Langmuir & Fields (No 2)

[2021] FCCA 2022

FEDERAL CIRCUIT COURT OF AUSTRALIA

Langmuir & Fields (No 2) [2021] FCCA 2022

File number:

MLC 5053 of 2014

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

25 June 2021

Catchwords:

FAMILY LAW – alleged alcohol problem – interlock device to be fitted – whether 0.00 blood alcohol level or 0.05 blood alcohol level to be permitted during time with children.

Legislation:

Family Law Act 1975 (Cth)

Evidence Act 1995 (Cth) s 144

Number of paragraphs:

7

Date of hearing:

25 June 2021

Place:

Melbourne

Counsel for the Applicant:

Mr G Atkinson

Solicitor for the Applicant:

Berger Kordos Lawyers

Counsel for the Respondent:

Mr C Arnold

Solicitor for the Respondent:

Cornelius Family Law

Solicitor for the Independent Children's Lawyer:

Barbayannis Lawyers Ltd

ORDERS

MLC 5053 of 2014

BETWEEN:

MS LANGMUIR

Applicant

AND:

MR FIELDS

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	25 JUNE 2021

THE COURT ORDERS THAT:

1.Paragraph 13 of the Final Orders made on 11 November 2014 be varied by deleting the words stated in that paragraph and inserting the following:

"Save for changeovers that occur at the children's school (when the children are at school that day), changeover take place as follows:

(a)At the conclusion of the Father's time with the children during the school term on Tuesday evenings at McDonald's Suburb H; and

(b)All other times at McDonald's Suburb J, unless otherwise agreed between the Mother and the Father".

2.The Final Orders made on 11 November 2014 otherwise remain in full force and effect.

3.In addition to the Father's time as provided in paragraph 5(f) of the Final Orders made on 11 November 2014, the Father spend time and communicate with the children as follows:

(a)That during the school term, each Tuesday from the conclusion of school until 7.00pm, and the Father be permitted to enrol the children in an afterschool activity, at his expense during this time;

(b)That the Father be permitted to communicate with the children via telephone or Facetime on two occasions each week and that such contact with the children take place early evening, with the Mother to facilitate the call; and

(c)That during the June/July school term holidays, the Father spend time with the children from 3.30pm Friday 2 July 2021 until 5pm Friday 9 July 2021 (with the weekend fortnightly cycle re-commencing on 23 July 2021 and each alternate weekend thereafter during school terms); and

(d)That during the September school term holidays, the Father spend time with the children from the conclusion of school on Friday 17 September 2021 until 5pm Friday 24 September 2021.

4.If the Father's time pursuant to these Orders or the Final Orders made on 11 November 2014 coincides with a non-school day on a Friday or Monday, time is accordingly extended to include that day.

5.The Father undergo hair follicle testing for the detection of alcohol on or about by 25 September 2021 with the results to be provided forthwith to the Mother's Lawyers and the Independent Children's Lawyer.

6.To give effect to paragraph 5, the testing is to be conducted by an approved laboratory, accredited to conduct hair follicle testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant accreditation body for that laboratory and the Father will maintain his hair length at no less than 4cm and the hair is not to be cut, bleached, or dyed save for routine grooming, between the date of the Orders and the collection of the hair.

7.The Father be restrained from consuming alcohol in the 24 hours before and during his time with the children.

8.On or before Thursday 1 July 2021, the Father make an appointment to install a SSI 20/30 SmartStart Interlock device with a camera in his Motor Vehicle 1 at SmartStart interlock Town K.

9.In the event that the interlock device records a higher than zero (0), the Father's time with the children shall be suspended for that designated time period.

10.The Father transport the children in his Motor Vehicle 1, with the said interlock device, at all times whilst they are in his care. 

11.Within 21 days of these Orders, the Father consult with Dr L as to what alcohol treatment program the Father should undertake.

12.The Father maintain regular engagement with his psychiatrist, Dr L, or any other treating psychiatrist as recommended by Dr L and adheres to the recommendations made by Dr L and/or any other recommended treating psychiatrist, with such engagement to be with such frequency as recommended by his treating psychiatrist.

13.The Father receive ongoing psychological assistance with Ms M or any other treating psychologist as recommended by Dr L to address trauma, PTSD and ongoing drug and alcohol counselling and to otherwise follow all reasonable directions from his treating psychologist.

14.The Father engage with parenting and family services, (such as N Families Victoria in Town K), for the purposes of improving his own functioning and to maximise the relationship between him and the children. Such engagement should include addressing the implementing of routines, including but not limited to set bedtimes, dental hygiene, and eating dinner together at the kitchen/dining room table.

15.For the purposes of paragraph 14, the Father provide to the service provider the Mother's contact details with such provider to be at liberty to contact and liaise with the Mother with regards rules and routine that can be maintained over both the Mother and Father's households.

16.The Mother engage in individual treatment with a psychologist who has experience in autism spectrum disorder.

17.Any medical or allied health professional working with either the Father, the Mother, or the children (including Dr O), be provided with a copy of the Family Report prepared by Dr P dated 10 June 2021, the Psychological Report prepared by Ms Q dated 4 October 2018 in relation to X's Autism diagnosis and a copy of the written Reasons in this proceeding.

18.Child Protection be provided with a copy of the Family Report prepared by Dr P dated 10 June 2021 and the Psychological Report prepared by Ms Q dated 4 October 2018 in relation to X's Autism diagnosis for information and feedback purposes only. 

19.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne for Interim Defended Hearing at 9.45am on 8 October 2021.

20.Each party have liberty to apply at short notice via email to the Associate of His Honour Judge O'Shannessy.

21.Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

AND THE COURT NOTES THAT:

A.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.

B.The Reasons delivered in this matter for the proceedings today should be read together with the first Reasons delivered in this matter for the proceedings on 16 April 2021.

C.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.

D.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.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 under the pseudonym Langmuir & Fields (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled ex tempore reasons handed down on 25 June 2021 for this matter and should be read alongside the reasons of 16 April 2021. The matter previously came to me during a duty week in April when the mother Ms Langmuir (‘the Mother’) sought an urgent recovery order of the children from the care of the father Mr Fields (‘the Father’) where I made orders and adjourned the matter to 25 June 2021.

2. I must determine a dispute regarding the Interim Parenting Orders and particularly, the allegations of the Father’s alcohol consumption.  I now have the benefit of a Family Report in this matter.  I will order that the Father undergo alcohol testing, attend drug and alcohol counselling and fit his car with an interlock device.

3. My reasons for making those orders is that I take into account the Father’s refreshing candour as to his personal difficulties, and the circumstance of a lack of criminal history as to 0.05.  However, the information that is put before me very properly by the Father demonstrates an alcohol problem.  The issue with alcohol is complicated because of the mental health problems largely arising from the Father’s previous occupation and the trauma associated with that.  But that is a fact he has to deal with and that is complicated by alcohol abuse and hence the children’s welfare in his care is complicated by those two factors. 

4. In addition to that, it is notorious that alcohol has a disinhibiting effect and I do not require proof of that fact (section 144 Evidence Act 1995 (Cth)). Small amounts of alcohol are disinhibiting, and, in addition to that, the dynamics between X and Y are complex and difficult for any parent. X and his circumstances are a significant complication that will make parenting difficult for both parents, including the Father and, particularly in the circumstances of the disinhibiting effect of alcohol and an alcohol problem.

5. I also have regard to the circumstance that for better or worse, having dealt professionally with alcohol abuse for over 40 years and my experience in the community, my view is that if you have an alcohol problem, then as a general rule, to attempt to manage a serious alcohol problem by a promise to yourself and to the community that you will not drink alcohol over 0.05, is an extraordinarily difficult promise to keep.  Not just to yourself but also to the community.  The combination of the compelling and enjoyable nature of alcohol consumption, the disinhibiting effect and the fact of a serious problem with alcohol means that it is, I find, almost impossible to be comforted, that alcohol would only be consumed to a point below 0.05.  And that is notwithstanding the motivation of the individual.  The self-regulation approach in those circumstances underestimates the ubiquitous nature of alcohol in our society and its compelling sometimes and enjoyable nature to consume. 

6. So, that is why I will order the interlock device, and also I will add the requested restraint on any other person collecting the children.  There is no evidence that the Father would do so.  However, the Mother is not going to be at the school changeovers and I want her to have the comfort that everything will be going smoothly.  And also so that Y will be comforted that everything is going to be going smoothly in her time with her Father because of her anxieties that are referred to in the Family Report.

7. Lastly I deal with the disputed order number 10 being additional alcohol therapy.  I am not going to compel the Father to enrol in an in-patient alcohol detoxification program because I am of the view that to compel a person to undertake treatment makes it less likely to be effective.  I am comforted by the Father’s affidavit describing the efforts that he has taken.  However, I am going to compel him to consult with Dr L as to what alcohol treatment program he should undertake.  So, number 10 will be a consult Dr L.  If Dr L recommends something and the Father does not follow it, well, that is going to be a matter of significant evidence before me on the next occasion or Final Hearing.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       27 August 2021