MORAY & BREWSTER

[2014] FamCA 971

FAMILY COURT OF AUSTRALIA

MORAY & BREWSTER [2014] FamCA 971

FAMILY LAW – CHILDREN – Interim Orders – with whom a child spends time with  – where both parties seek to suspend the other parties’ time with the children – where father alleges the mother’s drug and alcohol use poses a risk to the children – where mother has undertaken  course of therapy and undertaken liver function tests – best interests of the children – children previously expressed concern over mother’s alcohol consumption – need to protect the children from harm – steps taken by the mother acknowledge and address the concerns – orders made dismissing interim applications.

FAMILY LAW – INJUNCTIONS – where it is alleged an acquaintance of the mother has exposed the children to violence – mother previously consented to an injunction in similar terms – orders made restraining the mother from bringing the children into contact with the individual.

APPLICANT: Ms Moray

RESPONDENT: Mr Brewster

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4020 of 2012

DATE DELIVERED: 12 November 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 29 October 2014 and 7 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Basheer

SOLICITOR FOR THE APPLICANT: Clelands

COUNSEL FOR THE RESPONDENT: Mrs Tinning

SOLICITOR FOR THE RESPONDENT: Nicolls Gervasi

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. That the interim proceedings of the parties be dismissed.

2. That until further order the mother be and is hereby restrained by injunction from:-

   (a)Allowing, causing or permitting the children C born … 2005 and L born … 2010 (or either of them) from coming into any form of contact with, being exposed to or in the immediate vicinity of Mr B;

   (b)Allowing, causing or permitting Mr B to attend her home or come into contact with the said children during any period the children are in her care.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moray & Brewster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: ADC 4020  of 2012

Ms Moray

Applicant

And

Mr Brewster

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. The proceedings relate to parenting arrangements for the children C born in 2005 and L born in 2010.

2. These reasons are a consideration of interim proceedings and should be seen against a background of the final orders sought by each of the parties commenced by an Initiating Application filed 27 October 2012.

BACKGROUND

1. An Amended Application was filed on 15 January 2014 by Ms Moray (“the mother”) seeking the following orders summarised as follows:-

   (1)The mother have sole parental responsibility for the children.

   (2)The parties do share the care of C on a week about basis.

   (3)That L shall live with the mother, but upon the child attaining the age of five years (… 2015), the care of L shall be shared in the same manner as C.

2. By Amended Response filed 18 October 2013, Mr Brewster (“the father”) seeks orders that the said children shall live with him.

3. The proceedings were listed for trial commencing 11 March 2014 before Judge Cole of the Federal Circuit Court.  On 4 February 2014, the trial was vacated and the following notations and orders were made:-

   UPON NOTING:-

   A.The mother has attended the first of six scheduled appointments with her psychiatrist;

   B.The basis for the joint application to vacate the trial is that the mother accepts that she needs to address some issues concerning her use of prescription and without admission illicit drugs and has initiated treatment pursuant to a mental health plan and in due course will obtain reports from her psychiatrist and general practitioner.

   THE COURT ORDERS BY CONSENT:-

   (1)      The trial listed 11, 12 and 13 March 2014 is vacated.

   (2)The current orders relating to the children C born … 2005 and L born … 2010 are varied so that the parties share care (week about) of the children, with handovers at 6.30pm on Sunday at the H Police Station (NOTING the first period is to commence on 9 February 2014).

   (3)Pursuant to a mental health plan the mother is to attend upon her psychiatrist as referred by her general practitioner (GP) for a minimum of six sessions and continue to receive treatment from her GP and any other recommended health care professional directed at the use of prescription medication and without admission, drugs.

   (4)The psychiatrist and GP to provide reports to the Court no later than 14 days prior to the adjourned dated.

   (5)…

   (6)The parties be restrained and injunctions be granted restraining each of them from:-

   (a)      using illicit drugs;

   (b)using  prescription medication in any manner other than as prescribed;

   (c)consuming alcohol to excess for twelve hours prior to and during any time the children are in their care;

   (d)abusing, harassing, assaulting or intimidating the other;

   (e)denigrating the other parent in the hearing of or in the presence of the children; and

   (f)discussing these proceedings in the hearing of or in the presence of the children.

4. The matter was adjourned for mention and directions to 4 August 2014 and on that day transferred to the Family Court of Australia.

5. The mother alleges that on 12 August 2014 the father collected C from school being  a day that she was meant to return to the mother’s care.  The catalyst for the father’s actions appear to have been based upon a report by C of an incident that took place between the mother and Mr B.  Following the retention of the child by the father, the mother filed an Application in a Case and Affidavit in support on 14 August 2014.

6. The mother sought orders that the father deliver the child up to her care.

7. The father filed a Response to the Application in a Case on 27 August 2014 and sought orders that would see the order of 4 February 2014 suspended in so far as it relates to C spending time living with the mother.  The effect of the proposed order is that C would remain in the care of the father, but that all current orders in respect of L would continue.

8. In addition, the father sought the following orders:-

   (5)That the mother undergo a liver function test and provide such test results to the respondent father’s solicitor as soon as same becomes available;

   (6)That the applicant mother provide a report from a treating psychiatrist and her general practitioner with respect to her use and dependence upon prescription medication and without admission drug use and where applicable, dependent upon the applicant mother’s liver function test, her consumption of alcohol.

9. The matter was heard by me urgently on 29 August 2014 and orders were made summarised as follows:-

   (1)By consent the father be at liberty to request the mother to undergo a supervised random urine analysis test on at least one occasion each month upon the request of the father and within 24 hours of the request being made.

   (2)That the father deliver up the child C to the mother.

   (3)That without any admission of a relationship existing between the mother and Mr B, the mother is restrained and an injunction granted restraining her from allowing the children to come into contact with or be exposed to or be in the vicinity of Mr B and furthermore from allowing or permitting him to attend at her home during any period when the children are in her care.

   (4)That the parties and the children do attend upon Mr U, Family Consultant, for the purposes of the preparation of a family report pursuant to Section 62G (2) of the Act, with such report to be released by 24 October 2014.

10. On 30 September 2014, the mother filed an Application in a Case seeking that the proceedings be listed urgently and that all orders providing for the children to spend time with the father be suspended.  The catalyst for this Application arises in respect of an incident that allegedly took place on 29 September 2014 wherein the mother alleges that in the presence of the children she was assaulted by the father.  The incident was reported to the police and the father was arrested.

11. The father filed a Response on 15 October 2014 seeking orders that the children live with him but that they spend time with the mother from Friday morning to Monday nights at 6pm on each alternate week.

12. The interim proceedings were heard by me on 29 October 2014 and then finally on 7 November 2014.

BACKGROUND

1. The Application in a Case filed 30 September 2014 is supported by an Affidavit filed on the same date.  The mother alleges that on Monday 29 September 2014, she was speaking to an acquaintance that she had just met that day.  They were standing at the corner of X Road and Z Drive, Suburb M.  The father apparently saw the mother standing in the street and stopped his vehicle yelling at her and her acquaintance.  The language, if accurately reported, was offensive and the circumstances were made more serious by the children being passengers in the father’s car.  The mother alleges that the terms of her intervention order do not allow the father to approach her.  She commenced to photograph him and she reports that he ran towards her and allegedly ripped her shirt and bra strap.  The mother believes that the father had been following her.

2. After the incident the mother received a telephone call from the police at H Police Station informing her that the father had attended the Police Station and admitted he had breached the intervention order by assaulting the mother.

3. The father was initially denied bail and spent sometime in custody.

4. The father, by affidavit filed 15 October 2014, puts a different gloss on the circumstances of the incident.  He alleges that his meeting with the mother was by chance only and that there was no suggestion that he had been following her.  He says that the mother approached the children in the vehicle in order to kiss them and he left when he saw the mother taking photographs.  It was the mother approaching the father that caused him to attend the police station and make a complaint that she had breached the intervention order.  It was whilst he was at the police station that apparently upon the mother’s complaint, the father was arrested.

5. Unrelated to the incident, the mother annexes correspondence from her solicitor to Dr Y, an addiction specialist.

6. At the hearing on 29 August 2014, it was apparent that the mother anticipated the father would continue to assert that she has an addiction to alcohol, illicit substances and prescription medication.  As noted, the order of 29 August 2014 provides for the mother to submit to random drug testing at the election of the father.  The mother’s involvement with Dr Y is additional and was not specifically requested by him but rather, undertaken by the mother in an attempt to demonstrate that she is not a risk to the children by reason of her alleged alcohol and drug use.

7. By Amended Response filed 28 August 2014 the father seeks orders that would require the mother to provide a report from her treating psychiatrist and her general practitioner in respect of matters relating to her use and dependence on prescription medication and undergo a liver function test in order to assess alcohol consumption. 

8. He also seeks that paragraph 2 of the order of 4 February 2014 should be suspended and until further order the children would spend time with the mother each alternate weekend from Friday morning to Monday at 6pm.

9. The focus of the submissions moved away from the mother’s allegation that she was assaulted by the father and a determination of whether there should be a change to the consent orders centred on whether the Court should be satisfied that the mother had satisfactorily addressed issues of drug and alcohol abuse and “psychiatric” counselling as foreshadowed in the notations to the consent order.

10. Without any admission of liability, the mother argues that the children are not at risk in her care and that in any event she has taken all reasonable steps to satisfy the father that she poses no risk to them.

11. The father argues that the mother’s efforts have been wholly inadequate.

FAMILY REPORT

1. Mr U, family consultant, published a family report on 8 October 2014.  The mother was frank with the family consultant that she has had long-term issues with prescription medication and alcohol.  She had a history of anti-depressant medication and from 2012 to September 2013 consumed Valium on a regular basis.

2. Since January 2014 the mother has consulted Ms P, psychologist, under a mental health care plan and she reports that she has ceased the use of Valium and other prescription medication and underwent several random urine drug tests with no illicit drugs detected. Whilst the results of a liver function test were not known at the time of the history given by the mother to the family consultant, it is now known that the tests suggest the mother has moderated her use of alcohol.

3. There would appear to be no doubt that the mother does not have an admirable history in respect of the abuse of prescription medication and in November 2013 took an overdose of the drug GHB.

4. During this period it also seems that she formed some form of relationship with Mr B who is a person that is demonstrably aggressive and prone to acts of violence.  The mother does not disagree with the father’s contention that Mr B poses a risk to the children.

5. In August 2014, the mother reports an incident of Mr B coming to her house intoxicated and ultimately he attempted to choke the mother in circumstances where the child C may have been a witness.

6. The mother believes that the choking incident incited C to make false statements to the school which were then reported to the father.

7. In interview, the father impressed the family consultant as being “child focussed and acutely concerned for the welfare of the subject children”.  The father admitted that there may well have been a basis for the second restraining order against him, but that the mother was also involved in aggressive conduct.

8. He asserts he did not have a drug problem and notwithstanding the separation of the parties and the consent order, the parties were again intimate from April to May 2014.

9. The father’s concerns are summarised as follows:-

   ·Mother’s prescription drug abuse;

   ·Drinking alcohol to excess;

   ·Associating with criminal types; and

   ·A propensity to blame C for L’s crying.

10. The family consultant interviewed C alone.  The child L was not interviewed.  C commented that whilst the week about arrangement worked tolerably well, she did prefer living with the father.  It seems that the child reacted strongly to observing the mother being intoxicated and the effects on her behaviour.  According to the child, it was apparently a regular occurrence and the mother was often sick from alcohol related activity.

11. At paragraph 69 of the report, the child reports the following incident:-

    On returning to the mother’s care, [C] reported that her mother kicked her in the right thigh, showing the report writer the bruise resultant from that blow.  She alleged the mother frequently strikes her on the arms and the legs.  Other bruising was noticed on [C’s] arms; however she denied these were caused by the mother.

12. Not surprisingly, C wished to reside with her father and for her mother to stop drinking.

13. The recommendations of the family consultant were that the children reside primarily with the father but have substantial and significant time with the mother.  The father seeks orders that mirror the recommendations.

14. It was further recommended that the mother submit to a psychiatric assessment and undergo drug and alcohol counselling and that upon a favourable psychiatric assessment and engagement, consideration could then be given to her mother again having week about time with the children.

15. Obviously Mr B is to be excluded from the lives of the children.  This issue was resolved by the mother consenting to an injunction to that effect.  There is no suggestion by the father that the mother has breached that injunction.

16. Accordingly, the focus of the proceedings is whether there is sufficient uncontroversial evidence before the Court of the mother’s rehabilitation and attention to the areas of concern expressed by the father and comprising the recommendations of the family consultant.

SUBMISSIONS

1. Counsel for the father urged that the Court view the mother’s purported rehabilitation with caution. It was highlighted that the mother had not undertaken psychiatric assessment and the drug testing as carried out by Dr Y was not comprehensive.  Whilst not the subject of direct allegation, it was also submitted that the Court should bring to account the history of the mother’s involvement with Mr B in circumstances where he was clearly a highly undesirable influence on the children.

2. Counsel for the mother highlights that the reference in the consent order to the mother undergoing psychiatric evaluation was clearly an error and was always intended to be the psychological counselling that she was undergoing from Ms P.  The fact that the notation to the order suggested the process had already started could only have meaning if it related to the mother’s engagement with Ms P and obviously not a psychiatrist.

3. Emphasis was placed on the report of Dr Y of 10 September 2014 in terms of the reasonable interpretation that arises from a consideration of the CDT or liver test undertaken by the mother.  The short summary is that Dr Y did not consider that the liver test provided any evidence of a change in functioning of the mother’s liver consistent with heavy alcohol use.

4. Various urine drug tests showed no other substance other than a small prescribed dose of diazepam which had been properly prescribed.

5. In addition, counsel highlighted the mother’s apparent compliance with the injunction of 29 August 2014 in respect of Mr B and that if the father was concerned about her drug usage, he had the advantage at his election of requiring her to undertake a random drug test.

6. Counsel also placed weight on notes subpoenaed from SA Police relating to a handover of the children on 7 September 2014.

7. The notes refer to the conduct of each of the parties at the H Police Station.  In particular, the father came to the counter with C and reported that the child was accusing the mother of hitting and bruising her.  The police officer then questioned the child who at first alleged that the bruise on her right thigh arose from the mother hitting her about three weeks prior to 7 September 2014.  It appears that the police officer challenged the child on the basis that in his opinion the bruise would not be present three weeks after it had been caused and if the child did have a bruise it may well have happened in the week that she was with her father.  When asked how she actually sustained the bruise, the police officer records that the child admitted she had banged her leg on a desk/table at the offices of the family consultant and when asked whether her mum had any part in the bruise she indicated that she did not.  Accordingly, the police officer formed the view (according to his notes) that the report of the child was a false allegation.

8. There was a further conversation between the police officer and the father who expressed concern at the method and manner in which the police officer had apparently questioned C.  The police officer records that in answer to his assertion that the bruise would have been unlikely to have been caused two weeks prior to the present date, the father reported that “her mum pinched her yesterday”.

1. The importance as far as the mother is concerned is obvious.  A reading of the report of the family consultant demonstrates that he was very properly concerned about the allegations C had made of her mother hitting her.  If the information given by C to the police officer is correct, then that allegation is unfounded.

2. Counsel for the Independent Children’s Lawyer (“ICL”) took a different approach.  He submitted that there should not be a change to the current orders, but not because the mother had established a comprehensive resolution to her drug and alcohol difficulties but rather, because each of the parties would appear not to recognise the extent to which their damaging behaviour impacts upon the children.  As far as the mother is concerned, she could have done more to obtain a psychiatric report and to actively seek drug and alcohol counselling rather than simply rely on drug and alcohol testing in an attempt to establish the extent of the mother’s restraint.

3. In particular, counsel for the ICL was scathing of the mother’s inappropriate conduct in having the child interviewed by the police officer. In summary, he argues that it is now difficult to get to the bottom of what may have actually happened rather than there now being a conclusive determination that C had invented the allegation of the mother hitting her.

RELEVANT PRINCIPLES

1. In interim proceedings involving parenting issues I have regard to what has been described as “the legislative pathway” in Goode & Goode (2006) FLC 93-286. Because of the truncated nature of the proceedings, reasons may be short and obviously the Court has not had the opportunity to hear the parties on their oath. I have regard generally to the following matters:-

   A.The competing proposals of the parties;

   B.The identification of the issues in dispute;

   C.The identification of any agreed or uncontroversial facts;

   D.The matters that are relevant in Section 60CC but in particular taking into account the primary considerations and then the additional considerations;

   E.There are no issues in respect of the presumption in Section 61DA that it is in the best interests of the children for the parties to have equal shared parental responsibility and given that this is agreed between the parties and the clear consideration for the Court is whether the existing consent order should remain namely, that the children spend equal time with each of the parties.

2. I am also mindful of the tension between s60CC (2) (a) and s60CC (2) (b).

CONCLUSION

1. Whatever went before the orders of 4 February 2014, the parties brought those considerations to account in the consent order.  It is a reasonable inference that subject to the mother properly addressing her use of prescription and (without admission) illicit drugs, an order that would see the children spending equal time in the care of each of the parties would be in their best interests.

2. It appears that there has been a mistake in the original notation and that the mother had attended the first of six scheduled appointments with Ms P, a psychologist, rather than a psychiatrist.  Notwithstanding that, and taking into account the proper concerns of the ICL, I consider the mother has been diligent in exploring her abuse of alcohol and prescription drugs with a view to gaining appropriate insight and control.

3. In addition, it is difficult to see that the mother could have done more than voluntarily consent to an order that would enable the father to require her to undergo random drug testing at his election.  Moreover, there is some importance in the mother’s attendance upon Dr Y in circumstances where at least at this early stage in the mother’s rehabilitation, the results of the liver function test would appear to be optimistic and positive.

4. Whilst the Court may well share the father’s misgivings in respect of Mr B, nonetheless there is no allegation that the mother has breached the injunction and in that regard it is difficult to see that the mother could have done more than comply with the consent order promoted by her.

5. It is also reasonable to find that C’s reluctance to spending equal time with her mother is to a very large degree influenced by the mother’s behaviour when intoxicated.  The child’s observations as accurately reported by the family consultant presumably would not be the child’s experience now.

6. Accordingly, I do not propose to suspend or vary the order of 4 August 2014 and will continue the injunction restraining the mother from allowing Mr B to come into contact with the children.

7. It is noted that the father’s ability to request the mother to undergo urine analysis drug testing as ordered by paragraph 1 of orders 29 August 2014 is until further order.

8. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 November 2014.

Associate: 

Date:  12 November 2014