Macklin and Camburn (No.2)

[2020] FCCA 851

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACKLIN & CAMBURN (No.2) [2020] FCCA 851

Catchwords:
FAMILY LAW – Parenting – interim application concerning very young children – best interests of the children – whether parenting capacity of the either party is seriously diminished and the children are not safe in their care – where children live with mother and spend time with father – where mother alleges father has history of serious alcohol abuse and has acted violently towards the children – where father alleges children are at risk at mother’s property because of an unfenced swimming pool – where there is a benefit to each of the children of having a meaningful relationship with both parents.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 65DAA, 68L(2)

Federal Circuit Court Rules 2001 (Cth)

Applicant: MS MACKLIN

Respondent: MR CAMBURN

File Number: DNC 482 of 2019

Judgment of: Judge Young

Hearing date: 24 March 2020

Date of Last Submission: 24 March 2020

Delivered at: Darwin

Delivered on: 24 March 2020

REPRESENTATION

Counsel for the Applicant: Mr J. Barry

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms A. McLaren

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER THAT

1. This matter be adjourned to 2 April 2020 at 10:00am (NT time) for telephone mention before Judge Young at the Federal Circuit Court of Australia.

2. Any further affidavit material regarding the safety of the children Y and X both born in 2017 (“the children”) at the mother’s premises is to be filed and served no later than 12:00 pm on 1 April 2020.

3. The father is not to consume alcohol while the children are in his care.

4. The children are to spend time with the father each week:

   (a)from 9:00am Saturday to 9:00am Sunday; and

   (b)from 9:00am Wednesday to 9:00am Thursday.

AND IT IS ORDERED IN CHAMBERS

1. That pursuant to s 68L(2) of the Family Law Act 1975 (Cth), the interests of the children be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

2. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

3. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 (Cth) subpoenaed by the parties and released by the Court up to that date.

4. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

IT IS NOTED that publication of this judgment under the pseudonym Macklin & Camburn (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 482 of 2019

MS MACKLIN

Applicant

And

MR CAMBURN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim application concerning two twins, X and Y, who are two years and 11 months old.  They currently live with their mother and spend time with their father pursuant to interim orders of this court made on 18 October 2019, soon after the parties separated.  Under those orders, the children spend time with their father from 9 am Saturday to 9 am Sunday and during the daytime on each Wednesday from 9 am to 4 pm.

3. The allegations that arose at the outset of the proceedings and that continue to be made by the mother against the father are, essentially, that he has a history of serious abuse of alcohol.  She says that he had a long history during the marriage of abusing alcohol that lead to him being bad tempered, irresponsible and generally difficult.  She makes an allegation that on one occasion he became angry with Y and threw her on her bed and she cut her head. 

4. I dealt with those particular allegations to some degree at the time I made orders in October 2019 and I heard oral evidence from the father.  Unfortunately, the parties have not obtained a transcript of that hearing and I did not order the transcript at the time which is probably an oversight on my part. 

5. I was satisfied at least in relation to the allegation the father was unduly rough to the child that that was at worst an isolated incident and it was unintentional. 

6. In relation to the question of the father’s use or abuse of alcohol, that question has vexed this case and there has been considerable evidence about the extent of the father’s alcohol use or abuse.  An order was made that he produce his credit card history so that his purchases of alcohol over the past few months could be tracked.  That saw the production of some credit card records from the beginning of last year including a period when the parties lived together.  It is clear enough that there has been a pattern of expenditure on alcohol, probably some minimum of hundreds of dollars a month. 

7. The father says that in part, that was due to alcohol consumption by the mother, and in part, alcohol purchased for other people or for his business.  He says that since the separation in September 2019 he has re-partnered and his evidence specifically is that he has re-partnered with a woman who does not drink.  He implies, at least, that his alcohol consumption has “dramatically declined.” 

8. Unfortunately there is no recent evidence from this year about the father’s expenditure on alcohol.  I pressed Mr Barry as counsel for the mother about whether there was such recent evidence.  He told me, as I understood his submission, that there was not but I should draw inferences from the historical record.  As far as it goes that submission is a reasonable one. 

9. Past behaviour is often an indication of current behaviour.  I am satisfied that the father, historically, has consumed high levels of alcohol.  He told as much to the family consultant when he said that he previously drank alcohol on a daily basis.  He alleged that the mother did the same.  He also told the family consultant that, for the past two weeks before the interview, he had not consumed alcohol at all.

10. I am satisfied that the father’s alcohol consumption is a serious issue to be dealt with in this case.  I have found it difficult to make any particular finding beyond what the father appears to openly agree to, which is historically he has been a regular, at least, consumer of alcohol.

11. The question, of course, is what is the situation at the moment?  There are the father’s sworn assertions that he has cut back his alcohol consumption dramatically.  Whether that is true or not, I do not know. 

12. The other concerning aspect about the father’s evidence was that he has not been precise or specific about the current level of alcohol consumption.  He does give some relatively vague evidence that he now only drinks at the golf or with mates at a barbeque. 

13. However really, in a case like this where his alcohol consumption is front and centre, in my view, it is incumbent upon him to be very precise about his alcohol consumption and to produce the evidence to support what he says.  He has failed to do that and in my view, that means I must proceed cautiously.  Proceed cautiously because I am satisfied that if the father continues to consume alcohol at the level that is alleged and may well have occurred in the past, that is likely to impair his capacity to properly care for these two very young children who are not yet three.

14. The other factor, at the moment, is that there is evidently little trust or communication between these parents.  The father’s material alleges that the mother behaves in a threatening and overbearing way towards the children, based on evidence that Y has been seen pretending to stand over someone in a corner and roar and yell at her, with the implicit suggestion that she is modelling her mother’s behaviour. 

15. There is also an allegation that Y was neglected today and burned her feet at the maternal grandmother’s property, apparently after some burning or something, the circumstances are not explained.  Similarly, that X has an unexplained burn on his elbow.

16. The father has also alleged against the mother that there is an unfenced swimming pool at her home and that the children are unsafe there.  I propose to, with some reluctance, adjourn this matter, so I can get to the bottom of that. 

17. Mr Barry told me that he provided a certificate of compliance with the Building Code to the father’s legal representative some considerable time ago and asked whether or not that resolved the issues. He said that he received no reply. The father’s legal representative said that she had never received such an email and, as I understood it, maintained her submission that the child was at risk at the mother’s property. That’s an extremely serious allegation to make. I think it is incumbent upon this court to try and get the bottom of whether or not the mother’s residence constitutes a danger to these children. In other words, whether it is unsuitable for occupation where there are two children under three.

18. This is a case where there is no trust between the parties.  Each party makes very serious allegations against the other.  The nature of the allegations being such that if true it would suggest the parenting capacity of the other party is seriously diminished and the children are not safe in the other parent’s care. 

19. Somewhat inconsistently or incongruously with that submission, the father’s position in this case is that there ought to be a fifty-fifty care arrangement for the children on a fortnightly pattern of two days, three days, two days, two days, three days and two days.  That seems to me to be quite inconsistent, in many ways, with the submissions he makes. 

20. The mother’s position, as far as I can see, bearing in mind that she has consistently resisted the children spending any overnight time with the father, including a contested hearing when an order for overnight time was made on 18 October 2019 and a contested hearing today, is that she opposes any increase in the time the children with the father.  She is, of course, entitled to take that position.  Whether or not it’s in the best interests of the children is something that I’m determining on an interim basis today.

21. I conclude, essentially, in relation to the mother’s most serious allegation of the father’s alcohol abuse that this requires further investigation. I am satisfied that, having regard to the variety of matters in section 65DAA including the lack of communication between the parties, there is no proper basis for an order for equal shared care at this stage. My general suspicion is that the parties are currently incapable of implementing such an equal time arrangement and are generally incapable of communicating in a constructive way, which militates against an equal shared care arrangement.

22. The most useful material I have received is a memorandum from the family consultant who considered each of these issues, particularly the allegation of the father’s alcohol abuse.  She considered it to be a risk factor, as do I, and I propose on any order I make to make an order that the father is not to consume alcohol while the children are in his care.

23. Having regard to the recommendations of the family consultant to, as she describes it, continue building a strong relationship with the children and the father, I am satisfied, having regard to the evidence in relation to section 60CC(1)(a) and (b) and each of the matters in section 60CC(3), that there is a strong relationship between the children and each of their parents and a benefit to each of the children of having a meaningful relationship in the context of this case. I am satisfied that there ought to be an increase in the time the children spend with the father in line with the family consultant’s recommendation.

24. I am satisfied I should increase the time the children spend with the father by one night a week.  There will be an order that, in addition, they spend from 9 am Wednesday to 9 am Thursday in each week with the father.  I propose to adjourn the question of whether or not the mother’s residence is safe for the children. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 15 April 2020