Kimball and Bateman
[2016] FCCA 2907
•10 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIMBALL & BATEMAN | [2016] FCCA 2907 |
| Catchwords: FAMILY LAW – Parenting – family violence – alcohol dependency disorder. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC |
| Cases cited: Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 |
| Applicant: | MR KIMBALL |
| Respondent: | MS BATEMAN |
| File Number: | BRC 2664 of 2014 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 30 & 31 May 2016, 1 June 2016 and 26 July 2016 |
| Date of Last Submission: | 26 July 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 10 November 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented | |
| Solicitors for the Respondent: | Self Represented | |
| Counsel for the Independent Children's Lawyer: | Mr Andrew | |
| Solicitors for the Independent Children's Lawyer: | Forest Glen Lawyers | |
ORDERS
That all previous parenting orders be discharged.
That the child X born (omitted) 2006 live with the mother.
That the mother have sole parental responsibility for making decisions regarding the long term care welfare and development of the child.
That the mother inform the father by text message of any significant issue concerning the health or education of X.
The mother keep the father informed of the school and medical professionals the child attends as may change from time to time.
That the father be at liberty to obtain information about the child’s welfare and progress from the child’s school and this Order provides authority for the release of information to the father.
That the father be at liberty to obtain information about the child’s health and welfare from the child’s treating medical practitioners and allied health professionals and this Order provides authority for the release of information to the father.
That the parents keep each other informed of their home address and mobile number and notify the other within 24 hours of any change.
That the Independent Children’s Lawyer has leave to provide a copy of the two Family Reports by Ms B, a copy of the Report by Dr S, Records from the (omitted) Hospital comprising of pages 29 to 83 of Exhibit ICL1 and a copy of the Final Orders and the Reasons for Judgment to the father’s treating psychologist Mr G and general practitioner Dr M.
That the father undergo random pathology testing as directed by the Independent Children’s Lawyer but not more than monthly at his own expense as follows:-
(a)Macrocytosis;
(b)Liver Function; and
(c)Carbohydrate Deficient Transferrin.
That the father be restrained absolutely from consuming alcohol for 24 hours prior to spending time and communicating with X and for the whole of any time spent with X.
That X spend time with the father from after school to 5:30pm Wednesday during the school terms to continue thereafter while the father remains in compliance with Order 10 herein.
That X spend time with the father as follows:-
(a)Provided the father has remained in compliance with Order 10 herein from 10.00am to 4.00pm each alternate Saturday for a period of 3 months.
(b)Provided the father has remained in compliance with Order 10 herein, each alternate weekend from 10.00am Saturday to 4.00pm Sunday for a period of 3 months.
(c)Provided the father has remained in compliance with Order 10 herein, each alternate weekend from after school or 3.00pm Friday to 4.00pm Sunday for a period of 6 months.
(d)From 10.00am to 4.00pm Father’s Day each year if not otherwise in the father’s care on that day.
(e)From 10.00am to 4.00pm Christmas Day in 2017 and each odd numbered year thereafter.
Upon the father maintaining absolute sobriety in accordance with Order 10 herein for a period of 12 months then X will spend time with the father from after school or 3.00pm Friday to before school or 9.00am Monday each alternate weekend.
That any changeovers that do not take place through X’s school are to take place inside Hungry Jacks (omitted).
That subject to her ability to obtain funding from Legal Aid Queensland, the Independent Children’s Lawyer provide the father’s pathology results to Dr S for an opinion regarding the father’s alcohol use.
That the Independent Children’s Lawyer be discharged 12 months after the making of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Kimball & Bateman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2664 of 2014
| MR KIMBALL |
Applicant
And
| MS BATEMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of ten year old X are in dispute as to her future parenting arrangements. X’s father, Mr Kimball, who is the applicant in these proceedings, would like her to live primarily with him and spend time with her mother on weekends. He argued that both parents should have equal shared parental responsibility for making decisions affecting X’s long term welfare and development. Her mother, Ms Bateman, sought orders that would see X live with her and spend limited and supervised time with her father until such time as the child is old enough to protect herself. Ms Bateman did not proffer an age when that would be, preferring to leave that to the court. Ms Bateman also sought an order for sole parental responsibility.
Throughout these reasons I will refer to the Mr Kimball as the father; Ms Bateman as the mother; and X as the child. I mean no disrespect in doing so. The parties’ older child, Ms K, was initially a child subject to these proceedings but now that she has turned 18 the court will not be making any orders in relation to her.
The child was represented in these proceedings by an Independent Child’s Lawyer (“ICL”) who at the end of the proceedings provided a detailed minute of proposed order. The position taken by the ICL was that the child should live with the mother who would also have sole parental responsibility for her. The proposed orders made provision for the child to spend time with the father on an increasing basis subject to the father complying with certain conditions designed to ensure he is not affected by alcohol during periods of time he spends with the child and when he communicates with her. The ICL is prepared to remain involved with this family for a period of twelve months. After reading the ICL’s submissions and proposed orders, the mother informed the court she was supportive of the ICL’s minute of order.
Background
The father is 66 years of age, is a (omitted) by occupation and lives in (omitted). The mother is 49 years of age she also lives in (omitted) and works in an (employer omitted). She is originally from the (country omitted). They started their relationship in 1995 while both were living and working in (country omitted). Their eldest daughter, Ms K was born (omitted) 1998 and X was born (omitted) 2006. For many years the parties lived in the (country omitted). They separated in 2007. The mother then moved to (country omitted) to work and the children were cared for by the maternal grandparents.
In 2010 the father sponsored the migration of the mother and children to Australia. They initially lived in the same home, but not in a relationship, until the mother found her own accommodation the following year. Although the parties disagreed as to the nature and extent of the parenting arrangements at this time, I am satisfied they shared the care of the children by agreement. In 2013 there was a period of time, the extent of which was disputed, when initially Ms K lived full time with the father and did not see her mother and was later joined by X. By late 2013 both girls were back living full time with their mother.
The mother commenced a relationship with Mr P in 2013. Mr P also works at the (employer omitted). The father has not re-partnered. The parties’ eldest child Ms K is now an adult and studying at university in Brisbane.
The father filed his Initiating Application seeking parenting orders for both children on 25 March 2014. Interim parenting orders were made on 15 August 2014 providing for the parents to have equal shared parental responsibility and for the children to live primarily with the mother and to spend time with the father from after school Friday to before school Monday in one week and in the other week from after school Monday to before school Tuesday.
The orders for the children’s time with their father were suspended by orders made 26 February 2015. Orders were made that day for X to spend time with her father supervised at the (omitted) Children's Contact Centre for two hours each fortnight. Although these are the operative orders the contact centre has withdrawn their service to the family and the father is not spending any formal time with the child. He lives across the road from the child’s school however and has been spending some lunch times with her with the knowledge of the school staff.
Issues
The court is asked to determine the child’s parenting arrangements in the context of the mother’s allegations that the child is at risk of physical and emotional harm in the father’s care because he has long standing issues with excessive alcohol consumption. The father alleges the child is at risk of neglect, and physical and emotional abuse in the mother’s care through the impact of the mother’s shift work and the presence of Mr P. The parents’ inability to communicate effectively raises issues in relation to responsibility for decision making for the child’s long term welfare and development.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[1] and must consider the best interests of the child as the paramount consideration.[2]
[1] S.60B
[2] S.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[3] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[3] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[4] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[5] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[6]
[4] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[5] S.61DA
[6] S.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[7] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[8] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[9] A major long-term issue in relation to a child means an issue:
[7] S.61B
[8] S.61C
[9] S.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[10]
[10] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s 65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[11] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[12]
[11] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[12] S.65DAA(2)(c) & (d)
The Evidence
Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father relied on the following documents in support of his case:
a)His Initiating Application filed 25 March 2014;
b)His Amended Initiating Application filed 16 July 2014; and
c)His Affidavit filed 17 May 2016.
The mother relied on:
a)Her Response filed 6 August 2014;
b)Her Amended Response filed 22 April 2016;
c)Her Affidavit filed 22 April 2016; and
d)The Affidavit of Mr P filed by leave on 31 May 2016.
The Independent Children’s Lawyer relied on the following documents:
a)Family Report by Ms B published via Order dated 3 December 2014
b)Affidavit of Ms B filed 13 May 2016 (Updated Family Report)
c)Affidavit of Dr S filed 18 November 2015 (Substance Use Assessment)
d)Affidavit of Ms S filed 16 April 2016 ((omitted) Contact Centre)
A number of documents were tendered during the trial.[13]
[13] Exhibit ICL 1: Subpoena tender bundle;
The father, the mother, Mr P and Dr S were required for cross-examination. The father impressed as a witness who strived to give his evidence honestly but found it difficult to remain on task in answering questions. I had to interrupt his answers on a number of occasions. Sadly whilst observing him give his evidence it became all too clear that he lacked insight into the history of the level of his alcohol consumption and its effects on the mother and children. Consequently I found him to not always be a good historian but nevertheless he gave his evidence to the best of his ability.
The mother relied on the services of an interpreter to assist in the giving of her evidence. I found her to be generally forthright and honest but at times her answers did not always fit the question asked. I am unsure as to whether this was deliberate on her part to avoid a more honest answer or a difficulty with language. Mr P presented as a very opinionated man, strong in his dislike for the father. He did not impress as an objective person. At times I doubted the veracity of his evidence as his dispute with the father and defence of the mother had clearly clouded his ability to honestly answer questions asked.
Although I will address a number of relevant disputed questions of fact in the context of my consideration of the best interest principles below, it is important to address two significant factual issues at this stage. The first issue is the father’s historic and current use of alcohol. The second is whether his alcohol use has led to him perpetuating family violence.
The mother alleged that the father has a long history of alcohol abuse that has led to family violence and compromised parenting. The father accepted that he has used alcohol since he was 13 or 14 years of age but did not consider his use problematic. He viewed his drinking as social and that it has not compromised his ability to safely parent the children and has not led to family violence. When he was interviewed by the family report writer in November 2014 the father said that at that time he was drinking six beers a day and sometimes wine as well on weekends. He said that he becomes argumentative not aggressive when he drinks.
He told the report writer that he had attended a detoxification unit in 2013 and went six months without a drink. When his mother died he started drinking again. He then attended Alcoholics Anonymous (“AA”) and went four months without drinking. He tried to assure the report writer that once this court case was over he would be able to settle his drinking. His evidence at trial was that he is currently sober in the sense that he had not used alcohol at all for over six weeks.
The father was arrested in 1995 as a result of him being intoxicated and naked on a plane travelling from (country omitted) to Australia. He was fined $200 and had no conviction recorded. The father appeared not to ascribe his alcohol use to his being naked on the plane. He said that he has always slept naked and did so on this occasion notwithstanding he was on a plane where other passengers and crew could see him. The ICL submitted that that evidence should not be accepted and that I should find that the father had become disoriented or lost control as a consequence of his alcohol intake and subsequently disrobed in public. I accept that submission.
The mother’s evidence was that throughout her relationship with the father he used alcohol excessively and would become aggressive and abusive to her and others. Ms K told the family report writer in the first report interviews that the father was drunk a lot. She described physical and verbal violence perpetrated on the mother by the father when he was affected by alcohol. X also said that the father was drunk a lot. In the second report interviews Ms K described an incident at her school formal in which the father turned up drunk and X also described having telephone conversations with her father where she believed he had been drinking. She said that the father ruins enjoyable family celebrations with his drinking.
Documents produced from the (omitted) Hospital indicate that on 8 July 2011 the father was taken by ambulance to the hospital’s emergency department. He presented as intoxicated and displayed aggressive behaviour towards ambulance officers. He told the hospital staff that he drank approximately 400mls of scotch and the person recording the information queried whether he had also consumed other alcohol. He left the hospital against advice and said he did not want to be seen by a female.
On 10 September 2011 the father was arrested for driving a motor vehicle under the influence of liquor recording a blood alcohol concentration of .197. He was fined $1,200.00 and was disqualified from holding a driver’s licence for a period of 11 months.
On 2 July 2012 the father again presented at the hospital’s emergency department requesting to see the mental health team. He is reported to have smelt of alcohol and saying that “the government has pushed him over the edge”. The notes record that he was an alcoholic; that he admitted to having a problem; and was referred to ATODS now known as AODS.[14]
[14] Alcohol, Tobacco and other Drugs Service. A service of Queensland Health now known as the Alcohol and other Drugs Service: AODS.
Documents produced from AODS show that the father engaged with the service in May 2013. The clinical assessment notes indicate that the father met the criteria for alcohol and tobacco dependence. The father denied telling the assessment officer the details recorded in the assessment but I do not accept his evidence in this regard. He was also reported to have attended a detox clinic in Brisbane for seven days but had failed rehab after detox. He is recorded as indicating to AODS staff that he consumed up to 15 beers a day while he was caring for the children. He had been prescribed the drug, Champix, to assist with his alcohol dependency but his evidence was that he had an adverse reaction to the drug and did not continue using it.
On 28 December 2013, whilst affected by alcohol, the father sent X a number text messages the effect of which were to tell her that he had put the Christmas tree and her presents, including a bike on the footpath. He told her he might send them to the poor people in Africa. He also made mention of their dog being “free”. He said he could not be around dogs as dogs like (omitted) will kill Mr P. He was referring to Mr P. The children had not spent time with the father over Christmas. The father attended AODS the following month and told the staff that his two daughters had gone back to live with their mother and that he had started to drink and smoke again. He said he was consumed with anger.
Dr S, a medical practitioner with a special interest in addiction medicine, who was the Senior Medical Officer and Clinical Director of AODS in (omitted) prepared a report on the father in November 2015. Dr S had access to the subpoenaed material, the reports commissioned for this case, the affidavit material, pathology results and also interviewed the father. Dr S opined that the father had a current Substance Use Disorder. He was of the view that the father’s use of alcohol affected his short term and longer term capacity to undertake care of children. He concluded the father is not able to remain abstinent from alcohol during periods of contact with the children including supervised contact and that he can be argumentative and confusing in dealing with the children. The father did not accept this opinion. He also rejected the opinion that there was little evidence of improved insight nor lasting change in his behaviour. Dr S had this to say in his report:
[110] While Mr Kimball has manifestly engaged with alcohol treatment services, undertaking outpatient rehabilitation through ATODS including psychological, nursing and medical intervention, and has undertaken at least two episodes of in client alcohol withdrawal over the last 3 years, there is little evidence of improved insight nor of lasting change in behaviour. It is not clear what kind of assistance would lead to a change in behaviour.
[111] As Mr Kimball has not achieved lasting abstinence from alcohol, relapse prevention therapy would not be presently indicated.
[112] The evidence available indicates a 50 year history of substantial alcohol intake. There are pieces of evidence from every stage of Mr Kimball’s life to suggest to that alcohol intake has been above recommended guidelines. Over recent years this evidence has included, but is not limited to, self-report, professional assessment, family reports and biological markers. It would not be surprising if this alcohol intake has caused substantial damage to end-organs, including liver and brain. Regrettably the necessary testing has not been available to comment definitively on these organs.
………
[118] While hopeful that Mr Kimball would cease his alcohol use disorder, I note that he has had a number of setbacks in life contributed to by his alcohol use, and despite this he maintains the view that his alcohol intake is of no consequence. With his poor level of insight and extended history of alcohol dependence I would consider that the probability of successful abstinence would not exceed the untreated average, which is 10-20% success (80-90% relapse) over 12 months.
Whilst affected by alcohol at Christmas 2014 the father and children became embroiled in a dispute over a bird the father put on the table while the children were eating. Ms K phoned her mother to collect them and the police attended.
Whilst being cross-examined about problems associated with his attendance at the contact centre, the father conceded he had been drinking prior to going to the centre in May 2015. I will address the issues surrounding the contact centre later in this judgment.
In November 2015 the father arrived late for Ms K’s school formal. He was adversely affected by alcohol and was abusive to Ms K and her boyfriend. At Christmas that year the father had consumed alcohol at a function in Brisbane. Ms K agreed to drive him and X home but on the way the father became aggressive toward her in a dispute about her boyfriend. She pulled the vehicle over at a service station along the highway and arranged for her boyfriend to collect her and X. She left the father to sleep it off in the car but asked the police to do a welfare check on him.
When I consider all the evidence I am satisfied that the father has a long history of excessive alcohol consumption. I accept the opinion of Dr S that the father has a Substance Use Disorder. I find that the father lacks insight into the extent of his alcohol use and its implications for his ability to manage his conduct.
I am also satisfied that the father has perpetuated family violence largely as a consequence of his alcohol use. Family violence is defined in s.4AB as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. In the circumstances of this case there is evidence that the father has engaged in verbal aggression to and has been threatening of members of his family such that they have been fearful or have been controlled. The mother also gave evidence of physical assaults and this was corroborated by Ms K when she told the family report writer during the interviews for the first report that she had seen her father pulling her mother’s hair and giving her a black eye. Both children spoke about the father having a bad temper and being aggressive. Ms K described being traumatised by the fights between her parents and X said that she has been scared with her father. The incidents at Ms K’s formal and the 2013, 2014 and 2015 Christmases are all indicative of the father’s lack of insight into his behaviour and its effects on his daughters. All of these incidents are examples of the father’s conduct falling within the definition of family violence.
A temporary family violence order was made in December 2013 naming the mother as the aggrieved and the father the respondent, which was ultimately resolved by way of undertakings but not before the father was charged with breaches of the order. The breaches arose out of him sending text messages to both the mother and X referred to above.
The issue of family violence though is not all one way. I am satisfied that the mother has also engaged in taunting, shouting and abusing the father as has Mr P. Ms K described Mr P saying to her “I could kill your dad ……I could kill him with one hit.”
When I consider all of the evidence I am satisfied that all three adults have been perpetrators of family violence.
Determining the best interests of the children – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
The child’s relationships[15]
[15] S60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
The evidence shows that both X and Ms K have had problems in their relationships with each of the parents. It would seem that as a consequence of this they have found their primary relationships with each other. The family report writer noted in her first report that each child independently expressed the view that they had felt unsupported at times by both parents. The children cited their father’s heavy alcohol consumption, temper and abusiveness towards their mother, Mr P as well as them personally. They were also critical of their mother’s conduct in the dispute with their father and felt that they had been emotionally marginalised by their mother following her commencing a relationship with Mr P. It was clear to the report writer that Ms K had taken on a caring role for X.
The contact centre notes reported very positive relationships between both girls and their father. They were observed to be warm and affectionate in their greetings and interaction. There were frequent and spontaneous hugs and the notes indicate that there were times when the father was most appropriate in his conversations and involvement with X and Ms K.
Regrettably the notes also show conduct on his part that was inappropriate and ultimately led to him being excluded from the service. At times he inappropriately tried to involve the supervisor in discussion rather than focussing on his time with X but appeared to respond well to re-direction by the staff early in the period when he was having supervised time. However his visit on 2 May 2015 did not go well. He was not compliant with requests to cease inappropriate conversations and was continually talking, sometimes mumbling and often changing topics mid-sentence. Ms K arrived after the time with X had commenced. She told the supervisor she believed the father had been drinking. When advised of the decision to terminate the visit the father said to the children: the detention centre have sacked me. The report suggests that the father’s conduct became more aggressive towards the staff. The father conceded in cross-examination that he had been drinking prior to this visit. The notes would suggest the children were familiar with his presentation as they did not appear to be affected by his conduct. His conduct led to the effective suspension of his time with X but he started spending some lunch times with her at her school. He lives across the road and the school did not raise any issues with him spending this time with the child. To his credit he agreed with the proposition put to him by counsel for the ICL that this may become embarrassing for X if he was to continue meeting with her this way too often and thereby depriving her of her opportunity to spend time with her friends at lunch time.
By the time of the second report, Ms K had been estranged from her mother and Mr P for much of 2015 and spent some time living with her father and then her boyfriend. She said her relationship with her mother was not functional and she fought with her and Mr P. She managed to reconcile with both of them not long before the second report interviews which were conducted on 22 March 2016. At that point in time she had had a falling out with her father. She said she found it too painful to re-engage with him. She spoke to the report writer about the incidents at her formal and at Christmas 2015. She said she found these incidents distressing. She was reported as saying “I’m off Dad now”, “he is not going to get off the grog”, “…its very confusing since I was little, if I’m with one parent I’m not with the other”. This attitude changed quite significantly less than a month later. The report writer noted:
[30] This changed shortly afterwards as reflected in her presentation during a phone interview on 19th April 2016. As previous noted, during this interview she conveyed that she was now reconciled with her father and expressed some anger on his behalf that he was being unfairly treated in this process. She then became very distressed, expressing her powerlessness and despair at continuing to be caught in the middle of her parents’ conflict, saying she was worried she might do something to harm herself. Ms K conveyed that the burden of trying to keep both her parents happy while feeling continuously pulled between them and trying to reconcile herself to some of their behaviours, is taking a heavy toll on her.
The report writer was of the view that Ms K remained emotionally vulnerable. The ongoing conflict between her parents appears to have drawn her into having a sense of being responsible for X, which is not appropriate given Ms K has only just become an adult.
Although X was observed to have a warm relationship with the father during the first report interviews she did not want to see him at the second round of interviews. She was observed to display obvious discomfort when he warmly greeted her prior to the interviews. X was very negative about her father and spoke positively about her relationship with her mother and Mr P. This changed on 27 April 2016 when she sent the report writer a text message saying she wanted to live week about with each parent only to leave a phone message the following day to say she wanted to live full-time with her mother. The report writer concluded that X was a very confused little girl and vulnerable to pressure. She assessed her as loving both her parents very much.
Clearly the children’s relationships with their parents are highly volatile. I have no doubt each parent deeply loves both children and want what they perceive to be the best for them but neither parent has shielded the children from their dispute causing much distress to the children and compromising positive parent/child relationships. Mr P’s negativity towards the father in front of the children has also contributed to this. Regrettably this is likely to continue given the personalities of each of the adults. X is likely to follow in her sister’s footsteps and align herself with a different parent from time to time regardless of what parenting arrangement is put in place. Fortunately her relationship with her sister is strong and I am confident Ms K will continue to support X even though she is not living with her full time.
Risk of harm[16]
[16] S60CC(2)(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 my assessment the significant risk of harm issues are: whether the father can address his alcohol issues sufficiently to modify his conduct towards the mother and each of the children; whether Mr P is able to control is conduct in light of his disregard for the father; and whether the mother can ensure appropriate care arrangements for the child when she is working.
I have made findings above that both parents have engaged in family violence as has Mr P. There is no doubt the child has been exposed to this as has Ms K. The pre-curser to the father’s aggressive behaviour has been his excessive alcohol consumption. At the trial he told the court he had not used alcohol for six weeks. I give him credit for that and encourage him to remain abstinent. The difficulty in predicting the future is whether the father is able to sustain sobriety. Like many people with alcohol related disorders he has attempted on numerous occasions in the past to give up alcohol. He has tried detox programmes. There have been positive periods but they have not been sustained. The ICL’s proposal for ongoing testing may assist in determining whether the risk of future harm can be minimised.
The mother’s household has also been responsible for some of the conflict and exposure of the child to the disputes. In many ways the mother’s involvement has been reactionary to the father’s conduct. Whilst Mr P’s views and conduct have been informed by the father’s behaviour, his lack of respect for the father is so entrenched it may take some time for him to accept the father is able to provide a positive role in the child’s life.
I am also satisfied that there have been times when the mother has not made appropriate arrangements for the care of the child when she has been doing shift work. The father was right to raise this issue. Fortunately the mother appears to have now made appropriate arrangements with a neighbour and family. I formed the view that she does appreciate the importance of ensuring the child always has an appropriate adult available to her. I do not consider that this child is currently at risk of neglect in the mother’s care.
The child’s views[17]
[17] S60CC(3)(a): 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.
I accept the submission from the ICL that little weight should be attached to X’s views given the volatility of her relationships with each parent. She is only ten years old and really too young to comprehend the complexities of the situation she finds herself in. She has expressed different views about her living arrangements including living full time with her mother and living week about with each parent.
The report writer described the child has being highly polarised in regard to her parents. She opined that like, Ms K, X will change her parental allegiances depending on the volatility of the dynamics in her family. This was evident in short period of the preparation of the second family report. The child was interviewed on 22 March 2016 and said she wanted to live with her mother. On 27 April she texted the report writer saying she thought she should live week about with her parents. However the following day she had a phone conversation with the report writer and sent further texts saying she had made her mind up and wanted to live full time with her mother. I do not accept Mr P’s denials as to his involvement in this change of heart. Regrettably though all three adults have sought to influence this child. I therefore place no weight on any of her expressed views other than to acknowledge she has been inconsistent in her expression of them and has changed her mind under influence.
Practical difficulties[18]
[18] S60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Given each parent lives in the (omitted) area I am satisfied there are no practical difficulties associated with the child living with and spending time with either of the parents.
Parental capacity and responsibility[19]
[19] S60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
Both parents have much to offer this child but at times they have been unable to provide appropriate care and they have each failed to meet her emotional needs. The father’s use of alcohol to excess has meant that there have been times when he has not had the capacity to properly supervise her and by engaging in aggressive behaviour has caused her to be fearful. Her emotional wellbeing has been compromised by his conduct.
The mother has not always prioritised the child’s needs, especially when she commenced her relationship with Mr P. Whilst I am satisfied that the mother has now made appropriate arrangements for the care of the child I remain concerned as to her ability to meet her emotional needs. I am satisfied that the mother and Mr P have failed to shield the child from the dispute and sought to influence her views as to her relationship with the father.
Background issues[20]
[20] S60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
Although the child is of (nationality omitted)/Australian and (nationality omitted) backgrounds, no issue in this regard was raised by either party requiring a determination.
Limiting further proceedings[21]
[21] S60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
There is a real prospect of the continuation of litigation between the parents given the nature of their conflict. The ICL’s proposals as to a regime of increased time with the father subject to certain criteria being met may help to minimise a return to court.
Presumption of Equal Shared Parental Responsibility
I have found there is a history of family violence in this matter. I am therefore satisfied that the presumption of equal shared parental responsibility does not apply. The ICL and mother argued that I should make an order for the mother to have sole parental responsibility but the father’s position was that an equal shared parental responsibility order should still be made despite the rebuttal of the presumption.
The father argued that it was vitally important for the child that both parents are involved in making the important decisions about her long term care welfare and development. As a general principle the father is right. Children should have the benefit of both parents working together to make decisions for them. In this case however the conflict between the parents is very high. They have very poor communication. They have different approaches to parenting. I have no confidence they will be able to work together to reach a joint decision when they disagree about the child’s future arrangements. The child will not benefit by the parents finding new matters to argue over. For this reason I will make an order for sole parental responsibility.
Discussion
Having found that the presumption of equal shared parental responsibility does not apply and further, that it would not be in the child’s best interests to make such an order, I am not required to consider an equal time arrangement as my first consideration of the living arrangements for the child. When I consider the factors referred to above I am satisfied it is in this child’s best interests that she remain living with her mother. I have come to this conclusion notwithstanding I have serious reservations about Mr P’s ability to refrain from denigrating the father or influencing the child. The issue surrounding the mother making appropriate arrangements for the children’s care when she is working appears to have been adequately addressed by her. Unfortunately the father’s history of excessive alcohol use and aggressive conduct raises issues as to his ability to appropriately care for the child as her primary carer. Overall I am not satisfied he has sufficiently addressed this issue at this stage. For this reason I am satisfied the child should live with the mother.
I have already found that it is appropriate to make an order for sole parental responsibility and in circumstances where I have found the child should live with the mother it is appropriate that I order that she have that responsibility.
The ICL made a proposal as to the father’s time with the child that on the would enable an graduated increase in time subject to the father complying with certain provisions for pathology testing and remaining abstinent from alcohol 24 hours prior to and when the child is with him. This approach will provide a balance between the need to protect the child from risks associated with the father’s conduct after consuming alcohol to excess and the benefit and need for her to maintain her relationship with him. Such an approach will require the ongoing retention of the ICL’s involvement with this family for another 12 months which in the circumstances of this case is warranted.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 10 November 2016
Exhibit ICL 2: Family Report by Ms B dated 17 November 2014;
Exhibit F1: Photo of Ms K’s graduation;
Exhibit F2: Letter by X;
Exhibit ICL 2: Solicitors Office Report Details: QP0700247993; and
Exhibit ICL 3: Written submissions and minute of order sought by Independent Children’s Lawyer.S60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
S60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.S60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parentsS60CC(3)(h): If the child is an Aboriginal child or Torres Strait Islander child: (a) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (b) the likely impact any proposed parenting order under this Part will have on that right. See also S60CC(6).
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Family Law
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