Marbow and Marbow

[2009] FamCA 804

FAMILY COURT OF AUSTRALIA

MARBOW & MARBOW [2009] FamCA 804

FAMILY LAW – CHILDREN – INTERIM – supervised time to be spent with mother

Family Law Act 1975 (Cth)

APPLICANT: Mr Marbow

RESPONDENT: Ms Marbow

INDEPENDENT CHILDREN’S LAWYER: Ms Carroll

FILE NUMBER: SYC 4123 of 2008

DATE DELIVERED: 12 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 12 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnson

SOLICITOR FOR THE APPLICANT: Southern Cross Lawyers

SOLICITOR FOR THE RESPONDENT: David H. Cohen & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW

Orders

PENDING FURTHER ORDER IT IS ORDERED THAT:

1. All previous parenting orders are discharged.

2. The parties have equal shared parental responsibility of the children R born … October 1999 and Y born … October 2003 (“the children”).

3. The children live with their father.

4. The children spend time with their mother each Thursday from 4pm to 7pm or such other times as nominated by Dial-An-Angel (being three hours a week), such time to be supervised by Dial-An-Angel.

5. The father pay Dial-An-Angel for their costs and the mother will pay to the father one half of those costs on a weekly basis

6. The non payment by the mother of the costs to the father will not be a reason that the father shall advance to excuse him from complying with the order that he fully pay Dial-An-Angel’s costs.

7. Liberty granted to the father on 14 days’ notice to relist this matter in the event that  he seeks some type of enforcement order because of the mother’s failure to comply with the order that she pay him one half of the costs.

8. Liberty granted to the parties and the Independent Children's Lawyer to relist the matter for any interim determination of any issue relating to long term parental responsibility and in relation to whether or not the children will be able to visit their mother in a rehabilitation facility and in what circumstance, particularly in respect of the issue of supervision.

9. Any previous order requiring the parties to under CDT testing is discharged.

10. This matter be stood out of the list with liberty to either party or the Independent Children's Lawyer to restore the matter in the event that either party or the Independent Children's Lawyer assert that it is appropriate to proceed to consider final orders in the matter. 

IT IS NOTED THAT:

1. The mother has indicated that she intends to engage in a treatment program (although I am unclear at this stage as to whether or not she fully embraces the recommendations made by Dr L in his report).

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4123 of 2008

MR MARBOW

Applicant

And

MS MARBOW

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. There are a number of matters that are agreed on, on an interim basis, by consent.  The parties have agreed for the order requiring them each to undergo CDT testing to be discharged.  The parties have agreed by consent that the time the children spend with their mother be varied so that that time takes after school each Thursday from 4 pm till 7 pm or such other time as nominated by Dial An Angel and, pending further order, that time continue to be supervised by Dial An Angel.

2. There are three issues that I am required to consider today.  The first is who will pay for the costs of the supervision of Dial An Angel.  The next is whether or not the current order restraining the father from using alcohol whilst the children are living with him should continue in its current form.  And the third is whether or not there should be an interim order for sole parental responsibility in favour of the father pending further order.

3. It has been agreed that any issue in relation to the children spending time with their mother in a rehabilitation facility be adjourned with liberty if either of the parties or the independent children’s lawyer wish to relist the matter in respect of that issue.  The mother also has requested that the matter be stood out of the list generally with liberty to restore the matter to the list at a time when either party or the independent children’s lawyer believes that it is appropriate for the court to proceed to consider final orders and, as I understand it, that is not controversial.

4. So dealing with the first matter that I have to determine, that is, the matter relating to the Dial An Angel fees.  I am told that the costs on - and it is agreed, I think - that costs on a weekly basis of the Dial An Angel fees are $522 per week.  That includes a report.  It is the mutual position of both the parties that that supervision should continue, as I have already said.  So the only issue is how the payment should be made and by whom.

5. There has been a recent property settlement that has now been completed.  As a result of that property settlement the mother was paid about $543,000 by the father.  In order for the father to pay the mother that money he has given evidence that he needed to refinance the former matrimonial home.  He borrowed 1.2 million in all and 1.12 million of that was borrowed on an interest only basis, and the repayments in relation to that part of the borrowing are $5200 per month.

6. There was another $80,000 that was borrowed.  The husband has given oral evidence that the bank required him to repay that $80,000 over a period of 12 months because of the revaluation the bank undertook of the matrimonial home and its value was re-valued from 1.6 million down to 1.4 million.  And apparently the bank require some extra equity in the property over a 12 month period and the loan has been restructured in that unusual way because of that requirement.  The husband is on a gross wage of about $8983 per week, and he is obviously a person of some experience in his industry and commands a wage of that level accordingly.

7. It does not seem to me to be a reasonable outcome that a person who is on more than $450,000 a year and is living in a $1.4 million house should not be required to contribute in some way towards the costs of supervision in the circumstances of this case.  I do not accept counsel for the father’s assertion that it is the mother’s fault that supervision is required.  On the face of Dr L’s report, the mother has an illness. 

8. Turning to the mother’s financial position, she has recently, as I have said, received an amount of $543,000 in capital.  I think it is important that she bear some of the responsibility for paying for the supervision.  It will, at least, remind her that this arrangement is not necessarily a long term arrangement in relation to Dial An Angel.  She has got to do something about her current problem and she has indicated that she is committed to doing that, and obviously in time we will see how committed she is to trying to turn her position around.

9. That capital gives her some capacity to make some contribution.  I think it is a just outcome if I divide the responsibility for the payment of Dial An Angel evenly.  The independent children’s lawyer has raised the possibility that the mother may not pay Dial An Angel for one reason or another.  Probably, I would infer, arising out of her current medical condition - and that the children might then miss out on seeing her.

10. In order to cater for that concern, which I accept is a real one, I will order the father pay Dial An Angel and that the mother reimburse the father.  If there is some further problem in the future that the mother has not done that then I will deal with it by way of enforcement against the capital that the mother has got.

11. The second issue that I am asked to decide is whether or not the current order for the father to totally abstain from use of alcohol during the period of time when he has the children - which is pretty much all the time - should be maintained - well, it is all the time.  On the face of it, it is an onerous order to require somebody to abstain from alcohol entirely.  The husband has given evidence and I accept that on occasions his work commitments require him to entertain clients.  During that entertainment he says he consumes alcohol.  It is obviously not something he necessarily has to do but I accept that that is something that he has historically done.

12. He has also given evidence it is his habit to drink a bottle of wine on a Friday night on the veranda of his home while reading magazines after a week’s work.  The proposal, as I understood it at the end of the father’s lawyer’s submissions from the father, was that an order should be made that the father be limited to three standard drinks in an eight hour period and that the order for total abstinence be varied in that manner.

13. There is some disturbing evidence that causes me concern in relation to the father’s use of alcohol.  The first is what is contained in Dr L’s report at paragraph 72.  It is not absolutely clear to me as to when this information was given to Mr L by the father.  It may well have been before the orders were made, but at that time Dr L recorded that the father said that he currently drinks two or three times a week and the father said he only drinks three or four standard drinks at a time but would drink excessively, ie, more than six standard drinks or approximately a bottle of wine on a weekly basis.

14. Notwithstanding that Dr L has described that type of use of alcohol as excessive, the father confirmed today that that is his continuing practice.  He has had Dr L’s report for a little while now.  It is fairly clear that the current order has not stopped the father from drinking.  He has given evidence in an affidavit since the order was made that he has done so.  He has given evidence to me today in the witness box that he continues to do so. 

15. There is the untested evidence of Ms G about occasions when she believed that the father was intoxicated although the father has given sworn evidence that directly contradicts that today.  There is also some information in the mother’s recent affidavit which, on its face, raises concern, but that evidence, of course, has to be looked at in the context of the high level of conflict between the parties and other actions that it seems the mother has taken from time to time regarding people being requested to go to the father’s home in relation to this issue.

16. The father has undertaken tests.  Dr L has considered and had those tests available to him.  Dr L does not, in the end, suggest that there needs to be any order for absolute prohibition in relation to the husband’s use of alcohol.  I think, taking a pragmatic view, an order that is a more realistic order is one that the father may more realistically comply with than the current order, and although the father today in the witness box seemed to show some considerable hesitation in being able to accept a proposition that after three standard drinks he would put a cork in the bottle, that is what I will be asking him to do, and he tells me on his oath that he is prepared to do it.

17. So I am prepared to vary the current order in relation to the father’s use of alcohol so that he can have three standard drinks.  That is, three 100 mil drinks, within an eight hour period.

18. The next issue is the father having sole parental responsibility.  I indicated in discussions that I prefer to deal with long term parental responsibility issues as they arise in the future, during the interim stage of these proceedings, so that if there is some issue in relation to the children’s health that has to be dealt with, or schooling, or some major decision of that nature, if the parties are unable to agree on what should happen I will entertain that argument at fairly short notice.

I certify that the preceding eighteen (18) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  1.9.2009