Rhodes & Lanzer
[2021] FedCFamC2F 267
•8 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rhodes & Lanzer [2021] FedCFamC2F 267
File number: MLC 3048 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – interim parenting order made – whether there is an unacceptable risk – where the section 11F report writer did not have access to the previous proceedings issued in 2015 – where cross-examination of the section 11F report writer was necessary at interim hearing – father to undergo alcohol testing – abstinence from alcohol required – balance of risks – least worst alternative. Legislation: Family Law Act 1975 (Cth) ss 60CC & 69ZL Cases cited: Goode & Goode [2006] FLC 93- 286 Division: Division 2 Family Law Number of paragraphs: 14 Date of hearing: 8 October 2021 Place: Melbourne Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Ms A Juneja Solicitor for the Respondent: Peninsula Community Legal Centre Solicitor for the Independent Children's Lawyer: Creative Family Law Solutions ORDERS
MLC 3048 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RHODES
Applicant
AND: MS LANZER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Parenting Orders made by consent on 15 November 2017 remain in full force and effect subject to the following:
(a)paragraphs 3, 4, 5, 6 and 12 of the orders granted 15 November 2017 be suspended until further order;
(b)paragraph 10 remain in full force and effect and further both parents be and are restrained from denigrating or physically disciplining the child or allowing anyone else to do so.
2.The child X (born in 2012) ("the child") live with the Mother.
3.Until the Father complies with the requirements of paragraph 7 herein, and provides a negative test result, the child shall spend time with the Father:
(a)During the school term, each alternate Saturday and Sunday from 10.00 am until 5.00pm commencing Friday 15 October 2021;
(b)Such other time as agreed in writing.
4.Upon the father producing negative test results in accordance with paragraph 7, the child shall spend time with the Father:
(a)during school term, each alternate weekend from Friday after school or 4.00pm until the commencement of school on Monday or 9.00am;
(b)during the school holidays, in keeping with the cycle of alternate weekends from paragraph 4 (a), each alternate weekend from 10.00am on Friday until 6.00pm on Monday;
(c)such other time as agreed between the parties in writing.
5.The changeover will take place at the child's school wherever possible and otherwise at the carpark at McDonalds at Suburb B or as agreed between the parties or as nominated by the Independent Children's Lawyer.
6.Without admitting the necessity, the Father's time be conditional upon him not consuming any alcohol at all.
7.The Father:
(a)Provide a current Liver Function Test to the Independent Children's Lawyer and the solicitors for the Mother within 14 days, at his expense;
(b)Comply with all requests from the Independent Children's Lawyer for Carbohydrate Deficient Transferrin (CDT) testing or supervised alcohol urine testing :
(i)within 24 hours of receiving such a request;
(ii)on a random basis no more frequent than once per fortnight unless the results indicate the presence of alcohol or are uncertain;
(iii)testing results to be provided to the Independent Children's Lawyer and the solicitor's for the Mother as soon as they are available;
(iv)at the expense of the Father;
(c)That the Father engage with a specialised drug and alcohol counsellor.
8.In accordance with paragraph 7 herein:
(a)The Father provide the results of a CDT test to the Independent Children's Lawyer as soon as practicable;
(b)In the event that the Father provides a test result to the Independent Children's Lawyer in accordance with paragraph 5 or 7 that indicates the consumption of alcohol, then his time with the child pursuant to paragraph 3 will take place on a day time basis only from 10.00 am to 6.00 pm each alternate Saturday and Sunday until such time as he can provide a further test result indicating that he is abstinent from alcohol.
9.That the Mother and the Father will do all such acts and things that may be required to obtain counselling/psychological support for the child as soon as possible, including but not limited to:
(a)The Mother forthwith attend upon her General Practitioner in obtain a Mental Health Plan and referral to enable the child to re-engage with a counsellor or psychologist;
(b)Engage with Ms C, clinical psychologist, the child's previous psychologist, on a private basis, and share the costs of such therapy equally between them, and ensure that the child attends any appointments scheduled with the child when she is in their care;
(c)In the event that there is a significant waiting list with Ms C, the Mother shall make enquiries of the child's school to determine as to whether they can facilitate the child engaging in counselling/supports at school in the interim.
10.A Psychological Assessment and Report be obtained regarding the Mother and the Father:
(a)That they attend upon Dr D of E Psychology on 1 February 2022 or such other time as advised by the Independent Children's Lawyer;
(b)That this be at their shared expense;
(c)That Victoria Legal Aid be requested to fund this report if within their guidelines.
11.Both parents participate in and complete a Parenting Orders Programme conducted by Family Life or such other agency as nominated by the Independent Children's Lawyer.
12.That the Independent Children's Lawyer be at liberty to provide a copy of the following documents to the professionals engaged in the services referred to in paragraphs 7, 8, 9 and 10:
(a)These orders and the orders 15 November 2017;
(b)The report of Mr F dated 6 June 2017;
(c)The report of Ms C dated 30 March 2020;
(d)The Reports from DFFH dated May and 5 July 2021;
(e)The s11F Report dated 28 September 2021.
13.Within 7 days the parents shall provide the Independent Children's Lawyer the names and contact details of all medical practitioners including mental health professionals they have attended upon in the last five years.
14.The Independent Children's Lawyer have leave to issue more than 5 subpoenas.
15.The Mother and Father shall communicate all important information regarding the child by way of the parenting app "App.Close".
16.The parties attend an FDRS Conference initiated by the Independent Children's Lawyer after release of the Psychological Report.
17.The matter be adjourned to 22 March 2021 at 9:30am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B 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 Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 Rhodes & Lanzer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled reasons of an ex tempore short form decision (section 69ZL of the Family Law Act 1975 (Cth)). This matter comes before me in a busy week of interim hearings where I had to roll it over to today from yesterday to finish the hearing. The matter concerns the parenting arrangements of the child, X (“the child”), aged 9. The mother, Ms Lanzer (“the Mother”) and the Independent Children’s Lawyer (“ICL”) raised concerns about the father’s, Mr Rhodes (“the Father”), alcohol consumption.
In this matter I take into account all of the parties' evidence that they have filed, which I have read, and in addition the helpful submissions of the parties, and particularly the Father’s solicitor’s very helpful, very concise and powerful submissions. Unusually, I have two sources of independent information. The child-inclusive memorandum (which I will refer to as the section 11F report) written by Ms G. In addition to that, partly by the thorough work of the ICL, the evidence of the report of Dr F from back in 2017. I also have the oral evidence of Ms G today, which I admitted in the unusual circumstances of this case. In my view, it demonstrates that the general rule that there should not be cross-examination of the section 11F report writer on an interim hearing, though a good one, should have a limited degree of flexibility.
The additional matters that are in evidence directly from Ms G as opposed to being relayed even accurately, but nonetheless second-hand from the ICL, are significant. For several reasons, I will recite section 60CC(2) and 60CC(2A) of the Family Law Act 1975 (Cth):
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).
The first primary consideration that I must take into account in determining what are the best interests of this child are the benefit of a significant relationship with both parents. I am comfortable that there is benefit to a significant relationship with both parents.
The other primary aspect to take into account is the need to keep the child safe from the risk of abuse or harm in any manner. Section 60CC(2A) commands me that I must give priority to that protective matter. In this case, there are allegations of significant risk of harm to the child in either parent's care. The Father's case is that the Mother has poor impulse control in regard to the stressors of her parenting a child in a very busy household, and that she inappropriately chastises the child and in anger calls her inappropriate names such as “dumb” and “fat”.
The Mother denies those allegations, but the solicitor for the Father points me to historical evidence that indicates that, certainly at a point in time, there was once an unacceptable risk. The other significant overlay upon this case is the Father's attitude to the Mother as a parent. Of course, if the Father believes that the Mother is continually physically abusing the child and insulting her, it is difficult for him to put that behaviour in perspective.
Dr F's 2017 report at paragraph 19 refers to the Father of having above-average intelligence. It is unclear to me, yet, whether that is an advantage or disadvantage to the Father in the circumstances where he has historically, it is common ground, had a significant alcohol abuse problem. It is notorious that a smart person with an alcohol problem can be a lot more trouble to him or herself than one of average intelligence. I do not draw that inference, but it is just one more complication to this case.
The child has reported (and the Father denies the sobbing, crying and distress during her time with him) being worried about the Father’s psychological circumstance and state. I do find that there is an unacceptable risk that the child's observations have some substantial basis in fact. I am not going to have this case determined by what the child says, or the child's wishes, in the circumstances of the child being in the middle of a highly conflictual, unfortunate parenting relationship. Nevertheless, there is an unacceptable risk, in my view, that the Father has relapsed into significant alcohol abuse, and whether he is dependent on the alcohol abuse or not, there is an unacceptable risk of him having significant emotional distress at what appears to be his circumstances and the circumstance of the child and being unable to protect the child from that.
They are the two serious unacceptable risks that I must balance in this determination. In balancing all those risks, it is my finding that the orders, as sought by the ICL are in the child’s best interests, provided they have the words that I have suggested changed, that is, that paragraph 5 has the words added “consuming any alcohol at all.” That is so it is clear it is a very different position to the position that was imposed on him by paragraph 4 of the previous orders (not consume to excess of 0.05). I do acknowledge the point powerfully made by the solicitor for the Father that there is no evidence to suggest directly that the Father did not comply with paragraph 4.
There is no direct evidence, but there is sufficient evidence in unknown circumstances to indicate to me that there is an unacceptable risk that has occurred, and that it is impacting on his time with the child. I have allegations of unacceptable risks in both households. These two parents are the only options to care for this child, who is strongly attached to both of them.
I am unable to determine who is most responsible for the conflict between them. I expect that, ultimately, if it is possible to determine it, both parents will be found to be responsible in different ways for that conflict. There is a burden on the child of that conflict. I will not recite all of it, but it involves court proceedings, it involves investigations, it involves unilateral help and potentially the other parent being run down in the child's presence in respective homes.
Hence, for those reasons balancing all the requirements of Part VII of the Family Law Act 1975 (Cth) and all of the evidence, I am satisfied that the best interests of the child are advanced by the least worst alternative in the child's life at this moment is to proceed with the orders as sought by the ICL, provided they have that addition in paragraph 5. Plus, to make it clear that until the Father has demonstrated abstinence from alcohol by the CDT test, his time will be from 10:00am until 6:00pm. I want to acknowledge the severe imposition on the child and on the Father that is the interruption in the child's relationship with the Father that I am ordering. I do not do that lightly.
However, the parents who ordinarily are in the best position to sort out the living arrangements for their daughter, are unable to do so. My job is the default position to sort out those living arrangements where the parents cannot. I am making these orders on the basis that, as best as I can tell on the evidence that I have, which is incomplete and on an interim basis. I also acknowledge I am bound by the criterion at paragraph 82 of Goode & Goode [2006] FLC 93- 286. I am sure Mr Ng will explain to Mr Rhodes, that I cannot make factual findings where they are disputed, except in very rare circumstances on an interim hearing, and what I am left with in this case is balancing allegations of unacceptable risks. They are the reasons that I make those orders.
The order should essentially have 7(b) redrafted so that it is upon the CDT testing demonstrating abstinence from alcohol that we get back to the orders as sought by the ICL, acknowledging that that is reducing the Father's regular time from four nights a fortnight to three, and reducing the school holiday time from the week about, which would ordinarily be very sensible, to much more limited time. The matter will come back before me on a date in March that my Associate will determine. I will have a transcript of Ms G’s evidence available for the parties.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 17 November 2021
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