Paget and Crewell
[2015] FCCA 2564
•10 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAGET & CREWELL | [2015] FCCA 2564 |
| Catchwords: FAMILY LAW – Interim parenting dispute involving young children – significant issues regarding alcohol abuse by the Father – a number of issues regarding the inadequate and or inappropriate conduct of lawyers in relation to the adequacy of submissions as well as contact with Chambers (failure to adhere to the Poirot instruction of “order and method”) – role and use of alcohol testing – Father ordered in other court proceeding to undertake the Interlock program to prevent him using a car while intoxicated (interlock device to disable the car until the Father satisfactorily passes a breathalyser test) – protective responsibilities of the Court to the children. |
| Legislation: Family Law Act 1975, ss.60B(1)(b), 60CC(2)(b) & 60CC(3)(i) Federal Circuit Court Rules 2001, r.15.09 |
| Banks & Banks [2015] FamCAFC 36 Crouper & Mitchell [2014] FamCAFC 246 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422; (2006) FLC ¶93-286 Jackson & Macek [2015] FamCAFC 114 Redmond & Redmond [2014] FamCAFC 155 Vanzin & Vanzin [2014] FamCAFC 245 |
| Applicant: | MS PAGET |
| Respondent: | MR CREWELL |
| File Number: | CAC 762 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 30 July 2015 |
| Date of Last Submission: | 28 August 2015 |
| Delivered at: | Canberra |
| Delivered on: | 10 September 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Armstrong Legal |
| Solicitors for the Respondent: | Harris Wake Legal |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
The children X (born on (omitted) 2004) and Y (born (omitted) 2006) (“the children”) live with the Mother.
The children spend time with the Father as outlined in the following Orders, on the condition that the Father does not drink alcohol for a period of not less than 24 hours prior to spending time with the children and during the time the Father is spending time with the children:
Whilst the Father’s drivers licence is disqualified the Father will spend time with the Children as follows:
(a)Each Monday and Tuesday (excluding public holidays) from after school, 3:15pm to 6:15pm, with:
(i)the Father to pay for the children to attend after school care on such days and collect them from after school care between 3:15pm and 6pm; and
(ii)the Mother to collect the children from the Father’s residence at 6:15pm.
(b)Two Sundays out of every three, from 9am to 5pm each Sunday with the Mother to deliver and collect the children to/from the Father’s residence or as otherwise agreed in writing and, the Father shall ensure the children attend any pre-arranged sporting events.
(c)Each alternate Saturday the Father may attend at the children’s sporting events to watch the children.
If the Father’s licence is re-issued as part of the Interlock program and his car is fitted with a CADAS immobiliser:
(a)Each Monday and Tuesday (excluding public holidays) from after school, 3:15pm to 6:15pm, with:
(i)the Father to pay for the children to attend after school care on such days and collect them from after school care between 3:15pm and 6pm; and
(ii)the Mother to collect the children from the Father’s residence at 6:15pm.
(b)Every second weekend from 9am to 5pm on Saturday and 9am to 5pm on Sunday, with the Father to transport the children to and from and facilitate their attendance at, all of the sporting activities they are registered to participate in on Saturdays.
Special Days
The Father shall spend time with the children on Christmas Day for a period of not less than 4 hours at such time as it is agreed between the parties in writing and failing agreement:
(a)from 2pm to 6pm on Christmas Day in 2015 and every odd numbered year thereafter; and
(b)from 10am to 2pm on Christmas Day in 2016 and every even numbered year thereafter
The Mother is to spend time with the children on Christmas Day from 10am to 2pm in 2015 and every odd numbered year thereafter;
The Father shall spend time with the children each Father’s Day from 9am to 6pm;
The Father shall spend time with each of the children on their respective birthdays for a period of not less than 3 hours as agreed between the parties in writing, and failing agreement:
(a)from 10am to 1pm if the child’s birthday falls on a weekend; and
(b)from 3:15pm to 6:15pm if the child’s birthday falls on a school day.
The Father’s time with the children shall be suspended for two separate two-week block periods each calendar year, during which the Mother may holiday with the children, on condition that the Mother provide at least 7 days’ notice to the Father of her intention to do so in writing or by email or text.
Testing of the Respondent
The Father shall undertake Carbohydrate Deficient Transferrin (CDT) and Gamma Glutamyl Transferrasse (GGT) blood tests once each month, until further Order, and at least until the release of the Family Report with the first such test to occur within 14 days of the date of these Orders.
(a)the Father pay the costs associated with obtaining the blood tests and results; and
(b)the ICL shall randomly request the Father undergo the tests and the Father shall undertake the tests within 24 hours of being requested by the ICL that he do so.
To facilitate the preceding Order the Father shall do the following:-
(a)Attend upon his General Medical Practitioner to obtain a referral as set out below;
(b)Provide his General Medical Practitioner with a copy of these Orders;
(c)Request a chain of custody CDT and GGT blood test in accordance with Order 10;
(d)Attend upon (omitted) Pathology, (omitted), (omitted), ACT for the purpose of chain of custody blood collection and analysis;
(e)Obtain a copy of the result of the CDT and GGT blood tests from his GP as soon as possible after the results have been provided; and
(f)Provide a copy of the results of the CDT and the GGT blood tests to the ICL and the Mother within 7 days of receipt by him.
By consent, Ms S, or other expert as agreed in writing between the parties, be appointed as the single expert pursuant to Rule 15.09 of the Federal Circuit Court Rules 2001 (Cth) and a full Report be prepared by Ms S at the earliest possible time, with the cost of such a report being paid in full by the Father.
Terms of Reference are to be prepared jointly between the parties and the Independent Children’s Lawyer, and such terms are to be provided for settlement by the Court at the earliest possible time.
THE COURT NOTES THAT:
A.The paternal grandparents were supervising the Father’s time with the children from January 2015 to July 2015. They are expected to be travelling for an extended period of time of no less than 3 months from August to November 2015 and as such, are unable to continue to supervise;
B.The matter be adjourned to a date and time to be confirmed, pending receipt and release of the Family Report.
IT IS NOTED that publication of this judgment under the pseudonym Paget & Crewell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 762 of 2013
| MS PAGET |
Applicant
And
| MR CREWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
Oral reasons were delivered on 10th September. Among other things, because the Respondent Father’s solicitor was not present on that occasion, the following reasons have been revised from the transcript.
The issues to be determined in this interim parenting contest concerning 11 year old X and 9 year old Y, are very narrow: (a) how much time should the children spend with the Father; (b) should the children spend overnight time with the Father; (c) what impact or risk does the Father’s alcoholism have on the children, and the time they spend with him; and (d) the frequency of the Father’s alcohol testing.
In addition to the parenting matters, there are a number of procedural issues that impact, to some degree, on the determination of the parenting aspects of the matter.
Procedural Matters
Unfortunately, I must waste (I use the word advisedly) some further Court time (in addition to the time already spent in Chambers) to deal with some procedural aspects from the submissions that should not have to be spelt out – again - to lawyers.
Simply put, written submissions should always be numbered consecutively. This enables paragraphs to be referred to, cited and quoted expeditiously. Otherwise, as is the case here, the Court is presented with a quite unstructured, and therefore unhelpful, blancmange and mini-mass of material that has to be sifted through without proper structure. This should not occur. It has occurred in some of the submissions provided to the Court in this matter. The famous phrase of the eminent [fictional] Belgian sleuth created by famed writer Agatha Christie, Hercule Poirot, remains always apposite: “order and method.” In the submissions filed thus far, there was little order and even less method.
Further, the Father’s submissions are in the form of a letter addressed to me personally (which is inappropriate), and finishes with something of a “cheerio” and invitation to call the Father’s lawyer if I have any questions about the submissions.
On any number of levels, such submissions are totally inappropriate. They should not be in the form of a letter; they should not be in the form of a letter addressed personally to the presiding Judge; there should not be personal communication with the Court. All communication in relation to the matter should and must involve all parties – whether in open Court or in correspondence. There are protocols in place that provide for correspondence with Chambers. It is readily available on the Court’s web-site.
Private “chats” between judges and practitioners concerning matters currently before the Court is completely inappropriate. To suggest it (as the Father’s solicitor does at the conclusion of his written submissions), respectfully indicates (at least) a significant misunderstanding of the duties and proprieties of practitioners in their dealings with the Court. Some remedial work on lawyers duties (e.g. to the Court, to clients, and to fellow lawyers), as set out in standard guidelines from the Law Council of Australia, or local law society or Bar Association, I suggest would be advantageous.
Parenting Matters
I have earlier identified the issues to be determined in this parenting contest, most significantly whether the children should spend overnight time with their Father and what protective measures should be put in place having regard to the Father’s acknowledged history of alcohol abuse.
Relevant principle from recent Full Court authority in relation to the conduct of interim parenting matters is set out in the following recent cases: Redmond & Redmond [2014] FamCAFC 155; Vanzin & Vanzin [2014] FamCAFC 245; Crouper & Mitchell [2014] FamCAFC 246; Banks & Banks [2015] FamCAFC 36; Jackson & Macek [2015] FamCAFC 114. Those decisions of course refer to earlier, well-known Full Court authority, such as Goode v Goode.[1] No submissions addressed any such principles regarding the conduct of interim proceedings.
[1] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422.
For current purposes, it is sufficient to note the following from Vanzin, where Murphy J (sitting as the Full Court) said, at [20] – [22]:
[20] The process by which interim parenting decisions are made within busy lists containing many cases with equal claims to be heard is "…an abridged process where the scope of the inquiry is significantly curtailed” (Goode & Goode (2006) FLC 93-286 at [68]). That consideration, and the fact that the issues for determination here are extremely narrow, does not obviate the need to follow mandatory statutory requirements (Goode (above) at [82]).
[21] Nor does it obviate the need to give reasons for the decision reached; the orders pertain to the life of a child, however benign the issues might seem, and the parents should know why a decision has been reached (see for example, Kirby J writing extra-curially ‘Always permissible, usually desirable and often obligatory’ (1994) 12 ABR 121,135-6)…
[22] The breadth and depth of the “significantly curtailed” inquiry in hearings of the instant type must also depend, to a significant extent, on the breadth and depth of the issues to be determined. So too, as it seems to me, an assessment of the adequacy of reasons given for interim decisions must take account of the same circumstance: “The adequacy of the reasons will depend upon the circumstances of the case” (Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18). That is all the more so when reasons are delivered in cases of this type ex tempore.
Orders Sought
The Applicant Mother’s orders sought are as follows:
1) That the children X born on (omitted) 2004 and Y born (omitted) 2006 live with the mother.
2) That until further Order, the children spend time with the father as follows, on condition that the father does not drink alcohol for a period of not less than 24 hours prior to spending time with the children and during the time the father is spending time with the children:
Whilst the father’s drivers licence is disqualified:
a) Each Monday and Tuesday (excluding public holidays) from after school, 3.15pm to 6:15pm, with:
i.the father to pay for the children to attend after school care on such days and collect them from after school care between 3.15pm and 6pm; and
ii.the mother to collect the children from the father’s residence at 6:15pm.
b) Two Sundays out of every three, from 9am to 5pm each Sunday with the mother to deliver and collect the children to/from the father’s residence or as otherwise agreed in writing and in that event, the father shall ensure the children attend any pre arranged sporting events.
c) Each alternate Saturday the father may attend at the children’s sporting events to watch the children.
3) If the father’s licence is re-issued as part of the Interlock program and his car is fitted with a CADAS immobiliser:
4) Each Monday and Tuesday (excluding public holidays) from after school, 3.15pm to 6:15pm, with:
a) the father to pay for the children to attend after school care on such days and collect them from after school care between 3.15pm and 6pm; and
b) the mother to collect the children from the father’s residence at 6:15pm.
5) Every second weekend from 9am to 5pm on Saturday and 9am to 5pm on Sunday, with the father to transport the children to and from and facilitate their attendance at, all of the sporting activities they are registered to participate in on Saturdays.
Special Days
6) The father shall spend time with the children on Christmas Day for a period of not less than 4 hours at such time as it is agreed between the parties in writing and failing agreement:
a) from 2pm to 6pm on Christmas Day in 2015 and every odd numbered year thereafter; and
b) from 10am to 2pm on Christmas Day in 2016 and every even numbered year thereafter.
c) The mother is to spend time with the children on Christmas Day from 10am to 2pm in 2015 and every odd numbered year thereafter;
d) The father shall spend time with the children each Father’s Day from 9am to 6pm;
e) The father shall spend time with each of the children on their respective birthdays for a period of not less than 3 hours as agreed between the parties in writing, and failing agreement from 10am to 1pm if the child’s birthday falls on a weekend and from 3.15pm to 6.15pm if the child’s birthday falls on a school day.
7) The father’s time with the children shall be suspended for two separate two week block periods each calendar year, during which the mother may holiday with the children, on condition that the mother provide at least 7 days notice to the father of her intention to do so by email or text.
Testing of the Respondent
8) The father shall undertake Carbohydrate Deficient Transferrin (CDT) and Gamma Glutamyl Transferrasse (GGT) blood tests once each month for the next 9 months with the first such test to occur within 14 days of the date of these Orders.
a) The father pay the costs associated with obtaining the blood tests and results; and
b) The ICL shall randomly request the Father undergo the tests and the Father shall undertake the tests within 24 hours of being requested by the ICL that he do so.
9) To facilitate the preceding Order the father shall do the following:-
a) Attend upon his General Medical Practitioner to obtain a referral as set out below;
b) Provide his General Medical Practitioner with a copy of these Orders;
c) Request a chain of custody CDT and GGT blood test in accordance with Order 1;
d) Attend upon (omitted) Pathology, (omitted), (omitted), ACT for the purpose of chain of custody blood collection and analysis;
e) Obtain a copy of the result of the CDT and GGT blood tests from his GP as soon as possible after the results have been provided; and
f) Provide a copy of the results of the CDT and the GGT blood tests to the ICL and the mother within 7 days of receipt by him.
Notation
A. The paternal grandparents were supervising the father’s time with the children from January 2015 to July 2015. They are expected to be travelling for an extended period of time of no less than 3 months from August to November 2015 and as such, are unable to continue to supervise.
B.
That the parties seek an Order be made pursuant to section 62G of the Family Law Act 1975 (‘the Act’) for the parties and the children of the relationship to attend upon
Ms S on a date and at times to be advised by Ms S, for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act, with the Father to be responsible for payment of Ms S’s fees.
C. The matter be adjourned to the first available date after receipt of the Family Report.
The Father’s interim orders sought are set out below (the numbering has been amended; some corrections of identity of persons has also been necessary):
1) Pursuant to Rule 62G of the Family Law Act 1975 (Cth) Ms S be appointed to prepare a Family Report in relation to the time that the Children spend with both parents, and the impact that the father's issues with alcohol have on the Children.
2) The parents share equally the total cost of the Family Report.
Testing of the Father
3) The father will undertake Carbohydrate Deficient Transferrin (CDT) and Gamma Glutamyl Transferrasse (GGT) blood tests once each month until such time as he can provide five (5) clear tests with the first such test to occur within 28 days of the date of these Orders. The father will pay the costs associated with the obtaining of these blood tests.
4) To facilitate the preceding Order the father shall do the following:-
a) Attend upon his General Medical Practitioner to obtain a referral as set out below;
b) Provide his General Medical Practitioner with a copy of these Orders;
c) Request a chain of custody CDT and GGT blood test in accordance with Order 3);
d) Attend upon (omitted) Pathology for the purpose of chain of custody blood collection and analysis;
e) Obtain a copy of the result of the CDT and GGT blood tests from his GP as soon as possible after the results have been provided; and
f) Provide a copy of the results of the CDT and the GGT blood tests to the mother within 7 days of receipt by him.
Review Period
5) Until such time as the Father can provide five (5) clear tests (Review Period), the Children will live with the Mother, and will spend time with each parent at all times as may be agreed, but failing agreement, in each fortnight as follows:
a) with the Father:
i.On each Monday and Tuesday from 6pm to 8pm; and
ii.Each alternate Saturday and Sunday from 9am Saturday to 6pm Sunday.
iii.The father may attend Children’s sporting events.
b) and with the Mother at all other times.
6) Following the Review Period, the Children spend time with and/or live with each parent at all times as may be agreed, but failing agreement, in each fortnight as follows:
a) With the Father from 3:15pm (or after school on a school day) on Monday until 9.00am (or before school on a school day) on the following Wednesday,
b) With the Father each alternate weekend from 3:15pm (or after school on a school day) on Friday until 9.00am (or before school on a school day) on the following Monday,
c) With the Mother at all other times.
School holidays
7) Order 6) be suspended during all gazetted school holiday periods.
8) In 2015 and each alternate year thereafter the Children spend the first half of all gazetted school holidays with the Father and the second half of all gazetted school holidays with the Mother.
9) In 2016 and each alternate year thereafter the Children spend the first half of gazetted school holidays with the Mother and the second half of all gazetted school holidays with the Father.
10) The Children spend such additional or alternate times with the Children [sic: Father] as agreed between the parents.
11) Changeover will occur on the middle day of the school holiday period at 5.00pm.
12) Orders 7) to 11) are subject to the Review Period – Order5.
EASTER
a) Subject to the Review Period - Order 3), the Children will spend one half of the Easter period with the Father as follows:
b) In odd years from after school (or 3pm if not a school day) on the Thursday before Good Friday until 5pm on the Saturday after Good Friday; and
c) In even years from 5pm on the Saturday after Good Friday to before school (or 9am if not a school day) on the Tuesday after Easter Monday.
CHRISTMAS
13) In all even numbered years:
a) the Children spend time with the Father from 12 noon Christmas Eve until 12 noon Christmas Day; and
b) that the Children spend time with the Mother from 12 noon Christmas Day until 12 noon Boxing Day;
c) In all odd numbered years:
d) the Children spend time with the Mother from 12 noon Christmas Eve until 12 noon Christmas Day; and
e) the Children spend time with the Father from 12 noon Christmas Day until 12 noon Boxing Day.
Mother’s Day and Father’s Day
a) The Children spend time with the Father from 9.00 am to 5.00 pm on Father’s Day.
b) The Children spend time with the Mother from 9.00 am to 5.00 pm on Mother’s Day.
Children’s Birthdays and Father’s birthday
14) The Children spend time with the Father on their respective birthdays for a period of not less than 4 hours as agreed, or failing agreement from 9am to 1pm on a non-school day or 3:15pm to 7:15pm on a school day.
Mother’s birthday
15) Where the Mother’s birthday falls on a day where the Children are spending time with their Father, the Children will spend time with their Mother for a period of not less than 4 hours as agreed, or failing agreement from 9am to 1pm on a non-school day or 3:15pm to 7:15pm on a school day.
Changeover
16) Unless otherwise agreed, the parent who is spending time with the Children is responsible for collecting the Children from school or the other parent’s house as applicable, and returning the Children to school or the other parent’s house as applicable at the end of the Children’s time with that parent.
Specific issues
17) Each parent is authorised to obtain from the Children’s schools all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
18) The parents and Children communicate with each other by telephone at such other times as may be agreed between the parents.
19) The parents advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
20) The parents not criticise or denigrate the other parent or the other parent’s family in the presence of or within hearing of the Children.
21) The parents encourage and not undermine each child’s relationship with the other parent.
Alternative Dispute Resolution
22) In the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a parent that it should be varied) the parents shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parents and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the parent raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other parent within 14 days.
Submissions
The issue of who will pay for the family report has been resolved. By email correspondence, the Father has confirmed that he will pay the full cost of an expert, Ms S, who is taken to be appointed pursuant to Rule 15.09 of this Court’s Rules.
I need not set out in full all of the written submissions provided by the parties. However, because the Father is the party who is facing the most stern or arduous regime that affects (or may likely do so) his parenting time, it is important to set out his submissions in full (except for those that relate to the family report). The Father submitted as follows (the paragraph numbering has been amended):
Carbohydrate Deficient Transferrin and Gamma Glutamyl Transferrasse blood testing of the Father
1) Our client’s position is that the testing is not required and that he has and is taking measures to reduce his alcohol intake.
2) The Applicant Mother’s position of 9 tests would take the testing well into the middle of next year.
3) It is also unclear what the objective of the testing will be. If our client passes 6 and fails 3 what then? Passes 7 and fails 2? Fails all 9? Passes all 9?
4) Our proposal set a lower number of tests but also proposed alternative care arrangements based on the outcome of the tests, although neither side has defined what a Pass or Fail consists of. This has yet to be agitated.
5) Again, we would submit that this is something which could be mediated.
Whether the father’s alcoholism poses a risk to the children and if so the time that the children spend with the father without being exposed to risk.
6) As per our Client’s affidavit sworn 21 July 2015 (paragraphs 57-64) our Client accepts that he has consumed alcohol to excess. The implication by the Applicant Mother that there is additional risk to the children having overnight time with the Father is strongly denied.
7) The Respondent Father accepts that he made a poor choice in December 2014 when he left the children unattended putting them at risk. The children were unharmed. We are instructed that was a one-off event.
8) This incident is not reflective of his ability to care for his children and is not reflective of his general behaviour after having consumed alcohol.
9) The father has put a range of measures in place to address his addiction to alcohol (as set out in his affidavit at pp57-64) including:
a) Regular attendance at AA
b) Attendance at AA 4 day conference in (omitted)
c) Completed a detoxification course at (omitted) and Drug Detox unit at (omitted) Hospital.
d) (omitted) Cognitive Behavioural Therapy Course
e) REVERSED course currently underway
f) ACT Health professional counselling
g) Regular visits to his GP
h) Use of Naltrexone
i) To regain his licence he will require a CADAS immobilizer on his car for probably 12 months. As of this week (19 August 2015) he is eligible for the InterLock program.
The time that the father spends with the children on an interim basis
10) We have proposed graduated time spent with the Applicant Father moving to overnight time once he has shown that alcohol is not a risk factor concern, and that the children spend regular time with the Applicant Father until that time.
11) The supervision requirement is not appropriate, not practical and not required. At no time has the father represented a direct risk of harm to the children. Violence and abuse are not in issue.
12) The proposed interim orders by the Applicant Mother make no allowance for:
a) overnight contact in the school holidays, XMAS or other special days;
b) school holiday contact other than at the whim of the Applicant Mother;
c) telephone contact with the Respondent Father; and
d) the ability for the Respondent Father to take the children on holidays.
e) For the children to spend substantial and significant time with the Father,
f) For the children to continue to maintain and develop a meaningful relationship with both parents.
13) The Applicant Mother’s proposed total period of time spent with the children by the Respondent Father is significantly lower than that which they enjoyed prior to December 2014 (where the care arrangements were 50/50 and the parties worked well and cohesively).
14) It is our client’s position that the Applicant Mother’s proposed orders are overly restrictive and punitive, and fail to graduate back to that December 2014 position. They are therefore not in the best interests of the children. It is our understanding that the children have regularly expressed a desire to return to the earlier arrangements.
For current purposes, because the Mother’s position is closely aligned with that of the ICL, I note the following from the ICL’s submissions, limited to alcohol testing and the Father’s time with the children (also with amended paragraph numbering):
1)
If it is the father’s position that he should not have to undergo alcohol testing at all, or at all before the children re-commence to spend block periods of time including overnight with him, then in my submission his position raises questions about his insight into the potentially harmful effect of his alcohol abuse on his parental capacity.
2) It also suggests a lack of insight into the validity of the mother’s concerns about this issue.
3) In my submission the father should be court ordered to undergo alcohol testing as proposed by the mother’s lawyers. But there is no evidence before the court going to what exactly it is that each form of test would reveal, nor how frequently or how often the tests would need to be administered to provide evidence about the father’s level and frequency of alcohol use either generally or in relation to its effects on his functioning. Accordingly I am not able to make any informed submissions about the number of tests the father should be required to undergo nor their frequency. Nor am I able to submit (only to suggest) that random testing following a request from the ICL to the father’s lawyers, may also be appropriate.
4) I submit that the parties lawyers and /or ICL should obtain that information from an appropriate expert; (perhaps the test provider) who is able to provide recommendations as to frequency necessary to detect whether or not the father has been drinking alcohol ‘heavily’ and how frequently and over what period, and also interpret the test results. The father should be court ordered to adhere to the regime of alcohol testing as recommended is necessary to detect it if the father re-commences alcohol consumption to a level which would put him or the children at risk.
The time the father spends with the children on an interim basis
5) Y and X are now 9 and 10 years old and there is not currently before the court any evidence to suggest that they have not formed a meaningful relationship with their father. If the Court accepts that the children have already formed a meaningful relationship with their father then it seems unlikely that such relationship would be damaged in any significant way by more limited contact until such time as the Court has the benefit of Ms S’s report;
6) The risk for the children if they spend overnight with the father arises if he were to drink alcohol excessively;- that is such that he would be unable to assist them if needed to do so during the night. The need for supervision of the children’s time with the father could not be put more highly than a need to have another responsible adult in the house to assist the children in his stead if this should happen.
7) The mother does not currently seek that the father’s day time contact with the children be supervised.
8) I propose that provided the father is restrained from consuming alcohol when the children are with him and for at least twelve hours beforehand, then;-
a) until such time as the father has his licence returned and his car is fitted with a CADAS immobiliser (expected to occur on the 4th of October 2015) the day time with time with the father may continue unsupervised in accordance with the mother’s proposal (as amended by her lawyer’s email of today’s date that is in accordance with orders 2(a) to (c) of the mother’s Minute of proposed orders; then
b) Once the father is no longer disqualified from driving and his car is fitted with the CADAS immobiliser each second weekend from 9 am to 5 pm on Saturday and on Sunday and
c) Block time, but not overnight, during school holidays.
9) My position is that the children should not spend overnight with their father unless there is another responsible adult also in the home, until the father has commenced a regime of testing and such testing evidences that he is no longer consuming alcohol to levels which could impact on his capacity to supervise the children. Provided the test results indicate that the father is not consuming alcohol at levels which might pose a risk for him or the children then overnight time could resume, unsupervised.
10) In the event that test results indicate that the father has been consuming alcohol to levels or with a frequency that suggests he is continuing to drink alcohol excessively then no overnight contact, and consideration be given to the resumption of supervision of day time contact.
11) The father should be restrained from driving the children in any vehicle other than his vehicle fitted with a CADAS immobiliser.
12) The time the children spend with their father should in any event be reviewed once Ms S’s report is available.
13) Lastly I propose the parties do participate in a family dispute resolution conference convened at the Legal Aid Office as both are amenable to that although there may be a dispute as to whether it should occur before or after Ms S has made her report.
As noted earlier, the only issue now in dispute (on an interim basis) relates to the impact of the Father’s acknowledged drinking habit on his time with the children. There may also be a related issue in relation to the frequency of the alcohol testing.
The Independent Children’s Lawyer (“ICL”) submits, with good reason, that the Father’s parenting insight and its impairment by alcohol consumption is the central issue in the case.
Consideration & Disposition
The views of the children, as reported by the ICL, are reasonably clear: they like spending time with the Father but really not overnight. I note that it seems not disputed that the Mother continues to reside in the former marital residence, while the Father now lives in a single bed-room apartment, which thereby provides rather less space for the children.
In my view, the Mother’s concerned and protective approach, which is supported by the ICL, is entirely appropriate. This is especially so where the Father’s drinking has previously led him to make poor parenting decisions, noted elsewhere in these reasons.
Doubtless much more will be revealed, and of assistance, when the family report from Ms S emerges.
The Father protests about the frequency of alcohol testing. In my view, the frequency of monthly testing is appropriate in all the circumstances. That regime should occur until the release and consideration by everyone (including the Court) of the family report. Subject to what is in that report, and any other evidence provided at the time (including the alcohol testing results), presumably the testing regime will be re-visited at a later stage.
The object of the testing regime is in support of the Court’s protective responsibilities towards the children. Those responsibilities are prescribed by relevant sections in Part VII FLA (e.g. ss.60B(1)(b), 60CC(2)(b) & s.60CC(3)(i)). No submissions relevantly addressed such sections or any other part of the prescribed scaffold or pathway in the Act.
While the Father’s submissions referred to alcohol testing, and the Father’s alcoholism, it was submitted that the Father was addressing such issues. Unfortunately, the submissions did not refer to, let alone address, the uncontested facts that, in December 2014, while on medication that was purportedly designed to address or assist in the reduction of his alcohol consumption and having left his 11 and 9 year old children home alone, nonetheless he drove while intoxicated, had a car accident and still registered an alcohol level of 0.18.
The Father’s material also does not address the issue raised in par.63 of his affidavit where he confirmed that on 21st December 2014 he felt “stone cold sober” but nonetheless his breathalyser reading was 0.18.
Nor do the submissions address the further information in the Father’s affidavit about his eligibility for the Interlock program. Without knowing much relevant detail of this program, for my part, given the Father’s uncontested history of alcohol abuse and subject to further evidence and submissions, I would remain concerned that a person who was seriously intoxicated could subvert the intention of such a device simply by hiring a car that was not fitted with such a disabling device.
Indeed, without doubting the Father’s best intentions to limit his drinking and to take appropriate remedial steps in relation to it, the benefit of regular alcohol testing is that it will provide the Court with independent evidence of how the Father’s endeavours are faring. In turn, this will provide independent evidence in support of the Court’s protective responsibilities towards the children, as required by Part VII of the Act.
The Mother’s submissions incorrectly say that all of this information is in par.62 of the Father’s affidavit, when as I have noted, it is in para.63: I will not repeat the usual elements in my never-ending battle to get practitioners to check their work for which their clients [or the tax-payer through Legal Aid] pay money.
I accept and agree with the Mother’s submission (in one of her many un-numbered paragraphs) to the effect that the Father lacks insight into his actions, and especially the potential adverse impact on his care for the children of his alcohol consumption.
In my view, the Father’s statement (as earlier noted) that he felt stone cold sober when he was clearly still significantly intoxicated is particularly troublesome. The impairment of his judgment, and his obvious lack of self-regulation and self-awareness, for my part, is very concerning. Self-regulation and self-awareness are key elements for any parent and the proper care of children. How a parent who is intoxicated can make proper, insightful and prudent judgments for the care of children in that person’s care is, in my view, a matter of very serious concern for the Court.
What is also worrying is that it may be that the Father’s tolerance of alcohol has reached such a state that he does not recognise when he is intoxicated. This may be an explanation for him feeling “stone cold sober” on the night when he took a nap, upon waking left the children home alone to drive to a friend’s place, was involved in a car accident (which he says was caused by the other driver), and blew 0.18 when breathalysed.
There is no doubt that the children have a good relationship with both parents. The views of the children have been conveyed to the Court in general terms by the ICL. They enjoy time with their Father but they do not want to spend overnight time with him. This is especially X’s view.
In all of the circumstances, the Court accepts and otherwise adopts the submissions and comments of the ICL. Subject to what follows, the orders (which have been revised in their numbering to make them less complex) as proposed by the Mother, which were amended more than once and re-submitted after discussions with the ICL, should be made. In my view, they are in the children’s best interests on an interim basis, and at least until there is proper consideration of the expert’s report.
As the Mother’s lawyer sought to point out in the course of much correspondence with the Court, the Mother’s amended minute of orders came in to existence following discussions with the ICL. I make no comment – because the circumstances speak for themselves – as to why the further protective orders sought were not originally sought by the Mother.
I would only add that:
(a)The order in relation to alcohol testing should be amended to read that such testing shall be monthly until further order following the release of the family report; and
(b)Notation C to the amended orders sought should read and will read: the matter be adjourned to a date to be advised after the release of the family report.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 23rd September 2015
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