Gough and Gough

[2007] FamCA 1565

FAMILY COURT OF AUSTRALIA

GOUGH & GOUGH [2007] FamCA 1565

FAMILY LAW – CHILDREN – Shared Parenting – Consent Orders made in circumstances where wife had a history of excessive alcohol usage – Serious commentary made by Family Consultant upon this – Should the wife falter in her resolve, comments made that any further hearing could have a predictable result

Family Law Act 1975 (Cth)

APPLICANT: Ms Gough

RESPONDENT: Mr Gough

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3444 of 2007

DATE DELIVERED: 15 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 15 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: Ryan Maloney Anderson

COUNSEL FOR THE RESPONDENT: Mr Melilli

SOLICITOR FOR THE RESPONDENT: Fogarty Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Williams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Watson & McLeod

Orders

1. The husband and wife have equal shared parental responsibility for the long term care, welfare and responsibility of the children:

   T born … January 1994

   K born … November 1997 and

   J born … April 2000.

2. The husband and wife have sole parental responsibility for the day to day care of the children whilst in their respective care.

3. The children live with the wife.

4. The children spend time with and communicate with the husband as follows:

   (a)for two thirds of all school term and summer school holidays being the first two thirds each odd year and last two thirds each even year;

   (b)      at other times by agreement;

   (c)      by telephone at all reasonable times.

5. The proceedings be adjourned to the sittings in March of the Federal Magistrates' Court at Mildura.

6. Pending further hearing the wife:

   (a)provide supervised urine screens within 24 hours of being requested to do so by the Independent Children's Lawyer;

   (b)provide liver function tests and authorise the practitioners performing the same to provide the results to the Independent Children's Lawyer;

   (c)the wife be and is hereby restrained by injunction from consuming any illicit drug or alcohol;

   (d)the wife continue to have treatment as directed by any treating case worker, psychiatrist and general medical practitioner;

   (e)the wife seek drug and alcohol counselling and enter an approved programme for the same and authorise any counsellors to speak to the independent children's lawyer as to her progress.

7. The husband and wife be and are hereby restrained by injunction from:

   (a)      denigrating the other in the presence and/or hearing of the children;

   (b)      discussing these proceedings.

8. For the purposes of spend time with changeover occur in Victoria’s North West region.

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

10. Reserve liberty to apply.

11. That pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to brief Counsel.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLC 3444  of 2007

MS GOUGH  

Applicant

And

MR GOUGH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me in the regional settings of the Family Court of Australia at Mildura.  Mr Dickson appears for Ms Gough, the applicant mother, Mr Melilli for Mr Gough, the respondent father, and Mr Williams for the Independent Children's Lawyer.

2. The proceedings concern three children born of the union of the husband and the wife in these proceedings, namely T, who is thirteen, K, who is nearly ten, and J, who is seven years of age. 

3. The parties married in 1993.  They moved to Queensland in 2004 and separated in January 2007 following quite serious disharmony between them.  The wife returned to the North Western area of Victoria and the husband moved to Victoria’s Western Coast.  The husband has re-partnered, as has the wife.

4. The report of Mr R is, in my view, an outstanding report in its content, its narrative flow and readability.  He goes sensibly to the very centre of the problem involved in these proceedings.

5. There are aspects of the report that are very encouraging indeed, for example, in paragraph 19 he refers to the fact that, "Despite what had transpired between the husband and the wife, and despite the likelihood that there was a degree of mistrust between them, they were able to put aside their differences and focus as quite proud parents on the personalities of the children."  Mr R observed that it was, in his view, heartening that they were able to do so.

6. The report details the relationships between the parties, and each with their respective partners.  The husband has partnered with a Ms P, and their relationship is a very successful, stable and strong one. 

7. The relationship between the wife and Mr S is one that I do not quite understand, other than to say that he is travels interstate with work on a regular basis and there has been, from what Mr R reported substantial disharmony between them.  I rather suspect that disharmony arose by reason of the wife's alcohol intake, and perhaps of other substances. I cannot be too sure.  However, it is not a rosy picture. 

8. Mr R's report, as I said, is an excellent one.  He discussed the relationship of the children with each of the significant parties and their wishes.  Mr Williams, in the course of his helpful address this afternoon, reported that the children's wishes are not now as strong as they were in the reporting process. Children often express their wishes according to, what I could euphemistically describe as the “temperature in the kitchen”.  It may well be that things are a little better in the household of the wife and Mr S.  I would hope so.

9. The children all attend the local schools in the North West area and, of course, as Mr R weighed up, there would necessarily involve in any proposed relocation a complete change of schooling and removal from an established environment.

10. What was concerning to Mr R was that following the report, and having read information from the Victoria Police files, an incident occurred on 18 August 2007, which was only 10 days after the parties had been interviewed.  For the purpose of this judgment, it will be appropriate that I incorporate what he had to say.  It was as follows:

    “On Saturday 18 August 2007, the defendant has returned from, and discovered that the AFM (Aggrieved Family Member) has spent most of the rent money on alcohol.  An argument has ensued.  The defendant subsequently tipped all the alcohol down the sink, and a struggle has happened where the defendant has pushed the AFM to the ground in front of two children.  There were no visible injuries on the AFM.  The defendant admitted to shoving the defendant.”

11. That was a matter of real concern to Mr R who commented in those terms later in the course of the report.

12. Another positive factor that emerges from his evaluation is set out in paragraph 52, where Mr R reports that both parents had shown regard for the children's care, welfare and development, together with a capacity to cooperate, to communicate and therefore should share parental responsibility.  He then discussed the various options available to the court in the event of a dispute.

13. In paragraph 60 of his report, Mr R said that as it appeared the wife had either “wittingly or unwittingly” endeavoured to modify her behaviour, and as the emotional cost of placing the children in the care of the husband would have been significant for both adults and the like, he gave much consideration to leaving the present arrangements as they stood, “Perhaps with the inclusion of some monitoring provisions”.

14. Mr R then reported that such provisions could include a direction that the wife attend and participate in an appropriate drug and alcohol counselling service, and that she and her partner, Mr S, undertake relationship counselling as well.  He then went on to refer to the possibility of a psychiatric assessment.

15. I note from the draft order itself, there are quite severe constraints placed upon the wife.  I agree with those constraints.  They are properly imposed and the onus is now upon the wife to undertake to the letter each of the embargoes placed upon her.  I do not pen that as a warning, but as a fact.

16. Those constraints include, for instance, that she provide supervised urine screens within 24 hours of being requested.  Further, that she provide a liver function test and authorise the practitioners performing the same to provide the results to the Independent Children's Lawyer.

17. Significantly, in my view, is the restraint that she be and is hereby restrained from consuming any illicit drug or alcohol.  Further, that she continue to have treatment as directed by any treating case worker, psychiatrist and general medical practitioner.  It was further ordered, to which she consented and very much to her credit I will add, that she seek drug and alcohol counselling and enter in an approved program for counselling and authorise any counsellors to speak to the Independent Children's Lawyer as to progress.

18. The presence of Mr Williams, without wishing to embarrass him in these proceedings as counsel for the Independent Children's Lawyer has been an excellent intervention in the process.  Effectively, this is “a last stand”, if I may call it that, because my reading of the report suggested to me on an intuitive synthesis of all the material available, and as a preliminary view, that the wife had a hard road to hoe, if I may put it in ordinary lay terms.

19. Mr R reported that the police records indicated incidents which had occurred before Christmas 2006, and to subsequent ones were not isolated.  There had been a long history.  However, and significantly, he had this to say (paragraph 64):

    “If [the wife] cannot address her problems to the satisfaction of the court, the possibility that the children would be better placed with their father will warrant serious consideration.”

20. That is the bottom line, as is also expressed in paragraph 66 of the report, namely:

    “Should [the wife] not be able to demonstrate to the court that she has made genuinely committed attempts to address the drinking and her problematic relationship with Mr [S], then this consultant would have little option but to recommend that the children be placed sooner rather than later in the care of [the husband].”

21. I congratulate the parties on having this resolve.  It places the wife under the sword of Damocles.  It is simply up to her.  I will leave my ex tempore remarks on the court file.  I will also leave the submissions of all counsel on the court file.  Should there be a failure on her part, then, without wishing to bind the hands of my successor, I would have thought that the answer was very clear indeed.  I mark the Minute of Consent Orders Exhibit “A”.  I might finally add that this is a resolve that is important to the future.  I rather suspect that Mr Williams had a fair say in this, and in these circumstances there can be no mistake as to what the position will be by March 2008 should the wife stumble, falter or a waver in her obligations.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 16 January 2008