Mansfield & Mansfield
[2016] FCCA 2233
•6 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANSFIELD & MANSFIELD | [2016] FCCA 2233 |
| Catchwords: FAMILY LAW – Interim proceedings concerning parenting arrangements of children aged ten & eight – application for injunction restraining alcohol consumption during all periods children are in the care of mother – nature of interim hearing – whether grant of injunction is appropriate – assessment of risk – matters to be considered – evidentiary basis – costs. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 64B, 68B,117(1), 117(2), 117(2A) Federal Circuit Court Rules, r.21.02(2), r.21.10, r.21.15 |
| Cases cited: Mann & Anor & Vargas & Anor [2010] FamCACF 50 M & M (1988) FLC 91-979 Keats & Keats [2016] FamCAFC 156 SS v AH [2010] FamCAFC 13 |
| Applicant: | MR MANSFIELD |
| Respondent: | MS MANSFIELD |
| File Number: | ADC 4119 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 19 August 2016 |
| Date of Last Submission: | 19 August 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 6 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J McGinn |
| Solicitors for the Applicant: | Scanlan Carroll Pty Ltd |
| Counsel for the Respondent: | Mr A Jordan |
| Solicitors for the Respondent: | Jacqui Ion Lawyers |
ORDERS
The application in a case filed on 25 July 2016 be dismissed.
The husband pay the wife’s costs of the application fixed in the sum of $1,500.00.
IT IS NOTED that publication of this judgment under the pseudonym Mansfield & Mansfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4119 of 2014
| MR MANSFIELD |
Applicant
And
| MS MANSFIELD |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Ms Mansfield (“the wife”) and Mr Mansfield (“the husband”). They are the parents of X, born (omitted) 2006 and Y, born (omitted) 2007.
These reasons for judgment relate to an interim application brought by the husband on 25 July 2016. In his application Mr Mansfield seeks an injunction to restrain Ms Mansfield from drinking alcohol in any period during which X and Y are in her care or in the period six hours before hand.
The wife responded to this application on 1 August 2016. She refutes the need for any such injunction and seeks the dismissal of the husband’s application. Further, given her view that the application is vexatious and improperly motivated, she seeks an order that Mr Mansfield pay her costs of the application.
Needless to say, the parties have a poor and mistrustful relationship with one another. The issue regarding the wife’s alcohol consumption and its implications for the care of X and Y is but one of many areas of controversy between the parties.
Background
The wife was born in Adelaide on (omitted) 1976. She has qualifications in (omitted). Currently, she is employed as a (occupation omitted) on a part-time basis at (employer omitted) in (omitted).
The husband was born on (omitted) 1964. He has lived in (omitted) for most, if not all, of his life to date. Currently, he is self-employed, running a business which (business omitted). He has no desire to leave the south east of South Australia.
Although it is not the focus of the current proceedings, it is common ground between the parties that the husband’s father is a wealthy person. The wife has issued a series of subpoenas seeking documents relating to a trust controlled by Mr Mansfield Senior. Production of documents has been resisted by Mr Mansfield Senior.
The wife moved to (omitted) in 2002 to pursue work opportunities. She met Mr Mansfield in early 2005 and the two began to live together shortly thereafter. The parties married on (omitted) 2008. They are now divorced. If Ms Mansfield had not become involved with Mr Mansfield, it is her position that she would not have chosen to remain in (omitted).
It is common ground that the parties finally separated on 13 October 2014, when Ms Mansfield left the parties’ former family home located at (omitted), near (omitted). As I understand it, this property is a largish rural holding. Thereafter Ms Mansfield moved into rented accommodation with X and Y in (omitted) itself. Prior to their final separation, the parties had lived apart on a number of occasions and both agree that their marriage had been under pressure for a significant period of time beforehand.
From the wife’s perspective, she categorises the husband as a domineering person who isolated her socially and subjected her to financial control. She further alleges that Mr Mansfield was verbally abusive towards her and from time to time, subjected her mobile phone and email use to electronic surveillance.
In the latter stages of the parties’ difficult separation, Ms Mansfield alleges that the husband, on occasion, was physically violent towards her, which violence was witnessed by the children but particularly X. As a consequence of this exposure to family violence, Ms Mansfield asserts that the children are reticent about spending lengthy periods of time in the care of their father because they have been unsettled by his behaviour.
It is further Ms Mansfield’s case that she has always been the children’s undisputed primary carer. As such, it is her case that she has provided significantly more of the children’s day to day needs and is their major source of emotional sustenance.
On the other hand, it is Mr Mansfield’s case that he has always been an involved and caring father. He denies being the coercive and controlling spouse depicted by Ms Mansfield. Rather, it is his position that it is Ms Mansfield who is the violent and unpredictable person in the parties’ relationship with one another.
In particular, Mr Mansfield asserts that Ms Mansfield has longstanding issues with alcohol, which have caused her to become frequently intoxicated. He alleges that when she is drunk she becomes violent and aggressive. He further asserts that during the parties' marriage, Ms Mansfield embarked upon a number of ill-considered extra-marital affairs.
In his affidavit material, Mr Mansfield deposes that the wife would attempt to keep the level of her drinking secret. As a consequence, she would hide bottles of wine around the home and attempt to conceal empty bottles. It is his case that X in particular was well aware of her mother’s drinking and was greatly distressed by it, particularly when she discovered a bottle in her own school bag.
In one of his recent affidavits, Mr Mansfield has provided his view that Ms Mansfield only married him because of his father’s money. Again, this brief summary serves to demonstrate the extent of the acrimony between the parties. It is not possible for me to resolve these controversies at this stage of proceedings.
The history of the proceedings to date
The wife commenced these proceedings in Mount Gambier on 5 November 2014. She sought orders which would see X and Y living predominantly with her and spending regular weekend time and half of each school holiday with their father. She proposed that she and Mr Mansfield have equal shared parental responsibility for the children. By way of property settlement, she proposed a division of 65/35, in her favour.
Mr Mansfield responded to this application on 24 November 2014. It is his position that the children should live with each of their parents on a week about basis. He proposes a 70/30 percent division of matrimonial property, in his favour, on the basis that he brought in the larger proportion of marital capital. In this context, it should be noted that notwithstanding his concerns about Ms Mansfield’s drinking, which are asserted to be long-standing, Mr Mansfield proposed a shared care regime for X and Y.
At the first mention of the matter, the parties agreed that a family assessment report should be prepared as soon as possible. The report was prepared by Ms A and released to the parties on 22 April 2015. Although over a year old now, the report is an important piece of evidence in the current proceedings. It is Mr Mansfield’s position that the report provided important independent evidence confirming his concerns about Ms Mansfield’s alcohol use and its potential to impact harmfully on X and Y.
Significantly, prior to the release of the report, on 27 May 2015, Ms Mansfield formally amended her application. She now seeks the court’s leave to relocate with X and Y, from (omitted) to Adelaide. Necessarily, this would render a week about shared care arrangement redundant. Inevitably, this application has also increased the tensions between the parties, already heightened, to an even more extreme level.
Relocation was one of the issues which Ms A addressed in the family assessment report. Ms A regarded both X and Y to be vulnerable children who were educationally delayed. As a consequence of this vulnerability, Ms A recommended that any decision regarding relocation be deferred for twelve months. Ms A also regarded it as prudent to ascertain, prior to the issue of relocation being determined, how Ms Mansfield was progressing in respect of her alcohol use, particularly in regards to a therapeutic approach to combatting it.
For reasons not solely related to this recommendation, the final proceedings have indeed been held in abeyance for approximately twelve months. Some of the delay can be sheeted home to matters relating to property issues, particularly the discovery issues relating to Mr Mansfield Senior. However the parties were also able to agree on interim arrangements for the children’s care.
The final hearing of the parties’ competing applications has now been fixed for 14-17 February 2017. If I had known the level of complexity surrounding this matter, I suspect that I would have transferred the proceedings to the Family Court of Australia, which is a superior court of record intended by the Australian Government to conduct more complex family law proceedings. However, neither party advocated such a transfer and this court is now seized of the matter and it would not be appropriate to transfer it given the trial is within sight.
Pending final hearing, the children continue to live predominantly with Ms Mansfield. They spend time with their father during school terms on alternate weekends from after school on Friday until the commencement of school the following Monday. During the intervening week they spend time with their father from after school on Monday to before school on Tuesday. There is a week about arrangement during school holidays. This agreement was reached consensually between the parties and is reflected in an order of the court made on 3 June 2015, following the release of Ms A’s report.
At this stage the central issue for the court is the implication of Ms Mansfield’s alcohol consumption for her care of X and Y. It is Mr Mansfield’s position that the children are at grave risk because of their mother’s drinking. On the other hand, Ms Mansfield asserts that the husband has brought his application for tactical or other ulterior motives unrelated to the children’s best interests but rooted in his need to control her behaviour.
This issue must be resolved at the interim stage pursuant to principles contained in the Family Law Act 1975. At this interim hearing stage, there is no time for an exhaustive hearing of all the evidence currently available. The final hearing will provide the necessary forum for such an exhaustive hearing, which will involve cross-examination of all relevant witnesses, including the parties themselves and Ms A.
It is through cross-examination that the court is able to determine issues of credit – essentially deciding which pieces of evidence are more likely to be reliable, including the accounts the parties have given of the nature of the relationship between them. In addition, at final hearing, the methodology and recommendations of Ms A may be critiqued and tested.
These things cannot happen at the interim stage where the hearing is necessarily truncated. The same principles, however, apply at both the interim and final hearing stage. The difference being that the hearing at the interim stage is shorter and the court cannot make definitive findings about disputed matters as they arise from affidavit material.
Ms A’s report
Ms A reported that in interview, both children were vociferously in favour of remaining in (omitted) and living with their parents on a week to week basis. The children were observed to interact happily and comfortably with both of their parents. However, Ms A’s impression was that they were more relaxed with their mother.
In individual interview, X reported distress at finding bottles of wine, which her mother had reportedly hidden around the former family home. However, of late, it was apparently X’s impression that her mother did not drink as often as she had formerly, apparently restricting herself to a glass of wine, if there was a special occasion.
Ms A administered a psychometric test, entitled the alcohol dependence scale to Ms Mansfield. The responses provided to this test indicated that Ms Mansfield did not have a current alcohol dependence. The validity of this test has, of course, not been subject to any level of scrutiny. It seems likely that its validity depends on the accuracy of the self-reporting involved.
Ms A was concerned at X’s description of her exposure to and involvement in the conflict between her parents, as well as her exposure to Ms Mansfield’s alcohol use, certainly prior to the parties’ separation. She viewed her as a vulnerable child.
Given the conflict between the parties and what she perceived to be deficits in their capacity to communicate with one another successfully, Ms A was not in favour of a shared care regime. Ms A also considered that these factors also posed risks for the children, in the event of a relocation. These were factors, which militated in favour of Ms A recommending a one year moratorium, on Ms Mansfield moving to Adelaide.
In the moratorium, Ms A hoped that there might be an improvement in the parties’ ability to communicate with one another. To Ms A, Ms Mansfield disclosed that the rationale for her wishing to move to Adelaide was that she believed she would have greater emotional support, in Adelaide, where she had family and friends and this would add to her coping skills. Ms Mansfield also believes that she will have greater career opportunities in Adelaide.
Ms Mansfield does not deny that her past alcohol use has been problematic for her. However, it is her case that she used alcohol as a coping mechanism to deal with an abusive relationship. In interview, with each of the parties, Ms A was not able to resolve definitively whether the obvious family violence which had arisen between the parties during their marriage was coercive and controlling in nature or common couple’s abuse. In her report, Ms A wrote as follows:
“… While unhealthy, this common couples violence generally stops after separation, and a functional co-parenting relationship can be developed. However, equal shared care is not typically recommended if there has been a pattern of coercive-controlling violence during the marriage, as such coercion and control can continue to be exercised in the co-parenting relationship that is necessary for shared care.”[1]
[1] See family assessment report dated 22 April 2015 at page 20
This passage encapsulates one of the central evidentiary issues in the case. It is the wife’s case that the husband has been a coercive and controlling spouse and will continue to be so for the indefinite future. She contends that Mr Mansfield’s attitude towards her is likely to be injurious to her feelings of self-worth and her psychological health generally. As a consequence, she wishes to remove herself from what she contends is his unhealthy influence.
Mr Mansfield contends otherwise. He asserts that Ms Mansfield precipitated episodes of family violence between the parties, when she was drunk, which happened frequently. He categorises her as a parent who continues to have an alcohol dependency. He resists the children’s relocation as his extensive business and family connections to the (omitted) area make it difficult, if not impossible, for him to move to Adelaide in tandem with the wife.
It was Ms A’s assessment that although the wife was likely to have been physically and psychologically absent from the children due to past alcohol use, she was nonetheless the more attuned parent to the children’s physical and emotional needs. At the time of her report (April 2015) Ms A also accepted that Ms Mansfield had taken steps to address her alcohol use. In this context, another factor favouring a delay in resolution of the relocation issue was that it would allow a reasonable period of time in which to assess the success or otherwise of Ms Mansfield’s rehabilitation. Ms A opined as follows:
“… the history of her alcohol use is of significant concern … Ms Mansfield agrees that she consumed alcohol most days and sometimes to excess, that she hid her alcohol use from Mr Mansfield, and that her alcohol use was problematic. She reported that her alcohol use since the separation has been greatly reduced. Her recovery is in the early stages. The passage of time with continued moderation or if necessary, abstinence, will be reassuring. It will also be reassuring if Ms Mansfield has specifically consulted her counsellor regarding her past alcohol use and developing alternative coping strategies.”[2]
[2] Ibid at page 20
It is Mr Mansfield’s position that, as an act of good faith, he was prepared to accept Ms Mansfield’s assertions regarding her cessation of excessive alcohol use at face value. However, it is his case that he did so with a significant level of reservation given his prior experiences of Ms Mansfield’s drinking.
The evidence concerning the current application
On 6 May 2016, Ms S, the husband’s solicitor filed an affidavit. In this affidavit, Ms S deposed that she had been instructed by Mr Mansfield, on 2 March 2016, to engage a private investigator to surveil Ms Mansfield in (omitted) between 18 March 2016 and 24 March 2016. The private investigator concerned is one Mr J.
Mr J was instructed to investigate Ms Mansfield’s current drinking habits. He was directed to surveil her for 15 hours per day and engage in random bin raids at night time. The cost of his initial retainer was $5,000.00 and he was to be paid $80.00 per hour for his services.
In his report, Mr J confirms that he observed Ms Mansfield for 99 hours of surveillance between 18 and 24 March 2016. He produced a 50 page report, including numerous photographs. Observing current bureaucratic processes, Mr J chose to summarise his activities in one section of his report headed key findings & recommendations. This aspect of his report is as follows:
“You will know from our investigations that the Subject was observed to attend the bottle shop at the (omitted) on four occasions and purchase at least two bottles [of] wines and a six pack of UDL Scotch & Coke on each occasion. We also note that no visitors were seen to arrive at the subject’s premises throughout this surveillance.”[3]
[3] Affidavit of Ms S filed 6 May 2016, Annexure S-B, page 3
This summary is not entirely consistent with Mr J’s report. A closer reading of the report indicates that he observed Ms Mansfield for seven days, on four of which she purchased alcohol. On Saturday 19 March 2016, she is alleged to have purchased two bottles of wine and a six pack; on the following Sunday one bottle of wine and a six pack; on Monday 21 March 2016 two bottles of wine and a six pack; and on Thursday 24 March 2016 (Maundy Thursday) a further two bottles of wine and a further six pack.
On 25 July 2016, Mr Mansfield filed an affidavit in support of his application to restrain Ms Mansfield from consuming alcohol. His evidence in support of this application can be summarised as follows:
·During the marriage, the wife would regularly drink 10 alcoholic drinks each evening and over the weekend approximately 40 drinks;
·He would regularly return home from work to find the wife smelling of alcohol and slurring her speech;
·An SMS message, available to him, indicates that in 2012, the wife left her employment at a (employer omitted) under a cloud due to her alcohol consumption;
·He continually found empty wine bottles around the former family home which was a large rural property;
·On 13 November 2014, X reported to him that Ms Mansfield was drinking wine out of a coffee cup rather than a wine glass;
·On 10 February 2016, an acquaintance of Mr Mansfield who is employed by (employer omitted), observed Ms Mansfield purchasing a bottle of wine from a (omitted) hotel at 11:00am;
·On 13 May 2016, he observed Ms Mansfield at the (omitted) to be under the influence of alcohol such that she was unsteady on her feet and fell into a marquee;
·On 13 June 2016, X reported that her mother had removed money from her [X’s] piggy bank so that she [Ms Mansfield] could go to the pub.
In addition, Mr Mansfield has obtained copies of Ms Mansfield’s bank statements for the period from 27 April 2015 to 22 January 2016. Ms S has summarised the transactions, which occurred on licensed premises in a letter sent to Ms Mansfield’s solicitors on 22 April 2016. There are 59 such transactions over a period of approximately 270 days. In total, the amount concerned comes to $1,844.42.
Mr Mansfield relies on the report of Mr J; his experience of Ms Mansfield prior to separation; the level of bank card usage at licensed premises; his personal observation of her at the (omitted); and X’s report of the use of her piggy bank moneys; to support the injunction. It is his position that these various incidents are not consistent with a person whose alcohol use is under control, as Ms Mansfield reported to Ms A and which Ms A apparently accepted, albeit provisionally.
In response, Ms Mansfield concedes that prior to separation she had significant issues with her personal consumption of alcohol which she attributes to Mr Mansfield’s coercive and controlling behaviour towards her. In particular, she alleges that he monitored her text messages and emails; destroyed items of her personal property; and restricted her access to the financial resources of the marriage. In these circumstances, she asserts that she turned to alcohol to deal with what she characterised to be daily abuse emanating from Mr Mansfield.
It is her evidence that she has sought assistance from various medical practitioners in (omitted), to assist her with issues relating to self-confidence and self-esteem as well as her alcohol use. I have not been provided with any evidence from these therapeutic or medical sources. She denies that she has consumed alcohol to excess since the parties separated. As such, she denies that her current consumption of alcohol affects her ability to parent or to work as a (occupation omitted).
Ms Mansfield deposes as follows:
“I do not consume alcohol to the extent suggested by the father.
I do not have a problem with alcohol.
My consumption of alcohol does not in any way effect my ability to parent or work.
There is no evidence before the Court to suggest that I am deficient in any aspect of my parenting or work responsibilities.
There is no evidence before the Court to suggest that my consumption of alcohol has had any impact on the care I provide to the children or that the children are at risk at any time while in my care.
I say that the father has no basis whatsoever to restrain me from consuming alcohol either before or while I have the care of the children.”[4]
[4] See wife’s affidavit filed 1 August 2016 at paragraphs 36-41
In her affidavit material, the wife provides details as to the level of care which she provides to X and Y. From this evidence, she contends that she is a competent and involved parent who engages with the children’s school and extramural activities openly and efficiently. In this context, she points to the fact that Mr Mansfield is unable to point to any incident which has caused him specific concern for the wellbeing of the children.
It is her case that the husband has grossly exaggerated the extent of her difficulties with alcohol during the marriage and has illegally accessed information relating to the circumstances in which she left her employment at the (employer omitted) from her telephone. It is her contention that this conduct is indicative of the degree of control to which she was previously subject. In any event, it is her positon that these allegations are now historical in nature.
It is the submission of Mr Jordan, counsel for Ms Mansfield that Mr J’s efforts have not revealed any evidence on which it would be reasonable for the court to act at this interim stage. In particular, Mr J is not able to depose as to what the wife did with the alcohol said to have been purchased by her or to provide any evidence in which Ms Mansfield appeared to him to be alcohol affected. In these circumstances, Mr Jordan categorises the evidence of Mr J as being highly speculative and inflammatory.
In addition, Mr Jordan contends that when independent analysis is applied to the wife’s banking records, it indicates a monthly expenditure on alcohol of approximately $200.00. In Mr Jordan’s submission, this cannot be an amount which should concern the court and authorise its intervention in curtailing the wife’s personal entitlements to lead her life, as she sees fit, independently of Mr Mansfield.
Ms Mansfield has deposed that she has been rendered anxious upon learning that Mr Mansfield has had her surreptitiously watched. She deposes that she has felt teary and depressed since she learnt about Mr J’s activities and anxious about leaving her home. In respect of the surveillance, she deposes as follows:
“... I feel it is a complete invasion of my privacy and further evidence of the father’s continued attempts to control and intimidate me.”[5]
[5] Ibid at paragraph 90
Ms Mansfield is further aggrieved that Mr Mansfield has paid approximately $14,000.00 to retain Mr J, when the Registrar of the Child Support Agency has attributed a child support income of $32,828.00 to Mr Mansfield, which results in Ms Mansfield receiving a weekly payment of child support of $32.27 per week. It is her case that she struggles to support the children financially.
Ms Mansfield acknowledges that she did attend the (omitted). She denies that she was unsteady on her feet or staggering. In any event, the children were not in her care the weekend of the (omitted). Ms Mansfield further denies that she has ever purloined any moneys from X’s piggy bank.
Ms Mansfield attributes malign motives to Mr Mansfield for pursuing these proceedings. She asserts that he has inaugurated the application in a case in order to intimidate her and to cause her legal fees to escalate so that she will be compelled to abandon her application for relocation, which she believes to be in the best interests of the children and likely to be beneficial to her personally.
The legal principles applicable
Part VII is the part of the Family Law Act 1975, which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child.
The best interests of any child concerned are the paramount or most important consideration [section 60CA] in making any parenting order. In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
As a result of the insertion of section 60CC(2A) into the Act the court, “in applying the primary considerations… to give greater weight to section 60CC(2)(b).” This, of course, is the consideration dealing with abuse, neglect and family violence. These considerations are to be given priority.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
It is the underpinning of Mr Mansfield’s case that it is in the best interests of the children concerned that the injunction in question be granted. Otherwise they are liable to be subject of some form of either physical or psychological abuse, as a consequence of their mother’s alleged propensity to become regularly intoxicated.
Essentially, in my view, Mr Mansfield’s application calls for the court to assess the degree of risk which the mother’s alleged conduct may pose for X and Y in future. Risk arises in every aspect of human endeavour. No individual’s life can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising on an objective basis.
The court is frequently called upon to assess all manner of potential risks to children in proceedings coming before it. These risks include the risk of sexual abuse; compromised parenting as a result of psychological illness or personality disorder; dangers relating to new partners of parents; and, as in this case, risks relating to illicit drug use or excessive alcohol consumption.
The court is also frequently called upon to make such assessments of risk, at the interim stage, when the evidence before it is untested; often incomplete; and invariably highly controversial and emotive. As such, at the interim stage, the court may not be in a position to make a definitive finding that the conduct raising concerns, in one of the relevant parents, either has occurred or, if it did, was of the degree of gravity alleged.
Indeed, given the nature of the allegation concerned and the evidence which relates to it, it may be impossible for the court to ever be in a position to resolve such allegations. This is particularly so in the case of allegations of child sexual abuse, when the child concerned is very of tender years.
However, given the structure of Part VII, particularly its emphasis on protecting children from the consequences of exposure to any form of abuse or neglect, the court cannot disregard such allegations because of evidentiary difficulties, which may or may not arise as a consequence of the court trying to establish the truth or otherwise of the allegations concerned and the circumstances in which they arose.
Necessarily such a situation creates a dilemma. The court is damned if does and damned if does not in the eyes of one of the protagonists to the proceedings concerned. As the Full Court pointed out in Keats & Keats:[6]
“As with many interim hearings, the proceedings were determined without cross-examination and the primary judge was not in a position to resolve evidentiary controversies. The primary judge applied the principles that emerge from cases such as SS v AH,[7] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…”
[6] Keats & Keats [2016] FamCAFC 156
[7] SS v AH [7][2010] FamCAFC 13
In the current case, it is impossible for me to establish, on the balance of probabilities, whether in the period since the parties’ separated, Ms Mansfield has been regularly abusing alcohol. In addition, at the present time, there is no evidence to indicate that either X or Y have come to any form of harm, either physical or psychological, as a consequence of their mother’s drinking.
However, I accept that this does not absolve the court from its fundamental responsibility to make the parenting order, which it thinks will be in the best interests of the children concerned. In this context, in my view, it is my responsibility to assess the degree of risk arising to X and Y, from the conduct alleged against the mother and put in place the response which I think is proportionate to the degree or risk arising.
Section 68B of the Family Law Act specifically empowers the court to make injunctions in proceedings relating to children arising under Part VII. The section reads as follows:
“(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a)an injunction for the personal protection of the child; or
(b)an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.”
Accordingly, in this case, I am authorised to make any injunction, which I consider to be appropriate, in order to secure the welfare of X and Y. The power is a wide one but any resultant injunction must be just or convenient in its application. Accordingly, in my view, there must be some reasonable evidentiary basis for an injunction under section 68B to be made.[8]
[8] See Mann & Anor & Vargas & Anor [2010] FamCACF 50 at [50] per Coleman J
Such an injunction is not to be granted merely to assuage the concerns or fears of a particular parent or because there is some unexceptional level of risk pertaining to the circumstances of the child concerned.
The expression welfare is not specifically defined in the Family Law Act. Its ordinary meaning relates to considerations of well-being, happiness and health. Similarly the expression appropriate is not defined in the Act. Ordinarily, it arises in the context of what is suitable or proper to be done in the circumstances prevailing.
Accordingly, in this case, concerns relating to the rights of Ms Mansfield to lead her life, as she chooses, are not irrelevant to the court’s deliberations. I must be satisfied that it is proper to curtail her alcohol use to a very marked degree.
In my view, I can only do so in the eventuality that I hold significant concerns, relating to X and Y’s welfare, which justify such an intervention. I should not make such an order because of Mr Mansfield’s fears or concerns alone. Rather, those concerns must have an objective basis grounded in concrete evidence.
In cases concerning the sexual abuse of children, the test to be applied is whether the risk alleged is one which is of such a degree that it would be unacceptable for the court to assume it.[9] In conducting the unacceptable risk assessment, the court must examine all relevant evidence and put in place a response which is proportionate to the risk so assessed and which also serves the best interests of the child concerned.
[9] See M & M (1988) FLC 91-979
Clearly, if the risk or danger of abuse is an unacceptable one for the court to countenance, it would not be in the child’s best interests to be exposed to such a risk. Mr Mansfield has not delineated with precision what is the risk which pertains to either X or Y from the mother’s allegedly excessive alcohol consumption.
I concede that an intoxicated person is not likely to be a competent parent and may make errors of judgment as a result of his/her inebriation. The law prohibits an intoxicated person from driving or operating heavy equipment because of the impairment intoxication causes to a person’s motor skills and coordination. Drunken drivers are dangerous to both themselves and others. In addition, as Ms A points out, a consistently drunken parent is likely to be emotionally unavailable to a child and to engage in unpredictable conduct which has the potential to be emotionally destabilising for a child.
In this case, in my view, Mr Mansfield has made inchoate allegations concerning Ms Mansfield’s alcohol use. I am unable to discern the current level of her alcohol use from the evidence currently mustered by Mr Mansfield. More significantly, I am unable to assess the degree of risk which her alleged drinking constitutes to X and Y on the basis of this evidence.
This is because Mr Mansfield is unable to point to any specific example, since the parties separated arising from Ms Mansfield’s drinking which has specifically and objectively placed the children in a situation of danger. He has not alleged that she has driven whilst intoxicated or otherwise engaged in risky or foolhardy behaviour, either when the children have been in her care or otherwise. In my view, although serious, Mr Mansfield’s allegations are entirely conjectural in nature.
In this context, Ms Mansfield specifically denies their gravamen. In addition, when the objective evidence is analysed in the form of Ms Mansfield’s bank records, it does not demonstrate a pattern of alcohol use which is clearly aberrant or out of control. In my view, the same is true of the evidence from Mr J.
Specifically, Mr Mansfield is not able to point to any circumstances in which Ms Mansfield’s parenting of the children has been compromised due to her alcohol usage or any episode which has led her to come to the attention of an independent authority because of it. To the contrary, the evidence mustered by Ms Mansfield indicates that she continues to function competently in the (omitted) community and in her place of employment. Mr Mansfield is not able to muster evidence which indicates that the wife’s management of X and Y has gone awry.
Mr J’s surveillance indicates that Ms Mansfield has purchased alcohol. If Ms Mansfield consumed two bottles of wine and six-pack of mixed drinks in one sitting whilst the children were in her care, it would indeed be concerning. However, Mr J’s evidence goes only to the purchase of the alcohol, not its consumption.
In my view, similar considerations arise in respect of Ms Mansfield’s bank records. When analysed, the records do not indicate an alarming number of transactions having occurred at licensed premises. I concede that it is not beyond the bounds of possibility that Ms Mansfield has had more frequent attendances at such premises and has utilised cash to make her purchases. Similarly, I am unable to determine whether each of the times she used a card to complete a purchase at licensed premises it was to purchase alcohol.
In respect of the other incidents arising post-separation on which Mr Mansfield relies, namely Ms Mansfield’s demeanour at the (omitted) and the alleged removal of moneys from X’s piggy bank, Ms Mansfield denies any impropriety. As such, in my view, these are issues for the final hearing.
The evidence of Mr Mansfield that Ms Mansfield would regularly drink ten standard drinks per evening and forty such drinks on weekends relates to the period prior to Ms A’s report and pre-date the consent orders which envisaged Ms Mansfield having the larger role in parenting the children. Necessarily these concerns did not prevent Mr Mansfield from agreeing to the consent order albeit with reservations. At the time of the consent order, he accepted Ms Mansfield was capable of parenting the children adequately.
Since the order, the evidence which Mr Mansfield has mustered consists of the surveillance report; the bank records; Ms Mansfield’s conduct at the (omitted) when the children were not in her care; and the alleged theft from X’s piggy bank. There is no evidence to support the contention that Ms Mansfield has been compromised in her care of the children or that either X or Y have been exposed to some explicit form of danger.
The most serious piece of evidence is Mr J’s report to which reference has already been made. However, I am unable to ascertain how and over what period that alcohol was consumed and more importantly what were the implications of that consumption if it was entirely consumed for the welfare of the children.
In my view, Mr Mansfield’s case is based on a number of understandable and human assumptions or rationalisations – everyone lies about their alcohol consumption, particularly to professional people; leopards cannot change their spots; and where there is smoke there is fire. It is also his case that the infringement which he seeks of Ms Mansfield, is a minor one in the greater scheme of the children’s welfare and can do no harm to Ms Mansfield.
I agree that an individual’s entitlement to drink is not more important than the welfare of children. However, in my view, injunctions should not be granted purely for hypothetical prophylactic reasons. Accordingly, the central question for the court is whether there is a sufficient evidentiary basis for granting any injunction sought.
In this context, in my view, it is not sufficient to assert that the restriction sought is not a significant one or to argue that a well-motivated parent would agree to the infringement on the basis that it can do no harm to the children concerned but can only promote their interests in generic terms.
Ms Mansfield is not under any obligation to agree the injunction to assuage Mr Mansfield’s concerns or otherwise mollify him. In this case, I do not consider that Mr Mansfield has provided a sufficient evidentiary basis relating to the children’s welfare to justify the making of such an injunction.
In all these circumstances, I have come to the conclusion that it would not be appropriate to grant the injunction sought by Mr Mansfield. Essentially, I do not consider that there is a sufficient evidentiary basis relating to the welfare of either X or Y, to justify the making of such an injunction.
That is not to say I am not suspicious about the amount of alcohol purchased by Ms Mansfield according to the surreptitious observations of Mr J. However, in my view, suspicions are not sufficient to grant the injunction concerned. There must be a direct linkage to the welfare of the children concerned. For these reasons, Mr Mansfield’s application in a case will be dismissed.
Ms Mansfield seeks an order for costs in her favour. Pursuant to section 117(1) of the Family Law Act, the ordinary rule, in family law proceedings, is that each party should bear his or her own costs. However, pursuant to section 117(2), if the court is of the opinion that there are circumstances that justify it in so doing, the court may make an order for costs as it considers just.
The power to make an order for costs arising under section 117(2), is subject to a number of considerations which are delineated in section 117(2A). They include the following:
·The financial circumstances of each of the parties concerned;
·Whether any of the parties to the proceedings was in receipt of a grant of legal aid;
·The conduct of the parties to the proceedings generally and in respect of procedural matters specifically;
·Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
·Whether any party to the proceedings has been wholly unsuccessful in the relevant matter;
·Whether an offer has made to settle the proceedings in writing;
·Any other matter the court considers relevant.
These proceedings have, from their instigation been vigorously contested. Mr Mansfield has been prepared to commit significant funds to the matter. Ms Mansfield has necessarily incurred costs in defending the proceedings which she has approached as a matter of principle.
By necessary implication, Mr Mansfield has been able to access sufficient funds to finance the surveillance report. In these circumstances, it seems to me to be more probable than not that he is in a superior financial position to that of the wife, although I am not able to ascertain definitively the provenance of the funds utilised to pay Mr J.
Ms Mansfield asserts that she is a modest income earner who works only part-time and irregularly. Her income, for child support purposes, has been assessed at around $22,500.00 per annum. Neither party is in receipt of legal aid. Mr Mansfield has not been successful in his application.
The court has a wide discretion as to the calculation of costs. Pursuant to Rule 21.02(2) of the Federal Circuit Court Rules:
“In making an order for costs in a proceeding, the Court may:
a) set the amount in costs; or
b) set the method by which the costs are to be calculated; or
c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
d) set a time for payment of costs, which maybe before the proceeding is concluded.”
I have come to the conclusion that it would be just and proper to make an award of costs pursuant to Rule 21.10 of the Federal Circuit Court Rules 2001, which creates a scale of costs by reference to the occurrence of fixed events [Part 1 of Schedule 1]. The costs allowed for defending an application in a case is an amount of $1,801.00 [Item 3] together with the appropriate fee for a daily mention in this case a short mention, in the sum of $294 [Item 13].
Pursuant to Rule 21.15 of the rules, the court may certify that it was reasonable for a party to employ an advocate to appear for that party in the proceeding. According to Item 15 of the Schedule, reasonable incurred disbursements can be awarded as costs. Otherwise an advocacy loading calculated by reference to 50% of the daily hearing fee applies.
I have not been advised as to the amount of counsel’s fees in this matter. Bearing in mind the circumscribed nature of the controversy in the case, the fact that the wife was called upon to draft a brief affidavit when compared to the material filed on behalf of the husband; and the sensitive nature of the issues in dispute; I have come to the conclusion that it would be reasonable to award costs in the wife’s favour in an amount of $1,500.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 6 September 2016
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