Laguna and May-Laguna

[2009] FamCA 1314

FAMILY COURT OF AUSTRALIA

LAGUNA & MAY-LAGUNA [2009] FamCA 1314

FAMILY LAW – CHILDREN – Interim time

Family Law Act 1975 (Cth)

C v C (1996) FLC 92-651
Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Laguna

RESPONDENT: Ms May-Laguna

FILE NUMBER: SYC 3554 of 2008

DATE DELIVERED: 8 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Murphy J

HEARING DATE: 8 December 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cumming of Hamish Cumming Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Briggs & Associates

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The child S born … NOVEMBER 2003 (“the child”) spend time with the father at all such times as might be agreed between the parties in writing and, failing any such agreement, in accordance with the succeeding provisions of these orders:

   a.From 12.00noon until 8.00pm on Thursday 24 December 2009.

   b.From 9.00am until 5.00pm on Sunday 3 January 2010, and between those times on that day each alternate week on 5 subsequent occasions.

   c.From 3.00pm on Friday 8 January 2010 until 5.00pm on Saturday 9 January 2010, and between those times on those days each alternate week thereafter (commencing after school on Friday if a school day).

   d.From the conclusion of the periods referred to in paragraph 1(b) of these orders, from 5.00pm on Saturday until 6.00pm on Sunday and between those times on those days each alternate week thereafter.

2. The father shall not consume any alcohol or non-prescriptions drugs for 24 hours prior to, or during, the periods of time spent with the child.

3. The father shall undertake a Urine Analysis Test within 24 hours of being requested to do so by the mother, with such requests to be made by the mother at her discretion at the conclusion of any period of time spent with the child pursuant to these orders, but not more frequently than once each three weeks.

4. The father shall authorise and direct any general practitioner referring him for any Urine or other Test required of him pursuant to these orders, to provide to the solicitors for the mother, a copy of the referral, a copy of the test results and any analysis thereof, and any written comments made by any general practitioner or other medical practitioner in respect of any such test.

5. The father shall undertake CDT testing within 48 hours of receipt of the written request of the mother, provided any such written requests are on no more than two occasions in any six month period.

6. The father shall collect the child from the mother’s residence at the commencement of each period of time that the child spends with the father, and the mother shall collect the child from the father’s residence at the conclusion of each period of time that the child spends with the father, save where changeover is effected at the child’s school.

IT IS FURTHER ORDERED THAT

1. Pursuant to Rule 17.02 of the Family Law Rules 2004, within seven (7) days of the date of these orders, the father do all things and execute all documents to transfer to the mother his right title and interest in the Peugeot registration number …

2. 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Laguna & May-Laguna is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3554 of 2008

MR LAGUNA

Applicant

and

MS MAY-LAGUNA

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The parents of S, who was born in November 2003, are currently in dispute about the co-parenting arrangements for him.  Despite separating about five years ago, when S was about 12 months old, the parties have been unable to reach agreement about his future co-parenting arrangements.  That dispute has commenced on a path towards a trial that seems unlikely to take place before about June 2010.

2. The instant dispute concerns what arrangements should apply, absent agreement between the parties, until that trial takes place and judgment is delivered.

3. On 30 January 2007, orders were made in this court that provided for the father to spend somewhat truncated time with S.  Order (9), subparagraph (d) of those orders provides:

   That the [paternal grandparents] shall ensure that the said child is not left in the sole care or removed from their care by the husband. 

4. Orders (3) and (4) of those orders provide respectively:

   That, without prejudice and without admission, the husband be restrained from consuming any alcohol or non-prescription drugs during, or for a period of 24 hours prior to, any time he spends with the said child.

   That in the event that the husband appears to [be] affected by alcohol or any non-prescription drugs, then the father’s time shall be suspended or terminated by [the paternal grandmother] and/or [the paternal grandfather], and the third respondents shall notify the wife as soon as practicable.  

5. The foundation for these orders, which I have described as providing for significantly curtailed time between S and his father, can be found primarily in a single expert report prepared shortly prior to those orders being made by a Dr A.

6. Dr A reviewed a significant amount of material, including from medical practitioners who had been consulted by, or had contact with, the father.  The doctor’s review of that material included a discharge summary from the N Hospital, dated 7 December 2004, in respect of the father’s treatment at that hospital. 

7. That admission occurred at about the time that the parties separated.  The extract from the discharge summary contained in Dr A’s report, is as follows:

   Discharge summary from [N] Hospital, dated 7 December 2004, indicated that [the father] presented with pneumonia, in context of eating disorder, chronic malnutrition, excess alcohol use and parathyroid disorder.  He was extremely ill, with blood and lung infections, and required treatment in intensive care.  Nerve conduction studies performed on 1 November 2004 revealed mild sensory motor peripheral neuropathy, with more severe perennial neuropathy.  He was noted to have normal B12 and folate levels.  He was malnourished with low potassium and magnesium.     

8. In his submissions, counsel for the mother, Mr Gould, described the father as suffering from a “serious past alcohol history.”  Mr Cumming, who appears for the father, conceded that there had “been past problems with alcohol.”

9. Of particular concern, as part of the background to those alcohol problems, is something that Dr A included in his ultimate opinion in the report earlier referred to.  The doctor said:

   In contrast, there is considerable medical information concerning [the father’s] health in the period 2002–2004.  He consumed excessive amounts of alcohol, repeatedly coming into contact with police and being charged with alcohol and driving-related offences.  He was in conflict with his wife and family, resulting in serious injuries and a need for an apprehended violence order.  He was treated at [N] Clinic, where he was diagnosed with alcohol abuse causing liver damage, as revealed on blood tests and ultrasound scans.  His health deteriorated as a result of his eating disorder, poor nutrition, alcohol abuse and other factors, to the point where he placed his life at risk and needed intensive care treatment for pneumonia.  Nevertheless, he acquired a further drink-driving charge, and presented to a hospital after falling while intoxicated.  [The father] tended to minimise the extent of his problems and not comply with treatment recommendations.    

10. It might seem unsurprising, then, that orders for time were expressed by consent in the form, as I have earlier indicated. 

11. Subsequently, an application was brought by the father founded, he would argue, in significant changes in his drinking behaviours.  Orders were made by consent about 12 months ago, to the effect that the father would see S from 10 am until 4 pm each Sunday, supervised by his parents.  Additionally, the parties have agreed to time when S is attending swimming and soccer.  That time, too, is of its nature “supervised” in the sense of it occurring in the presence of numerous other people.

12. The decision here, then, is made in the context of S having spent no unsupervised time with his father since his parents separated, now almost five years ago.

13. The parameters of the current interim dispute are marked out factually by the proposals of the parties.  The father contends for orders as follows:

    (1)That for the three months after the making of the orders, the child … spend time with the father in a two-weekly cycle as follows:

    (i)in week 1, from after school Friday, or 3 pm if not a school day, until 5 pm on the Saturday; and

    (ii)in week 2, from 5 pm on the Saturday to 6 pm on the Sunday.

    (2)From 4 pm on 24 December 2009 until 12 noon on 25 December 2009.

    (3)That pending further order after the period set out in order (1), [S] spend time with the father in a two-weekly cycle, as follows:

    (i)in week 1, from after school Wednesday, or 3 pm if not a school day, until the commencement of school on the Thursday, or 10 am if not a school day;

    (ii)in week 2, from after school Friday, or 3 pm if not a school day, to 6 pm on Sunday.

    School holiday time is sought after six months from the date of orders.  Various other orders are sought in the nature of what might be described as a “testing regime” with respect to the use of alcohol.

14. The mother seeks orders as follows:

    (1)That the child … spend time with the father:

    (a)each Sunday from 9 am to 5 pm; and

    (b)from 12 noon to 8 pm on 24 December 2009,

    and all such times be unsupervised, provided that on any occasion (1) the father not consume any alcohol or non-prescription drugs for 24 hours prior to, or during the periods of time spent with [S] …

    The mother’s proposed orders then go on to provide detailed orders in respect of what might also be called a “testing regime” in respect of the father’s use of alcohol.

15. An additional matter dealt with in the application by the mother, stands separate from the parenting orders sought, and can be dealt with simply. 

16. The order sought by her that “…pursuant to the slip rule within seven days of the date of orders, the father do all things and execute all documents to transfer to the mother his right, title and interest in the Peugeot, registration number […].”

17. As is clear from the application, it is made pursuant to the slip rule.  Alterations pursuant to the slip rule can be made when it is plain on the face of the record, that an error has been made in the orders as delivered. 

18. After questioning from the bench, Mr Cumming made no further submissions in respect of this particular order.  Mr Gould, on behalf of the mother, submits that, when regard is had to those parts of the reasons from Moore J, who made the original orders referred to, it is plain that an error has been made, if for no other reason than that the mathematics of what her Honour says in those reasons, does not match the orders. 

19. I agree with that submission.  It seems to me plain that an error has been made, and I propose to correct it, pursuant to the slip rule, by making an order in terms of paragraph (5) of the minutes of order proposed by the mother.

20. The parenting dispute between these parties is to be decided in the context of a legal framework mandated by the Family Law Act.  Against the background earlier described, the decision that needs to be made here is a decision on an interim basis about the best interests of this still young boy;  specifically, the decision as to what overnight, unsupervised time, if any, S should spend with his father in the period leading up to trial. 

21. Plainly enough, the issues with respect to the co-parenting of S, including specifically, decisions about the time that he shall spend with each of his parents, must be determined at a trial, if the parties are otherwise unable to agree upon those matters themselves. The restrictions inherent in the making of decisions on an interim basis, particularly with respect to parenting, have been the subject of earlier decisions by the Full Court, including most notably, in my view, C & C. In the post-reform Act landscape, those same principles have been referred to by the Full Court in the decision of Goode & Goode. 

22. Those earlier cases, and the Full Court’s decision in Goode, make it plain, as each of the parties here recognise, that in circumstances where a decision is being made before the parents have had the opportunity to give evidence in the witness box and be cross-examined, and thus for their evidence, and all of the evidence, to be properly analysed, recourse should be had to less contentious matters and to matters which cannot seriously be the subject of significant dispute.

23. It might also be said that recourse can be had, cautiously, to evidence independent of the parties, particularly evidence from independent experts. 

24. In that latter respect, I have already referred to the report, now some three years old, received from Dr A.  More recently, a report has been received from Dr L, dated 17 October 2009, who is a single expert agreed upon between the parties and appointed by the court.  I shall have recourse to Dr L’s views and opinions shortly, particularly in light of the fact that submissions on behalf of the father place significant reliance upon it.

25. I should, of course, say that I am cognisant of the necessity for interim parenting proceedings are no less to be determined by reference to the statutory Objects, Principles and Considerations than final proceedings, as was made clear by the Full Court in Goode.  Of course, such a determination occurs within the restrictions and parameters earlier described. 

26. In this case, as in so many cases, central to such a decision is a collision, or potential collision, between the two primary considerations, being the benefit to this child of having a meaningful relationship with each of his parents on the one hand, and the need to protect him from potential physical or psychological harm, or from being subjected to, or exposed to, abuse, neglect or family violence on the other. 

27. I hasten to say that, in this case, the assertions as to risk of harm, whether physical or psychological, emanate from the mother’s concerns founded in the background, to which I have earlier made reference, relating to the father’s past abuse of alcohol and whether, in fact, that use, and, indeed attitude to, alcohol, has changed from that earlier described.

28. This case, then, is, in my view, essentially about risk and perceptions of risk.  In saying that, I do not, of course, ignore the fact that, in this case, as in any other interim parenting case, ultimately the decision is about what is in the best interests of the particular child in that particular child’s particular circumstances.  Nevertheless, an overview of the material does not reveal factors and circumstances such that would preclude S from having a meaningful relationship with his father outside of the central issue of risk as earlier described by me. 

29. Put another way, the evidence does not reveal, at least for the purposes of these proceedings, factors or considerations attributed to the father by the mother in relation to his parenting responsibility and capacity when he is sober.  The risk is said to arise from what is said to be the father’s past abuse of alcohol and how the serious nature of that abuse might point to present and future concerns about present and future abuse of alcohol.

30. On the evidence before me, the mother, plainly, has had good reason to be concerned about the father’s unsupervised care of the children based on the matters to which I have previously referred to which are, neatly enough for the purposes of the current proceedings, encapsulated in the paragraph from Dr A’s report earlier quoted.  It seems to me that those matters provide a sensible foundation for the mother having maintained, at least to this point in time, a position that the time between a then very young child and his father should have been supervised.

31. Having said that, it is also in my view, necessary to bear in mind that this court, in common with other courts, must necessarily assess risk in all its forms as part of its daily work.  It seems, to me at least, almost obscene to speak of the “acceptability” of a risk with respect to a child;  yet, doing so recognises a number of elements relevant to risk and its assessment. 

32. Many of those matters had been referred to in an article in the Australian Journal of Family Law written by the former Justice Fogarty. Within that article his Honour says, for example, “risks are relative and usually involve trade-offs.”  His Honour then goes on to give a number of examples and, using the example of a mother watching a child cross the road, says: 

    Crossing the road with oncoming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing the plane, very much a balancing exercise of facts, experience and intuition, but, essentially, which risk carries the greater detriment (usually the car).  Then there is the common experience of a mother watching her child cross a road to go to school.  The risk is seen as greater (although it may not be) because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult.  At some point it usually becomes necessary for a person to make a judgment of the risk and whether it can/should be taken.  Where the risk relates to a third person to whom one owes a responsibility, it is likely in the nature of things that the estimate will be conservative.  

    It seems to me that, in cases involving potential risk to children, this court should, at least on an interim basis, be conservative in its approach to risk. 

33. As I earlier referred to, the father in these proceedings places significant reliance upon the report of Dr L, and I, too, propose to place some significant reliance upon that report, noting that Dr L has, of course, not been cross-examined.

34. In doing so, I note the qualifications and experience of Dr L, who, it seems, is a consultant psychologist. I particularly note his qualifications and experience specific to alcohol and drug dependency. 

35. I consider that a measured and appropriately cautious approach has been adopted by Dr L in his report.  For example, at paragraph 22 of his report, Dr L says:

    [The father] reports a compulsion to drink and high salience of alcohol during the 2002/2007 period.  For instance, following his nearly fatal bout of pneumonia, he began drinking as soon as he could, despite the fact that clearly such use would have retarded his recovery.  [The father] says that at the end of 2004 he had a drink driving charge and he credits that with making him more aware of the problems with alcohol, but I note that even as late as 2006, as is clear in his interview with Dr [A], that he continued to drink alcohol and likely minimised the amount of alcohol he drank.

36. It seems to me, then, that Dr L, in the opinions he ultimately provides, is aware of the seriousness and significance of the background history of the father’s drinking, and, in particular, the apparent minimisation of that by him.  Furthermore, in that same context, Dr L is aware of, and makes significant mention of, the fact that alcohol abuse is a chronic relapsing condition about which any prognosis in any circumstances should be appropriately guarded.

1. At paragraph 32 of that report, however, Dr L says:

   Overall, the assessment of risk of relapse indicates a moderately good prognosis. I suspect the main risk to [the father] will be mood disregulation, leading to binge rather than chronic alcohol abuse.  However, there is no tool I am aware of that can provide an estimate of risk of relapse once a one-year period of sobriety has been achieved.  And his prognosis is such that I assume he is less rather than more likely to relapse than the average person who has gone through treatment for alcohol abuse (that is given that between 50 per cent to 75 per cent relapse within six months, he falls within the 50 per cent to 25 per cent of the group that had not).

   Dr L goes on to say:

   41. Despite what appears to be some reluctance to admit to the full extent of his prior difficulties, the last 12 months appears to be associated with good control over alcohol.  Whilst he doesn’t admit to any lapses in the last 12 months, certainly, if there are any lapses, they are not having any impact to any significant level on his behaviour (as far as I can tell from the various markers that I have been able to obtain biologically).

   The last reference in the quoted passage is a reference to various tests and, in particular, the carbohydrate transfer deficiency test (CDT) that Dr L refers to, otherwise, in the body of his report.

2. Ultimately, Dr L makes a number of recommendations as follows:

   As noted, there is a reasonable prognosis for [the father].  It seems if the primary concern regarding the need for supervision is alcohol use, then, such requirements should be relaxed.  Similarly, a move to overnight contact might be contemplated if the only concern is that of substance use.  I suggest that no significant increase in contact hours should occur without a pattern of urine testing, and this could be coordinated through his GP.  The results will need to go to someone, for review, acceptable to both parties. 

   As there is considerable anxiety about whether illicit substance use occurs, and it is not possible from this assessment to establish whether it has or not, the easiest way to check that would be to require for the first few overnight contacts and, then, on a random basis after that.  [The father] should undertake a urine test on the same day as [S] is returned.  The urine should be screen for illicit drugs as well as alcohol.  Alcohol delays in the urine over 36 hours and stimulant drugs over about a 48-hour period, so heavy drinking and substance use should be detectable.

   I suggest that such a requirement should exist for the first 12 months of any increase in contact, and we supported by a request for additional (random) CDT tests – say four over the course of the 12 months.  Such a pattern should be sufficient to provide both an assessment of general compliance, with maintaining non-problematic alcohol use and ensure specific compliance with non-problematic substance use or alcohol during the time that [S] is with him.  It also takes [the father] into a period of time when substantially greater confidence can be exercised about the likelihood of a sustained recovery from alcohol dependency.

3. The proposals of the father, for what I have earlier loosely called, a “testing regime,” effectively embody the opinions expressed by Dr L to which I have just made reference. 

4. There is some similarity, in that respect, in the mother’s proposals, but she includes a proposal that, “the father undertake any breathalyser test, as requested by the mother, at her discretion, at the commencement or conclusion of any period of time that the father spends with [S].”  There is also some dispute about the regularity or frequency of the testing otherwise essentially agreed between the parties.

5. As will be seen in the orders about to be made by me, I, myself, am not convinced that there is any particular utility in prescribing the three tests at specified times that Dr L refers to.  In my view, the utility of those tests derives particularly from the fact that they are random. 

6. I consider it appropriate, in light of the history disclosed in the evidence before me, that a testing regime and, indeed, a testing regime that might be seen as somewhat draconian, be undertaken by the father on an interim basis.  I am persuaded of that particularly by reference to the importance that Dr L appears to place upon the period of time that a person can remain sober, as earlier referred to.

7. Whilst I propose to put in place a testing regime as a means of measuring or meeting what I will, in a moment, reveal as some risk associated with unsupervised time between the father and S, I am not persuaded that the father should undertake the breathalyser test as requested by the mother.  Not only is such a process,  as I suggested to Mr Gould in argument, “Orwellian,” what particularly concerns me is that it has the significant potential to create even greater conflict between these two highly conflicted parents. 

8. Mr Gould says that his client’s intention is by no means to impose the testing upon a regular basis, but, rather, only in circumstances where she has reason to believe, or cause to suspect, that the father has, contrary to his assertions, been abusing alcohol. It is, in my view, extremely difficult to provide for the use of a breathalyser in such contingencies in any orders. The potential for the orders to make, as it were, rods for the backs of each of the parties, is, in my view, high. 

9. It needs to be observed that, in a case in which the central issue is risk, and the degree to which risk might be ameliorated or met by orders on an interim basis, the mother herself proposes that the time between S and his father should be unsupervised.

10. During the course of argument I sought from Mr Gould his arguments as to why any risks associated with the time proposed by the father were greater than those which might be accommodated within orders sought by the mother.

11. Mr Gould submitted that, the longer the period of time between S and his father, the greater the risk.  Similarly, the longer the period of time, the greater the stressors involved, given that the parenting of young children involves, for all parents, significant stressors.  Further, Mr Gould submitted that if the father was inclined to, as it were, “fall off the wagon”, that might be more likely to occur at night.  And, it was submitted, the longer the period of time, the greater the period of time over which any stressors might apply.

12. Whilst I consider that those points are well made, I do not consider them persuasive in assessing that the risk of overnight time between the father and S is any greater than that which would attend the time between S and the father proposed by the mother herself. 

13. During the course of argument, I also directed questions to each of Mr Gould and Mr Cumming about the role, if any, that the future proceedings in this court might play in reducing risk in respect of interim orders in circumstances where the mother is clearly highly vigilant as to any suggestion that the father has been drinking at all, let alone abusing alcohol.

14. In saying that, I do not, in the context of these proceedings, use the word vigilance in any pejorative sense, rather, it is abundantly clear to the court, and one would think abundantly clear to the father, that any, as it were, indiscretions by him in respect of the use of alcohol, will undoubtedly be seized upon by the mother. 

15. It seems to me that this is, of itself, a measure of protection against such risk as must exist from the father’s past abuse of alcohol; the father well knows that this matter is likely to be the central issue canvassed at a future trial, which is likely take place in about six to nine months’ time.

16. That measure of protection should also be seen, in my view, against the assessment made by the mother, of the time that she considers to be in the child’s best interests.  That is, in my view, an important consideration. 

17. There is little doubt on the evidence before me that the mother has been S’s primary carer during the whole of his life.  Despite the profound and significant concerns expressed by her about the potential for harm posed to him by the father as a result of the father’s alcohol abuse, her proposals suggest unsupervised time should occur between the two.

18. I think it extraordinarily unlikely that this loving and caring mother would propose that time if she considered that, in lieu, supervised time was in S’s best interests.  While the mother undoubtedly retains significant concerns about the issues just described, it is also worthy of note that S is now six and commencing upon his schooling. 

19. It seems to be implicit in the mother’s proposals that she recognises, quite appropriately in my view, the developing relationship between a six-year-old boy and his father.  Although I don’t for a moment suggest that S is of an age where he is able to “self-protect,” nevertheless, he is, as it seems to me, of an age where that is itself relevant to a determination of the risk posed by any potential alcohol abuse, particularly given that his day-to-day needs are not those of a child of the age that S was when his parents separated and earlier orders were made.

20. I should canvass, finally, the evidence in support of such risk as the mother asserts in support of the orders sought by her. 

21. The mother deposes in her affidavit to a number of matters relating to a period to about the end of 2007 and includes reference to a number of medical practitioners and specialists that have been consulted by the father.  Much of that material is, in my view, canvassed in the report of Dr A, which was relied upon by the mother this morning and which I have now read.

22. In the period since, I accept the submissions of Mr Gould that the mother has been well-placed to make assessments of the father and his use of alcohol. Mr Gould argues, perhaps inferentially, that, in circumstances where the mother deposes to being able to smell alcohol on the father’s breath on the occasions specified in her affidavit, that one should be less sanguine about accepting that the pendency of trial ameliorates risk.

23. Accepting those matters it, nevertheless, seems to me that the evidence of the use or abuse of alcohol by the father during the period just referred to, and specifically in the period since the consent orders were made in December 2008, is somewhat thin. 

24. Balancing all of the matters to which I have made reference demands the sort of caution and conservatism from the court that the former Fogarty J refers to in the article to which I have earlier made reference and which is also required by the dictates of the legislation which has as it’s centrepiece the best interests of children.

25. Nevertheless, those centrally important matters need to be balanced against what I consider to be the developing relationship between S and his father and the capacity for it to be a meaningful relationship for S as his bet interests require.

26. It seems to me that the time has come, as the mother accepts, to introduce unsupervised time between S and his father. It also seems to me appropriate to introduce overnight unsupervised time between the two of them. 

27. Caution and conservatism in and about what is asserted to be the risk identified earlier in these reasons I propose to meet in two ways.  The first is by ordering a testing regime somewhat similar to those contained in the proposals of each of the parties and, secondly, to make the introduction to overnight time more gradual than that which the father would contend.

28. I order accordingly.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  22 January 2010