MULDER & LEVERSON

[2013] FamCA 155

FAMILY COURT OF AUSTRALIA

MULDER & LEVERSON	[2013] FamCA 155
FAMILY LAW – CHILDREN – With whom the children live – Where Mother seeks for the children to live with her – where Father seeks that the children live with him – Where the children have lived primarily with the Mother as the Father is employed on a week on, week off basis – Where there has been family violence – Where both the Mother and Father have had a DVO brought against them in respect of the other parent – Where the Mother is a chronic drinker – Where the Mother’s drinking has caused detriment to the children’s welfare – s 60CC Family Law Act 1975 (Cth) – Best interests of the children – Where there is a risk of psychological harm and neglect while the children are in the Mother’s care – Interim order made that children live with the Father – Mother to have contact with the children pending her treatment and counselling for her drug and alcohol abuse – Shared parental responsibility between the Mother and Father to be contingent upon the Mother successfully undertaking treatment for her drug and alcohol abuse – Children to live with Mother and Father on week about basis once Mother has successfully undertaken treatment for her drug and alcohol abuse.
APPLICANT:		Mr Mulder

RESPONDENT: Ms Leverson

INDEPENDENT CHILDREN’S LAWYER: Mr Peter Bevan, Solicitor

FILE NUMBER: TVC 1358 of 2011

DATE DELIVERED: 1 March 2013

PLACE DELIVERED: Mackay

PLACE HEARD: Mackay

JUDGMENT OF: Bell J

HEARING DATE: 28 February 2013 to 1 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mayes of Counsel appearing for the Applicant Father

SOLICITOR FOR THE APPLICANT: Macrossan & Amiet, Solicitors

COUNSEL FOR THE RESPONDENT: Mr McLennan of Counsel appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Keegan of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bevan & Griffin, Solicitors

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

1. That the children, S born … February 2006 and G born … July 2007, live with the Father.

2. That pending the Mother receiving appropriate treatment and counselling for her drug and alcohol abuse, within six (6) months:

   a.that the Mother spend time with the children, subject to the requirements of the service provider for the drug and alcohol treatment, as follows:

   i.each alternate weekend from after school Friday to start of school Monday when the Father is at work;

   ii.for one half of each school holiday period with the Father’s time being when he is not at work and the Mother’s time being the balance;

   iii.that the Mother have telephone time with the children, at all reasonable times, otherwise each alternate day between 6.00 pm and 6.30 pm;

   iv.on G’s birthday being … July 2013, for four (4) hours if he is not in her care;

   v.on Mother’s Day from 9.00 am to 5.00 pm if the children are not in her care on that day;

   vi.on the Mother’s birthday being the … May of each year from 9.00 am to 5.00 pm in the event it is not a school day or for two (2) hours in the event it is a school day from 5.30 pm to 7.30 pm;

b.notwithstanding Order (2)(a) hereof, the Father shall have the children as follows:

i.on Father’s Day from 9.00 am to 5.00 pm; and

ii.on the Father’s birthday being … August 2013, for three  (3) hours from 3.30 pm to 6.30 pm.

1. That at the end of the six (6) month period nominated in Order (2) hereof, or sooner, that the Independent Children’s Lawyer is to request a report from the treating practitioner and/or service provider and such report be forwarded to the Honourable Justice Bell.

2. That neither parent will consume illicit substances (defined as any drug referred to in the schedules of the Drugs Misuse Act 1986 or a prescription drug not prescribed to that person) at all, or consume alcohol to excess within twenty-four (24) hours of the children coming into or being in their care.

3. That neither parent will allow the children to come into contact with any person who engages in illicit substance abuse or takes alcohol excessively whilst the children are in their care.

4. That both parents will protect the children from exposure to family conflict, domestic violence or adult issues.

5. That neither parent will denigrate the other or their extended families or allow other persons to do so whilst the children are in their care.

FOLLOWING THE MOTHER RECEIVING TREATMENT AND COUNSELLING FOR HER DRUG AND ALCOHOL ABUSE

1. That the Father and the Mother have equal shared parental responsibility in relation to major long term issues including:

   a.education;

   b.health;

   c.religion;

   d.the names by which the children are ordinarily known; and

   e.any changes to the children’s living arrangements which make it significantly more difficult for the children to spend time with either parent.

2. That the Father and the Mother are to consult with one another about decisions to be made in the exercise of their equal shared parental responsibility in relation to the children as follows:

   a.they shall inform the other parent about the decision to be made;

   b.they shall consult with each other on terms that they agree; and

   c.they shall make a genuine effort to come to a joint decision.

3. That the children live with the Father and Mother on a week about basis corresponding with the Father’s work roster.

4. Where the children are with the other parent on Father’s Day, the children shall spend time with the Father from 9:00 am to 5:00 pm.

5. Where the children are with the other parent on Mother’s Day, the children shall spend time with the Mother from 9:00 am to 5:00 pm.

6. Where the children’s birthdays fall on a school day and the children are with the other parent, then the children shall spend time from 3:30 pm to 6:30 pm with the parent with whom the children are not living.  If the birthday is a non-school day for two (2) hours.

7. That school holidays be shared equally between the parties on the basis that the week about arrangement remains, but that if either parent wishes to take the children on a holiday for a period of up to two (2) weeks they may do so upon giving the other parent thirty (30) days notice, and that the other parent shall have make-up time, but that such holiday time not take place for the first two (2) weeks of the Christmas holiday period in successive years.

8. During Christmas with the Father to exercise such contact from 2.00 pm Christmas Eve to 2.00 pm Christmas Day in every even numbered year and from 2.00 pm Christmas Day to 2.00 pm Boxing Day in every odd numbered year.

9. That neither parent will consume illicit substances or take alcohol excessively whist the children are in their care.

10. That neither parent will allow the children to come into contact with any person who engages in illicit substance abuse or takes alcohol excessively whilst the children are in their care.

11. That both parents will protect the children from exposure to family conflict, domestic violence or adult issues.

12. That neither parent will denigrate the other or their extended families in the presence of the children, and immediately remove them from the presence of any other person denigrating the other parent or their extended family whilst the children are in their care.

13. That a Family Consultant be appointed pursuant to s 65L of the Family Law Act1975 to assist the Mother and provide her with guidance in receiving appropriate treatment and counselling for drug and alcohol abuse and how this impacts on her ability to parent the children.

14. That both parents enrol, participate in and complete the post-separation parenting program administered by Relationships Australia within six (6) months.  That following completion of the course, each parent provide to the other as well as the Independent Children’s Lawyer, with confirmation of satisfactory completion of the program.

15. That the children are to continue counselling as recommended by the Department of Communities, Child Safety and Disability Services.

16. That the children are to remain enrolled in F School unless both parents agree to a change of school.

17. The Mother hereby authorises the Independent Children’s Lawyer and the Family Consultant to obtain such information and/or reports from time to time from the service provider referred to in Order (2) hereof, and upon making the arrangements to undertake the appropriate treatment, she shall advise the Independent Children’s Lawyer of the name, address and telephone number of the service provider.

18. The Independent Children’s Lawyer shall not be discharged pending a further Order of this Honourable Court.

IT IS FURTHER ORDERED THAT:

1. That otherwise each party, with fourteen (14) days notice, is at liberty to apply to the Court for further Orders.

2. The proceedings be adjourned to a date to be fixed.

3. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mulder & Leverson 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 MACKAY

FILE NUMBER: TVC 1358 of 2011

Mr Mulder

Applicant

And

Ms Leverson

Respondent

REASONS FOR JUDGMENT

1. In this matter the Court’s jurisdiction was excited initially by an application initiating proceedings by the father filed on 20 December 2011.  It related to parenting orders sought in relation to two children of his relationship with the respondent Ms Leverson, they being S born in February 2006 and G born in  July 2007.  In that initiating application the father sought orders in relation to the residence of the children.  Such initiating application was amended by application on 16 January 2013 and I understand that that is the matter that is before me today. 

2. The respondent has filed a response on 21 January 2013.  In it she seeks orders that the children reside with her whereas, on the contrary, as I have said, the father sought orders the children reside with him.

3. I have to consider various matters in relation to the cohabitation between the parties.  I make it quite clear that, as the facts have fallen here, there really is little dispute between the parties, perhaps only insofar as the gravity of the matters are concerned, but it is quite clear, and I find, that the parties commenced cohabitation about 2002 – the father is 33 years of age, having been born in 1979.  He is a tradesman by occupation and has been in continuous employment and earns something like $100,000-odd per year, as appears from his affidavit.

4. As I said, they commenced cohabitation in 2002.  The two children were born of such relationship.  This relationship was a relationship that was definitely not born in heaven.  It consisted of extremes of violence, I would say on both sides.  I have already indicated, perhaps in an unnecessary blast from the bench, that I was appalled by the conduct of the father who is a big man and who looks particularly powerful, who concedes, and has readily conceded, that his attitude towards the mother was reprehensible.  He has on at least two occasions severely “belted her”, and I use that word advisedly, and has, insofar as I am concerned, been guilty of serious acts of domestic violence.  There has been a domestic violence order placed upon him.  Equally, there has been one on the mother.  Now, I am not going to say that either of these people are on the side of the angels.  They are not.  They have both exhibited what I consider to be reprehensible conduct towards each other.  I have mentioned the father.

5. I now mention the mother.  I am quite satisfied that the mother is affected almost continuously by alcohol.  I have been very disappointed in her.  She is a person who gives me the impression of having a quick and ready wit.  She is a person who has had a good education to grade 12 and has done, I think, a couple of years in further study.  She has allowed an insidious drug to take control of her.

6. I have been unable to find, as quite properly pointed out by her counsel McLennan that, in fact, she is an alcoholic because it is a term of some expertise and no evidence is before me to find that, but I am more than satisfied to say she is a chronic drinker.  She is unable to control her urges towards drink.  She has mentioned already – in early 2011 – that she has a craving for alcohol and that is tragic.  That is absolutely tragic, not only for her, as I have already said, but for the kiddies in particular. 

7. She has had the kiddies in her possession all their life.  The father, as a tradesman, works with L Pty Ltd and is a seven days on/seven days off employee.  He has indicated to me, and I have heard him, that in fact, as part of this organisation, has a zero tolerance towards both alcohol and drugs, and he has satisfactorily passed every test.  The Father said that they get tested for alcohol every day.  On one occasion he had a slight reading because of perhaps a hangover from the night before, but nothing of substance which would cause him to be reported to have an adverse finding against him made by L Pty Ltd.  He is still in employment as I have said.

8. The mother, on the other hand, is a disaster.  She has had at least three drink-driving convictions.  The last one necessitated her being disqualified from holding a licence for four years.  She has been sentenced to three months suspended sentence for alcohol problems.  She has been found guilty of abandoning – and I use that word – abandoning her children when she was drunk, and this was the incident that took place where she drove some 30 kilometres from her house in which she was residing at the time – this was after the final separation which took place in 2010 – she drove to the house in which the father was residing and carried on in a dreadful fashion, breaking windows, assaulting the father, and at this stage no one knew where the children were. 

9. The evidence before me is quite clear that she had left the children in the house, that the children somehow or other – S, having said that in fact she had to carry G – walk from the house in the middle of the night, in darkness, to a friend’s house, one Ms D, where, according to what Ms D said, the children were hysterical, not knowing where mother was and Ms D put them to bed in her house.  The police eventually found them there.  The father was distraught, obviously so, because upon attending to the mother’s house the children were not there.  Eventually they found them. 

10. That is only one, and I am just going to accept precis all the evidence which has been put before me by Ms A, an officer of the Department of Communities, Child Safety and Disability Services and her affidavit filed 21 February 2013, a lady who impressed me tremendously as being a young girl who was really right on the ball and knew what was going on – most impressive.  She has set out in her affidavit, notwithstanding a minor objection by Mr McLennan – I think quite properly taken – material from people other than herself.  She does not have direct notice of them, but she, as being the case officer in charge, is entitled to use those documents, and I am also mindful of the exquisite provisions of division 12 of our Act.

11. I say this.  We are faced, which happens all too frequently in this Court, with the least detrimental alternative:  (1) are we going to leave the children with the mother who is a person who confesses to the excessive consumption of alcoholic liquors which, on the evidence, affects her parenting something dreadfully.  On one occasion she, in effect, abandoned the children.  She was charged with a criminal offence.  On another occasion, with G in the car, she had a prang.  She rolled the car, wrote it off, and she was charged, as a result of that incident with drink driving.  I am not quite sure whether that was .11 or 0.83, back in 2010.  I am sorry if I use emotive words:  she is a disaster.  She is not a disaster happening;  she has happened, and she really does not deserve, in her circumstances, to have the children. 

12. I fear for the children.  She indicates that she has, with the assistance of various state departments, modified her drinking.  Notwithstanding that, only one month ago or a little bit more, six weeks ago, on 6 January 2013, she was conveyed to a hospital by her then partner, Mr B suffering from a five centimetre gash to her head, and this appears as exhibit KO7, of Ms A’s affidavit, and was found to have an alcohol reading of .129 per cent.  That in itself is an enormous amount.  She says that the children were being adequately looked after.  One would have thought, since it is quite clear in this case that everybody is concerned about the welfare of the children, she would have at least put before the Court the person who was looking after the children that night.  I think she said he was some Mr C.  No evidence from him.  We do not know where the children were that night. 

13. There are other occasions where they do not know where the children were.  The one where the father complained to the local police where the Mother was at a local pub, and the children were not there, and she was heavily intoxicated, and on that occasion, had a fight with Ms E, who is the father’s present partner.

14. Now we will get on to the father.  As I have already said, he has acted in a bullying and cowardly fashion.  He is a very big man.  He may say that he was pushed to the limits by the mother’s drunkenness - that may be the case - but no man is entitled to belt up a woman.  His verbal attacks upon her, as set out in the family consultant Ms F’s report dated 9 May 2012, used obscene, vulgar language in relation to her.  That does not make him, in my eyes, a good man.  That does not make him initially, in my eyes, a person who is properly able to look after children, particularly of the ages of these two, very young, very sensitive, very bright, S is.

15. What has happened, though?  It appears to me, and I must say I feel I can accept the Father’s evidence, that he underwent an anger management course, and he quite readily conceded that in this anger management course, for the first five out of six lectures or whatever they are called, sessions, he was not receiving much support, but somehow or other the light dawned in the sixth and he has recognised the error of his ways, and I do not mean that facetiously.  He has quite readily said that he has been bad, he should not have carried on the way he has, and now has given up liquor, has not drunk since New Year’s Day or thereabouts.  He is supported in that contention by his present partner Ms E, and to a lesser extent by his mother who is also here.

16. The Father’s supporters – I was quite surprised with Ms E indicating that Mr Mulder was a calm man.  He gave me an impression that he was not particularly calm, however she knows more about it than I do, and she has indicated that he has on occasions, exhibited pretty bad signs when he has been drinking – on at least two occasions she has seen him drunk and I do not think that appears to be a pretty sight – but nevertheless she says now he does not drink, that he gets on with the children.  Yes, he yells at the children.  He denied that.  I must confess I was somewhat surprised.  I am surprised that no father has not yelled at his children at some time or other.  I had children, and I have to confess I had yelled at them.  But she told me, which I was quite impressed about, that immediately afterwards he cuddles them, and he recognises by this act that they are young children who can quite easily be badly emotionally affected.

1. Ms E is the mother of three children.  She has only one living with her, the middle one, who attends a high school at the same school at which the younger kids go to school.  If the children come to live with her and Mr Mulder, with whom she is residing at present, this girl, who is 13, if I remember correctly, will escort them to school and back again or, if that is not convenient, there is some problem perhaps with the school bus, the children will be taken by either she, the father or Ms Mulder Senior. 

2. I was impressed with Ms E.  She is a girl who was brought up in Sydney, came to the mid-north some twelve and a half years ago, and has resided here since.  She works part-time as a barmaid in local hotels and is more than adequately able to assist the father in looking after the children, should he be unable to do so.  I have no hesitation in saying I think he can.

3. Ms Mulder Senior, she has three boys – I think there might be a girl somewhere – but three boys and she does move around with them.  One is in Western Australia and one is in the Queensland area, and she indicates that she will be available to assist.  She quite impressed me as being a sensible mother. 

4. One of the things which caused the mother to stop contact between the father and the children – it was last year or the year before – was an alleged brawl between him and his brother.  I have had the opportunity of reading the police report in that, and it is quite clear that the aggrieved in the report, who was the Father’s brother, was basically at fault.  He was the one who had consumed excessive amounts of alcoholic liquor.  The police made it quite clear that Mr Mulder himself was not intoxicated.  I understand at that stage the mother even supported her son Mr H.

5. What are we left with?  We are left with, as I have said, the least detrimental alternative.  I have to consider the provisions of s 60CC, as I am directed to do so.  As far as I am concerned, I am more than satisfied that I am entitled to look at some sections of s 60CC other than the mandatory ones and decide on that.  I am particularly impressed with s 60CC(2)(b) which reads:

   the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. We have family violence here and I am mindful for the further provision of s 60CC(3)(k), which requires me to take into consideration certain matters if, in fact, there is a family violence order.  It exists.  There are two.  One is against the father and one is against the mother.

7. What are my concerns about the physical or psychological harm?  Physical harm does not appear to me to be a problem in this case.  I do not believe that the children are at any risk of physical harm.  Psychological harm, neglect, I am particularly worried about, neglect insofar as the mother is concerned.  There is more than sufficient evidence in Ms A’s report, there is more than sufficient evidence in the Magellan statement, there is more than sufficient evidence in Ms F’s report that she runs a dirty ship;  she does not run a clean ship.  The children are grubby.  The children are dirty.  Ms I indicated that on one visit to the premises the children’s hair was dirty and spiky and she recommended that, in fact, the children have a bath.  This was on one occasion, of course, when she did say that the house looked reasonably tidy.

8. There have been photographs put forward by Mr Mulder which shows the house that they formerly lived in, J Street, was in a deplorable condition.  Ms Leverson denies that she was responsible for that.  I do not accept that because of the corroborative evidence on other occasions. 

9. I also take into consideration the provisions of s 60CC(3)(c), the extent to which each of the child’s parents has taken, or failed to take, the opportunity to spend time and communicate, and has fulfilled, or failed to fulfil, the parent’s obligations.  Both of them have for a period failed, but I must say the failure on the part of the mother, with respect to her, has been much worse than the father’s.  The father has been a bully and a coward.  He has been.  I think he has woken up to himself.  I am sure he is going to turn out to be a very fine father. 

10. The mother has got to wake up to herself.  She believes that by cutting down the amount of liquor that she takes, for instance, on one occasion she said, “I don’t start at 9.00 am any more.  I start at 12 noon.  That’s an improvement” - that’s 9.00 am and 12 noon – “That’s an improvement.”  That is not an improvement.  She still is hooked, if I might use the word, on booze.  I do not see what benefit she can get out of it if she recognises that a direct result of this booze – as a direct result – she is going to lose possession of her children for a period.  That is full-time possession.  I just do not understand it.

11. Ms F, in her original report which was made in about the month of May last year, indicated that, notwithstanding all the worries she has about the mother, that the children should remain with her because she was best able to promote – as one of the matters that I have to find under s 60CC – the relationship between the father and the children.  That may be the case, and I would not be surprised if it is still the case because the father is very bitter towards the mother about her boozing. 

12. But that is not the only thing that I have to consider.  I have to consider overall the welfare of the children, what is in their best interests, and I am more than satisfied that their best interests are not advanced by their being in the possession of a person who on at least one occasion abandons them, and on another occasion rolls a car whilst drunk when G was in the car.  Fortunately, he was not injured.  I was worried about putting them into the possession of a bully and a coward, a brutal man, but I am now satisfied that he has changed and he will do his very best for the children.

13. I was, as I have said, quite impressed with the candour of the mother.  She readily concedes that she has a problem.  She readily concedes that something has got to be done about it, but she is not doing enough.  And it is absolutely essential that she receives some professional help.  I cannot order that she attend upon – I do not believe I can.  I can make it a condition of an order, but I cannot direct her to do so.  There are two areas open for her.  One is a private psychologist, as put forward by her counsel, or has been put forward by the independent children's lawyer, an in-house service run by Ozcare which would require her for a period of, up to three months to be in-house and to receive treatment. 

14. I would have thought that that was by far the best option.  It would be over comparatively speedily - notwithstanding I would like the idea of three months, it would be over comparatively speedily and would allow her to get back to having week and week-about contact with her children, particularly, of course, if she gets a favourable closure from that course.  If she does not, that is another matter altogether.

15. I understand that on instructions her counsel has pushed that I should not put any condition upon her attending that, but I am going to put a condition that she is going to have to show to the Court that she has, in fact, taken steps to control or to really get rid of her addiction to booze.

16. The present order is the order of the former Burr J of 20 January 2012, wherein at order (8) he orders that the children live with the mother, etcetera.  Insofar as the draft order put before me by the independent children's lawyer, I must say that I can see no difficulties with it. 

17. I have considered the requirement of MRR v GR (2010) 240 CLR 461 and am more than satisfied in the circumstances that the above Orders give reasonable and substantial contact and there is no difficulty in the contact being availed of.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 1 March 2013.

Associate: 

Date:  1 March 2013