Reece and Reece

[2018] FCCA 1775

FEDERAL CIRCUIT COURT OF AUSTRALIA

REECE & REECE [2018] FCCA 1775

Catchwords:
FAMILY LAW – Interim parenting – whether risk of harm to children arising out of Father’s abuse of alcohol – whether there is an issue about medical treatment arising out of the Mother’s faith as a Religion – supervised contact continued.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286

MRR v GR [2010] HCA 4

Applicant: MS REECE

Respondent: MR REECE

File Number: WOC 1252 of 2017

Judgment of: Judge Altobelli

Hearing date: 17 May 2018

Date of Last Submission: 17 May 2018

Delivered at: Wollongong

Delivered on: 9 July 2018

REPRESENTATION

Counsel for the Applicant: Ms Gillies SC

Solicitors for the Applicant: Rossi Simicic Lawyers

Counsel for the Respondent: Mr S Schonell

Solicitors for the Respondent: The Norton Law Group

ORDERS

1. Pending further order, the Orders made 29 January 2018 remain in force, except for the following variation:

   (a)The Children continue to spend time with the Father using a private professional supervised contact service until time at a supervised contact centre becomes available to the parties.

2. Each party must:

   (a)CatholicCare Contact Centre (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the Children spend with the Father;

   (b)attend the assessment;

   (c)comply with any appointments made by the Contact Centre for supervised time;

   (d)comply with all reasonable rules of the Contact Centre; and

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre including to participate in a program or programs.

3. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the Children are to spend time with the Father at such times as nominated by the Contact Centre and such contact is to occur at the Contact Centre.

4. Both parties share equally any fees charged by the Contact Centre.

5. The parties are at liberty to file terms in the Registry for the purposes of Consent Orders being made in Chambers appointing a suitably qualified Expert.

NOTATION

A.These Orders do not bind the Contact Centre (as it is not a party to this case) but requests it provide a service to assist the parties and their Children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1252 of 2017

MS REECE

Applicant

And

MR REECE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about two children: [X], who is 8 years old, and his brother, [Y], who is 4 years old. These Reasons for Judgment explain that the Court has made for the children to live with their mother, and spend time with their father.

Background

1. The Applicant Mother is 38 years old and describes herself as undertaking home duties and as being a (occupation omitted). The Respondent Father is 35 years old, and he appears to be self-employed in a family business. They married in 2005 and separated in 2017. On 29 January 2018, Interim Orders were made, by consent, for the children to live with their Mother, and spend time with their Father on a supervised basis, for two hours on one day each alternate weekend. In fact, the professional supervised contact service known as SuCo has provided the supervision.

2. The issue for the Court was whether to change the existing arrangement for the children to spend time with their Father. The Mother’s case was that it was not in the best interests of the children to make that change, given the concerns that, she contends, the Court would have about the Father’s problematic use of alcohol, and consequential problems about his wellbeing. Conversely the Father contends that the Mother’s concerns about his alcohol abuse were grossly exaggerated, and that there is no need for supervision. Indeed, his case was that his time with the children should progressively increase. The Father does not dispute that he consumes alcohol, but has strenuously maintained that the Mother’s case has been exaggerated, as has her concerns about her capacity to care for the children.

3. The Father, in his case, raises concerns about the medical treatment that the children are receiving from their Mother. Specifically, he contends that [Y] needs to have his tonsils removed, and his case is that the Mother declines to do so because of her faith as a Religion. It seems common ground that both were members of the Religion faith during their relationship, and the Mother continues to be, though not the Father.

4. Originally, the parties were in dispute about property and financial matters, but this was settled by way of consent orders made by Registrar Whitten, on 15 March 2018. The parties agreed to sell the former matrimonial home at Town A and for the sale proceeds to be divided as to 80 per cent to the Wife, and 20 per cent to the Husband. In addition, there was to be a superannuation split in relation to the Husband’s superannuation, as to 60 per cent to the Wife, and the balance to the Husband. The Wife would give up all of her interest in the company that operated the family business.

5. The matter was heard by the Court on 17 May 2018. The Mother was represented by Ms Gillies of Senior Counsel, and the Father by Mr Schonell of Counsel. The Court noted on that day that, consistent with the report dated 5 March 2018, of Dr A, the Mother would arrange for [Y] to undertake a repeat sleep study as soon as possible, and would keep the Father informed of the same.

The competing proposals

1. The Mother proposed that the existing Orders that provide for the children to spend supervised time with their Father, continue pending further Order. The Mother also proposed that an Expert Report be obtained to assist the Court in deciding the case on a final basis.

2. The Father proposed that there be an Order for equal shared parental responsibility, that the children live with the Mother and spend time with their Father on an unsupervised basis. For a period of two months following the making of Orders, this time would be two hours each alternate Saturday. Thereafter, for a further period of three months, it would be from 10:00am to 7:00pm each alternate Saturday. Therefore, the order would become each alternate weekend from 10:00am Saturday until 5:00pm Sunday, together with special occasions. In addition, the Father proposed an Order that the Mother do all things and sign all documents necessary so as to cause the Child, [Y], to receive any and all medical treatment recommended by his treating medical practitioners, including undertaking a further sleeping assessment.

The evidence before the Court

1. In the Mother’s case, she relied on:

   a)Amended Initiating Application of Ms Reece filed 20 December 2017;

   b)Affidavit of Ms Reece filed 26 April 2018;

   c)Notice of Risk filed 4 December 2017.

2. In the Father’s case, he relied on:

   a)Response of Mr Reece filed 23 January 2018;

   b)Affidavit of Mr Reece filed 9 April 2018;

   c)Notice of Risk filed 23 January 2018.

3. A considerable volume of documents that had been produced on subpoena were tendered to the Court:

   a)Documents produced by Liquor Store

   b)Documents produced by Suco Supervised Contact Services Pty Ltd

   c)Documents produced by Roads and Maritime Services

   d)Documents produced by the Department of Human Services: Medicare

   e)Documents produced by NSW Police

   f)Documents produced by Dr W

   g)Documents produced by Medical Practice

   h)Documents produced by Bank 3

   i)Documents produced by Bank 1/Bank 2

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (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.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a 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 both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The case law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

1. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

2. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The cases summarised

1. The Mother’s case, simply stated, was that the Father presented a risk of harm to the children, such that supervision should be continued, at least pending Final Order. Implicit in the Mother’s case is that supervision should continue until there could be an expert assessment of the risks that, she contended, the Father presented to the children. Her case in this regard was that the Father presented an unacceptable risk to the children, as a consequence of his historical and ongoing abuse of alcohol, with its consequential anger management and mental health issues. Her case was that this risk could only be managed by supervised contact. Her case was that whilst the children had a meaningful relationship with their father, this was being maintained by the existing Order. Thus, all things considered, she contended that the Court would act protectively, and conservatively, and favour making an Order that was most protective of the best interests of the children, and their safety.

2. The Father’s case, shortly stated, is that he was very much involved in the care of the children prior to separation, and that the existing supervised contact is not such as to reinforce, let alone build on, the meaningful relationship that he has with the children. He contends that the Mother has grossly exaggerated allegations about his alcohol intake. He concedes to having consumed alcohol most nights with his dinner, but not to the level of intoxication. The Father rejects the Mother’s various allegations about his alcohol abuse, and the impact of this on his behaviour. The Father denies the allegations of family violence made in the Mother’s case, other than an incident in November 2015, which resulted in the making of an ADVO against him. The Father’s case emphasised the very positive reports produced by SuCo, and the absence of any evidence to suggest that any past problems he might have experienced presented a risk to the children.

3. The Father’s case also raised concerns about his being excluded from decision making about the medical treatment of the children, particularly [Y], who he contends suffers from a 95 per cent blockage to his airways caused by enlarged tonsils, for which the Mother would not permit surgery, given her religious beliefs.

The medical treatment issue

1. This issue can be disposed of quite shortly. The most recent, and indeed the only evidence about whether [Y] needs to have his tonsils removed is evidence adduced by his Mother. The reports of Dr A, dated 5 March 2018, and Dr K, dated March 12 2018, were annexed to her Affidavit. Both those reports make it clear that, for the time being, there was no need for surgical intervention, but that a repeat sleep study should be performed. This the Mother has agreed to. There is no need for Court intervention in this regard. The Mother’s faith as a Religion is, for present purposes, quite irrelevant to any issue before the Court.

The Father’s alleged alcohol abuse

1. The main limb of the Mother’s case for ongoing supervised contact of the Father’s time with the children was her evidence about the Father’s alcohol consumption. Her evidence in this regard is contained at paragraphs 12 to 19 of her Affidavit, sworn 26 April 2018. The allegations are well known to the parties, and do not need to be reproduced here. One significant issue, however, is that the Mother, through her Solicitors, requested the Father to undergo a carbohydrate deficiency transferrin (‘CDT’) and liver functioning test, by way of an email dated 16 April 2018. The Father had not done so by 17 May 2018, when this matter was heard. Not only had he failed to do so, but he advanced no explanation, reasonable or otherwise, for his failure. In the circumstances, the Court believes that it is entitled to draw an adverse inference against the Father. The Court infers that the Father declined to undertake the requested test because the results would not have assisted his case. As will be seen below, the adverse inference against the Father is entirely consistent with the more objective evidence presented to the Court. Regrettably, however, this was an opportunity missed for the Father. He might have been able to demonstrate to the Court, for example, that notwithstanding past alcohol abuse issues, it was no longer a contemporary issue. In a quasi-desperate submission, his Counsel even proffered to the Court the Father’s willingness to undertake CDT testing on an ongoing basis, as a condition of continued unsupervised time with the children. Regrettably, and as will again be seen below, the problems for the Father’s case progressed beyond merely the issue of CDT testing to a far more fundamental issue of trust.

2. The secondary limb of the Mother’s case related to family violence. Even the Father conceded that there had been family violence in August 2015, which resulted in the making of an apprehended domestic violence order. The Father expressed regret for the incident, and his case was presented on the basis, in effect, that this was an isolated incident. There is no doubt from the evidence before the Court about this incident of violence that it was fuelled by the Father’s consumption of excessive alcohol. The Father’s case, however, was that this was an isolated, abnormal issue.

3. The Father’s rebuttal of the Mother’s case about his consumption of alcohol was insightful, and as it turns out highly problematic. In paragraph 16 of his Affidavit sworn 9 April 2018, he makes denials in quite categoric terms. For example, at paragraph 16 he states:

   I deny the allegations made against me with respect to both alcohol abuse and family violence.

   At paragraph 17 he says:

   I say that I do not, and have not, struggled with an addiction to alcohol. I acknowledge that I consume alcohol socially, and that I have a drink most nights with my dinner, such as a beer. I deny that during the marriage I purchased significant amounts of spirits, beer and wine, or that I consumed alcohol to excess. I also deny that historically, or presently, I drink to a level of intoxication, except for one occasion in 2015, following an argument with Ms Reece, where I acted, [I] acknowledge, inappropriately.

4. There was ample evidence before the Court that leads to it being reasonably satisfied, even on an interim basis, that there is far more substance to the Mother’s allegations than there are to the Father’s denials. The documents produced on subpoena were insightful in this regard. There are multiple references, for example, in the Father’s medical records about reliance on alcohol, and the contribution that this made to the Father’s mental health issues, including anxiety. His Doctor’s advice was clear and consistent: reduce intake, or preferably abstain. There is little evidence to suggest that he took on board his Doctor’s advice.

5. As foreshadowed earlier, the police records clearly indicate that the Father was intoxicated during the assault of the Mother that led to the family violence orders made against him. The totality of the evidence produced by Liquor Store, Bank 2 and Bank 1/Bank 3 create a strong impression of the sustained, heavy use of alcohol, continuing to the end of 2017. For example, just in December 2017, the Father spent over $4,400 in purchases at Dan Murphy’s at Suburb C and Suburb A. In June 2017 the Father’s expenditure on alcohol appeared to exceed $7,000. On 20 February 2017, a single day, the Father spent almost $395 at the Hotel Suburb B. In December 2016, about $3,900 was expended at Dan Murphy’s in Town B.

6. The Court accepts that the evidence about alleged alcohol purchases must not be seen in isolation. In theory, the purchases might be explained in a fashion that is inconsistent with the Mother’s assertions. However, no attempt was made to provide that alternative explanation during submissions. Moreover, the failure to provide the CDT test, as well as the Doctor’s records, all cumulatively raise serious concerns in the Court’s mind about the weight to be given to the Father’s denials of alcohol abuse.

7. The Father’s Counsel sought to characterise the Father’s alcohol abuse as being linked to his anxiety and a form of self-medication in respect of the same. He suggested that there was no evidence to link alcohol use to his parenting capacity. He submitted that there were no records, for example, of the Father’s driving offences being linked to alcohol. Counsel for the Father emphasised the inconsistency in the Mother’s case, and the Father’s contentions that he was left alone to care for the children at various times historically in the relationship. Counsel submitted that the Father had demonstrated his ability to control his alcohol consumption because there were no suggestions of difficulties during supervised contact.

8. The Court does not accept the submissions made on behalf of the Father. If the Father were truly serious about acknowledging and confronting the issues raised about alcohol abuse, he would not have made the trenchant denials that he did, and he would have submitted to the CDT test. The fact that supervised contact has been unproblematic hardly provides reassurance to the Court that unsupervised contact will present no risk to the children, in a case like this where the Father has done so little to engender trust from the Court. Moreover, whether or not the Mother did allow the Father to care for the children, notwithstanding her concern about his alcohol abuse, the fact is that the Court is undertaking a risk assessment in relation to future behaviour, and must make its own decision as to risk assessment. Whatever the Mother may, or may not, have done in the past is merely one factor to be taken into account as regards the future.

9. Based on the evidence before it, in a case where risk of harm considerations must prevail over other considerations, the Court accepts the Mother’s case. The Father’s time with the children should continue to be on a supervised basis. His Counsel submitted that the Father’s ability to continue to afford the cost of private supervision was limited. The Court accepts this. The Order will be that private supervised contact continue until such time as the parents can access a supervised contact centre. The parents are encouraged to also consider whether supervision might be provided by an agreed person.

Expert evidence

1. The Court found it rather curious that the Father would propose a Family Report, and oppose an Order for an Expert’s Report. One would have thought the best way to address the issue of whether the Father posed a risk of harm to the children as a result of his alcohol abuse would be to obtain Expert evidence, as quickly as possible. That will be the course that the Court will follow. An Order will be made for leave to file Consent Orders in Chambers appointing a suitably qualified Expert to consider the question of the Father’s consumption of alcohol and its impact on his parenting capacity, as well as the broader issues of relationships between the parents and the children.

2. The Orders will be for the Father to continue to have supervised contact with the children as presently ordered until such time as a supervised contact centre becomes available to the parties.

3. The parties did not believe that an Independent Children’s Lawyer was warranted at this stage. For the time being, the Court agrees. Should the issue of medical treatment of the children re-surface, the Court may well reconsider the appointment of an Independent Children’s Lawyer.

4. The parties are urged to obtain a private Report as soon as possible. The Court signals its willingness to reconsider the Interim Orders once that Report is to hand. The matter will be listed for Mention in 6 months’ time, hopefully in anticipation of receiving that Report. Should the Report come in earlier, the Court will try to list the matter on an earlier date.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:     9 July 2018