Kingley and Simmons and Anor
[2013] FamCA 546
•5 July 2013
FAMILY COURT OF AUSTRALIA
| KINGLEY & SIMMONS AND ANOR | [2013] FamCA 546 |
| FAMILY LAW – CHILDREN – Best Interests – With whom the child lives – With whom the child spends time – Where the child’s Mother is deceased – Where the child has been living with maternal relatives – Where the Father seeks the child live with him. FAMILY LAW – PARENTAL RESPONSIBILITY – Non-parent parties. FAMILY LAW – RISK – Where the Father has a history of alcohol related issues – Where the Father has made an undertaking to the court not to consume alcohol prior to or while the child is in his care. FAMILY LAW – FAMILY VIOLENCE – Where allegations of family violence had been made against the Father by the Mother. FAMILY LAW – CHILD ABUSE – Allegations – Where there was a finding of no risk to the child of sexual abuse in the Father’s care. |
Family Law Act 1975 (Cth) Part VII, s4, s60B, s60CA, s60CC, s61DA, s61DB, s64B(2), s65(c), s65AA, s65D, s65DAA.
Cox & Pedrana [2013] FamCAFC 48.
Donnell v Dovey (2010) FLC 93-428.
| APPLICANT: | Mr Kingley |
| 1ST RESPONDENT / INTERVENOR: | Mrs Simmons |
| 2ND RESPONDENT / INTERVENOR : | Mr Simmons |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 1363 | of | 2008 |
| DATE DELIVERED: | Order made 5 July 2013; Reasons delivered 24 July 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 6 – 10 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Smith & Associates |
| COUNSEL FOR THE 1ST RESPONDENT / INTERVENOR: | Mr Baston |
| COUNSEL FOR THE 2ND RESPONDENT / INTERVENOR: | Mr Baston |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
IT IS ORDERED
That all previous Orders and Parenting Plans be discharged.
That C ARNDALE-KINGLEY, born … 2006 (“the child”) live with the father from Friday 5 July 2013.
That the father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making the decision about any such issue:
(a)use his best endeavours to advise Mrs Simmons and Mr Simmons (“the Intervenors”) in writing of the decision intended to be made;
(b)seek their written response in relation thereto;
(c)consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)advise them in writing as soon as reasonably practicable of ultimate decision.
That each party has responsibility for daily decisions about the day to day care, welfare and development of the child while she in is his or her care.
That the child shall spend time and communicate with the Intervenors, at all times as agreed between the parties and failing agreement as follows:
(a)in the fourth week of each calendar month: from 5.00 pm Friday to 4.00 pm Sunday;
(b)by telephone communication at all reasonable times and in particular each Wednesday between 7:00 pm and 7:30 pm with the Intervenors to initiate the telephone calls and the Father to facilitate those telephone calls, and ensure the child is given privacy during the calls;
(c)by email at all reasonable times;
(d)by post at all reasonable times;
(e)for the second half of the gazetted Christmas school holidays, commencing December 2013;
(f)commencing in 2014 for the second half of the June/July school holiday period.
That the child shall communicate with the party she is not spending time with on school holidays each Tuesday and Thursday between 6pm and 7pm, with the child to initiate the call.
That when the child is communicating with the other party/ies each party shall:
(a) ensure that the child is available to receive the telephone call;
(b)arrange for the child to telephone the other party on the following night if, for any unforeseen circumstance, the child misses the telephone call from that party;
(c)ensure that the child has privacy during her communication with the other party.
That the child be at liberty to telephone any party at all reasonable times and the party in whose care the child is, at the time of the request, shall facilitate this.
That the child will spend time with the father on the Father’s Day weekend and, if that is a weekend on which, pursuant to Clause 5(a) above, the child would ordinarily be spending time with the Intervenors, then the child will spend time with the Intervenors from 5.00 pm Friday to 4.00 pm Sunday on the weekend immediately after the Father’s Day weekend.
That unless otherwise agreed between the parties, all handovers shall occur at a named Service Station.
That the parties shall communicate with each other about the child in writing including via e-mail and the father and Intervenors shall each inform the other of an email address for use in such communication.
That each party refrain from denigrating or making critical or derogatory remarks about any other party and any member of that party’s family to the child or in the presence or within the hearing of the child.
Each party shall do all things reasonably necessary to remove the child from the presence of any other person who makes any denigrating, critical or derogatory remarks about any other party or members of another party’s family to the child or in the presence or within the hearing of the child.
That the parties be restrained and an injunction be granted restraining the parties from discussing any Court proceedings in the presence or hearing of the child.
That each party shall provide to the others a contact telephone number and residential address and shall advise of any change to the same within 48 hours of such change occurring.
That each party shall keep the others informed of the details of the child’s school, day care and health care professionals and advise of any change to that information within 7 days of any change.
That each party shall advise the others, as soon as is reasonably practicable, of any serious illness or medical emergency that relates to the child.
That by this Order any educational facility at which the child attends and any health service provider upon whom the child attends is hereby authorised to provide to the parties, at their cost, any information, document or thing in relation to the child (including, but not limited to reports, letters, photographs and the like) and to discuss all matters pertaining to the child’s education, health and wellbeing.
That the parties shall be allowed to attend any school or extracurricular activities that a parent is entitled to attend.
That within 7 days of the date of this Order, the father shall engage a medical practitioner who specialises in the treatment of people with alcohol disorders (“the treating practitioner”).
That within one month of the date of this Order the father shall attend upon the treating practitioner in order to develop a lifelong Prevention of Relapse Plan which shall be reviewed from time to time as directed by the treating practitioner.
That the father shall comply with all reasonable directions made by the treating practitioner in relation to the implementation of the lifelong Prevention of Relapse Plan.
That the father will attend upon the treating practitioner on a monthly basis for 12 months from the date of this Order and, thereafter, as directed by the treating practitioner.
That the father direct the treating practitioner to require him to undergo random monthly blood tests of his Carbohydrate Deficient Transferren levels for 12 months from the date of this Order and, thereafter, as recommended by the treating practitioner for as long as is therapeutically indicated.
That the father comply with any request made by his treating practitioner for drug and alcohol testing, including for his Carbohydrate Deficient Transferren levels, within 24 hours of receiving such request from his treating practitioner.
That within 24 hours of receiving confirmation of his performance of any test requested by the treating practitioner, the father shall forward a copy of the same to the Intervenors, the Independent Children’s lawyer and his treating practitioner.
That the father will provide the Independent Children’s Lawyer and the Intervenors with the contact details of the treating practitioner.
That the Independent Children’s Lawyer shall have leave to provide to the father’s treating practitioner:
(a)the reports prepared by Ms M, Family Consultant, dated June/July 2012 and 11 April 2013;
(b) the report prepared by Dr D dated 18 September 2009;
(c) the report prepared by Dr Z dated 26 November 2009;
(d) the report prepared by Ms X dated 9 May 2008;
(e) the report prepared by Dr L dated 19 March 2013;
(f)the report prepared by Dr A dated 29 April 2012 (but actually prepared in 2013);
(g)a copy of the summary of the father’s drug testing results (which forms part of Exhibit 2(b) in the proceedings;
(h) a copy of Exhibit 3 in the proceedings.
That by this Order the father irrevocably authorizes the treating practitioner to liaise with the Independent Children’s Lawyer and the Intervenors so as to advise that he is attending as directed and is in compliance with the lifelong Prevention of Relapse Plan.
That by this Order the father irrevocably authorizes the treating practitioner to provide the Intervenors and the Independent Children’s Lawyer with any test results pertaining to the father’s alcohol use.
That the Intervenors and the Independent Children’s Lawyer are hereby restrained from divulging to any other person any information or documentation provided to them by the treating practitioner or the father in compliance with this Order without the written consent of the father or the leave of the Court unless such information or documentation is relied upon in parenting proceedings filed in a Court having jurisdiction to make parenting orders.
That in the event the father is charged with or receives Notice to Appear for any traffic and/or other offence in which having a prescribed blood alcohol content is an element, he shall within two (2) working days of being so charged or issued with a Notice to Appear, immediately inform the Intervenors and, if the Independent Children’s Lawyer is not discharged at the time of such receipt, the Independent Children’s Lawyer, of such fact.
That the Independent Child Lawyer be discharged after six (6) months from the date of this Order.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kingley & Simmons and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT BRISBANE
FILE NUMBER: BRC 1363 of 2008
Mr Kingley
Applicant
And
Mrs Simmons & Mr Simmons
Respondents/Intervenors
REASONS FOR JUDGMENT
These proceedings concern C Arndale-Kingley (“the child”) who was born in late 2006. Her parents separated in late August 2006 and proceedings in relation to her have been ongoing since her father filed an Initiating Application in February 2008.
From the time of her birth until 17 December 2012, the child lived primarily with her mother. She spent time with her father on a supervised basis at various Contact Centres, supervised by her mother and, in the period from October 2011 until December 2012, on an unsupervised basis on occasions.
The father has a significant history of driving whilst under the influence of alcohol. He admits that he has engaged in binge drinking in the past. He last committed an offence involving the consumption of alcohol in August 2007. He was convicted of this offence in May 2008.
In 2008, 2011 and in the period from March 2009 until March 2013, the Father has provided, for the purpose of determining the presence or absence of excessive alcohol consumption, blood and urine samples. None of the samples tested revealed results indicative of probable recent or ongoing excessive alcohol use.
On 3 December 2009 the father gave an undertaking to the Court that he not consume any alcohol at all while the child is in his care or twenty-four hours prior to such time (“the Undertaking”). He remains subject to this Undertaking and does not seek to be released from it in these proceedings. There is no evidence that the father has, on any occasion, breached the terms of the Undertaking.
The child’s mother was diagnosed with a brain tumour in late 2010[1]. At or around that time the child’s three half siblings, now aged about 19, 16 and 13 years, started to live with their father (who is not the child’s father).
[1] as sworn to by Mrs Simmons.
At the beginning of 2012, the child and her mother moved to live in rural town W where the child attended Prep at a local private school. On 19 November 2012, the father and his partner of five and a half years (“Ms S”) moved to W from the Gold Coast area in the hope of ‘building on’ the father’s co-parenting arrangements with the mother and spending more time with the child. They intend to continue to live there in the future and propose, if the child lives with them, that she return to the same private school.
I accept the father’s evidence that he and Ms S have a ‘very strong bond’. Given that they both said that they planned to stay together in the future and the father said that they planned to spend the rest of their lives together, I accept that they have a committed relationship and, in particular, that Ms S has demonstrated her commitment to the father by moving with him to W from her home at the Gold Coast.
In the period from about 19 November 2012 until about 17 December 2012, the father spent time with the child at her home. As the child’s mother was, at this time, very unwell and sleeping a lot, such time was ‘unsupervised’.
On 17 December 2012, the child’s mother moved to Brisbane to live with the maternal grandmother so as to facilitate her receipt of medical treatment. It was on this day that, without the father’s knowledge, the child started to live at F with the Intervenors, her maternal aunt (Mrs Simmons) and uncle (Mr Simmons) and their two sons, who are at University and in Year 12 respectively. Since this time, Mrs Simmons has made most of the day to day decisions about the child and has undertaken her day to day care.
The child’s mother was admitted to hospital on 31 December 2012 and died in February 2013.
The child was enrolled at the school at which Mrs Simmons teaches and started attending there when school commenced at the end of January 2013. Her father was not consulted about her attendance at this school. His details were not provided to the school at the time of her enrolment and had not been provided to the school by the time of the trial.
Mr and Mrs Simmons had previously ‘very little’ contact with the father. Such was the lack of interaction between the parties that, as at 20 February 2013, they had had personal contact on no more than five or so occasions. The father said, as at late February 2013, that he had not seen the Simmonses for some six years.
In accordance with the Order made by the Principal Registrar on 19 March 2013, from that day until 10 May 2013, the child spent time, supervised by his partner or the paternal grandmother, and communicated with her father:
a)from 12.00pm until 4.00pm on Sunday 24 March 2013 with changeover at the Simmonses’ home;
b)commencing 31 March 2013, from 9.00am until 5.00pm (or 4.00pm if changeover is in W) each Sunday with:
i)the first three Sundays to occur at the Simmonses’ home; and;
ii)the fourth Sunday and each alternate Sunday thereafter to occur at the father’s home in W; and;
iii)the fifth Sunday and each alternate Sunday thereafter to occur at the Simmonses’ home; and.
iv)by telephone each Tuesday and Thursday between 6.00pm and 7.00pm.
On 10 May 2013, at the end of the hearing before me, I ordered that the child spend time with her father:
a)from 9.00am Saturday until 4.00pm Sunday on four consecutive weekends; and thereafter
b)from 4.00pm Friday until 4.00pm Sunday each weekend.
Proposals
The father seeks orders in the terms set out in the ‘Proposed Final Orders of the Applicant’ provided to me during submissions: namely, that the child live with him and spend time with the Simmonses for the fourth weekend in every month, half of the Christmas holidays and by telephone each week.
In the event that the child does not live primarily with him, the father seeks that she spend time with him on weekends and for all of the school holidays.[2]
[2] according to what he told Ms M in March 2013.
The Simmonses seek orders in the terms set out in the Case Summary Document filed 2 May 2013. If made, such orders would see the child live with them and spend time with her father, supervised by his partner, his mother or another adult by agreement, in the manner prescribed in that document. They also seek an order in the same terms as the Undertaking.
The Orders that the Simmonses seek would require the father to undertake prescribed testing (namely, hair follicle drug testing on four occasions each year, random blood tests of his carbohydrate deficient transferrin levels and a urine alcohol and drug screen) for the purpose of monitoring his abstinence from the excessive consumption of alcohol. They do not, however, provide that any time the child spends with him be suspended if any test returns a positive result. I conclude, therefore, that the Simmonses have confidence in the supervision which would be provided by Ms S or the paternal grandmother.
While it initially appeared[3], that Mr and Mrs Simmons sought an order that they have ‘joint parental responsibility’ for the child, it became apparent during the course of the hearing that their actual position was that they (jointly) share parental responsibility for the child with the father.
[3] from paragraph 1 of the ‘Minute of Orders Sought’ in the Case Summary Document
At the conclusion of the hearing, Counsel for the Independent Children’s Lawyer provided me with two sets of draft Orders which provided for the alternative scenarios of the child living primarily with her father or primarily with the Simmonses.
Principles
This case involves competing proposals of a ‘parent’ (the father) and ‘non-parents’ (the Simmonses). In Donnell v Dovey (2010) FLC 93-428, the Full Court[4] considered the manner in which Part VII of the Family Law Act (1975)(Cth)(“the Act”) is to be applied in such a situation.
[4] Warnick, Thackray and O’Ryan JJ.
I consider that the following relevant binding principles emerge:
c)‘parent’ means a biological or adoptive parent and does not include a person who stands in loco parentis to a child[5] - hence, the Simmonses are not ‘parents’ for the purpose of Part VII of the Act;
[5]At par 92.
d)ss 60B(1) and (2) of the Act maintain a distinction between a ‘parent’ and a non-parent as the Objects expressed in s 60B(1)(a), (c) and (d) and the Principles expressed in s 60B(2)(a), (c) and (d) specifically refer only to “parents” (or parenting)[6];
[6]At pars 121 and 122.
e)there being no distinction between parents and non-parents in s 60CA of the Act, a child’s best interests remain the paramount consideration in deciding whether to make a particular parenting order regardless of ‘the biological (or other) connection of the child to the parties to the proceedings’[7];
[7] at pars 79 and 80.
f)ss 64B(2) and 64C permit a parenting order, which includes an order for parental responsibility, to be made in favour of a non-parent as well as a ‘parent’ and an order can be made for a non-parent to share parental responsibility with another person[8];
[8] At pars 82 and 83.
g)in the absence of an order of the Court which allocates parental responsibility for a child or a parenting plan, only the ‘parents’ of a child have parental responsibility in relation to that child[9];
[9] At pars 81-83.
h)the presumption of equal shared parental responsibility prescribed by s 61DA and considerations of equal or significant and substantial time prescribed by s 65DAA are not ‘prescribed pathways in the reasoning process towards a best interests conclusion’[10];
i)s 65DAA has no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent[11];
j)s 60CC of the Act on its face maintains clear distinctions between a ‘parent’ and a non-parent such that:
i)s 60CC(2)(a) has no application to a person who is not a parent and any consideration of the benefit to a child of having a meaningful relationship with a non-parent is not a primary consideration;
ii)s 60CC(2)(a) has no application in cases where one parent has died;
iii)the additional consideration in s 60CC(3)(e) does not apply to proceedings between a parent and non-parent.
k)whilst the benefit to a child of the maintenance of a meaningful relationship with a non-parent can never be a ‘primary consideration’, this does not, of itself, mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a ‘parent’[12];
l)where the subject matter of a consideration which refers only to a ‘parent’ is relevant to a non-parent, consideration of the same can occur pursuant to s 60CC(3)(m) of the Act[13].
[10] Pars 86, 121 and 122.
[11] At para 84-86.
[12]At para 101 and 102.
[13]At para 99.
I do not accept the submission of Counsel for the Simmonses to the effect that the ‘problem is that each of “us” come to the Court with a preconceived view or bias that a child should be with that child’s biological parent.’ Whatever may be the position of the father or the Simmons, I do not approach my deliberations on that basis at all. I accept that to approach a consideration of this matter on the basis of an “assumption” or a presumption that it is in the child’s best interests that she live with and be cared for primarily by a biological parent (her father) would be an error.
Rather, I must consider and weigh the competing proposals and, having regard to the s 60CC considerations, make those Orders which I consider to be in the child’s best interests.
Primary Considerations
Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no suggestion that the child would be subjected to or exposed to abuse, neglect or family violence in the Simmonses’ care.
However, the Simmonses are concerned about the child’s safety if she lives with her father because:
a)he has a significant past history of driving whilst under the influence of alcohol; and
b)they hold fears that he has not ceased his ‘alcohol centred lifestyle’.
When Mrs Simmons spoke with Ms M on 26 March 2013, she told her that she was aware ‘primarily via [the mother’s] comments’ that there had been ‘concerns’ about the father’s alcohol abuse. Given this, it is, I think relevant to note that Dr D, a psychiatrist who interviewed both of the parents during the history of these proceedings, noted as follows [about the mother]:
She cited his violence as a reason why she wanted his contact with [the child] supervised yet has spent significant amounts of time alone with him after the separation and even after the assault charge and DVOs. She has concerns about [the father’s] alcohol use, yet by her own admission drinks more than the AMA guidelines for safe drinking and by the reports of others may even drink more heavily in a binge pattern. She has raised concerns about [the father’s] lifestyle given his association with ‘hookers and strippers’ yet she herself worked as [an adult entertainer] and boasted of enjoying a lap dance at a strip club at … She was concerned about his ability to look after [the child’s] physical needs initially but then stated that he has developed a ‘great relationship’ with her.
I refer to this piece of evidence to make the point that not everything said by the mother to the Simmonses about the father may necessarily be accurate or, even, truthful. In any event, irrespective of the manner by which the Simmonses arrived at their concerns, it is, of course, important that I give careful scrutiny and consideration to all such matters in arriving at those orders which are in the child’s best interests.
The father’s use of alcohol
It is clear that the father has a significant history[14], from January 1981 until August 2007[15], of alcohol misuse which has resulted in him being convicted on 10 occasions for driving under the influence of alcohol. He committed the last offence in August 2007, nearly six years ago. He has been fined, disqualified from holding a driver’s licence, sentenced to probation and sentenced to a term of imprisonment wholly suspended. He has served a period of imprisonment as a result of being dealt with for breaching his suspended sentence by driving whilst disqualified.
[14] See Exhibit 3.
[15] The father was not dealt with for the offence committed on 8 August 2007 until May 2008.
His partner, Ms S, is aware of the father’s previous difficulties with alcohol, having been his ‘driver’ from 2008 until 2011 during the time his driver’s licence was suspended. Such suspension meant that she drove him from their home at the Gold Coast to either W or O so that he could spend time with the child at Contact Centres.
In order properly to deal with and consider that part of the Simmonses’ case that the father remains so at risk of abusing alcohol that the child is likely to be at risk in his care, it is, I think, necessary to consider the evidence of the father’s previous struggles to control and manage his alcohol consumption.
The father was under the care of Dr P (Consultant Psychiatrist) whilst an inpatient at the XX Clinic (“the Clinic”) from 5 February 2004 until 13 February 2004. It is clear from the documents before me[16] that, even at that stage, he had had significant issues with alcohol and a history of binge drinking on occasions. At this time, he reported binge drinking approximately once every six weeks.
[16] See Exhibit 1.
Whilst the Clinic notes record various admissions by the father about his previous convictions and offences at that time (he said, on one occasion, that he has “apparently 9 times previous offences – alcohol related” and on another that he has “a history of DUI’s by 7”), such differences matter little in my consideration of whether, because of his issues with alcohol, the father is an unacceptable risk to the child in 2013.
During cross-examination, the father accepted that, as recorded in the Clinic notes for 8 February 2004, his goal at that time was “controlled drinking and some piss ups”. He also accepted that comments to the effect that he “doesn’t believe he could resist drinking with his country mates - would be odd one out” may well have come from him at that time given his attitude to alcohol then.
It is clear from Dr P’s evidence that, as at February 2004, the father’s level of denial and rationalisation into the extent of his alcohol problem was, to use the doctor’s words, ‘profound’ and that he was ‘somewhat insightless’ into the severe nature of his drinking problem.
Whilst Dr P’s notes record that the father was discharged and “followed up by his General Practitioner”, the father said that it was only during his cross-examination that he became aware of this assertion. I accept his evidence in this respect.
The father’s last offence occurred in August 2007, when he was again apprehended driving a motor vehicle whilst under the influence of alcohol (“the August 2007 offence”). He later attended on Ms X, a psychologist, whose report was relied upon by the Simmons, to obtain a ‘comprehensive psychological assessment’ for use in his prospective sentencing in the local Magistrates Court on 14 May 2008. Ms X was not required for cross-examination by any party. I accept her evidence unless I otherwise indicate.
The father told Ms X that he committed the August 2007 offence when, feeling particularly stressed about the ongoing dispute with the mother, to the point where he was ‘genuinely fearful’ that she might succeed in preventing him from having any time with the child and remove all his remaining assets, he ran into old friends and accepted an invitation to lunch with them. He drank several bourbons before remembering that he had left valuable chattels unsecured in the back of his utility and later decided to drive to a friend’s nearby property. During this drive, he was apprehended by police and charged. He later told Ms X that these actions were the ‘stupidest thing I have ever done’. I agree.
In about November 2007, the Father completed “Back in Control”, a six week group drug education and relapse prevention program facilitated by the Alcohol Tobacco and Other Drugs Service (ATODS). He also completed a Traffic Offenders Program. He told Ms Xl that the Traffic Offenders Program was beneficial but the ATODS programme was of minimal benefit because it was mainly directed toward drug use other than alcohol use.
Ms X prepared a report, dated 9 May 2008 (“the X Report”)[17], in which she records, inter alia, that the father:
a)was aware of the gravity of his offence and demonstrated significant remorse to her;
b)told her that he started to abuse alcohol, using it to self-medicate against his depression, following a significant financial setback in the late 1980s;
c)described himself as a bit of a ‘larrikin’ for whom much social interaction was played out in the context of alcohol use in pubs, clubs or restaurants;
d)told her that, since his late twenties, he had experienced substantial emotional ups and downs, used alcohol as a general solution to most problems, and drank alcohol to manage stress or to boost confidence or manage his mood;
e)told her that being intoxicated was the only time he felt able to relax and stop thinking about his problems with the mother and his distress about the limited contact he had with the child.
[17] Exhibited to the mother’s affidavit filed 28 September 2012 and relied on by the Intervenors before me.
In early May 2008, the father admitted to Ms X that he was binge drinking on a ‘regular basis’ (approximately once per week) and that it was not uncommon for him to drink in excess of 8-12 standard drinks or more in each session.. He acknowledged that:
a)he had previously tried to reduce his alcohol use on several occasions with limited success;
b)his use of alcohol led to incidents of disinhibited behaviour;
c)for most of his adult life he had relied on alcohol to manage day to day stress and intermittent depression and that, as such, his use ‘commonly escalates’ when he faced personal problems.
I accept that the father was truthful when he provided the information he did to Ms X.
Ms X considered that the father’s history was one of denial, minimalisation or rationalisation about his drink driving behaviour. She thought that he had:
a)underestimated the impact of alcohol on his judgement when driving;
b)not thought he was a threat to himself or others when he chose to drink drive;
c)rarely considered any consequences other than the legal trouble;
d)considered that his prospects of being caught were low;
e)a history of chronic alcohol dependence which, together with his beliefs about alcohol and driving, created a ‘propensity’ toward drink driving particularly ‘during periods of substantial stress’.
I accept Ms X’s evidence, as at May 2008 that the ‘most significant change’ the father had made since the August 2007 offence was ‘attitudinal’ in that he had acknowledged that:
a)he was responsible for his behaviour regardless of the actions of his ex-partner;
b)he had a problem with his use of alcohol;
c)he needed to amend his attitudes and beliefs regarding alcohol and driving in order to change;
d)continued drink driving would ‘most certainly jeopardise his business and financial stability and create substantial obstacles in his pursuit of shared parenting of his daughter’;
e)his use of alcohol was dysfunctional;
f)he had held distorted beliefs about alcohol and driving;
g)the penalties he would now face for drink driving were so severe that his financial position and his relationship with the child may be jeopardised if he re-offended.
Having administered the Personality Assessment Inventory, Ms X relevantly concluded that the father:
a)was likely to be particularly disinhibited under the influence of alcohol and may display particularly poor judgement and demonstrate other acting-out behaviours while intoxicated;
b)was increasingly likely to be alcohol dependent;
c)gave responses which suggested an acknowledgment of important problems and the perception of a need for help in dealing with these problems;
d)reported a positive attitude towards the possibility of personal change, the value of therapy and the importance of personal responsibility.
Ms X recorded that the father’s primary motivating factor to change was his desire to protect his assets and ensure that he had ongoing regular ‘contact’ with the child. She also recorded that he acknowledged a willingness to engage in any recommended treatment to modify his alcohol use and help him better manage his mood and stress levels as he continued to address the financial and parenting matters with the child’s mother.
I accept Ms X’s conclusions that the father:
a)presented with chronic alcohol dependence and symptoms consistent with an adjustment disorder with depressed mood;
b)had, in recent years, demonstrated a capacity to refrain from drink driving during periods of emotional stability and where his alcohol dependence was moderate to mild;
c)had reoffended in the ‘context of extreme sustained relationship conflict’;
d)had developed a ‘substantial degree of insight’ into his offending but required ongoing psychological intervention.
I find, on the basis of Ms X’s evidence, that, by May 2008, the father had finally come to the realisation that he could not continue to misuse alcohol in the way that he had previously. I find that he finally appreciated the very serious impact that a continuation of his past alcohol abuse could have on him financially and, more importantly, in terms of his ongoing relationship with the child. I accept Ms X’s evidence that, by May 2008, the father had acknowledged that he had a problem with his use of alcohol and that he needed to amend and change his attitudes and beliefs about alcohol and driving in order to change his behaviour. I accept Ms X’s evidence that, by May 2008, the father had developed a substantial degree of insight into his offending but still required ongoing psychological intervention.
Dr D[18] (who was not required for cross examination by any party) interviewed the Father on 4 July 2008. Consistent with what he had previously told Ms X, the father told Dr D that he abused alcohol in a binge drinking fashion rather than being “dependant” on it. He also said that he never ‘had’ to continue to drink and that he had never had any withdrawal symptoms if he did not consume alcohol. The father was not challenged during cross-examination about such assertions and I accept that he was truthful when he provided this information to Dr D.
[18] who was not required for cross examination by any party.
Dr D considered that the father met DSM-IV diagnostic criteria for Alcohol Abuse Disorder and that, while he was minimising his problems at interview, it was highly likely, given Ms X’s history, that he also had an alcohol dependence disorder. Dr D considered this the main concern about the father’s ability to care for a child on an ongoing basis.
Dr D considered that the father needed to be in long term treatment with a psychiatrist who specialised in the treatment of alcohol dependence. He also noted that there were a number of validated methods of checking the father’s ability to abstain from alcohol excess, including random urine drug screens and monthly blood tests of liver function, full blood count and carbohydrate deficient transferrin (“CDT”) levels (“the tests”).
After the receipt of Dr D’s report and, I find, prompted by the same, the father attended upon Dr E[19] psychiatrist, from 24 March 2009 until 25 November 2009 for management of ‘alcohol-related problems’. Dr E noted that the father sought treatment and advice in relation to alcohol issues, acknowledged a past history of alcohol issues and poor judgement in drinking and driving but minimised the significance of his convictions. The father did not show evidence of intoxication during any of his nine consultations on Dr E.
[19] who was not required for cross examination by any party.
Dr E noted that the father consistently maintained that he no longer misused alcohol and did not see himself suffering from alcoholism. The father told him that he drank four to six times a month at social occasions in the evenings. Dr E considered that, over the time the father saw him, based on his reports, his alcohol consumption would average out at about one to two standard drinks per day. However, the father also reported that on a single occasion he had consumed up to around 14 standard drinks.
It is, I think, clear from Dr E’s evidence that, during April 2009 to September 2009, the father reported:
a)consuming alcohol on up to about four occasions per month, at a volume of no more than six drinks on any one occasion;
b)blocks of up to four consecutive days where he consumed no alcohol at all;
c)having about 15 standard drinks over a month with such amount being the total consumed over several distinct occasions.
The father was not challenged during cross-examination about the information he provided to Dr E and I accept that it was accurate and truthful. I accept that there was a single occasion where he consumed a large amount of alcohol. I also accept that the father demonstrated a capacity to refrain from consuming alcohol at all for periods of time.
In order to test for heavy alcohol intake, Dr E requested pathology testing on 9 April 2009, 28 May 2009, 24 June 2009, 22 July 2009 and 22 September 2009. In addition, he ordered urinary drug screens, which were performed on 9 April 2009 and 28 May 2009, and received copies of pathology tests ordered by Dr K (again screening for heavy alcohol intake) which were performed on 15 August 2009, 26 August 2009 and 8 September 2009. He also received the results of urine drug screens performed as a consequence of Dr K’s request on 19 August 2009, 26 August 2009 and 8 September 2009.
It is apparent from the above that the father underwent pathology testing for heavy alcohol intake on eight occasions and urine drug screening on five occasions between 9 April 2009 and 22 September 2009.
Dr E noted and I accept that:
a)“the results of carbohydrate deficient transferrin testing have uniformly not supported excessive alcohol intake”;
b)“mildly raised gamma glutamyl transferase levels of liver function tests performed 28 May 2009 and 24 June 2009 suggested lower levels of alcohol intake or the influence of other drugs” but urine drug screens had not detected any ‘other’ drugs.
I consider that the evidence of Dr E establishes that, during the period the father attended on him:
a)the pathology testing indicated an absence of heavy drinking;
b)the father’s alcohol dependence, diagnosed by Dr E as being without physiologic dependence, was in partial remission;
c)the father had demonstrated a capacity to moderate his alcohol consumption under the requirement of monitoring and in the setting of a high level of motivation to have access to his daughter and had achieved this moderation of consumption despite ongoing “severe stress associated with financial hardship and ongoing legal proceedings” (my underlining).
I accept the evidence of Dr E that, at the end of November 2009, the father remained at risk of an escalation of his drinking and that the risk factors for a relapse of heavier drinking included evidence of “continued distorted beliefs” about his alcohol consumption (as evidenced by an ambivalent attitude toward his past drink driving convictions), his choice to continue to drink at all and “severe life stressors.”
I also accept Dr E’s evidence that:
a)it was probable that there would be an escalation in the father’s drinking in the absence of continued pathology monitoring;
b)the longer that the father maintained low levels of alcohol use under a pathology monitoring system the more favourable his long term prognosis would be;
c)the father was likely to benefit from continued enforced monitoring of alcohol consumption by use of CDT pathology testing.
The paternal grandmother supervised the child’s time with her father from December 2009 until April 2010 when the mother ceased complying with the terms of the Court Order which provided for such time. I accept her evidence that at no time during her supervision did she see the father consume any alcohol during his time with the child.
The Simmonses relied upon an affidavit of Mr I[20], a private investigator engaged to enquire about and observe the father and Ms S (“the private investigator”). His affidavit was sworn on 4 April 2012, and, by virtue of that, I conclude, was prepared at the instigation of the mother for use in her case. I accept the father’s evidence that the mother told him it cost her tens of thousands of dollars for the private investigator to follow him around for ‘some three months’.
[20] who was not required for cross examination.
It is apparent from his affidavit that the private investigator observed the father walking toward the Contact Centre at approximately 9.45am on 29 April 2011. He was in possession of a ‘bright red Liquorland shopping bag’. Given that none of the records from the Contact Centre record the father as ever presenting intoxicated or under the influence of alcohol for any visit with the child, I am confident in concluding that nothing turns on the presence of the Liquorland bag.
Later that day the private investigator followed the father from the Contact Centre to GH, accompanying him on two train trips. He saw the father buy a bottle of alcoholic spirit from Liquorland before entering a car driven by others. The private investigator followed the car in which the father and his companions were travelling, noting that when they arrived at the car park of an RSL (on the north side of Brisbane), the father poured all three of them some alcohol. The father had two ‘shots’ as did one of his companions. After following the father and his companions to the local showground where they set up ‘a makeshift camp’, the private investigator left the scene.
The private investigator returned to the showground and located the father and his companions some four and a half hours later. They ‘appeared intoxicated’, ‘were boisterous and were yelling at each other and other persons’. They were seen to fill ‘large clear drinking vessels’ from bottles in the back of the car. The father spoke to his companions in a ‘voice raised above a normal volume’, had slurred speech, appeared unsteady on his feet and was stumbling.
The father’s evidence about this was that he had consumed about six alcoholic drinks on this occasion.
Counsel for the Independent Children’s Lawyer referred to the results of the test performed on 3 May 2011. Whilst this test took place outside the 24 hour period requested by the Independent Children’s Lawyer, given Dr A’s evidence as to the time during which excessive alcohol consumption can be detected by the CDT testing, the test on 5 May 2011 is valid in its result of ‘ no excessive alcohol intake’. I accept the thrust of Counsel’s submission, as I understood it, that whatever the father’s intake of alcohol on 29 April 2011 it was not such as to cause a positive result in the test performed on 5 May 2011.
In early May 2011, the father’s birthday, the private investigator followed the father and his companions (the same two men previously observed on 29 April 2011) from the father’s home to BB where they were observed to lunch at a café across the road from the BB Hotel. Whilst the father was observed entering the hotel and returning to his luncheon companions shortly thereafter, he was not observed to be in possession of alcohol. No mention is made that the men consumed alcohol during their lunch. Later that day the sounds of a party (loud music, people laughing and talking loudly) were noted at a residence. There is no record that the father was seen with alcohol in his possession on this occasion.
On the evening of 20 May 2011, the private investigator followed the father and Ms S to a set of shops where the father was seen carrying bags ‘which appeared to contain bottles from the bottle shop’ back to the car. The father and Ms S went to a restaurant where Ms S had a glass of wine and the father a ‘dark coloured drink in a short glass’.
Counsel for the Independent Children’s Lawyer submitted and I accept that it was relevant to note that the results of the pathology test performed on 16 June 2011 revealed “no excessive alcohol intake”.
Despite undertaking further surveillance of the father on 21 May 2011, the private investigator reported nothing more than the father being dropped at the Contact Centre by Ms S.
I consider that the evidence of the private investigator establishes that:
a)on 29 April 2011, in the absence of the child, the father was intoxicated to some extent;
b)despite being intoxicated to a degree unknown, the father did not drive a motor vehicle;
c)both the father and his companions had planned not to drive a motor vehicle after consuming alcohol as they made a ‘camp’ for the night;
d)the father was able to lunch in a café across the road from a Hotel on his birthday, in the company of friends with whom he had previously consumed alcohol, without consuming alcohol;
e)the father and Ms S purchased some quantity of some sort of alcohol from a bottle shop on one occasion.
Dr A, Pathologist in charge of Biochemistry with Q Laboratories provided an opinion[21] about the drug and alcohol related tests performed by Q Laboratories on samples provided by the father in the period from 2009 onwards.
[21] see his Report dated 29 April 2013 and his cross examination.
I accept Dr A’s evidence that, in relation to the urine samples provided by the father since 2009:
a)at the instruction of the requesting medical practitioner the samples provided by the father were collected under direct supervision of the urine stream from the penis to the container in a manner that exceeds the current Australian Standard requirements;
b)because of the manner in which the request was phrased, alcohol was only tested and reported as absent in six of the urine drug screens;
c)urine alcohol screening detects the presence of alcohol if consumed within 8-12 hours of sample collection and the detection is not affected if dilute urine is provided;
d)alcohol was not detected in the father’s urine on any occasion when tested;
e)whilst there was dilute urine provided on an occasion there is no evidence to suggest that the father used a drug from one of the five drug classes listed in the Australian Standards (being cannabinoids, opiates, amphetamines, benzodiazepines and cocaine) and succeeded in diluting the specimen to such an extent that it was missed on the initial screening;
f)save for an occasion when a prescription antidepressant drug was detected (in September 2009) no other over-the-counter, prescribed or illicit substances were detected in the father’s urine during the time the tests were performed;
g)alcohol in urine remains detectable for 2-3 hours longer than in blood depending on the frequency of bladder discharge.
The test results established that, on 11 June 2010, the father provided a very dilute urine sample. He explained that this happened because he had rapidly consumed water before providing the sample as on the previous occasion he had difficulty providing a sample in a timely manner. I accept his evidence in this respect.
I accept Dr A’s evidence that it is possible that a person may provide a dilute sample of urine as a consequence of over-hydration and that a person who had consumed one litre of water relatively rapidly, as the father said he had, could achieve such a result as long as dehydration did not occur. In addition, Dr A himself inspected the results produced by the analyser and concluded that they were, without exception, well below the cut-off point.
Whilst Dr L expressed concern that the dilute sample may have been evidence that the father was deliberately attempting to deceitfully minimise the results of the pathology testing, I am not persuaded, given Dr A’s evidence, that this is the case.
I consider, given the evidence of Dr A as outlined in paragraphs 76 and 78, that there is nothing ‘sinister’ or concerning about the fact that sample provided by the father on 11 June 2010 was very dilute.
I accept Dr A’s evidence that, in respect of the CDT testing performed on samples provided by the father:
a)CDT becomes elevated in response to excessive alcohol intake over a period of 2-3 weeks;
b)CDT will be raised in males with an average daily intake of six ‘standard drinks’ or more but, as it reflects the average intake over the two or three weeks prior to sample collection, this intake may take the form of regular drinks daily or over several consecutive drinking sessions separated by some days;
c)CDT does not respond to a single relatively brief episode of excessive alcohol use;
d)CDT does not become elevated in response to regular or daily intakes of two standard drinks or less;
e)CDT will become ‘frankly elevated’ if the subject is taking excessive alcohol load averaging six standard drinks a day or more over several weeks;
f)the father’s CDT levels have always been found to be within the group of those who take on average 20 grams of alcohol or less daily; (my underlining)
g)the CDT results indicate that it is improbable that the father engages in regular or ongoing excessive alcohol use; (my underlining)
h)the father’s CDT results were higher within the ‘low alcohol intake’ range throughout mid 2009 and 2010 than they were at other times which suggested that he had been taking, on average, a higher intake of alcohol at those times than he had been more recently;
i)at no stage did the father’s CDT approach the level of 2.6 per cent which is ‘indicative of probable recent or ongoing excessive alcohol use’;
j)in so far as binge drinkers are concerned, such group will have a low CDT while not drinking and their CDT will start to rise after 3-4 days of excessive alcohol use, will plateau and remain elevated whilst the subject continues to drink and will return to normal over a period of about two weeks after the subject ceases drinking – if CDT testing occurred at times away from such binges, it will not detect the period of excessive alcohol use;
k)a dilute urine sample has no effect on the efficacy of the results provided by blood and CDT testing;
l)when a CDT report indicates ‘excessive alcohol intake’ – as has never been the case for the father – this result implies that the liver’s capacity to deal with the alcohol taken in has been exceeded but it does not indicate that the subject’s professional, social or personal function has necessarily been compromised; (my underlining)
m)while the father’s CDT levels appeared to be a little lower over more recent years than they had before that but he couldn’t say definitively that the father was drinking more in 2010 than in 2011.
I also accept Dr A’s evidence that he could not imagine how a person could provide a false sample for the purpose of CDT testing. There is nothing to suggest that the father has on any occasion provided a false sample for such testing. The fact that such issue was raised by Counsel for the Simmonses indicates, I consider, the extent to which they apparently lack trust in the father. I accept Dr A’s evidence that a fluctuation in CDT levels over time is suggestive, but cannot be seen as an absolute indication, of a continuation of alcohol intake.
I also accept Dr A’s evidence that, in the case of a person who binge drinks, CDT:
a)will be elevated if the duration of the binge drinking episode was 3 – 4 days or longer in duration and the sample was collected within 2-3 weeks of the episode; and
b)is unlikely to reveal a positive result for excessive alcohol intake, even if collected within the 2-3 week timeframe, where an episode of binge drinking lasts no more than two days.
In the period from 17 March 2009 until 21 December 2009, the father was tested for excessive alcohol consumption on 15 occasions. Each occasion the result reported was “no excessive alcohol intake”.
On some occasions in this period the father did not respond within the 24 hours as required. However, as I understood Dr A’s evidence, such delay made no difference to the accuracy of the results obtained by the CDT testing. Even if I am incorrect in my understanding of Dr A’s evidence about the effects of delay on the test results, given the large number of tests and the consistently negative results, I am not persuaded that I should draw an inference adverse to the father as a consequence of any delay in responding to a request that he attend for testing.
I note that the father failed to respond to a request to test made by the Independent Children’s Lawyer on 17 September 2009. However, he was tested at Dr E’s request on 22 September 2009 and returned a result of ‘no excessive alcohol intake’. With this result and the benefit of Dr A’s expert evidence as I understand it to be, I am not persuaded to draw an inference adverse to the father as a consequence of his non-compliance with the request made on 17 September 2009.
In the 2010 calendar year, the father was tested for excessive alcohol consumption on 11 occasions. The majority of these tests occurred as a consequence of requests made by the Independent Children’s Lawyer. On occasion, the father did not comply with the request within a 24 hour time frame. Again, given Dr A’s evidence I am not persuaded that such failure to provide a sample within 24 hours of the request is likely to have had any impact at all on the accuracy of the test results which consistently revealed ‘no excessive alcohol intake’. I am not persuaded to draw any inference adverse to the Father’s position from his failure to comply with a 24 hour time frame.
In the 2011 calendar year, the Independent Children’s Lawyer asked the Father to test on 10 occasions. He provided samples on seven occasions. He did not respond to requests for testing made in August, September or October 2011. The result of each test undertaken was “no excessive alcohol intake”. In addition, the father was tested in March 2011 as a consequence of his annual medical examination – the result was, again, ‘no excessive alcohol intake’. For the reasons already identified, I am not persuaded to draw an inference adverse to the father as a consequence of his non-compliance.
In the period from January 2012 until September 2012, the Independent Children’s Lawyer asked the Father to test for excessive alcohol consumption on five occasions. Of these requests the Father met only one: namely, that made on 1 March 2012. On that occasion, the result was the same as it had previously been, namely, ‘no excessive alcohol intake’. Whilst not complying with the Independent Children’s Lawyer’s requests, the father was tested in May 2012 (as a consequence of his annual medical check-up undertaken by his General Practitioner, Dr U) and again recorded a result of ‘no excessive alcohol intake’. I conclude, based on Dr A’s evidence, that the test results achieved by the father in March and May 2012 means that it is unlikely that there was excessive alcohol intake at any time from about mid February 2012 until the May 2013 test.
The father said that he did not undertake testing as requested by the Independent Children’s Lawyer because, in the context of him bearing the total costs of spending time with the child at the Contact Centre and meeting some of the mother’s costs associated with facilitating this time and the costs of attending on Dr L for a psychiatric assessment, he was not in a position to afford these tests. He was supported in this assertion by Ms S who became distressed during the course of cross examination about this topic, saying that she had had a child in hospital during this period and that money was tight.
It is clear that, from at least 2012, the father and Ms S have been primarily financially supported by Ms S’s earnings. I accept her evidence that she has ‘absolutely’ placed restrictions on the father’s access to funds from her account. I also accept her evidence that the testing costs exceeded $200 on occasions and there was a bill in excess of $1,000 for the same at one point in time. I also accept that the father had to pay for the tests before they were done and, as such, it was a matter of them having access to funds in such amounts as required within a very short period of time and without notice. I accept that, because of the random nature of the testing, there was no prior indication about when funds may be needed. I accept her evidence to the effect that: “how do you know when you need the money? There could be months in between tests and sometimes two tests in a month.”
I also accept Ms S’s evidence that, whilst she knew that the tests were important for the father, she had her own familial obligations and had family members who needed financial assistance from time to time. I accept that she had ‘family issues’ herself and a child in hospital at some point during this period and that she simply could not afford to pay for the father’s testing. I accept her evidence that the father would ask her for money on occasions and she refused such requests because she did not have the money as she needed the funds for her sick child.
I also accept her evidence that, from her perspective, the absence of funds rather than any concern that the results would be negative, was the reason the father did not have the tests.
It appeared that the average weekly cost of the tests taken over this period would be somewhere in the vicinity of $20 to $25. The father accepted that he smoked cigarettes at a frequency of approximately two packets per day at a cost of about $30 per day. It was suggested to him by Counsel for the Simmonses that he could easily have afforded the tests had he simply made some sacrifices in terms of personal consumption. Whilst this may well be the case, it is also relevant, I think, to note the father’s evidence that, whilst the averaging process suggested by Counsel may well have been accurate, as Ms S said, it was also a matter of having the total costs of the testing available at the time the random request to test was made.
The father accepted that he did not ask his mother or any friends or family whether he could borrow any money in order to undertake the tests.
Whilst I accept Ms S’s evidence that funds in the household were very strained because of the illness of one of her children and the necessary funds were not available at the times the random request to test were made, I accept that the father could have asked his mother to provide sufficient funds to enable him to undergo the tests as requested by the Independent Children’s Lawyer. I consider it likely that he was unwilling to do so because he considered that he had been tested and tested with the same consistent result of ‘no excessive alcohol’ at a time when the mother was not complying with any testing requirements.
It was clearly part of the Simmonses’ case that, because of his failure to test on these occasions, I should conclude that it is more likely than not that the father had engaged in binge drinking or alcohol consumption in an amount and manner that would have been detected by the testing and that is why he did not present when requested.
I note that, when asked whether he would accept the truthfulness of the father’s account about alcohol intake in another context, Mr Simmons said that he would. I too accept the father’s evidence, corroborated by that of Ms S that, during 2012, the father consumed alcohol on an average of 1-2 occasions per week, consuming on average about 2-3 beers or three bourbons on each occasion and also had some weeks where he did not consume alcohol at all.
Dr A was asked whether there would have been a positive result for ‘excessive alcohol intake’ produced by CDT testing if the father’s level of alcohol intake during the period he did not attend for testing was as both he and Ms S described. He said that with such consumption he would not expect any indication of excessive alcohol consumption. He said that if the intake of alcohol was below an average of 5-6 drinks per day, he would not expect elevated test results. I accept this evidence.
I am not persuaded that the father’s failure to test as requested compels a finding that he did so because he was concerned about what the test results would show. Rather, I am persuaded that he simply got to the point where, in circumstances where funds were tight, because he considered that the test results would show further occasions of ‘no excessive alcohol intake’ and the mother was not undertaking any testing, he was not prepared to ask his mother to fund further tests.
I am persuaded that, even if the father had tested as requested, the tests results would, more likely than not on the basis of the evidence accepted by me as outlined in paragraphs 98 and 99, have been that of ‘no excessive alcohol intake’.
Dr L, psychiatrist, interviewed the father on 25 February 2013. The father reported a current pattern of alcohol use which was not excessive. Tests undertaken that day[22] did not reveal excessive alcohol use or intake. Dr L considered that the results supported a view that the father has been able to address and control his ‘alcohol related life problems’. I accept his evidence in this respect.
[22] Serum Chemistry results; Full Blood examination; Urine Drug Screen; Carbohydrate Deficient Transferrin (CDT) screen.
Dr L noted that the only psychiatric or mental health issue which ‘could have been problematic’ for the father concerned his history of unhealthy or excessive use of alcohol. He considered that the father did not require any psychiatric or psychological treatment but, concluded that his assessment ‘supports the psychiatric opinion, in the strongest possible terms, that the father must continue indefinitely, to address and control his alcohol related life problems.’ He said that it was absolutely essential that the father enter into a lifelong plan to prevent relapse of his previously extraordinarily severe problematic behaviour because there is a risk, whilst he is alive, of a recurrence of his traffic, forensic issues and behavioural difficulties.
I accept Dr L’s evidence in this respect. It is consistent with the evidence of Ms X, Dr D and Dr E.
The father accepts his need to continue to address and control his alcohol related life problems indefinitely by the orders he proposed which would see him engage with a suitably qualified medical practitioner in order to formulate a “Lifelong Relapse Prevention Plan” and continue to attend upon such practitioner for as long as the practitioner thinks therapeutically advisable. Of course, such attendance is but one way of continuing ‘indefinitely, to address and control his alcohol related life problems.’ A further way is, I consider, to continue to abide the terms of the Undertaking from which he has not sought to be released.
I accept Ms S’s evidence that the father currently drinks on 1-2 occasions per week depending on social functions and that there are weeks when he does not drink alcohol at all. I accept that, on average, he consumes 2-3 beers on occasion and on other occasions about three bourbons. I accept the evidence of Ms S that she and the father occasionally have a glass of wine and partake in social drinks with friends on special occasions. I accept her evidence that they do not consume alcohol on a daily basis and that there are periods of weeks during which they do not consume alcohol at all.
It is clear that the father told Ms M in March 2013 that he did not believe he has a drinking problem or that he suffered from alcohol dependency. He said, during cross examination, that he had abused alcohol in the past and made poor decisions whilst under the influence of alcohol. That much is clearly established by his criminal history.
He said that in the past he had a binge drinking problem but has not had a binge drinking episode in the last three years. His evidence is corroborated by that of Ms S who said that the last time she witnessed him engaging in binge drinking was ‘three plus’ years ago. I accept the evidence of both the father and Ms S in this respect. Whilst the evidence of the private investigator discussed above establishes that the father consumed alcohol in May 2011 it does not, I consider, establish that he was ‘binge’ drinking on that occasion.
The father said that he believed that he had his use of alcohol under complete control at the moment and that he does not currently binge drink. I accept his evidence in this regard. I also accept that he has not breached the Undertaking. I consider it more likely than not that, in speaking with Ms M, he drew a distinction between his past behaviours and his current behaviours. I consider it understandable, given his evidence of not binge drinking and having periods during which he does not consume alcohol at all, that he told Ms M that he does not believe he has an alcohol problem or that he suffered from alcohol dependency. I do not conclude from this, however, that he has not accepted the necessity to continue to manage and address the issue of his alcohol consumption into the future.
I find that the father has been able to control his intake of alcohol to the point where he has never attended at a Contact Centre visit under the influence of alcohol and has achieved a long history of test results which record ‘no excessive alcohol intake’. The tests performed in February 2013 at Dr L’s request continue this pattern of results.
I accept his evidence that he has finally realised the issues he has with the consumption of alcohol. I am comforted in this conclusion by the fact that he seeks the continuation of the Undertaking which prevents him from consuming alcohol at all when the child is in his care or for 24 hours before she comes into his care. I am satisfied that he will continue to comply with the terms of his Undertaking to refrain from consuming alcohol whilst the child is in his care.
I am satisfied that, with the assistance of attendances upon medical practitioners and the enforced rigours associated with monitoring for excessive use of alcohol, the father has been able to learn to accept and deal with his previous issues with alcohol consumption. I am satisfied that it is more likely than not that, with the continued assistance of the testing which he himself has proposed, he will be able, in the future, to act so as to maintain at least the partial remission that Dr E spoke of in late 2009. I am satisfied that he has come to the realisation that he must continue to be in remission if he is to provide the child with the ‘best’ he has to offer her as a parent.
I accept Ms S’s evidence that her belief is that the father does not need to binge drink as much as he did years ago because he is a lot happier with where he is in his life in that he has the child who he adores and loves and he knows he needs to be responsible. I consider her belief to be a reflection of the current state of affairs.
I also find that, following the mother’s death, and the increase in the time the child has spent with her father, it is more likely than not that there has been a decrease in the stressors with which he has been living since the litigation between the parents commenced.
I also accept, without hesitation, Ms S’s evidence that, if she became aware at any time that the father had increased his alcohol consumption, she would ‘strangle him’ and address it with him. I accept that, if she felt ‘on the spot’ that he was indulging too much, she would say ‘enough’ and remind him what was at stake, how much he had been through to get where he is ‘today’ and of all the sacrifices, including, I infer, those she has made in supporting him over the last five and a half years, that have been made along the way.
Ms M expressed caution about individuals who display or express minimisation of their dependence issues. She opined, given the lack of alcohol related charges since 2008, and the father’s self-reports about his control of his consumption of alcohol that, if Dr L provided a ‘positive’ report and indicated that there was not an on-going concern about the father’s alcohol dependence or consumption, her view was that the risks relating to his use of alcohol are “acceptable” enough that the child spend overnight time with him. This has already occurred.
Mrs Simmons said that she was concerned that the father could revert to his binge drinking behaviour at any stage and that if this occurred the child would be at risk. She said that the evidence was not enough to persuade her that the child was safe or that the father was unlikely to revert to previous levels of alcohol consumption and associated behaviour.
I accept that it is always a risk for a person with the father’s history that they may revert to previous behaviour. However, I am persuaded that such risk is, in this case, minimal because:
a)the father has maintained a significant period of low level alcohol use as evidenced by his test results;
b)the evidence of Dr E, which I accept, was to the effect that the level of risk is lower the longer the period that low level usage is maintained;
c)I accept that the father has owned his problem and has accepted responsibility for his actions – that he has not done so using words that would convince the Simmonses does not detract from my conclusion that he has fully accepted the absolute necessity that he refrain from consuming alcohol whilst the child is in his care;
d)the father has sought not to be released from the Undertaking which imposes on him that stricture.
Dr L said, and I accept, that if the child lived with the father full time or on a more permanent basis there would need to be a continuous and more absolute control of his alcohol use. He said that there should be no opportunity allowed for any of the father’s past behaviour or alcohol-related problems because a recurrence of the same would have a great risk of posing an emotional, psychological and or physical and social harm and developmental harm to the child.
I understand Dr L to say that it was a question of the father’s future capacity to control his alcohol use (or not) over a period of time. He said, and I accept, that the father does not suffer from a psychiatric disorder which impaired his capacity to make a decision not to use alcohol.
Dr L considered that positive supports for a conclusion that the father has been able to control his use of alcohol are that:
a)he is in a stable, settled and strong relationship with a supportive partner who is very aware of his drinking problem and who had acted to discourage him from drinking to excess was a positive prognostic feature for the future;
b)he has not been a binge drinker for three plus years;
c)he has not committed any further offences;
d)there have been no observations of intoxication at a Contact Centre;
e)he has returned the CDT results that he has;
f)there has been improvement in his previous problematic behaviour;
g)he has complied with the Undertaking since it was given in December 2009; and
h)the assessments support the view that the father has been able to address and control his alcohol related life problems.
I consider that the father has already demonstrated a capacity to control his alcohol consumption and that the continuation of the Undertaking in its existing terms as sought by him is a further demonstration of his capacity to control his future alcohol consumption.
Dr L said that it was extraordinary that, with all of the things that had happened to the father, he had not developed a psychiatric illness in the nature of depression. He considered that the father had not done so because of the strength of his personality functioning. He accepted that there was no doubt that, if the father could channel his personality strength to have and live with the conviction of deciding not to drink alcohol when the child was in his care, that would be a very good prognostic feature. I accept his evidence in this regard and consider that, in seeking not to be released from the Undertaking, the father has demonstrated this conviction.
It is clear from the orders proposed by the father that he intends to attend upon a general practitioner to develop and implement a Lifelong Relapse Prevention Plan as recommended by Dr L. Whilst clearly the actual implementation of the plan and its associated testing requirements will, I consider, fall to be considered by that treating specialist, it may be of assistance to record that Dr L’s evidence was that, if he was charged with the long term management of the father:
a)he would initially want blood and urine testing and, based on what Dr A said, monthly CDT testing;
b)he might consider a decrease in the regime of testing if the father was progressing satisfactorily and the question of whether the regime of testing continued for 12 months, 18 months or 24 months would depend upon the relationship that the father developed with his treating doctor;
c)the regime could be reviewed after a period of time (being not less than 12 months) and that, if things were progressing, then after 12 months the CDT testing could occur once every eight weeks;
d)whilst it was important not to impose to onerous a testing regime on the father, he thought the father could cope with this because of his attitude, approach, desires, motivation and overall presentation;
e)it was possible that there would be a time when no testing was required because the father’s treating practitioner would say that he did not need blood tests because he was showing a lot of progress with respect to his capacity to control his behaviour;
f)if rapport was established between the treating practitioner and the father it could get to a situation where, if the father had an idea that he felt like he needed to go back to drinking, he would attend upon his doctor and have a talk about doing other things that they had already agreed on in the lifelong relapse prevention plan;
g)the goal of the relapse prevention plan would be to move the locus of control from the ‘external’ to ‘internal’ control and that a balance needed to be found between providing sufficient external structure and mentoring whilst at the same time trying to develop and facilitate the continuation of the development of internal controls by the father.
And further, that Dr A’s evidence was to the effect that:
a)CDT testing on a no more frequent basis than once per month is the appropriate test if general monitoring of alcohol use, ongoing excessive alcohol or alcohol abuse is the issue but not if abstinence is the issue;
b)if it was thought that a person ‘needed’ testing for alcohol consumption, including binge drinking, it would be appropriate to use a combination of urine drug testing, on up to four occasion per week, and monthly CDT testing;
c)whilst there are other tests which may indicate the presence of excessive alcohol intake, such tests are less reliable than CDT testing;
d)he would not use full blood or liver function tests to determine alcohol misuse, preferring CDT instead, but would refer to the results of these, if available, because they may show support for the CDT results;
e)if the CDT results and results from other tests differed, he would prefer the CDT results;
f)if proposing the appropriate pathological testing for a person with a history of alcohol misuse over time where the issue was whether that problem was controlled, managed or no longer of concern, he would recommend CDT, noting that it may fail to detect if episodic drinking was of short duration;
g)if testing is to determine abstinence from alcohol consumption then accepting the practicalities of life, random testing at a frequency of no more than one to two tests per week could be implemented;
h)there is no purpose in administering CDT testing within a fortnight period and randomness in the administration of the test is beneficial.
He said that if the goal of the testing is to determine if alcohol abuse is occurring, then CDT testing is the standard procedure with it to occur no more frequently than monthly.
In relation to the general monitoring of alcohol use, Dr A stated that he would only recommend the CDT test. He states that although there are other tests, in respect of which he was cross examined by Counsel for the Simmonses, the CDT is a more specific test.
In re-examination by the ICL, Dr A stated that whilst a fortnightly CDT test would increase the probability of detecting an event of drinking, there was no purpose in administering the test within a fortnight period. He also said that the ‘randomness’ was the issue in terms of the control of the test.
I find that the regime of CDT testing on a monthly basis for 12 months initially and thereafter as recommended by the father’s treating practitioner, together with whatever other testing such practitioner determines in that person’s professional expertise to be useful, is the balance between sufficient external structure and mechanism of mentoring and the facilitation of the development of “internal” control.
Whilst Dr L said that he thought the father required attendance upon a general practitioner to monitor blood and urine test result every three months it is, I think, clear that blood and urine testing every three months would not do anything to deal with or manage any immediate risk that the father might pose to the child. That risk is, I consider, addressed by the continuation of the Undertaking in the manner proposed by the father.
Dr L also said, as I understand it, that considering the matters set out in paragraph 121, there has been some shift in the father’s locus of control from external to internal but not for a long enough period of time. Whilst it may be that, as Dr L suggested, a further significant period of time will be required to establish ‘so much evidence of control’ that it could be said that the father’s management of alcohol consumption derives solely from his ‘internal locus’ of control, it is not necessary that the father comply with the Undertaking by using only the “internal locus of control” – what is important is that he comply with it by whatever means available to him. I am satisfied, on the evidence before me, that he will do so.
I accept that it is a matter of balancing the risk and assessing the likelihood of its recurrence, taking into account the other stressors, issues and life matters with which the father is asked to deal. In this regard, I consider that it is more likely than not, given the history of proceedings between the father and the mother, that her death has resulted in a diminishment of the life stressors to which he is exposed.
Dr L said that with alcohol a long period of control is necessary to be in place before one can be believed that the “internal locus of control” is strong enough to withstand the external pressures that might apply. I consider that, with the benefit of testing and the implementation of a Lifelong Relapse Prevention Plan with a treating general practitioner, who will no doubt determine with the benefit of a perusal of these Reasons the appropriate pathological testing (in addition to the CDT testing), its frequency and the manner in which it will be carried out, the father will be provided with the necessary external supports whilst continuing to develop the internal locus of control necessary to ensure that he maintains the ability to manage his alcohol consumption and associated life issues.
I also consider that, once the father has engaged with and prepared a Lifelong Relapse Prevention Plan (with the assistance of the treating general practitioner) he will remain subject to the recommendations of that practitioner and together they will develop an appropriate plan taking into account the father’s personal characteristics and the history which is apparent to all from a reading of these Reasons.
Dr L was asked to comment on whether it was a “tall ask” for the father to commit to a regime which meant that he could drink on only one occasion per month: that is, when the child is spending weekends with the Simmonses. Dr L said that, even with such an onerous proposal, it was possible the father could agree to and achieve such a goal and it was a question of the father’s capacity to change his behaviour in accordance with such a programme in the interests of that proposal. I have already expressed my confidence in the father’s capacity to continue to comply with the Undertaking and to engage in the therapeutic support he proposes.
When asked what she said to the child in response to that statement, Mrs Simmons replied that she ‘always tried’ to paint a better picture of the father to the child who has, for ‘whatever reason’ a negative view of her father. She said that when the child makes a comment that is somewhat negative about the father she tried to steer the conversation away. Despite saying she always tried to paint a better picture, she did not tell the child that her father was a ‘good dad’.
It is interesting, I think, to note that, according to Mrs Simmons, the child has a ‘negative view’ of her father when such a view is not expressed to supervisors at Contact Centres or to Ms M in any way that withstood the gentlest of challenge or inquiry.
Mrs Simmons also said that the child told her that, when she was at the W show or rodeo and she was to spend time with her mother and father, the father chose to sit at the bar and drink alcohol. This account contrasts with that provided by both Ms S and the father yet, despite her comments about the lack of weight to be attributed to the comments of a six year old as set out above, Mrs Simmons seems to have accepted the accuracy of such comments and relied on them to provide confirmation of the father’s inability to control his alcohol consumption and as providing a basis for the child’s comments that he is not a ‘good’ father.
Whilst the Simmonses told Ms M that they ‘very much want [the child] to have a healthy and on-going relationship with her father’, it is very clear that they do not think that she should live with him in any circumstances. Mrs Simmons said that, even if the allegations about physical and sexual abuse involving the father were resolved in his favour and a conclusion reached that he did not pose an unacceptable risk to the child as a consequence of his consumption of alcohol or the other matters, the child should still not live with him because she did not think that he provided a ‘safe’ option for the child.
Such an attitude causes me to conclude that, if the child remains living with the Simmonses and spends time with the father, it is more likely than not that he will be the subject of close scrutiny to determine whether, in the Simmonses’ eyes, he is acting as a responsible parent – in accordance with their views and lifestyle and experience. Accepting as I do that their respective life experiences are vastly different, I conclude that it is more likely than not that if the child lives with the Simmonses there may be a continuation of the strictures, in some form, placed on the her time with the father.
Somewhat reluctantly, Mrs Simmons accepted that Ms S would act protectively if the occasion arose saying that she would ‘to the best of her ability considering that the father is a man’. She clarified that she relied on the ‘evidence’ about the interaction between her sister and the father and that there was a lot of domestic violence and that the child had been exposed to a lot of things. Such a response suggests to me that Mrs Simmons is likely to struggle to accept that the relationship between the father and Ms S is different to that which existed between the father and her sister, the mother. I consider that the relationship between the father and Ms S appears to be founded on mutual support and affection.
Mrs Simmons also said that ‘I understand that [the father] has not proven that he is recovered from his alcohol centred lifestyle and could not adequately care for [the child] unsupervised for any length of time.’ The phraseology of this expression and the fact that there has been so little interaction between the father and the Simmonses over the years can lead only to a conclusion that Mrs Simmons has been told these things by someone else. Mrs Simmons said that, in the long term, she hoped that ‘these circumstances’ would change. As is apparent from my Reasons, I consider that they have changed.
Mrs Simmons said that, when she was putting the child to bed and they were sharing a prayer, she said ‘thank God for your parents your beautiful mother and beautiful father’ and the child said ‘not my beautiful father’. Rather than reassuring the child that her father, too, was “beautiful”, Mrs Simmons said “none of us are perfect we all make mistakes". When asked why she said “we all make mistakes” Mrs Simmons responded that she was making a general comment. Again I think this is a demonstration of the subtle negative influences to which the child is likely to be exposed if she remains living with the Simmonses.
I find that it is more likely than not, given the matters to which I have referred, that if the child remains living with the Simmonses her relationship with the father will not be fully supported and she will be exposed to subtle expressions of views which are critical and undermining of his role as her father, and of his relationship with Ms S. I consider that this is not beneficial to the child, particularly given her recent loss of her mother.
Mrs Simmons refers, in her affidavit filed 21 February 2013, to the fact that, in her proceedings before the Court, the mother sought an order, in the event of her death or incapacity, that the child live with them and that Mrs Simmons have sole parental responsibility for her.
I accept that the terms of the Order sought by the mother at that time reflect her wishes in the event of her death or incapacity. However, such wish cannot be given precedence over a conclusion about the parenting orders which are otherwise in a child’s best interests following a consideration of the relevant s 60CC considerations. Had Parliament intended that a deceased parent’s wishes be binding, determinative or accorded particular weight in the determination of the orders which are in the child’s best interests following that parent’s death, such intention could have been clearly recorded by legislative direction.
Counsel for the Simmonses submitted that the parenting arrangements for the child must include a requirement that the father abstains from the consumption of alcohol at all times the child is in his care and for 24 hours before that. The Undertaking provides that. Counsel also submitted that there should be a requirement for the continued long term management of the father’s alcohol consumption requiring the assistance/interpretation of someone like a psychiatrist or a general practitioner with specialty to monitor the father. The terms of the Order prepared by the father addresses this.
I do not accept the submission of the Simmonses that there is an unacceptable risk in placing the child in the father’s care. The unacceptable risk was identified by Counsel as that the father might “fall off the wagon”. This was said to present a significant risk because it means that in a matter of hours, if the child was in his care, she could be placed in a position of life threatening danger. I consider that this risk is addressed by the continuations of the Undertaking.
I do not accept the submission of Counsel for the Simmonses that a continuation of the Undertaking, as sought by the father, is something that is setting the father up to fail. Whilst it is indeed very onerous I accept the father’s evidence that he will continue, in the future, to abide its terms as he has in the past.
Counsel submitted that the question for the future is the nature and extent of Dr L’s evidence about the father’s necessity to engage in a Lifelong Program Relapse Prevention. The father himself propose orders that would see him engage with a medical practitioner for the purpose of developing a Lifelong Relapse Prevention Program. I accept, therefore, by his actions in proposing such an order, that the father again demonstrates a full and proper appreciation of the importance to him and to the child in his parenting of her that he participate in such program.
Counsel for the Simmonses sought ongoing urine testing and submitted that the maternal grandfather would pay all the costs of the drug and alcohol testing: (CDT and urine testing) indefinitely. There was no evidence before me to this effect. In any event, I consider that the father’s treating practitioner will be well appraised of the matters with which the father is dealing and will, more likely than not, ensure that the appropriate medical measures are implemented.
I accept Ms M’s opinion that the issue of whether it is in the child’s best interest that she live with her father is more complex than whether she should spend unsupervised time with him. It needs to take into account and consider her close relationship with her mother and the grief and loss she has experienced as a consequence of her mother’s death.
Ms M considers that it is important that the child feel ‘free’ to talk about her mother and her feelings about her mother at any time. Ms M considered that the child had communicated a ‘number of important messages’ to her father:
a)that he had to attend the Easter bonnet parade because he was the only parent she had now;
b)that she wished things could go back to how they were before when she lived with her mother in the house at W.
Ms M considered that, taking into account that the Simmonses are approaching what she termed the ‘twilight’ of their parenting of their own children, the stressors likely to be associated with having a child undertaking Year 12 exams, the fact that the child is used to being an only child living in a semi-rural lifestyle who regularly has contact and activities and horses, if the court was satisfied that there are not any unacceptable risks to the child spending unsupervised time with her father that it would be appropriate to consider transitioning her from the fulltime care of the Simmonses to the full time care of her father.
I have concluded that there are no unacceptable risks to the child spending unsupervised time with the father. I take into account that the child is used to being an only child living in a semi-rural lifestyle who regularly has contact and activities and horses. I accept Ms M’s opinion.
I accept Ms M's evidence that it is expected that the child would yearn to have familiar things close to her and want to return to how things were before her mother died.
I consider that, with the continuation of the Undertaking the child is not at risk of spending time or living with her father. As outlined above, I accept the father’s evidence and that of Ms S about his change in attitude and behaviour toward the consumption of alcohol.
I find that the father has demonstrated a significant commitment to parenting the child and that, because of his tenacity and determination to remain part of her life over the years to date, he is the person who has been a constant and predictable presence for her.
I conclude that it is more likely than not that because of his consistent presence in the child’s life, even if in a supervised manner, her attachment to him is strong. I find, in circumstances where she has lost the primary support previously provided by her mother that it is important for the child’s emotional wellbeing in the future that she be provided with as much time as possible with her father, the person who she clearly knows to be her ‘only parent’.
I accept the submission made by counsel for the Independent Children’s Lawyer that there was “some issue” about the Simmonses’ attitude toward and capacity to facilitate the child’s relationship with her father. In particular, counsel referred to Mrs Simmons’ evidence about her willingness to infer that the father had been drinking because he was said to be red in the face at one of the visits and her lack of positive immediate response to the child’s comments that the father was not a good father. I have outlined these matters above. Further, Counsel submitted that Mrs Simmons had issues in relation to a capacity to acknowledge the stability and capacities of the father’s relationship with Ms S. Again I accept these submissions.
I am left with no doubt whatsoever in relation to the father’s commitment to addressing his issues with alcohol consumption. I am left with no concerns whatsoever that he fully appreciates the importance of continuing on his path of appropriate alcohol intake management.
I also consider that, in order to assist him with his continued management of his alcohol issues the father should attend upon a general practitioner and develop a Lifelong Relapse Prevention Plan as suggested by Dr L. Incorporated into this will, I expect, be a requirement that, in a manner and at a frequency determined by that medical practitioner, the father undergo all tests, such as blood and urine analysis tests, requested of him by the practitioner. In addition to these, he will, I consider, benefit from undertaking monthly CDT testing for at least 12 months and thereafter at a frequency and time requested by his treating practitioner, who will also be provided with a copy of these Reasons.
I consider that if the child lives with her father she will have the benefit of living with the person she has described as ‘her only parent’ now. She will have the opportunity to return to at least some familiar things like her previous school. She will live in the city in which she lived with her mother. She will have what I consider to be the substantial benefit, given her loss of her mother, of living with the person who has been a consistent and constant presence in her life and who has demonstrated by persistence that she and things important to her are a significant priority. I also consider that the father and Ms S, more than the Simmonses, will provide the child with the better opportunity to maintain relationships with both her maternal and paternal extended families and that it is unlikely that she will be exposed to negative views or influences about her mother or extended maternal family in their care.
Having regard to the matters set out above, I consider that it is in the child’s best interests that she live with her father and spend time with the Simmonses.
The time the child should spend with the maternal aunt and uncle
Ms M opined that if the child lived with her father, as I have determined is in her best interests, she should initially spend each alternate weekend with the Simmonses in order to allow her the opportunity to maintain her close relationship with them, and Mrs Simmons in particular, and also to have the opportunity to interact with other members of her extended maternal family including her half siblings. Ms M suggested that after six months, this arrangement be modified so that the child spends time with the Simmonses once every three to four weekends to alleviate the travel that she will have to do.
Whilst Mr Simmons was supportive of there being specific time for the child to spend with his family in the event she lived with her father, I understood him to raise concern, because of the impact of the travel and the child’s dislike of the same, about the frequency of such time. All parties agreed that the child does not like to travel in the car for long periods of time. Mr Simmons certainly supported Ms M’s recommendation that the frequency of weekend time should reduce to once per month over time.
I consider that it is more likely than not to be disruptive to the child’s transition to live with her father if she then is required to deal with the travel, which she dislikes, in order to spend time with the Simmonses each alternate weekend for a six month period. I accept the evidence of Ms M that she will cope with whatever arrangements the adults put in place for her. I consider that time on the fourth weekend of each month will achieve the balance of providing the child with sufficient time to continue to develop her relationship with the Simmonses and members of her extended maternal family whilst at the same time allowing her to settle into living with her father and Ms S.
Ms M supported orders which would see the child spend half of the school holiday periods with the Simmonses and this position was adopted by them in the event that they were unsuccessful in their primary application that the child live with them. The father’s proposed orders do not make provision for the child to spend half of the school holiday periods with the Simmonses each year. Counsel submitted that, within the weekends provided for, there is sufficient opportunity for the child to maintain relationships with her maternal family and that this is supplemented by the block time proposed to occur during the Christmas school holiday period.
Whilst I have had regard to Ms M’s evidence about the extent and frequency of the time that she considers the child should spend in each household during holiday periods, I consider that it is in her best interests if she has the opportunity to spend all of the Easter and September/October school holiday periods with her father and half of the mid year and end of year school holiday periods in each household.
In arriving at this decision, I have taken into account:
a)the importance of providing the child with the opportunity to maximise her ‘out of school’ time with her father and be able to participate in the horse activities she enjoys so much;
b)that the weekend time she will spend with the Simmonses will not be suspended during school holiday periods;
c)that it is important that the child settle into her new ‘primary care’ parenting arrangements as quickly as possible and without the possible disruption of transitioning between two vastly different households;
d)the benefit to her of having ‘down time; in her home environment during holidays;
e)the possibility that she may as she grows older continue to be involved with horses and activities associated with them;
f)that such time provides the child with opportunity to continue to develop and maintain her relationships with the Simmonses and her half siblings;
g)my concerns about the possible exposure of the child to negative comments and attitudes toward the father during time she spends with the Simmonses;
h)the benefit to the child in not being required to transition between and manage two vastly different households every school holiday period.
Parental responsibility
The presumption that it is in the child’s best interests that her “parents” have equal shared parental responsibility for her clearly does not apply in this case. Consequently, “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the child] being the paramount consideration – see s 60CA; s 65AA).”[32]
[32] Cox & Pedrana [2013] FamCAFC 48, [19].
Whilst the Principal Registrar ordered, on 19 March 2013, that, until further order, the father and the Simmonses have equal shared parental responsibility for the child, I am required, by s 61DB of the Act, to “disregard the allocation of parental responsibility made in [that] interim order.”[33]
[33] S 61DB of the Act.
As noted above, the Simmonses seek an Order that parental responsibility for decisions about long term issues in relation to the child be shared by them (jointly) and the father. In contrast, the father seeks an Order that he have ‘sole’ parental responsibility for her. Absent any order of the Court allocating parental responsibility, the father has parental responsibility for the child pursuant to s 61C of the Act.
Ms M opined that if the child lives with her father he should have sole parental responsibility but should be required to inform the Simmonses of any major event and/or decision he makes affecting the child’s “wellbeing and welfare”.
Whilst it appeared that if the Simmonses and the father differed about a particular issue his view would ultimately prevail, I am concerned that the ‘vast differences’ between the households are such that, as time passes, the level of co-operation between them may lessen as the extent of that difference becomes more apparent.
I consider, having regard to the matters discussed in my consideration of the attitudes of Mrs Simmons to the father and his household that such an order is in the best interests of the child because it allows the father to make decisions about the child without the requirement for agreement being reached between two vastly different households but ensures that the Simmonses are kept informed and involved in such decision making.
Despite the evidence about the level of communication between the father and the Simmonses, I consider that, having regard to the matters discussed in my consideration of the attitudes of Mrs Simmons to the father and his household and given the significant differences in attitudes as I have found them to be it is in the child’s best interests that her father retain, without impost, parental responsibility for her. An order in the form discussed by Ms M will allow the father to make decisions about the child without the requirement for agreement being reached between two vastly different households but ensures that the Simmonses are kept informed and involved in such decision making. I consider that the provision of information between households about the child is in her best interests and an Order can provide for this.
I certify that the preceding three hundred and eighty-nine (389) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 July 2013.
Associate:
Date: 24 July 2013
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