SAFFERT & DALGETTY

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAFFERT & DALGETTY

[2020] FCCA 1927

Catchwords:
FAMILY LAW – Parenting – dispute about the father’s time with children aged 8 and 6 – where the father is currently spending time with the children during the day only subject to a satisfactory breathalyser test at the commencement of the time – father seeking overnight time on alternate weekends and block time during school holidays – where the father has a longstanding issue with excessive alcohol consumption which he has failed to satisfactorily address – where the father’s alcohol consumption has been associated with family violence and mental health issues and impacts on his parenting capacity – order on a final basis for time during the day only subject to a satisfactory breathalyser test at the commencement and end of the time.

Legislation:

Family Law Act 1975 Cth ss.60CC, 61DA

Cases cited:

Mazorski & Albright (2007) 37 FamLR 518

Applicant:

MR SAFFERT

Respondent:

MS DALGETTY

File Number:

NCC 3116 of 2018

Judgment of:

Judge Terry

Hearing dates:

27 & 28 April 2020

Date of Last Submission:

28 April 2020

Delivered at:

Newcastle

Delivered on:

4 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Brady

Solicitors for the Applicant:

Winder Lawyers

Counsel for the Respondent:

Mr Mueller

Solicitors for the Respondent:

Lucy Urach & Associates

ORDERS

For all purposes the child X SAFFERT born in 2011 shall be known henceforth as X DALGETTY-SAFFERT.
The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X SAFFERT born in 2011 to X DALGETTY-SAFFERT.
The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 2 above is to do all acts and things to register the change of name of X SAFFERT born in 2011 to X DALGETTY-SAFFERT pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.
The children X born in 2011 and Y born in 2013 (“the children”) shall live with the mother.
The mother shall have sole parental responsibility for the children.
The mother shall promptly notify the father of any major decision she makes in the exercise of her parental responsibility and shall ensure that the father is kept advised of the school the children are attending and the name of the children’s general practitioner.
The children shall spend time with the father as follows:
(a)on the third weekend of each and every month from 1.00pm until 6.30pm on Saturday and from 9.00am until 5.00pm on Sunday with such time to occur in the Region B; and
(b)at all other times as agreed in writing between the parties.
In the event the father elects not to spend time with the children in accordance with Order 7 herein, the father shall provide the mother in writing with no less than 72 hours.
The father is restrained and an injunction is granted restraining him from consuming alcohol within the 24 hours prior to spending time with the children and during any time the children spend with the father.
The father shall undergo a breathalyser test at the commencement and the end of time with the children.
If the breathalyser reading at the commencement of a visit registers an alcohol reading then the visit shall not occur and the mother is at liberty to leave with the children.
The father shall communicate with the children by telephone or video communication each Tuesday and Thursday at 6.00pm with the father to place the call to the mother’s mobile telephone.
The father shall ensure that the children are not left in the sole care of his brother Mr C or the paternal grandfather Mr D.
The father shall ensure that the children are not exposed to persons affected by illicit substances.
The mother shall keep the father advised of the extra-curricular activities in which the children are enrolled and of any concerts, training and performances and the like in connection with their school or extra-curricular activity which will fall on times when the children are with the father.
If the father upon receiving information in accordance with Order 15 considers that he will not be able to take the children to an extra-curricular activity, concert, training or performance during the time the father is due to spend with the children he shall contact the mother with a view to an agreement being reached that the father’s time with the children take place on another day so that the children can attend the extra-curricular activity, concert, training or performance.
In the event that the children or either of them suffer a serious illness or injury, is admitted to a hospital, undertakes any emergency medical treatment or receives specialist medical attention, then the parent with whom the children or child are living at the time shall notify the other parent as soon as reasonably practicable and provide details of the treating doctor or like professional and the other parent is at liberty to visit the child daily during such hospitalisation period.
The father shall be permitted to liaise directly with the child’s treating doctor(s), hospital and/or other health care professionals to obtain any information he requires about the child’s medical history and treatment and the mother shall forthwith authorise the medical practitioner(s) in writing to facilitate this by no later than seven (7) days after the date of these Orders and these Orders are sufficient authority for that purpose.
Each parent shall forthwith take all necessary steps and give whatever authority is required to enable the child’s school to provide to each parent any information about the child’s progress including school report, or notice of any school and sporting activities and these Orders are sufficient authority for that purpose.
The parties shall notify the other in writing within 48 hours of any changes to their contact details including email address, contact telephone number and residential address.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3116 of 2018

MR SAFFERT

Applicant

And

MS DALGETTY

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Mr Saffert and Ms Dalgetty are in dispute about the time X, 8, and Y, 6, should spend with their father.
The children are spending daytime only with him at present subject to a condition that he complete a breathalyser test prior to the time commencing. The father would like the children to commence spending more extensive time with him, including overnight time and in due course holiday time. He said that he was prepared to build up to it but that he ultimately wanted to be able to spend with the girls each alternate weekend from Friday to Sunday and for half of the school holidays.
In final submissions the father’s counsel said that the father was prepared to agree to some ongoing testing in relation to alcohol use, for example hair testing, to satisfy the mother’s concerns about his alcohol use. However he did not propose a continuation of the use of the breathalyser.
The father proposed that the parties have equal shared parental responsibility for the children.
The father acknowledged that he had a long history of problematic drinking but said that he could be trusted not to consume excessive alcohol while the children were with him and that the court should not find that the children would be at unacceptable risk of harm if they spent overnight or extended periods of time with him. His counsel emphasised that the children would benefit from having a meaningful relationship with the father.
The mother proposed that the children spend time with the father every third weekend from 1.00 pm until 6.30 pm on Saturday and from 9.00am until 5.00 pm on Sunday. She proposed that the father be restrained from consuming alcohol 24 hours prior to the commencement of his time with the children and that he complete a breathalyser test at the beginning of the time and if the reading was over .05 the visit not occur.
The mother said that she remained concerned about the father’s drinking and the potential for that to result in the children being exposed to violence, lack of supervision, poor role modelling and other parenting capacity issues. She said that nothing had changed in the father’s situation which told her it was okay to move forward.
The mother sought an order for sole parental responsibility.
There are a couple of other issues in the matter. One is that the mother sought an order that the father not leave the children in the sole care of his father Mr D or his brother Mr C. The father agreed that there were valid reasons for that and did not oppose such a restraint being made.
The other was that at present one of the children has the surname Saffert and the other has the surname Dalgetty-Saffert and the mother proposed that both children have the surname Dalgetty-Saffert.
The father was initially reluctant to consent to that. He said that the parties had agreed during the relationship that the children would have the surname Saffert. However in cross-examination he said that he would agree to the mother’s proposal.
In her orders sought at trial the mother sought an order that the children be called Dalgetty Saffert with no hyphen. It became clear during the trial however that she wanted the children’s names to be Dalgetty-Saffert because that is the surname of one of the children already.
I will make a ruling on the surname issue despite the fact that the father made concessions about it.

The evidence

The evidence in the case was given by the mother and the father. Neither called any other witnesses.
An 11F memorandum was prepared by Ms E, a family consultant. She was not required for cross-examination.
This was a case in which I decided not to order a family report. There was no dispute about the nature of the children’s relationship with the father in terms of them being willing to go and spend with him. The issue in dispute was whether they would be at risk of harm in his care and whether he had parenting capacity issues and that was better decided by hearing some evidence about the matter than by obtaining a family report.
The father’s trial affidavit was extremely unsatisfactory.
The mother raised concerns about his alcohol use from the commencement of the proceedings but he scarcely referred to it in his affidavit, in fact the only reference he made to it was to mention that there was an order that he do the breathalyser tests. He provided some evidence about what had happened with the breathalyser tests but did not provide a skerrick of evidence about his historic or current alcohol use.
When he was asked in cross-examination why he had not provided any evidence about those things he said:
I don’t know why I needed to bring it up and address it. I knew it would be a talking point.
So apart from the mother’s evidence the only information I have about the father’s alcohol use is information which was extracted from him during cross-examination (and I use the word “extracted” advisedly) and the information in documents in the tender bundle.
The mother also raised the issue of family violence from the beginning and that was not addressed in the father’s affidavit either, even briefly.
The father was not a particularly satisfactory witness in cross-examination. At times he professed not to remember things. On other occasions he professed to have a very clear recollection of things that had happened a long time ago.
I have a number of concerns about the father’s evidence which will have an impact on the overall outcome of the case.
The hearing was conducted using the Microsoft Teams platform as the court had suspended conducting face-to-face trials due to the COVID-19 crisis. That worked very satisfactorily and I am grateful to the parties and their counsel for cooperating in the trial proceeding in that way.

Background

The parties commenced a relationship in 2007. They separated initially either in July 2013 according to the mother or December 2013 according to the father. That was around the time of, or shortly after, Y’s birth and explains why she has the different surname.
They reconciled in August 2014 and finally separated in January 2017. They remained living under one roof for a shortish period. My recollection is that it was until March 2017 but nothing turns on whether I have correctly recalled that exactly.
The parties have two children, X born in 2011 and Y born in 2013. I asked for a copy of Y’s birth certificate to be provided so that I could confirm that her surname was Dalgetty-Saffert and not Dalgetty Saffert as two separate words.
The children were five and three at the time of separation and they remained with the mother.
The mother gave evidence that the relationship was marred by excessive alcohol consumption and perpetration of family violence by the father. She also alleged the father did not show much interest in being a parent or in the family and that she felt unsupported.
I will have to make findings later about the allegations concerning the father’s alcohol consumption and perpetration of family violence and I will refer briefly to the issue of the father’s interest in the family later in the judgment.
After separation the father spent time with the children by agreement with the mother. The mother has never shut the door and said “You are not going to see the children.”
The mother said that the father was not always reliable about spending that time. She said that he sometimes prioritised commitments with new girlfriends or other matters over spending time with the children.
The father did not entirely accept that or did not accept that at all. He said the mother was sometimes reluctant to agree to time.
I do not consider that latter proposition likely because since separation which was a considerable time ago the mother has always facilitated the children spending time with the father in some form. However it was common ground that the mother never agreed to overnight time and that this was because of her concerns about the father’s alcohol consumption.
In the second half of 2018 there was an incident at X’s school. The mother said that she was contacted by the school and when she arrived she found X upset and the father yelling and swearing and trying to take her away. The mother collected X and said that the father then sped off in his car.
The mother was generally a very credible witness. She was not caught out on any contradictions or inconsistencies and I accept her evidence about what happened on that occasion.
On 3 October 2018 the father commenced proceedings in this court seeking orders about spending time with X and Y.
In November 2018 an interim order was made for the father to spend time with the children from 10.00am until 3.00 pm each Sunday. It was ordered that he not to consume any alcohol during his time with them or for 24 hours prior to the commencement of the time.
The mother subsequently alleged that the girls were telling her that there had been some drinking and that she felt that the father was sometimes affected by alcohol at changeovers and in March 2019 the orders were changed. The parties were ordered to purchase a breathalyser and it was ordered that time not occur if the father blew over .05.
The mother was also given liberty to relist the matter if the result showed the father had any alcohol in his system.
On a number of occasions after the order was made the breathalyser test did show that the father had alcohol in his system but the mother never sought to have the matter relisted.
In July 2019 the children’s time with the father was increased to be from 1.00pm until 6.30pm on Saturday and from 9.00 until 5.00pm on Sunday.
The mother continued have concerns about the father’s alcohol use. There was an occasion late in the year when time did not occur because the father blew over .05. There were other occasions when the mother was concerned about the reading or about the father’s presentation but time still occurred and there were occasions when because of other commitments in a new relationship the father did not attend.
By and large with some missed occasions the father spent time with the children for the remainder of 2019 pursuant to the orders that were made in July 2019 and he is continuing to do so.
The father wants more extensive unsupervised and the mother is not willing to agree to that and the matter was therefore listed for trial.
The father is in a relationship with Ms F who lives in Melbourne. The mother raised some concerns about her in her affidavit and Ms F was not on affidavit for the trial.
In his trial affidavit the father said that he was considering moving to Melbourne and in his amended application he sought orders for the children to spend time with him in Melbourne if he relocated. However he also said in his affidavit that he had no firm plans to move and in final submissions he did not pursue any orders about the children spending time with him in Melbourne.

The father’s alcohol consumption

I am going to consider the evidence about the father’s alcohol consumption and about the family violence before turning to the “best interests” considerations.
The mother gave detailed evidence in her affidavit about the father’s alcohol consumption during the relationship. She alleged that he drank heavily on an almost daily basis. She said he would drink two bottles of wine and a cask or half a bottle of port in a session.
The mother said that the father worked in hospitality and was prone to have a couple of drinks after work and then bring alcohol home. She also said that he would make homebrewed spirits and went on to say as follows:
A usual drinking episode for Mr Saffert on a workday would involve him having two beers or wines after finishing work before arriving home. When he got home at approximately 10.30pm he would almost immediately go and sit at the outside table and drink wine. He would move between there and the front porch usually between the hours of 10.30 until approximately 2am. He would then sit at his bar inside the house and drink port until approximately 3am to 4am where he would then reheat his dinner and take a shower.
On Mr Saffert’s days off between jobs he would often get out of bed in the early afternoon. He would tell me he was going to groceries but he would usually go to the pub or club instead to play the pokies. Upon returning he would sit outside drinking wine and playing loud music until early hours of the morning.[1]
[1] Mother’s affidavit paragraphs &
The mother provided detail in her affidavit about some of the impacts of his drinking and said as follows:
Due to Mr Saffert’s drinking, I felt as though I needed to stay awake throughout the night because he would often do things like go out the front and leave the front door wide open or start reheating food on the stove and leave it on. He would leave broken bottles scattered around the garage and outside. When he would eventually go to bed, he would sleep all day. He would get angry with the children if they went into the bedroom when he was sleeping.[2]
[2] Mother’s affidavit paragraph 24
The mother attached to her affidavit some notes she made between September 2012 and November 2013 about some of the father’s behaviours. This tends to suggest the separation in 2013 was possibly at the later time the father said rather than the earlier. Those entries are also relevant to her allegations about the father becoming very aggressive when he had been drinking.

In answer to a question in cross-examination the mother said that there was only one month, once during the relationship, when the father was not drinking.
The mother was a good witness. I do not accept that she has made all this up. That is simply not credible in light of all the other evidence about the father’s drinking that I am now going to refer to.
The father’s GP records were tendered and there is an entry on 14 December 2011 when X was four months old.
The father went to the GP after an incident I will refer to later where as he admitted in cross-examination, he had drunk heavily at a wedding and when being driven home by the mother pulled the handbrake on causing the car to run off the road. It is noted in the entry that the father said that he was seeking counselling about alcohol addiction. He said that he had been drinking heavily since a young age and having up to 15 drinks a day. There is mention of a little child of four months, who was X, affecting the relationship, on the father’s case.
The father told his GP that he had stopped drinking but had not slept for four days.
The mother said that the father did not stop drinking after this incident but kept right on drinking.
The next relevant entry is on 14 February 2017. At this time the parties were separated but were still living under one roof. On this occasion the father went to the GP saying that he was seeking help with mental health issues. He was asked about his drinking and said the number of standard drinks that he drank on any day was 12 and that he normally drank every day.
On 11 May 2018 the father went to the GP again to discuss his mental health. He said that he had been drinking heavily and wanted to give up.
In June 2018 he is recorded as saying that he was drinking three to four standard drinks a night.
There is also a reference in the records dated 9 February 2019 to the father saying that his alcohol consumption was 10 or more standard drinks four or more times a week.
During the trial I was a little bit concerned about where that had come from because there was no reference to it being the result of a particular consultation but in cross-examination the father said that he had what he called a relapse in February 2019, so it does on the balance of probabilities sound as if that may be an accurate description of what the father told his doctor at that time about his drinking.
The father did not refer to his alcohol issue in his affidavit apart from referring to the issues with the breathalyser tests. However it referred to in the Child Dispute Conference Memorandum prepared by Ms E who saw the parties at a Duty CDC on 14 November 2019.
There is some contradictory evidence in the memorandum. The father told Ms E that his alcohol use was an issue during the relationship but said that in his view the mother was hyper-vigilant about his drinking and that he could not enjoy a glass of wine without criticism.
However later on under the heading “Substance Issues” there is a lengthy discussion of further information provided by the father in which he is reported as agreeing that his drinking was at times problematic. The entry is as follows:
It is common ground that the father used alcohol heavily during the parental relationship. The father said “at times it was problematic, it was a toxic relationship, an upsetting time”. When asked about his current alcohol level use, the father said that he enjoyed a drink of alcohol, but his use wasn’t problematic. He said that he drank most days of the week, but also had days off. He said that he drank 1 glass of wine on each occasion. The father was asked whether he thought a CDT test would support his reporting of alcohol consumption, or whether it would show chronic levels of alcohol use. The father said “I think it would be over the level”, noting that he was struggling with depression “the last two months it has started to go up again”. He said even though he had days of not drinking “I am more than happy to have a bottle of wine” when he does drink. He seemed confident that a CDT test would reveal “high” levels of alcohol use. He emphasised that he was not getting drunk and he closely monitored whether or not his behaviour changed when drinking, and asked others to monitor him, and there were no concerns evident.
The mother described the paternal uncle and the paternal grandfather as heavy drug users. The father conceded that his brother uses cannabis oil and cannabis on occasion for pain relief. He described his father as an “old hippy” who uses cannabis but the father doesn’t see him much. The father was dismissive of the mother’s concerns
During cross-examination the father was asked numerous questions about his drinking. He said that at the age of 15 or 16 he used to go to parties and binge drink. He agreed that his father was an alcoholic.
The father agreed that he had gone to the doctor in 2011 after the handbrake incident. He was evasive about the amount he had to drink at the wedding in 2011 but he agreed he had been drinking. His comment was:
You have to drink at a wedding.
He agreed the mother was not drinking. She was then breastfeeding X and I don’t think the evidence suggests that she drinks much if at all anyway. The mother drove home from the wedding and there was the incident with the handbrake.
The father made some admissions which confirmed that the information in the GP records from 14 February 2011 was pretty accurate.
The next entry in the GP records was the one for 2017 and in cross-examination the father said that at that time he was drinking more than he should have. He commented he was drinking more than a healthy amount but was evasive when he was asked what that meant.
The father was asked about the entry in 2018 and said that he did recall that he was drinking too much at that time. In regard to the February 2019 entry which I had some concerns about, when I checked my notes the father did not seem to deny that he made that comment about drinking 10 or more standard drinks four or more times a week but he said he may have bumped up the amount to try and get help.
Eventually in cross-examination the father admitted that he had had a drinking problem from 2011 to 2018 and that he had a relapse in 2019.
The father provided no information at all in his trial affidavit about the amount he was currently drinking, who he drank with, the circumstances under which he drank and what he was drinking and it is not for the other party involved in litigation to extract that information from him.
The only information I have about what might have been happening with the father’s alcohol consumption currently is what the breathalyser results show and they show that there is absolutely no doubt that the father continues to consume alcohol.
I mentioned that an order was made that he was not to have the children if he blew over .05 and on 24 November 2019 at 10.30 am in the morning he blew .08.
The mother said that he was adamant that he should not have been over because he and two friends had only had three bottles of port between them. According to the mother, he said he had gone to bed at 4.00 am.
The father gave a more benign version about how much he had been drinking but the fact is that on 24 November at 10.30 am in the morning he was over the driving limit, having driven to the pick-up location.
When he blew over the mother said that the time would not be occurring. She said and I accept that the father took Y’s seat out of the car, threw it on the ground and threw the breathalyser on top of it and then drove off.
To the mother’s great credit, and this undermines the father’s case that she is trying to align the children or is gatekeeping, she agreed to him spending time with the children the following day.
On 17 February 2020 the father blew .34 which was not over the limit but again it is concerning that this was the reading in the morning before he picked up the children.
The mother was concerned about the father’s behaviour on 7 March 2020 which she felt might indicate that he had been drinking.
On 18 April 2020, less than 10 days before the hearing, the father blew .043 at 11.30 am.
The mother said that changeover was meant to be at 10.00 am but the father rang her up and said his car was not working and asked her to make it 12 noon. He turned up at 11.30 and blew .043. She was concerned that if he had been tested earlier the result might have been even higher.
The father was not very open when he was asked in cross-examination about what had happened or what might have caused that. He simply said he did not agree with the reading. He was asked whether he had been drinking the day before and he said yes. When he was asked, “When did you stop drinking?” (and remember this was something which had happened only 10 days earlier) he said:
I do not recall.
How much did you drink?
I do not count my drinks. I do not remember drinking the night before. I probably did if I blew .43.
That is hardly reassuring evidence that the father is able to control his drinking.
It was obvious from the father’s affidavit and from submissions that the father is very proud of the fact that so few of the readings have been positive for alcohol, indeed he made the interesting comment that in 2017 and 2018 the readings would not have looked like that, they would have been drastically different, the implication being that he has been trying to do something about his alcohol consumption.
The father’s counsel also relied on the fact that the father has done two CDT tests, one of them fairly recently and the most recent one, and the earlier one as well, did not indicate that he had been regularly consuming alcohol at an excessive level.
There are several difficulties here. One is that regardless of whether the father thinks his drinking situation is better now than it was there was one occasion within the last seven or eight months when he blew over .05 and another occasion only 10 days prior to the trial when he went pretty close.
His evidence about his drinking was extremely unsatisfactory and his admissions minimal. There is nothing in his evidence to suggest that he is able to control his drinking. He did not give any evidence in his affidavit to that effect and he had done no drug and alcohol counselling.
The father went to see a psychologist on one occasion in the past but he was clear in cross-examination that it was not for drug and alcohol counselling.

Family Violence

The mother made some allegations about the father being violent.
Starting with the father’s perspective about that, when talking to the family consultant he described the relationship as toxic. He said the mother would scream at him and had physically abused him when she lost her temper. None of that appears in his trial affidavit I might add.
He told the family consultant that he did not cause the car crash in 2011.
The mother gave extensive evidence about family violence. She said as follows:
Throughout our relationship Mr Saffert was often verbally abusive towards me and would threaten physical violence saying things like “I’m going to smash your head into the wall you fucking fat mole”, I’m going to punch you in the throat”. He would yell and swear at me. This would often occur in front of the children.[3]
[3] Mother’s affidavit paragraph 29; see also the diary entries from 2013 in Annexure B
She referred to the handbrake incident in 2011. She said that the car ran off the road and into a fence because the father forced the steering wheel. In cross-examination the father said he had pulled on the handbrake. The mother said the incident in the car was preceded by the father yelling and demanding “Let me out or I will kill us both.”
The police were called following that incident and they attended the parties’ home but their only response to the situation was to tell the parties to each stay on their side of the property.
Based on the father’s admissions alone his behaviour during the handbrake incident was family violence.
The mother alleged that in late 2013 the father pushed her and slammed her into the wall while she was holding Y; in February 2017, twisted her arm and pushed her by the neck into the wall; and in March 2017 damaged property, throwing paintings and a lamp.
She also said as follows:
For the last month and a half that we were living under the same roof, I would sleep on the children’s floor with their dressing table pushed in front of the door so he could not get into the bedroom.[4]
[4] Mother’s affidavit paragraph 38
The mother agreed that there were occasions when she yelled as well but said that was not common and that mostly when these events happened she just shut down.
The mother was asked in cross-examination why she did not go to the police if the father was doing all these things. It is extremely common for victims of family violence not to go to the police. I sometimes wonder to be frank why counsel who ask these questions do not stop and reflect for a moment on the fact that many of us do not just go rushing down to the police station making complaints frequently.
There was some police involvement in this matter but not much. That is very common. The mother commented that toward the end the situation became normal. She also said she was very embarrassed. She said that toward the end her sister who was a police officer said to her, “I do not want you in my life if you are with Mr Saffert.”
The mother said that since she had moved out she realised how peaceful it could be without this kind of turmoil going on around her and commented:
I feel sorry for Mr Saffert and still do.
I mentioned earlier that the mother was a very good witness. She was not shown to be inconsistent and unreliable. Her evidence about the handbrake incident or the car accident turned out to be pretty accurate and eventually the father made some concessions about his part in it.
The mother’s recollections, unlike the father’s, are not clouded by the fact that she had been using alcohol at the time of these incidents and there was no flavour in her evidence of her being vindictive toward the father. Despite her concerns about him she is actually going to considerable lengths to facilitate the children spending time with him. There is no antipathy there which might motivate her to embellish or be untruthful.
I accept the mother’s evidence about the family violence which occurred during the relationship.
It seems to have largely arisen out of the father’s alcohol use but the mother gave some evidence about the father being quick to anger. She said that there were occasions when he got into her face and pointed his finger. She referred to an incident where there was a dispute after she did not stop at the school uniform shop. Her view that the father was quick to anger fuelled part of her concern about what might happen if the children spend more extensive time with him.
I do not accept the father’s denials about the perpetration of family violence. I do not accept that the mother was as bad as him. I accept the mother’s evidence about what occurred and also about the father being quick to anger. How that plays into the orders I am going to make is something I will come to a little bit later on.

Cannabis use

During the proceedings the mother made allegations about the father using cannabis and abusing over-the-counter medication and from memory there is a mention in the doctor’s records of the father using cannabis. However cannabis use was not raised as an issue at the trial and no testing was sought during the proceedings and I cannot take that any further.

The father’s mental health

The final issue raised about the father was about his mental health.
The father has been to the doctor on a number of occasions over the years with mental health issues namely depression and anxiety. He has been prescribed Seroquel. He said that he had a small amount of counselling in relation to his mental health.
No diagnosis was suggested apart from depression and anxiety and the extent to which the father’s mental health issues arise out of his alcohol use or anything else that is going on in his life I do not know.
The father’s mental health was not referred to at trial as a specific issue that should determine what I did in relation to the children.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as paramount consideration.
S. 60CC (2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine their best interests. S. 60CC (2) contains the primary considerations and s. 60CC (3) the additional considerations. I am going to start with the additional considerations but I am going to quickly run through a number of them which are either not relevant or basically not in dispute.
There was no evidence that the children have a view about parenting arrangements.
In terms of the nature of the relationship between the children and each of their parents, there was no dispute that the mother was their primary carer and that she had a very good and close relationship with them. There was also no dispute that they had a good relationship with their father. One of the mother’s comments to the family report writer was that when the father was not drinking he could be a lovely man.
The mother said that the children were sometimes reluctant to go with the father and had to be talked up into going. Those were her words but she did not suggest that they did not want to see him and she said that they were disappointed when he was not reliable and did not turn up or cancelled visits.
Child support is a matter I have take into account as one of the additional considerations. On the mother’s case the father has not paid child support since last October. He is a tradesman by occupation and has recently lost his job due to the COVID-19 situation or that was his evidence.
The mother said that she was not worried about child support as such but would like help with the school fees. Whether that is ever likely to happen I do not know. It may be that the mother is always going to battle to get child support but the issue of how much time the children spend with the father does not hinge on that.
Another matter which does not assist me is the extent to which each parent has taken or failed to take the opportunity to spend time with the children, make decisions about them or communicate with them.
I must consider the likely effect of any change in the children’s circumstances and that is something that will be woven into a conclusion.
I must consider practical difficulty and expense but it is not relevant in this case. The parents live close together and they both live close to the children’s school.
I must consider the children’s maturity, sex and background and the only relevant matter there is that these are youngish girls who cannot protect themselves.
Considering the attitude to the children and the responsibilities of parenthood will not help me as a separate consideration.
The first considerations which is relevant is parenting capacity and because the focus is on the father I am going to start by talking about his parenting capacity.
The mother expressed concern about some of the decisions the father made about the children. She described an occasion when they were taken to the G Park down a steep set of stairs on a day when there was a thunderstorm and the mother said, ultimately hail. She alleged the children were frightened because of the deep pool. She complained about an occasion when they were sunburnt, an occasion when Y’s jumper was not taken off causing her to overheat and an occasion when X was taken to H Park where children jump around on trampolines notwithstanding that she had an ankle injury.
The court always has to look carefully at those sort of complaints because sometimes it just comes down to people having different personalities and one parent being a bit more of a risk-taker than the other. However in this particular case there is no sign of the mother being an overprotective parent. When she thinks it is safe she has always been willing for the father to spend time with the children. The issues she raised such as taking these young girls to the G Park and the sunburn and other things would concern any parent and when combined with the concerns about the father’s alcohol consumption, the fact that all those different issues have occurred and have troubled the mother causes me some unease about whether the father is always properly attuned to the children’s needs.

This is unfortunately not a case where the mother and father can talk about those issues. I accept the mother’s evidence that the father can get abrupt and angry if things do not go his way. I accept her evidence about him getting angry the day he was over .05 although that was hardly the mother’s fault. I accept her evidence about the uniform shop incident.
If concerns about the father being properly attuned to the children’s needs was the only issue it might be possible to order the father to do a parenting course or have some parenting education but it is not the only issue. The alcohol issue is a significant issue in the case and it cuts across a number of the s. 60CC (2) and (3) considerations.
It is relevant to parenting capacity but it is also relevant to a number of things. The mother is concerned about the role modelling the children are being exposed if they are in the father’s care when he is drinking and that is a valid concern given that the paternal grandfather is an alcoholic and the father began to drink heavily from the age of 15 or 16.
The mother is concerned that when the father gets drunk he does not always behave in a safe fashion and gets aggressive. The handbrake incident is one example of that and on the day that he was .08 he took Y’s car seat out of the car, threw it on the ground and threw the breathalyser on top of it, so that is a another valid concern connected with the father’s alcohol consumption.
Another thing which can arise if someone is consuming alcohol is lack of supervision of children. If a parent is focussed on their drinking and a bit drunk they may not be properly attending to supervision of children.
The father has a long-standing problem with alcohol consumption and the fact that he may have had a reasonable CDT test result a few months ago or that on many occasions he has not blown over or even shown that he has been drinking prior to his time with the children commencing does not mean that he has overcome that problem
He has not had any drug and alcohol counselling and it particularly concerning that information about his current alcohol use almost had to be dragged out of him.
The father has been drinking heavily on and off since he was 15 or 16. At the date of this judgment he has just turned 39. On his own admission he drank heavily during the relationship. He had a relapse as recently as February 2019 even on his own evidence. He was driving with excessive alcohol in his system in November 2019 and at 11.30 am on 18 April 2020 he had a reading of .43.
The father did not give a skerrick of evidence which would satisfy the court that he would be able to prioritise the children over consuming alcohol and was able to control his drinking and was a person who could have one drink and then stop.
The father needed to give that evidence to convince the court that it would be safe for the children to be in his care overnight or for any lengthy periods of time and he failed to give it.
Because the father has had the problem for so long, because of what has happened with the breathalyser readings since the orders for that to occur have been in place and because of things the children have come home and said, the mother is hyper-vigilant for signs that the children might have been exposed to risk due to the father drinking.
The father is dismissive of her concerns. That is clear from the family consultant’s memorandum and there is also a sign of that in the suggestion in his affidavit that the mother is aligning the children.
I am discussing this under parenting capacity but it segues into another s. 60CC (3) consideration. Given the mother’s hypervigilance, the inability of the parents to communicate and the fact that the father is dismissive of the mother’s concerns, there is a very high risk that if orders are made for these children to spend overnight time or a number of days with the father, information might come to the mother which results in her withholding the children and the matter could very rapidly end up back in court.
The father’s alcohol consumption is extremely concerning in terms of the orders that he is seeking but so is the issue of family violence.
I accept the mother’s evidence that there was violence associated with the father’s drinking. He is still drinking. The mother also gave examples of him being impatient and aggressive even when there was no sign that he was intoxicated. I cannot ask her to dismiss her concerns, nor can I dismiss them, that he might be impatient and aggressive with the children if they upset or irritated him.
If the father is not spending a lengthy period with the children that is still a problem but it is less of a problem. If he is spending lengthy periods with them, a couple of overnights and half of the holidays which is what he wanted, it becomes an issue of concern.
The mother’s evidence was along the lines of, “he is angry and he is not angry. The other day, he pointed his finger at me and he was yelling in my face in front of the kids and pointing. On other occasions that problem does not exist.” In the mother’s experience, and it is the only evidence I have about how and when it arises, the father just gets unpredictably irritated and angry and then acts out.
The final relevant additional consideration is whether the court should make the order least likely to lead to further proceedings.
An order for the father to spend extended time with the children is the order most likely to lead to further proceedings because the father has not shown that he can control his drinking and the mother is likely to be hyper-vigilant for signs that he is stepping out of line. There is a considerable risk that the matter will come back on a contravention or an application to vary if I make those orders.
I now turn to the primary considerations and the first of those is the benefit to the children of having a meaningful relationship with both of their parents.
It is always beneficial for children to have a meaningful relationship with both of their parents and I referred earlier to the fact that the mother told the family consultant that when the father was not drunk or hungover he was a lovely person and a good Dad.
The father takes the trouble to do enjoyable activities with the children. He referred to taking them to the J Adventure Park, horse riding and the cinema and he also has downtime with them at home. Children benefit from those experiences and they benefit simply from knowing that they have a parent who loves and cares about them.
The children will benefit from having a meaningful relationship with their father but they can have that even if they continue to spend the current amount of time with him because a meaningful relationship is described as one which is significant, important and valuable to the children[5] and the relationship they have with him at the moment is that.
[5] Mazorki & Albright (2007) 37 FamLR 518
It is fairly limited but that does not mean it is not meaningful.
The father could do more things with the children and have a more extensive role in their life if he saw them more. That is what he wants and I must consider whether I should make that order and that leads into the second primary consideration.
The father claimed that the mother was opposing him spending more time with the children because she wanted to be in control and he said as follows in his affidavit:
I have become concerned about the mother possibly alienating the children from me.
However I do not accept that is the mother’s motivation. On many occasions the mother has gone out of her way to make sure time occurred. Time did not occur the day the father blew over the limit but the mother agreed to time occurring the following day.
On one occasion when the father expressed concern about whether the breathalyser was accurate she agreed to him going elsewhere to do the test.
The mother does want to be in control but not to alienate the children from the father. She wants to be in control so the children are safe and the second primary consideration is the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
Alcohol misuse or any form of substance abuse can lead to harm for children. It could also lead in this case, given what has happened between the mother and the father in the past, to them being exposed to family violence if the father was in a new relationship.
It could lead to them not being properly supervised.
It can lead to children being physically abused although there is no evidence in this case that the father would be likely to physically abuse his children. However it can also lead to some quite dangerous behaviour such as the occasion when the father pulled on the handbrake.
Alcohol and substance abuse can lead to children being exposed to and possibly suffering, neglect or family violence.
In this particular case if the time is kept short and there continues to be some monitoring of it to make sure the father is not drunk it is not an unacceptable risk balanced against the desirability of them having a relationship with the father.
However unless I could be satisfied that there was no risk of the father abusing alcohol while the children are with him, I would have to find that they would be at unacceptable risk of harm if they spent overnight time or extended holiday time with him.

Parental Responsibility

There is admitted family violence in the form of the handbrake incident and the father’s counsel in submissions agreed that the presumption in s. 61DA of the Family Law Act did not apply.
I could still make an order for equal shared parental responsibility and the father’s counsel urged me to do so. He said that the parties had shown some capacity to reach agreement. There had not been any dispute about the school the children should attend. The parties had a pleasant interaction when they both ended up in Melbourne and spent some time together when X went down there for a sporting event. The father’s counsel asked me to focus on those things and to consider making an order for equal shared parental responsibility so the father was not kept out of the loop of decision-making.
Another argument that could be made on his behalf would be that regardless of whether time is extensive or limited he will be continuing to see the children. He will know the children. He could have some relevant input into major long-term decision making about them.
The mother opposed an order for equal shared parental responsibility. She said that she and the father had a pretty poor relationship a lot of the time. She said the father had a tendency to talk over her. She referred to the incident where he got angry and shook his finger in her face. She said he was unpredictable as to when he might get upset and she just did not want to have to deal with that if a major long-term decision needed to be made.
The mother said that the father could still be involved with the children. He could still get information from them direct from the school or contact doctors but she said that shared parental responsibility, which required the parents to consult with each other and attempt to reach a joint decision if a long-term issue arose, simply would not work.
I agree with the mother on that. The whole of the evidence suggests there is considerable lack of trust and some antipathy between the parties.
At the Child Dispute Conference the father alleged that the mother had been violent to him and he described her as one of the most abusive and vindictive people he had ever met in his life. He also alleged that there had been some ongoing harassment and abuse of him post separation.
In his trial affidavit he toned things down a bit and did not accuse the mother of being abusive and vindictive but he did suggest that she was unreasonably stopping him seeing the children.
In cross-examination the father said some positive things about the mother. He commented that she had been really good and allowed him to have time with the children the day following his .08 reading. However other evidence that he gave was not favourable to the mother. He more or less suggested that despite the fact that he pulled on the handbrake the mother was somehow to blame for the 2011 car accident and when asked in cross-examination about some of the breathalyser readings he suggested that she had been tampering with the breathalyser.
Although the father pulled back in his trial affidavit from making a lot of complaints about the mother his hostility to her does not lie far below the surface and he reacted with considerable anger when she would not let him take Y on the day that he blew .08.
The mother has concerns about being required to have discussions with the father in an attempt to reach an agreement. She has been making good decisions for the children and the fact that I make an order for sole parental responsibility will not mean the father is stripped of a role in the children’s lives in every sense.
It is in the children’s best interest for the mother to have sole parental responsibility.

The father’s time with the children

I accept unreservedly that the father loves his girls and genuinely wants to spend time with them. There might be occasions when other things in his life take priority but he has never stopped wanting to spend time with his children.
Unfortunately however there is no evidence that he has overcome his issue with alcohol. He turned up in November 2019 over .05 and there have been other occasions when he has had high readings prior to the time on the weekend which have indicated that he has been drinking heavily the night before.
He provided no evidence that he was capable of abstaining from alcohol use or stopping after one drink. He failed to give any evidence in his affidavit about his alcohol use, let alone any evidence that he was able to control it. The children are young and vulnerable and I cannot afford to take a risk with them.
The mother has always promoted them having a relationship with the father and she is willing to continue to do so as long as he is not intoxicated.
I cannot on the state of the evidence consider making an order that the children spend time with the father overnight or for an extended period. Time will have to continue to be during the day.
The mother proposed that time only occur every third weekend. She said that she did not want to deprive the father of time but wanted to create a situation where he could pursue other things in his life, such as visiting Ms F in Melbourne, and reliably be there for the girls on the designated days.
I accept the mother’s evidence that there have been some issues with the alternate weekends and I am going to make an order that the time be every third weekend but I am also going to make an order that there be such additional or alternate time as may be agreed between the parties, because there is plenty of evidence to suggest that the mother is not unreasonable about agreeing to some changes to the orders.
The mother proposed an order that the father be prohibited from consuming alcohol 24 hours prior to the time with the children and during any time the children spend with him and she also proposed a continuation of the breathalyser test.
It is appropriate that I put those orders together so that if the father turns up to collect the girls and has a reading of .43 or .34 he will not be able to have the children that day.
The reason I am going to do it is that it might provide some incentive to the father to look at ways he can actually not drink for 24 hours. If he can get some runs on the board and demonstrate to the mother that he is able to control his drinking and routinely turn up with a zero blood alcohol content then he might in the future be able to achieve what he wants which is longer time with the children including overnight time.
Making those orders will give him an opportunity to demonstrate that he is able to turn up regularly alcohol free which will give the mother confidence that he can not drink of a night-time and not drink for a stretch of time.

The surname issue

The children have different surnames. The younger child has a hyphenated surname and the older child does not. The mother’s evidence was that the children were distressed about having different surnames. That is likely to be the case and it probably does not make any sense to them.
If I change X’s surname to a hyphenated surname as proposed by the mother both children will have a surname containing the names of both of their parents. The father’s surname, Saffert, will remain as the final part of the children’s names.
The father reluctantly conceded during cross-examination that it was appropriate for this change occur. It was clear that he would have preferred both children to be Saffert. He commented that when X was born the parties agreed that the surname should be Saffert. However the parents have been separated for 3 ½ years. The children live with their mother who uses the surname Dalgetty and Y has the hyphenated surname Dalgetty-Saffert.
On balance the children’s best interests will be met by making the surname orders the mother sought with the hyphen included so that both children are Dalgetty-Saffert.

Additional orders

I am going to make the order which the mother proposed about the father ensuring that the children are not left in the sole care of his brother Mr C or the paternal grandfather Mr D. The mother also sought an order that the father ensure that the children were not exposed to any person affected by illicit substances and that makes sense. I suspect that was directed at Mr C.
I am not going to make an order requiring the father to take the children to their extra-curricular activities because he will not be spending a vast amount of time with them.
I am going to order that the mother keep the father advised of the extracurricular activities in which the children are enrolled and of any concerts, training or performances or the like in connection with their school or extracurricular activities which will fall on times when the children are with him.
If the father, upon receiving that information, considers that he will not be able to take the children to an extra-curricular activity, concert, training or performance which is scheduled during his time he shall contact the mother with a view to an agreement being reached so that the day on which he is to spend time with the children is swapped so that the children can attend the extracurricular activity, concert, training or performance.
It is important that the father is able to control what happens during the time the children are with him. It is also important the children are able to do their activities if possible, for example go to their dance concert, and I hope that order will mean that both those things can happen without too much conflict.

I certify that the preceding one hundred and ninety seven (197) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 22 July 2020

[2020] FCCA 1927

4 June 2020

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness