Langmuir & Fields
[2021] FedCFamC2F 396
•8 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Langmuir & Fields [2021] FedCFamC2F 396
File number: MLC 5053 of 2014 Judgment of: JUDGE O'SHANNESSY Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – interim parenting orders made – alcohol problem – assistance to Court of breathalyser device – substantial cost of device – reduction of length of block periods of unsupervised time. Legislation: Family Law Act 1975 (Cth) s 69ZL Division: Division 2 Family Law Number of paragraphs: 6 Date of hearing: 8 October 2021 Place: Melbourne Counsel for the Applicant: Mr S Lethlean Solicitor for the Applicant: Kordos Lawyers Solicitor for the Respondent: Fiona McGregor Family Lawyer Pty Ltd Solicitor for the Independent Children's Lawyer: Barbayannis Lawyers Pty Ltd ORDERS
MLC 5053 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LANGMUIR
Applicant
AND: MR FIELDS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Interim Orders made 25 June 2021 remain in full force and effect save where otherwise indicated in these Orders.
2.During the 2021-2022 long summer school holidays, the Father's time with the children pursuant to paragraph 3 of the Interim Orders made 25 June 2021 be suspended, with the children to spend time with the Father as follows:
(a)From 10:00am 21 December 2021 to 3:00pm 25 December 2021;
(b)From 10:00am 31 December 2021 to 3:00pm 4 January 2022;
(c)From 10:00am 12 January 2022 to 3:00pm 16 January 2022; and
(d)From 10:00am 21 January 2022 to 3:00pm 25 January 2022.
3.Upon the conclusion of the long summer school holiday period, the Respondent Father's time with the children recommence pursuant to the Interim Orders made 25 June 2021, with the first instance of time pursuant to paragraph 3(a) of those Orders to recommence on 1 February 2022, and the Father's first weekend pursuant to the Final Orders made 11 November 2014 to recommence on 4 February 2022 and each alternate weekend thereafter.
4.Without admission as to necessity, both the Applicant Mother and Respondent Father (together with their servants and agents) be restrained by injunction from using physical force to discipline either of the children.
5.By no later than 4 February 2022, the Father undergo further hair follicle testing and provide the results of such testing to the Mother and Independent Children's Lawyer as soon as practicable.
6.By no later than 28 February 2022, the parties together with their legal representatives attend an FDRS mediation.
7.The matter be adjourned to 8 March 2022 at 9:30am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia.
AND THE COURT NOTES THAT:
A.The Mother intends to keep the Father informed of any social activities that the children are invited to, so that the Father may ensure the children attend such social events should they occur during his time with the children pursuant to these or any other Orders.
B.In compliance with Order 16 of the Orders dated 25 June 2021 the Mother has commenced attendance upon Ms R, of AccessEAP.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Langmuir & Fields has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled reasons of a short form ex tempore judgment (section 69ZL of the Family Law Act 1975 (Cth)). These reasons should be read in conjunction with my previous two judgments in this matter Langmuir & Fields [2021] FCCA 1223 and Langmuir & Fields (No 2) [2021] FCCA 2022.
In this matter, the first risk that I have to balance in the dispute between the parties is the risk of the children being exposed to conflict between the parties. In the view of Mr S, a psychologist who has seen the children, the children are developing hypervigilance. I am not prepared to find on this interim hearing that that relates to the parenting of one parent as opposed to the other, rather the dynamic and history of what has happened in this matter. The dramatic nature of how this case unfolded cannot be lost sight of. The very dramatic matters that the child, X, had told the GP about, that set off and exacerbated the Father's concern about his children's care within the Mother's household must be re called. It has turned out that those allegations are most likely to be untrue or, at the very least, X has subsequently recanted what he said.
There is a high degree of conflict between the parents. It is clear that the Mother is exasperated at having to undertake recovery orders and being put to the trouble and expense of justifying her parenting. She says that it has been proven to be otherwise perfectly ordinary parenting, and so her exasperation can be understood. I have found previously that the Father had a low opinion of the Mother's parenting, and there is a risk of the children being exposed to that.
There is another risk in this matter and that is the risk of unintentional abuse by the Father because of his alcohol consumption. He has previously demonstrated to me quite considerable insight into that circumstance in that he revealed his treatment with Dr L and his frank accounts of his condition with Dr L. The fact that that was revealed by the Father and not prised out of the medical information system by subpoena, is to his credit and demonstrates insight. The speed and the cooperation with which he fitted the breathalyser device to his car also demonstrates insight into what is required. The significance of the breathalyser is that without it I may not have been able to contemplate time with the Father other than in limited circumstances.
I might say that I am not the slightest bit surprised that the Father has been able to comply satisfactorily with that breathalyser device. The information that provides me is invaluable. I know that the burden is $230 per calendar month, but the reality is that without it the additional amount of money that the Father will have to spend on lawyers proving his sobriety when driving or his lack of driving under the influence will be very substantial. It will cost him a lot more than $230 per month by the additional fuel for legal the dispute between the parents. It was and continues to be a significant matter for me in my determination of the children's welfare.
It is easy to underestimate the problem of a substance abuse or a reliance upon a substance. History teaches us that it is usually the person with the problem who underestimates it the most. We are fortunate here that the Father recognises that he has a problem. The issue is whether he recognises sufficiently that he has the problem. The continuing dependence upon alcohol combined with the Father's mental health vulnerability, in my view, persuades me on balance that there is an unacceptable risk for the larger block periods. I acknowledge the harshness of this for the Father because he has recently had two block periods of a week at a time. I am persuaded that, on balance, the best interests of the children are best served by the orders as proposed by the ICL, including the variations of the time, that is to make the start and end day longer.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 17 November 2021
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