Rabia & Birthe
[2024] FedCFamC1F 278
•26 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rabia & Birthe [2024] FedCFamC1F 278
File number(s): SYC 2006 of 2021 Judgment of: SMITH J Date of judgment: 26 April 2024 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – application by the father for review – further application by the father seeking leave to re-open the proceedings for the purpose of providing updated CDT tests – mother’s subsequent application to re-open the hearing to adduce further evidence – father seeking to spend overnight time with the child – in circumstances where father has historically failed to comply with CDT testing orders – father relied on expert opinions that there is no evidence of ongoing alcohol misuse and overnight time with the child should commence – discussion as to the weight to be given to expert opinion – finding that the risk of the father’s alcohol abuse and possible disregard for court orders cannot be ameliorated by CDT testing or any other safeguard – mother’s application to reduce time not in child’s best interests - current interim orders to stand. Legislation: Family Law Act 1975 (Cth) Pt VII, Div 5, ss 60CA, 64B, 65AA 65D Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Denham & Newsham (2021) FLC 94-043; [2021] FamCAFC 141
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Hall and Hall (1979) FLC 90-713
HG v R (1999) 197 CLR 414; [1999] HCA 2
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorskiv Albright (2007) 37 Fam LR 518; [2007] FamCA 520
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 120 Date of hearing: 8 September 2023, 17 January 2024 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Mr Sansom SC Solicitor for the Applicant: ATW Family Law Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Santo Family Lawyers Solicitor Advocate for the Independent Children's Lawyer: Mr MacDiarmid ORDERS
SYC 2006 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RABIA
Applicant
AND: MS BIRTHE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
26 APRIL 2024
THE COURT ORDERS THAT:
1.Dismiss all extant Interim Applications.
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 Rabia & Birthe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
These interim proceedings for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), concern X, born 2019, aged four and a half years (“the child”).
The child is the product of the relationship between the applicant father, Mr Rabia (aged 45), and the respondent mother, Ms Birthe (aged 44).
The parties’ relationship began in about early 2019 and they commenced cohabitation a short time later. The child was born in 2019. They separated in August of 2020. The father commenced these proceedings on 21 March of 2021.
This decision deals with the father’s Application for Review filed 10 November 2022, the father’s further Application in a Proceeding filed 7 December 2023, and the mother’s Application in a Proceeding to re-open the interim hearing filed 6 March 2024.
The mother contends that the father’s historical, and possibly ongoing, alcohol misuse raises significant risk issues in the proceedings, that the father is careless in his parenting and does not consider himself bound to and does not comply with court orders. The mother also contends that the parties’ very poor communication and strained co-parenting relationship are relevant to the appropriate parenting orders.
The father’s case includes, in summary, an allegation that the mother is deliberately frustrating his efforts to establish a relationship with the child, including by maintaining baseless complaints about his alcohol use.
On either case this is a high conflict relationship.
BACKGROUND
On 20 April 2021, the parties entered interim consent orders providing for the child, to live with the mother and spend time with the father from: 3.00 pm to 6.30 pm each Monday; 11.00 am to 5.30 pm each Wednesday; and from 8.00 am to 5.30 pm each Saturday. The father was ordered to undergo random Chain of Custody “CDT” testing at the mother’s request, but not on more than three occasions over six months from the date of the orders.
On 10 June 2021, following a contested interim hearing, further interim orders were made decreasing the child’s time with the father to 9.00 am to 4.00 pm each Wednesday, and, from 9.00 am to 4.00 pm each Saturday. The father was ordered to undergo CDT testing each month and to provide the results to the mother upon receipt. In the event the father failed to do so, or returned a reading over 1.7, then his time was to be supervised by the paternal grandparents subject to an undertaking, or by a professional contact supervision centre. This may have been influenced by the father’s first CDT test, collected 3 May 2021, showing a result of 2.3%.[1]
[1] Exhibit 4.
On 2 December 2021, following a second contested interim hearing, interim orders were made requiring the father’s time with the child be supervised until he returned a CDT reading of less than 1.7 or a PETH test showing no alcohol detected. The orders requiring the father to undertake CDT testing were discharged and replaced with orders for liver function testing and PETH testing every 30 days.
The father filed an Application in a Proceeding on 19 January 2022 seeking that Orders 3 and 5 of the December 2021 interim orders (relating to the PETH and liver function testing and the mobile personal breathalyser unit) be discharged and seeking both overnight time and FaceTime communication with the child.
The parties participated in a Court-based Dispute Resolution Conference on 1 and 3 February 2022, where the parties entered into further interim consent orders, providing for the child to spend time with the father on six occasions: on Saturdays from 12.00 pm until 3.00 pm; Wednesdays from 3.30pm until 5.30pm. Following six consecutive visits, the child was to spend time with the father on Saturdays and Wednesdays from 9.00 am until 4.00 pm. The father was required to use the mobile personal breathalyser unit between 7.00 pm and 10.00 pm the night before, and one hour before spending time with the child.
The remaining issues in dispute were listed for interim hearing on 4 March 2022, where the father was ordered to undertake CDT testing every 30 days, and the Expert, Mr B was appointed as a single expert to prepare a report on the father’s alleged alcohol consumption.
The matter was transferred to Division 1 on 21 June 2022.
The father filed a further Application in a Proceeding on 25 July 2022.
On 24 October 2022, a Senior Judicial Registrar discharged the order requiring the father to use the breathalyser unit the night prior to spending time with the child, provided for facetime communication when the father is overseas each Wednesday from 5.30 pm to 5.45 pm and each Saturday from 9.00 am to 9.15 am, appointed Dr C as the Single Expert, and dismissed all outstanding interim applications, which is the subject of the current review application.
The hearing of the application was first set down on 13 December 2022. The matter was adjourned to 3 February 2023 by joint request from the parties. The matter was not reached on that occasion and the matter was adjourned until 17 March 2023.
The matter was further stood-over as the parties were scheduled to partake in interviews mid-July 2023 with the Single Expert, Dr C, for the purpose of preparing a report.
The report prepared by Dr C dated 7 August 2023 was released on same date. The matter was confirmed for interim hearing on 8 September 2023.
That matter was heard by me on 8 September 2023, with judgment reserved by orders of even date.
Given the significance of the alcohol issue, on 9 October I directed my Associate to write to the parties inviting them to provide written submissions on the question of whether the matter should be stood over until February 2024 to allow the father to comply with the Orders for CDT testing and to provide the Court and mother with documentary evidence of the results. The parties each resisted this course and filed submissions asking the Court to determine the Application before the Court as on 8 September 2023.
Having opposed the course suggested on 8 September 2023 the father filed a further Application in a Proceeding on 7 December 2023 seeking leave be granted to have the interim parenting hearing re-opened prior to the delivery of this judgment to allow the father to provide to the Court CDT tests he has undertaken.
The father’s further Application was listed for interim hearing on 17 January 2024 and was heard on that date.
On 6 March 2024 the mother filed an Application to re-open interim to provide submit further evidence to the Court. The parties indicated to the Court they were content for the Court to deal with that without the parties being heard further.
The matter has been set down for final hearing to commence on 1 October 2024.
INTERIM HEARINGS
First hearing
At the initial interim hearing on 8 September 2023, the applicant provided a court book of 101 pdf pages (MFI 1) and relied upon the following material:
(1)Case Outline filed 5 September 2023;
(2)Application for Review filed 10 November 2022;
(3)Applicant Father’s Amended Minute of Order;
(4)Affidavit of Mr Rabia filed 1 September 2022;
(5)Expert Report by Mr B dated 15 May 2022;[2]
(6)Expert Report by Dr C dated 7 August 2023;[3] and
(7)Tender Bundle of the Applicant Father.[4]
[2] Exhibit 1.
[3] Exhibit 2.
[4] Exhibit 7.
The respondent supplied a court book of 298 pdf pages (MFI 2) and relied upon the following material:
(1)Case Outline filed 5 September 2023;
(2)Affidavit of Ms Birthe filed 30 August 2023;
(3)Further Amended Response filed 30 August 2023.
(4)Report of Ms D dated 28 September 2021;[5]
(5)Minute of Orders sought by the Respondent Mother (MFI 4), and;
(6)Tender Bundle of the Mother.[6]
[5] Exhibit 3.
[6] MFI 2 pp.160-298.
The Independent Children’s Lawyer (“ICL”) relied on their Minute of Order sought (MFI 3).
Second hearing
On the 17 January 2024 the father supplied a supplementary court book of 32 pdf pages (MFI 5) and relied upon the following material:
(1)Case Outline filed 15 January 2024;
(2)Affidavit of Mr Rabia filed 7 December 2023 and 13 January 2024 (read subject to objections); and
(3)Father’s List of Objections.
The mother also supplied a supplementary court book of 77 pdf pages (MFI 7) and relied upon the following material:
(1)Case Outline filed 16 January 2024 (MFI 6);
(2)Minute of Orders sought by the Respondent Mother;
(3)Affidavit of Ms Birthe filed 12 January 2024 (read subject to objections).
The ICL relied upon their Case Outline filed 16 January 2024. The ICL was excused from appearing on the second occasion.
Various documents were tendered which will be referred to as appropriate.
Application to re-open
On 6 March 2024 the mother filed an Application in a Proceeding seeking leave to reopen the interim parenting hearing prior to delivery of judgment in order to provide further evidence to the Court.
The mother filed an affidavit in support that largely concerns events of 14 and 15 February 2024, where she claims that the father spent overnight time with X without her consent.[7]
[7] Mother’s affidavit filed 6 March 2024 at [10]–[34].
The mother goes on to explain in her affidavit that this incident has caused her and the child great distress, and that the child is now reluctant to see the father.[8]
[8] Ibid at [35]–[51].
The mother also filed an affidavit from her treating psychologist, Dr E, annexing a report she prepared on 5 March 2024.
The report notes that the mother is currently experiencing clinically significant levels of “anxiety, worry and low mood”. It was further noted that although yet to be impacted, it was anticipated that the mother’s parenting capacity “could be negatively affected if she is required to parent ongoingly in an environment where she is undermined and subject to emotional abuse and, importantly, where there is no trust or confidence”.[9]
[9] Annexure C, Affidavit of Dr E filed 6 March 2024.
The father filed a Response to Application in a Proceeding on 15 April 2024 seeking that the mother’s Application be dismissed and that she pay costs. The father filed a supporting affidavit on same date, expressing that this was the mother’s attempt to “delay the delivery of Judgement”.[10]
[10] Father’s affidavit filed 15 April 2024 at [4].
The father acknowledged his own Application to re-open on 7 December 2023, however states that it was made “in circumstances where the Court has expressed to the parties that the tests would be of assistance”.[11] The father did not address any of the events as set out in the mother’s affidavit.
[11] Ibid at [6].
The parties did not wish to be heard and indicated they were content for me to determine this issue in their absence.
Given the view I have reached on the existing material, and noting that interim determinations cannot be endlessly re-opened, that the events raised by the mother in her re-opening application are consistent with the high level of conflict ventilated in the earlier hearings, and that there is a final hearing listed commencing 1 October 2024, I do not consider it necessary to re-open the interim application or to take this additional material into account.
FATHER’S ALCOHOL CONSUMPTION AND COMPLIANCE WITH COURT ORDERS
The father’s alleged prior misuse of alcohol, and the risks associated with alcohol abuse if it occurred and has not been admitted and addressed, are central to the proceedings as are the mother’s claims that the father does not comply with Court orders which he does not agree with.
The father denies any suggestion that he is an alcoholic or has any addiction or alcohol use disorder.[12] He told Mr B “he has never had an alcohol problem”.[13]
[12] Father’s affidavit filed 1 September 2023 at [83]–[84].
[13] Exhibit 1, Report of Mr B dated 15 May 2022, p.3.
The highly contested factual question concerning the father’s alcohol consumption at different times, it’s impact on his behaviours, and whether, if it was a problem, it remains one and a potential risk, is not for determination on an interim application, however, “that does not mean that merely because facts are in dispute the available evidence must be disregarded…”.[14]
[14] See Goode & Goode [2006] FamCA 1346 at [68]; Eaby & Speelman (2015) FLC 93-654 at [18].
Given the significance of the issue and the volume of evidence permitted on the topic, it is appropriate to consider that issue in greater detail than might usually apply at an interim hearing, in which no findings of fact can be made.
CDT tests and compliance with Court orders
The mother highlighted the father’s inability or refusal to comply with orders in relation to his alcohol testing and pointing to the at times high results produced by the father.[15]
[15] Mother’s affidavit filed 12 January 2024 at [4], [5]–[20].
The 2.3 result in May 2021 is indicative of a substantial use of alcohol, as is the same result in November 2021. These occurred although the father was aware he was the subject of ongoing testing.
The mother further emphasised the failure to disclose results of 1.7 and above as relevant to the father’s candour, which she submitted was a rational basis for her concern that he is not honest in his dealings with her or with the court, in particular about his use of alcohol, as well as being relevant to the father’s ongoing alcohol use even in the context of being subject to monitoring.
The father ceased complying with the Court’s orders for testing. He told Dr C:[16]
16. … that he has not undertaken any CDT testing for approximately 3 months because he no longer views it as necessary. The mother asserts that she has not received any copies of the father’s CDT testing since the orders of February 2022 were made.
[16] Exhibit 2, Expert Report of Dr C dated 7 August 2023 at [16], see also [150].
A similar submission was made to me on behalf of the father to explain his decision to not comply with Court’s orders.
Two non-exclusive inferences arise. First, that the father refused to comply with Court orders for CDT testing because he was abusing alcohol and avoided testing to conceal that fact. Second, that he does not consider himself bound by this Court’s parenting orders. No other reasonable inference was suggested in submissions.
The first is consistent with the mother’s case on the father’s abuse of alcohol. The second, on the mother’s case on the father’s view that he is effectively entitled to do as he wishes. It is possible that both apply, as the mother’s case suggests. Either causes me concern.
After the Court’s invitation to the father to undertake further CDT testing, which was rejected, the father undertook CDT tests on four occasions. These produced tests the highest of which was 1.2.[17]
[17] Father’s affidavit filed 7 December 2023 at [6], Annexures MR-1, MR-2, MR-3.
The difficulty with these test results, is that the father did not agree to testing and then produced the test results. He declined the Court’s offer, then he did the testing. Only after he had the first sets of results did he disclose them and seek to rely on them.
This does not assist in relation to the inferences referred to above. It suggests that he may only have been willing to do tests and then produce the test results after he knew they were acceptable, which may raise the issue that he was unsure whether or not he would be able to produce clear test results.
Ms D
Ms D undertook reportable therapeutic intervention with the parties. She provided a report dated 28 September 2021.[18] At that time the child was one year old.
[18] Exhibit 3, Report of Ms D dated 28 September 2021.
Ms D recorded the mother’s view of the father “as being a functioning alcoholic whose drinking, she alleged, deteriorated with the combined pressure associated with a baby, home renovations and financial stress”,[19] and that his drinking, if left unaddressed, constituted a risk to the child. She recorded the father’s view of the parties “as having differing attitudes to alcohol, which are culturally based”.[20] She also noted the apparent concession by the father of having a problem in a text message and that there was an issue as to whether this was genuine or placatory.[21]
[19] Ibid at [4].
[20] Ibid at [5].
[21] Ibid.
Ms D opined:[22]
7. … that alcohol misuse/abuse by a parent can be a significant risk factor for children, particularly very young children. The misuse or abuse of alcohol does not, per se, reflect poor parenting capacity but it can, and often does, seriously compromise parenting capacity…
[22] Ibid at [7].
I accept and agree with that opinion.
Ms D expressed no view on whether or not the father had an alcohol problem, but said that if he did have such a problem and it was unacknowledged and unaddressed, then the child’s parenting arrangements would need to take this into account, with the safest option for the child to spend time with the father on a limited basis at his parent’s home.[23]
[23] Ibid.
Ms D also recorded the mother’s concerns that the father “is insufficiently mindful of environmental factors that could potentially be unsafe for” the child, such as driving with sporting equipment unsafely stowed, and her concerns that his Suburb F house was not safe for the child. The father did not agree. Ms D noted that fencing at Suburb F could be addressed, but that might not address the mother’s underlying concerns of the father being heedless of the environment.[24] Further, the conflict between the parents over general parenting and the adequacy of the father’s care, for example around attending to a cut and going swimming in chlorinated water, were noted. Whilst Ms D identified some of the issues as being due to different parenting practices, if the mother is accurately reporting then it may be that the father is insufficiently aware of the child’s needs given her age.[25]
[24] Ibid at [9]-[11].
[25] Ibid at [12]-14].
Ms D identified communication, mistrust, and co-parenting as areas of significant problem. The mother does not trust the father’s parenting and does not trust him not to lie about what he does when the child is in his care. The father does not trust the mother’s intentions or that her resistance to overnight time are based on genuine concerns.
Ms D’s opinion was that the text message communications, noting that:[26]
16. … Perusal of the history of text communications between [Mr Rabia] and [Ms Birthe] does shed light on certain aspects of the dynamics operating in the relationship. Control issues are evident in some of these communications, as are [Ms Birthe’s] anxieties and [Mr Rabia’s] responses to those anxieties. The issue of control/being controlled, and the perceptions and feelings that underpin and surround it, would seem to derail focus on [X] and her needs, which was also what happened during the joint sessions.
[26] Ibid at [16].
Ms D ultimately terminated the therapy as she considered nothing further could be achieved at that stage.
Dr H
At the first interim hearing, the father tendered some material from Dr H dated 21 January 2022 who noted that:[27]
…
The PEth test is not readily available in Australia and the court’s request has placed significant and unnecessary burden on both myself and the pathology staff involved.
It has been extremely distressing for [Mr Rabia], whom I note has had consistently normal range carbohydrate deficient transferrin – C.D.T test results since beginning testing in June 2021, together with normal range liver function tests.
I urge your honour to reconsider the need for PEth testing given the difficulty in arranging testing, [Mr Rabia’s] normal test results, and the distress it has caused [Mr Rabia].
[27] Exhibit 7, p.9.
The difficult with Dr H’s opinion, to the extent it may have been intended to suggest that no testing was required, is that he does not appear to have had the CDT tests which the father did not voluntarily disclose, being those which showed excessive consumption during the period referred to.
Mr B
The father tendered the expert report of Mr B, a medical specialist. Mr B consulted with the father and noted that “[t]he alcohol history is not straightforward to obtain with conflicting accounts regarding past alcohol use”.[28] He noted that the father’s history of drinking “a bottle of wine per day for a few days in April 2021”… “is not likely to explain the borderline elevated CDT in early May 2021”.[29] Mr B noted that certain text messages between the parties “appears to describe acknowledgement of long standing harmful alcohol use by [Mr Rabia]” but that it was “non-specific”.[30] Mr B was not, of course, in a position to determine the factual contest as to alcohol consumption between the mother and the father, but noted that: [31]
There appears little doubt that [Mr Rabia] has consumed alcohol in the past at levels that present some degree of risk of harm to himself and others (NHMRC defines this as 40g on a single day, or 2 generous glasses of wine). Nonetheless, episodic alcohol use even at levels to cause intoxication does not meet criteria for an alcohol use disorder by current criteria. Intolerance of alcohol intoxication is commonplace and commonly impacts on marital and other relationships.
[28] Exhibit 1, Expert Report of Mr B dated 15 May 2022, p.2, sub heading a).
[29] Ibid at p.3.
[30] Ibid.
[31] Ibid.
Mr B had access to a report of Dr G, not before me, and said: [32]
I note to the contrary that [Dr G] provided a report indicating diagnoses of ADHD and intermittent alcohol abuse up to 20 standard drinks up to 1-2 times per week ([…]/20). However, on repeat assessment, this level of alcohol use was denied. [Dr G] revised his assessment after this reported level of alcohol use was contested by [Mr Rabia], and he was not able to confirm his initial assessment.
[Dr G] initially offered treatment for ADHD with [medication]. The patient did not find benefit from this treatment and discontinued it after a short period. [Dr G] concluded on his second consultation that the diagnosis of ADHD was uncertain with symptoms likely to be explained by adjustment difficulties at the time of relationship breakup and agreed this treatment was not required. In addition, [Dr G]- [Dr G] wrote [in] Sept 2020 “There has also been some intermitted alcohol abuse at times”.
[32] Ibid at p.4.
He noted that while there was “no evidence of a current alcohol use disorder and current levels of alcohol use as reported to me lie with the average range for an Australian man” (emphasis added), but continued: [33]
The evidence is incomplete but the impression from two letters written by [Dr G] is that [Mr Rabia] drank in an unhealthy manner intermittently in the past, as described above.
I note one positive BAC ([Ms Birthe] june 2021, p9, para 56) on 5 May 2021 was 0.021 on arrival for changeover and he stated last alcohol use was 25 hours prior to that reading. This account is hard to reconcile because such a reading would normally indicate 2-3 drinks in the preceding hours which was denied, or a great deal of alcohol if the timeline of 25hrs between last drink and the BAC reading is accepted.
Overall, my impression is that there is a significant question of past unhealthy alcohol use but the information does not support diagnostic assessment of “alcohol dependence” or “alcohol use disorder”.
[33] Ibid at pp.4–5.
On the evidence available to him Mr B did not identify current alcohol misuse, noting that:[34]
The key issue for a case such as this is to understand whether [Mr Rabia] continues to use alcohol in a way that could pose a risk to the safety of a child in his care. [Mr Rabia] denies this and I could not find any evidence to the contrary in the records.
[34] Ibid at p.4
Nevertheless, Mr B’s opinion was that:[35]
Nonetheless, in the event that [Mr Rabia] has overnight custody of [X], I would recommend ongoing monitoring for 12 months with the possibility of further monitoring if any problems become evident. This could be most readily performed using monthly PEth testing as indicated in the next paragraph.
[35] Ibid at p.5
A letter from the mother to Mr B and his response email of 9 June 2022, which form part of his evidence, noted that “[i]n relation to the reports by [Dr J] and [Dr L], the CDT results do suggest some periods of excessive drinking”. Those reports were not before me. He otherwise confirmed his opinion.[36]
[36] Exhibit 1, MFI 2 p.170; The Joint Expert Report of Dr J and Dr L dated 9 June 2021 was included in the filed material, but was not tendered and has not been read or considered.
The mother points to the fact that this opinion remains untested and is premised, to a degree, on the acceptance by Mr B of the father’s evidence to him about his alcohol consumption. She further brought to the Courts attention CDT tests that sit in the high range that the father had produced historically,[37] and the fact that Mr B’s comments about the father’s explanation for the BAC on 5 May 2021 are troubling, given the extent to which Mr B’s opinion, and the Court’s decision, require a satisfaction as to the father’s candour in relation to his alcohol consumption when assessing the risk associated with potential alcohol misuse.
[37] Exhibit 4.
The mother’s position at the initial interim was that, in the absence of clear evidence indicating that the father does not have a current alcohol problem (for example, by way of CDT tests – substance of which will be detailed below) the risk that was presented by the father was unknown and therefore overnight time was not appropriate.
Dr C
Dr C prepared a family report dated 7 August 2023 based on interviews on 11 and 12 July 2023.[38] The issues continued to be that “[t]he mother alleges that the father has a longstanding issue with alcohol misuse and has other limitations in his parenting capacity. The father alleges that the mother is “controlling” and has sought to block and limit the time he spends with [X]”.[39]
[38] Exhibit 2, Expert Report by Dr C dated 7 August 2023.
[39] Ibid at [3].
Dr C also said that it would be of “enormous benefit to the mother if the father continued to have quarterly CDT tests for at least the next 18 months and that he provides an undertaking not to drink alcohol before or during the time he is caring for [X]”.[40]
[40] Ibid at [190].
Dr C expert noted that any parenting arrangements need to be focused on ensuring that the child is protected from the conflict between her parents.[41]
[41] Exhibit 2, Expert Report by Dr C dated 7 August 2023 at [153].
This recommendation arises in the context of an undisputed difficult relationship between the parties, characterised by high conflict.
The mother, as mentioned above, detailed concerns about having to communicate with the father further, noting that she continued to have a complete inability to trust the father.[42]
[42] Mother’s affidavit filed 30 August 2023 at [21].
The expert acknowledged this dynamic noting that:[43]
184.I think that the father can be charismatic, persuasive, and flamboyant, but that when pressed about matters of specificity and detail, he takes exception to those who challenge him. I think that this had made it very difficult for the mother to trust the father and to ameliorate the anxiety she feels when [X] is spending time in his care. Instead of acknowledging the mother, the father has launched a campaign to denigrate and criticise her, which has been most unhelpful in progressing the coparenting relationship.
[43] Exhibit 2, Expert Report by Dr C dated 7 August 2023 at [184].
At the heart of the father’s application was Dr C’s opinion that the child could cope with more extended periods of time away from the mother and:[44]
188.… ought to commence spending overnight time with the father, but for one single overnight at a time, while she gets used to time away from her mother and the father becomes used to spending more extended periods of time with [X]. After a period of three months, then I think that such time could progress to two consecutive overnights.
OTHER ISSUES
[44] Ibid at [188].
Father’s employment and overseas travel
The father did provide evidence that his job as a consultant has required him to travel overseas quite regularly but confirmed that he did not plan to travel overseas in the future and had informed his employers of this fact.[45]
[45] Father’s affidavit filed 1 September 2023 at [9]–[13].
The expert’s recommendation for overnight time was caveated with the following comment:[46]
189.My recommendations would be significantly affected if the father were to continue a travelling schedule that places him overseas every month or regularly. If the father continues to travel overseas on a regular basis, then I think that [X] should spend more limited time with him so as to not to disrupt the continuity of her routine. If, on the other hand, the father remains in Australia and there are a few disruptions to his ability to spend time with [X], then I think that she could spend three consecutive nights per fortnight with him in 2024.
[46] Exhibit 2, Expert Report by Dr C dated 7 August 2023 at [189].
At the first interim hearing, the father’s counsel submitted that the father would cease employment if it continued to impact his ability to parent the child.
The mother’s counsel raised the issue that the father’s travel had impeded his ability to spend time with the child in accordance with the orders. This was raised by the mother in her affidavit.[47]
[47] Mother’s affidavit filed 30 August 2023 at [22].
It was further submitted that the father’s account of his travel dates was not consistent with records from the Department of Home Affairs.[48]
[48] Exhibit 6.
More recently, prior to the second interim, the father confirmed that he has made the decision to cease his prior employment in circumstances where he could no longer travel overseas in order to prioritise his relationship with his child.[49]
[49] Father’s affidavit filed 13 January 2024 at [31].
This no longer appears to be a factor weighing against increased or overnight time with the father.
Suburb F property
At the second interim, the mother also raised the issue of the father’s adherence with orders in general, specifically highlighting a concern as to whether the father had breached orders by taking the child to his Suburb F property on three occasions, which would be a direct breach of Order 10 of the orders dated 20 April 2021.[50]
[50] Mother’s affidavit filed 12 January 2024 at [56]–[68].
The mother provided evidence that the child had communicated to her that she had been to the property.[51]
[51] Ibid at [60], [65].
The father denies taking the child to Suburb F as alleged.[52] Instead, he claims that on 30 December 2023 he took the child to Region K.[53]
[52] Father’s affidavit filed 13 January 2024 at [23].
[53] Ibid at [24].
The father’s tendered date stamped photographs from Saturday 23 December, one of the dates the mother suggested the father took the child to Suburb F.[54] It was submitted that the geolocation of these photos provided evidence that the father did not take the child to Suburb F on this occasion.
[54] Exhibit 9, pages 1–6.
This is not an issue in respect of which a finding can be made, but is indicative of the high conflict and low levels of trust.
PROPOSALS
The father’s application sought to review Order 9 of orders dated 24 October 2022 by the Senior Judicial Registrar which dismissed all outstanding interim applications. The hearing before the Senior Judicial Registrar was the fourth interim application for parenting orders filed by the father.
The father sought orders as contained within his amended minute of order.[55] The father sought interim time with the child for a period of three months, from 9.00 am to 4.00 pm each Wednesday, from 9.00 am to 4.00 pm Saturday in Week 1, and from 9.00 am Saturday to 4.00 pm Sunday in Week 2; for a period of a further three months, from 9.00 am to 4.00 pm each Wednesday, from 9.00 am to 4.00 pm Saturday in Week 1, and from 9.00 am Saturday to 9.00 am Monday in Week 2; and commencing the first weekend in April 2024 (noting we are now past this point in time), from 9.00 am to 4.00 pm each Wednesday, and from 4.00 pm Friday to 9.00 am Monday every second week. The father sought further time for special occasions, that the parties undergo family therapy, that all prior orders re alcohol testing whatsoever be discharged and that he is to provide an undertaking not to consume alcohol 12 hours prior to spending time with the child.
[55] MFI 1, pp.9-10.
The father further sought orders per his case outline,[56] the interim proceedings be re-opened to allow him to provide the Court with CDT tests undertaken by him in the period since judgement was reserved.
[56] MFI 5, Case Outline filed 15 January 2024 at p.3.
The mother’s proposal changed between the first and second interim. Her submission was that this change was due to an escalation of the father’s conduct, largely surrounding issues around the Suburb F Property, which is discussed further.
At the first interim, the mother sought that time with the father continue in accordance with the current interim orders, and that his application for further time be dismissed.
At the second interim the mother sought orders per minute of orders sought,[57] that the father spend time with the child each Saturday from 9.00 am to 11.30 am, and each alternate Sunday from 1.30 pm to 4.00 pm. Further, the mother proposed that until she resume full-time employment, the father spend time with the child on Wednesdays from 9.00 am to 11.30 am. Upon commencing employment, the mother proposes that she arrange with the father another two and a half hour period in which he can spend time with the child on a weekday, in substitution of the Wednesday time.
[57] MFI 7, p.2.
The ICL supported the father’s application for increase in time.
DISCUSSION AND DECISION
Weight to be given to Dr C
The father’s counsel strongly urged the Court to accept Dr C’s recommendation for overnight time, see Denham & Newsham (2021) FLC 94-043.
While in Denham & Newsham the Full Court indicated that considerable weight should be given to an expert’s opinion, and that departure from it would require careful consideration, Denham & Newsham does not depart from the statement of the Full Court in Hall and Hall (1979) FLC 90-713 at 78,820 that:
… There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the Court or that the Judge is abdicating his responsibilities...
The principle articulated in Hall and Hall is an application of the general law of expert evidence. The Court is not bound by opinion evidence. That applies even to the opinion evidence of an uncontradicted expert witness at Trial.[58]
[58] See for example HG v R (1999) 197 CLR 414; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
While it is appropriate to give due consideration and weight to an expert’s opinion evidence, it is but one element of the evidence before the Court, to be considered, weighed and balanced with the totality of the evidence.
Ultimately the Court remains responsible for forming its own view, taking into account all of the evidence before it, and for the discharge of the Court’s judicial responsibility to make orders in the best interests of a child.
Dr C is a highly respected expert in this field, and her carefully reasoned report is clearly relevant evidence which has received my careful consideration as part of weighing all of the material before me, within the structures that apply to fact finding on an interim application.
Principles
The parties seek parenting orders as defined in Part VII Division 5, and see s 64B and s 65D. The paramount consideration is X’s best interests, see s 60CA and s 65AA. The twin pillars are, first, the need to protect X from harm and second, the benefit of a meaningful relationship.[59]
[59] Mazorskiv Albright [2007] FamCA 520 Brown J at [3].
The issues between the parties are starkly defined,[60] and there are many hotly contested factual issues. Whilst I cannot make any findings of fact,[61] the interim process requires me to carefully consider and weigh the evidence and “merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts”.[62]
[60] See Banks & Banks [2015] FamCAFC 36 at [48]-[50].
[61] Goode & Goode [2006] FamCA 1346 from [68] and also at [81]-[82].
[62] Eaby & Speelman (2015) FLC 93-654 at [18].
That is particularly so when assessing risk on an interim hearing, where questions of degree often come into the weighing of the probabilities of competing claims and the assessment of the likely impact on children of acting on or rejecting a controversial assertion, and, where consequently a conservative approach and one likely to avoid harm is often adopted.[63]
[63] See Marvel & Marvel (2010) 43 Fam LR 348 at [120]; SS v AH [2010] FamCAFC 13 at [88]; and Deiter & Deiter [2011] FamCAFC 82 at [61].
Findings
Weighing the material as best I can within the confines of an interim hearing, I have many concerns around the father and the potential risks he poses to the child, both through his potential alcohol consumption and, on his case, his apparent belief that he is only required to comply with such orders as he sees fit when he sees fit.
I raised the issue of further CDT testing in the hope that further testing would allay some of my, and the mother’s, concerns and allow a basis for a progression to overnight time before a final hearing, in order to foster the meaningful relationship between the child and the father in line with Dr C’s recommendation, and to provide a better basis for the determination of final parenting order at a final hearing.
However, the manner in which the father first rejected, and then only accepted that suggestion after undertaking testing, did nothing at all to allay my concerns about the risks posed by alcohol misuse.
Given all of the evidence, and in particular the full history of CDT tests, I have grave doubts about the father’s alcohol use and his candour in relation to it. I note the risks of alcohol misuse as noted by Ms D and the well-known physical and psychological risks to a child of this age, with limited self protective capacity, of a parent who may engage in alcohol misuse while the child is in their care.
Further, I have grave doubts about the father’s capacity and willingness to comply with Court orders based on his behaviour with regards to CDT testing, which affects my assessment, in the context of my concerns about possible alcohol misuse, of his compliance with any restraints on drinking alcohol while the child is in his care.
The risks of alcohol abuse and a possible attitude of disregard for Court orders together pose a risk of harm for overnight time which I do not consider sufficiently ameliorated by breathalyser or CDT testing or any other safeguard.
Unfortunately, despite the many potential benefits to the child of being able to spend overnight time with the father, including the Trial Judge having more information about the child’s capacity to cope with overnight time with the father prior to making final orders, having considered all of the material, I have formed the view that the risks of physical and psychological harm to the child of the father drinking after he picks her up and takes her home outweigh the benefits. That will not be adequately protected against by the use of breathalyser nor CDT testing.
I accept that there is a risk that he may engage in day-time drinking under the current orders, but on balance noting that risk applies to any time, and the mother is not seeking a no time order, it is a risk that is to be tolerated. In that regard, with some hesitation, on balance, I am also not persuaded that it is appropriate to reduce time at this juncture, as proposed by the mother, despite my many concerns.
The current orders are sufficient to allow the child to maintain a meaningful relationship with the father during daytime hours with orders for a breathalyser. That is an acceptable balance.
Orders
The orders of 3 February 2022 should continue.
I dismiss all extant applications.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 26 April 2024
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