Pinho & Pinho
[2022] FedCFamC1F 387
Federal Circuit and Family Court of Australia
(DIVISION 1)
Pinho & Pinho [2022] FedCFamC1F 387
File number(s): SYC 3353 of 2020 Judgment of: CHRISTIE J Date of judgment: 31 May 2022 Catchwords: FAMILY LAW – INTERIM PARENTING APPLICATION – Where the wife is concerned the children are at risk in the husband’s care due to his alcohol consumption – Where the husband agrees to supervised time – Where the husband proposes time be supervised by a friend or family member – Where the wife proposes time be supervised by a professional contact agency – Where the husband consents to testing for excessive alcohol consumption. Legislation: Family Law Act 1975 (Cth) s 61DA(3) Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 20 May 2022 Place: Sydney Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: Dettmann Phair Lawyers The Respondent: Litigant in person ORDERS
SYC 3353 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PINHO
Applicant
AND: MR PINHO
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
31 MAY 2022
THE COURT ORDERS THAT:
Property
1.The Application in a Proceeding for spouse maintenance filed by Ms Pinho (“the wife”) on 11 February 2022 is adjourned to 11 August 2022.
2.The wife shall have sole right of occupation and enjoyment of the property at C Street, Suburb D in the State of New South Wales being Folio Identifier … and Mr Pinho (“the husband”) shall not enter upon the property unless otherwise invited or for the purposes of collecting or returning the children to the wife.
3.The husband shall have sole right of occupation and enjoyment of the property at E Street, Suburb F in the State of New South Wales being Folio Identifier … (“the Suburb F property”) and the wife shall not enter upon the property.
4.The husband shall be responsible for all periodic mortgage payments, statutory rates and charges, other utilities, insurances, outgoings and, expenses in relation to the Suburb F property and shall make all such payments as and when they fall due and the husband hereby indemnifies and shall keep indemnified the wife in respect of all liabilities in relation to the property whenever and however arising.
Parenting
5.X (born in 2011) and Y (born in 2014) (“the children”) live with the wife.
6.The children spend time with the husband each alternate weekend at dates and times to be nominated by the supervised contact provider on the following conditions:
(a)The parties shall share the costs of supervision equally;
(b)The parties are to request that the supervised contact agency provide written reports;
(c)The supervised contact agency is to undertake breath analysis of the husband (using the device provided by the wife) at the commencement and conclusion of the children’s time;
(i)In the event that the breath analysis undertaken in compliance with this order at the commencement of time, indicates that the husband has consumed alcohol, time shall not occur; and
(ii)In the event that the breath analysis undertaken at the conclusion of supervised time indicates that the husband has consumed alcohol, time will be suspended.
(d)The husband undertake carbohydrate deficient transferrin (“CDT”) testing on a random basis but no more frequently than once every six weeks, within two business days of a request by the wife’s lawyers.
(e)The husband authorise the testing facility to furnish the results directly to the wife’s solicitors.
(f)The husband enrol in and complete a Circle of Security and PPP Positive Parenting course, with enrolment to occur within 14 days of the date of these orders.
(g)The husband does not drive with the children in a car.
7.The supervised contact provider for the purpose of Orders 6 and 8 shall be:
(a)In the first instance, G Contact Service, or such other agency as the parties agree in writing; and
(b)As soon as it becomes available, B Contact Service, Suburb Q.
8.Within four business days of these orders the parties are to make contact with the supervised contact provider and thereafter follow all directions or instructions of the provider.
9.Within 14 days, both parties are to enrol and thereafter complete a Parenting After Separation Course.
10.Both parties are to ensure that communication between them in all formats, including face to face and in writing, comply with the following:
(a)The communication must be polite and courteous;
(b)Does not use abusive or offensive language including any swear words;
(c)Makes any comment that is insulting or demeaning of the other party or of any person in the other person’s household;
(d)The communication must relate to the care, welfare, or development of X and Y.
11.Both parties are:
(a)To keep each other informed of their residential address and telephone number at all times;
(b)To keep the other parent informed of the children’s health and any health issues and notify the other parent as soon as practicable in the event of an emergency involving either of them;
(c)To use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family to either of the children or in their presence;
(d)Entitled to attend the children’s sporting events; and
(e)Permitted to receive school notices, information, newsletters, school reports, school photographs and attend all school functions which parents are normally able to attend.
12.Both parties are restrained from:
(a)Criticising or denigrating the other party, or his/her partner and/or family members, in the presents of, or within hearing of the children or on any social medial or other public forums.
(b)Discussing these court proceedings with the children or allowing the children to see or have access to any documents filed or created for the purposes of these proceedings.
(c)Passing information or messages through the children to the other parent.
THE COURT NOTES THAT:
A.The single expert recommends the appointment of an independent children’s lawyer and this recommendation will be revisited if the parenting matter requires further hearing.
B.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
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 the pseudonym Pinho & Pinho has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This interim hearing was concerned with:
(a)An application for interim parenting orders filed by Mr Pinho (“the husband”) and the Response filed by Ms Pinho (“the wife”);
(b)The wife’s application for interim spouse maintenance orders and the husband’s response.
When the matter was listed for interim hearing before me, the wife was represented and the husband appeared on his own behalf.
The husband conceded that his time with X (born in 2011) (“X”) and Y (born in 2014) (“Y”) (“the children”) should be supervised and so the scope of the parenting dispute was significantly narrowed. The wife sought orders that the supervision be professional and the husband resisted that order, chiefly on the basis of its likely cost.
Also at the hearing, it became clear to the wife (for the first time), as a consequence of the late provision of financial documents by the husband, that the husband’s income had in all likelihood decreased and accordingly, the wife sought an adjournment of her spouse maintenance application.
Evidence
The wife relied on:
(a)A Case Outline Document filed 19 May 2022;
(b)A Response to an Application in a Proceeding filed 4 April 2022;
(c)An affidavit by her filed 4 April 2022; and
(d)A single expert report by Ms H dated 16 May 2022 (which became exhibit 2).
The husband relied on:
(a)A Response to an Initiating Application dated 27 September 2021 (containing the husband’s interim orders sought);
(b)An affidavit by him filed 27 September 2021; and
(c)An affidavit by Mr J filed 27 September 2021.
Background
The husband was born in 1975 and the wife in 1976 (“the parties” or “the parents”). The parties commenced co-habitation in June 2008. At the time of the commencement of co-habitation, the wife was the owner of an apartment in Suburb K subject to a mortgage.
The husband purchased E Street, Suburb F (“the Suburb F property”) in his sole name (subject to a mortgage) in July of 2009.
The parties were married in 2010.
There are two children of the marriage: X and Y.
In August of 2013 the parties sold the wife’s property at Suburb K and applied the proceeds of sale to purchase a property in Suburb D, which was purchased in April of 2014. The wife and children continue to reside in that property.
The wife’s affidavit material suggests that the husband has had a significant difficulty with alcohol dependence dating back to at least 2011. In 2018 the husband was charged with a drink driving offence. In early 2019 the husband was again charged with a drink driving offence and an interlock device was installed in his car.
In January of 2019 the husband was admitted to the L Clinic (“the L Clinic”) for a period of four weeks.
In February 2019 the husband commenced the day programme at the L Clinic and commenced working on a part time basis.
In March of 2019 the parties separated in circumstances where the wife alleges that the husband was having a relationship with a person he had met at counselling (“Ms T”) and who had an addiction to methamphetamine.
At the time of separation the parties had $90,000 in a joint bank account. The wife took those funds and placed them in an account in her sole name. The husband for his part said those funds were earmarked for payment of X’s school fees. The wife does not agree that was the purpose of the funds and says she moved them in order to ensure that the husband did not apply them to inappropriate purchases as she alleges that his spending patterns had been effected by his alcohol dependence and/or his relationship with Ms T.
The husband agreed that after separation he lived with friends, including Ms T, but denied that she had a methamphetamine addiction.
In June of 2019 the husband commenced employment with M Pty Ltd (“MPL”) on a full time basis.
After separation the children spent time with the husband on a day only basis but the wife said that time was not without difficulty. She alleged that the husband would telephone her and during those telephone calls, sounded as though he had been drinking. In October 2020, the husband’s contract with MPL ended and he did not have employment. As a consequence he ceased paying bills relating to the former matrimonial home and the wife for her part says she has had need to use the funds which she removed at separation.
The wife says that she attempted to have the children see their father on 24 December 2020 but when she arrived at the husband’s home she found that he had been drinking and time did not occur.
The wife alleges that on 27 December 2020 whilst the children were in his care, the husband fell asleep on the couch and the children were unable to wake him. She attended at the husband’s home to collect the children. The husband said he had not been drinking but was suffering from back pain on that occasion. I am not able to make a finding, save and except that the children were unable to wake their father, and in those circumstances contacted their mother who picked them up.
For some time the husband had telephone contact with the children but the wife’s affidavit material suggests that he spoke to the children about matters that were not appropriately raised with them during electronic communication such as suggestion that: “Mummy is cheating on Daddy” or “Mummy has broken up the family” or “Daddy is a criminal and could go to jail”. The husband does not accept that he spoke inappropriately to the children.
In December 2020 the husband had a further admission to the L Clinic.
The wife raises in her affidavit material a concern that, during the period the husband had the interlock device installed in his car, he could not transport the children from time to time because the car would not operate if he had been drinking alcohol. Accordingly, the children had reported to her that the husband had taken public transport in circumstances where it made little sense. The husband on his part said that he had taken public transport but not because he had been drinking. It is not possible or necessary to make a finding about this issue at this stage of the proceedings given the scope of the parties’ dispute.
On 5 February 2021 the parties had a disagreement as the husband had booked tickets for Y to attend a cricket match. The wife did not think that would be safe and alleged that the husband rang her 20 times. She also gave evidence that her mother had spoken to the husband and reported to her he sounded as though he had been drinking.
The children have not seen or spent significant time with their father since 17 February 2021.
Between 10 March 2021 and 2 April 2021 the husband had a further admission to the L Clinic.
Later in 2021 an incident occurred between the husband and wife. Each of the parties gives a different version of the events on that day but some of the matters are consistent. It was X’s birthday and the husband attended at the wife’s home accompanied by his brother and his brother’s partner. The wife says the husband was intoxicated. He denies being intoxicated. The wife did not allow the husband to enter the home. He did not leave and the wife called the police. The maternal grandfather arrived and the husband entered the home. The wife indicated to the husband that she had called the police. The wife called the police a second time. The police later sought an Apprehended Domestic Violence Order (“ADVO”) for the protection of the wife, following this incident. The husband says the wife was physically aggressive to him on that day. When the matter came before the Local Court, the application for an ADVO was withdrawn. The husband says he thought he had permission to attend at the home that day because there had been an exchange of messages between the parties whereby the wife said to him she would like the husband to sign X’s school acceptance form and he understood that, if he had done that, he would be permitted to see her on her birthday.
Between 6 July 2021 and 2 August 2021 the husband was an inpatient of the L Clinic.
From August 2021 the husband moved into the Suburb F property.
On 9 August 2021 the interlock device which had been installed in the husband’s car as a consequence of his convictions for driving under the influence was removed. In September or August 2021 the husband gained employment with MPL.
Between 29 December 2021 and 15 January 2022 the husband was an inpatient at the L Clinic.
On 27 February 2022 the parents and the children met at the P Shopping Centre and the husband gave the children their Christmas presents.
The wife says that on 8 March 2022 the husband called her four times. It was only on the fourth call that she answered the phone and she says on that occasion the husband sounded intoxicated and she terminated the telephone call.
On 3 May 2022 the parties met with Ms H (“Ms H”), clinical psychologist, for the purpose of preparation of a report (“the report”). That report was released to the parties on 17 May 2022 and was in evidence before me at the interim hearing. The children saw and spent time with their father for the purpose of preparation of the report.
At the time of hearing $16,000 remained of the original $90,000 (“the parties’ funds”) withdrawn by the wife at the time of separation.
Consideration
The husband sought an order for equal shared parental responsibility.
The wife did not seek an order in respect of parental responsibility.
No party made submissions about parental responsibility.
Absent an order, each parent has parental responsibility which may be exercised jointly or severally. There were no issues identified in the material which suggested that it would be necessary for the parties to make any long term decisions for the children or either of them in the short or medium term.
Each party indicated to Ms H that there had been family violence in the form of psychological abuse and some pushing. These are interim proceedings. I am of the view that having regard to the untested nature of the evidence at this stage it would not be appropriate to apply the presumption: s 61DA(3) of the Family Law Act 1975 (Cth). I decline to make an order in respect of parental responsibility.
Ms H identified that “[Mr Pinho] is a loving and well-intentioned father” and the children “want to spend time with him”. As against that, the husband’s long-standing difficulties with alcohol require the court to balance the importance to the children of their relationship with him, against any risk factors for them in his care.
The risks to the children identified by the material (in particular the report) would appear to be:
(a)Alcohol consumption may increase aggression and or belligerent conduct by the husband;
(b)Alcohol consumption may cause the husband to be absent/negligent; and
(c)Alcohol consumption can be dangerous when combined with driving.
There are further risks which the wife identified as potential bases for the time the children spend with their father to be supervised. They include concerns about the husband’s mental health. In circumstances where the time is to be supervised (and the evidence is not tested) it is not necessary to make a finding about whether or not those matters constitute risk (or further risk).
Since the husband accepted that supervision is necessary, then the most significant issue is whether that supervision should be professional.
Professional supervision has the following advantages:
(a)A professional supervisor is objective and owes an allegiance to neither party but is engaged to ensure that the children are protected from risk;
(b)A professional supervisor will prepare reports. Those reports will be of utility to both parents and to the court;
(c)Professional supervision will give the wife some confidence that the children will not be at risk of harm; and
(d)Professional supervision will give the husband evidence which may be useful in establishing how successful (or otherwise) supervised contact has been from the children’s perspective.
The husband submitted that supervision could be undertaken by Ms N (the maternal aunt), Mr O (the husband’s friend) or Mr R (the husband’s friend). Those persons are not on affidavit. In rejecting them as supervisors I am not finding that they would not undertake the role as required but I have no evidence to make any finding as to suitability. The husband then submitted that supervision may transition from friends to his brother Mr J.
In circumstances where the wife raises an allegation that, in the past a family member has not been up to the task of assessing whether or not the husband was affected by alcohol and the children were affected by their father’s arrival at their home in a state which, she contends, was intoxication, it is appropriate to act cautiously and order that the first period of supervision be professional. Mr J did not give evidence about the events of 31 December 2020 or 26 June 2021 despite being on affidavit and did not address the wife’s assertion that he had physically assaulted the children’s father in the children’s presence. In those circumstances he is not an appropriate supervisor.
I accept that neither of the parties have significant funds to provide for professional supervision.
The wife has prepared and filed all of the paperwork necessary to enrol at the B Contact Service (“BCS”) at Suburb Q. When the matter was before me, the husband agreed that he would execute the paperwork as well. The wife’s counsel told me that a position at that contact centre would be available in approximately three months. Accordingly, the period of time that I need to consider is from the making of these orders for a period of three months. I consider as a consequence of the material in the report of Ms H, that there is significant benefit to the children in having a relationship with their father, if they are safe in his care. Professional supervision is up to the task, given the facts and circumstances of this case, of making sure that the children are safe and accordingly, notwithstanding the concerns which have been raised about cost, I think it is in the children’s interests that they have professionally supervised time with their father. If that supervised time is successful the parties may consider transitioning to non-professional supervision or removing the requirement for supervision.
There are two potential sources of funds from which the costs of professional supervision might be met. The wife has some of the parties’ funds which were retained by her at the conclusion of the parties’ relationship and some minimal income. The husband has more income than the wife, but no lump sum. I find that both parents should make a contribution to the costs of professional supervision.
The wife has no capacity to make a contribution from her personal exertion earnings but should be required to make a payment from the parties’ funds. I accept that she will need some of those funds to meet her shortfall and, accordingly, doing the best I can with the available evidence, the parents should contribute equally to the costs of supervision. I was told that the cost was $280 per session with G Contact Service, reducing to $80 per session when BCS becomes available. If time is to occur for three months each alternate weekend at the more expensive service, then I am satisfied the wife has sufficient funds to pay her half from the parties’ funds.
I now need to consider what sort of testing should be ordered. The husband agreed that it would be appropriate that he undertake testing designed to demonstrate whether or not he has been using alcohol to excess. The husband agreed to breath testing, before and after his time with the children. The wife, through her counsel, indicated that she had the breath testing equipment. The two further types of tests which were the subject of evidence were hair follicle testing and carbohydrate deficient transferrin (“CDT”) testing. Given the husband is to be breath tested at the commencement and conclusion of his time with the children, the function of the further testing is not strictly to protect the children in the short term but rather to establish by objective data whether or not the husband has been abstinent from alcohol. This will be relevant to the question of removal of supervision in due course. I am conscious that the parties’ funds are limited and in those circumstances and having regard to the protection provided by the breath analysis to which the husband consented, I find that random CDT testing is appropriate. I will order that the husband meet the costs of this testing.
Once the parties have the benefit of full disclosure in respect of the husband’s current income and the opportunity to consider the financial impact of the orders for professional supervision and CDT testing, they can assess the merits of the adjourned application for spouse maintenance. At this stage it is adjourned until 11 August 2022.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 31 May 2022
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