Regan & Regan (No. 2)
[2021] FedCFamC1F 199
•16 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Regan & Regan (No. 2) [2021] FedCFamC1F 199
File number(s): BRC 7426 of 2021 Judgment of: BAUMANN J Date of judgment: 16 November 2021 Catchwords: FAMILY LAW – PARENTING – Interim arrangements where three of the five children are expressing a wish not to spend time with the other parent – Immediate therapeutic engagement ordered. Cases cited: Banks & Banks (2015) FLC 93-637
Vallans & Vallans (2019) 60 Fam LR 193
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 3 November 2021 Place: Brisbane Counsel for the Applicant: Mr P Hackett Solicitor for the Applicant: Hirst & Co For the Respondent: Litigant in person ORDERS
BRC 7426 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REGAN
Applicant
AND: MR REGAN
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
16 NOVEMBER 2021
THE COURT ORDERS ON AN INTERIM BASIS:
1.That Orders 22, 23, 24, 25 and 26 of Orders made 19 August 2021 be discharged.
2.That the child, V born … 2007 (“V”) shall live with the father and spend time with and communicate with the mother in accordance with his wishes.
3.That the children, W born … 2009 and X born … 2011 (“W” and “X”) shall live with the mother and spend time and communicate with the father in accordance with their wishes.
4.That the children Y born … 2017 and Z born … 2017 (“Y” and “Z”) shall live with the mother and spend time with the father as agreed between the parents, but at least each alternate weekend from 5.00pm Friday to 5.00pm Sunday and by telephone or FaceTime each Tuesday, Thursday and non-contact Sunday at 6.00pm, initiated by the father.
5.That the parents shall use their best endeavours to encourage the five children to celebrate together the birthday of W on or around … 2021 and the birthday of X on or around … 2021.
6.That the parents will take all reasonable steps and sign all such authorities as may be required to enable Ms M to engage the parents and all the children in family counselling and:
a.The parents shall provide a copy of the Family Report of Mr O to Ms M;
b.The father shall be responsible for the costs of the family therapy, unless Ms M requires the parents to undertake a session (or more) of individual counselling with her, in which case, the parents shall be solely responsible for their personal session; and
c.The parents will use their best endeavours to ensure the children living with them attend all sessions scheduled by Ms M.
7.That Orders 20, 21, 27 and 28 of the Orders made 19 August 2021 shall remain in full force and effect.
8.That the father is restrained from consuming alcohol while the children W, X, Z and Y are in his care.
9.That the father must attend upon either N Testing Services (“NTS”), P Medical Service (“PMS”) or Q Pathology for a Carbohydrate Deficient Transferrin (“CDT”) testing within forty-eight (48) hours of receiving written request to do so, provided that the testing will not be more than monthly.
10.That the father authorise and direct the testing service to provide the result of his CDT testing to the mother’s solicitors.
11.That the father submit to hair follicle testing with NTS for the detection of both drugs and alcohol use at his expense, on a date that is at least five (5) calendar months from the date of these orders but not later than the date which is six (6) calendar months from the date of these orders and for the purpose of that testing:
a.The father will not cut his hair shorter than three (3) centimetres and will not apply any product to his hair, including colour, that will hinder the drug testing until further orders;
b.The test is to be conducted at NTS or such other service provider as is agreed in writing;
c.The father must provide the testing service agent with photographic identification to be recorded prior to the test; and
d.The test shall be for the detection of amphetamine type substances, cannabis/marijuana, opiates, sedative type drugs, cocaine, chronic alcohol use, benzodiazepines and other drugs of abuse.
12.That the father authorise and direct NTS or the agreed testing service to provide a copy of the parties’ drug testing results to both parties’ and/or their solicitors.
13.That these proceedings be adjourned for Case Management Hearing at 9.30am on 2 February 2022 in the Federal Circuit and Family Court of Australia Division 1 at Brisbane.
14.That the parties appear personally before the Court on the next occasion.
IT IS NOTED:
A.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
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 Regan & Regan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
The parents of the five children in these proceedings, V (aged 14); W (soon to turn 12); X (soon to turn 10) and the twins, Y and Z (aged 4 ½ years), have had to navigate, in a matter of less than six months since the final separation of the parents (in June 2021); the loss of the family home and adjusting to living in the more cramped surroundings provided by the maternal grandmother.
I do not, of course, ignore the effect of the final separation on the parents, the Applicant mother, Ms Regan, and the Respondent father, Mr Regan, with the separation clearly occurring after a period of some months of tension in the relationship, arising from behaviours of the father (outside the relationship) and significant financial distress including debts exceeding $10 million, it seems.
Almost lost in the number of Court events associated with the precarious financial position, has been the now clearly documented distress and anxiety experienced and demonstrated by the older children.
The parents consented to interim orders before me on 19 August 2021 (“the said interim orders”), which provided inter alia for:
(a)Equal shared parental responsibility;
(b)V to spend time and communicate with the parents as he wishes; and
(c)The four younger children to live with the mother and spend time with the father each alternate weekend from 8.00am Saturday to 5.00pm Sunday (in the company of the paternal grandmother).
It is now clear, that V has been living with his father for some months and has spent little time with the mother and his siblings (other than the twins). Further, W and X have continued to live with the mother and have refused to spend time with the father.
These apparent “alignments” by the three older siblings must be somewhat confusing to the twins, who apparently happily pass from one home to another, every alternate weekend. The comfort they demonstrate has caused the parents to agree that the time Z and Y spend with the father can increase by another night a fortnight, with their time with the father commencing on a Friday afternoon, each alternate weekend.
The parents, in August 2021 when they entered into the consent interim orders, had arranged for experienced social worker, Mr O, to prepare a privately funded Family Report. Interviews and observations took place on 8 September 2021 and the expert’s report was published on 28 October 2021. The report, filed in the Court on 1 November 2021, was before me when I was invited to consider changes to the said interim orders on 3 November 2021. On that occasion, as previously, the mother was represented by experienced counsel, Mr Hackett, whilst the father (...) now represents himself. Both parties had filed updating affidavits.
I was constantly reminding the parties that not only are the opinions of Mr O untested, but so are the statements of fact set out in the more recent material. On an interim basis, the Court must be cautious to make findings in such circumstances, save that I am easily satisfied that V’s relationship with the mother, and W and X’s relationship with the father, is currently (and hopefully temporarily) estranged.
As a result, I indicated that urgent counselling/therapy by a skilled clinician was obviously necessary, and to the credit of both parents, they embraced the suggestion and agreed to retain Ms M at the cost of the father, for family therapy. Ms M is to receive the family report of Mr O, by way of background material but not, unless otherwise ordered by the Court, any of the parent’s affidavits.
The issues that remain for interim determination are:
(a)What prescribed orders need to be made is respect of V, W and X, if any; and
(b)Should further conditions, as the mother seeks, be imposed upon the father is respect of his time with the children.
I deal with these issues separately, keeping at the forefront of my consideration that the best interests of the children is the paramount consideration, and the observations made by the Full Court of the Family Court of Australia in Banks & Banks (2015) FLC 93-637, that an exhaustive examination of all primary and additional considerations is not required, but that the Court should consider those factors which arise on the material of most relevance.
V
Mr O, in his report at paragraphs 95 to 122, captures the words and feelings offered by V, which reveals his awareness of the parental conflict and some of the parents allegations against the other; having to clean “the blood off” his father after an alleged physical interaction with the mother; suggests the fact he had to say he hated his father so that the mother would “remove the DVO”; and describes his relationship with the mother as “awful” and the mother’s attempts to engage with his as “fake”.
The mother, who has been a very competent, loving and caring primary carer for all children (acknowledged as such by the father), I am sure, found the comments by V as distressing to read. At paragraph 121, V said he “wants” to “spend majority of the time with Dad” and would prefer “not to see his mother at all”.
However, as counsel for the mother, Mr Hackett, submitted, the “vivid display of how strong his attachment with her is in actuality” raises concerns for V’s mental health, which Mr O described as “more complex and nuanced” (see paragraph 159).
The mother’s immediate solution, as proposed in her Further Further Amended Initiating Application filed 2 November 2021, is for V to live with her and, subject to conditions discussed later is this judgment, spend time with the father each alternate weekend from 8.00am Saturday to 5.00pm Sunday. The father says, in short, V’s wishes as expressed to Mr O and repeatedly, he says, expressed to him, to remain living with his father, should be respected, with V to spend time with the mother as he wishes.
W AND X
Although I accept W and X are individuals and deserve to be treated individually, their similar ages and their position conjointly as the “middle children” between an older brother at a quite different developmental stage of his life, as are the twins who are yet to begin school, creates some similarities.
The parents did not substantially cavil with the observations made by Mr O at paragraphs 155 and 156, namely:
155.There are distinctions in the presentation of the three older boys, prefaced on their personalities, and their rank in the family. [W] and [X] are determined not to see their father, partly attributing this to his past treatment of their mother, but also most probably their concerns about her if they were to do so.
156.I thought [X] more adamant on this than [W]. Both boys are intelligent, however W is emotionally more independently minded, and he is not inclined to remain as set in his views.
The mother says, in effect, that the wishes expressed by W and X should be respected and does not contend for any prescribed order compelling her to make the children available to spend time with the father (other than by FaceTime if the mother’s encouragement achieves that to occur). The mother swears to the efforts she has made to encourage W and X to communicate and spend time with the father since separation, all to no avail.
The father, in his affidavit filed 3 November 2021, says he has not spent time with W and X since 3 June 2021, and despite regular texting to W (assuming messages he sends will be shown X and the mother) he has received no response. The father’s position, set out at paragraph 15 of his recent affidavit, is to adapt the proposal contained (before a family report was published) at paragraph 11.2 of his Further Amended Response filed 18 August 2021, namely, week about for the children, other than V. The father did not seem, in submissions, to appreciate that proposal for W and X, on the current untested evidence (even if in their best interests), is not reasonably practicable at this time. I saw his position, more shaped by a desperate desire to reunite with W and X, and not really knowing what may work at the moment.
CONDITIONS
At paragraphs 22 to 28 of written submissions relied upon by counsel for the mother, it is contended that in circumstances where Mr O (at paragraph 186) does not recommend the supervision of the father’s time continue, the mother “seeks orders regarding the respondent’s alcohol consumption and a testing regime to ameliorate the risks to the children in this regard.” and that the orders sought are appropriate “in light of the respondent’s history of drink driving and the fact that his CDT and hair follicle tests do not indicate low level alcohol consumption.” The mother’s orders set out at paragraphs 19 to 22 of the Application filed 2 November 2021, are expressed in these terms:
19.That the father must attend upon either [N] Testing Services ([NTS]), [P] Medical Service ([PMS]) or [Q Pathology] for a Carbohydrate Deficient Transferrin (CDT) testing within 48 hours of receiving written request to do so, provided that the testing will not be more than monthly.
20.That the father authorise and direct the testing service to provide the result of his CDT testing to the mother’s solicitors.
21.That the father submit to hair follicle testing with [NTS] for the detection of both drugs and alcohol use at his expense on a date that is at least five calendar months from the date of these orders but not later than the date which is six calendar months from the date of these orders and for the purpose of that testing:
a.The father will not cut his hair shorter than three centimetres and will not apply any product to his hair, including colour, that will hinder the drug testing until further orders;
b.The test is to be conducted at [NTS] or such other service provider as is agreed in writing;
c.The father must provide the testing service agent with photographic identification to be recorded prior to the test;
d.The test shall be for the detection of amphetamine type substances, cannabis/marijuana, opiates, sedative type drugs, cocaine, chronic alcohol use, benzodiazepines and other drugs of abuse.
22.That the father authorise and direct [NTS] or the agreed testing service to provide a copy of the parties’ drug testing results to both parties’ and/or their solicitors.
as well as for the installation of an interlock or similar device on his motor vehicle, such that the father cannot operate “the vehicle unless his blood alcohol reading is below 0.05.” However, somewhat curiously, paragraph 14 is a self-executing order of very serious impact upon the children’s right to spend time with the father, contending that:
14. That in the event that the father returns a breath analysis test with a result above 0.01, then the children will not spend time with him until such time as he provides the mother with a further breath analysis result of 0.01 or below in accordance with the provisions of paragraph 30 above, and in the event that the children are already in his care, the mother be permitted to collect the children from the father forthwith.
The father in response says that:
(a)After reviewing the schedule of attendance at restaurants and purchase of alcohol relied upon by the mother (see affidavit of Ms R filed 2 November 2021), he estimates (relying on his schedule “W 3”) that over a period of four months and 21 days, the evidence reveals an average personal weekly spend of $168.66 on alcohol and $98.26 on restaurants which includes spending on clients, family and friends. In particular, the father deposes that he has reduced his drinking and only expended $869.62 in September and $248.48 in October;
(b)Confirming he will undertake any regime of drug and alcohol testing ordered by the Court, he says he will not consume alcohol when the younger children are in his care and wishes “to set a good example for V and my other children given what they have been exposed to in the past”; and
(c)In respect of the interlock device, the father said he considers the orders sought as “offensive, excessive and to have no basis whatsoever.” It is not disputed that the father has a drink driving conviction in 2015, but he disputes he has a “history of drink driving” as asserted by the mother. Furthermore, he confirms his recent hair follicle test was “negative” for all drugs and he tested in the low to moderate range in terms of alcohol use, “the same range returned by Ms Regan from her hair follicle test for the same period.”
The mother submits that, as the father admits, the CDT and hair follicle tests “do not indicate low level alcohol consumption” and that the father delayed in submitting to a hair follicle test until 1 October 2021 and the CDT test originally returned a result of 3.2 but the later test reduced to 1.9
DISCUSSION
Both parents say they wish all the siblings, to spend time together, however that has been stymied to a large extent by the inability for the father to so encourage V, that he spend time in the mother’s home (with the maternal grandmother) where his four siblings live. Furthermore, the inability of the mother to encourage W and X to spend time with the father (even at the same time as the twins happily attend) has prevented V from spending time with all siblings in his father’s rented unit.
Courts should not be prepared to make orders they are not prepared to enforce, and at this stage, defined orders for V to either live with, or spend time with the mother are likely to be problematic. Similarly, the pressure on the younger children, W and X, both of whom are exhibiting anxiety and reluctance to spend time with the father, needs to be relieved for a period.
Although Ms M’s engagement is a positive development, there is an apparent need for the parents to demonstrate to the children, through actions and words, that the relationship with their siblings and with the parent they do not currently living with, is safe and beneficial to them. It is difficult to be confident, despite the assurances each parent gives in their affidavits, and their comments to Mr O, that since separation, both the parents have consistently delivered this important message to their children. I hope that the family therapy provides the forum to do so.
Whilst I accept that if nothing changes, there is a chance that the alignments now demonstrated will get stronger, both these intelligent parents know such issues will be a disaster for their family.
On balance, at this early stage where final separation occurred only five months ago, and the children (if not both parents) are grieving and adjusting to the loss of the intact family union they tried to create, I am not prepared to make any prescribed orders for either V, W or X.
I know that the Christmas period presents as both an opportunity to heal, or as a further pain to be overcome. I propose to let the parents, with the help of Ms M, to sort it out as any prescribed order for Christmas or school holidays at this time, are more likely to put insurmountable pressure on these eldest children.
I propose to order the regime of CDT and drug testing imposed by the mother on an interim basis.
I do not regard on the current evidence, that the installation of an interlock device on any car driven by the father is justified. The “self-executing” order proposed by the mother at paragraph 14 of her application is not in the children’s best interests, with a cessation of time if the father had an alcohol level one fifth of the legal limit, inappropriate.
Finally, the mother sought to vary the interim consent order where an order was made that the parents have equal shared parental responsibility. There needs to be a principled basis to depart from the statutory presumption (see Vallans & Vallans (2019) 60 Fam LR 193) and there is no evidence since the order was made in August 2021, to indicate an inability to make a sensible major long term decision. To the extent the mother relies upon the difficulties in continuing the private school enrolment, this issue seems to be related more to the payment of school fees, rather than any change of view that the parents hold towards the benefit of the children staying at their current school into the 2022 school year. The recent confirmation from the respective schools, confirming for a time, that enrolments can be maintained, puts this difficult issue into a time frame where a decision can be made about the costs of schooling next year.
For the Reasons given, I make the interim orders which appear at the commencement of these Reasons, which I find are in the children’s best interests at this time. ’
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 16 November 2021
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