KESSLER & KESSLER

[2019] FamCA 672

FAMILY COURT OF AUSTRALIA

KESSLER & KESSLER [2019] FamCA 672

FAMILY LAW – CHILDREN – Interim Parenting – Where the parties reached agreement as to some interim parenting orders – Where there are concerns about the mother’s alcohol use – Where the father contends that the mother poses an unacceptable risk of harm to the children if she were to spend overnight time with them

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Deiter& Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Kessler

RESPONDENT: Ms Kessler

INDEPENDENT CHILDREN’S LAWYER: Auslawyers

FILE NUMBER: PAC 68 of 2018

DATE DELIVERED: 18 September 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 29 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Nexus Lawyers

COUNSEL FOR THE RESPONDENT: Ms Lawson

SOLICITOR FOR THE RESPONDENT: Campbell Paton & Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shedden

Pending Further Order

1. That all previous parenting orders be discharged.

2. That the children W born … 2006 and X born … 2009 (“the younger children”) live with the father.

3. That the mother spend time with the younger children every Sunday from 9.00am to 5.00pm with changeover to occur at the McDonald’s at Suburb A

4. That the children Y born … 2003 and X born … 2004 (“the older children”) live with each parent in accordance with their wishes.

5. That the mother shall spend time with the younger children over the Christmas period as agreed between the parties providing that any such time does not include overnight time.

6. That the mother be permitted to attend the children’s sporting activities.

7. In the event that any child of the marriage suffers a serious medical condition or requires hospitalisation while in the care of either party:

   (a)       the other party is to be provided with full details of the practitioner or hospital upon which the child attends as soon as practicable;

   (b)       if necessary, the parties give consent to the practitioner or facility to discuss with each party the child’s condition.

8. That each party shall sign all documents necessary to authorise and direct any school attended by the children to discuss with each party, the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletters or other written material produced by the school and distributed to parents or relating to the children specifically.

9. Each party is restrained from making critical remarks in relation to the other party in the presence and/or hearing of the children and do all things necessary to ensure that no third party makes critical remarks about the other party in the presence and/or hearing of the children including in relation to any illness alleged to be suffered by either parent.

10. That within seven days the party shall contact B Group for the purposes of enrolling into and participating in the Keeping Contact Program (at a location that is closest to each parties’ residence) and shall participate in that program until it is successfully completed.

11. The mother undergo carbohydrate-deficient transferrin (“CDT") testing in accordance with the following conditions:

    (a)       The mother will undergo CDT testing to detect excessive alcohol use with such test to be performed by a medical practitioner or at a pathology centre within 48 hours of receiving a request from the Independent Children’s Lawyer;

    (b)       The CDT test is to be analysed using high-performance liquid chromatography (“HPLC”) analysis method;

    (c)       The Independent Children’s Lawyer shall issue such requests by email to the mother’s legal representative or, in the event that the mother is self-represented at any time during the course of the proceedings by email directly to the mother.  For the purpose of this order, the mother shall provide an email address to the Independent Children’s Lawyer within 48 hours of becoming self-represented;

    (d)       The mother shall ensure that a copy of the CDT test results are provided to the father and the Independent Children’s Lawyer within 48 hours of receipt from her general practitioner or the Pathology Centre.

    (e)       Copies of the CDT test results may be provided by the Independent Children’s Lawyer to any single expert witness or family consultant appointed to provide a report in this matter;

    (f)       The mother shall be solely responsible for the cost of the CDT testing pursuant to these orders;

    (g)       The ICL shall not issue requests for CDT testing more frequently than on one occasion in each calendar month.

12. The mother shall not consume alcohol 48 hours prior to and during her time with the children.

13. The parties are to participate in family therapy with a therapist nominated by the Independent Children’s Lawyer. The parties are to do all things required of them to commence family therapy as soon as practicable including making the children available for therapy as requested by the family therapist. The parties are to equally share the cost of the therapy. 

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 Kessler & Kessler 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 PARRAMATTA

FILE NUMBER: PAC 68 of 2018

Mr Kessler

Applicant

And

Ms Kessler

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties are the parents of four children aged 16, 14, 12 and nine (“the children”). The parties are engaged in proceedings concerning the children’s parenting arrangements and distribution of their property following the breakdown of their 14 year marriage in June 2014.

2. Previous orders provided for the children to live with the mother and spend regular time with the father.  Following an incident in January 2019 in which the mother threatened self-harm in the presence of the children orders were made by a judge of the Federal Circuit Court with the consent of the parties for the children to live with the father. These orders which do not provide for the children to spend any time with the mother are expressed to be “pending further order and prospective interim hearing”. The proceedings were transferred to this court in April 2019.

3. By the time the interim application was listed for hearing before me on 29 July 2019 the two older children had moved to live with their mother. Each of these children wishes for this arrangement to continue and the father does not seek any orders in relation to them.

4. The father is concerned about the mother’s alcohol use and difficulties with her mental health.  He contends that it is likely that the children will be exposed to harm in the mother’s care arising from these matters.  He seeks orders that the two younger children live with him and spend time with the mother each Sunday for eight hours but not overnight to mitigate the risk of harm posed by her.

5. The mother adopts for the most part the orders proposed by the Independent Children’s Lawyer (“ICL”) that the two older children live with each parent in accordance with their wishes, and that the two younger children live with the father and spend alternative weekends and one night on the “off week” with the mother.

6. The ICL also proposes orders including monitoring of the mother’s alcohol use and restraining her from consuming alcohol 48 hours prior to and during her time with the children. The parties both consent to these orders.

7. There had also been interim orders sought by the mother in relation to the property dispute and for the appointment of an expert to which the husband consented.  These Reasons are thus only concerned with the competing applications relating to the time the younger two children are to spend with their mother pending final hearing.

Background

1. The mother who is 49 and the father who is 55 began living together when they married in 2000.

2. The first of the parties’ children (“the oldest child”), a girl now aged 16 was born in 2003.

3. A second daughter now aged 14 was born in 2004 (“the second child”).

4. The third daughter now aged 13 was born 2006 (the youngest daughter”).

5. The youngest child and only son who is currently aged nine was born in 2009 (“the youngest child”).

6. The mother was the primary carer for the children when the parties’ marriage was intact.

7. In June 2014 the parties separated. The mother and children initially moved to a regional town but returned a short time later to live in the former family home. The father moved out to live with the paternal grandmother.

8. In early 2016, the paternal grandmother died and the father moved back into the former family home but the parties did not reconcile.

9. The mother and children left the former family home again in August 2016 and moved to a nearby suburb in Sydney. The father spent regular time with the children as agreed between the parties.

10. In October 2017, a police officer contacted the father informing him that an ambulance had been called to the mother’s home and that the mother who appeared to be affected by alcohol or drugs and was described as uncontrollable, had been sedated and taken to hospital. The father, who immediately took the children into his care, subsequently became aware that one of the children had called the ambulance and that the mother was extremely aggressive towards the paramedic and children when the ambulance arrived, trying to hit and kick them. Although the children were cared for by the father for three days, the mother did not advise him of what had occurred during this incident. Following her discharge from hospital the mother collected the children from school and took them into her care without further consultation with the father.

11. In January 2018 the mother commenced these family law proceedings.

12. In May 2018 interim orders were made with the consent of the parties that the children live with the mother and spend alternative weekends with the father.

13. The interim orders were amended in November 2018 with the consent of the parties to increase the father’s time with the children and to four nights per fortnight and to provide for defined holiday time and time for communication with the children by telephone. The November 2018 orders also restrained the parties from consuming alcohol while the children are in their care to a level that would make it illegal for that parent to drive a car and from physically disciplining the children or verbally abusing them and making derogatory remarks or allowing any other person to make such about the other parent in the presence of the children.

14. In July 2018 there was an occasion when the mother had difficulties in managing the oldest child’s behaviour towards her siblings. She took the child to a police station and threatened to have the child charged in relation to her conduct but ultimately did not follow through with this threat.

15. On 31 January 2019 the mother consumed a significant amount of alcohol and became engaged in an argument with the two older children. In the course of the argument, the mother pointed a knife towards her chest and the oldest child called emergency services. Paramedics and police attended the home and took the mother to a nearby hospital. The father who had been contacted by police attended at the mother’s home and found the children traumatised and in shock. He also observed that the bathroom door was off its hinges. The father took the children to his home, fed them and put them to bed. A notification was made to the Department of Communities & Justice (“the Department”) concerning that incident. The mother was discharged from hospital two days later.

16. The father filed an application to amend the interim parenting orders and on 5 March 2019 orders were made in the Federal Circuit Court with the consent of the parties that the children to live with him “pending further order and prospective interim hearing.” No order was made concerning the children’s time with the mother and the proceedings were transferred to this court the following month.

17. After the orders on 5 March 2019 were made the father attended to collect the three oldest children from school as they were to live with him. The mother denied the existence of any court order that the children live with the father in the presence of the children and took the oldest child with her where that child remained overnight.

18. On the 8 April 2019 the Department wrote to the father regarding an assessment conducted in relation to risk of psychological harm from the mother’s substance misuse and mental health concerns. The departmental case worker advised that the Department would no longer be involved with the family as it was considered that the risk of harm to the children had been successfully mitigated by placing the children in the full time care of the father and through the mother’s engagement with mental health services.

19. Following the March 2019 orders, as there was no provision for the children to spend time with the mother, this matter was negotiated between the parents. There is a dispute between the parties concerning compliance with the agreement in relation to the mother’s time.

20. On 19 May 2019, the second child contacted the father by telephone asking to stay over a friend’s house. The father did not permit this, to which this child answered “ok then I am going to live with mum” and did not return that evening. This child has been living with her mother since that date.

21. On 25 June 2019 the parties and children attended upon a family consultant for the purposes of the Child Responsive Program. The Memorandum to court was provided to the parties shortly thereafter.

Allegations of Risk

1. Although when considering interim orders the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the court may and in some circumstances must have some regard to the matters in dispute.  In SS & AH[1], their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, 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 not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Deiter & Deiter[3]).

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82

3. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court

Risk factors in the mother’s care

1. It is the father’s contention that the principal risk posed by the mother arises from her misuse of alcohol and associated mental health difficulties. He contends that when the mother is affected by alcohol and/ or if her mental health conditions are untreated, her behaviour towards the children can be erratic and dangerous, giving rise to a risk of physical harm and psychological harm.

2. In his affidavit and Notice of Child Abuse, the father sets out a detailed history of concerns relating to occasions when the mother has misused alcohol. First he deposes to the mother’s conviction for a drink driving offence prior to their marriage of which he only became aware in about 2000. The mother does not refer to this conviction in her affidavit so it can be assumed that she does not take issue with it.

3. The father outlines a number of incidents over a number of years in which the mother became heavily intoxicated and ambulance and/ or police became involved.

4. During an incident in 2001, prior to the birth of any of the children, the father deposes to arriving home late after work and finding the mother unconscious. He deposes to calling an ambulance and that when paramedics arrived they were able to revive the mother. When the mother regained consciousness, he says she kicked and punched the paramedics and himself, requiring the paramedics to restrain her, prior to her passing out again shortly afterwards. The mother denies this incident in totality.

5. The next incident outlined in the father’s affidavit and Notice of Risk occurred in 2003 on the night before the oldest child’s christening. The father deposes to the mother being out with friends and that she was brought home heavily intoxicated by police who told him that she had been “picked up unconscious off the street.” The mother agrees that she went out with friends and became intoxicated resulting in the police bringing her home.

6. The father deposes to another incident when he returned home from a work function to find the mother passed out on the floor and the youngest child, who was an infant of about 12 months, crying uncontrollably. The father observed red wine spilt on the floor and that the mother smelt strongly of alcohol. He deposes that when he attempted to revive her, the mother became very aggressive and he eventually called police as she was yelling, punching him and damaging property in the home. The father formed the impression that the mother was hallucinating as she was saying that people were in the room and began speaking in an unrecognisable language. The father deposes to attempting to shield his infant son from the mother but that she hit him each time he picked the child up.

7. The mother agrees that an incident along these lines occurred though her account of it is as follows: “All the kids went to bed, including [the youngest child]. I had been drinking red wine and hadn’t eaten and I was intoxicated.”

8. Details of events in relation to the incident on 16 October 2017 are contained in police records. Those records indicate that ambulance officers who had attended the mother’s home sought police assistance. When police arrived they observed several open bottles of alcohol lying around the kitchen and the mother who was initially unresponsive suddenly woke up and attempted to leave, requiring police to forcibly hold her down. The mother is described as “clearly under the influence of an intoxicating substance” as she was slurring her words, and was unable to give an account of what had occurred and did not comply with requests made of her. After being sedated by ambulance officers, it is recorded that the mother calmed down and was assisted into the ambulance and taken to hospital for assessment and monitoring. The records indicate that each of the children were spoken to. It is recorded that the mother had consumed a large amount of alcohol and then “suffered some form of panic attack” which woke the children who became so concerned that one of them called an ambulance. The two younger children were considered by police to be visibly upset by the situation, but “the two older children seemed to take the incident in their stride.”

1. The mother describes this incident as occurring at a time when she had “a breakdown” due to the stress of her financial circumstances and the conflict between herself and the father. Her account of the circumstances in which she became intoxicated is as follows:

   All the children went to bed and I couldn’t stop crying. I was intoxicated. [The second child] woke up and saw me asleep on the couch. She couldn’t wake me up so she called an ambulance. I did not take any drugs.

2. Records from the hospital in relation to the mother’s admission in January 2019 indicate that she was admitted with suicidal ideation and was seen by a psychiatrist. The records indicate that she was diagnosed with “mental and behavioural disorders due to the use of alcohol, acute intoxication.” It is recorded that following the consumption of alcohol and engaging in a verbal argument with the second child the mother pulled a knife on herself and threatened to kill herself. The mother is recorded as stating that she never had any intention to hurt herself and that her actions were “more as a tactic to stop her daughter from further escalating argument.” The hospital records also include a document which indicates that the mother was examined by a medical practitioner and found to be a mentally disordered person under the Mental Health Act 2007 (NSW).

3. The mother’s version of events in relation to this incident is thin on detail but is generally consistent with the hospital records. She deposes to drinking a bottle of wine over two hours from around 5.30 pm and engaging in a conversation with the oldest child which she says the child escalated to an argument. The mother says that sometime later, the second child then became engaged in an argument and “out of frustration I put the knife I was using for chopping food and pointed it just below my chest” and said to this child “what do you want me to do.” The mother deposes that she was angry, did not mean to scare her daughter or harm herself. She then says that she went into the bathroom to calm herself down and for privacy and that “without thinking I took the knife with me.” She deposes that the oldest child called an ambulance and that paramedics and police arrived and she was taken to hospital.

4. According to the mother’s affidavit she was discharged from hospital the following day after meeting with a psychiatrist. She says that she acknowledges the difficulty she has with alcohol especially in circumstances where she is under stress.

5. After this incident, the mother says she consulted with her doctor and obtained a referral for assessment and treatment by a psychologist. She relies upon an affidavit from her treating psychologist who began treatment on 12 February 2019 and saw her on weekly occasions for a couple of months and every two to three weeks thereafter. In her report the psychologist refers to the mother’s alcohol misuse as “binge drinking behaviour patterns linked to escape coping mechanism (sic) in order to deal with her growing anxiety and depression.”

6. The mother also deposes to attending weekly Alcoholics Anonymous meetings from late February to early April 2019 and to being advised by the psychologist that she was not in need of attending the meetings any longer.

7. At the interim hearing, it was the mother’s contention that she concedes in the past she has engaged in inappropriate use of alcohol in the context of heightened emotional stress but has taken the appropriate steps to address her inappropriate use of alcohol and has ceased drinking since the January 2019 incident. It is her case that there are no other risk factors associated with her care of the children. In support of the contention that she no longer engages in the misuse of alcohol, the mother relies upon the absence of complaint by the children when interviewed by the family consultant about her frequent alcohol abuse.

8. The tenor of submissions made on the mother’s behalf was that the two incidents in October 2017 and January 2019 were isolated events and examples of the mother engaging in binge drinking which has not continued. It was submitted on the mother’s behalf that she has addressed her difficulties by attending at Alcoholics Anonymous and receiving treatment from a psychologist under a mental health plan. It is also submitted that there is a significant absence of evidence from sources that may be expected to express concern about the children’s wellbeing such as their school if these incidents were more than aberrant isolated events.

9. It is also submitted that the ICL’s suite of orders which provide for onerous CDT testing will provide suitable protection from any harm associated with binge drinking.

10. Although the father consented to many of the proposed orders of the ICL, the focus of his case at the interim hearing related to his contention that the mother poses an unacceptable risk of harm to the children if she were to spend overnight time with them and for this reason he opposes the orders of the ICL for that overnight time.

11. The father relies in particular on the two incidents in which the mother became heavily intoxicated and required admission to hospital in October 2017 and January 2019 but he considers these incidents as part of an overall pattern of alcohol misuse over many years.

12. On each of the occasions in 2017 and 2019 there is no dispute between the parties that the mother was drinking heavily and had all four children in her care. On each occasion, it was one of the children who became so concerned that she contacted emergency services.

13. I agree with the submission made on the father’s behalf that the mother’s description of each of the 2017 and 2019 incidents involves significant minimisation of her conduct when compared to the police and hospital records. This is relevant to the question of whether she has insight into the nature and magnitude of the risk she poses to the children.

14. It is submitted on behalf of the father that the mother’s minimisation and apparent lack of concern about the seriousness of the October 2017 incident and its impact on the children is to be compared with police documents produced on subpoena.  In particular, it is recorded in police records that although the two younger children were visibly upset by the situation, the older two children (then aged 14 and 13 respectively) “seemed to take the incident in their stride.” It is recorded that this presentation suggested to police “that this is not the first time the [mother] has been in this state and that it may even be a regular occurrence.” I agree that if this description of the two older children is correct it may be consistent with their more regular exposure to events of this nature.

15. I also accept the father’s submission that weight should be attached to the mother’s breach of orders made in November 2018 that the parties not consume alcohol while the children or any of them are in the parties’ care such that it would be illegal to drive a car, being the 0.05 blood/ alcohol ratio. The second incident of concern occurred in January 2019 just after two months after those orders were made. The mother’s only reference to her breach of this order in her affidavit is a statement that she “acknowledges” her failure to comply with the orders “sincerely apologises” to the court.

16. I also accept the submission made on behalf of the father that the actions taken by the mother following the incident on 31 January 2019 do not inspire confidence that she has satisfactorily addressed her alcohol misuse and mental health difficulties manifested on that occasion. The mother deposes to being advised by her psychologist that she no longer needed to attend AA meetings after attending on about six occasions. However, the report annexed to the affidavit of the mother’s treating psychologist makes no reference to advising the mother that she need not attend these meetings any further, but simply observes that the mother “attended Alcoholics Anonymous” which the psychologist describes as “her continuing to take responsibility in refraining from problem drinking behaviours.”

17. I am also unable to attach particular weight to the reports from the mother’s treating psychologist as it may be inferred that information in relation to the mother’s need for psychological treatment came entirely from the mother herself. It would not appear that the psychologist was aware of the medical, police and ambulance records in relation to the mother’s admission to hospital in January 2019 or October 2017.

18. In summary, while I cannot make any findings at this interim stage, in weighing the probabilities of the competing contentions, I consider it likely that the children would be exposed to an unacceptable risk of harm if they were to spend time with the mother overnight as she seeks. This arises from the mother’s likely behaviour if she were to become intoxicated as occurred in both of the more recent incidents and some of the historic incidents. Each of these events occurred at night time, when all or some of the children were in the mother’s care, and in each case other people including the children themselves sought help from outside agencies.

19. I am not comforted by the absence of the children’s complaints about the mother’s more regular excessive alcohol use as it appears that the children themselves may have normalised patterns of excessive drinking by the mother. For example, the oldest child described her mother as having had “a bit too much to drink” in the January 2019 incident when the mother concedes that she consumed a significant amount of alcohol and is described in hospital records as having “acute intoxication.” On the other occasion in October 2017, the mother was so intoxicated and her behaviour so extreme that she required sedation but police observed that the older two children seemed not particularly perturbed by the incident.

20. In my view, the risk posed by the mother to the children also relates to her mental health functioning. Although it was submitted on the mother’s behalf that there is no risk factor associated with her care other than her misuse of alcohol, this in my view overlooks concerns that have been raised about the mother’s mental health condition on occasions when she has been drinking and on other occasions when she has acted quite erratically towards the children calling into question her judgment and functioning.

21. For example, in July 2018 the mother experienced difficulties managing the oldest child’s behaviour towards her siblings and took this child to a police station, threatening to have her charged with assault. The mother drove the child to the police station and spoke to her outside causing the child to become scared but ultimately did not go through with this threat.

22. It is also recorded in the medical notes produced on subpoena in relation to the January 2019 incident that the mother told medical staff that she turned a knife onto herself and threatened to kill herself without intending to do so but “more as a tactic to stop her daughter from further escalating argument.” As also indicated, a medical practitioner certified the mother to be a “mentally disordered person” under the Mental Health Act 2007 (NSW) and in a form 1 clinical report as to her mental state wrote that the mother “requires admission under MH [Mental Health Act 2007 (NSW)] for [illegible] containment high risk of harm to self and others (children).”

23. The family consultant when evaluating the presenting issues for the children and family in the Memorandum to court, described the incident in January 2019 as involving “a mental health crisis and alcohol misuse for their mother.” The family consultant opines that even if this incident is “something that has occurred once to twice and may not occur again if [the mother] maintains support/ treatment” “it is likely that the children were emotionally affected by this experience and anything similar to it.”

24. For the foregoing reasons, on the information currently available and balancing the competing claims, I am concerned that a real risk arises to the children in the mother’s care that they may be psychologically harmed or placed at physical risk if she were to become intoxicated and her mental state were to deteriorate. This is in my view which is more likely to occur at night time when all four children are in the mother’s care having regard to her past conduct.

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].

   [4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

3. Pursuant to s65D(1), subject to certain sections a court may make such parenting order as it thinks proper.

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

5. In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children. Although these proceedings were commenced in January 2018 and transferred to this Court in April 2019 they are still in the relatively early stages as the expert report has not yet been prepared. Accordingly, it is likely that the interim parenting arrangement under consideration will be in place for at least many months.

6. As touched upon earlier, although the parties initially sought orders that would support significantly different parenting arrangements, they both subsequently agreed to the majority of the orders proposed by the ICL. The mother adopted all of the ICL’s orders which included in particular that the younger two children live with the father and spend time with her each alternate weekend from after school Friday until before school Monday and each alternate Wednesday overnight in the “off” week and half school holidays. She did however not consent to changeover on a non-school day taking place at the parties’ residences but proposed that this occur at a neutral location. The mother also sought to include in the restraint of each party from making critical remarks about the other the words “including in relation to any illness alleged to be suffered by either parent.”

7. The father consents to orders being made in accordance with the ICL’s proposal and the amendments proposed by the mother except for the orders in relation to the two youngest children’s time with the mother. His proposal in this regard is that the children spend time with the mother each Sunday from 9am to 5pm and that the mother be permitted to attend the children’s sporting activities. He also seeks orders that the parties and all the children participate in family therapy.

Best interests of the children

1. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

The primary considerations: s 60CC(2)

1. The primary considerations, which are contained in s 60CC(2), are:

   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.

2. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

3. Although the meaning of “meaningful relationship” is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[5] 

   [5] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

4. Each of the proposed suite of orders will foster the children having a meaningful relationship with each of the parents. It is not suggested by either party that the children do not receive a benefit from having a meaningful relationship with each of the parents and it can be assumed given the undisputed evidence about the family circumstances to date that the children do receive such a benefit from having meaningful relationships with both parents.

5. For the reasons given when discussing the risk of harm contended by the father to be posed by the mother, I am of the view that there is a significant need to protect the children from the type of harm contemplated in the second of the primary considerations. This is also a matter to which I will return when considering the capacity of each of the parents to provide for the needs of the children and the attitude to the responsibilities of parenthood demonstrated by each of the children’s parents.

6. Each of the parents also raise the need to protect the children from being subjected to or exposed to family violence. I am unable to make any positive findings concerning the allegations of family violence made by both parents against the other, including allegations about each parent continuing to be abusive to one another although the family consultant commented upon the possibility that there is an ongoing risk to the children in this regard. However, as the mother ultimately supported the proposal of the ICL that the two younger children live with the father she can be taken to accept that the father does not pose an unacceptable risk of harm to the children on this basis.

7. The amendment to the proposed orders of the ICL which would see the changeover of the children’s care occurring at school or in a neutral place rather than at the family home will provide some protection from the children being exposed to harm at their home associated with conflict arising from the parents coming into contact with one another. In my view, there is some protection for the children in changeover occurring in a public place.  

The additional consideration: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations in determining the best interests of the children and those which are applicable and relevant are considered as follows.

2. When interviewed by the family consultant for the Child Responsive Program each of the children expressed strong views about their parenting arrangements. The oldest child who is 16 stated that she wants her arrangements to be as per her wishes. When interviewed in June 2019, she said that she will likely spend roughly equal time with each of her parents most of the time and stated that she was currently living half the week with each parent. The second child who is 14 told the family consultant that she chose to live with the mother in May because she “got sick of” the father. She last spent time with the father two weeks previously and intended spending time with him again soon. This child stated that she wanted to continue living with the mother and to spend time with her father and her siblings in accordance with her wishes.

3. The parties consent to the ICL’s proposal that the two oldest children live with each parent in accordance with their wishes which clearly places significant weight on the views of these two young people. While I may not necessarily agree that such weight should be given to the views of these children in the circumstances of this case, where the need to protect them from harm is great, no alternative order is sought by the parties. Further, given the pattern of these children having significant power within the family dynamic and the parents effectively acquiescing when the children vote with their feet, as a practical reality there would be little point in imposing any other arrangement on them.

4. The youngest daughter who was 12 when interviewed told the family consultant that it was right for her and her siblings to live with the father after the incident in January 2019 but thought they should have returned to live with the mother by now. This child said that she did not think there would be an issue with spending time with the mother at her house or for longer periods of time than she currently enjoyed. She said that she would like to return to live with the mother and would like to spend less than equal time with the father.

1. The youngest child who was nine when interviewed and is almost 10 told the family consultant that he would like to return to live with the mother and spend time with the father as he was doing before and wanted the same arrangement as his siblings particularly the second child and the youngest daughter.

2. As each of the parties has agreed that the two younger children will live with the father, neither of the proposals involve these children returning to live with the mother in accordance with their wishes. The two younger children clearly wish to spend as much time as possible with their mother and siblings if they are not to live in the mother’s household but in my view given their ages and as issues of risk and protection from harm loom large, I do not attach significant weight to their views.

3. At this stage, I am unable to make any clear findings about the nature of the relationship between each of the children with each of their parents. There have been some difficulties between each of the parents and the two oldest children in particular and some complexities in the sibling dynamic. However, it can be assumed given the undisputed facts concerning the parenting arrangements prior to separation and up until January 2019 that each parent has played an important part in the lives of the children.

4. It appears that despite separation each of the parents were involved in making decisions in relation to the children and each of the children spent regular time with and communicated with the father while living in the mother’s household.

5. While orders were made that the children live with the father following the January 2019 incident which in my view were entirely proper, unfortunately there was no provision in those orders for the mother to spend time with and communicate with the children.

6. There is a significant dispute between the parties about difficulties they encountered in making negotiations and reaching agreement in relation to the mother’s time with the children after this date and also about the circumstances in which the older two children came to live with the mother.

7. The only change in the two younger children’s current circumstances that will be brought about by the father’s proposal for the mother’s time with the children is formalisation of the current arrangement and greater certainty in relation to the children’s time with their mother which is likely to be positive. The father’s proposal will also provide the two younger children with more time with their mother and their two older siblings which will undoubtedly be positive for them.

8. It is also likely in my view that the two younger children would experience the change in their circumstances that would be brought about by the ICL’s proposal as positive, as it would provide for much more time with the mother and their older sisters.

9. It is unlikely in my view that there would be any significant detrimental effect on the children having less time with their father under any of the proposals.

10. Each of the parents raises some concerns about the capacity of the other parent to provide for the needs of the children. Although I cannot make any positive findings at this interim hearing in relation to matters in dispute, there is no dispute about many of the facts and circumstances surrounding the incidents in January 2019 and October 2017 and to some extent some of the previous occasions in which the mother demonstrated significant difficulties with alcohol misuse. In light of the undisputed facts concerning these events it is questionable in my view whether the mother has sufficient insight into the extent of her alcohol misuse and behaviour and the risks it poses to the children.

11. The mother also raises issues about the father’s parenting capacity and in particular calls into question his disciplinary methods and imposing pressure upon the children. There is support in the statements made by some of the children to the family consultant for the mother’s complaints regarding these matters. I am unable however at this stage to attach much weight to statements made by the children and the issue of each parent’s capacity will need to be explored at greater length in any final hearing.

12. In any event, as the mother has now adopted the ICL’s position that the two younger children are to live with the father, she must be taken as agreeing that any alleged incapacity in the father is not of particular significance in resolving this interim dispute.

13. Matters relating to the maturity, sex, lifestyle and background of the children or parents are not of great significance in these proceedings except to say that it is of note that the two oldest children who are still developing adolescents have been significantly empowered by both parents to be able to make weighty decisions about their own personal circumstances. It is unlikely in my view that these children have the maturity to understand the implications of their decisions and such freedom may be found to be quite unhealthy for them.

14. Each parent raises issues of family violence against the other parent which if proven raise concerns for the children and the impact upon them from exposure to such violence in their homes. This matter is for the reasons given not particularly weighty in this interim hearing where it has been agreed the children will be living with the father.

Conclusion

1. As indicated the only matter for determination relates to the time that the children are to spend with the mother given that agreement has been reached in relation to all other matters. For the foregoing reasons, I am of the view that the proposal of the ICL adopted by the mother for the two younger children to spend time with the mother four nights in each fortnight and for half of the school holiday period, offers some advantages to those children, including more time with the mother and siblings which they clearly want. However, greater weight must be given to the need to protect the children from harm and to the shortcomings in the mother’s parenting capacity arising from her history of alcohol misuse.

2. In my view, on the information available at present, the mother poses a current risk of harm to the children arising from her alcohol misuse. Given that the recent serious incidents occurred at night time in the mother’s home and when all four children were in her care, in my view there is a real risk of harm to them if orders were made as the ICL proposes.

3. The father’s proposal will see the two younger children have a significant increase in their time with their mother (and older siblings) and provide certainty that is currently missing. In my view this arrangement is proper having regard to the children’s best interests being the paramount consideration.

4. For these reasons I make the orders set out at the forefront of this Judgment.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 18 September 2019.

Associate: 

Date:  18 September 2019