Reine & Reine

[2022] FedCFamC2F 1797

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Reine & Reine [2022] FedCFamC2F 1797

File number(s):

NCC 2064 of 2022

Judgment of:

JUDGE T. YOUNG

Date of judgment:

20 December 2022

Catchwords:

 FAMILY LAW - application for review – parenting – concerning two children who are 11 and 8 years old – application dismissed.

FAMILY LAW – application for costs.   

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 117

Division:

Division 2 Family Law

Number of paragraphs:

28

Date of hearing:

20 December 2022

Place:

Darwin

Counsel for the Applicant:

Mr Lawrence

Solicitor for the Applicant:

Powe & White Family Lawyers

Counsel for the Respondent:

Mr Kelly

Solicitor for the Respondent:

Hoffman & Associates

ORDERS

NCC 2064 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR REINE

Applicant

AND:

MS REINE

Respondent

order made by:	JUDGE T. YOUNG
DATE OF ORDER:	20 DECEMBER 2022

THE COURT ORDERS THAT:

1.That the Application for Review filed by the father on 25 October 2022 be dismissed.

2.That the father pay the mother’s costs of today fixed in the sum of $2,500.00.

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 a pseudonym Reine & Reine has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
EX TEMPORE

JUDGE T. YOUNG

1. This is a review application concerning two children, X and Y, who are 11 and 8 years old, respectively.

2. On 21 October 2022 a Senior Judicial Registrar made orders that provided for the children to live with the mother and spend time on alternate weekends and half holidays with the father.  Those orders are the subject of the review application.

   Background

3. The parties formerly lived in Town B on the Region C of New South Wales.  In 2020 they separated and the children lived with the mother.  In late 2021 the mother moved to Town D near Town E, which is about three hours drive south of Town B.  The children were enrolled in the F School, which I take it is in Town D.

4. It appears that the children continued to spend regular time with the father on weekends as he, apparently, worked in the Region G and commuted on the weekends back to Town B.

5. The father says that at various times in 2022 the children reported to him that they spent long periods at the pub while their mother drank; that they were left alone at home with H, the mother’s 16 year old daughter from a previous relationship;  that their hygiene was neglected; and, that there were other indicators of neglect by the mother.

6. The father says that the matters reported to him by the children were symptomatic of the mother’s abuse of alcohol.  He says also that the children were, according to unidentified persons he spoke to at their school, “struggling” and “going backwards”.  He said that X had not completed any homework this year.

7. In July 2022 the father retained the children and enrolled them in school at Town B, which I take to have been the same school as the one they previously attended when both parents lived in Town B.

8. About a month later the mother collected the children from school and has kept them since.

9. The father had, by that stage, applied to the Court for orders and orders were made on 21 October 2022 regularising that arrangement, that is, that the children lived with the mother and spent time with the father.

   Submissions

10. The father says there is clear evidence of the mother’s abuse of alcohol and associated neglect of the children.  The father points to earlier hair follicle testing of the mother showing the presence of modafinil in the mother’s hair.  This appears, according to some material tendered in evidence, to be a prescription drug, but it is sometimes used illicitly to increase alertness and wakefulness.  The father says that the presence of modafinil is indicative that the mother has used this drug as an antidote to the effects of alcohol abuse.

11. The modafinil was detected at very small levels in two tests and, according to the pathology report, it was said that the levels may be indicative of environmental presence rather than ingestion by the mother.  In a subsequent affidavit the mother denied ingestion or use of modafinil and said that it must have been picked up as a result of her work in public housing.

12. The father also points to the mother’s admitted use of amphetamines and abuse of alcohol in 2013 when the mother spoke to a family consultant, as they were then described, for the purposes of earlier proceedings between the parties which, as I understand, ended when the parties reconciled.

13. A CDT test earlier this year did not indicate any concerning levels of alcohol abuse by the mother.  However, a hair follicle test report which was produced on 21 October 2022, that is the same day as the SJR’s decision, showed the presence of ethyl glucomide at levels indicative of “chronic excessive alcohol use,” according to the report.  That report was not made available to the SJR on the day of the hearing, presumably because it was only published on that day.

14. The mother had previously denied excessive alcohol use but in an affidavit filed on 14 December she had, according to her affidavit, “reflected on her alcohol consumption patterns”. She said that she had previously consumed a “substantial amount” of alcohol when the children were not in her care.  She says she is now abstinent of alcohol.

15. The mother had previously denied excessive alcohol use to a child expert when interviewed for the purpose of a Child Impact Report published on 9 September 2022.  Accordingly, I approach the mother’s evidence about her alcohol use and her claimed abstinence with caution.  However, I am satisfied that there is clear evidence pointing to chronic excessive alcohol use in relatively recent times.  The child expert in the Child Impact Report recommended that if there was evidence of chronic excessive use of alcohol by the mother and other evidence of neglect of the children, then the present living arrangements of the children should be reconsidered.  I accept that is a proper approach to the case.

16. However, there is little or no independent evidence of neglect of the children in the mother’s care.  X told the child expert, during the interviews for that report, that both his parents drank alcohol.  He denied any neglect by his mother and said he was happy in the care of both parents and felt good in both households.  Of course, a child may underplay or deny problems with a parent or a household out of loyalty but there does not appear to be any evidence of that in this case.

17. The father tendered school reports for both children for semester 2, 2022, in other words, the most recent reports.  In my view, those reports do not provide evidence of neglect.  In relation to X, the reports record that he was absent in semester 2 for three whole days and seven partial days.  It is also recorded that he did not hand in his homework or, at most, rarely.  While the failure of X to provide any homework is consistent with or supports one of the father’s criticisms of the mother, whether that is indicative of neglect is not clear in my view.

18. In particular, the general comments made about X by his class teacher or whoever provided the report is, in my view, inconsistent with neglect:

    [X] has made pleasing improvements this year.  He usually displays a very enthusiastic and interested attitude towards learning by showing respect for his classmates and teachers.  [X] works well independently on set tasks after instructions have been given, working towards his personal best most of the time.  He works cooperatively in class, gets along with his peers and has a positive outlook on learning by beginning tasks promptly.  [X] is improving in the presentation of his book work, taking more care in all his work.  He is an astute listener, demonstrated by his ability to follow instructions with accuracy and participation in class discussions by providing increasingly thoughtful answers.  [X] will often seek help when he is experiencing difficulty and completes his work in class promptly.  He should be praised on his achievement as a respectful and responsible learner this year, earning him the Year 6 Most Consistent Award.  Keep working hard, [X], and good luck in High School.

19. That report is inconsistent with the father’s report that the children, or X at least, is struggling at school and/or going backwards.

20. In relation to Y, the report says that he was absent for seven whole days and seven partial days.  Again, Y does not, or at most rarely, do homework.

21. The general comments are as follows:

    [Y] is a friendly and helpful student who displays a consistent commitment to his learning across all key learning areas.  He can be relied upon to work independently but prefers to work as part of a small group or with a partner.  [Y] is beginning to contribute more answers to class discussions but prefers when he can share his own knowledge with the class or ask questions to further his own understanding.  He is well liked by his peers which ensures he is always welcome in any group activity or game.  [Y] is to be commended for his inquisitive and consistently positive approach to learning.  He has been a pleasure to teach this year and I wish [Y] the best for Year Three.

22. While it might be thought that the absences were possibly concerning, there is nothing in the school report or in the general comments to indicate that the school has any real concern about Y either.

23. I am not satisfied that there is evidence that the children have been neglected in the mother’s care, although I certainly acknowledge that the evidence about the mother’s use of alcohol is deeply concerning and if it were the case, as the ethyl glucomide results would suggest, that the mother has, at least before she became abstinent, used alcohol chronically and excessively one would expect that to have a deleterious impact on the welfare of the children.

24. Notwithstanding the absence of any independent evidence of neglect and notwithstanding the absence of evidence of neglect in the children’s school reports, I do have some concerns about the effect on the children of the mother’s use of alcohol.  However, in the absence of any evidence to suggest that they are at an unacceptable risk of harm in her care, at least in the interim, or that her alcohol use is harmful for the children, I am influenced by the many changes that these children have experienced over the past 12 months or so.

25. In the past 12 months or thereabouts they have left Town B with their mother; left their school at Town B; they have been enrolled in F School in Town D; they were then removed from that school by the father, re-enrolled at Town B School, stayed there for a month, were then removed and returned to F School. I am now asked to make an order, by the father, that would see the children removed from, or certainly see Y removed from F School and X returned to live in Town B and to be enrolled in the high school there.

26. I consider that such a change is not merited in the context of this case and having regard to the evidence.  I consider that any further change pending trial runs the risk of being harmful to the children and disruptive.

27. Having regard to the legislative provisions of the Family Law Act 1975, the submissions of the parties have been primarily directed towards subsection 60CC (2)(b), that is, the need to protect the children from the risk of harm or neglect.  While I have pointed to the factors that I consider relevant to that assessment, I also am strongly influenced by subsection 60CC (3)(d), that is, the effects of any change in the living arrangements of the children and I consider that having regard to the matters that I have referred to no further change is merited before trial. The application will be dismissed.

28. This is an application for costs following an unsuccessful application for review of a Senior Judicial Register’s decision. The applicant was wholly unsuccessful. In my view, that is a circumstance meriting a departure from the usual rule in section 117. However, I accept the submission of Mr Lawrence that the father acted reasonably in his application, reasonably in the sense that there was evidence that became available after the SJR’s decision that supported his case, that is, evidence of the mother’s excessive chronic alcohol use. He had asserted that from the beginning and that had been denied by the mother from the outset, a denial that would appear, having regard to the evidence and her later admissions, to have initially lacked frankness. While I am satisfied there are circumstances meriting a costs order, I am not satisfied that it should be 100 per cent of the scale costs. The scale costs on my calculation are item 2(a) and (b) and item 14, which total $4,718. I propose to make an order that the father is to pay the mother’s costs in the sum of $2,500.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge T.Young.

Associate:

Dated:       20 December 2022