Morelli and Morelli

[2015] FamCA 1231

FAMILY COURT OF AUSTRALIA

MORELLI & MORELLI [2015] FamCA 1231

FAMILY LAW – CHILDREN – Application by the wife that she be permitted to drive the children in circumstances where there has been concerns raised as to her consumption of alcohol – agreement by the parties that the wife’s motor vehicle be fitted with an interlock device – question as to who will bear the costs of the device – where both parties submit that they cannot afford the cost of the device – interim orders made that the wife bear the costs of the interlock device at first instance

Family Law Act 1975 (Cth)

APPLICANT: Ms Morelli

RESPONDENT: Mr Morelli

FILE NUMBER: MLC 6513 of 2015

DATE DELIVERED: 6 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 6 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Westminster Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Stoikovska

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers

Orders

1. That subject to the fitting of an Interlock alcohol test unit to her motor vehicle, the costs of such unit to be borne by the wife at first instance and the question of the husband’s contribution thereto be reserved to the adjourned hearing, until further order the wife be permitted to transport the child of the marriage in her motor vehicle.

2. That until further order the wife be restrained from consuming alcohol for a period of 12 hours prior to driving her motor vehicle.

3. That all extant interim applications be adjourned to the Judicial Duty List at 10.00am on 1 December 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morelli & Morelli 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 MELBOURNE

FILE NUMBER: MLC 6513 of 2015

Ms Morelli

Applicant

And

Mr Morelli

Respondent

REASONS FOR JUDGMENT

1. In the matter of Morelli, the issue before me relates to arrangements with respect to the care of the parties’ children, B, who is aged 14, and C, who is aged seven.  The parties have previously been before the Court and orders were made on 5 August 2015 regarding the preparation of a family report.  Unfortunately for the parties, that family report is not yet available and, as a consequence, this matter will be adjourned to a further Judicial Duty List hearing when that report is likely to be available. 

2. One of the issues between the parties relates to whether or not the wife should be permitted to drive the children in her motor vehicle.  The background to that dispute relates to an incident which occurred on 1 September 2015 when the wife attended to collect the parties’ youngest child, C, from school.  That afternoon, the wife had consumed some champagne at lunch, had driven her motor vehicle and had parked it in the school precinct.  It was submitted that the wife was suffering a headache and, as a result, took medication, being Valium.  She fell asleep in her motor vehicle and was asleep at the time school concluded. 

3. As a consequence, C attended aftercare and the school contacted the husband to ascertain who was collecting the child from school.  The wife subsequently woke and attended to collect C from school.  There is a conflict between the parties as to how the wife presented on that afternoon when she collected C from school.  In the aftermath of those events, the matter was reported to the Department of Health and Human Services (“the Department”). 

4. Since the involvement of the Department and as a result of recommendations of the Department, the husband has been responsible for transporting the children to and from school and other commitments.  The wife now seeks that she have the opportunity to transport the children in her motor vehicle.  She submits that she has abided by the recommendations of Ms D, the family report writer, insofar as she has attended for alcohol assessment at E Hospital, she has submitted for blood testing, which indicates that she is not currently using alcohol, and she has attended for further counselling in relation to her alcohol usage. 

5. Reports from E Hospital and Dr F are annexed to the wife’s affidavit filed 1 October 2015.  It is evident from the material annexed to the wife’s affidavit that she concedes that, certainly, in the period 2011 to 2015, she has had issues around her use of alcohol and, indeed, it is observed and reported in the report of Dr F dated 22 September 2015 that, at its worst, the wife concedes she was consuming up to one 750 ml bottle of wine on weekdays, with more consumed on weekend days.  In 2014, the wife was charged and convicted of a drink-driving offence, where she was reported to have a reading of .06. 

6. It is likely that the Court will be provided with more fulsome information as to the wife’s current position with respect to alcohol usage upon receipt of the family report of Ms D.  The question remains as to what arrangements should be put in place with respect to transporting the children during the intervening period.  During discussions with counsel, I raised with them the question of whether or not an alcohol testing device, commonly known as an interlock system, could be fitted to the wife’s vehicle to enable her to transport the vehicle at times when the husband would ordinarily be engaged in work. 

7. The matter was stood down to enable the parties to undertake those discussions.  It is common ground between the parties that it would be appropriate for such a device to be fitted to the wife’s vehicle.  The issue remaining was the question of how that device could be funded.  I was told that it will cost $200 to fit the device and a monthly fee of approximately $120 per month for the device to remain fitted.  Submissions were made on behalf of each of the parties that neither could afford the costs associated with the device.  I note that to provide the use of such a device until the adjourned interim hearing is likely to be a cost of some $450.

8. The wife works on a part-time basis.  She has the benefit of spousal support paid to her by the husband in the sum of $1000 per week, pursuant to orders made at the previous Court event.  The husband continues to conduct the parties’ family business.  A consideration of the financial statements filed on behalf of each of the parties would suggest that neither has the capacity to fund the installation of the device.  At the end of the day, I am not in a position to make any findings as to the state of the parties’ financial affairs at this time.  The orders that I propose to make will place the obligation for the fitting of the device upon the wife at first instance. 

9. The question of whether or not the husband should contribute to the costs of the device is a matter that can be considered when more information is before the Court as to the parties’ financial circumstances.  At the end of the day, it may be necessary for the wife to borrow funds to enable the fitting of the device in the short term.  Both parties are represented.  They have expended significant funds in respect of the proceedings today.  The orders that I make will, at worst, require the wife to find an additional $500 to enable the fitting of the device to ensure that she is in a position to drive the children to their school and other activities. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 October 2015.

Associate: 

Date:  6 October 2015