ORCHARD & ORCHARD

[2017] FCCA 875

FEDERAL CIRCUIT COURT OF AUSTRALIA

ORCHARD & ORCHARD [2017] FCCA 875

Catchwords:
FAMILY LAW – Parenting – two children aged 10 & 4 – allegations of serious family violence – alcohol dependence – father addressing mental health issues.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Cases cited:

Goode & Goode[2006] FamCA 1346

Marvel & Marvel (No.2) [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13

Applicant: MS ORCHARD

Respondent: MR ORCHARD

File Number: NCC 3087 of 2016

Judgment of: Judge Middleton

Hearing date: 22 March 2017

Date of Last Submission: 22 March 2017

Delivered at: Newcastle

Delivered on: 3 April 2017

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Ms Driver, Merridy Elphick Lawyers

Counsel for the Respondent: N/A

Solicitors for the Respondent: Ms Urach, Burke & Mead Lawyers

ORDERS UNTIL FURTHER ORDER:

1. All previous parenting orders are discharged save for Order 2 of the Orders dated 20 December 2016.

2. The children Y born (omitted) 2006 and X born (omitted) 2012 (“the children”) live with the Mother.

3. The Mother have Sole Parental Responsibility for the children.

4. The children spend time with the Father as agreed between the parents and failing agreement, not less than:

   (a)In week one and each alternate week thereafter, each Tuesday from 3.30pm to 5.30pm and Saturday and Sunday from 9.00am to 4.30pm.

   (b)In week two and each alternate week thereafter on Tuesday and Thursday from 3.30pm to 5.30pm.

   (c)On Father’s Day between 9.00am and 4.00pm.

5. For the purpose of implementing these Orders the Mother shall deliver the children to and collect the children from the Paternal Grandfather at the front gate of the Paternal Grandfather’s farm at the commencement and conclusion of the time.

6. The Father is prohibited by injunction from being in the presence or hearing of the Mother at the time of changeover.

7. The Father is restrained by injunction from consuming alcohol during and within 12 hours prior to the children spending time with him.

8. The Father is to comply with all medication and treatments that may be prescribed by his General Practitioner and/or his Consulting Specialists or Counsellors and he must continue to consult with his General Practitioner bi-monthly or for some other period as directed by his General Practitioner regarding his mental health.

9. Both parents are restrained from discussing the proceedings or any issue in relation to the other parent in the presence or hearing of the children and they must use their best endeavours to ensure that no third party discusses these proceedings or any issue regarding the other parent in the presence or hearing of the children.

10. Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Senior Family Consultant, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

    (a)To consider the factors in S60CC & S65DAA of the Family Law Act1975.

    (b)To assess the parents (and other significant adults)

    (c)To assess the parents interactions (and those of other significant adults)

    (d)To assess the children’s developmental and emotional state.

    (e)To assess the relationship of the children to the parents (and other significant persons) and the wishes of the children.

    (f)To assess the proposed and actual home environments.

    (g)To assess the proposals of each party as to the children’s future.

11. The Court requests the said report be released by 6 October 2017.

12. Pursuant to Regulation 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.

13. If the Family Consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

14. The parties are to use their best endeavours to agree on a valuer for the purposes of valuing any property in dispute.

15. Within 7 days of the date of these orders the applicant shall provide to the respondent a list of 3 valuers together with their fees.

16. Within 7 days of receipt of the panel referred to herein, the respondent shall select one such valuer.

17. In the event the respondent does not select a valuer in accordance with these orders the applicant shall select one from the panel referred to herein.

18. Thereafter, the valuer shall be engaged by way of joint letter of instruction within 14 days of having been selected.

19. The matter is adjourned to 2.15pm on 24 July 2017 for directions hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3087 of 2016

MS ORCHARD

Applicant

And

MR ORCHARD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me by way of an initiating application filed on 15 November 2016 and a response filed on 16 December 2016.  The parties commenced a relationship in 2003, married on (omitted) 2005 and separated on 2 August 2016. 

2. The proceedings concern two children, Y born (omitted) 2016, currently aged 10, and X, born (omitted) 2012, currently aged 4.

3. Since separation the children have been spending time with their father supervised by the mother and another adult. On 23 November 2016, I made orders for the children’s time with the father to be supervised by Happenstance. 

4. The mother alleges serious family violence consisting of sexual abuse witnessed by the children, derogatory remarks in the presence of the children, and sexually assaulting the mother in the presence of the children.

5. It is alleged that the father took the mother to a shed, blocked the door with a rock and sexually assaulted her whilst the child Y was outside repeatedly asking if the mother was alright. The mother also alleges that the father has mental health issues, and that the father abuses alcohol.

6. The father denies those allegations. It is his case that there is no risk to the children in his care.

The issues

1. The issues are:

   (a)whether the children’s time with the father should continue to be supervised until final order;

   (b)whether the children’s time with the father should be extended to each alternate weekend from 3.00pm Friday until 4.00pm Sunday, and from 3.00pm Wednesday to commencement of school Thursday in Week 2;

   (c)whether in the alternative, if time is to be spent during the daytime only, the children’s time with the father should be in Week 1 from 3.30pm to 5.30pm Monday and Tuesday, and 9.00am to 5.00pm Saturday and Sunday, and Week 2, from 3.30pm to 5.30pm Wednesday and Thursday;

   (d)whether the presumption of equal shared parental responsibility has been rebutted. 

The law

1. Having regard to the objects and principles contained within section 60B of the Family Law Act, I must make orders that are in the best interests of the children.  The children’s best interests are my paramount consideration pursuant to section 60CA. 

2. In making decisions about the children’s best interests, I must have regards and give consideration to the matters contained with section 60CC(2) and (3), noting that section 60CC(2A) provides that the Court is to give greater weight to the considerations set out in section 60CC(2)(b). 

3. As is often the case the parties do not agree on significant issues.  Those issues, namely the alleged risks, relate directly to the decision I am asked to make on an interim basis. 

4. The father does agree that his alcohol use became problematic in 2016.  He says that since spending six days in (omitted) Psychiatric Hospital in July 2016 he has been abstaining from alcohol. 

5. The father admits to having a mental health issue, but says that the issue is as a result of being in a chronic unhappy marriage and due to the verbal abuse and criticism of the mother. This evidence can be seen in the memorandum dated 20 December 2016.

6. The family consultant notes that Y wants to spend more time with her father but not overnight time. It was difficult to understand X, according to the family consultant, as he spoke quietly and had some diction difficulties.

7. I must follow the legislative pathway pursuant to authorities such as Goode & Goode[1], Marvel & Marvel (No 2)[2], and SS & AH[3]. A guideline as to the pathway to follow is set out in paragraph 82 of Goode & Goode.[4]  I am following that pathway and will continue to do so. 

   [1] [2006] FamCA 1346.

   [2] [2010] FamCAFC 101.

   [3] [2010] FamCAFC 13.

   [4] [2006] FamCA 1346.

8. In Marvel & Marvel (No 2)[5] the Full Court emphasised orders made in interim proceedings “are necessary but a temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.”

   [5] [2010] FamCAFC 101.

9. Decisions judicial officers have to make in interim proceedings are difficult and often for very good reason a conservative approach or one which is likely to avoid harm to a child is adopted.  This is often an understandable distress to a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their children.

10. In SS & AH[6] the Full Court said:

    “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

    [6] [2010] FamCAFC 13.

11. It follows that I must act cautiously. The father alleges that the mother is influencing the children. The subpoena material discloses that the child Y made disclosures to the Department of Family and Community Services. The family consultant notes that Y disclosed to her that the mother had discussed these proceedings and parenting arrangements with Y prior to the child inclusive conference, and if that is true, in non-compliance of an order I made.

12. In considering 60CC(2)(a), both parents acknowledge that there is a benefit in the children having a meaningful relationship with each of them.  The mother, of course, says provided it is safe to do so. 

13. In relation to Section 60CC(2)(b) the father says:

    (a)The children have a close and loving relationship with him;

    (b)There is no evidence that Y requires the mother’s presence during the time she spends with the father as the mother asserts;

    (c)The children have a close relationship with the paternal grandfather;

    (d)There are concerns regarding the nature of the mother’s relationship with Y, in that the mother inappropriately engages with Y with respect to a number of adult issues.

14. In relation to Section 60CC(2)(b) the mother says:

    (a)The father has a long history of alcohol abuse and dependence and Y used to get upset at the father’s drinking. 

    The father was admitted to (omitted) Mental Health Unit on an involuntary basis on 27 July 2016. His secondary diagnosis was alcohol dependence. The father described his drinking to staff.  He said he would drink four cans and 20 to 40 beers and that he had 20 light beers on the day of his admission.  The father admitted having a problem with alcohol but was not sure what he planned to do about his alcohol abuse.

    He blamed the mother for the domestic violence and said as a result he “ended up abusing alcohol.”  He later told staff, “I am not going to drink anymore.”

    The father has not attended Alcoholics Anonymous, nor has he been referred to a specialist drug and alcohol counsellor according to the mother, and Y has described her father as an alcoholic.

    (b)The mother says she has been subjected to family violence in the presence of the children.

    The mother says Y would protect her from verbal abuse. The mother says the father sexually assaulted her in the presence of Y. Y described the father as very violent.

    The mother was referred to (omitted) by a family and community services caseworker due to “chronic domestic violence.”  The mother described the father as sexually violent when drunk. The mother says Y developed anxiety and sleep problems due to family violence.

    The mother says the father was convicted of possessing an unregistered firearm, and that the father threatened to blow his head off in the presence of the mother.

    (c)In relation to mental health issues, the mother points out the father was admitted as an involuntary patient, that his primary diagnosis was an adjustment disorder, and the mother complains of erratic and unpredictable behaviour.

    (d)The father has admitted to smoking cannabis and the mother alleges the father abuses prescription drugs.

15. Section 60CC(2A) provides that I must place greater weight on section 60CC(2)(b). 

16. As previously outlined the mother and father do not agree on a number of material facts. That is often the case, and it makes decision-making in interim matters all the more difficult. 

The independent evidence

1. In those circumstances, independent evidence assists greatly. There are eight exhibits before the Court.  Two were tendered on 20 December 2016, and six on 22 March 2017 when I heard the matter.  To the extent that material relates to the issues I shall refer to it.

Does the material support the father’s concerns and assertions?

1. The child inclusive memo dated 20 December 2016 states that Y was generally negative about the father and said that the father behaves poorly when drunk.

2. Y said she felt anxious when her father came to her school. Y said she wanted to spend the day with her father. Y spoke positively about the time she had spent with her father and wanted to increase her time.

3. Y said X likes seeing his father and gets very excited about going, and X, for the reason previously outlined, could not really be interviewed in terms of his wishes.

4. The notes from Happenstance indicate that the children enjoy their time with their father. The notes reveal that at times the children can become bored.

5. The notes support the father’s assertion that there is no evidence to support the mother’s allegation that Y requires the mother’s presence during the time she spends with her father.

6. The child inclusive conference memorandum raises concerns consistent with the father’s concern regarding the mother’s involving Y in the dispute. It is apparent that the mother is discussing adult issues and these proceedings with Y and that has to stop.

The mother’s allegations:  alcohol issues 

1. The notes from the (omitted) Hospital confirm that the father has an issue with alcohol dependence. Dr M reports back in December 2016 the father had not consumed any alcohol after being released from (omitted) Hospital on 24 July 2016. In his letter of 21 March 2017, Dr M says that there is no evidence of drugs or mental health issues. A drug test on 20 March 2017 tested negative for opiates, amphetamines, cannabis, cocaine and benzodiazepine.

2. The independent evidence supports the mother’s assertion that the father has an issue with alcohol. The evidence of the father’s doctor supports that he is addressing the issue. His doctor curiously does not mention abstinence from alcohol in his letter dated 21 March 2017.  That leaves a question mark for me.

Family violence

1. The family and community services documents provide a history of domestic violence reports. The documents reveal that one caller reported that Y was very traumatised from witnessing her mother being sexually assaulted. No charges have been laid, and that is not a criticism.

2. Y’s presentation during supervised visits and the information she provided to the family consultant is not consistent, in my view, with behaviour of a traumatised girl. Indeed, the complaints she made about the father concerned his drinking, and she appeared to have been assisted in her memories by the mother.

Mental health issues

1. The father has been diagnosed with an adjustment disorder. He is currently taking Sertraline. His doctor says he currently has no mental health issues. I am satisfied that the father is addressing his mental health issue. 

Drugs

1. There is no evidence of the father using illicit drugs or abusing prescription drugs.

2. The subpoena notes and the child inclusive conference memo all provide evidence that the father’s drinking occurred in the evenings. The father admits to drinking in the evenings prior to separation. The mother says the father’s drinking was worse in the evenings. Indeed, the mother was consistently concerned about overnight time and consistently happy with daytime.

3. I am satisfied that the father may still be at risk of relapsing in the evenings. He has been a long-time abuser of alcohol and has been diagnosed with alcohol dependence. Any dependence is difficult to overcome, and as I said, there is a question mark over the father’s current use of alcohol as a result of his doctor not mentioning it in his letter of 21 March 2017.

Relevant section 60CC(3) matters

1. Y wants to see her father more but not for overnight time and X is said to enjoy his time with his father.

2. The children appear to have a good time with the father. They have a good relationship with him. The children have a good relationship with their mother.

3. No evidence was provided in relation to subsection (ca) and it is not relevant.

4. The orders I make will bring about a change. I am satisfied on the evidence that the orders will have a positive effect for the children in relation to their relationship with their father.

5. There is really no difficulty or great expense in the children spending time with the father pursuant to the orders I make.

6. I am satisfied that the father can meet the needs of the children during the time he will spend with them pursuant to my orders.  His degree of supervision came into question at Happenstance, however, that issue seems to be in hand now.

7. Again I must say that the mother needs to stop involving Y into the dispute. 

8. Subsections (g) and (h) are not relevant.

9. I am satisfied that both parents have a positive attitude to both children and their responsibilities of parenthood demonstrated post-separation, but for their specific failings, that is, the father’s past behaviour and his need to accept and take responsibility for it, and the mother’s ongoing involvement of Y in the proceedings.

10. The mother and father both allege family violence being perpetrated upon themselves by the other parent. Until such time as I have had the benefit of both parent’s evidence being tested under cross-examination, I cannot make any findings as to whether there has been family violence or not.

11. There is no apprehended domestic violence order in place.

12. The mother says she has completed the post-separation parenting program but no certificate has been provided. The father has completed a post-separation parenting program.

13. The father has been engaging with Ms K for counselling.  Annexure B of his affidavit filed 6 March 2017 provides a short report from a counsellor in glowing terms.

14. The father has also provided evidence from his doctor that shows that he attends upon the doctor every two weeks and has been compliant with medication. The evidence shows that the father is committed to addressing his issues and is doing all that he can to ensure that the children can enjoy a meaningful relationship with him.

Section 61DA

1. Section 61DA(3) provides that the presumption in section 61DA applies unless I consider it would not be appropriate in the circumstances for the presumption to be applied.

2. The family consultant says that the co-parenting relationship is extremely poor. Both parents have reported a very long history of conflict throughout their relationship including post separation.

3. The allegations the mother makes against the father are incredibly serious.  If those allegations are true, there is very little doubt that the parents would never be able to share parental responsibility. 

4. As I said previously, I cannot make any findings about that issue until final hearing.  I am, however, persuaded that there are circumstances in existence that would make it inappropriate for the presumption to apply. I will make an order for sole parental responsibility.

5. In those circumstances the provisions of section 65DAA are not triggered. I must therefore make such parenting orders as I think proper pursuant to section 65D(1).

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date:  3 April 2017