Hedley & Hedley - [2019] FamCA 946

FAMILY COURT OF AUSTRALIA

HEDLEY & HEDLEY

[2019] FamCA 946

FAMILY LAW – CHILDREN – Interim orders – Where the father seeks to vary interim orders – Where the application is made only six weeks after interim orders were consented to – Where the mother opposes the application – Where both parties were legally represented and knew they were entering into orders – Where it was agreed for the children live with the mother and spend time with the father subject to the father’s compliance with drug testing and the results of such tests – Where there is no significant change in circumstance to warrant variation – Where it is not in the best interests of the children to vary the interim orders – Ordered application dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 5.08

Abraham & Abraham [2012] NSWSC 254
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Hedley

RESPONDENT:

Ms Hedley

FILE NUMBER:

NCC

2039

2019

DATE DELIVERED:

5 December 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

29 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bithrey

SOLICITOR FOR THE APPLICANT:

Kekeff & Associates Solicitors

COUNSEL FOR THE RESPONDENT:

N/A

THE RESPONDENT:

Self-Represented

Orders

The Amended Application in a Case filed by the father on 29 October 2019 is dismissed.

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 Hedley & Hedley 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 NEWCASTLE

FILE NUMBER: NCC 2039 of 2019

Mr Hedley

Applicant

And

Ms Hedley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

This is an application by Mr Hedley (“the father”) to vary interim parenting orders made by consent on 9 September 2019 (“the September orders”). Six weeks only, had passed from the date of the September orders when the father’s Application in the Case was filed.
The September orders provided in summary the following:
·That the two children, aged six and two, live with the mother.
·That the father undertake drug and alcohol counselling.
·That the father be restrained from consuming alcohol and any non-prescription drugs or prescription drugs during all periods when the children were with him and for 12 hours prior.
·That without admission, the father undertake random supervised urine analysis on the request, with 24 hours notification, of the mother’s solicitors.
·That each party, without admission, undertake carbohydrate deficient transferring testing (CDT).
·That in the event a CDT test was more than 1.7 per cent, the father’s time with the children be suspended until a test with a result of less than 1.7 per cent was provided to the mother.
·Next, and central to this application, order 7, which provided, subject to compliance with drug testing, that the father spend time with the children, summarising:
a) During the school term from after-school or day care until 6.00 pm each Tuesday and Thursday. And each alternate weekend from 5.00 pm on Friday until 5.00 pm on Sunday with such time to be in the presence of the paternal grandmother, only in the event of an unsatisfactory CDT test or unsatisfactory urinalysis result.
b) During the school holiday periods, provided the husband complied with those same drug-testing obligations, for a period of seven consecutive nights, as agreed and in the longer holiday period for seven-day block periods and on special days.
At the time when the interim orders were made, both parties were legally represented. Accordingly, I infer that the parties knew that they were entering into orders about their children until the issues in dispute about parenting between them could be finally determined.
The Registrar inquired and was satisfied that the interim orders were consistent with the provisional Apprehended Domestic Violence Order in place for the protection of the mother.
The mother is opposed to the application of the father to vary the orders. She is content for the September orders to remain in place.
The documents relied on in this application are as follows:

Father

i)Amended Application in a Case filed 29/10/2019;
ii)Affidavit of the father filed 3/10/2019;
iii)Affidavit of the father filed 31/10/2019;

Mother

iv)Response to an Application in a Case filed 25/11/2019;
v)Affidavit of the mother filed 25/11/2019;

Report and orders

vi)Children and Parents Issues Assessment dated 22/10/2019;
vii)Court orders of 9/09/2019.

The Law

Counsel for the husband referred to the decision of Abraham & Abraham [2012] NSWSC 254 in the context of an application to vary interlocutory orders in respect of property interests. That decision enunciates the following principles:
That where interlocutory orders have been made following a contested hearing, where the orders will operate until final disposition, the Court will generally not vary those orders unless it is satisfied that circumstances have changed and/or new material is discovered which could not reasonably have been put before the Court at the relevant hearing which gave rise to the orders.
That principle is a familiar one, enunciated in this Court in Rice & Asplund (1979) FLC 90-725 which continues to be the prevailing authority. There are additional considerations in this Court in relation to maintaining the stability of children pending final orders being made and consideration of their best interests.
The second principle arising from Abraham & Abraham is that where interlocutory orders were made by consent, the parties will normally be presumed not to have intended to displace the Court’s power to vary interlocutory orders. That is certainly the case in the family law context. There is no doubt that the Court has the power to vary interlocutory or interim orders made by consent. The issue on every occasion is whether a judge should vary the orders reflecting the compromise of the parties.
Some of the matters to be considered when contemplating the making of an interim order are set out in rule 5.08 of the Family Law Rules. They are:
a)The best interests of children;
b)Reasonable grounds of making the order; and
c)Whether the order is necessary at all.
This matter proceeded by way of submissions in addition to the material outlined above.
Both parties had undertaken CDT testing. The result for the father, in a test undertaken on 11 September 2019 was 1.7 per cent. This falls exactly on the figure identified in the September orders. Any higher the father could not see the children unless supervised.
The father did not undertake a second test which might have brought him under the 1.7 percentage number.
To her credit, given that the result was equivocal the mother did not make an issue about unsupervised time continuing.
On behalf of the father, it is said that because the test came back with some additional information about what represented a safe range, he should no longer be restricted to the amount of time contained in the September orders. That information on the CDT test is as follows:
The reference range of 2.2 per cent has been determined in the Sydney Metropolitan population of non-alcohol abusers (99th percentile of the social drinking control population). A raised CDT greater than 2.2 per cent is highly suggestive of chronic harmful alcohol abuse.
I reject the submission that anything specific to the father can be inferred by the Court from the reference range information.
The significance of 1.7 per cent as the agreed upper limit percentage before supervision was required, was a clear balancing of risk to the children from spending time with their father when affected by alcohol against benefits to the children of being able to spend time with their father in a natural, unsupervised way.
The father then made the fresh application now before the Court. In it he proposes the discharge of the September orders and instead, that he spend in a fortnightly period four whole days and two nights in the first week and four whole days and four nights in the second week. And at other special times, as defined. It is an enormous increase in what is currently occurring.
The mother gives evidence that the children have reacted quite well to the arrangement put in place by the parents and she is reluctant to disrupt that arrangement, which is working for them. There is certainly no evidence to suggest that the children would do as well or better with the regime now proposed by the father.
The mother draws the attention of the Court to the Children and Parents Issues Assessment under the evaluation section. The family consultant pointed out that the older child, X, aged six had found the post-separation period of her parents confusing and upsetting as she had always had close and loving relationships with both parents and missed them being together as a family.
The mother stated firmly in her submission that the children, in her view, did love both of the parents and did so equally. The family consultant in the report went on to say:
The crux of the issue is if the father is alcohol dependent or not and if his mental health is adequately managed or not.[1]
[1] Children and Parents Issues Assessment dated 22/10/2019, par 36
And then in paragraph 39:
Until such time that the father can provide evidence that he is not abusing alcohol and that his mental health is being adequately managed, then the current orders should remain in place. If the father is able to provide evidence that the children are safe in his care, then an increase in time is recommended. Given that [X] and the father have a very close relationship and [Y] appears to be more attached to the mother which is not surprising given his age and the mother having recently ceased breast feeding, then orders for [X] to spend a little more time with the father (e.g. one extra night) could fill the void for both of them.[2]
[2] Children and Parents Issues Assessment dated 22/10/2019, par 39
The application of the father on the basis of an equivocal CDT test to expand his time in the manner outlined is quite unrealistic. That evidence does not represent a significant change. Although it was new information, it was contemplated by the orders put in place
Ultimately, in a trial, if the parties are unable to resolve the dispute about the children themselves, there can be a full inquiry into the state of the mental health of the father and whether or not the mother’s concerns about his historical dependence on alcohol are substantiated.
In circumstances where the parties so recently consented to a regime which is working well, I do not consider that it is in the best interests of the children, to any extent, to vary those orders. And I do not consider that the CDT test represents fresh evidence which would justify consideration of variation.
Orders are made accordingly.

I certify that the preceding twenty five (25) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 5 December 2019.

Associate:

Date: 5 December 2019