Sebastian and Sebastian (No 3)

[2012] FamCA 707

FAMILY COURT OF AUSTRALIA

SEBASTIAN & SEBASTIAN (NO. 3) [2012] FamCA 707

FAMILY LAW – CHILDREN – Interim parenting orders – Fitting an interlock alcohol testing device to a car or in home

Family Law Act 1975 (Cth)

APPLICANT: Ms Sebastian

RESPONDENT: Mr Sebastian

INDEPENDENT CHILDREN’S LAWYER: Mr Mulvany

FILE NUMBER: MLC 6522 of 2010

DATE DELIVERED: 13 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 13 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Geddes QC with him Ms Johns

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr North SC with him Mr Gates

SOLICITOR FOR THE RESPONDENT: Moores Legal

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Mulvany

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

T.J. Mulvany & Co

Orders

IT IS ORDERED BY CONSENT:

1. THAT save for the Order for the appointment of the Independent Children's Lawyer and the undertakings given by the husband and wife on 7 December 2011, all previous parenting Orders and undertakings relevant to parenting issues in these proceedings be suspended;

UNTIL FURTHER ORDER:

1. THAT G and M live with the husband.

2. THAT G spend time and communicate with the wife as follows:

   a)commencing Tuesday 21 August 2012 each Tuesday from after school (or if not a school day at 3.30 p.m.) until the commencement of school Wednesday (or if not a school day al 10.00 a.m.) subject always to the following:

   i)in the event that G on any such occasion elects to return home to the husband on a Tuesday evening, the wife will accept the decision of G and such action will not be the subject of any allegation of contravention of Order;

   ii)for the purposes of arrival and return the parents have agreed that G travel between school and the respective homes by tram;

   b)from 10.00 a.m. Tuesday 2 October 2012 until 8.00 p.m. 5 October 2012 during the 2012 term school holidays and for the purposes of same:-

   i)the wife arrange, at her expense, for herself, G and a friend of the wife's (known to G) to holiday for at least two (2) consecutive nights at B in eastern Victoria (or such other place as may be agreed upon consultation with G and with the consent of the husband) for such purposes; and

   ii)in the event that the husband is able to facilitate same, M spend periods during each of those days with the wife and G;

   c)on Tuesday 11 December 2012 (the wife's birthday) time with G commence at 12.00 noon;

   d)from 12.00 noon Christmas Eve until 12.00 noon Christmas Day provided however that if G elects not to attend on the wife on Christmas Eve, same will not be the subject of any allegation of contravention of Order;

   e)between 1 January 2012 and G's return to school in 2013 on three (3) occasions the time in paragraph 3(a) be extended to 10.00 a.m. Friday provided always that:-

   i)any venue or venues, transportation and ancillary issues be agreed upon by the husband and the wife in consultation with G;

   ii)the husband apply his best endeavours to facilitate the attendance of M with G during the day on such occasions;

   iii)save for G's attendance on a Tuesday, any failure by G to spend the additional time with the wife will not be the subject of any allegation of contravention of Order.

3. THAT M spend time and communicate with the wife as follows:

   a)commencing Tuesday 21 August 2012 each Tuesday from after school (or if not a school day at 3.30 p.m.) until 6.30 p.m.;

   b)on Tuesday 11 December 2012 (the wife's birthday) from 12.00 noon until 6.00 p.m.;

   c)     on Christmas Day from 8.00 a.m. until 12.00 noon.

4. THAT G and M spend time with the wife on Thursday 16 August 2012 (the birthday of M) from cessation of school until 6.00 p.m.

5. THAT each of the parents facilitate the ability of G and M to communicate with the wife by telephone or by other electronic means at all times and that the wife be at liberty to communicate with either or both of G or M by telephone and/or other electronic means outside of school hours on Monday, Wednesday and Friday, and between 5.00 p.m. and 6.00 p.m. on a Sunday.

6. THAT subject to paragraphs 3, 4 and 5 hereof G and/or M spend such other times with the wife as the husband and the wife agree.

7. THAT with the wife denying the necessity for this Order and making no admissions whatsoever:

   a)the wife not consume alcohol and non-prescription drugs in any period commencing twenty-four (24) hours prior to either or both of G and M spending time with the wife and during all such times as G and M are with the wife;

   b)on a written or oral request made to the wife directly or to her lawyers by or on behalf of the Independent Children's Lawyer, the wife, at her own expense, attend an appropriate diagnostic laboratory for the purposes of furnishing sample to test for the presence of any blood alcohol content and on the receipt of the result from such laboratory, the wife expeditiously provide same to the Independent Children's Lawyer and to the father care of his lawyer.

IT IS ORDERED BY THE COURT NOT BY CONSENT

1. THAT the wife forthwith install SMART START “IN-HOM” ALCOHOL MONITORING SYSTEM in her home and if she drives the children, or either of them within the suburban Melbourne area, she is to undertake a breath test through the system prior to driving the children (or either of them) and to observe a 0.00 alcohol reading before driving with them.  It is noted that all readings from this device are recorded (and a photograph is taken at the time the sample is given) and the readings are to be downloaded by the service centre upon demand by the Independent Children’s Lawyer.

2. THAT the wife not drive the children outside of the suburban Melbourne Area.

IT IS ORDERED BY CONSENT

1. THAT the wife be at liberty to attend all sporting and other school events involving either or both of G and M to which parents are customarily invited to attend provided that no alcohol is available at those events and provided that she provide the husband with forty-eight (48) hours’ notice of her intention to attend on such occasions.  The husband if he is present, apply his best endeavours to ensure that G and/or M are able to spend a brief period with the wife at the conclusion of such event or events for the purposes of affirmation and congratulations;

2. THAT subject to the prior consent being obtained from the Head of Campus, or authorised delegate, each parent be at liberty to arrange for any parent/teacher interview or an interview of like nature provided that it occurs outside of school hours or on a date where on reasonable grounds the particular son will not be present on Campus;

3. THAT save as provided in paragraphs 11 and 12 hereof and with the wife denying the necessity for any such Order, the wife not attend any school campus of either G and M or within 100 metres of same nor within 100 metres of the residence of the husband.

4. THAT in the event that the husband will be away from the children for any period in excess of four consecutive nights, the husband inform the wife of such fact and when informing the wife of such fact, the husband advise the wife of the person or persons caring for G and M during such period and whether the husband is within the Commonwealth of Australia or overseas during such period.

5. THAT both the husband and the wife at their joint expense facilitate the continued attendance of G and/or M upon Dr A or such other professional as may be recommended by Dr A and/or the Independent Children's Lawyer.

6. THAT without either the husband or the wife admitting the necessity for this Order, each of the husband and the wife be and is hereby restrained by themselves, their servants and agents (such servants and agents to include and not be limited to the maternal grandmother and the paternal grandparents):

   a)discussing or attempting to discuss these proceedings and/or refer to them (including proceedings in the Magistrates Court) including any document or file in these proceedings, and/or any allegation or assertion made in the sight hearing and/or presence of either or both of G and M or in any form of communication including social media which on reasonable grounds is accessible by G or M;

   b)discussing or permitting the viewing of any correspondence from the Independent Children's Lawyer, Dr A, or the lawyers for either party in the sight and/or hearing and/or presence of either or both of G and M or in any form of communication including social media which on reasonable grounds is accessible by G or M;

   c)denigrating and/or insulting the other party, allowing any other person to do so including but not limited to any discussion relevant to the wife's alleged alcohol abuse and/or consumption in the sight and/or hearing and/or presence of either or both of G and M or in any form of communication including social media, which on reasonable grounds is accessible by G or M,

   save and except in any professionally constituted appointment involving any one or more of Dr A, the Independent Children's Lawyer, a Family Consultant, or other professional person with whom either or both G and M are required to engage for the purposes of these proceedings.

7. THAT this matter be listed for mention on 24 January 2013 at 10.00 a.m. before Justice Young for the purposes of directions in relation to the parenting proceedings and each parent be at liberty to file a Minute of proposed parenting orders sought and a brief (no longer than eight pages) affidavit in support of those Orders no later than five working days prior to such mention.

8. THAT pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

9. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

10. THAT the Application in a Case filed by the wife on 31 July 2012 be otherwise dismissed and be removed from the docket of Young J.

IT IS NOTED THAT

A.THAT the parties agree that for the purposes of electronic communication (including SMS) in paragraph 6 it will not be a breach of these orders if the wife responds to those communications by acknowledging receipt of same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sebastian & Sebastian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6522 of 2010

Ms Sebastian

Applicant

And

Mr Sebastian

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The hearing of the matter of Sebastian has been structured so that on this first day, interim children’s matters are before the Court.  The defended proceedings over the division of property are listed to commence tomorrow.  The wife is represented by experienced Senior and Junior Counsel, as is the husband.  Ms Mulvany is the Independent Children’s Lawyer and he brings a wealth of experience to this hearing.  The proceedings were stood down for approximately two hours this morning whilst the parties and their practitioners engaged in out-of-court discussions on appropriate children’s orders.   I was presented with a minute of proposed order.  That order identified one remaining matter in dispute, and that is the focus of this ex tempore judgment. 

2. What was the subject of an agreement was that, upon the continuation of undertakings given before me on 7 December of last year, there were to be interim orders that the two children, G, aged 14, and M, aged 10, live with their father.  The orders thereafter provided for the time that those two children would spend with and communicate with their mother.  The structure of the orders provide for a listing of the matter before me in late January next year, at which time there would be further interim orders made, or otherwise the proceedings would be case managed for a defended parenting and children’s hearing.  I intend to list that matter before me on 24 January of next year at 10.00 a.m. and that date will be provided for in the orders.  I will not treat that date as a part heard date and Senior Counsel and/or Junior Counsel can be excused subject as to what matters are before me on that day. 

3. Returning to the matter in dispute, I preface my judgment with a careful reading of the time that the children are to spend with their mother as is identified in paragraph 4 of these proposed interim consent orders.  It is not necessary for me to read into this ex tempore judgment those particulars orders, as the parties are well aware of the time between now and late January 2013 that the children spend with their mother, both on a Tuesday and otherwise on extended times as provided for in October and in January of next year, and on other important days, such as their mother’s birthday and the Christmas Eve and Christmas Day provisions of the orders. 

4. Paragraph 5 of the orders provides for an injunction being imposed upon the wife not to consume alcohol or non-prescription drugs in any 24 hour period leading up to or during the time the children are with the wife.  That order will be pronounced.  Of significance is the further order provided for in paragraph 5.2 that the wife must comply with any reasonable request made by the Independent Children’s Lawyer for her, and at her own expense, to attend an appropriate diagnostic laboratory, to furnish a testing sample for the presence of blood alcohol.  That is a provision which one would expect the Independent Children’s Lawyer to follow up on at least a few occasions for the duration of these orders. 

5. The issue in dispute is what orders should be included as order 5.3 in these otherwise consent orders.  That issue is either that there is to be an ignition interlock device fitted to the wife’s motor vehicle or otherwise is she install in her home an alcohol monitoring system as is both described and particularised in the draft paragraph 5.3 now before me.  On behalf of the wife, Mr Geddes has strongly opposed the fitting of an interlock device to her motor vehicle, primarily on the basis that such a requirement is unduly harsh and oppressive.  He addressed the Court on the basis that the wife has purportedly not consumed alcohol for 14 months, though that will no doubt be the subject of cross-examination in the property proceedings, perhaps being an issue relevant both to s 79(4) contribution and s 75(2) factors. 

6. He stressed that the wife has not had any alcohol-related driving conviction.  He stressed that the wife does understand and will put the safety and welfare of the children as a priority in her dealings with them as provided for in the orders. There is no evidence before the Court and Mr North very properly underlined the fact that the fitting of an alcohol device to this particular motor vehicle may or may not have an impact upon the lease, or warranty, or upon the mechanical operation of the car, but in any event, these matters are not in evidence.  I thus restrict my reasons to matters of evidence. 

7. It is a matter of very real significance that Mr Mulvany has now supported the alternate; that is, the in-home monitoring system device rather than the alcohol motor vehicle fitted lock.  In particular I had read a document which has already, by consent, been introduced into evidence, and that is the letter dated 3 August 2012 from his office and co-signed by Dr A.  I read paragraph 3.2 thereof, which states that:

   Similarly, in the event that the boys are spending time with their mother and there is a possibility of them being transported by the mother, then on those occasions, the relevant breathalyser lock ought to be fitted to her motor vehicle and then be disengaged.  There is some merit in the boys observing this process, again building an increased sense of confidence and security in the mother.

8. Notwithstanding that report and that in the draft orders originally sought by the Independent Children’s Lawyer and filed 2 August 2012 sought in paragraph 5.3 thereof that such an ignition lock be fitted to the wife’s motor vehicle.  The considered position of Mr Mulvany this day, reflecting upon all of the matters which are to his knowledge and no doubt based on his experience, is that it is unnecessary and not required that such a locking device be fitted to the wife’s motor vehicle, irrespective of whatever motor vehicle it may be. 

9. Mr Geddes had, in the alternative, made submissions that the husband could or should provide another motor vehicle for the purposes of fitting such a device.  Indeed, another motor vehicle was mentioned, both on the documents and in the submissions today.  I do not intend to determine that issue.  If there were to be any other motor vehicle, then I would want to hear evidence of that fact and of the husband’s suggestions as to what would be an appropriate motor vehicle to be provided by him.  Likewise, for the purposes of these ex tempore reasons for judgment, I do not reflect on issues of cost or convenience to the mother and as I have already said in response to Mr North’s submissions and the issues of any breach of lease or warranty are not matters upon which I rely. 

10. I record the strong and forceful submissions of Mr North in building the case for there to be such an interlocking device fitted to whatever car the wife chooses to drive.  Fundamentally the issue is the safety and wellbeing of the children and clearly that is a matter of absolute focus. 

11. I have carefully considered and balanced that aspect of the submission.  That outcome is, however, moderated by matters, some of which are yet to be fully tested in evidence, such as the wife’s alleged total abstinence of alcohol for 14 months, her lack of any alcohol-related traffic conviction, her willingness to have a device fitted within the house or garage and for her to undertake tests whenever she is to drive the children in her vehicle and from the commencing point of the home.  I certainly acknowledge there are matters of potential defects in that the wife may drive from another venue, but all matters are considered within the umbrella of the regularity and the time that the mother spends with the children.  For various reasons, including the wishes of the children, it is limited both in time and duration. 

12. On balance and satisfying the welfare and safety of the children and knowing they will have an opportunity to see the mother undergo alcohol tests on the in-home device, which I require her to have fitted within the home or garage, and given the alternate drafting of order 5.3 for that scenario and given the proper, but perhaps generous, indication of the husband that he would drive on other occasions such as Christmas Day and other holiday collection return dates, on balance, the interests of the children can be satisfied by adopting paragraph 5.3 providing for the fitting of the in-home device rather than the car ignition locking device.  These orders are interim. 

13. I do not exclude this matter being re-litigated at the final hearing and that is a right which must always remain either with the Independent Children’s Lawyer or with the husband in the January proceedings. However, carefully balancing the requirements of the Family Law Act insofar as they promote the welfare and best interests of the children, reflecting upon the time spent arrangements provided for by consent, reflecting upon the primary and additional considerations within section 60CC(2) and (3) of the Act, and listening carefully to matters said in submissions today and having very carefully read all of the affidavits in these proceedings, I conclude that the alternate draft of 5.3 providing for a home testing device is, in the context of these interim orders, appropriate and I will so order.

1. Finally, I reinforce my consideration upon and reliance on the considered submissions of the Independent Children’s Lawyer which have played a significant part in me determining what is appropriate and in the best interest of the children, given the time that I am aware from file documents that he has spent with and concerning himself about the interests of G and M I am satisfied that he would not put forward a proposal that was not carefully considered and in their interests.  I will have these reasons transcribed, placed upon the Court file and made available to all parties. 

   RECORDED     :     NOT TRANSCRIBED

2. Mr North has raised a matter which I will incorporate within the reasons for judgment.  It is understood that these reasons are given ex tempore and without leaving the Bench.  Mr Mulvany did highlight the suburban radius of the driving without an alcohol device fitted and that is appropriate.  It therefore means that outside of the Melbourne metropolitan area, as large an area as that may be, pending January, the wife is not to drive, but she may be a passenger in her motor vehicle if driven by a licensed and responsible adult.  So that, if the orders provided for in paragraph 4.1.2 involve a trip to B with another adult, then that other adult may in appropriate circumstances and holding a valid licence drive the car owned by the wife, subject to all other insurance and related issues which are not the subject of this ex tempore judgment. 

3. I make it perfectly clear that in relying upon Mr Mulvany’s submissions, I have adopted the Melbourne metropolitan area, as large as that may be, but clearly it does not include B.  The order therefore, insofar as paragraph 5.3 is concerned, will be required to be redrafted to properly accommodate the Melbourne metropolitan area, or the suburban area, I think, to adopt Mr Mulvany’s word, within the umbrella of that order and when the order is redrafted, I will so order.  Again, and for completeness, this addendum to my earlier reasons for judgment which are to be treated as part of the reasons for judgment will also be transcribed and made available to all parties. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 13 August 2012.

Associate: 

Date: