KADEJEVIC & KADEJEVIC
[2019] FamCA 270
•2 May 2019
FAMILY COURT OF AUSTRALIA
| KADEJEVIC & KADEJEVIC | [2019] FamCA 270 |
| FAMILY LAW – CHILDREN – Interim application – Where the children live with the father and spend supervised time with the mother – Where the mother seeks that the children’s time with her be extended and unsupervised – Where the mother has suffered from alcohol use disorder – Where the evidence establishes that the mother has been abstinent from consuming alcohol for some time – Orders made for the children’s time with the mother to be increased – Orders made for that time to be unsupervised. |
| Family Law Act 1975 (Cth) ss. 60CC, 61DA, 65DAA |
| Acton & Burton [2015] FamCA 469 Banks & Banks (2015) FLC 93-637 Bant & Clayton [2015] FamCAFC 222 Goode & Goode (2006) FLC 93-286 Iphostrou & Iphostrou and Ors [2011] FamCA 20 Marvel & Marvel (No. 2) [2010] FamCAFC 101 SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Ms Kadejevic |
| RESPONDENT: | Mr Kadejevic |
| FILE NUMBER: | SYC | 21 | of | 2017 |
| DATE DELIVERED: | 2 May 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 10 April 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie |
| SOLICITOR FOR THE APPLICANT: | Boyce Family Law & Mediation |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Newnhams Solicitors |
Orders
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
Order 1 made on 25 August 2017 be varied so that the children spend time with the mother unsupervised pursuant to the time provided in the interim orders dated 17 February 2017 and varied on 25 August 2017, as follows:
(a)In week one, from after school Wednesday to before school Thursday;
(b)In week two from after school Friday until before school on Monday;
(c)On special occasions, as follows:
(i)If Christmas falls during time with the father, the children will spend time with the mother as agreed between the parties in writing but failing agreement from 10.00 am on Christmas Eve to 3.00 pm on Christmas Day;
(ii)If Christmas falls during time with the mother, the children will spend time with the father as agreed between the parties in writing but failing agreement from 3.00 pm on Christmas Day until 6.00 pm on Boxing Day;
(iii)If the children’s birthday falls during time with the father, and the children will spend time with the mother on their birthdays as agreed between the parties in writing but failing agreement from 3.00 pm until 6.30 pm; and
(iv)On the children’s birthdays, if the children’s birthdays fall during time with the mother, and the children will spend time with the father on their birthdays as agreed between the parties in writing but failing agreement from 3.00 pm until 6.30 pm;
(d)During school holidays, as follows:
(i)In the shorter school holidays the children shall spend the first week with the mother and the second week with the father; and
(ii)In the January/December school holidays the children shall spend time between the parties on a “week about” basis, with the children spending the first week of the school holidays with the father; and
(e)Such other times as are agreed between the parties in writing.
For the purpose of order (1)(d) herein, the school holidays shall be deemed to commence at the end of the last school day of term and changeover shall occur at 3.30 pm, seven (7) days after the commencement of the school holidays.
On non-school days, during school term, in substitution for the reference to “after school”, the time shall be 3.30 pm and, in substitution for reference to “before school”, shall be 9.00 am.
Except where changeover occurs at school or holiday care or as the parties otherwise agree in writing, the father shall deliver the children to the mother’s residence at the conclusion of the children’s time with the father and the mother shall deliver the children to the father’s residence at the conclusion of the children’s time with the mother.
Should either of the parties be unable to care for the children for a period of one or more nights, the other party should be given first right of refusal before the party currently caring for the child makes alternative childcare arrangements.
The mother be restrained from consuming alcohol 24 hours prior to the children coming into her care and during such times that the children are in her care.
The mother continue to consult Dr M in accordance with Dr M’s recommendations and undertake such tests, if any, as may be recommended by Dr M.
By consent, an appropriately qualified expert, as agreed between the parties, be appointed to investigate and report on those matters set out in s 60CC of the Family Law Act 1975 (Cth) and such other matters as may be reasonably requested by the parties and considered by the expert to be relevant to the determination of what parenting orders are in the best interests of the children.
In the event that the parties are unable to agree as to the identity of the expert to be appointed pursuant to order 8 herein, the expert shall be selected by the following process;
(a)Within 14 days of the date of these orders, the mother shall provide to the father the names and curriculum vitaes is of three (3) appropriately qualified experts; and
(b)Within seven (7) days of receiving written notification from the mother in accordance with order 9(a) herein, the father shall notify the mother, in writing, of the name of the expert selected by him from the list of three (3) alternatives provided by the mother.
The parties shall provide to the expert copies of all documents that they have filed in these proceedings or tendered as evidence in their case.
The parties shall follow all reasonable directions of the expert and will pay equally all costs in respect to the preparation of the expert’s report.
By consent, neither party shall denigrate the other party in the presence or hearing of the children nor permit the children to remain in the presence or hearing of any persons who engages in such conduct.
By consent, other than to the extent necessary to advise the children of the outcome of these proceedings and the fact that they will be interviewed by a family consultant, neither party is to discuss with the children these proceedings or issues of controversy that are being considered in these proceedings. Each party shall ensure that the children are permitted to telephone the other party at reasonable times as requested by the children or by the other party
By consent, each party shall do all acts and things necessary to provide all necessary authorities to enable the other party to liaise directly with the children’s medical practitioners and to provide that party with any information he or she may request from time to time in relation to the children’s health to the extent permitted by law.
By consent, each party shall keep the other advised of the current email address and contact telephone number and advise the other of any change within forty-eight hours of such change occurring.
By consent, each party shall notify the other of any illness, medical condition or injury suffered by either child whilst in that party’s care as soon as reasonably practicable shall provide any reasonable particulars as to the name and contact details of the child’s treating doctor and any hospital, medical facility or healthcare provider to which the child has been taken.
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 Kadejevic & Kadejevic 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 SYDNEY |
FILE NUMBER: SYC 21 of 2017
| Ms Kadejevic |
Applicant
And
| Mr Kadejevic |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an application by the mother, Ms Kadejevic (“the mother”), to further vary parenting orders which were initially made by consent on 17 February 2017 and subsequently varied by an order of the Court made on 25 August 2017. Those orders provided for the parties children, C, born in 2010 and D, born in 2012 (“the children”), to spend limited time with the mother, pending her recovery from alcohol use disorder. The mother’s application is made in circumstances where the evidence before the Court establishes that, to her considerable credit, the mother has made a significant recovery from her past alcohol use disorder. The extent of the mother’s challenge, in that respect, is set out in my Reasons for Judgment dated 25 August 2017.
To his credit, the father, Mr Kadejevic (“the father”), recognises that the mother has made a significant recovery and agrees that it is no longer necessary for there to be supervision of the children’s time with the mother. The father contends, however, that at this stage of the proceedings, the Court should not make orders that would have the effect of significantly increasing the amount of time that the children spend with the mother.
Evidence
At the hearing, the mother relied upon the following documents:
a)Her Affidavit filed on 20 March 2019;
b)Affidavit of Ms S filed on 20 March 2019; and
c)Affidavit of Dr M filed on 20 February 2019.
The father relied upon his Affidavit filed on 9 April 2019.
Approach of the court
In considering the mother’s application for interim parenting orders, the Court is guided by the principles set out by the Full Court in Goode & Goode (2006) FLC 93-286. Relevantly, at 80,903 to 80,904, under the subheading "How should interim proceedings be conducted?", the Full Court said:
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place)
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Applications
Orders sought by the mother
By Application in a Case filed on 26 March 2019, the mother seeks the following orders:
1. That the Orders of 17 February 2017 and 25 August 2017 be and are hereby discharged.
2. That the parties equally share parental responsibility of the children C born in 2010 and D born in 2012, (together “the children”).
3. That the children shall live with the parties on a week-about basis with changeover to occur each Monday as follows, unless otherwise agreed between the parties in writing:
a. At the conclusion of school on a school day, with each party to collect the children from school at the commencement of their time;
b. By no later than 6.00pm on a non-school day when the children attend holiday care, with each party to collect the children from holiday care at the commencement of their time; and
c. At 8.00am on a non-school day when the children do not attend holiday care.
4. That except where changeover occurs at school or holiday care or as the parties otherwise agree in writing, the Father shall deliver the children to the Mother's residence at the conclusion of the children's time with the Father and the Mother shall deliver the children to the Father's residence at the conclusion of the children's time with the Mother.
5. That the Court urgently appoints a family consultant pursuant to section 62(g) Family Law Act 1979 (Cth) to investigate and report on such matters as the Court thinks desirable, including the matters contained in section 60CC Family Law Act 1975 (Cth) and, for this purpose, if the Court is unable for any reason to appoint an internal family consultant to meet and interview all relevant parties for the purpose of preparing the report within three (3) months from the date of these Orders, then:
a. within 14 days of the date of these Orders, the Mother shall provide to the Father the names and curriculum vitaes of three (3) appropriately-qualified, external family consultants to investigate and report on such matters as the Court thinks desirable, including the matters contained in section 60CC Family Law Act 1975 (Cth);
b. within 7 days of receiving written notification from the Mother under Order 5(a) above, the Father shall notify the Mother in writing the name of the family consultant elected by the Father from the list of three (3) alternatives provided to him by the Mother; and
c. the parties will follow all directions of the family consultant and will pay equally all costs in respect of the preparation of the report.
6. That the children shall spend time with the parties on special occasions as follows:
a. If Christmas falls during time with the Father, the children will spend time with the Mother as agreed between the parties in writing but failing agreement from 10.00am on Christmas Eve to 3.00pm on Christmas Day;
b. If Christmas falls during time with the Mother, the children will spend time with the Father as agreed between the parties in writing but failing agreement from 3.00pm on Christmas Day until 6.00pm on Boxing Day;
c. If the children's birthdays fall during time with the Father, then the children will spend time with the Mother on their birthdays as agreed between the parties in writing but failing agreement from 3.00pm until 6.30pm.
d. On the children's birthdays, if the children's birthdays fall during time with the Mother, then the children will spend time with the Father on their birthdays as agreed between the parties in writing but failing agreement from 3.00pm until 6.30pm.
7. That each of the parties do all acts and things and sign all documents necessary to obtain valid passports for the children, such passports to be retained by the Mother. In the event of either of the parents wishing to remove the children from the jurisdiction for holidays or any other agreed purpose, notice shall be given by the party intending to remove them to the other party, such notice to be not less than 28 days identifying:
a. The destination trip; and
b. Details of accommodation, flights and telephone number and other relevant material to enable contact to take place,
and upon such notice being given, the requesting party shall retain the passports for the duration of the period the children are absent from the jurisdiction and return the passports to the Mother.
8. Should either of the parties be unable to care for the children for a period of one or more nights, the other parent should be given first right of refusal before the parent currently caring for the child makes alternate childcare arrangements.
9. That the Father shall reimburse the Mother for half the testing costs incurred by the Mother and required by Dr N to produce his report, being $1,068.50.
10. Neither parent shall denigrate the other party in the presence or hearing of the children nor permit the children to remain in the presence or hearing of any persons who engage in such conduct.
11. Each parent shall ensure that the children are permitted to telephone the other parent at reasonable times as requested by the children or by the other parent.
12. Each parent shall do all acts and things necessary and provide all necessary authorities to enable the other party to liaise directly with the children's medical practitioner(s) and to provide that party with any information he or she may request from time to time in relation to the children's health to the extent permitted by law.
13. Each parent shall keep the other advised of their current email address and contact telephone number and advise the other of any changes within 48 hours of such change occurring.
14. Each parent shall notify the other of any illness, medical condition or injury suffered by either child whilst in that parent's care as soon as reasonably practicable and shall provide any reasonable particulars as to the name and contact details of the child's treating doctor and any hospital medical facility or healthcare provider to which the child has been taken.
Orders sought by the father
In his Response filed on 9 April 2019, the father states that he agrees to orders 10 to 14 set out in the mother’s application. At the hearing, the father advised the Court that he also agreed to order 5. Those orders will be made by consent.
In his Response, the father seeks the following orders:
That the interim orders made on 25 August 2017 be varied as follows:
1. That Order 3 be varied so that the children spend time with the mother unsupervised pursuant to the time provided in the current interim orders dated 17 February 2017 and varied on 25 August 2017 as follows:
(a) in week one, from after school Wednesday to before school Thursday, and
(b) in week two from after school Friday until 5pm on Sunday,
(c) such other times as are agreed between the parties in writing.
2. Within seven days prior to the Children spending time with the Mother, the Mother shall undergo random supervised urinalysis if requested by the father, provided that such requests are limited to no more than one occasion every three (3) calendar months and such requests:
(a) Are made in writing or communicated to the Mother by email;
(b) Any test so requested must be:
(i) Completed within 24 hours of receipt by your client of such a request; and
(ii) Verified by a certificate which includes a temperature endorsement; and
(iii) Carried out at the cost of your client.
3. A copy of any certificate issued in consequent upon a test so requested pursuant to 2 above, shall immediately be provided to the Father's email address.
4. If any urine test result for the Mother proves positive to any illicit substance or alcohol, the children shall not spend time with the Mother.
5. That order 5 of the orders made on 17 February 2017 shall be varied as follows:
(a) That for the purposes of changeover, where changeover does not occur at the Children's school or vacation care, the Mother shall collect the Children from the Father's residence at the commencement of time and the Father shall collect the Children from the Mother's residence at the conclusion of the time.
6. That in addition to the times in Order 2 above, the children spend time with the Mother from 1 0am on Christmas Eve 2019 to 1 pm on Christmas Day 2019.
7. That the Mother be restrained from using any illicit or illegal substance prior to the Children coming into her care and during such times that the Children are in her care.
8. That the Mother be restrained from consuming alcohol 24 hours prior to the Children coming into her care and during such times that the Children are in her care.
9. That each party be restrained from making any negative comment or gesture about the other party or any member of the other's party's family in the presence and/or hearing of the children.
10. The mother shall not discuss with the children any proposals for them to spend time together.
11. That the Mother pay the costs of the father in respect to this interim application.
Issues in dispute
In determining what is in the children’s best interests, it is necessary for the Court to consider the matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). In Banks & Banks (2015) FLC 93-637 at 80,109, the Full Court outlined a common sense approach to applying the s 60CC considerations, in the following terms:
…there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
The primary issue in this matter is whether the children are at physical and/or psychological risk in spending significant time with the mother, as result of her history of alcohol abuse.
If it is found that the children are not at such a risk if their time with the Mother is increased, the secondary issue becomes what interim orders should be made, having regard to the best interests of the children and those matters set out in ss 60CC and 65DAA of the Act.
Limited ability to resolve issues of fact in interim proceedings
As noted in Goode& Goode (supra), the Court has a limited ability to resolve controversial factual issues in interim proceedings. In that respect, in Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [44], Cronin J said:
In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction.
Similarly, in Acton & Burton [2015] FamCA 469 at [26], Hogan J said:
The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them…
Factual contentions
Immediately following is a summary of relevant agreed facts. Where certain factual assertions are not agreed, I have set out the parties’ relevant contentions.
The father was born in 1971 and is currently aged 47 years.
The mother was born in 1974 and is currently aged 44 years.
In 2004, the parties commenced cohabitation in Canberra.
In around February 2006, the parties moved to Sydney.
In 2006, the parties were married.
In 2010, the parties’ child C was born. He is currently aged eight years.
In 2012, the parties’ child D was born. She is currently aged six years.
In 2016, the parties separated, but continued living at the former matrimonial home at X Road, Suburb P NSW (“the former matrimonial home”).
On 4 January 2017, the father commenced the substantive proceedings when he filed an Initiating Application.
On 8 February 2017, I made the following orders:
1. The matter is adjourned at 10.00 am on 17 February 2017 for interim hearing before McClelland J.
2. Leave is granted for cross examination of the parties to occur on 17 February 2017.
3. Pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”) a Limited Issues Report be prepared by a Family Consultant nominated by the Manager of Child Dispute Services, which report shall address the following:
a. Issue of risk of the children living with or spending time with wither [sic] parent in terms of 60CC(2))(b) of the Act; and,
b. Any other matter(s) which the Family Consultant considers relevant. …
On 17 February 2017, the following interim parenting orders were made by consent:
1. That each of the Applicant Father and Respondent Mother have equal shared parental responsibility in relation to the children C, born in 2010, and D, born in 2012 (“the children”).
2. That the children shall live with the Applicant Father.
3. The Mother shall spend time with the children as follows:-
a. From 10am to 3pm commencing Sunday, 26 February 2017 and each Sunday thereafter until and including 26 March 2017.
b. Commencing Friday, 31 March 2017 and each alternate week thereafter from after school Friday to 3pm Saturday.
c. Commencing Sunday, 9 April 2017 from 10am to 3pm and each alternate Sunday thereafter.
d. As and from 26 April 2017 from after school to 6.45pm and each alternate Tuesday thereafter.
Provided always that the Mother’s time with the children shall be in the presence of any one of the following persons:-
i. Ms S (being the maternal grandmother); or
ii. Mr S (being the current husband of Ms S); or
iii. Any other person agreed upon by the parties.
4. The children shall spend overnight time with the maternal grandparents on 22 April 2017.
5. For the purpose of implementation of the time spent by the children with the Mother, the Mother undertakes to collect the children from the former matrimonial home and drive the children directly to a location where either or all of Ms S, Mr S or any other person agreed upon for the purpose of fulfilling their obligations pursuant to Order 3 and likewise the Mother is to return the children at the conclusion of the time she is to share with the children to drive directly back to the matrimonial home with the children.
6. That the Mother is forthwith restrained from:-
a. Consuming any alcohol during any period when the children are to spend time with her, or 24 hours prior to the commencement of such period.
b. Taking any prescribed medication in excess of the prescribed dosage.
c. Taking any prescribed medication less than the prescribed dosage.
7. That the Mother shall:-
a. Undertake Carbohydrate Deficient Transferrin (CDT) testing with an accredited pathology service, such testing to be undertaken on a weekly basis for a period of twelve months confirming that the Mother has no alcohol in her system in breach of Order 6(a), with the results of each such test to be provided to the Father or his legal representative within 7 days.
b. Until 31 March 2017, undertake supervised urinalysis as follows:-
i. During the 48 hour period prior to the commencement of any time she spends with the children, with the result to be provided to the Father’s solicitors within 7 days.
8. In the event that the Mother fails to comply with her obligation of testing as identified in Order 7 above or in the alternative the results of such testing identify the consumption of alcohol, then the children’s time with the Mother shall be suspended pending further Order.
9. That within 7 days of the date hereof the Father be declared to have the exclusive use and occupation of the former matrimonial home situated at X Road at Suburb P NSW to the exclusion of the Mother.
10. That within 7 days of the date hereof the Mother shall vacate the matrimonial home.
11. In addition to the times above, the Mother spend time with the children from 10am to 3pm on Mother’s Day on the same terms and conditions as identified above.
12. Each of the parties shall provide to the other reasonable time with the children on their birthdays and other special occasion such as the parents birthdays, Father’s Day and Mother’s Day.
13. That each of the parties do all acts and things and sign all documents necessary to obtain valid passports for the children, such passport to be retained by the Father. In the event of either of the parents wishing to remove the children from the jurisdiction for holidays or any other agreed purpose, notice shall be given by the party intending to remove them to the other party, such notice to be not less than 28 days identifying:
a. The destination of the trip;
b. Details of accommodation, flights and telephone number and other relevant material to enable contact to take place,
and upon such notice being given, the requesting party shall retain the passports for the duration of the period the children are absent from the jurisdiction and return the passports to the Father. It is to be noted that neither of the parties intend to remove the children from the jurisdiction before the matter is brought back to the Court.
14. The Mother is restrained from bringing the children into contact with Mr H without the husband’s permission first being obtained. …
On 31 July 2017, an order was made that Dr N be appointed as the Single Expert to prepare a report in respect of “matters pertaining to the mother’s chronic relapsing illness by way of her consumption of alcohol”.
On 25 August 2017, the following interim parenting orders were made:
1. Order 3 of the orders made on 17 February 2017 shall be replaced with the following:
The mother shall spend time with the children as follows:
(a) in week one, from after school Friday until 9 AM Saturday
(b) in week two from after school Friday until 5 PM on Sunday provided always that the mother’s time the children shall be in the presence of the one of the following persons:
i. Ms S (being the maternal grandmother); or
ii. Mr S (being the current husband of Ms S); or
iii. any other person agreed upon by the parties.
2. Order 5 of the orders made on 17 February 2017 is varied to replace the words “the mother undertakes to collect the children from the former matrimonial home” with “the mother shall collect the children from school during school term and the matrimonial home on non-school days”.
As result of difficulties in Ms S (“the maternal grandmother”) being unavailable to supervise the children’s time with the mother on Saturday nights, the children have not spent time with the mother on Saturday nights in the period subsequent to October 2018. The mother contends that, while she would have liked to have spent the additional overnight time with the children, she has not sought to engage a person other than her parents to supervise that time, as she regards matters relevant to these proceedings as raising sensitive family matters.
The mother contends that she has attempted to negotiate alternative arrangements with the father to address the issue of the maternal grandmother being unavailable to supervise the children’s time with her on Saturday nights, but that they were unsuccessful in reaching agreement.
In that regard, it is not disputed that the father’s solicitors sent the mother’s solicitors a letter dated 7 December 2018, which is annexed to the father’s Affidavit, which included the following:
Our client has considered your client’s request for unsupervised time and on an interim basis is only prepared to agree for the children spending unsupervised time with your client on the following conditions:
1. That the children spend time with your client unsupervised pursuant to the time provided in the current interim orders dated 17 February 2017 and varied on 25 August 2017; and
2. Within seven days prior to the Children spending time with your client, she shall undergo such supervised urinalysis as is requested by our client, provided that such requests:
a. Are made in writing or communicated to your client directly by email;
b. Any test so requested must be:
i. Completed within 24 hours of receipt by your client of such a request; and
ii. Verified by a certificate which includes a temperature endorsement; and
iii. Carried out at the cost of your client; and
3. A copy of any certificate issued in consequent upon a test so requested pursuant to 2 above, shall immediately be provided to our client's email address.
4. If any urine test result for your client proves positive to any illicit substance or alcohol, the children shall not spend time with your client.
5. That your client be restrained from using any illicit or illegal substance prior to the Children coming into her care and during such times that the Children are in her care.
6. That your client be restrained from consuming alcohol prior to the Children coming into her care and during such times that the Children are in her care.
Further, in that correspondence, the father’s solicitors state: “Our client is not prepared to increase the Children's time they spend with your client until there has been a period of adjustment for the Children, as well as your client”. The parties also appear to have agreed that: “The children spend time with [the mother] from 10.00 am 24 December 2018 to 1.00 pm on Christmas Day and thereafter with [the father]”.
At paragraphs 47 to 52 of her Affidavit, the mother contends that the limitations on the amount of time that the children spend with her and the fact that that time has been supervised has adversely impacted upon the quality of that time. As the father acknowledges that supervision is no longer appropriate, I will not further explore that specific issue.
In the maternal grandmother’s Affidavit, she similarly asserts that she has observed that the children have been adversely impacted by spending less time with the mother. The maternal grandmother also attests to the difficulty that she experienced in supervising the children’s time with the mother, which related to her personal circumstances, rather than any conduct on the part of the children or the mother. In these interim proceedings I am unable to make findings in respect to the assertions made by the maternal grandmother and, accordingly, I will not give further consideration to the contents of her Affidavit.
At paragraphs 12 to 14 of her Affidavit, the mother summarises the efforts she has made to address her alcohol consumption issues. There did not appear to be any challenge to the mother’s evidence, in that respect, or in respect to the mother’s assertion that she has now been abstinent from consuming alcohol for two years and five months. I will shortly refer to expert evidence that is consistent with those assertions of the mother. However, the extent to which the mother has recovered from alcohol use disorder was a live issue in these proceedings.
At paragraphs 15 to 22 of her Affidavit, the mother sets out her evidence contending that the children love her, continue to be affectionate towards her and have voiced a desire to spend more time with her and indeed, as stated at paragraph 19(f), “to live with” her. In these interim proceedings, I am not in a position to make findings regarding the children’s views, however, it was not disputed that the children enjoy their time with the mother and wish to spend time with her.
At paragraph 23 and 24 of her Affidavit, the mother sets out her current accommodation arrangements, being a two-bedroom security apartment in Suburb U, which is located a short distance from the former matrimonial home, where the children currently reside with the father. There is no issue that the mother’s accommodation is appropriate for herself and the children.
At paragraphs 26 to 36 of her Affidavit, the mother lists a number of concerns she has in respect to the father’s conduct as a parent, his parenting style and the fact that he is overly reliant upon his parents to support him in his care of the children. In these interim proceedings, I am unable to make findings in respect to those assertions.
At paragraphs 37 to 39 of her Affidavit, the mother sets out her employment history since February 2017 and notes that she is “currently employed on a contract basis (with permanent employee benefits) as a Professional for Company Z NSW” with a salary of $156,000. The mother states that her employment is “flexible” in terms of the hours she works and “is very accommodating in terms of allowing [her] to leave early to collect the children and attend a family matters”.
At paragraphs 39 to 44 of her Affidavit, the mother describes the personal impact of being required to undergo regular carbohydrate deficient transferrin (“CDT”) testing and urinalysis testing. Her account includes the fact that CDT testing “was invasive, painful (causing bleeding and bruising from repeated punctures) and traumatic for [the mother] personally”. The mother incurred a total cost of $4,160 in undertaking 52 CDT tests.
There is no issue that each of the test undertaken by the mother has produced negative results.
Further, as part of the exercise of preparing his report, Dr N requested a hair follicle test, a CDT test and a supervised chain-of-custody urine drug test. The mother has met the cost of those tests, being $1,068.50. Those tests were also negative.
In his Affidavit, the father asserts that the children are progressing well at Suburb P Public School. The mother, however, disputes that the children are reaching their full potential, in that regard.
The father asserts that in his employment as a Manager at the V Organisation allows him “significant flexibility” in regard to his work hours, in order to care for the children.
At paragraphs 16 to 22 of his Affidavit, the father gives evidence regarding his daily routine with the children and the activities they enjoy together.
At paragraphs 24 and 25 of his Affidavit, the father describes arrangements he has made for the children during school holiday periods and attests to having taken the children on two holidays, including to a resort in Queensland. It is not disputed that the children enjoyed that holiday.
At paragraphs 26 to 28 of his Affidavit, the father describes the children’s engagement in extracurricular activities, with C engaging in sport activities and D studying a foreign language, a musical instrument and participating in a choir. Both children have also engaged in swimming lessons.
At paragraphs 30 to 33 of his Affidavit, the father describes his parenting support network. There did not appear to be any issue in respect to those assertions, save insofar as mother states that the father has a tendency to be over reliant upon his parents in caring for the children.
At paragraphs 34 to 38 of his Affidavit, the father describes his observations of the children and concludes that “Since the making of the interim orders [on 25 August 2017] the children have been settled in their current arrangements”. Further, that the father does not “observe either of the children to be sad or anxious with the current arrangements and [the children are both] progressing well”.
At paragraphs 39 to 48 of his Affidavit, the father attests to the efforts he has made in assisting the children to attend school and do their homework. He gives an account as to how he has balanced his employment and parental responsibilities, including becoming involved in the children’s school community. The father’s evidence is, unfortunately, disparaging of the mother’s efforts, in those regards, in a similar manner to her evidence regarding his efforts. Again, in these interim proceedings, I am unable to make findings in respect to those competing contentions.
At paragraphs 49 to 65 of his Affidavit, the father attests to having ongoing concerns regarding the mother’s personality, mental health, and potential to relapse into alcohol abuse. While s 69ZT of the Act provides that certain provisions of the Evidence Act 1995, including those relating to the admissibility of non-expert opinion, do not apply in parenting proceedings, I nonetheless give no weight to the opinions of the father in respect to those matters, other than to the extent that his evidence is reflective of the opinions that he has and explains the position that he has taken in respect to these proceedings.
At paragraphs 66 to 96 of his Affidavit, the father gives a history of the parenting arrangements since orders were made on 17 February 2017 to date. While, as indicated above, the mother has questioned aspects of the father’s conduct in respect to the children and his parenting capacity, as stated, I am unable, in these interim proceedings, to make findings of fact in respect to the parties’ respective contentions. Having noted that limitation, I observe that the parties’ respective contentions regarding flaws of the other party’s parenting capacity. Each of the parties expressed concerns which appear to be relatively trivial and have been made in the context of adversarial proceedings. Those competing contentions are not such that they have influenced the parenting orders that I make in these proceedings.
Further, I am concerned that there is, at least some, evidence of the parties drawing the children into their dispute by discussing potential orders in these proceedings with them. If that has occurred, it is most regrettable and the parties should desist from any such conduct.
Expert evidence
Dr N
In his report dated 22 October 2018, Dr N considered the following issues:
· Whether the Mother has suffered or currently suffers from the condition Alcohol Use Disorder or any other condition relating to the consumption of alcohol including the diagnosis and prognosis of the Mother’s illness;
· The impact of the Mother’s current condition, if any, upon the Mother’s capacity to parent the children;
· The risk of the mother relating to her current condition, if any;
· The risk to the children from the Mother’s current condition, if any, and whether they would likely be exposed to physical, emotional and/or psychological harm from being placed in the Mother’s care;
· The likelihood of the Mother relapsing from her current condition, if any;
· What treatment or services are recommended to address the Mother’s current condition, if any;
· An assessment of the Mother’s capacity to recognise and address her condition, if any, including but not limited to her willingness and commitment to engage with appropriate treatment and/or support services to assist her in recovery from the condition;
· Whether the likelihood of relapse is affected as a result of the Mother’s commitment to continue to engage with such treatment and/or support services;
· The effect of the Mother’s relationship with a fellow inpatient of a rehabilitation centre on her ability to recover from her illness; and
· Any other mater that “you deem relevant”.
Dr N records that the mother appears to have “last been alcohol-dependent in October 2016” and that there is no evidence from his assessment that she currently “meets any ICD-10 diagnostic criteria related to current problem drinking”. He further states that it is his opinion, as well as that of Dr M, Clinical Psychiatrist, that the mother “meets ICD-10 diagnostic criteria for f10.21 Alcohol Dependence in Remission” and that “it would appear that she has now been abstinent for 2 years”.
In his report, Dr N states that he was advised by the mother that “she takes 20 mg of an antidepressant called [BC], which is prescribed by her GP… She has also been taking antidepressant [LT] at times, to deal with surges of anxiety”. Dr N further notes that: “During the assessment period, [the mother] was transitioned off [LT] for the management of anxiety and has been prescribed a low-dose atypical antipsychotic medication ([TE]), which can be very effective in aiding sleep and dampening down acute anxiety”. He further states that: “There is negligible abuse potential associated with [TE]”.
Dr N states that a hair follicle test undertaken by the mother to detect whether she had consumed alcohol in the previous month was negative, which was “consistent with [the mother]’s claim that she had not engaged in any alcohol use during the 3-4 months preceding the collection of the hair and the findings provided no evidence of recreational or excessive consumption of alcohol”. Dr N also noted that the numerous CDT tests undertaken by the mother returned “no biomedical evidence of recent, ongoing, excessive alcohol intake”. Dr N also noted that the mother provided a blood sample for a liver function and related test and that those results “provide no evidence of recent, excessive alcohol consumption”. Dr N summarised the test results as showing that “taken together findings from the assays undertaken provide no evidence of problem drinking by [the mother] during the assessment period”. Dr N also noted that tests undertaken with a view to establishing whether the mother had taken illicit substances were also negative.
Relevantly, Dr N indicated that he was “perplexed about the frequency of CDT testing”, which he described as being above and beyond what was necessary to detect alcohol abuse. In that regard, he stated that, in his view, the weekly testing was unwarranted and involved a risk “because any blood testing carries risk of infection, vascular and skin trauma as well as discomfort and pain”.
Insofar as the father has expressed concern regarding the mother’s mental health, Dr N noted that the mother had “commented that this constant intrusion [on the part of the father] and the stress of trying to negotiate with [the father] had provoked a panic anxiety in her”. However, Dr N expressed the opinion that “considering the difficulties and challenges that [the mother] outlined during the assessment and her capacity to face and overcome difficulties, it is this reviewer’s impression that [the mother] is psychologically resilient, despite her recent anxiety”.
Dr N also noted that, on 7 July 2018, he undertook a brief visit to the mother’s residence, where he observed no indication of tobacco or alcohol consumption. He summarised that the “dwelling impressed as well decorated but lived-in, comfortable and functional” and “noted nothing that caused concern to the children’s safety or wellbeing”.
Dr N opined that the mother has robustly engaged in treatment and recovery programs and has shown an ability to maintain her abstinence from alcohol consumption for a period in excess of two years, despite “considerable stress and anxiety”, including that associated with these proceedings. In that regard, Dr N states: “Through very hard work, [the mother] has developed increasingly robust coping skills”. Dr N noted that, in the future, the mother may decide to reduce her attendance at Alcoholics Anonymous meetings and the number of sessions she has with Dr M and that if those reductions occurred in the context of improvements in the mother’s wellbeing, they would not be inappropriate.
Dr N further notes that:
There are also strong, protective factors in place. [The mother] impresses as having a strong psychological investment in her role as a parent and in the well being [sic] of her children. She is very clear that any reinstatement of drinking would jeopardise her ability to act as an advocate and caregiver for her children. She is strongly work-oriented and possesses good, saleable professional work skills. She is able to support herself financially and to maintain independent accommodation without financial assistance. She has been and continues to be very active in seeking professional and other help. She has excellent professional and peer support.
Dr N noted that “it is not possible” for him to make “exact, long-term predictions” about the mother maintaining abstinence from alcohol, however he noted that “craving for most people appears to be worst the first few months or year of abstinence” and that the mother has moved beyond that point. In that regard, he further states that:
It is observed clinically that by 2 years of abstinence many of the changes that need to occur [which are set out in his report] are very well advanced, making a person less vulnerable to reinstatement of drinking, unless they have secretly harboured ideas about reinstating ‘social drinking’; maintained personal and social ties to other drinkers; put themselves repeatedly into drinking-provocative situations; not addressed their physical and psychological well being [sic] or are not in a stable living situation. …
[The mother] would appear to have pushed through the period of abstinence when she would have been most susceptible to reinstatement of drinking through exposure to situations likely to trigger an interest, desire or need to reinstate drinking.
In summary, Dr N stated that, on the basis of his review, “he would predict that reinstatement of drinking by [the mother] is significantly less likely after 2 years of abstinence than in the first 6-12 months”.
Dr N stated that he has “not found any data during this assessment that would suggest that [the children] are at risk of physical, emotional or psychological harm from [the mother’s] current situation, except for the need to not expose the children to tobacco smoke”. However, in that respect, he noted that the mother is attempting to reduce her consumption of cigarettes and that she does not smoke around the children. Dr N specifically stated that he saw no justification in there being ongoing supervision of the children’s time with the mother. However, it was noted that Dr N was not in a position to assess the mother’s parenting abilities, having not observed her with the children and having not interviewed the children.
Dr M
Dr M attached to her Affidavit a copy of her report concerning the mother, dated 16 December 2018. Dr M attests to having “seen [the mother] on a regular basis since 24 March 2018, for the most part every two weeks”, however, it can be accepted that the reference should correctly be to 24 March 2017.
In her report, Dr M outlines the history of the mother’s alcohol dependence and the previous treatment which she has undertaken. Dr M expressed the opinion that the mother was “well engaged” in “very comprehensive” treatment prior to her consulting Dr M, which is detailed at paragraph 7 of the report.
Dr M outlines the treatment she has provided to the mother and, in addition, states that “given the adversarial nature of the ongoing Family Court matter and its emotional impact, I have also referred her to a clinical psychologist for more Trauma Based Therapy and Anxiety Management Strategies”.
Dr M expressed the opinion that the mother has “continued to make positive progress in her recovery with no evidence of any lapses or relapses to the use of alcohol for over two years”. Dr M reports that “despite the ongoing stressors related to the Family Court matter, [the mother] does not experience any thoughts, cravings or urges to use alcohol”. Dr M notes that the mother’s report of abstinence is confirmed by testing, which Dr M arranged.
Dr M noted that the mother “experienced nightmares as well as episodes of acute anxiety with cardiac palpitations” during the course of 2018. Dr M expressed the opinion that the mother’s experience of those symptoms was as a consequence of stressors related to:
a)The commission of Dr N by the Family Court, requiring a high level of scrutiny of her history;
b)The ongoing adversarial nature of the Family Court matter; and
c)The ongoing requirement for access to her children to be supervised, the limited amount of access the high level of stress that this has created for her mother, herself and her children.
Dr M noted that, in addition to medications prescribed by her, the mother has developed “a range of cognitive and behavioural strategies (including exercise) and mindfulness to manage these episodes”. Having noted those strategies, Dr M expressed the opinion that “there are no other concerns about [the mother’s] mental health and there is no evidence of any issues which would raise concerns [from Dr M’s perspective] about her ability to parent her children”.
In respect to whether or not the mother should submit herself to further testing, as requested by the father’s solicitors in their letter dated 7 December 2018, Dr M stated:
… I consider the proposal for [the father] to make determinations about when [the mother] should have urinalysis conducted after periods of access to the children (and to dictate what the nature of those request should be) to be highly inappropriate and adversarial in nature.
In summary, Dr M stated that, as a result of the mother’s “active engagement in a comprehensive treatment program”, she has made a “very positive recovery from an Alcohol Use Disorder” and has remained abstinent for two years, despite certain stressors, to which I have earlier referred. Dr M further noted that the mother’s treatment program is “reviewed and modified on a regular basis depending on the current circumstances and her clinical needs”. Dr M expressed the view that: “No further Urine Drug Testing or Hair Testing is required”, but stated that she would continue to monitor the mother’s progress and “order any tests that [Dr M feels] are clinically required” based on her assessment of the mother at each future interview.
Ms J
The mother also relied upon the report of Ms J, Family Consultant, dated 15 February 2017. In my decision dated 25 August 2017, I made extensive reference to the contents of Ms J’s report, including at paragraphs 47, 50, 51, 53, 62, 63, 64, 66, 83, 89, 93, 95, 103, 106, 112, 114, 116, 121, 122 and 123. I will not unnecessarily extend the length of this decision by repeating references to those relevant paragraphs.
I note, however, that during the course of the hearing on 10 April 2019, Senior Counsel for the mother referred the Court to the report of Ms J generally and, most relevantly, to the following extracts.
At paragraph 25 of her report, Ms J states:
In their individual interviews [the parties] were restrained in their criticisms of each other. Certainly they expressed frustration and concerns but they did not dwell on these and were able to acknowledge positive attributes of each other as people and parents. Considering the trials they have been through and the significant problem in the family of [the mother’s] alcoholism, this is to their credit. They have before them two options: to obtain support so they can achieve separate but co-operative parenting of their children so that [C] and [D] have the benefit of two loving and fully involved parents throughout their childhoods and [the parties] maintain autonomy as parents; or a pathway through the legal system which will inevitably exacerbate conflict, take a lot of time and defer resolution, cause tremendous stress to the parents and children, drain financial reserves and place decision making about the children into the hands of a third party. There is abundant evidence to demonstrate that the latter option is detrimental to children’s wellbeing.
At paragraph 123 of my decision dated 25 August 2017, I noted that the parties had hardened in their position against each other in the period subsequent to their interviews with Ms J on 10 February 2017. Unfortunately, in the period subsequent to 10 February 2017, the parties have pursued the second option referred to by Ms J. The Affidavit evidence that they have each filed in these proceedings is reflective of further animosity that has developed during the course of these proceedings. Specifically, both parents now make accusations and imputations against the other in respect to what they contend is inappropriate parenting. This is regrettable and, for that reason, during the course of the proceedings on 10 April 2019, I took a little time to respectfully suggest to the parties and their legal representatives that they take stock of the path they have chosen to traverse. It is a path which will ultimately lead to heightened conflict and will not be in the best interests of the parties or, more importantly, the children.
Senior Counsel for the mother noted that, despite Ms J’s concerns that orders providing for the children to live with the father may make the mother “more vulnerable to relapsing” in respect to her alcoholism, to her credit, this has not occurred. In that regard, Senior Counsel for the mother also noted Ms J’s opinion that the children “are young and they need both parents in their lives in a real and meaningful way as far as that is possible” and referred to paragraph 30 of the report, where it is stated that:
Should [the mother’s] abstinence stabilise after 9 to 12 months or so, it would be in the best interests of [C] and [D] for consideration to be given to [the parties] sharing the care of the children as they have done so creditably for many years.
Counsel for the father, however, noted Ms J’s concern that the mother had denied that “her drinking ever had any impact on her parenting”. However, I respectfully accept the submission of Senior Counsel for the mother that there has been considerable “water that has flowed under the bridge” since February 2017. It is clear that the mother has since acknowledged the extent to which she had been impacted by alcohol abuse and has made a determined effort to address that affliction.
Parental responsibility
Section 61DA of the Act provides that, in making a parenting order “the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility”.
Both parties agree that the interim order made by consent on 17 February 2017 for them to share parental responsibility continues to be appropriate, and as such, it will not be displaced.
Consideration of s 60CC of the Act
Primary considerations
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations to be taken into account are set out in s 60CC(2), as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing those considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
Meaningful relationship
In this matter, both parties acknowledge the importance of the children having a meaningful relationship with the other parent. As noted by Ms J, these young children “need both parents in their lives in a real and meaningful way as far as that is possible”. The central issue in these proceedings is the extent to which that is, in fact, possible, at this point in time.
Unacceptable risk
I have above set out the difficulty for the Court in making findings in respect of controversial facts in interim proceedings. In that respect, in SS & AH [2010] FamCAFC 13 at [100], Boland and Thackray JJ noted that in assessing risk, in interim proceedings “a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected”.
It is to be observed that the reference to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect children from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”: Bant & Clayton [2015] FamCAFC 222 at [99]. In that respect, where risk is alleged in interim parenting proceedings, a conservative approach is warranted that is “likely to avoid harm to a child”: Marvel & Marvel (No. 2) [2010] FamCAFC 101.
The father acknowledges that the mother has made significant progress in addressing her alcohol use disorder. On that basis, the father agrees that it is no longer necessary for the children’s time with the mother to be supervised.
The father contends, however, that he has residual concerns as to the extent to which the mother has, in fact, recovered from her history of alcohol abuse, as well as the risk of her relapsing into that disorder.
The father further contends that there are aspects of the mother’s behaviour, including evidence that she has been vulnerable to experiencing episodes of anxiety and panic, which have the potential to place the children at risk of psychological harm in her care.
For those reasons, the father contends that, pending receipt of a report from a Single Expert, who he agrees should be engaged in these proceedings, the Court should take a cautious approach in specifying the amount of time that the children should spend with the mother.
Having regard to the reports of Dr Q and Dr M, I am satisfied that the children are not at risk of physical harm when they are in the care of the mother.
In determining whether the children face an unacceptable risk of psychological harm, in that regard, I note that there has been reference to the mother experiencing stress, anxiety and panic attacks, including heart palpitations. Both Dr Q and Dr M referred to the impact of the parental conflict, the aftermath of that conflict and the involvement in proceedings as being significant stressors faced by the mother, which have probably contributed to those conditions. The mother has been prescribed medication to manage those symptoms. At this stage of the proceedings, when the Court does not have the advantage of a Single Expert report addressing the matters set out in s 60CC of the Act, including any potential psychological risk to the children as a result of being exposed to the mother in circumstances where she is suffering stress, anxiety and/or panic, it is appropriate for the Court to take a cautious approach.
Additional considerations
Any views expressed by the children
Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
Both parents contended that the children have expressed a wish to live with them. In the absence of an updated report from a Single Expert, I am unable to determine what the wishes of the children are. However, in my decision dated 25 August 2017, I noted the observations of Ms J that, upon the children leaving the childcare room, “there was boisterous laughter and physical affection between the children and both parents”.
On that basis, I accept that it is reasonable to assume that the children wish to spend time with both parents.
The children’s relationships
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
In addition to having a close relationship with their parents, it appears that the children spend a considerable amount of time with their paternal grandparents and maternal grandmother.
The evidence is not, however, sufficient for me to make a determination as to the nature of the children’s relationship with each of their grandparents. That is a matter that will require further consideration in light of any opinion expressed by the Single Expert engaged by the parties in these proceedings.
Decision making, spending time and communicating with the children
Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
As I noted in my decision dated 25 August 2017:
…both parents have taken the opportunity to spend time and to communicate with the children and no issue has been raised that they have failed to take the opportunity to participate in making decisions about major long-term issues relating to the children. This is consistent with the fact that the consent orders, agreed to by the parties on 17 February 2017, provide for the parents to have equal shared parental responsibility.
My findings, in that regard, remain relevant to this decision. Further, the parties continue to be of the view that there should be an order for equal shared parental responsibility.
Obligation to maintain the child
Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
No issue has been taken in these proceedings regarding the fact that each party has fulfilled their obligations to maintain the children.
Effect of change
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.
This consideration is significant to these proceedings. The children have spent a limited amount of time with the mother since she moved out of the family home in February 2017. In the period between August 2017 and October 2018, the children spent three nights per fortnight with the mother, however, in the period subsequent to October 2018, the children have spent two nights per fortnight with the mother.
In his Affidavit, the father went into some detail regarding the children’s daily routine, including their school and extracurricular activities. Despite the mother being critical of aspects of the father’s parenting, based on the available evidence, it appears that the father has been coping with his responsibilities as the parent with whom the children live.
The current orders provide for the children to spend time with the mother on Friday and Saturday nights, and as such, the mother has not been involved in getting the children ready for their school and mid-week extracurricular activities. The mother attests to having a broad support network to assist her in managing such tasks. She also attests to having a sympathetic employer who enables her to have flexibility so that she can cope with her family responsibilities. While this may well prove to be the case, at this stage, her capacity in that regard remains untested.
Practical difficulty of implementation
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
In circumstances where the parties live in close proximity to one another and agree that supervision is no longer required, this is not a relevant consideration.
The capacity of each of the child's parents
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
In my decision dated 25 August 2017, I outlined my concerns regarding the mother’s capacity to provide for the needs of the children. That concern was due to the mother’s history of alcohol abuse. I accept that, as a result of the mother’s dedication to overcoming that addiction, that concern no longer exists.
However, as noted above, since February 2017, the mother has not been involved in the mid-week routine of the children. In those circumstances, there is a degree of doubt as to whether she will be able to meet that challenge until such time as she makes suitable arrangements for childcare, utilising support networks and arranging her work schedule.
The maturity, sex, lifestyle and background of the child and either of the child’s parents
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
The children are still young and the report of Ms J, to which I have referred, sets out the importance of children of their age having the love and support of both parents where that is reasonably possible. In this matter, it is important that they have the love, affection and support of the mother.
Any family violence involving a child or a member of the child’s family
Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
The mother alleges a history of controlling behaviour on the part of the father, both during, and subsequent to, their relationship. In these interim proceedings, I am unable to make a determination as to whether those allegations are of substance. Clearly, however, those matters will be live issues to determine if this matter, regrettably, proceeds to final hearing.
Finding
As noted by the Full Court in Goode & Goode (supra), in circumstances where an order is made for the parties to have equal shared parental responsibility, the Court is required to consider “making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable”.
Pending the mother adjusting to the responsibility of caring for the children during the week, I am not satisfied that it is, at this stage, in the children’s best interests to order an equal time arrangement. Subject to the view of the Single Expert, who will be engaged by the parties in this matter, it may well be that such an arrangement is appropriate after the mother has the opportunity to develop her support network, to establish childcare arrangements and arrange her work schedule.
Having found that, at this stage, equal time is found not to be in the children’s best interests, in accordance with Goode & Goode (supra), the Court is required to consider “making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable”.
In that regard, s 65DAA(3) of the Act provides:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
I have determined that the evidence does not establish that the children are at risk in the mother’s care. However, as noted, given that neither Dr N nor Dr M interviewed the children or observed them with the mother, and there is evidence of the mother experiencing symptoms of stress and panic, for which she is medicated, it is necessary to take a cautious approach. For those reasons, as well as the potential effect of such a change on the children, I have not, at this point, made an order for the child to spend equal time with each of the parties. However, there is, in my view, no reason why the children should not be spending substantial and significant time with the mother. The legislation requires me to specifically consider whether that is reasonably practical. As noted, this should include both weekend, mid-week, holiday and special occasion time.
I will, therefore, make orders for the children to spend time with the mother on alternate weekends from after school on Friday to before school on Monday, as well on alternate Wednesday nights, from after school to before school on Thursday. This will ensure that the mother is involved in the children’s mid-week care on Monday and Thursday mornings, as well as their after school activities, including homework, on Wednesdays.
I will also make orders for the children to spend equal time with the parties during school holiday periods. However, to provide for that adjustment, the orders will be framed so that, during the longer December/January school holiday period, the children will spend time between the parties on a week-about rotational basis. This is to avoid the possibility of the children becoming distressed at being away from one parent for a lengthy period of time.
Orders
Accordingly, I make the following orders:
a)I make order 1, as proposed by the father, except that order (1)(b) will be extended until before school on Monday;
b)I make order 6, as proposed by the mother, which provides for the children to spend time with the parties on significant occasions;
c)I make order 8, as proposed by the mother, which gives the other party the first right of refusal in the event of the resident party being unable to care for the children at a particular time. I do so on the basis that it is consistent with the children spending time with the mother on a graduating basis;
d)In the context of concerns expressed by Dr Q and Dr M, I will not make orders 2 to 4, as proposed by the father but, instead, will make an order requiring the mother to continue to consult Dr M in accordance with Dr M’s recommendations and to undertake such tests, if any, as may be recommended by Dr M;
e)I make order 4, as proposed by the mother, in terms of changeover, as this will avoid tension arising on the part of the collecting parent if the children are not quite ready to accompany the collecting parent at the time of their arrival at the resident parent’s home;
f)I make orders 10 to 14, as proposed by the mother, which, to his credit, were consented to by the father;
g)In the absence of agreement between the parties, I do not propose, in these interim proceedings, to make orders in respect to the children’s passports and overseas travel;
h)There is no evidence that the mother has consumed illegal or illicit substances. I will not, therefore, make order 7 as proposed by the father. I will, however, make proposed order 8, which imposes a restraint on the mother from consuming alcohol prior to and during the time that the children spend in her care. In doing so, I acknowledged the tremendous work that the mother has undertaken to address her alcohol use disorder. However, I make order 8 as proposed by the father in the context of taking a cautious approach in these interim proceedings; and
i)I make order 5, as proposed by the mother, for the appointment of a Single Expert to investigate and report on the matter contained in s 60CC of the Act, save that that order shall be amended to remove references to an “internal family consultant” and framed in terms of the parties retaining an external Single Expert. That course was agreed by the parties at the hearing;
j)Finally, I do not make orders in respect to the payment of tests requested by Dr N. My preliminary view is that those tests are a cost incurred in the course of Dr N providing his report and, in those circumstances, the Family Law Rules 2004 (Cth) provide that those costs should be shared equally between the parties. If the parties remain in dispute regarding that matter, it can be heard and determined at final hearing.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 2 May 2019.
Associate:
Date: 2 May 2019
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