Patrick & Patrick (No 2)
[2024] FedCFamC2F 528
•30 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patrick & Patrick (No 2) [2024] FedCFamC2F 528
File number(s): BRC 6937 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 30 April 2024 Catchwords: FAMILY LAW – application for review – review of Senior Judicial Registrar’s decision – interim parenting orders allowing for unsupervised time with the father – father’s admitted history of alcohol abuse and some family violence and breaches of domestic violence orders – alleged unacceptable risk requiring ongoing supervised time only pending final hearing – no unacceptable risk found – application for review largely dismissed – additional interim order providing that father’s time suspended until satisfactory CDT result Legislation: Family Law Act 1975 (Cth) Cases cited: Deiter & Deiter [2011] FAMCAFC 82
Goode & Goode [2006] FamCA 1346
Keane & Keane (2021) 62 Fam LR 62
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Division: Division 2 Family Law Number of paragraphs: 38 Date of hearing: 17 April 2024 Place: Hobart Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Hey Family Law Counsel for the Respondent: Mr Trout Solicitor for the Respondent: Browns Lawyers ORDERS
BRC 6937 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PATRICK
Applicant
AND: MS PATRICK
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
30 APRIL 2024
THE COURT ORDERS THAT:
1.UNTIL FURTHER ORDER, should the Father fail to comply with monthly CDT testing according to Order 8(c) of the Court’s Orders of 19 March 2024, his time pursuant to Order 2 of those Orders is suspended until he satisfies the conditions of Order 8(c) and Order 9.
2.The application for review filed by the Mother on 26 March 2024 is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
This judgment concerns interim parenting orders that come for determination pursuant to an application for review by Ms Patrick (“the mother”) filed 26 March 2024. The respondent to the application for review is Mr Patrick (“the father”).
In effect, by her application the mother seeks to discharge a number of interim parenting Orders made by a Senior Judicial Registrar on 19 March 2024. Those Orders provided for the father to spend fortnightly unsupervised time with the parties’ two children, X and Y (“the children”).
LEGAL PRINCIPLES
As this is an application for review, the hearing of the application is de novo, meaning that I stand in the shoes of the Senior Judicial Registrar who made the interim parenting Orders on 19 March 2024 and redetermine what interim parenting orders should be made.
I am required to apply the provisions of Part VII the Family Law Act 1975 (Cth) (“the Act”) and the pathway described in Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4 of the Act. The primary considerations in s 60CC(2) of the Act as they are to be applied to the untested evidence relied upon by the parties pursuant to s 60CC(2A) of the Act are particularly important, given the nature of the allegations made against the father about the risk he poses to the children due to alcohol abuse and family violence.
However, caution must also be applied as the allegations have not been tested, and the father admits he abused alcohol but says he no longer does so and does not present an unacceptable risk of harm to the children.[1]
[1] Deiter & Deiter [2011] FAMCAFC 82; and Marvel & Marvel [2010] FamCAFC 101.
Necessarily, because the evidence in dispute is untested, the Court relies on what is not in dispute or unchallenged evidence, and its impressions formed by the nature and detail of the evidence relied upon by each party.[2]
[2] Marvel & Marvel [2010] FamCAFC 101.
What orders are made about the father’s time with the children should be based on a discretionary assessment of what is in the best interests of the child, prioritising their protection over the maintenance of their relationship with the father and informed by all considerations in s 60CC(3) of the Act, as instructed by the authorities.
COMPETING PROPOSALS AND CONTENTIONS OF THE PARTIES
Mother’s case
The ultimate contention in the mother’s case was that the father posed an unacceptable risk to the children, hence time in the interim should only occur on a supervised basis.[3] The mother relied on the documents listed in her case outline filed 8 March 2024, which are extensive. I have read all the materials but only refer to those that are of relevance and assistance in determining this review.
[3] Mother’s case outline filed 8 March 2024 at p 4 and oral submissions made by counsel for the mother at the review hearing on 17 April 2024.
The submissions for the mother focused on family violence by the father and allegations of breaches of family violence orders, Court orders relating to carbohydrate deficient transferrin (“CDT”) tests and the father’s time with the children pursuant to the interim spend time with orders.
Ultimately, the submission was that the materials relied upon by the mother demonstrated that the risk of harm to the children in the father’s unsupervised care was due to the cumulative effect of:
(a)Repeated breaches of family violence orders and incidences of family violence when the children were present;
(b)Non-compliance with CDT testing and a cavalier attitude to the purpose the testing served in ensuring the children were not exposed to inappropriate behaviour due to alcohol abuse and assuring the mother the children would be safe;
(c)The father’s wilful attitude in not following the rules and Court orders generally;
(d)The clear risk of the father relapsing into alcohol abuse;
(e)The father not successfully completing alcohol rehabilitation;
(f)The absence of evidence from the father’s family members about his abstinence from alcohol and the welfare of the children, given the father spends time with the children in the paternal grandparents’ home;
(g)The father’s denials of family violence in the face of evidence of this before the Court; and
(h)Inappropriate language and attitude towards children’s anatomy in the context that the father claims his daughter has exhibited sexualised behaviour towards him.
The father’s case
In short, the father contended that he did not pose an unacceptable risk of harm to the children and that the Senior Judicial Registrar had made the correct decision in that regard. He sought orders as set out in the case outline filed on his behalf on 5 March 2024 or, alternatively, an order that the application for review be dismissed.
It was submitted that the mother’s motives in seeking the orders she did were not genuinely for the protection of the children, but instead to promote the outcome she sought on a final basis. Namely, an outcome that the mother has sole parental responsibility and the children not spend any time with the father.
Counsel for the father properly conceded that the father’s alcohol abuse history did pose a risk of harm to the children but submitted that it was not an unacceptable risk and the parenting orders needed to be proportionate to the risk of harm.[4]
[4] Keane & Keane (2021) 62 Fam LR 62 at [84], citing Blinko & Blinko [2015] FamCAFC 146 with approval.
It was submitted that the evidence of the CDT tests showed that the father had largely complied with required testing and had provided explanations for missed tests. Further, that the test results demonstrated in the father’s affidavit could “hardly be lower”.
It was submitted that the test results showed that the father’s alcohol use was managed but that it would be reasonable to adopt the course I had suggested during argument to further mitigate risk. That course being suspending the father’s time until he undertook CDT testing and returned a test within acceptable limits.
Concerning the domestic violence order breaches, it was submitted that it is wrong to say that the father is being mischievous and does not respect orders or authority because he admits the incidents and submits that they are historical and do not reflect the current level of risk. Counsel submitted that the mother claimed that there was an ongoing police investigation in relation to the incident in late 2023 but there was absolutely no probative evidence about that, such as a police statement or subpoena documents reflecting this. He said that accordingly the Court should give no weight to the mother’s evidence.
It was contended that weight should be given to the views of Ms B, appointed by the Court pursuant to Orders made 18 July 2023 to provide a private family report,[5] and the statements the mother made to her that she aimed to obtain sole parental responsibility and the children not spend time with the father. The mother’s attitude and this review was not about protection but removing the father from the children’s lives.
[5] That report having been filed annexed to the affidavit of Ms B on 19 October 2023 (“the family report”).
As to the seriousness of the admitted breaches of the domestic violence order, it was submitted that they were technical and minor when viewed in context. Further, that there have been no further breaches by the father since late 2023 and that there are no other incidents of violence or concern.
The father’s case placed emphasis on the contents of Ms B’s family report dated 11 October 2023, referred to above at [17], submitting it supported the father spending increasing time with the children.[6]
[6] Affidavit of Ms B filed 19 October 2023 annexing the family report dated 11 October 2023, in particular at 10.18-10.19 of the family report.
UNDISPUTED FACTS OR ISSUES
Based on affidavit material, subpoena material and the mother’s chronology of events, which was not disputed, the following facts are uncontentious:
(a)The father is currently 50 years old and the mother 34 years old.
(b)The parties commenced cohabitation in 2012 and married in 2016.
(c)The eldest child was born in 2018 and the youngest child in 2021.
(d)Domestic or family violence incidents and reports were made in mid-2022, which lead to the issue of a temporary protection order against the father, mostly based on common information provided by the parties. That order was subsequently varied.[7]
(e)The parties separated in June 2022.
(f)The father admits he has an alcohol abuse problem for which he has sought treatment, including periods as an inpatient at several rehabilitation centres between mid-2022 and early 2023, successfully completing two of three programs.[8] However, notably, the father was required to leave rehabilitation in early 2023 due to drinking alcohol and bringing alcohol into the centre.[9]
(g)That the father has been engaging with an alcohol counselling service and psychological support since mid-2023.[10]
(h)The father has been convicted of breaches of the domestic violence order but the seriousness of the natures of the breaches were in issue.
(i)That, pursuant to interim consent Orders made in July 2023, the father has spent supervised time with the children at a contact centre on at least ten occasions in 2023.
(j)That the father cancelled supervised visitations between himself and the children at the contact centre in early 2024.
(k)That the father underwent CDT testing on at least 8 occasions between mid-2023 and early 2024.[11] The reasons given by the father for not fully complying with Orders made on 18 July 2023 relate to the combined cost of the CDT testing, paying for supervision, and discovering that Medicare did not cover the testing costs.[12]
(l)That there was an incident at the mother’s home involving the mother, the father and the mother’s new partner in late 2023 which was reported to police but the detail of what occurred and whether charges are to be laid is in dispute.
[7] Mother’s subpoena tender bundle filed 16 April 2024 at pp 6-10.
[8] Father’s affidavit filed 5 March 2024 at [112], mother’s chronology filed 16 April 2024 and mother’s subpoena tender bundle filed 16 April 2024 at pp 87 & 107.
[9] Mother’s subpoena tender bundle filed 16 April 2024, p 40.
[10] Mother’s chronology filed 16 April 2024 at p 5, item 50 and father’s affidavit filed 5 March 2024 at [107].
[11] Mother’s affidavit filed 8 March 2024 at p 10 and father’s affidavit filed 5 March 2024 at [19].
[12] Father’s affidavit filed 5 March 2024 at [22] and [48].
ASSESSMENT OF POTENTIAL FINDINGS OF FACT
On the basis of the evidence before the Court, I make the following preliminary assessment of findings of fact, preferring the independent views of Ms B in the family report and her observations rather than subjective accounts by each parent:
(a)The children have a loving bond and meaningful relationship with the father and are not fearful of him.[13]
[13] The family report at 8.1-8.8.
(b)The children have a loving and meaningful relationship with the mother and she has been their primary carer pre and post separation.[14]
[14] The family report at 10.3-10.4.
(c)The father admits his alcohol use was a problem and that he used alcohol to excess at various times before and after separation, which caused disputes and arguments between the parties with the father at times being physically and/or verbally aggressive towards the mother.[15]
[15] The family report at 7.24,7.26 and 10.10.
(d)There is a domestic violence order made against the father protecting the mother and children.[16]
[16] Mother’s affidavit filed 12 July 2023 at p 18.
(e)The father has some insight in relation to the harmful effects of alcohol abuse and violence and has taken steps to address the same and the behaviours.[17] However, he is at risk of relapse and has had relapses in the past.[18]
(f)The father’s history of aggression and violence does not fit comfortably with the “traditional” markers of a domestic violence perpetrator.[19]
(g)The father’s behaviours may expose the children to a risk of physical or emotional harm if present at the time of the behaviours and the elder child appears to be aware of some level of verbal and physical aggression by the father.[20]
(h)The children have not expressed any clear or direct views about their attitude to spending time with their father, but the observations of Ms B demonstrate that they enjoy that time and I infer would welcome doing so.[21]
(i)Both parents have a close and loving relationship with the children, who also appear to be developing a relationship with the mother’s new partner who lives with or spends significant time with them.[22]
(j)There is no evidence to suggest that either parent failed to take part in the children’s day to day activities or decision making about major or long-term issues.
(k)There is no evidence to suggest that either parent has failed to fulfil parental obligations or communicate or engage with the children.
(l)Ms B is of the view that it would be harmful for the children to be permanently separated from their father and I accept that view for the reasons she has stated.[23]
(m)There is no evidence of particular practical difficulties or expenses identified to be relevant to the children spending time with the father in an unsupervised setting. But the father has been solely responsible for meeting the cost of supervised time, which can be inferred to pose a financial impost to time occurring.
(n)The mother has a concerning attitude to parenting and her responsibility towards promoting a relationship between the children and the father because she ultimately seeks to terminate the children’s relationship with the father and has stated this to Ms B.[24]
[17] The family report at 10.8-10.9, 10.16.
[18] The family report at 9.3-9.6 and 10.10-10.11.
[19] The family report at 10.14-10.15.
[20] The family report at 7.6 and 10.15.
[21] The family report at 5.5 and 8.1-8.8.
[22] The family report at 6.1-6.2.
[23] The family report at 10.18.
[24] The family report at 3.39.
EVALUATION OF EVIDENCE APPLICABLE TO RELEVANT CONSIDERATIONS
As there are so many uncontentious facts in these proceedings, it is surprising that the application for review had to be determined. It is even more surprising that the mother’s case made little effort to rebut the views of the family report writer Ms B, other than to make a brief reference to the father not fully informing Ms B of the circumstances that led to him leaving the third stint of rehabilitation. This is because expert opinions are known to be a valuable resource for the Court’s assessment of what is in the children’s best interests.
The father admits the existence of the domestic violence orders and the breaches of them at and after separation. The uncontested evidence of each party about pre-separation circumstances conveys a gradually failing marriage contributed to by the father’s medical condition, his use of alcohol and aggression.
However, there is no evidence of violence or abuse towards the mother or children until mid- 2022. Prior to this, there were no reports of family violence and the parties had attended relationship counselling, indicating that they wanted the marriage to continue.
The aggression and violence by the father presented in the context of the end of the marriage is not excusable but appears to be situational and temporally connected to the demise of the marriage.
Since that time the father has admitted breaches of the domestic violence orders but not wholly the circumstances of them as claimed by the mother. His counsel described the breaches as “technical” but it is important to emphasise that a breach is a breach and may be reflective of an element of distain for authority, or a lack of insight and ability to control anger, mood or harmful conduct. Any of the latter conclusions raise concern and potential for the children to be exposed to physical or emotional harm.
In assessing the merit of the contentions for the mother, I do not have the benefit of the parties’ respective evidence being tested, but I am greatly assisted by the views of the family report writer, Ms B, in assessing whether the father is, has or will likely expose the children to risk of harm due to family violence or alcohol abuse related matters individually or cumulatively as submitted on the mother’s behalf.
The father admits to the abuse of alcohol in the past in his affidavits and as reported to Ms B. There is evidence that he is working to address this but it is also apparent that a risk of relapse exists.
On the basis of the evidence before the Court, albeit that it is not tested, there is sufficient material that leads me to consider at this interim stage that the risk of the father exposing the children to either physical or emotional harm is relatively low and that the likely harm that may occur if a risk eventuates is low for the following reasons:
·The father has been undertaking frequent CDT testing and will continue to do so, with Orders providing that if he fails to take a test, time is suspended until he returns a satisfactory result.
·There have been no breaches of the domestic violence order since late 2023 and the existence of that order provides protection to the mother and children, particularly if the mother does not contribute to them being breached by inviting the father to enter the property.[25]
·The father has been spending unsupervised time with the children pursuant to the interim orders and no concerning issues have been reported or are subject of evidence.
·In my view, the evidence and contentions relied upon by the mother tended to distort and amplify the objective evidence of conflict and risk of harm post-separation.
·The existence of protective restraint orders has been achieving the purpose of enabling the children to spend time with the father safely.
·The Court has not been persuaded that it is necessary for the protection of the children to continue the father’s time on a supervised basis.
[25] See, eg, mother’s subpoena tender bundle filed 16 April 2024 at pp 11-23.
DETERMINATION AND CONCLUSION
On the basis of all the foregoing reasons and applying the legal principles referred to above at [3]-[7], I have no hesitation in concluding that the children’s best interests are served by not disturbing the Orders made by the Senior Judicial Registrar on 19 March 2024.
The Orders made by the Senior Judicial Registrar at [7]-[10] afford protection to the children from the potential risks of physical or emotional harm that may arise if the father relapses into alcohol abuse or being aggressive or violent. Further protection can be afforded by suspending the father’s time if he fails to undertake a CDT test according to Order 8(c) of the 19 March 2024 Orders.
I reject the submission that the evidence demonstrates that a more cautious approach is required and that the children’s time with the father be supervised. Accepting the submissions of the mother would unnecessarily sever or fracture the children’s relationship with the father to their detriment, which is known to be emotionally harmful for children.
I acknowledge that the parties have given contested factual accounts of some of the incidents of breach of the domestic violence order. But on most occasions where the father has admitted to breaches of the domestic violence order, the children were probably not significantly impacted.[26] For example, because the breaches were communication related or contributed to by the mother when she and the children were not present.
[26] Noting, for example, Ms B’s observations that the children are not fearful of the father (the family report at 8.8).
Further, there is a dispute about whether the children were present on the occasion of alleged breach in late 2023 and the mother says the father is being investigated by police and will be charged. I give this statement little weight at this stage because it is untested and because of the mother’s attitude towards the children maintaining a relationship with the father.[27] I agree that if the father is or was to be charged, the mother could have obtained probative evidence to that effect from the police.
[27] See above in these reasons at [21](n).
As to the specific contentions at referred to above at subparagraphs [10](c), (d), (e), (f), (g) and (h), I do not regard they heighten total cumulative risks to a level warranting supervised time for the following reasons:
·The testing undertaken by the father is extensive and only some tests have not been undertaken. In short, he has largely complied and this cannot be regarded as wilful opposition to compliance with authority or rules. As to his breaches of the domestic violence order, that is addressed elsewhere.
·There is no “clear risk” of the father lapsing into alcohol abuse. Rather, Ms B says there is a risk but numerous factors inform whether there will be relapse, including whether he is able to continue his relationship with the children which is a protective factor. In any event, the orders of the Court significantly ameliorate this risk.
·Having successfully completed most but not all rehabilitation, the father will be acutely aware that continued relapses will jeopardise his time with the children, and he is continuing to undertake counselling and psychological support. These are protective factors.
·As these are interim proceedings, I am not prepared to draw an adverse inference about the absence of direct evidence from family members.
·The father admits his violence but not all the accounts of such by the mother, and it would be an error to elevate the mother’s account to actual finding of fact in every incidence when the evidence has not been tested.[28]
·The reliance on the subpoena records concerning the father’s use of inappropriate language about children’s anatomy[29] is given little weight in the risk assessment for the following reasons:
·The reports are generalised and lack detail, and could have a range of meanings;
·Had the reports been of serious concern, the rehabilitation providers would have had mandatory reporting obligations to child safety authorities;[30] and
·There is no evidence that the third rehabilitation centre that the father attended were in fact notified, which may mean the reports lacked foundation or were of no significant import.
[28] Marvel & Marvel [2010] FamCAFC 101 at [120].
[29] Mother’s subpoena tender bundle filed 16 April 2024 at pp 115-116.
[30] Noting the evidence before the Court is that the only referral to child safety authorities relates to claims by the father against the mother’s new partner.
Presently, I assess the risk of harm for the children to be low if the father spends unsupervised time with the children according to the regime set out in the Orders made on 19 March 2024. There are multiple considerations that warrant the father’s time remaining unsupervised and gradually increasing as discussed above in these reasons at [21] and the balance of considerations weigh in favour of dismissing the application for review.
Further, the many protective orders are entirely satisfactory in completely ameliorating the low risk to the children including the existence of the domestic violence order, neutral changeover arrangements and the suite of Orders made by the Senior Judicial Registrar.[31]
[31] Orders 6(a)-(h) of the Orders made on 19 March 2024.
In short, the mother’s proposal for the children’s time in the interim is a disproportionate response the level of risk posed by the father and contrary to their best interests.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 30 April 2024
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