to having the level of his alcohol misuse monitored through CDT testing and appears unable to accept that this may provide evidence consistent with his contentions and is a relevant matter in relation to the welfare of the children.
Having regard to the father’s own assessment of his alcohol use which I am concerned demonstrates a lack of insight on his behalf, I approach with caution his evidence that he would never drink when he [previously] had the children in his sole care.
Of particular concern in my view is the second of the matters involved in risk assessment that is the severity of the impact caused by the father’s excessive drinking.
The father himself accepts that his excessive level of drinking in the last two years of his marriage demonstrates poor behaviour on his behalf. Although he makes no reference to his alcohol use in his brief evidence concerning his suicidal ideation and behaviour in February 2017 it appears that there is no doubt that on that occasion his suicidal ideation and dangerous behaviour in having a loaded rifle in his possession was associated with significant excessive drinking.
It is also of particular concern in my view that the father concedes that his desire to harm himself and behave in such a dangerous manner arose from a perception that he had been slighted or rejected by his middle child. The father’s affidavit is replete with allegations of perceived rejection by his children and although the relationship between himself and the older two children only is strained at this stage there is a risk that this strain may extend to his younger child which the father may perceive as rejection. This perceived rejection if associated with the father misusing alcohol and a destabilised mental state may lead to him behaving in an unpredictable and dangerous manner and thereby placing any child that may be spending any time with him at risk.
I am also not comforted when assessing this risk as the ICL and father submit by the father’s apparent stable and unconcerning presentation since this event in light of the discharge summary which describes the father “doing quite well” immediately prior to the February 17 2017 incident and that the major precipitant was his [perceived rejection by his son] at the awards ceremony which made him feel acutely worthless, helpless and hopeless.
The father’s unpredictable and erratic behaviour when intoxicated is also not limited to the incident in February 2017 as the police record of the event in May 2018 when he was served with the ADVO and his firearms were seized also records police observations of such behaviour.
As previously noted it is in my view of concern in relation to the father’s mental state that although he deposes to receiving treatment and therapeutic intervention following his suicidal behaviour in February 2017 and although the hospital Discharge Summary referred him to the community mental health team for follow up he has produced no records in relation to treatment or the current state of his mental health. I attach little weight to the letter from the psychologist whom he consulted on two occasions to have a clearance to regain his gun licence in August 2017 in the absence of any evidence in relation to treatment for his mental health and where the major concern in relation to his mental health is associated with excessive drinking which appears to be a current issue.
In these circumstances I asses that there is an unacceptable risk of harm to the youngest child posed by the father if he were to have the child in his care for extended and overnight periods as he proposes. In my view it may be appropriate to impose supervision upon the father’s time with the child to mitigate this risk. However, it was conceded in the course of the interim hearing that the mother was not seeking supervision as she was unaware of the current availability of professional supervision and did not wish for this to be an impediment to some time between the father and the youngest child continuing.
It was canvased in the course of the proceedings that a more appropriate order may be that the father’s time with the youngest child occur in a public place to reduce the likelihood that he would misuse alcohol in that setting. This would ensure that the father’s time with the child could recommence but also provide protection for the child from the risk that the father may consume alcohol and behave in an unpredictable, aggressive or violent way towards himself or others in the presence of the child or towards the child himself.
“Alienation” of the children
It is the father’s case that following separation the mother has alienated the oldest two children from him to such an extent that they do not wish to have a relationship with him. Although given the ages of the oldest two children the father does not seek to pursue any orders for time with them he maintains the position that through her actions the mother has psychologically abused the children.
The father alleges that the mother has encouraged the children in their reluctance to spend time with him, even though they enjoyed the time they did spend with him. The mother deposes that she initially insisted that the children spend time with the father following separation and it is her case that their withdrawal from him relates to their experience of him.
The father contends that the mother seeks to deny the youngest child a meaningful relationship with him and that should his time be limited to three hours once a week as the mother seeks, the youngest child may be alienated from him as well.
The father deposes that prior to separation he enjoyed a good relationship with all of the children. This is corroborated by the account given by each of the children to the Family Consultant. However, following separation the oldest two children ceased spending time with the father. The oldest son reported to the Family Consultant that ‘his father had “gone a little crazy” since separating from his mother’ and the oldest child reported that ‘[the father] has made things uncomfortable by talking about their family circumstances’.
The youngest child reported to the family consultant that he enjoys a good relationship with both parents and is happy with the current arrangement of spending three nights a week with the father.
I am unable in this interim application to make any findings in relation to the father’s allegation that the mother has alienated the children from him. Although this is a serious allegation and if it has occurred it is a significant matter concerning the best interests of the children. However weighing the competing probabilities I am unable to assess that there is an unacceptable risk that the mother has engaged in this behaviour. In this regard I note that the youngest child presented to the family consultant as having positive relationships with both parents which he “appears to have maintained... in spite of their conflict and a significant period in which he spent limited time with [the father]. The family consultant also added “there were no strong indications identified in this assessment of a situation of unjustified estrangement, particularly in that neither child was completely denying a past more positive relationship with [the father]”. He added however that the possibility that the mother had unduly influenced the older children’s two views could not be excluded on the basis of his assessment.
The father’s allegations against the mother’s partner
The father makes allegations that the mother’s partner has a history of inappropriate sexual conduct towards women and especially teenage girls. The father makes a suggestion that the mother’s partner could be grooming the oldest child for a sexual relationship. On this basis he seeks an order restraining the mother bringing the oldest child into contact with her partner.
That father’s evidence supporting these allegations is based on second and third hand hearsay and he fails to clearly identify the source of the hearsay. It appears to be nothing more than unsourced scuttlebutt and innuendo to which I attach no weight.
The law & discussion
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].
[4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Pursuant to s65D(1), subject to certain sections a court may make such parenting order as it thinks proper.
Section 61DA provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child in the family or family violence. Further when making interim orders the presumption applies unless the court considers that it would not be appropriate.
In these interim proceedings the father seeks an order that he have equal shared parental responsibility for the children and an order in these terms is also sought by the Independent Children’s Lawyer. The mother seeks an order that she have sole parental responsibility for the children.
In circumstances where there are serious allegations made by each of the parents in respect of which no findings can be made at this interim stage in my view it is not appropriate to apply the presumption of equal shared parental responsibility. It is also not an appropriate order to make where the parents have no demonstrated capacity to make joint decisions with respect to their children or to have the level of communication and co-operation required for such an order to operate effectively for the children.
In circumstances where there is no evidence upon which the court may conclude that it is in the best interests of the children for the parents to have equal shared parental responsibility the default position is not necessarily an order for sole parental responsibility.
In these circumstances where the father makes serious allegations of influence against the mother which are unable to be determined, I cannot be satisfied that even on an interim basis an order for sole parental responsibility is in the children’s best interest. Accordingly, I propose making no order with respect to the exercise of parental responsibility.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.
Although the parents separated some time ago there has been little progress in these parenting proceedings. As a result of the issues raised in the proceedings I am of the view that it will be appropriate to obtain an opinion from an expert appointed by the court which may take many months to obtain I am also of the view that it is appropriate for the proceedings to remain in this court. In these circumstances it is likely that the interim parenting arrangement under consideration will be in place for many months.
The Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.
The primary considerations: s 60CC(2)
The primary considerations, which are contained in s 60CC(2), are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[5]
[5] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
Both the father and counsel for the ICL submit that the orders proposed by the mother would deny the youngest child the benefit of having a meaningful relationship with his father. The ICL highlighted the risk as he sees it that if the child does not maintain his relationship with the father under the current arrangement (embodied in the ICL’s proposed orders) that the youngest child’s relationship with the father will break down completely as has occurred with the older two children.
Although there is no doubt that the youngest child will spend far less time with the father if orders are made as proposed by the mother than under the current arrangement or the alternate orders promoted by the father and ICL, the authorities make clear that the question of whether a relationship is meaningful is qualitative rather than quantitative. If orders are made as proposed by the mother the youngest child’s relationship with the father will still be maintained and even on the more limited basis will be a relationship that is important or of significance to him. In this regard it is relevant in my view that when seen by the family consultant in August 2018 the child presented as having a positive relationship with his father which appears to have been maintained in spite of the parents’ conflict and the significant period in which he spent limited time with his father.
Even though it must be recognised that under the mother’s proposal the youngest child will spend significantly less time in the father’s care than under the current arrangement the need to protect the child from harm arising from being subjected to or exposed to abuse neglect or family violence is the primary consideration to which greater weight must be given. For the reasons previously given although I cannot and do not make any findings in relation to these matters I have however assessed that on the current evidence there is an unacceptable risk that the youngest child may be psychologically harmed from being subjected to neglect in the event that his father drinks excessively when caring for him and physically or psychologically harmed if subjected to abuse or family violence if the father behaves in a similar manner to the manner in which he has behaved in the past when intoxicated. An order requiring that the father’s time with the youngest child be spent in a public place as was considered in the course of oral argument would in my view provide the appropriate level of protection for the child against such risk of harm.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.
The additional consideration: s 60CC(3)
The views of the children were given to a Family Consultant who interviewed them as part of the Child Responsive Program and reported in a Memorandum to the court.
The oldest child expressed to the Family Consultant that:
She does not see her father because, when she has done so since her parents’ separated, he has made the time uncomfortable by talking about their family circumstances. [The oldest child] said that she has never had a close relationship with her father.
The Family Consultant interviewed the second child and reported that:
[The second child] said that he has not seen his father for a long time and that he is “fine” with this. When [the second child] was asked further about how this situation came about, he explained, “we were seeing him once a week” for dinner but “he’d make it super awkward” by talking about [the mother] and their family situation.
The second child expressed that he had previously enjoyed a positive relationship with the father and that the father had been significantly involved with his sporting activities. The second child expressed that the father has “gone a little crazy” since separating from his mother and that he would “lock himself in a room” if it was ordered that he should predominantly live with his father.
The second child expressed to the Family Consultant that he was concerned that the father would hurt him because he “just lashes out”, however he was unable to tell the Family Consultant about a time when this occurred.
The youngest child expressed positive views of the father and held no concerns about his time with him. The youngest child indicated that he is happy with the current arrangement in which he lives with the father from Tuesday to Friday.
All of the children expressed to the Family Consultant that they had a positive view of the mother and enjoy their time with her.
Both parents seem sensibly to have accepted that significant weight be given to the views of the two older children as both parents agree to orders that they each spend time with the father in accordance with their wishes.
I attach some weight to the youngest child’s positive views in relation to his father but I do not attach weight to the child’s reporting that he held no concerns about his time with his father. Although the father and the ICL both submitted that I should attach weight to this latter expression of views I am of the view that it is not reasonable for a 12 year old child to be responsible for identifying matters of risk.
There is no dispute between the parties that the mother is the primary carer for the children and that the children should live with her. It would appear from the Memorandum provided by the Family Consultant that the two oldest children have a strained relationship with the father.
The youngest child has been spending regular time with the father since separation and it is apparent that they share a warm and positive relationship.
In my view the strength of the youngest child’s relationship with his father is a weighty factor. Although my assessment of the risk posed by the father may in other circumstances require that a child’s time with the father be supervised this risk can be addressed in other ways, such as requiring that the youngest child’s time with the father occur in a public place. This will result in the child being able to continue sharing a relationship with his father pending the availability of further evidence concerning the risk factors.
When the parents were married it appears that each of them jointly made important decisions relating to long term issues and since separation all such decisions have been made by the mother.
The father diligently sought time with all of the children until December 2017, at which time the oldest two children expressed a view that they did not wish to see him any longer. He does not seek orders compelling them to spend time with him. The father has spent regular time with the youngest child since separation.
The father pays child support.
As discussed previously the proposal of the mother will bring about a significant change in the youngest child’s circumstances. The youngest child may not respond well to this change considering that he expressed to the family consultant contentment with the current arrangement though he also said that it would not matter if this changed and he is predominantly with either his father or his mother.
I do not accept the submission made by the ICL that the orders proposed by the mother will necessarily seriously damage the child’s relationship with his father especially as the relationship has apparently flourished despite the difficult circumstances for the child to date and the lengthy period in which he spent limited time with the father.
The capacity of the father to provide for the children’s needs is likely in my view to be a significant factor in a final determination of the competing parenting applications. It suffices to say at this interim stage that the father’s focus as can be gleaned from his affidavit tends to prioritise himself and his feelings over the needs of the children. The comments made by the older two children to the family consultant that the father caused each of them to feel uncomfortable following separation by talking about the mother and their family’s situation is consistent with this focus upon himself and his own feelings following separation rather than prioritising the children’s needs.
I was unable to make any specific findings in relation to family violence and noted that this was not a significant factor in the sense that the parties do not make allegations against one another of physical assault and the like. However, if the father were to harm himself in the presence of one of the children or in response to his perception of a child’s attitude towards him such behaviour could fall within the definition of family violence to which the child may be exposed or may amount to abuse of the child. This would also obviously be the case if the mother or the child were the victim of the father’s violent conduct.
The only evidence to suggest that there is a risk that the father may behave violently is associated with his intoxication particularly when he is intoxicated to such a degree that his mental state is impaired. This is a weighty factor and central to the order made when the interim proceedings were heard that the father spend no time with the child pending this interim decision and in relation to the interim orders themselves.
As there is no reliable evidence in relation to the father’s current level of alcohol use it is important that this be monitored and in my view the orders proposed by the mother with respect to CDT testing are appropriate.
Further, it is imperative that the court has current evidence from any health professional from whom the father has received or is receiving treatment and that an expert opinion be obtained in relation to the father’s parenting capacity and the risk if any he poses due to his mental state and alcohol misuse.
Although I am required to have regard to the family violence order that was made on a provisional basis for the protection of the mother against the father, I am unable to draw any relevant inferences as the relevant evidence including the court file was not available to me at the interim hearing.
Conclusion
Interim order made 17 September 2018
As indicated on 17 September 2018 when the interim parenting application was heard an order was made pending delivery of these Reasons that the youngest child spend no time with the father. This order had been opposed by the father and the ICL though the mother consented to it being made.
It was uncontested on 17 September that the father had unilaterally imposed upon the mother the parenting arrangement in which the youngest child spent three nights per week in his care. There was also no dispute that a provisional ADVO had been made against the father for the protection of the mother. It was also apparent that there had been a serious self-harm episode in February 2017 in which the father was intoxicated and which involved a loaded firearm and resulted in the father being admitted to a mental health unit. It was also known that the father had been licenced to and had possessed numerous firearms in the past and his current entitlement to hold them was unclear and there had been an occasion in May 2018 where police observed the father to be intoxicated and somewhat irrational.
Various documents were tendered in the interim proceedings including an entire hospital file which were unable to be examined in the course of a busy duty list.
Given that the paramount consideration is the best interests of the child and that numerous sections in the Act that require the court to act protectively, I formed the view that it was appropriate and in the best interests of the youngest child for his time with the father to be suspended for the short period of time prior to the delivery of these final reasons.
Interim Orders
In coming to a decision about which of the proposed interim orders are in the children’s best interests I note that this is in reality a contest between the orders proposed by the mother with respect to the youngest child and those proposed by the father and the ICL which are in the main in similar terms.
I am required to balance the various matters to which I have referred.
Although I accept that the orders proposed by the mother may have some impact on the nature of the relationship the youngest child has with his father, it is unlikely in my view that the relationship will significantly deteriorate as suggested by the ICL and the father.
Even if there is some impact upon that relationship having regard to the strength of it despite the limited time the youngest child has spent with this father in recent years it is likely in my view to continue to be an important relationship for the child in the ensuing months.
As the court must attach greater weight to the need to protect the child from harm and in light of the concerns about the father’s alcohol misuse and the impact of his mental state upon his parenting capacity, I am satisfied that the orders proposed by the mother and modified in the course of the interim proceedings are in the child’s best interest.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 October 2018.
Associate:
Date: 5 October 2018
Key Legal Topics
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Family Law
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Evidence
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Procedural Fairness
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Remedies
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