Maxwell & Maxwell
[2024] FedCFamC2F 1439
•17 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maxwell & Maxwell [2024] FedCFamC2F 1439
File number(s): MLC 540 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 September 2024 Catchwords: FAMILY LAW – Interim defended hearing – both parents prohibited from consuming alcohol while children in his or her care – children live with mother – gradual increase of time for the father with the children – consideration for meaningful relationship for the children with both parents – further hair follicle test ordered for next year Legislation: Family Law Act 1975 (Cth) ss 60CC & 69ZL Cases cited: Goode & Goode (2006) FLC 93-286 Division: Division 2 Family Law Number of paragraphs: 21 Date of hearing: 17 September 2024 Place: Melbourne Solicitor for the Applicant: Ms Hidic of Romer Maud Family Lawyers Counsel for the Respondent: Mr Turner Solicitor for the Respondent: Peter Baker & Associates ORDERS
MLC 540 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MAXWELL
Applicant
AND: MR MAXWELL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 SEPTEMBER 2024
THE COURT ORDERS THAT:
Spend Time
1.The children X born in 2012 (“X”) and Y born in 2015 (“Y”) (collectively “the children”) live with Ms Maxwell (‘the Mother’).
2.The children spend time and communicate with Mr Maxwell (‘the Father’) as follows:
(a)for two occasions, each alternate weekend from the conclusion of school on Friday (or 3.30pm) until 4.00pm on Saturday; and thereafter
(b)for two occasions each alternate weekend from the conclusion of school on Friday (or 3.30pm) until 4.00pm on Sunday;
After the time specified
(c)Commencing 15 November 2024 and on a fortnightly basis;
(i)in Week One, from the conclusion of school on Friday (or 3.30pm) until the
(ii)commencement of school on Monday (or 9.00am); and
(iii)in Week Two, from the conclusion of school on Thursday (or 3.30pm) until
(iv)the commencement of school on Friday (or 9.00am);
(d)during the Christmas period in 2024 from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day; and
(e)via telephone and/or FaceTime at such times as may be agreed between the parties in writing, and failing agreement, each Wednesday between 6.00PM and 6.30PM, with the Father to place the call and the Mother to ensure that the child(ren) are afforded privacy; and
(f)at such further or other times as may be agreed between the parties in writing.
3.By no earlier than 1 February 2025 and no later than 28 February 2025, the Father make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair alcohol testing purposes (“the third Hair Follicle Test”) and when doing so to Authorise AWDTS to provide the results of such test to the Mother’s Solicitor contemporaneous with providing the results to the Father.
4.IT IS REQUESTED that Victoria Legal Aid fund the third Hair Follicle Test of the Father.
AND THE COURT ORDERS BY CONSENT THAT:
5.The parties shall facilitate any reasonable request of the children and/or either of them to communicate with the non-resident parent during such time that the children and/or either of them are not in their care.
Changeover
6.Changeovers that do not otherwise occur at the children’s school shall occur at the Mother’s residence being B Street, City C at the commencement and conclusion of the Father’s time pursuant to order 3 herein, unless as is otherwise agreed between the parties in writing.
Communication
7.The parties forthwith download AppClose or such other parenting app as may be agreed between them for the purpose of communication in relation to the children.
8.In the case of an emergency resulting in serious injury and/or requiring hospitalisation of the children or either of them, the resident parent shall:-
(a)notify the non-resident parent via telephone as soon as practicable thereafter; and
(b)provide the details of the child’s/children’s condition and the details of the hospital and/or the medical practitioner treating the child(ren).
9.The parties shall ensure that they notify the other of their telephone number, email and residential address within 48 hours of any change to same.
Medical/Education
10.Each party be at liberty to communicate with the children’s medical practitioners, allied health practitioners, and/or counsellors at their own expense.
11.Each party be at liberty to attend school and/or extra-curricular events that parents are ordinarily invited to attend.
12.Each party be at liberty to obtain the children’s school reports, notices and photo order forms at their own expense.
Restraints
13.Both parties be and are hereby restrained from:-
(a)(denigrating the other party in the presence and/or hearing of the children and/or allowing anyone else to do so;
(b)discussing these proceedings in the presence and/or hearing of the children and/or allowing anyone else to do so; and
(c)consuming alcohol at all whilst the children and/or either of them are in their care.
AND THE COURT NOTES THAT:
A.The timing of the further listing before Judicial Registrar McGowan may need to be reconsidered in light of these orders.
B.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.
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 court and then 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 s 102NA 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged. Matters omitted because of pressure of time have been inserted.
In the matter of Maxwell, the applicant, Ms Maxwell, is 47 (“Ms Maxwell”), and the respondent husband, Mr Maxwell is 45 (“Mr Maxwell”). Ms Maxwell works in the health sector (if I can use that phrase) and Mr Maxwell works in the hospitality sector (if I can use that phrase).
Background
The parties have two children. X, born in 2012 (“X”), and Y, born in 2015 (“Y”) (collectively “the children”). They commenced cohabitation in or about 2010. They married in 2019 and not long after that they separated in April 2020. Ms Maxwell issued these proceedings in January of this year.
Issues in dispute
Alcohol Reference Ranges LEVEL RESULT 0 – 1.9 pg/mg Negative 2 – 29.9 pg/mg Positive: Low to Moderate Consumption 30+ pg/mg Positive: Excessive Consumption
Ms Maxwell alleges and alleged that Mr Maxwell has a problem with consumption of alcohol and a problem with communication with her including denigrating her and demonstrating a poor attitude as a parent to her. Mr Maxwell denies that he has an alcohol problem and points to a hair follicle test undertaken in early 2024 pursuant to court orders of 5 March 2024, which recorded a reading of 18 mg which is said by those who analyse the sample to indicate low or moderate alcohol consumption.
I regard the hair follicle test as covering the period over the previous three months. Mr Maxwell points to another hair follicle test undertaken in mid-2024 which records an amount of 15 mg, which is within the same low to moderate consumption.
Ms Maxwell points to the reference in the test to the hair sample being damaged in regard to the mid-2024 test, which may cause an understatement of the result. Mr Maxwell points to there being no .05 convictions, no criminal history, no history of engagement with the criminal justice system, and he is 45 years old without any record of alcohol-related poor behaviour. Ms Maxwell deposes to occasions, including when attending his home when he has been drunk when the children have been in his care. He denies that.
Orders sought
The parties helpfully put together a minute contained in the one document, and tendered as exhibit C1, where the orders that Ms Maxwell sought are marked in red, and the orders Mr Maxwell pressed are in blue.
Ms Maxwell sought that upon a further Hair Follicle Test recording a reading of less than 10 pg/mg, (that is within the low to moderate reading) then Mr Maxwell's time move on two occasions to being overnight from after school Friday until 4 o'clock Saturday, and then moving thereafter to be on alternate weekends from the conclusion of school Friday until 4 pm Sunday. Ms Maxwell also sought that Mr Maxwell spends time from Christmas Eve until Christmas Day, but only following another Hair Follicle Test below 10pg/mg.
Mr Maxwell seeks orders that he immediately move to spending time with the children on a two-week regime. In week one, from Thursday to Monday, that is four nights over five days and in week two, on the Thursday in the other week, that is another night over a further two days. In addition, he seeks Christmas time with the children as well. His suggested regime is to immediately move to what is known as a “four plus one equals five”/nine each fortnight regime. In the long term, the mother has made it clear that she presses for a five/nine regime and (I assume and infer) in addition to a half school holidays arrangement, but provided there are no remaining alcohol issues.
Child Impact Report
I refer to relevant passages of the Child Impact Report of 5 September 2024.
18.It is of strength that [X] and [Y] report that they currently have a positive and trusting relationship with both parents. Yet, they appear to have an affinity to, or at times preference to one parent and this has escalated at the end of 2023 to resist and refuse behaviours. Resist and refuse dynamics can be complex and children’s experiences nuanced…
19.The children’s views and relationships require consideration with regard to their developmental stage, sibling relationships, personality/temperament, experiences, and the context to their views i.e. the parental dynamic, parental vulnerabilities and styles of parenting, as well as gender and shared interests. [X]’s narrative was consistent with [Mr Maxwell]’s. [X] used mature phrases and had awareness of systems above expected for his age. [X] sees himself as similar to his father in personality and communication style. It is unclear if [X]’s presentation is due to genuine understanding of the issues, and weighing up information, mimicking the views of others or overt influence by [Mr Maxwell]…
20.[Y] appears to have an affinity with [Ms Maxwell]. This is likely to be due to [Ms Maxwell] holding a primary career role for much of her life. This is in addition to relating to her mother due to sharing gender, which is common for children of her age, particularly as she is approaching puberty. In this case, [Y] may be inclined to align with [Ms Maxwell], in the future, and reject [Mr Maxwell], as it appears began to occur at the end of 2023 [i]f the parental relationship does not improve. [Y] is at a tricky time of development, and she will benefit from emotionally regulated and child focussed responses from her parents, in the absence of denigration, conflict and undermining behaviours. If not, she is less likely to achieve positive social and emotional development, and less likely to reach her full potential academically. [Y] seeks for her family to get along; this is an understandable and reasonable request.
21.It is plausible that [X] and [Y] have experienced triangulation, in which at the end of 2023, they felt required to pick a parent to simplify their arrangements, protect themselves emotionally or to make a stance regarding their ethical/morals views regarding the parental dynamic. Children aged 9-12 years are particularly vulnerable to this…
For whatever reason, the child impact report records X as recalling, or asserting at least, that his father in the past "drank a lot of alcohol". In addition to that, it appears by the skill of the court child expert that she ascertained that the mother had, whilst having the children in her care, attended the perfectly ordinary everyday event of a 20-year reunion with some old friends and had enjoyed significant alcohol in the context of partying.
I raised with the parties whether each of them should be prohibited from consuming alcohol at all whilst the children were in their care. This is a matter that impacts more significantly on Ms Maxwell, in terms of time, than Mr Maxwell. On the other hand, Mr Maxwell is the one who works in the hospitality industry, or what could be called the alcohol industry. Nonetheless, Ms Maxwell embraced that suggestion when made to her without apparent hesitation. Mr Maxwell also embraced that suggestion without apparent hesitation.
I note that Mr Maxwell asserts and has always asserted as follows:[1]
14. That the aforementioned results state 'the hair sample submitted is moderately damaged'. I have not dyed my hair for approximately 5 years and I have never bleached my hair. I have no knowledge as to why the result would say that my hair sample is moderately damaged.
15. That I am not addicted to alcohol and I have never been addicted to alcohol.
16. That I consume alcohol on average once a fortnight.
17. That I do not currently consume alcohol whilst in the presence of the children.
[1] Mr Maxwell’s affidavit filed 10 September 2024
I'm satisfied that it's in these children's best interest that there be a further hair follicle test of Mr Maxwell, next year and that Mr Maxwell, when undertaking that test, authorise the testing authority to contemporaneously provide the results to Ms Maxwell's solicitors at the same time provided to him.
I'm not suggesting Mr Maxwell would not do that, but I do get from time to time the circumstance that the party undertakes the hair follicle test and doesn't provide it to the other side very promptly. If that test is provided contemporaneously to both parents, that will be of assistance to them and to me.
The applicable law
I determine this matter in accordance with Part VII of the Family Law Act including, in particular, section 60CC.
Section 60 CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
…
Conclusion
I am concerned to make orders that are most likely to promote the safety of the children. I am not prepared to dismiss Ms Maxwell's concerns about Mr Maxwell's alcohol consumption and vice versa. Hence, I am satisfied that it's in the children's best interest that each of the parents be prohibited from consuming alcohol whilst the children are in their care. I'm less concerned about drunken flailing around in a legless, intoxicated state than the inevitable disinhibition that comes with alcohol consumption. When disinhibited by alcohol consumption, even in small amounts, people, when irritated by the other parent, are more likely to say something by facial expression or actual verbal utterance that can give the children a clear understanding of the parent's opinion of the other parent. I am concerned of these children being triangulated between their parents and the damage that that would do to them in the long term.
I also proceed on the basis of applying the pathway of Goode & Goode (2006) FLC 93-286, but with the alternations necessary due to matters not taken into account from the now repealed provisions of Part VIII the presumption of equal parental responsibility and the consequences of that.
It's common ground in this case that until further order, the children should live with Ms Maxwell. I want to make it clear that the mother presses or says that in the long run, she pressed a five/nine shared care type arrangement, provided there are no alcohol issues. Mr Maxwell presses a long-term week-about arrangement, provided there are no alcohol issues.
With the severe restriction on consuming alcohol at all whilst the children are in Mr Maxwell’s care, in all of the circumstances, I am satisfied that after a gradual increase in time, along the lines as proposed by Ms Maxwell, that the time should move to an alternate weekend plus an overnight on the Thursday on the following week. Where available, changeovers should be from school to school to avoid the children being exposed to the parents’ irritation and mistrust of one another. I am satisfied that the alternate weekends over three nights with compliance with the strict alcohol restriction promotes the safety of the children and promotes the developmental, emotional, and psychological needs of the children of having a meaningful relationship both parents.
But I will make a notation that the timing of the further listing before Judicial Registrar McGowan may have to be reconsidered in light of these orders, because by November, the new arrangement will just be getting underway.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 17 October 2024
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