Quentin & Metcalfe - [2009] FMCAfam 509

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QUENTIN & METCALFE

[2009] FMCAfam 509

FAMILY LAW – Parenting – dispute about allocation of parental responsibility – dispute about the time a child aged four should spend with her father – child currently spending time with the father each alternate Saturday – where mother has concerns about the father’s capacity to parent the child as a result of the father’s long standing problem with alcohol consumption – whether the father should be required to undergo regular tests to monitor his alcohol consumption – extent if any to which the father’s time with the child should depend on him providing satisfactory test results and engaging in therapy or counselling.

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Applicant:

MR QUENTIN

Respondent:

MS METCALFE

File Number:

CAM 339 of 2006

Judgment of:

Terry FM

Hearing dates:

27 & 28 April 2009

Date of Last Submission:

28 April 2009

Delivered at:

Newcastle

Delivered on:

25 May 2009

REPRESENTATION

The Applicant

In person

Counsel for the Respondent:

Mr Boyd

Solicitors for the Respondent:

Kinnear & Company

ORDERS

That the mother and the father shall have equal shared parental responsibility for the child [X] born in 2004.
That the child shall live with the mother.
That the father shall spend time with the child:
(a)each alternate Saturday from 9.00am until 5.00pm;
(b)each Father’s Day from 9.00am until 5.00pm with this to be in lieu of the father’s time on Saturday if Father’s Day falls on a weekend when the father would otherwise be spending time with the child on Saturday;
(c)each Christmas Day from 10.00am until 3.00pm;
(d)at such alternate or additional times as may be agreed between the parties.
That the father is restrained and an injunction is granted restraining him from consuming alcohol during or in the twelve (12) hours prior to his time with the child.
That the father’s time with the child shall be suspended for half of each school holiday period as agreed between the parties and failing agreement for the first half of each school holiday period in 2009 and each alternate year thereafter and the second half of each school holiday period in 2010 and each alternate year thereafter.
That unless otherwise agreed between the parties the father shall collect the child from the mother and return the child to the mother at the McDonalds restaurant at [B].
That the father shall have telephone communication with the child:-
(a)each Wednesday between 6.00pm and 6.30pm; and
(b)on the child’s birthday with the father to telephone the child on the mother’s mobile and the mother to make the child available to receive the call.
That the mother shall promptly advise the father and keep him advised of her mobile telephone number and shall ensure that the mobile telephone is charged, switched on and accessible to the child between 6.00pm and 6.30pm each Wednesday and on the child’s birthday.
That the mother shall authorise the child’s school to provide the father with copies of all reports, notices, newsletters and memoranda pertaining to the child or to functions or events relating to the child or in which the child may be involved.
That the father shall be at liberty to attend all school functions and events relating to the child or in which the child may be involved which parents are ordinarily permitted to attend.
That each parent shall forthwith (and as soon as practicable) notify the other parent of any illness or injury suffered by the child whilst in his or her care and of the name, address and telephone number of any treating health professional or hospital to which the child has been admitted or in which the child has been treated and shall authorise the treating health professional or hospital authorities to communicate with the other parent on all health issues pertaining to the child. Each party may visit the child in hospital.
That neither party shall denigrate the other in the presence or hearing of the child and each party will use all reasonable efforts to prevent any other person whom they have control or influence from denigrating the other in the presence or hearing of the child.
That pursuant to section 13C of the Family Law Act the parties are directed to enrol in and complete as soon as is reasonably practicable a parenting after separation course conducted by Relationships Australia.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

CAM 339 of 2006

MR QUENTIN

Applicant

And

MS METCALFE

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Quentin and Ms Metcalfe agree that their daughter [X], aged 4½, should primarily live with her mother. They disagree about the following matters:
·whether the parents should have equal shared parental responsibility for [X], or whether the mother should have sole parental responsibility;
·the amount of time [X] should spend with her father;
·whether changeovers should continue to take place at McDonalds [B], or whether they should occur at the [R] Children’s Contact Centre at [B];
·whether the father’s time with [X] should be subject to him engaging in therapy or counselling in respect of his alcohol use and “passing” a test each fortnight.
The father proposed that he and the mother have equal shared parental responsibility. He proposed that [X] spend time with him each alternate weekend from Friday until Monday, each alternate Wednesday overnight to Thursday and for half of each school holiday period, and he proposed that changeovers continue to occur at McDonald’s [B].
The father said that he drank in moderation. He did not accept that he should be required to submit to tests or attend therapy or counselling as a condition of being permitted to spend time with [X].
The mother proposed that she have sole parental responsibility. She proposed that the father spend time with [X] each alternate Saturday for the next twelve months. The mother said however that the father had a long standing problem with alcohol, and that it should be a condition of him spending time with [X] that he submit to tests to establish whether he was drinking to excess, and engage in therapy in respect of his alcohol addiction.
The mother proposed that after twelve months the father spend time with [X] each alternate weekend and for half of each school holiday period, but only if he had “passed” a sufficient number of tests and engaged in the therapy.
The mother proposed that changeovers occur at the [R] Children’s Contact Service at [B].

The evidence

In the father’s case I read his application filed on 4 April 2008 and his affidavits filed on 29 August 2007, 4 April 2008, 12 June 2008 and

20 April 2009
. The father sought the orders contained in his Amended Application filed on 10 August 2007.
In the mother’s case I read her affidavits filed on 3 September 2007, 6 March 2008, and 9 April 2009. The orders sought by the mother were contained in her outline of case document sent to the court on 21 April 2009.
I also read two Family Reports which were prepared by Mr Nick Paris and were released on 8 August 2007 and 18 March 2008.
The father, mother and Mr Paris were cross-examined.
Pursuant to orders made by consent on 10 September 2007 the father was required to “pass” a Carbohydrate Deficiency Transferrin test each fortnight as a condition of being able to spend time with [X].
The father admitted that most of the Carbohydrate Deficiency Transferrin test results he had submitted to the mother’s solicitors in the last six months had been the same “good” test result with the dates altered.
In addition he produced as part of his case a medical report to which he had attached some strips of white paper, effectively hiding part of the contents of the report. He readily admitted that he had covered up parts of the report to hide information from a prospective employer when he used the report in a job application.
The father could see nothing wrong with what he had done. Clearly in the father’s view the end (seeing [X] or giving himself a better chance of securing a job) justified the means.
As a result of the father perpetrating these deceptions I do not treat him as a witness whose evidence can be accepted unless unchallenged or corroborated.
The mother was a credible historian. However when different conclusions were open on the one set of facts the mother was almost always inclined to assume the worst and the conclusions she drew did not always seem to be soundly based. An example was her assumption that there was something sinister in [X] coming home from her father wearing the spare clothes her mother had sent with her.
Mr Paris was cross-examined by telephone and was a credible witness. The accuracy of the factual information in his reports was not challenged by either the mother or father during cross-examination. His observations about the parties were insightful and consistent with the way in which they presented at the hearing before me and the conclusions he drew were logically based on the information he had been given. I place weight on Mr Paris’s evidence.

The history of the parent’s relationship

The father and mother were both in their forties when they met at Corlette in 2003. The father had ended a twenty year marriage in 2000 and had an adult stepson and three sons who were in their mid to late teens. The mother’s daughter [Y], whom she had brought up as a single parent, was then about twenty-one.
The father and mother initially had a brief relationship. After the relationship ended, the mother discovered that she was pregnant. She informed the father. Toward the end of the mother’s pregnancy the parties resumed their relationship, but it proved always to be an on and off relationship.
In November 2004 when [X] was born the father and mother were living together, but the father moved out when [X] was less than a week old, and went to live with his mother in Canberra. The parties continued a casual relationship.
In June 2005 the father and mother commenced living together in Queanbeyan. They married in July 2005 and separated in August 2005. They never lived together again, although a casual relationship continued between them until late 2005.

The father’s time with [X] after the final separation

[X] has always lived with her mother. Between August 2005 and December 2005 the father saw [X] reasonably frequently, usually with the mother present. In December 2005 the visits stopped and in March 2006 the father commenced court proceedings in the Federal Magistrates Court in Canberra.
The mother’s concern about the father’s drinking habits, and her belief that the father’s drinking might result in [X] being exposed to risk of harm in his care, has always been an issue in these proceedings.
It was the mother’s case that between 2003 and 2005 she observed that the father regularly consumed large amounts of alcohol. The mother said that during her relationship with him the father:
·drank alcohol every day;
·consumed up to ten cans of full strength beer or five 750ml bottles every twenty four hours;
·would fall asleep, vomit, or have difficult walking as a result of alcohol consumption, and his speech would become slurred.
·became argumentative and verbally abusive, and on two occasions was physically abusive to her, after consuming alcohol.
I accept the mother’s evidence about what she observed and experienced.
In April 2006 after a contested interim hearing in the Federal Magistrates Court at Canberra, orders were made which permitted the father to spend time with [X] each Saturday, for two hours on the first two occasions and thereafter for four hours. The father was restrained from consuming alcohol for ten hours prior to or during his time with [X].
At about the time these orders were made the father was charged with High Range PCA, his eighth drink driving charge.
The father spent time with [X] in accordance with the orders. In July 2006, the mother relocated from Goulburn to Newcastle. At first she continued to take [X] to Goulburn to see the father, but not long afterwards the parties began to share the travelling, with the father either travelling to Newcastle or meeting the mother part way between Goulbourn and Newcastle.
In November 2006 the proceedings were transferred to the Federal Magistrates Court at Newcastle. In February 2007, the father moved to Newcastle.

The first Family Report

In April 2007 a Family Report was ordered. It was prepared by

Mr Nick Paris and was released on 8 August 2007.
The father gave Mr Paris the following history:
·he joined the Navy at fifteen and a half, and remained in the Navy for four and half years;
·during this time he ‘binged on alcohol’ and had five drink driving charges before he turned twenty one;
·he married at twenty one and during the first seven years of his marriage he ‘drank heavily.’ He then gave up drinking for seven years;
·he had had a further three drink driving charges ‘in the last few years.’[1]
[1] Family Report released 8 August 2007 paragraphs 16-18
The police records produced on subpoena at the hearing before me confirmed that between 1979 and April 2006, the father was charged with eight separate drink driving offences. On two occasions in 1982 his readings were over .2. In 1998, 2000 and 2006 the father was charged with High Range PCA.
The father has been fined, placed on a good behaviour bond, and sentenced to terms of imprisonment for the drink driving offences. Most of the terms of imprisonment were suspended but on one occasion he was required to serve a month in prison. He has repeatedly been disqualified from driving. In 2006 his licence was suspended for five years, until 9 April 2011.
After his convictions in 1984 and again after his conviction in 2006, the father was placed on a bond with a condition that he attend a program to address his problem with alcohol abuse. In the August 2007 report Mr Paris observed that “it was fair to say that the father had had some ad hoc sessions of counselling after his 2006 conviction, but had not engaged in a therapeutic relationship for his problems with alcohol.”[2]
[2] Family Report released 8 August 2007 paragraph 25
Mr Paris observed [X] with the father during the process of preparing his report and his observations of their relationship were positive. He recommended that [X] spend a twenty four hour period with her father on one occasion each week, that the father engage in a drug and alcohol assessment followed by being involved in a counselling relationship with a recognised clinician in this field, that a report be obtained from that clinician and that an updated family report be prepared in six months time.
Mr Paris concluded as follows:
“There is no doubt [the father] presents as a man who has had a long standing history of alcohol abuse, and as a result questions must be raised about his parenting capacity both previously with his eldest three sons, and subsequently with [X]. Although not doubting [the father’s] desire to have an integral relationship with [X] for the long term, questions must be raised over his current parenting capacity, whilst he has unaddressed issues with alcohol, and simultaneously is not engaged in a therapeutic relationship.”[3]
[3] Family Report released 8 August 2007 paragraph 31.
The tenor of Mr Paris’s recommendations was that if the father wanted to spend more time with [X] than he was then having he needed to address his issues with alcohol consumption. Mr Paris said as follows however:
“Despite [the mother’s] heightened concerns about [X] spending unsupervised time with the father, there is no immediate evidence to suggest that [X] is at immediate risk of being in the care of her father for a relatively short period of time.”[4]
[4] Family Report released 8 August 2007 paragraph 55

The interim orders made on 10 September 2007

The first family report was released on 8 August 2007 and the matter came before the Federal Magistrates Court in Newcastle again on

10 September 2007
. It was listed for final hearing in April or May 2008 and an updated Family Report was ordered.
On that day the parties also agreed on new interim orders. The new orders provided for the father to spend time with [X] each alternate Saturday between 9.00am and 5.00pm and continued the prohibition on the father consuming alcohol during or immediately before this time. The sting in the tail for the father however was that this time was to be suspended if the father failed to “produce a test result or returns a positive result for a test conducted pursuant to Order 10, such suspension to continue until the father produces a negative test result.”
Order 10 provided as follows:
“The father attend fortnightly upon a pathology laboratory and do all acts necessary to have a Carbohydrate Deficiency Transferrin Test performed and provide a copy of the results of those tests to the solicitor for the mother within 7 days of receipt.”
The father was legally represented on 10 September 2007 but to be fair to the father there was no evidence that he understood on that day what a Carbohydrate Deficiency Transferrin test involved. He complained almost immediately the orders were made that he could not afford to pay the $60.00 required to have the test done every fortnight and he complained that the test was unproven. He said that a Liver Function Test was covered by Medicare and that he had been told by a doctor that this was the test normally done when excessive alcohol consumption was an issue. [5]
[5] Father’s affidavits 12 June 2008 paragraphs 7 & 12, Father’s Affidavit filed 4 January 2008.
Between 10 September 2007 and 3 November 2007 the father did not have any tests done in accordance with order 10. He nevertheless spent time with [X] on the alternate Saturdays. The mother said that she let the father spend time with [X] because she assumed that he was having the tests done and was sending the results to her solicitors. When the mother found out after the 3 November visit that the tests were not being done, she refused to agree to further visits.
On 11 December 2007, the father arranged to have a Liver Function Test performed. The Liver Function Test showed a reading for GGT (gamma glutamyl transferase) which was considerably higher than the normal range. This test was sent to the mother’s solicitors, but the mother would not accept it in place of a Carbohydrate Deficiency Transferrin test.
In January 2008, the father applied to the court to change the orders so that he need only provide a Liver Function Test. His application was dismissed and the 10 September 2007 orders continued in force. The father did not have any of the required tests done, and he did not see [X].

The second family report

By the time the interviews for the second family report were conducted in March 2008 the father had not seen [X] for four months. Mr Paris’s observation of the father and [X] still suggested however that they had a positive relationship.
Mr Paris noted the father’s complaint that he could not afford the Carbohydrate Deficiency Transferrin tests. Mr Paris said as follows:
“Clearly the father’s lack of commitment to both the therapeutic process and the Carbohydrate Deficiency Transferrin testing remain of concern. However, in my view if the father is able to provide evidence to the court that he has participated in other appropriate testing regarding his alcohol consumption, then I believe it is in the subject child’s best interests that she recommence spending time with the father as per the orders of September 2007 whereby he spends a full day with [X] every fortnight Saturday.”[6]
[6] Family Report released 18 March 2009 paragraph 26.

Mr Paris recommended that if the father participated in appropriate testing and counselling then after three months he commence spending time with [X] for a full twenty four hour period every fortnight from Saturday until Sunday.

Events after the preparation of the second family report

Nothing came of Mr Paris’s recommendations that the father be permitted to participate in other appropriate testing. A final hearing was conducted on 30 April 2008. As a result of the ill health of the Federal Magistrate who heard the case, judgment was never delivered.
On 15 May 2008 the father attended at [H] Medical Centre and arranged to have a Carbohydrate Deficiency Transferrin test performed. The result contained the following notation:
“The current Carbohydrate Deficiency Transferrin does not support excessive alcohol consumption intake in the 7-10 days prior to the sample collection.”
The father sent this test result to the mother’s solicitors but the mother did not make [X] available to spend time with the father. She proposed that the father spend time with [X] on a supervised basis. On 12 June 2008 the father filed a contravention application. The application was not immediately heard. On 25 August 2008, the father supplied two further Carbohydrate Deficiency Transferrin test results for tests performed on 2 June 2008 and 16 June 2008.
The contravention application was heard on 25 September 2008 and for reasons not available to me was dismissed. The mother said that she was however informed by the presiding Federal Magistrate that she must comply with the orders if the father produced a satisfactory test result. The husband produced a further test result, dated 25 September 2008, and the mother agreed to the father spending time with [X] on

4 October 2008
.
The father’s time with [X] on 4 October 2008 occurred, the father not then having seen [X] for nearly twelve months.
The father thereafter spent time with [X] on 1, 15, and 29 November and 3 December 2008. He did not spend time with her on 18 October 2008 because he did not supply a test result prior to the 18 October scheduled visit. The mother’s solicitor’s office was closed over the Christmas period and as a result the mother did not receive a test result prior to 27 December 2008 and did not make [X] available on that day.
The father spent time with [X] on 24 January 2009, 21 February 2009, 21 March 2009 and 3 April 2009.
The father supplied test results to the mother prior the visits on 1, 15 & 29 November, 13 December, 24 January, 21 February, 21 March and 3 April 2009.
The records from Symbion Laverty Pathology, who conducted tests on samples provided by the father, were produced in answer to subpoena at the final hearing. The records showed that the last Carbohydrate Deficiency Transferrin Test on the father was done on 23 October 2008. That test result contained a notation that “the raised Carbohydrate Deficiency Transferrin indicates probable excessive alcohol consumption.”
The father admitted that he had not had any tests done since October 2008, and that in order to be able to see his daughter, he had altered the dates on a “good” test and faxed tests with altered dates to the mother’s solicitors on numerous occasions.
The father was unrepentant about what he had done. He complained that he could not afford the Carbohydrate Deficiency Transferrin Tests which previously cost $60.00 per test and now cost $40.00 per test. He also said that he found being required to do the tests humiliating.
I do not accept these excuses. The father spends discretionary amounts each week on alcohol and it beggars belief that he could not have found $20.00 or $30.00 per week to pay for the tests had he chosen to do so. In my view the real reason the father did not have the tests done was not money or embarrassment, but because he knew full well that the tests would show that he had been drinking.
The 10 September 2007 orders also required the father to “engage in a course of therapeutic counselling in relation to alcohol abstinence….such counselling to be with the intent that the father remains alcohol free.”
After the orders were made the father attended some counselling sessions in Canberra with “Directions ACT” which accepted the father’s claim that his drinking was limited to social functions. Directions ACT said that they had no concerns regarding the father’s drinking levels.[7]
[7] Annexure A – Father’s Affidavit filed 12 June 2008.
The father also said in his 12 June 2008 affidavit (referring to the 10 September 2007 orders) that:
“Since 30^th April 2008 I have been seeing a counsellor at [C] Hospital. I will continue to see him on a monthly basis.”[8]
[8] Father’s affidavit filed 12 June 2008 paragraph 5.
It became apparent at the hearing before me that this evidence was not entirely accurate. The father said that he had seen a Drug and Alcohol Counsellor at [C] Hospital on two occasions for periods of 10 and

20 minutes respectively. He said that the advice he was given was that he should ring the counsellor if he felt that he needed help. The father has never rung the counsellor requesting help.

Conclusions about the father’s alcohol consumption

The father said that he “was not prepared to give up alcohol completely.” He said that he should be able to socialise with alcohol when [X] was not with him.
In his affidavit filed on 29 August 2007 the father said that he currently drank only once a fortnight, usually two stubbies of beer. I do not accept that this evidence was true or that it is representative of the way in which the father currently drinks. I do not accept that the father’s consumption of alcohol is currently moderate.
The last Carbohydrate Deficiency Transferrin Test the father had done, on 23 October 2008, contained a notation stating that the raised Carbohydrate Deficiency Transferrin reading indicated probable excessive alcohol intake in the preceding 7-10 days.
The father questioned the validity of the Carbohydrate Deficiency Transferrin Tests and it is true that no evidence was given in the case which would allow me to make findings about the merits of this test. However when the test the father said should be preferred, the Liver Function Test, was carried out on the father in December 2007 and January 2008, the results showed that the father had GGT readings well above the normal range, and this also is consistent with excessive alcohol consumption.
I do not accept the father’s evidence that he ceased having the Carbohydrate Deficiency Transferrin Tests done because he could not afford them. I consider that he stopped having the tests done because he knew that they would reveal excessive drinking.
The father was not a witness of credit and when the evidence is taken as a whole, I consider that it is open to me to find that the father continues to this day to drink to excess on occasions.
It is highly likely that the father would only be able to provide regular test results which were satisfactory to the mother if he ceased drinking altogether. The 10 September 2007 orders indeed envisaged the father engaging with a counsellor “with the intent that he remain alcohol free”.
The father is not willing to cease drinking completely. He has not previously engaged in therapy when ordered to do so.
It is in my view highly likely that if the father’s time with [X] is made conditional on him “passing” regular tests and engaging in therapy, his time with [X] will either cease or become irregular.

The current circumstances of each parent

The father is 48. He lives in a rented one bedroom flat in [H]. The father said that he mainly lived alone although his son [Z] lived with him sometimes. The father said that his lease was up in June 2009, and that if he was able to have [X] overnight he would obtain two bedroom accommodation so that [X] could have her own room.
The father suffered a back injury some years ago. He returned to work in January 2009 as a storeman/maintenance person but ceased work in April 2009 after injuring his back again. The father said that he hoped to start a small business [occupation omitted] and had been approved to receive government assistance to start the small business.
I accept the father’s evidence that he is on good terms with his adult stepson and three adult sons. Some of them sat in the back of the court on the first morning of the hearing, and the mother did not challenge the father’s claim that he had a good relationship with them.
The mother is also 48. She lives with [X] in suitable accommodation in the [H] area. The mother is in receipt of Centrelink benefits and is engaged in the care of [X] and some study.
The mother is on good terms with her adult daughter [Y].

[X]’s best interests

[X]’s best interests are the paramount consideration. Section 60CC(2) & (3) of the Family Law Act contains the considerations to which I must have regard in determining [X]’s best interests.
The primary considerations in s.60CC(2) are as follows:
“a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”
[X] will benefit from having a meaningful relationship with both of her parents. The extent to which [X] is able to have a meaningful relationship with her father will depend however not on any orders I make, but on whether the father can overcome his alcohol problem.
I must consider the need to protect [X] from physical or psychological harm from being exposed to abuse neglect or family violence.
There is no evidence that [X] is likely to be exposed to abuse neglect or family violence in the care of her mother.
I do not consider that [X] is likely to be exposed to abuse or family violence in the father’s care.
I will consider the issue of the risk posed to [X] by the father’s alcohol consumption in the context of the capacity of each parent to provide for the needs of the child, rather than specifically considering whether [X] might be neglected in the father’s care if he consumed alcohol to excess while she was with him.
Turning to the additional considerations in s.60C(3) I must first consider any views expressed by the child, and any factors (such as the child’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Neither parent suggested that [X] was expressing a view about parenting arrangements.
I must consider the nature of the relationship of the child with:
a)each of the child’s parents; and
b)other persons (including grandparents or other relatives of the child).
[X] has a good relationship with her mother.
The father maintained that he also had a good relationship with [X]. He said that she skipped up to him at changeovers. He said that he took her to the beach and the park, and that [X] liked playing with dolls and put on little plays for him in the park. He said that they read stories together.
The father talked knowledgably and with great fondness about his daughter but if the only evidence I had about [X]’s relationship with her father was the father’s evidence, I would have to be cautious as the father was not a credible witness. However the mother conceded that [X] went happily to her father at changeovers and talked happily about the activities she did with her father. The mother said in oral evidence that “[X] is excited to be with [Mr Quentin] and play with him.”
Mr Paris observed a good relationship between the father and [X]. In his August 2007 report he said as follows:
“[The father] engaged with his daughter in structured play, with [the father] appearing to be very nurturing in his approach. [X] reciprocated her father’s affection, whilst [the father] adopted an educational approach in his play with his daughter. [X]’s language increased during the observation, demonstrating that she was able to speak in short sentences, as well as being able to identify some colours. There were no overt child protection concerns during the observation.”[9]
[9] Family Report released 8 August 2007 paragraph 51
At the time of the interviews for the second family report in March 2008, [X] had not seen her father for four months. Mr Paris observed that:
“Although it is clear that [X] is able to speak in short sentences, she did not speak to her father throughout the entire observation. [The father] engaged his daughter by nurturing her appropriately, and reading her a book which he brought with him to the observation. Despite the child not responding to the father’s attempts to engage her in conversation, she did not appear frightened or resistant to her father’s affection. The father subsequently engaged [X] by way of humour, which [X] found enjoyable.”[10]
[10] Family Report released 18 March 2008 paragraph 24
I accept that [X] has a good relationship with her father.
No information was provided by either party about [X]’s relationship with her half siblings or other extended family members. I can only infer that these relationships do not cause any concern to either parent.
I must consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
It was the father’s case that the mother was overstating her concerns about his alcohol use and that her real objective was to squeeze him out of [X]’s life because she did not like men or value the involvement of a father in a child’s life. The mother’s elder daughter [Y] had nothing to do with her father, and the father said that the mother wanted the same for [X].
There is no doubt that the mother has had many bad experiences with men. As a young child she was sexually abused by her brothers and their friends. As an adult she was a rape victim. However the evidence about the father’s history of alcohol use and abuse and the extent of the father’s drinking when the mother was with him suggest that there is sound reason for the mother to be concerned about the father’s drinking and that the mother is not overstating her concerns about this issue for some ulterior motive.
The father’s claim about the mother’s motivation was considered by Mr Paris. He said as follows:
“In my view, it does not appear that [the mother] wishes to exclude [the father] from the long term care of [X], but she remains presently concerned with her daughter’s psychological and physical well being, while [the father’s] issues with alcohol remain unaddressed.”[11]
[11] Family Report released 8 August 2007 paragraph 46
There is no doubt that the mother has reservations about the value to [X] of a relationship with her father but I accept that the reason for this is a valid concern about the father’s drinking and the impact it may have on his capacity to care for [X].
I am satisfied that the father has a reasonable willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the mother. To his credit he said that he “trusted the mother as a Mum” and said that “I think my daughter is safe with her.”
I must consider the likely effect of any change in the child’s circumstances, including the likely effect of separation of the child from:
a)either of her parents; or
b)any other child, or other person (including any grandparent or other relative of the child) with whom the child has been living.
The orders each party sought, if made, would result in a change of circumstances for [X].
The father proposed that [X] spend time with him from Friday afternoon until Monday morning each alternate week, and for half of each school holiday period. [X] has spent only one overnight with the father in her life, and that was when she was a baby or toddler.
[X] is four and a half years old and has a good relationship with her father. There is no reason to suppose that she could not cope with spending time with him from Friday until Monday.
Half of the school holidays would represent one week periods except at Christmas, when half of the holidays is three weeks. [X] will be nearly five before the mid-year holidays, and the Christmas school holidays could be broken down into shorter periods until [X] is a little bit older. There is no reason to suppose that [X] would not cope if she spent school holiday time with her father.
The benefit to [X] of spending longer periods of time with her father are that the father could then be involved in a greater range of tasks associated with her care. Having [X] for holiday periods would enable the father to take [X] to visit her paternal grandmother, who lives in Canberra, and would allow her to have interaction with her older brothers.
The detriment to [X] of spending longer periods of time with the father would be potential exposure to the father in an intoxicated state. Common sense suggests that if the father became intoxicated he would not be able to adequately supervise or perform basic tasks for his daughter.
The orders sought by the mother were that the father’s time with [X] each alternate Saturday be dependent on him producing a satisfactory Carbohydrate Deficiency Transferrin test result before each period of time for the next twelve months.
I consider that the likely outcome of such an order would be that the father’s time with [X] would cease or become irregular. The father might again attempt to get around the requirement by fraudulent activity but the chances of him getting away with this again would not be high, as the mother will be especially vigilant after the events of the last six months.
A possible effect of the orders sought by the mother therefore would be the loss to [X] of a relationship with her father. The father may not be perfect but [X] has a good relationship with him and is accustomed to spending time with him and in my view it would be detrimental for [X] if her father was lost from her life.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with a parent on a regular basis.
This is not a relevant consideration in this matter.
I must consider the capacity of each of the parents to provide for the needs of the child, including her emotional and intellectual needs.
I am satisfied that the mother has the capacity to provide for [X]’s needs, including her emotional and intellectual needs.
The issue of whether the father has the capacity to provide for [X]’s needs was a central issue in these proceedings.
When the proceedings originally commenced in 2006, the mother said that she was concerned about the father’s mental health and concerned that he may be using excessive amounts of codeine. No issues about the father’s use of codeine were raised at the hearing before me.
The mother informed Mr Paris during each of her interviews that she believed that the father had mental health issues. Mr Paris stated that the mother “was not able to supply the Family Consultant with any substantial evidence to validate her concerns that the father has mental health issues.”[12] There was no evidence given at the hearing before me to validate such concerns.
[12] Family Report released 18 March 2008 paragraph 23
The principal issue which arose at the hearing was the extent, if any, to which the father’s capacity to parent [X] in the future might be compromised as a result of him consuming excessive amounts of alcohol.
Mr Paris made it clear that he would not be concerned if the father was drinking one or two stubbies per night, but said that the father’s history meant that he was not a person who could be trusted to stop at one or two stubbies.
The following exchange occurred between the father and Mr Paris:-
Father“Even if I’m a drunken pisshead or an alco, is it possible people can still be good and loving parents with an addiction.”
Mr Paris“It’s not possible if you’re intoxicated to be an acceptable parent. You can’t discharge your parental responsibilities if you are intoxicated.”

Mr Paris also said in answer to a question by the father that “If you overcome this you will reward your daughter by being a far better parent. If you struggle with issues of alcohol you will only be able to have a limited involvement with your daughter and won’t be able to maximise your relationship with her.”
Common sense suggests that the father’s judgment and his capacity to care for [X] will be impaired if he actually consumes an excessive amount of alcohol while she is in his care.
There was no evidence in the case however to support a finding that if the father consumed alcohol to excess during the 7 – 10 days prior to him spending time with [X], he could not adequately parent her while she was with him provided that he abstained from consuming alcohol while she was with him. The difficult issue is whether he can be trusted to do that, and if so over what period of time.
I must consider the attitude of each parent to the duties and responsibilities of parenthood.
The mother has shown a good attitude to the duties and responsibilities of parenthood in striving to ensure that [X] is protected from exposure to the father’s excessive alcohol consumption.
The father said that he would like to improve his relationship with the mother and observed that if they could get on with each other that would be in [X]’s best interests. The father said that he was willing to attend a parenting after separation course to assist him to improve communication with the mother and in this he demonstrated a good attitude to the duties and responsibilities of parenthood. The mother agreed that she would also attend such a course.
The mother complained that the father was not paying child support. The father said that he was subject to a child support assessment and paid what was required. The issue was not examined in any depth at the hearing. If the mother is getting little child support it may well be because, save for a period of about four months earlier this year, the father has not been employed.
It could be argued that if the father truly valued his daughter and truly wanted to be a meaningful part of her life he would give up alcohol completely and that insofar as he is not willing to do this he displays a poor attitude to the duties and responsibilities of parenthood. In my view however it would be simplistic to make such a finding. The difficulties faced by the father in overcoming his alcohol problems after a history of alcohol use and abuse dating back more than thirty years cannot be overstated.
I must consider any family violence involving the child or a member of the child’s family.
The mother alleged that the father had been “verbally abusive and on a couple of occasions….physically abusive to her.”[13]
[13] Mother’s affidavit filed 3 September 2007 paragraph 60. cf paragraph 68
The first incident referred to by the mother occurred on 10 August 2005. The mother said that the father bashed down a bedroom door, grabbed her by the arm, dragged her off the bed entangled in a doona and then dragged the doona twisting her arm behind her back.
The second incident occurred on 21 January 2007, when the mother took [X] to the father’s home for changeover. The mother was late, and said that when she arrived an argument erupted over whether [X] wanted to spend time with her father. The mother alleged that the father shouted at her and shook his fist at her and that she was afraid that he was going to hit her.
During the hearing before me the father became impatient and agitated on a number of occasions, and he showed his agitation by raising his voice and in his body language. I consider it likely that the father did yell at the mother and shake his fist at her on 21 January 2007. I consider it likely that a physical altercation of some kind did occur in August 2005.
The picture which emerged of the father however was of a person who visibly showed his anger and impatience on occasions in challenging situations, rather than of a person who used violence or threats of violence to control others.
The incidents described by the mother can fairly be described as isolated incidents and the altercation at the father’s home must be placed in the context of a long series of otherwise uneventful changeovers. The mother did not suggest that the father had ever been violent or abusive to [X] or to his son [M], who lived with the mother and father in his teens.
I do not consider that there is any evidence that [X] will be at risk of exposure to violence in the separate care of the father or that she is likely to be subjected to violence by the father.
The mother and father have been exchanging [X] at McDonald’s for some time. There was no evidence that the father had ever displayed any aggression or been abusive to the mother at the handovers at McDonalds.
The father alleged that the mother had been aggressive and violent to him, and to his son [Z], on occasions. The father was not a witness of credit and I do not accept his evidence in this regard.
I must consider any family violence order that applies to the child or a member of the child’s family, if:
a)the order is a final order; or
b)the making of the order was contested by a person.
There is no family violence order currently in force. An interim apprehended violence order was made on 15 June 2007 by consent and without admission. It was discharged on 18 April 2008.
I must consider whether it would be preferable to make the order that would be least likely to lead to further proceedings in relation to the child.
It is impossible to predict which order is least likely to lead to further proceedings.

Parental responsibility

Pursuant to s.61DA of the Family Law Act, I am required to apply a presumption that it is in [X]’s best interests that her parents have equal shared parental responsibility for her absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or family violence.
The presumption does not apply if the court considers that it would not be in the best interests of the child for it to apply.
Even if I find that family violence has occurred, it is still open to me to make an order for equal shared parental responsibility, if that is considered to be in the child’s best interests.
There are reasonable grounds to believe that in August 2005 and January 2007 the father committed acts of family violence. The presumption therefore does not apply. These were however two isolated incidents the last of which happened two years ago, and I do not consider that these incidents should mean that there is no further inquiry into whether or not an order for equal shared parental responsibility would be in [X]’s best interests.
If I make an order for equal shared parental responsibility, the parents will be required to consult with each other and to try to reach an agreement about major issues. Major issues might include choice of school, choice of religion, change of surname, relocation or international travel.
Major issues do not arise every day. [X] is a healthy child, and there was no evidence that the parents have radically different views about such things as religion. The only major issue which is likely to arise for [X] in the immediate future is a choice of school. History suggests that the mother is likely to select the school, and the father is unlikely to object to her choice. The father’s evidence was to the effect that he respected the mother as a parent, in all things but her decision to be what he considered obstructive about his time with [X].
Even though major issues are likely to arise infrequently the mother is uncomfortable at the prospect of being required to consult with the father. The mother said that she and the father could not communicate and had a poor relationship.
I am however by no means convinced that the mother and father would be unable to consult productively with each other if a major issue arose, or that the mother should not be required to consult. Dispute resolution services are available to assist parents to discuss issues and reach agreement. The fact that there are no major issues on the horizon for [X], that these services are available, and that the father wants to be part of [X]’s life are all factors which make it preferable that an order for equal shared parental responsibility, rather than an order for sole parental responsibility in favour of the mother, should be made.
The one thing which might make an order for sole parental responsibility preferable would be if the father was unlikely to be spending time with [X]. If that happened he would not have ongoing information about her needs and interests, and would lack the basis to make good decisions for her. The father not spending time with [X] however is only likely to happen if the father is required to provide satisfactory test results or undergo therapy or counselling before being permitted to spend any time at all with [X].
It is usually necessary to make a decision about the allocation of parental responsibility before making a decision about how much time the child is to spend with each of its parents, because if an order for equal shared parental responsibility is made, the court is required by s.65DAA of the Family Law Act to consider making an order for equal time or substantial and significant time.
In this case however, the father did not seek equal time, and the “spend time with” orders he did seek do not come within the definition of substantial and significant time in s.65DAA(3). I therefore consider it appropriate to make a decision about the “spend time with” orders and then return to the issue of whether an order for equal shared parental responsibility would be in [X]’s best interests.

Conclusion

The mother essentially sought a continuation of the interim orders made on 10 September 2007.
If the mother’s proposed orders were made the father would continue to spend time with [X] for the next twelve months from 9.00am until 5.00pm each alternate Saturday, but only if he produced a “satisfactory” Carbohydrate Deficiency Transferrin test result prior to each visit. A satisfactory test result in the mother’s eyes would be one which established that the father had not consumed excessive alcohol in the 7 – 10 days prior to the test.
The mother also proposed that a continuation of the father’s time be conditional on him engaging in therapeutic counselling concerning his use of alcohol.
As I observed to the father’s counsel during submissions, requiring the father to provide satisfactory test results before each period of time he spends with [X] for twelve months is likely to be setting the bar impossibly high. If I make this order, it seems to me highly likely that [X]’s time with her father will cease.
The father has a long history of alcohol related difficulties. As Mr Paris observed, it is impossible to be confident that the father could have a couple of drinks and then stop. It is highly likely that the father could only provide the satisfactory tests on a regular basis if he ceased consuming alcohol altogether. The father is not willing (or perhaps able) to do this at the present time.
It is beyond argument that [X] should not spend time with her father if he is intoxicated. It is also in my view beyond argument that she should not spend time with him if he consumes alcohol while she is with him. The difficulty is that the Carbohydrate Deficiency Transferrin tests will not reveal whether the father has been drinking when [X] is with him. They will only reveal whether the father has consumed alcohol to excess in the seven to ten days prior to the tests.
The issue is whether [X] should be prevented from spending time with her father simply because he may have consumed alcohol to excess over the period of 7 – 10 days before his time with her.
In my view it would not be in [X]’s best interests that I make an order which would potentially sever her relationship with her father unless that was necessary for her health and safety.
No expert evidence was called which would assist me to gauge the reliability of the Carbohydrate Deficiency Transferrin test and would assist me to understand what conclusions could safely be drawn about the father’s parenting capacity from a conclusion that the father had consumed alcohol to excess in the 7-10 days prior to the sample collection.
While regularly consuming alcohol to excess must be damaging to the father’s health, there was no evidence that established that his capacity to care for [X] would necessarily be impaired because on one or more of the days prior to him spending time with her he had been intoxicated.
Mr Paris said that the father came to the report interviews in a sober and clear headed state. I do not read Mr Paris’s reports as suggesting that if the father does not cease drinking he should not see [X] at all. His evidence rather was that unless the father stopped drinking, he should not have any extended time with [X] and that he would not be able to maximise his relationship with his daughter.
The April 2006 orders gave the father a few hours with [X] each Saturday and prohibited him from drinking during that time. The mother was suspicious that the father may have consumed alcohol on one occasion in July 2007 but the mother is inclined to be hyper vigilant about the alcohol issue and showed herself prone to draw conclusions on flimsy evidence. There was no evidence on which I could be satisfied that the father breached the prohibition. Importantly, [X] came to no harm in the father’s care between April 2006 and September 2007 while that order was in force.
Between October 2007 and April 2008 the father spent eight hours with [X] on a number of Saturdays. There was no evidence that the father had consumed alcohol during those periods, and the lack of evidence was not for want of the mother trying extremely hard (both by trying to smell the father’s breath and by questioning [X]) to catch him out. [X] did not come to any harm in the father’s care during those periods.
In my view there is reason to be optimistic that the father can refrain from consuming alcohol for an eight hour period during the day, and there is reason to be optimistic that he could care appropriately for [X] during this eight hour period.
During submissions the father said “I’m not here to get my daughter one day a fortnight.”
I accept that if the father only spends one day a fortnight with [X], his relationship with her will, as Mr Paris described it, not be maximised. He will not see her frequently. He will not be able to have the experience of settling her to sleep and reading her a story at night, attending to her if she wakes in the night, getting her up in the morning and perhaps taking her to school on occasions. He will not be able to take her away on holidays or take her to Canberra to see his mother.
I accept that the father loves [X]. He has an adult stepson and three adult sons who are apparently successfully making their way in life, and it is the father’s case that he had a strong involvement in their upbringing throughout their lives. I accept that the father struggles to understand why he should be judged incapable of spending extended time with [X].
However it is impossible to be confident that if [X] spent three nights with the father, or a week or more with him during school holidays, that he would be capable of abstaining from the use of alcohol for the whole of this period.
I would not be prepared to make an order that [X] spend these extended periods with the father unless he had given up alcohol. He is not willing (and possibly not able) to do that at the present time.
I intend to order that the father spend time with [X] on alternate Saturdays. I intend to order that he abstain from consuming alcohol during and in the twelve hours immediately prior to this time. I do not intend to order that he take part in any tests.
I intend to order that the father’s time with [X] be suspended during half of each school holiday period, so that the mother may have some uninterrupted holiday time with [X] and the ability to take her away on holidays.
I accept that if I make orders for the father to see [X] each alternate Saturday for eight hours, subject to a restraint on him consuming alcohol during or immediately prior to that time, the mother will worry while [X] is with the father.
The mother certainly believes that on a couple of occasions in mid 2007 and October 2007 she may have smelt alcohol on the father. It is easy to sympathise with the mother’s concerns that the father will not abide by a court order prohibiting him from consuming alcohol, as the father has not shown himself to be particularly honest and trustworthy.
There is however no evidence that the mother’s concerns about [X] spending time with the father are so strong and overpowering that her capacity to parent [X] on the remaining 13 days each fortnight will be affected if the father is permitted to spend time with [X] each alternate Saturday.
I can see no point in ordering yet again that the father engage in therapeutic counselling or in making alternate orders to come into effect if he gives up alcohol. If the father does change and become a non-drinker, then he will have to negotiate with the mother about changing the orders or (as a last resort) bring a further court application.
The father sought an order for time on Father’s Day and the child’s birthday. The mother did not specifically address the issue of appropriate time on those days.
I intend to make an order for the father to spend time with [X] on Christmas Day and Father’s Day. Time on [X]’s birthday could be problematic if the birthday falls on a school day and I intend to order only telephone communication on that day. The father can celebrate [X]’s birthday with her on the Saturday closest to the birthday.
I also intend to make an order that the father have time with [X] on Christmas Day.
The mother sought an order that changeovers take place at a children’s contact centre rather than McDonalds [B]. The mother said that she was fearful of the father and preferred not to meet him face to face, even in a public place.
The mother’s claim that she is fearful of the father is difficult to reconcile with the mother’s actions in regularly trying to get physically close enough to the father to smell his breath for alcohol.
The father vehemently opposed the use of such a venue, even though it might have protected him from the mother trying to smell alcohol on him at changeovers. He said that he did not want his daughter involved in an artificial handover involving strangers.
The father’s arguments against the use of a changeover centre are not compelling and would not prevail if there was some good reason to change the handover location. However the parties have done the changeovers at McDonalds for a very long time and there has been no conflict. Mr Paris was of the view that if the child was not being exposed to conflict at changeover a level of discomfort for the mother was not a good reason to insist on changeover occurring at the Children’s Contact Centre.
I do not intend to order that changeovers take place at a children’s contact centre.
As the orders I intend to make will see the father continuing to spend time with [X], I am of the view that it is in [X]’s best interests that I make an order for equal shared parental responsibility.
During the hearing I asked the parties if they were willing to attend a parenting course, to assist them to focus on the future and to find ways to communicate and resolve disputes. The father and mother each said that they were willing to attend such a course and I will make that order.
The 10 September 2007 orders provided for the father to have telephone communication with [X]. There has been little if any telephone communication in recent times. The father accused the mother of not taking his calls or cutting them short. The mother claimed that the father did not call. When the father sought to change the day of the calls from Thursday to Wednesday because he was attending a men’s support group on Thursday, the mother would not agree.

The father will only be seeing [X] once a fortnight and I intend to make an order for telephone communication on one occasion each week. For [X]’s sake I hope that the father will make an effort to call and that the mother will make an effort to ensure that the call is received and that [X] is made available to talk to the father.
For all the above reasons the orders of the court will be set out at the beginning of the judgment.

I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of Terry FM

Associate: Rachel Hodgson

Date: 25 May 2009