HOTHAM & DRUMMOND
[2012] FMCAfam 816
•14 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOTHAM & DRUMMOND | [2012] FMCAfam 816 |
| FAMILY LAW – Children – parenting dispute – allegations of controlling behaviour by the Father – allegations that the Mother has a history of alcohol and prescription drug abuse – high level of parental conflict shaping an order that provides the children with stability that meets their best interests the paramount consideration. |
| Family Law Act 1975, s.60CC |
| Hotham & Drummond [2011] FMCAfam 418 MRR v GR (2010) HCA 4 Rice & Asplund [1979] FLC 90-725 |
| Applicant: | MR HOTHAM |
| Respondent: | MS DRUMMOND |
| File Number: | BRC 1165 of 2011 |
| Judgment of: | Baumann FM |
| Hearing date: | 11 – 12 October 2011 |
| Date of Last Submission: | 12 October 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 14 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Linklater-Steele |
| Solicitors for the Applicant: | Parker Family Law |
| Counsel for the Respondent: | Mr Galloway |
| Solicitors for the Respondent: | Holloway Jenkins |
| Counsel for the Independent Children’s Lawyer: | Mr Shoebridge |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That the children [X] born [in] 2004 and [Y] born [in] 2007 (“the children”) live with the Father.
In the event that the Mother resides within a 30 minutes drive of the school’s attended by the children, then the children shall spend time with the Mother at all such times as may be agreed between the parties and failing agreement at least as follows:-
(a)every alternate weekend from after school on Friday until before school on Monday (extending to before school Tuesday if Monday is a public holiday);
(b)on each alternate Wednesday afternoon from after school to before school on Thursday;
(c)for the purposes of interpretation, the term “school” includes “outside school hours care”, kindergarten, prep, and the like.
In the event that the Mother does not reside within a 30 minutes drive of the school’s attend by the children, then the children shall spend time with the Mother at all such times as may be agreed between the parties and failing agreement as follows:-
(a)every alternate weekend from 6.00pm Friday to 6.00pm Sunday (extended to 6.00pm Monday if Monday is a public holiday).
Unless otherwise agreed in writing:-
(a)The children shall communicate with the Mother by telephone (and/or Skype or the like) on every Tuesday and Thursday evening with such call to be initiated between 6.00pm and 6.30pm by the Mother; and
(b)In odd years, the children are to spend the first half of all school holidays with the Father and the second half with the Mother; and
(c)In even years the children ate to spend the first half of all school holidays with the Mother and the second half with the Father; and
(d)Notwithstanding any other order herein, the children shall spend Father’s Day with the Father from 5.00pm on the day before Father’s Day until 5.00pm on Father’s Day; and
(e)Notwithstanding any other order herein, the children shall spend Mother’s Day with the Mother from 5.00pm on the day before Mother’s Day until 5.00pm on Mother’s Day; and
(f)In even years, the children shall spend from 2.00pm Christmas Eve to 2.00pm Christmas Day to 2.00pm Boxing Day with the Mother; and
(g)In odd years, the children shall spend from 2.00pm Christmas Eve to 2.00pm Christmas Day with the Mother, and from 2.00pm Christmas Day to 2.00pm Boxing Day with the Father.
That for the purposes of transportation and changeover, where changeovers cannot occur to or from the children’s day care, schools or after school care services, the parent collecting the children is to attend at the residence of the other parent unless otherwise agreed in writing.
The Mother and Father shall have equal shared parental responsibility for the children.
When exercising their parental responsibility in relation to long term decisions, the parents will consult with each other and without limiting the general nature of this order, they shall consult with each other about the following issues:-
(a)which school or day care the children are to attend;
(b)health, and in particular operations, dental treatments, speech therapy, physiotherapy, specialist treatments, alternative medical treatments and medications;
(c)therapy with psychologists, psychiatrist and/or counsellors;
(d)religious observations and practices; and
(e)participation in and preparation for sporting, cultural and community activities.
“Consultation” for the purposes of the orders above, shall include at least:-
(a)notification to the other parent of any decision that it is said needs to be made in relation to either of the children; and
(b)an indication of that parent’s preference/suggestion in relation to the decision to be made; and
(c)any background information or documentation that is relevant to the decision; and
(d)an invitation to the other parent to express their view in relation to the decision.
The parent who has the care of the children at any particular time has sole parental responsibility for the day to day care, welfare and development of the children at that time.
Unless otherwise agreed in writing between the parties, the children [X] and [Y] shall be and remain enrolled at the [G] School.
Unless otherwise agreed in writing:-
(a)where periods of time are expressed to start before school or after school then handover shall occur at school;
(b)otherwise, the parent collecting the children is to collect them from the residence of the other parent.
Unless otherwise agreed in writing, the parents will each respectively do all things reasonably necessary to ensure that:-
(a)
Mr A continues to be engaged to provide counselling to each of the children for such period of time, and with such frequency as
Mr A may from time to time nominate;
(b)that parent attend upon Mr A as may reasonably be required by him to communicate with him in relation to the children;
(c)a session is arranged with Mr A for the children as soon as possible after the issue of these orders, in order to allow Mr A to explain these orders to them.
The parties are each respectively directed to:-
(a)complete a Post Orders Parenting Program (“the POPs program”) as soon as is reasonably possible; and
(b)obtain a certificate evidencing completion of the POPs program as soon as possible after the completion; and
(c)produce the certificate evidencing completion of the POPs program to the other within 48 hours of receipt of same.
The parties are, each of them, at liberty to produce a copy of these orders to ATODS at [omitted] (or to such other branch of ATODS as the Mother may, from time to time, attend upon) as authority and direction by the Mother to provide to the Father, at his request, such information or documentation as he may seek from time to time in relation to the Mother’s ongoing testing and treatment for addiction to alcohol and/or drugs.
In the event that ATODS decline to provide the information referred to in the order above to the Father then the Mother is hereby directed to:-
(a)send to the Father, on the last day of each calendar month:-
(i) written evidence of her attendance at ATODS during that month; and
(ii) a copy of the results of any drug screening tests undertaken at ATODS during that month.
(b)in the event that the Mother does not attend upon ATODS in any month, she is to advise the Father in writing on the last day of that month.
In the event that ATODS forms the view that the Mother is no longer required to maintain engagement of their services, the Mother shall obtain a statement in writing to the effect and send same to the Father.
For the purposes of these orders, “writing” shall include email and text messages.
The Mother is to notify the Father as soon as is reasonably possible of any:-
(a)motor vehicle accidents in which the Mother is involved; and
(b)any hospitalisation of the Mother; and
(c)any medical attention received by the Mother that relates to the excessive use of alcohol or drugs (prescription or otherwise).
Each of the parents is at liberty to produce a copy of :-
(a)these orders, and
(b)any of the reports of Dr H and Mr J (both of whom gave evidence as expert witnesses in these proceedings;
to any of the following individuals or organisations:-
(a)ATODS (whichever branch the Mother is regularly attending from time to time); and
(b)Any psychologist who is providing regular therapeutic treatment to the Mother; and
(c)Any psychiatrist who is providing regular therapeutic treatment to the Mother.
The Mother be and is hereby restrained from consuming any alcohol (in a quantity likely to exceed a blood alcohol level of 0.5) or illegal drug or any medication other than as prescribed at least 24 hours prior to, and at any time during, any period that the children are to spend with the Mother.
The parents are to each respectively advise the other of their residential address/landline telephone number (if available) and mobile telephone number and shall advice in writing immediately of any change to the other parent.
The parents shall each respectively notify the other immediately of any accidents/emergency or injury or illness sustained by the children whilst in that parent’s care.
These orders may be produced to any person or institution providing medical treatment to either of the children as an irrevocable authority and direction to that person to supply any information or documentation relating to that medical treatment to both parents.
These orders may be produced to any person or institution providing education to either of the children as an irrevocable authority and direction to that person to supply any information or documentation relating to the education of the children to both parents.
Both parties are at liberty to attend any:-
(a)extra-curricular activity; or
(b)any school based activity;
undertaken by either of the children, subject always to the discretion or rules of the organisers of any relevant extra-curricular activity or the school.
The parents are each respectively hereby restrained from discussing any matter or dispute between the parents in the presence of the children or denigrating either parent in the presence of the children and the parties are each respectively directed to remove the children from the hearing of any person who does so.
The Father forthwith return to the solicitors for the Mother:-
(a)all diaries written by her;
(b)all letters written to or by her (to anyone save the Father);
(c)all her personal and financial paperwork;
(d)all photographs, videos, DVD’s, computer drives or other means of electronic storage and retrieval that show or represent the Mother unfavourably, and all copies of the same;
(e)all personal and work references;
(f)all of her documents, records, certificates and the like as are in his possession, power and control.
The Independent Children’s Lawyer be discharged.
NOTATION:
This is a case where the use of drugs and alcohol by the Mother has been relevant to the outcome.
The Mother is, at present, involved in ongoing efforts to rehabilitate herself in relation to the use of both alcohol and drugs.
Based upon the expert evidence adduced at trial, it is reasonable to expect that, if the Mother maintains her current efforts in relation to rehabilitation, it is likely that the children, the subject of these proceedings would benefit from a review of the parenting arrangements provided for in these orders in approximately two (2) years time.
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 ATBRISBANE |
BRC 1165 of 2011
| MR HOTHAM |
Applicant
And
| MS DRUMMOND |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] now aged eight and [Y] now aged five are the focus of a parenting dispute between the Applicant Father, Mr Hotham, and the Respondent Mother, Ms Drummond. The final separation in December 2010 was foreseeable as a result of the conflict and difficulties which had preceded the relationship for many years. Both parents desire the children to live primarily with them and want stability for them. The orders which the Court makes, for the reasons which follow, seek to achieve that for these children.
History
The brief procedural history which is incorporated into the longer relationship history below, identifies the intensity of this litigation from its initiation by the Father’s application filed for urgent determination on 17 February 2011. Whilst the Court regrets the delay in delivering its reasons in this matter, in some ways a time for the matter to “settle down” may well have been helpful for the children.
Both parents accuse and/or blame the other for many things and the affidavits (particularly the initial ones prepared) were filed with highly toxic and hurtful allegations. Some, but not all, are relevant to the pathway to the Court’s ultimate decision in this matter and are further illuminated below. The Court has elected not to deal with every allegation because, apparent from the desire to have reasons of a readable length, little would have been served by doing so. Rather, the likely effect for these two young children who (on either parent’s proposal) will have a significant ongoing relationship with the parent they do not primarily reside with under the orders, would be to fuel indelibly the hurt and pain which each parent unleashed against the other within the first four months after separation. This would most inevitably increase and prolong the parental conflict which would flow down to the children, making it more difficult for them to enjoy and maintain their relationships with both of their parents, as the children both seek and deserve.
Competing proposals
As the following summaries reveal, the essential issue is whether the children live primarily with the Father or with the Mother. Some differences are apparent in both additional forms of prescription and even, a notation suggested by the Independent Children’s Lawyer (“ICL”). The proposals all offered as likely to advance the best interest of [X] and [Y], are as follows.
Applicant Father
The Father’s orders are set out and attached marked Appendix One. The Father broadly proposes that the children live with him and that the parents have equal shared parental responsibility. The Father proposes the Mother spend time each alternate weekend from Friday afternoon to Sunday at 5.00pm and on one afternoon a week, although these periods would be longer if the Mother moved within 30 minutes of the children’s school. The Father agrees to equal sharing of school holidays and special occasions such as Father’s Day, Mother’s Day and Christmas Day.
Importantly, proposed order 9 seeks to make the Mother’s time with the children “conditional” upon a number of factors.
Respondent Mother
The Mother agrees that the parents should have equal shared parental responsibility and essentially seeks that the children live with her and be re-enrolled in [M] School for 2012.
The Father’s time with the children, which the Mother believes is in their best interests, would occur each alternate weekend from Friday after school to 6.00pm Sunday and every Wednesday after school until 7.00pm. At paragraphs 10(c), (e), (f) and (g), the Mother proposes arrangements for Easter, Christmas, Public Holidays, Father’s Day and Mother’s Day. The Mother agrees school holidays should be shared equally.
Appendix Two attached to these reasons are the Mother’s orders and , specify the exact terms of orders sought, including orders that:-
“12.The Mother undergo such blood-screening/counselling/ assistance as the Court requires.
13.The Mother continue with her current psychiatric, psychological and counselling assistance for so long as the services providing such assistance advise there is utility in their continuing to offer their services to the Mother.”
Additionally, in final submissions, Counsel for the Mother sought two further orders said to have arisen from the evidence at the trial, being:-
“1.That the applicant father forthwith return to the solicitors for the respondent mother all of her personal possessions and all and any photographs, videos, dvds and the like in which she is pictured or represented including, but not limited to:
(a)All diaries written by her;
(b)All letters written to or by her (to anyone save the applicant father);
(c)All her personal and financial paperwork;
(d)All photographs, videos, dvds, computer drives or other means of electronic storage and retrieval that show or represent the applicant mother unfavourably, and all copies of the same;
(e)All personal and work references;
(f)All of her documents, records, certificates and the like;
(g)All of her clothes and other belongings.
2.That the applicant father be restrained and an injunction issue restraining him from showing, copying, publishing (by any means), relying upon, using, making available to anyone, or referring to, any images or representations of the respondent mother unless with her express prior consent or under compulsion of law.”
Independent Children’s Lawyer’s proposals
The ICL, who, as is traditionally the case, delivered his submissions first after the evidence was closed, produced a form of orders which is attached and marked Appendix Three.
The ICL supports orders for the children to live with her Father and essentially agrees with the Father’s regime for time of alternate weekends and school holidays. The ICL also agrees with the parents having equal shared parental responsibility. Importantly, some significant consideration was given to, and orders proposed specify that:-
a)Mr A continue to counsel the children.
b)The parents complete a Post Orders Parenting course.
c)The Mother continue her involvement with ATODS.
d)The Mother gives notice in writing to the Father about motor vehicle accidents; hospitalisations; or a medical event “that relates to the use of alcohol or drugs”.
Somewhat controversially to the parents, the ICL proposes a notation be included in the following terms:-
“Notation
This is a case where the use of drugs and alcohol by the Mother has been relevant to the outcome.
The Mother is, at present, involved in ongoing efforts to rehabilitate herself in relation to the use of both alcohol and drugs.
Based upon the expert evidence adduced at trial, it is reasonable to expect that, if the Mother maintains her current efforts in relation to rehabilitation, it is likely that the children the subject of these proceedings would benefit from a review of the parenting arrangements provided for in these orders in approximately 2 years time.”
I deal later in these reasons with the desirability of incorporating this notation in the final orders I have decided, meet the best interests of [X] and [Y].
Statutory framework
The orders I am asked to make are parenting order and as such the Court must:-
a)Follow the defined legislative pathway being aware of the overarching objects and underlying principles.
b)Be mindful of the requirement imposed by s.60CA that the best interests of the child or children are the paramount consideration, but not the only consideration.
c)Give proper weight to the primary considerations (s.60CC(2)) and the additional considerations (s.60CC(3)) and must also consider the evidence in light of s.60CC(4) and (4A) of the Act.
d)In certain circumstances, apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
e)When considering whether equal time or substantial and significant time is in the best interests of the child, the Court must consider and make findings as to whether such time is reasonably practicable (see s.65DAA(1) and (2) and MRR v GR (2010 HCA 4).
Although the definition of violence has been expanded (along with some other consequential and important changes), by amendments to the Family Law Act 1975 since the hearing concluded in October 2011, the law at the time of the hearing must be applied. In my view, in this case, the result would not have been different. As will be seen, the Court, in considering in particular the Mother’s allegations against the Father of “controlling behaviour”, has assessed the allegations in a broad sense and not a narrow sense.
Historical context
Although much of the history, and the parents’ perceptions of it, are contested the historical context that follows is generally agreed as to chronology. It has been necessary to deal discretely with some core issues in which findings are made. However, the statements of fact which follow should be construed as findings of fact.
The Father is 41 years old and the Mother is 38 years old. Both are [omitted] by profession and met in [omitted] during 2001 after which they cohabited, before moving to Mackay in early 2002.
It is not in dispute that the Mother participated in the Queensland Opiate Treatment program in 1994 (when she was 21 years old), and was also admitted to a methadone program. It is not absolutely clear as to the extent of the Father’s knowledge of the Mother’s drug usage at the time of cohabitation.
[In] 2004 the parties’ eldest child [X] was born and nearly three years later, [in] 2007, [Y] was also born in Mackay.
The evidence reveals that the relationship was experiencing tensions from soon after [X]’s birth. The Father encountered employment issues and from around 2007, the Mother’s addiction to prescribed codeine substances and, the Father asserts and accepts after the birth of [Y], the Mother’s use of alcohol significantly increased.
By early 2010 the Mother was seeking help with symptoms of depression and excessive use of codeine and alcohol. The Father says the Mother became less available and reliable to the children during this period and by June 2010 the issues had reached a critical stage, necessitating a presentation to [M] Hospital on 3 June 2010. As noted below, the hospital records suggest the Mother was observed with alcohol withdrawal symptoms when attempting home based detoxification.
Between 23 June 2010 and 8 July 2010 and again between 16 July 2010 and 30 July 2010, the Mother was admitted to the [P] Hospital near Brisbane for treatment. The children and the Father remained in Mackay. After the Mother returned to Mackay at the end of July 2010, she commenced support services with a local psychologist (Ms H) and ATODS.
During the period from September to November 2010, the Paternal Grandfather (and at times the Paternal Grandmother) Mr H and Ms H, stayed with the Father and the family in Mackay – with much of the Paternal Grandfather’s time spent assisting in house renovations, in preparation for a sale of the home.
Although the parties each had a different “slant” on why they decided to move to Brisbane at the end of 2010, it seems clear to the Court that both parents were experiencing extreme unhappiness in the relationship and all the grandparents (on both sides) who were capable of offering support, resided in the Brisbane area.
Without either parent properly acknowledging, it seems, the state of chaos in their relationship, the parties purchased a home in [omitted] into which they moved, as a family, on about 16 December 2010. The tensions increased after Christmas and on 29 December 2010, the Mother readmitted herself to the [P] Hospital for treatment. This attendance is dealt with below, however, it is established, on the records that the Mother (contrary to medical advice), discharged herself on 5 January 2011 and over the week that followed she was involved in two car incidents – one serious and causing her to be charged with an offence of driving whilst under the influence of a drug. On 10 January 2011 she was briefly taken to [C] Hospital.
With the Father commencing [occupation omitted] on 19 January 2011, the uncertainty in the relationship increased – the Father alleging that the Mother’s drinking had increased. On 31 January 2011, the Father (regrettably accompanied by the children in an act of poor judgment), made an application for a temporary protection order. Days later, in a different Court, the Mother sought a temporary protection order. It seems to this Court, both were either trying to get a tactical advantage or at least the benefit of an “ouster order”.
On 3 February 2011, the Mother left the home with the children. This date is described as the “date of separation”. Conflict between the families (then further involving the grandparents) ensued and little is achieved in dissecting these distressing events immediately post-separation.
The Father filed an urgent parenting application on 17 February 2011 supported by a Notice of Abuse and Affidavit. The Father admits he prepared the affidavit himself (although it is said to have been “prepared by” a solicitor). It was an unfettered character assassination of the Mother. The Notice of Abuse filed alleged, in summary, that:-
“1.The Respondent has trashed our house when the children (aged 6 and 3) were present (5th and 7th January 2011) broken glass on at least 4 occasions around the house causing our young son to cut his foot and require minor surgery on 20th January 2011, and has also smashed a chain over my head in front of the children (31.1.2011). The Respondent is an alcoholic with addictions to medication. She has regularly been aggressive. She has woken our 3 year old at 3 am and pushed a puppy into his face (20.1.2011).”
The tenor of these concerns reveal, in my view, preparation by a self-represented litigant without the usually expected filter of a legal practitioner.
Furthermore, the Father in the Notice of Abuse, alleged the children were at risk of family violence because:-
“The Respondent is an alcoholic who has been unsuccessful with recent rehabilitation attempts, and continues to drink to the point of passing out and also abuses medication. She has smashed motor vehicles whilst driving on 7th and 8th January 2011 under the influence of alcohol or medication. The Children have been exposed to her aggressive and irrational behaviours prior to separation on 3.2.2011, and are now in her primary care, she has removed the children from their normal school and day care and has not facilitated any contact between the children and their Father, myself, who was previously their main care provider”.
In a very short space of time after service, the Mother was able to prepare and file an affidavit and retain a competent solicitor. At the interim hearing the solicitor appearing for the Mother asserted strenuously that the Mother was not then nor had she ever been “an alcoholic”. In particular, the Mother’s evidence contained in her affidavit filed 23 February 2011 could, in hindsight, only be categorised as an attempt to either deny or minimise the effect of her past personal challenges – whilst at the same time (and perhaps understandably considering the allegations and vitriol included in the Father’s affidavit) launched into a character assassination of the Father – summarised in part at paragraph 25 that:-
“Throughout the relationship Mr Hotham has abused me and yelled at me and has attempted to dominate and control every aspect of my life.”
In the face of little corroborating material, and with the children then residing with the Mother, the Court on an interim basis on 23 February 2011, ordered that:-
“1.That [X] (born [in] 2004) and [Y] (born [in] 2007) (“the Children”) live with the Father at all such times as may be agreed and failing agreement as follows:
a.from 5:00pm Friday to 4:30pm Sunday commencing 25 February 2011 and every alternate weekend thereafter;
b.from 5:00pm Friday to 4:30pm Saturday commencing 04 March 2011 and every alternate weekend thereafter;
c.on every Wednesday from school and daycare to 6:00pm with the Father to collect and then return the Children to the Mothers residence at 6:00pm;
d.by telephone between 6:00pm and 6:30pm on Thursday 24 February 2011 with the Father to initiate the call, and thereafter on every Monday night at between 6:00pm and 6:30pm with the Father to initiate the call and the Mother to facilitate the Children’s participation with such communication.
e.that for the purposes of transportation and changeover for weekend visits, the Mother or Maternal grandparents are to deliver the Children to the Fathers residence by 5:00pm (or later if advised by text message that they are running late) and the Father or Paternal Grandparents are to return the Children to the Mothers residence at 4:30pm (or later if advised by text message that they are running late) on either Saturday or Sunday.
2.That the Children live with the Mother at all other times
3.That the Mother be restrained as follows:
a.she is to continue to live with her parents; and
b.she is not to consume any alcohol
4.That neither the Mother nor Father are to discuss the Court proceedings with or in the presence of the Children, nor are they to denigrate the other parent or grandparent to or in the presence of the Children.
THE COURT ORDERS:
5.That [X] (born [in] 2004) and [Y] (born [in] 2007) (“the Children”) be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia at Brisbane.
6.That the parties shall attend appointments with a Family Consultant nominated by the Senior Family Consultant of the Federal Magistrates Court, Brisbane at 9:00am on 22 March 2011.
7.That pursuant to s.11 of the Family Law Act, the Family Consultant shall provide an advice to the Court and the parties that may include:
a. identification of the issues for the Children;
b. a consideration of the relevant factors contained in s.60CC of the Act and an appropriate parenting plan for the children until there can be further investigations into the matter;
c. such programmes as may assist the parties establish a better functioning co-parenting relationship and more positive and effective communication or that might assist them in the development of their parenting skills.
8.That the Family Consultant shall prepare a brief written report.
9.That the Family Consultant shall have leave to inspect any subpoenaed documents.
10.That the parties shall ensure the attendance of the children upon the Family Consultant.
11.That this matter be adjourned to 9:30am on the 06 April 2011 in the Federal Magistrates Court of Australia at Brisbane.”
By the time the matter returned to my list on 20 April 2011, the appointed ICL had caused a number of subpoena to be filed. The information from these subpoena was pivotal in the Court effectively “reversing” the earlier order. The reasons for doing so are more succinctly set out in the published judgment Hotham & Drummond [2011] FMCAfam 418. The orders made for those reasons was pronounced on 27 April 2011 as follows:-
“1.This matter be adjourned to 10:00am on 11 October 2011 in the Federal Magistrates Court of Australia at Brisbane for trial.
2.That pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001 Dr H be appointed a court expert in this matter and the parties shall submit to psychiatric analysis. The Independent Children’s Lawyer is to brief Dr H of all necessary material and copies of relevant subpoena documents on the basis that:
a. The Independent Children’s Lawyer shall provide to each of the parties, by their solicitors, a list of the documents to be provided to Dr H by way of background.
b. The costs of the court experts shall be met as follows:
i)Legal Aid Queensland shall contribute their schedule payment for a single expert report in accordance with the usual guidelines.
ii)The balances are to be paid equally by the parties.
3.The parties are granted liberty to apply.
4.That the matter be set down for final hearing for not more than 2 days commencing at 10.00am on 11 October 2011 in the Federal Magistrates Court of Australia at Brisbane.
5.That the applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 27 September 2011.
6.That each party file and serve on each other party no later than 4.00pm on 27 September 2011:
a. one affidavit setting out any further evidence in chief; and
b. one affidavit of each witness intended to be relied upon at trial.
7.That each party file and serve on each other party no later than 4.00pm on 4 October 2011, a case outline setting out:
a. a precise minute of the final orders sought;
b. a relevant chronology;
c. a list of affidavits and applications and/or responses (where appropriate) intended to be relied upon at trial and;
d. a statement of evidence which they say supports the principles contained in section 60CC of the Family Law Act 1975.
8.That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
9.That the children live with the Mother at all such times as may be agreed and failing agreement as follows:
a. From 6:00pm Friday to 6:00pm Sunday on every alternate weekend commencing 6 May 2011.
b. From 6:00pm Friday to 6:00pm Saturday on every other weekend commencing 29 April 2011
c. In respect of [X] on every Wednesday from after school to 6:00pm with the Mother return to the Father’s residence;
d. In respect of [Y], on every Wednesday from day care no earlier then 9:00am to 6:00pm with the Mother to return to the Father’s residence.
e. By telephone between 6:00pm and 6:30pm on every Monday and Thursday with the Mother to initiate the call and the Father to facilitate the children’s participation with such communication.
f. For the second half of the June/July and September/October school holidays, under the provision that the children spend the first half of such school holidays with the Father.
g. That for the purposes of transportation and changeover for weekend of holiday visits the father or Paternal Grandparent are to deliver the children to the mothers residence and the mother or maternal grandparents are to return the children to the Fathers residence, unless changeover it to occur from school or day care.
10.That at all other times the children live with the Father.
THE COURT ORDERS ON AN INTERIM BASIS:
11.That by consent and pursuant to Rule 13.04 of the Federal Magistrates Court Rules 2001, Orders, Declarations and Notations be made in terms of the document titled “Minutes of Consent” marked as Exhibit “1” and attached hereto.
THE COURT NOTES:
12.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
MINUTES OF CONSENT
EXHIBIT 1
2.That within seven (7) days of the date of this order, the Mother forthwith attend upon a General Practitioner to obtain a referral to a reputable pathologist in the local area for the purposes of undertaking supervised liver function blood testing for alcohol abuse, which includes an assessment of CDT (Carbohydrate deficient transferring) levels.
3.That the Mother undergo such supervised blood testing for alcohol abuse as requested by the Independent Children’s Lawyer, any test so requested must be completed within forty either (48) hours of receipt by the Mother of such request.
4.That such tests are to be verified by a certificate from a suitably qualified medical practitioner that the liver function test results is within normal limits in regards to the consumption of alcohol and be carried out at the parties cost.”
Because of the change of residence ordered, it was necessary for [X] to change school from [M] to [G] School.
As an assistance to the Court, the ICL arranged for the family to be assessed by independent psychologist Mr J on 21 June 2011, resulting in a report dated 20 July 2011. Subsequently, the ICL arranged for both the Father and Mother to be assessed by independent psychologist Dr H. Dr H interviewed the Mother on 25 July 2011 and 4 August 2011 and the Father on 10 August 2011. As he makes clear in his report dated 9 October 2011, he had access to significant background material, including reports from the Mother’s treating health professionals and from hospital records subpoenaed. Dr H also had a copy of Mr J’s family report.
For completeness, Mr J was asked to provide an update/addendum to the family report, which he did by a report dated 10 October 201.
Essentially the orders made 27 April 2011 were complied with until the hearing. The only other important recent development is that the ICL arranged for the child [X] to begin counselling with Mr A at Margate. Although the Mother held some concerns about this counselling, after hearing Mr A give evidence, she indicated through her Counsel that she felt the counselling should continue.
Credit
During interim proceedings, the Father asserted the Mother should be regarded as a liar and that little weight could be attached to her evidence. Until the Court had the benefit of seeing the witnesses (including the Mother and Father) giving evidence, the Court maintained an open mind.
Although both parents crave a finding that each of them was the primary carer – as if some inevitable result will then follow – my assessment is that each parent had, at different stages of the children’s lives, and shaped by the children’s ages and the parents’ work obligations, a more significant daily role. However, the close bond the children demonstrate reveals that – without a need to delve into specifics – both parents did commit to the parenting role.
The evidence clearly establishes that the Mother did initially attempt to minimise and diminish the extent of her earlier and continuing challenges to control her use of alcohol and prescribed medication. She was far from candid. It might be said that the Mother’s inability to label herself as “an alcoholic” is an example – but it is not. The Mother felt from the first affidavit of the Father very much under attack. She chose to defend herself by firstly trying to explain away earlier difficulties she had and then, using the method of “attack being the best form of defence”, make her own series of serious allegations about the Father.
It was at times in the litigation almost as if the children and their best interests were a secondary consideration rather than the primary consideration. The parents both lost sight of the reality that they both expected the other parent to have a long and continuing role in the lives of their children – and that the level of angst demonstrated was going to make that more difficult.
As the examination of the relevant primary and additional considerations makes clear, there are examples where I have preferred the evidence of one parent over the other – however where such a finding is necessary, it is to a large extent supported by other evidence (expert or corroborative) which was offered to the Court – not because of a blanket assessment that everything one parent said was truthful and the other’s evidence was untruthful.
In this case, to distil the reasons that the Court has concluded which of the proposals generally meets the children’s best interests, dealing with the history and evidence within the matrix of the s.60CC considerations is sufficient, although because of the emphasis given in this case to the subpoenaed records and expert psychological and psychiatric evidence, I choose to make some findings about that evidenced as a discrete issue.
The Mother’s history of use of alcohol and prescription mediation
The Mother before she was 20 years old had demonstrated a propensity to use illicit substances. Although the Father’s use of a “heartfelt” letter to the Mother from her father years ago and the use of pages of the Mother’s diary written when she was 27 years old was unnecessary and provocative, the subpoenaed documents tendered (see Exhibit 3) and the analysis of those records by the expert independent health professionals, Mr J and Dr H, amply support the ultimate conclusions each by them make as to the Mother’s past use and difficulties with at least alcohol and codeine.
As a result, little useful purpose is served by summarising the numerous medical events which paved the pathway the Mother has taken, in these reasons.
I am satisfied that although at the time of hearing, the Mother’s use of substances was reduced and controlled, it is fair to describe her as “in transition”. Although Dr H pointed to the length of the Mother’s history with multiple relapses (which I accept occurred) as more troubling than “the volume”, the Mother was assessed by him as having some “avoidant personality traits”, such that he opined in cross-examination, that the first couple of years are the most significant.
I understood Dr H’s evidence to be that although the vulnerability the Mother has to relapsing could never be regarded as completely non-existent, the longer her behaviour reveals stability and abstinence, the more confident one can become in regarding a relapse as unlikely. I accept this evidence. The evidence demonstrates that in the past, when the Mother is unwell, she drinks to excess and has looked for relief in at least (more recently), prescription medication.
Her decision to leave the [P] Hospital in January 2011 was against advice and the conduct that followed (2 car accidents, lying to doctors to get multiple subscriptions – a habit of her past on occasions), reveal the consequences that can flow.
Mr J fairly identified that some stressors were still to be encountered with a level of unpredictability as to the effect upon the Mother, including:-
a)moving out of the supportive environment created by her parents, to live independently;
b)the finalisation of the traffic offence of DUI and the likely consequences, if the Mother was convicted, of a loss of her driver’s licence. In this respect, at the time of this hearing, the traffic offence was still pending before the State Magistrates Court.
c)The result of this trial and the possible effect on the Mother if, as she dreads, the Court decides the Father should have the majority of care of the children.
d)The pressures on her returning to full time [occupation omitted] and all that that entails.
I do not ignore the resilience at times that the Mother has shown. I do not ignore the energy she revealed in seeking to defend herself or the genuine love and commitment she has to her children.
However, put succinctly, the Mother’s history of substance use, abuse of alcohol and addiction to prescription medication, all present collectively as a major concern in the Mother’s household which is not present in the Father’s household. It presents as a risk to the children in my view that cannot be totally discounted and cannot be ignored.
The Father’s behaviour
The Father would ask the Court to accept that because of the Mother’s history, any criticisms of his behaviour can be explained by his frustration with and inability to change the Mother’s behaviour. It is clear that the Father in my view had some awareness of the Mother’s past when he committed to a relationship – although I would accept the Mother would have probably “downplayed” or minimised some aspects. That behaviour continued to the hearing.
There were clearly tensions in the relationship in many years. However, I accept the evidence of Dr H that the Father “may have obsessional traits”. In my view, he does. His fixation on trying to establish the level and extent of the Mother’s alleged affairs is an example. The diary he kept and annexed to his affidavit is another. His intense presentation in the witness box which I observed, confirmed that his personality would easily lead to manifest intolerance with the Mother.
Although the parents resolved competing applications for domestic violence orders by mutual undertakings, I would accept that at times the Father would try and control the Mother. It may be that he felt he had to do so – however, the tensions and personality clashes between this otherwise high functioning professional couple, lead me comfortably to a conclusion that as the relationship was faltering, they were both capable of provoking the other; that this lead to aggressive behaviour at times and occasional physical interactions. It is likely the children had witnessed some of these incidents.
As both are [occupations omitted] of wide experience, it is disappointing that they could not understand the effect on their children that their growing parental/adult conflict could have on their development.
I have already recorded my adverse view of the Father’s tenor of his affidavit material – which as much as anything set the tone for the litigation.
Mr Galloway, Counsel for the Mother, pressed the Father in cross-examination and emphasised in final submissions what he categorised as the negativity the Father holds for the Mother and the risk this presents emotionally to the children, if he is the primary carer. He relied heavily, for example, on the remarks made by the Father at paragraph 4 of his affidavit filed 5 April 2011, when he says “it is a stretch of any imagination to believe Ms Drummond, as a drug addict and alcoholic played any significant role in the children’s lives” and further his emphasis on swearing to facts to support his view that the Mother was “addicted to sex”.
Mr Galloway says the Father’s ideation about the Mother reveals an “irredeemable loathing for her”, and no capacity to support the children’s relationship with the Mother. Whilst he conceded that the Mother found it difficult to concede any positives about the Father, she contended that the Father has generated in his household a “state of apprehension” of such a level that the Father says the children will not be safe. The Mother is regarded by the Father as being of “little worth or value”, he submitted.
These were very strong contentions, however, on the whole of the evidence I find that the Father is reasonably capable of separating his own highly negative views of the Mother from his understanding about the importance to the children who he knows clearly love their Mother, of promoting the children’s relationship with her. Similarly, although the Mother holds very negative views about the Father, I gained a strong impression that even if she were the primary carer, she would still be able to promote the children’s relationship with the Father.
No one would suggest that the toxic adult relationship creates an ideal environment for the children. I am satisfied both children ([X] in particular) are aware of the animosity that exists between the parents. However, I am of the view that each parent (supported by their extended family) will try and remain child focused and facilitate the orders I propose to make, which the Court finds to be in the children’s best interests.
Primary considerations
The parents’ proposals suggest that each parent accepts it is of benefit to the children that they have a meaningful relationship with both parents – as I am satisfied does currently exist. I do not find the situation is ideal, however taking a prospective approach, it seems likely that the physical separation of these quite different parents might actually allow the children’s individual relationships with each parent to prosper – absent of two competitive parents vying for attention or recognition in the same space on a daily basis.
Section 60CC(2)(b) of the Family Law Act 1975 identifies as a primary consideration “the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence”. I rely upon the findings already made above. I find that the Mother does present as a parent with greater personal challenges, which if she relapses, could expose the children to emotional harm. In making this finding I have considered the unchallenged evidence of her treating health professionals Dr Q; Dr B and psychiatrist Dr S. They reveal progress and identify a degree of insight. Clearly the prospects of continuing progress in the future is fundamentally assisted by the continuance of this treatment and therapeutic support.
The Mother asserted that apart from how the Father feels about her (which I have already dealt with), the Father has a propensity to treat the children differently and to be more strict and apply different discipline to [Y] then he does with [X]. The Father denied that to be the case. Of course the respective grandparents gave evidence of their observations however I am not satisfied that the Father presents as such a risk of harm to [Y] as suggested by the Mother.
I deal with one other issue. The hospital records show that the Mother has at times had a tense relationship with her own mother. The Father has at times referred to the history of conflict as representing another risk to the children if they lived with the Mother – seemingly exposing more often the children to that family tension. The Mother’s parents Mr D and Ms D both gave evidence by Affidavit and supported their daughter. They were not required for cross examination. I accept, as the Maternal Grandfather said at paragraph 5 of his trial affidavit, that “for all intents and purposes she maintained a career as a [occupation omitted] and lived an apparently normal life. It was only in early to mid 2010 I became aware she had a problem.” Since then, the Mother’s parents have continued to support their daughter whatever tensions might have previously existed.
Additional Considerations
Views
The Court would find it hard to attach too much weight to what the parents say the children have told them. The period of some ten months between moving to Brisbane and the trial was significantly disputive. [X] changed schools – and at least initially, not happily. School for [X] was likely to be a sanctuary for her from the tensions in the household. Post-separation after the initial “tug of war”, the initial interim orders provided for the children to live with the Mother which were then reversed in April 2011. The children would have been well aware of the parents’ changing happiness and the distress the parent experienced. Furthermore the children were involved in the dispute, with the Father acknowledging he had spoken to them about some of the issues.
Luckily the ICL identified via the family report, the need for [X] to have some counselling, and this was arranged (and was to continue) with Mr A. Mr A was essentially conducting therapeutic counselling such that his report did not, properly, in my view, set out any expressed views of the child. I take into consideration the opinion expressed by Mr A that:
“What will be important for [X] following the separation of her parents is the re-development of a sense of security for [X]……this can be developed by giving [X] a consistency of routine and responding to her emotional experiences and reassurance that both her parents are ‘safe’ even when they are not with her”
One of the tasks undertaken by Mr J was to interview the children. At paragraphs 8.1 to 8.28 of his report Mr J sets out the dialogue with [X] and at paragraphs 8.29 to 8.34 his dialogue with [Y]. As could be expected for [Y] who was just over four years old at the time of interview (June 2011), the remarks he made were immature and could not greatly assist the Court. It was apparent he had experienced his parents’ fighting and their denigration of the other parent.
[X]’s concerns seemed to be shaped by the change of school from [M] School arising from the change of residence ordered on an interim basis by the Court in April 2011. It was clear at that time she was missing her friends and teachers at [M]. By the time of the hearing (three months later), Mr A’s evidence suggested [X] was more settled in her new school of [G] School. The child expressed somewhat conflicting views (see paragraph 8.5 and 8.17), however again, the feelings recorded at paragraph 8.18 again suggest the child connected living with her Mother as allowing her to return to [M] School.
Relationships
The children’s primary relationships are with their Mother and Father, neither of whom have repartnered. I would comfortably accept that the paternal grandparents and maternal grandparents all have important relationships that enrich the lives of the children. For completeness, it also seems apparent that the siblings have a close bond to each other. Although it is asserted that if the children were to live with the Father, the relationship with the maternal grandparents would suffer, I do not accept that to be the case. In most families, the relationship with extended family members relies upon promotion by the child of those grandparents. I am satisfied that the Mother and Father will continue to support proper interaction and relationship building between the children and their extended family when the children are with them.
Willingness and Ability to Facilitate Relationships
For reasons already given, I have come to a conclusion that both parents are likely, on balance, to facilitate and encourage a close and continuing relationship with the other parent. At times, as has been the case since separation, the parties are likely to be tested. The decision I have made will not sit easily with the Mother, and further post order tensions could erupt. However the parties essentially complied with orders I had made and I have no evidence before me (neither party having sought to re-open proceedings), to support a finding that they will not comply with orders in the future. These findings are adopted as well for the purposes of s.60CC(4)
Likely Effect of Change
One of the effects of change if the children were to return to the Mother’s primary care, would be a further change to [X]’s schooling and to [Y]’s schooling as well. It is to be recalled, that in the period since January 2011, the children have been in the Father’s care and at schools and daycare in that community for all but approximately one term. Mr A’s evidence supports a finding that [X] had settled in her new school.
The Father has established a routine around his work commitments. A change to the Mother’s home, on the evidence, will place them in the primary care of a parent who is less psychologically robust, no less loving or caring; no less capable of providing support with homework or school. These parents parent differently. I do not accept, as the Father’s evidence might suggest, that the Mother has moral deficiencies.
Both parents could attend to the physical and emotional needs of the children although they are likely to do so differently. This factor is fairly evenly balanced, with consequences flowing of both a positive and negative character either way.
Practical Difficulties
The parents are both likely to be living in the Greater Brisbane area. Although negotiating traffic at different times of the day could present some challenges, and whilst it seems unlikely the parents will choose to even live in the same suburb, the practical difficulties of the children spending time with each parent is not unsustainable. If the Mother has lost her licence (as was the subject of earlier speculation), that would create some additional challenges – but the Court’s decision is not based on whether she has a licence or does not.
Capacity and Attitude to Parenting
Both these parents have held and maintain responsibilities as a [occupation omitted]. The Mother produced evidence from a range of witnesses attesting to her abilities and talents. Those witnesses; Ms B; Ms N; Ms A; Ms W; Ms G and Mr S were not required for cross examination. Although entirely supportive of the Mother, save for some earlier periods involving Mr S, none of the witnesses had significant opportunities to observe the parents as a couple. Clearly the Mother is a very capable [occupation omitted]. However, the issues of which the Court is aware from the subpoenaed material and other evidence relating to the Mother’s use of alcohol and prescription medication seemed not to arise in the public or school environment. This seems hard to accept – save that even the evidence of the Mother’s father was that he was even unaware of the problems until early 2010. I have, of course, not ignored the positive statements made by the Mother’s witnesses. It is all part of the evidence I am obliged to weigh up.
The evidence of Mr S is largely hearsay, and of the relevant observations he made they are primarily arising from before 2005 – including an extended five day period in Mackay. He certainly observed tensions between the parents of nine month old [X]. He had little opportunity thereafter to observe the parties save for isolated visits. There is no mention by Mr S of the underlying mental health issues of the Mother which the Court knows existed.
Family Violence
I accept that the Father is a person to whom order and certainty are important. I would find it consistent with his presentation to both Mr J and Dr H, that he probably dominated the relationship. He most likely controlled the finances. He may not have been encouraging of the Mother’s relationships with her extended family, however I would not discount the prospect that tensions between the Mother and her parents at times might have allowed this to occur with less opposition by the Mother. I am unable to find, applying the requisite standard of proof for such serious allegations, whether the Father was always the aggressor in physical altercations between the parents. Unfortunately the extent of the Mother’s addictions and abuse of alcohol, which I am satisfied did occur, made her a less than totally reliable and accurate historian.
I do not find either parent is likely to expose the children to family violence – although the remarks by the children to Mr J clearly show they have witnessed or been aware of the parents “fighting”. Provided these parents did not live together, the prospect of the children being the subject of family violence events in either of the parents’ households in the future are low.
Making an Order Lease Likely to Lead to Further Proceedings
When the evidence of Dr H was taken, his opinion that after a two year period the risks of relapse to the Mother would be much reduced (assuming no difficulties during that period), prompted some consideration as to whether an interim order was appropriate. Neither Counsel so urged, nor did the Independent Children’s Lawyer. The Independent Children’s Lawyer suggested a notation be included, and I deal with that proposal below.
Certainly, in circumstances where the Mother (and her supportive family), are likely to be disheartened by the Court’s decision. I could not discount further proceedings in the future which would need to overcome the use principles in Rice & Asplund [1979] FLC 90-725. Also, if the Mother lived closer to where the children go to school, and provided the Mother’s mental health issued remained stable and progressing well, it might be appropriate in the best interests of the children to consider a more inclusive parenting arrangement. Mr J certainly sees that as a possibility – more than a probability.
That could only be assessed at a later time, and I am unable with any certainty if, and if so when, that possible reassessment would optimally occur. In those circumstances it would be harmful to the children, and potentially destabilising, for these orders to be interim in character. They will not be, as a result.
Any Other Factor
I was acutely aware when writing this judgment that when I saw the parties give their evidence in October 2011, it was at the end of a period of intense scrutiny and litigation jammed into really ten months of life. When the Father “attacked” the Mother, she really had no option from her prospective other than to fight back. That she was in a transition stage (with more known stressors to come), meant that all the pressures were on her. I took that into account. I also took into account the level of embarrassment that she had to endure when the full extent of her alcohol and medication abuse was examined. I also take into account how nervous she felt about the alleged “sex videos” and other aspects of the parents’ private life being referred to.
However, I was still left with a degree of discomfort, that although some of the Father’s behaviour during the relationship was of aggravation to the Mother, the Mother essentially wishes to lay the blame for her addictions and abuse of alcohol on him. In my view of her long history of use and abuse of such substances (much of it predating the relationship with the Father), I came to the conclusion that the Mother may still have some insight to gather.
Having made this observation, the tensions in the adult relationship certainly were not helping and it is to be admired, the way that the Mother has now committed herself to the therapy and maintained the supportive relationships with her parents and her health professionals.
Conclusion
Both parents and the ICL seek orders that the parents have equal shared parental responsibility. I am satisfied that it is in the best interests of the children that both the Mother and the Father are involved and engaged in joint decisions about major long term issues for [X] and [Y]. They are both intelligent and capable of articulating a sensible option.
The Court is then required to consider whether the children spending equal time with each party is in their best interests and reasonably practicable. In my view, even though neither party seeks such a regime, I have still considered it but reject it at this time. I think the children will benefit from having a primary stable carer. As I set out below, on balance, the best interest of the children are served by the Father having that role at this time.
Furthermore, the children’s location where the Mother was intending to live (once she left the home of her parents) was not proximate enough to where the children go to school to make an equal time regime in a real sense, reasonably practicable.
It is in the best interests of the children that they spend substantial and significant time with the Mother and each of the proposals of the Father and the ICL fit that description. Because of when changeovers shall be scheduled and despite that lack of optimal communication between the parents, I do find that such an order is reasonably practicable.
The style of this final order is indicative of the preference of the drafter, however I prefer broadly the order proposed by the ICL, with the following changes and additions, namely:-
a)I prefer to indicate in the order that the best interests of the children are for them to live with the Father and spend each alternate weekend with the Mother and each alternate Wednesday from after school until before school on the Thursday. I accept this would ensure the children see their Mother weekly and that all changeovers shall generally occur at school. The order will provide for the time to extend to before school Tuesday, if Monday is a public holiday.
b)If the Mother does not live within a thirty minute drive of the children’s’ school, which of course is entirely her choice, then the travel commitment of these young children before school would not make it practicable to have the Mother deliver them to school. In those circumstances the time the children would be able to spend with the Mother would have to cease at 6:00pm on a Sunday or 6:00pm on a Monday (if the Monday is a public holiday)
c)I do not regard it as appropriate, as the Father proposes, that the Mother’s time “be conditional” on the specified conditions set out in proposed order 9. I agree with Mr Galloway, that to do so would be to give the Father too much control. I have made findings about the Mother’s need to maintain her therapeutic relationships. In my view the Mother well understands that to not do so is likely to result in a serious relapse into past addictive behaviour and make her unavailable for her children. Furthermore the testing regime is not realistic and in the hands of such power, the Father could unfairly restrict the children’s time with the Mother, if he felt there was non-compliance.
In my view the preferred terms of order are to include obligations upon the Mother as set out at paragraphs 13 and 14 as, apart from the regular attendances on her private doctors, the evidence at the hearing was that the Mother had (and would continue) to engage the Government organisation ATODS. I accept that there may become a time when ATODS determines the Mother’s attendance is no longer required (considering this is a final order). As a result, an order in these terms will be necessary:-
“In the event that ATODS forms the view that the Mother is no longer required to maintain engagement of their services, the Mother shall obtain a statement in writing to the effect and send same to the Father.”
d)I accept that the Mother regards the ICL’s proposal order 16 as further intrusion into her privacy and opposes that provision. The Independent Children’s Lawyer, for appropriate reasons on the evidence, seeks a mechanism that informs the Father, as primary carer, of an event that could act as a trigger or catalyst for the Mother to relapse. It has to be accepted, and I find, that a relapse of that nature occurred in January 2011 could present immediate risk to the children. On that basis, I agree with the slightly amended clause 16 being included.
e)I accept that the ICL’s proposed Order 20 and 21 are in a fairly common form often made. It is appropriate that when these orders are made, they be in a separate document. The Mother, who is a [occupation omitted], should not be required to explain certain references to ATODS or alcohol and drugs, to a school receptionist or the children’s school teachers when all that the school and the health professionals need to know is that the Court has ordered that both parents have the authority to access information about their children.
f)I am not prepared to order that the Mother be required to “be alcohol and drug tested for a period of two years”, as proposed by the Father. I am satisfied that the Mother would be required, as a result of her past history and treatment, and as a patient with ATODS to undertake such testing as is necessary. The reporting condition which the ICL proposes will enable the Father to be kept appropriately informed.
g)I am prepared to make the additional orders, broadly as sought by the Mother and set out at paragraph 9 of these reasons above. In making that order, I do not say that I am absolutely satisfied that the Father has the tape; however it is clear he has seen it and a copy may come into his possession.
h)In view of the evidence, I believe it as appropriate for the Mother to be restrained from consuming alcohol to excess whilst the children are in her care. The order proposed by the Father is too wide. The Mother, when she had a codeine addiction, had it “properly prescribed”. I might infer from the evidence that total abstinence from the use of alcohol might be desirable, however in a final order to make an order that the Mother not have one drink is too onerous. Again, I make the observation that if the Court felt that the Mother was likely with all her improved insight (according to her doctors), to ignore sensible advice and put her children’s safety and her relationship with them at risk, then the Court would not order unsupervised time. It holds the concerns which have been identified earlier.
The Orders which are set out at the commencement of these reasons do, in my view meet the best interests of both [X] and [Y].
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Baumann FM.
Date: 14 August 2012
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