Hotham and Drummond
[2011] FMCAfam 418
•20 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOTHAM & DRUMMOND | [2011] FMCAfam 418 |
| FAMILY LAW – Children – alleged incapacity of Mother to care for the children due to her alleged alcohol abuse – best interests of the children considered. |
| Family Law Act 1975, s.60CC |
| Goode and Goode (2007) 36 Fam LR 422 |
| Applicant: | MR HOTHAM |
| Respondent: | MS DRUMMOND |
| File Number: | BRC 1165 of 2011 |
| Judgment of: | Baumann FM |
| Hearing date: | 20 April 2011 |
| Date of Last Submission: | 20 April 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 20 April 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Parker |
| Solicitors for the Applicant: | Parker Family Law |
| Solicitor for the Respondent: | Mr Biggs |
| Solicitors for the Respondent: | Biggs Fitzgerald Pike |
| Solicitor for the Independent Children’s Lawyer: | Mr Lang |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
This matter be adjourned to 1:00pm on 27 April 2011 in the Federal Magistrates Court of Australia at Brisbane with leave being granted to the parties to appear by telephone.
The children to commence the holiday time with the Mother from 12:00pm on 21 April 2011.
IT IS NOTED that publication of this judgment under the pseudonym Hotham & Drummond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1165 of 2011
| MR HOTHAM |
Applicant
And
| MS DRUMMOND |
Respondent
REASONS FOR JUDGMENT
(Settled from ex-tempore reasons)
On 23 February 2011, the Court heard an interim contested application for residence of two young children, [X], aged seven on [date omitted] and [Y], aged four on [date omitted]. At that time, applying the principles and pathway identified by the Full Court in Goode and Goode (2007) 36 Fam LR 422 particularly at paragraph 82, the Court, in weighing up the serious allegations of incapacity raised by the applicant father and the strong denials by the respondent mother, the Court essentially ordered:-
(a)that the children live with the mother on the basis (set out at order 3) to live with her parents and not consume alcohol; and
(b)the children spend time with the father each alternate weekend from 5 pm Friday to 4.30 Sunday, the other weekend 5 pm Friday to 4.30 Saturday, every Wednesday from after school or after day care to 6 pm, by telephone each Thursday and Monday.
At the time of the initial interim hearing, the Court noted the hostile relationship that existed between the parents and the strongly negative and accusatory tenor of the affidavits particularly, those of the father (for example, his reliance on a letter written by the mother’s father to her many years earlier).
There is no doubt the mother has abused alcohol in the past. Whilst the mother, through her solicitor, Mr Biggs, strenuously denies that she was ever, nor is she now, “an alcoholic”, even in the husband’s first sworn affidavit on 16 February 2011, the father had some evidence of the mother suffering alcohol withdrawal syndrome when she presented to the emergency Department at the [omitted] Hospital on or about 3 June 2010. A further factor to be considered when the matter came before the Court on 23 February 2011 was that since the oldest child had remained (not I hasten to note) with the father’s consent in the mother’s care since final separation on or about 3 February 2011, the child had been attending a school near where the mother now lives with her parents at [M]. [Y] also changed his day care arrangements when the mother went to live with her parents. I should further note for context that the mother makes allegations against the father that he has been aggressive towards her and has overly disciplined the children, particular [Y]. She says he favours [X]. The abuse towards [Y] and herself was, it seems, a basis for the application for temporary protection order which the mother sought against the father.
The father had indicated an intent to contest the order, but since the initial proceedings, mutual undertakings have apparently been given and there are no pending proceedings for domestic violence orders before the State Court. To that extent, although the father filed urgently affidavits by Mr L and Ms S, where he sought to challenge the facts surrounding the application for domestic violence order, it is not necessary at this time to make any determinations in respect of that incident.
Returning to the issue that I am required on an interim basis to determine, that is, whether with the additional evidence now offered to the Court being:-
(a)the family consultant memorandum of Ms S arising from a child-inclusive conference held on 22 March 2011; and
(b)significant subpoenaed material from the [omitted] Psychology Clinic, [omitted] Hospital, [omitted] Health Service, the family practice at [omitted], Dr B, [omitted] Hospital, the [omitted] Health Service, as identified, were relied upon by the parties in separate lists of material tendered; and
(c)the further affidavit of the mother sworn 5 April 2011 and by the father sworn 5 April 2011.
I also had the benefit of further oral submissions by Mr Parker for the father and Mr Biggs for the mother before I had read the subpoenaed material, as well as Mr Lang, the ICL, who I appointed on 23 February 2011. Before briefly summarising some of the relevant material, I again remind the parties that even documents produced on subpoena are untested evidence. Opinions that may be recorded even by qualified medical specialists may, when ultimately tested, not be accepted by the Court.
The decision I make today is extremely difficult, even though I sense from each party, from their perspective, they see the picture as particularly clear and simple. I will also remind the parents, as I had during the course of submissions when I raised the concern about the father’s affidavit, particularly at paragraphs 3 to 7, that if, as currently seems likely, this matter will require a trial, after that trial, the parents remain the parents of these two young children and a form of safe co-parenting in some form may well be ordered. The damage that is done by the tenor of the documents which have been filed to date should not be underestimated to that ultimate goal.
The level of toxicity that has been generated in such a short period of time does not augur well for any form of cooperative parenting when all the litigation concludes. With these reservations, I am also compelled to accord that the Court is not able to make a finding on who was the primary carer of the children prior to separation for the length of their life; the extent to which, if at all, the wife’s maternal grandparents have “lied”, as the father forcefully asserts; the respective levels of support and relationship the children have with both the paternal and maternal grandparents; the current relationship between the mother and her parents (particularly her mother) and the reasons for any difficulties (if they, in fact, exist). These may all be matters which ultimately do have some relevance to the ultimate decision at the trial.
Although the parties made it clear in their material that these enumerated issues, as well as the important aspects of parental attitude, capacity and risk of harm are all contested, the test the Court ultimately needs to apply is what is in the best interests of the children at this early juncture of the post-separation chaos. Normally, a court should be reluctant to revisit continually interim orders made. However, I did make it clear on 23 February 2011, that the decision to preserve stability pending further information was uppermost in my mind, together with ensuring regular time for the children with their father on a more than weekly basis and that the mother remain within the asserted supportive environment of the maternal grandparents’ home.
Perhaps not surprisingly with the history already recorded and despite my order (4) restraining the parents from discussing these proceedings with the children, I have a strong impression this has not occurred. It seems that the children have been further involved in this dispute by their parents. I appreciate that if children appear disturbed or distressed, a parent may seek to find out why. However, these parents, both [occupations omitted], should be able to distract the children from getting further involvement of the conflict than they have to date. I would regard a further clear evidence of such behaviour as going very much to the root of their parenting capacity, if proved.
The family consultant memorandum
The memorandum speaks for itself and any weight to be applied to the feelings of these young children is reduced by the family consultant’s view that:
“Both parents have been discussing matters of parental dispute with the children and speaking about the other parent in a derogatory manner.”
It is not clear whether this occurred before or after the order I made. [X] did say she was happy with her current school. The family consultant said that:
“The importance of stability for the children needs to be considered, particularly during the time of emotional instability within their family. They have already had two new homes and schools since moving to Brisbane a few months ago.”
The family consultant at pages 3 and 4, under the heading Parental Substance Abuse and Mental Health, summarises the reading by the family consultant of some subpoenaed records. The records reviewed by the family consultant are not identified in the memorandum with certainty. However, the family consultant says, inter alia:
“(a)Subpoenaed records reflect the mother’s extensive history of drug and alcohol dependence and mental health issues.
(b)She has been admitted to an inpatient detoxification facility on multiple occasions.
(c)There was an extensive history of depression and anxiety including severe panic attacks.
(d)Of great concern was the mother’s minimisation and outright lies to the consultant about her substance use history. She was recently prescribed Campral as a treatment for her alcohol dependence but had not followed through with this treatment.
(e)Also of concern was that a problematic relationship between the mother and the maternal grandmother was reflected in subpoenaed medical records as contributing to the mother’s difficulty coping.
(f)The mother presented at the same medical practice twice in January 2011 unsteady on her feet and requesting prescriptions for Valium. When refused, the mother attended a second medical practice where she was prescribed Valium.”
The family consultant was not able to recommend any particular parenting regime or alteration to the current interim arrangements, but indicated information from [X]’s schools and [Y]’s preschool be collected as well as an assessment by ATODS. The family consultant also suggested an independent psychiatric review as well as recommending the parents attend a post-separation parenting program. I accept, as Mr Biggs indicated in his submissions, that some of the factual foundation for the opinions or summary given by the family consultant may, after a very thorough examination of every document subpoenaed and having it tested, be proved to be less solid than it appears on the face of the memorandum.
Nonetheless, it is clear that the family consultant felt unable, in the very difficult circumstances of this case, to make any firm recommendations as to the parenting arrangements that should occur. Ultimately, with an independent children’s lawyer, a more detailed family report, as well as, most likely, a psychiatric analysis, will be undertaken in this case. I do not make findings based on the memorandum of the family consultant at this stage as it again is untested and a summary in fact of untested material in part.
Subpoenaed records
I reviewed the extensive subpoenaed material which does reveal, in my view, a long history of the mother having a drug and alcohol dependence. Although the term “alcoholic” may not be used in that exact way, it would be a nonsense, in my view, to suggest, as the mother did in her first affidavit and repeatedly say that, “I do not abuse medication,” and, “I deny being an alcoholic and drug addict now or since we first met in 2001. I am not alcoholic.” The mother asserts a car accident on 7 January 2011 caused her to be admitted to [omitted] Hospital for “concussion”.
She says she was not driving intoxicated or medicated. Although many of the subpoenaed material records require much closer scrutiny and possible investigation than it is possible for an interim determination, in my view, the records of the [omitted] Hospital and the [omitted] Hospital are both most recent and highly relevant. The letter dated 29.12.2010 from Dr B says:
“Thank you for admitting [Ms Drummond] for alcohol detoxification. She has been trying to do this as an outpatient but recognises her need for assistance with your centre.”
The progress notes of the [omitted] Hospital leading up to her discharge on 5 January 2011 shows some erratic behaviour and some disjointed notes, a mix between notes of her psychiatrist, Dr S, and some registered nurses. There is no certainty that it was the same registered nurse making the notes. Without the benefit of Dr S’s testimony, the best a court can do is to identify the resubmission of treatment (including increased medication) and note it is recorded that the nurse wrote on 5 January 2011 at 7.30 pm that:
“Discharge against medical advice as did not feel we could help her anymore.”
It appears in the note that she was accompanied by her father at the time of discharge as he received her medication. The note from the [omitted] Hospital revealed earlier admissions in July 2010 and some recording of a “fallout” with the maternal grandmother. Again, of course, those matters have not been fully investigated to this stage. The notes of the mother’s attendance at the [omitted] Hospital on 11 January 2011 suggest a significant amount of the information given to the hospital at that time might have been given to them by the father.
For example, the father was recorded to say the mother was drinking more heavily than the mother said she was at the time. It was also suggested she had smashed two family cars in the last five days after discharge from the [omitted] Hospital. I note that the mother swears on oath that that did not occur. However, the notes of the medical staff fairly consistently record the mother as having an “impaired capacity”. The mother had not accepted a referral to the mental health unit (as suggested) and appears to have discharged herself at 22.37 on 11 January 2011 “at own risk”.
Attempts by the hospital to follow up the mother were futile. On 6 March 2011, after the hospital appears to have spoken to the mother’s GP, Dr B, the file was closed. Dr B was recorded to say that the mother did not require any further assistance from the hospital. In my view, however, the records did not support the mother’s version that the reason for her admission was related to the motor vehicle accident or concussion.
Evaluation
The advocate for the father says that the mother has shown a lack of candour in her reciting of the history of events. In fact, he was much stronger than that. I also am concerned that the mother appears in her affidavit to try and divert attention or otherwise minimise the long history of dependence on alcohol and prescription drugs that she has had. All the evidence points to the history and, clearly, the ICL will need to obtain independent psychiatric report that draws together all these threads so that a proper picture of the mother’s current emotional stability can be drawn. The issue for the Court is whether the mother presents as a risk to the children at this time.
Although the Court has significant concerns on the state of the evidence, the Court cannot be satisfied either way. Certainly, the mother has had difficulties in her past and her attempts to minimise the history raises a high level of concern in the Court. The past tensions with her mother could, I put it no higher, erupt again. The mother has not returned to [occupation omitted] and offers herself and her availability as a positive to her continued residence on an interim basis of the children. Furthermore, I accept that to change residence now will involve a change of school for [X] and day care for [Y].
The father offers, on the evidence, stability, which is not dependent on support of others like the maternal grandmother, which the mother requires. Although he says his parents have a good relationship with the children, that has not been tested to date either. His highly negative attitude to the mother presents as significant risk to the emotional wellbeing of the children. He has shown such negativity to date and, according to the family consultant, some difficulty in shielding his views about the mother from the children.
Whilst he might say, with some support, the mother has the same difficulty, the level of destructive allegations, at times remotely relevant to these proceedings, he chose to include in his affidavit is concerning and more pronounced than the mother. A change of residence will involve a change of schooling and day care. Furthermore, the former matrimonial home is on the market for sale. The sale will then involve the children moving residence again. I have considered all these factors at this time.
I am bound, however, with all the limitations that the process involves at an interim stage to form the view, after reading all the subpoenaed material, that the risk in the mother’s functioning and her insight into those difficulties as revealed in her affidavit is a greater risk than the high current level of risk in the negativity and possible changes arising from the father’s household. I therefore propose to effectively (after further submissions) to reverse the orders I made on 23 February 2011. I express some concern that the effect of this decision on the mother could be quite devastating. It could also be a catalyst for her to seek the support of her general practitioner and a focussed mental health plan involving a suitable long-term therapist.
I hope while these proceedings progress through the Court that she is able to cope without a relapse into past behaviour. I will hear from the parties as to the form of orders and the optimal time for change which should permit a commencing of a new school in the new term for the child [X]. Also the orders will include an order that no further change to [X]’s school or [Y]’s day care after they have been re-established closer to the father’s home shall occur without the mother’s consent or order of the Court, irrespective of where the father chooses to live after the former matrimonial home, which, I understand, is on the market to be sold.
I note that when the matter was before me for further submissions after the subpoena that I think it was agreed with Mr Biggs that the mother would undertake a liver function blood test and simple live blood test at the direction of the ICL.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date: 4 May 2011
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