Shearman and Shearman

[2016] FCCA 2555

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEARMAN & SHEARMAN [2016] FCCA 2555

Catchwords:
FAMILY LAW – Interim parenting issues.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC(2) & (3)

Applicant: MS SHEARMAN

Respondent: MR SHEARMAN

File Number: ADC 1102 of 2016

Judgment of: Judge Mead

Hearing date: 7 July 2016

Date of Last Submission: 7 July 2016

Delivered at: Adelaide

Delivered on: 8 July 2016

REPRESENTATION

Counsel for the Applicant: Mr McQuade (7 July 2016)

Solicitors for the Applicant: Hamilton Legal

Counsel for the Respondent: Mr McGinn

Solicitors for the Respondent: Cardone & Associates

Counsel for the Independent Children’s Lawyer: Ms Tydeman

Solicitors for the Independent Children’s Lawyer: Legal Services Commission of South Australia ((omitted))

ORDERS

1. That during the period of the adjournment:

   (a)X, Y and Z live with the father. 

   (b)The said children spend time with the mother as follows: 

   (i)On Wednesday of each week between 4 pm and 6 pm, supervised by Mr D or Mr P.

   (ii)On Saturday of each week between 10 am and 12 noon, supervised by any of Mr D, Mr P or Mr F.

   (iii)Unsupervised at the children’s gymnastics on Monday of each week during school term time in the absence of the father or any of his proposed supervisors or paternal family. 

   (iv)Commencing on or about 13 August 2016, supervised at the (omitted) Children's Contact Service for six periods of two hours on dates and at times advised to the parties by the Children’s Contact Service. 

2. That during the time that visits are occurring at the Children’s Contact Service, the time referred to in paragraph (1)(b)(ii) hereof, take place on a Sunday – so that is 10 until 12 – in addition to the Saturday time at the Children’s Contact Service. 

3. That on or before 2 September 2016, each party file and serve one affidavit only, not to exceed two pages in length, from each of their proposed supervisors. 

4. That during the period of the adjournment, the said children communicate with their mother by telephone on each night when they do not spend time with her during the day with the father to be at liberty to have the telephone on loudspeaker.  But if FaceTime is occurring, he must not be visible to the mother. 

5. That until further order, the injunctions contained in paragraph 3 of the order of 6 June 2016 remain in full force and effect. 

6. That until further order, the mother be restrained and injunctions are hereby granted restraining her from: 

   (a)Consuming any alcohol or any prescription medication, other than in doses as prescribed, for a period of 24 hours prior to and during any time the children spend with her. 

   (b)Driving a vehicle with the children in the vehicle whilst they are in her care. 

7. That the independent children’s lawyer forthwith facilitate the preparation of a Family Assessment Report directed to the best interests of X, Y and Z generally but, in particular, to the question of what time and under what conditions they should spend with each of their parents with the report to include observation of interaction between the children and each of their parents as well as any views or perceptions expressed by them. 

8. That the report be filed and served by 28 October 2016. 

9. Directions and interim issues adjourned to 8 November 2016 at 9 am (one hour allowed). 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1102 of 2016

MS SHEARMAN

Applicant

And

MR SHEARMAN

Respondent

REASONS FOR JUDGMENT

1. The matter comes back before me this morning for brief reasons, obviously being delivered ex tempore and orders to be in effect during the period of the adjournment.  The parties are in dispute as to parenting arrangements for three children:  X, who is 10 and a half, Y, who is eight, and Z, who is six.

2. The dispute really centres around allegations on the part of the father that the mother has a serious problem with the consumption of alcohol, that it has been an ongoing problem now for the last couple of years at least.  That it has had a significant and severe impact on the family dynamic.  That it has led to the parties’ separation and that in particular, it has had a significant impact on the wellbeing of the children and their feelings of safety and security.

3. The mother, for her part, alleges that the father has had a controlling attitude towards her, that she could no longer tolerate that, and that it was for those reasons that she left the home and the children in the care of the father until she could effectively find other accommodation.  To the extent that she makes any concession at all that she does have a problem with the consumption of alcohol, she lays the blame for that at the feet of the father and the unhappy dynamic in the parties’ relationship.  She says things got worse once the father started attending at a church, where his enthusiasm for that church significantly exceeded hers.

4. In this matter, as in any other matters that come before me, I have to take into account section 60B, section 60CA and section 60CC, subsections (2) and (3), in particular, in determining what is in the best interests of the children. The children have now been in the primary care of the father for some time and over recent time have been spending limited time with the mother. There have not been any orders to date and that time has been facilitated with the insistence of the father for a supervisor for that time.

5. Under section 60B the court is told by the Parliament that the objects of the Family Law Act, insofar as that part of it that refers to children’s issues is concerned, are to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent that is consistent with the best interests of the child, to protect children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence, to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

6. The principles underlying those objects are that except when it is or would be contrary to a child’s best interests, children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together, children have a right to spend time on a regular basis with and communication a regular basis with both their parents and other people significant to their care, welfare and development, such as grandparents and other relatives, parents jointly share duties and responsibilities concerning the care, welfare and development of their children and  parents should agree about the future parenting of their children.  Children also have a right to enjoy their culture, which of course is not relevant in this particular matter.

7. The objects and the principles of the Act both refer to the best interests of the child, and that is because in section 60CA the Parliament has determined that when a court decides whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. The court is then told in section 60CC what it must take into account – depending, of course, on the relevance of a particular issue – in determining what is in a child’s best interests.

8. There are two what are described as “primary considerations” in section 60CC(2). The first is the benefit to the child of having a meaningful relationship with both of the child’s parents. This is an interim hearing. I cannot make any findings unless as to agreed facts. I can only work with material that I have before me which consists of each of the parties’ untested allegations and evidence about the matter, as well as the limited amount of information that Ms Tydeman to date has been able to put before the court.

9. I am however satisfied from what she submitted yesterday that these are children who love both of their parents and who seek to have a meaningful relationship with both of them.  Ms Tydeman was of the view that her information would suggest that the children would like, in particular, to have an opportunity to spend some additional time with their mother.

10. The primary considerations, as I say, are twofold but section 60CC(2)(b) takes precedence over subsection (a) and that is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. That is an extremely important matter for the court in this particular matter and, indeed, is the fundamental reason why I do not intend to extend the children’s time with the mother, nor do I intend to make any order for unsupervised time.

11. I am concerned about the mother.  She is the applicant in these proceedings.  Her application in support of her initiating application said almost nothing about drinking except in paragraph 10:

    “I did drink alcohol, but certainly not to excess.  Since separation, I’ve consulted my general practitioner, who diagnosed that I was depressed and anxious and prescribed me an antidepressant.  I see my general practitioner, Dr J every week to talk about my feelings and the situation with the family separation and my children.”

12. I have no doubt that that, to some extent, is correct, but even on the material that I do have before me to date, I am certainly concerned that she would suggest that she did not drink alcohol to excess.  I am even more concerned about the two letters of report from the mother’s general practitioner.  This is a general practitioner who is clearly working very hard with the mother.

13. I have two letters of report before me, one dated 18 March and the second dated 9 April.  In the letter of 18 March Dr W says that she is writing on behalf of the mother as her current treating GP and that the mother had been a patient of the practice since 10 February 2016.  This was, of course, quite a short time.  She said she had been involved in the mother’s care since then.  She said the mother first presented in the context of a recent marriage separation from her husband, and, understandably, she is under considerable stressors, including limited access to her three children and legal proceedings implicated in the separation.  She said the mother reported having poor sleep and worsening anxiety and mood in the context of these stressors.  She said that in addition, the mother discussed her difficulties with alcohol misuse over the past few months in the context of trying to manage her relationship difficulties.  She said the mother had willingly sought out help from Dr W and engaged with other health professionals to best deal with both her emotional wellbeing.

14. She went on to say:

    “The mother was found to have elevated liver function tests on routine bloods done on a presentation to (omitted) Hospital on 2 March 2016, which could be attributed to multiple causes, but likely somewhat to her recent alcohol intake, which has since ceased.  We will continue to monitor her liver function tests on an ongoing basis.  She has had a liver ultrasound, which is normal and shows no chronic signs of alcohol abuse.  She is currently seeing a psychologist for supportive psychotherapy, has started an antidepressant medication, is seeing myself on a regular weekly basis and has contacted drug and alcohol services with a plan to follow up on an ongoing basis.  She is making positive steps towards recovering and managing her mental health in the context of ongoing stressors.”

15. That may all be perfectly true, but what, somewhat alarmingly, Dr W does not even mention in that report is that on 24 February, which was nearly a month earlier, she referred the mother to the (omitted) Hospital.  Reading from paragraph 23 of the father’s affidavit filed on 24 June 2016 he says:

    “The mother does not depose to being admitted to hospital in her affidavits filed on 31 March 2016” –

    which is the one that I first referred to –

    “and 20 April 2016.”

    That is absolutely true.

16. In the affidavit that the mother filed on 20 April, she annexed another letter from Dr W, again referring to the positive things that the mother has done, and she is to be congratulated for that, but not mentioning at all, again, the referral to the (omitted) Hospital.  This could only be described as a serious issue.  In paragraph 24 of the father’s affidavit filed 24 June 2016 he says:

    “The notes include a referral by the mother’s current treating practitioner, Dr J, dated 24 February 2016.  That referral states:

    Thank you for seeing Ms Shearman (aged 37 years) in regards to an admission for alcohol detoxification.  Ms Shearman presented a fortnight ago with worsening appetite, poor sleep, low energy and low mood in the context of a recent separation from her husband, Mr Shearman.  Today she returned with two friends…”

    One assumes from that that a fortnight ago, being 10 February, was when she first saw Dr W about those issues.  This of course accords with Dr W’s report.

17. The referral went on:

    “Today she returned with two friends who are concerned about her mental state and alcohol consumption.  They have had concerns in relation to her drinking for the past few months and feel it has increased significantly.  She exhibited signs of withdrawal, in terms of tremor, agitation and nausea vomiting.  She has no alcohol-free days at present and is unable to estimate her current intake.”

18. The referral notes go on, and I am reading again from the father’s affidavit at paragraph 25:

    “She previously underwent a 12 week program for alcohol detox in February 2015 with some success.”

19. These issues predated the report letter if Dr W dated 18 March 2016 and certainly predate the filing of the mother’s affidavit on 31 March 2016.

20. And of course there is reference also in the notes annexed to the father’s affidavit, where the mother went to DASA, but only, according to the DASA notes ­ Client Encounter Summary ­ (this is paragraph 13.5 of the father’s affidavit filed on 24 June):

    “Went to three appointments.  Her file was subsequently closed because she rescheduled too many appointments.  She rescheduled eight appointments.”

21. On 8 December 2015 DASA notes “Check-in assessment 2.”  Again there is reference to the mother having started drinking again towards the end of 2015.

22. None of these matters are mentioned in the mother’s affidavit.  The notes at the emergency department at (omitted) Hospital – and I am now reading from paragraph 30 of the father’s affidavit, filed on 24 June:

    “The notes state she was referred into ED by her GP on 24 February 2016 after she saw her, concerned about her escalating alcohol intake:

    Despite the referral to ED last week, Ms Shearman did not present until today…”

    This was a week after the general practitioner, whose assistance the mother was seeking, suggested she go to the hospital.  The point of even those few instances to which I have referred is that the mother is minimising the difficulties with her alcohol consumption.

23. I accept that the notes would seem to suggest that her liver function is improving.  Nevertheless, mother has essentially come to the court and said, well, I might have drunk a bit of alcohol sometimes.  But it is nothing like what the father suggested.  And he is controlling me yet again and refusing to let the children spend regular time or come into my care when I am perfectly competent and capable of looking after the children and I have done so for years.  Even on the material filed to date that cannot be the position.  The mother has had a problem with excessive consumption of alcohol for some considerable period of time.  It may well be that she did so because the father is controlling and made her dreadfully unhappy.  But that does not avoid the issue of the impact of the mother’s alcohol consumption on the family.  Looking at the affidavits of the father, the paternal grandmother and the paternal aunt in terms of issues raised with them by the children in relation to the mother’s consumption of alcohol and the father’s most recent affidavit where he describes some of the contents of conversations between X, in particular and her mother, there is clearly a serious issue of the mother’s ability to control her alcohol intake and to make her children feel safe.

24. The children have referred to shops where they know alcohol has been purchased, to a friend of the mother’s giving the mother a bag that contained alcohol to X, in particular, being able to observe when her mother is under the influence of alcohol both visually and when talking with her.  These are children who exhibit signs of hypervigilance about the mother’s consumption of alcohol.  My concern, which is strengthened by the strident comments of the maternal grandfather and the mother’s friend, Ms V, is that the mother is surrounded by people who probably love and care for her very, very deeply indeed but do not seem to be doing anything that might even vaguely suggest reality testing. 

25. It is for that reason that I am not prepared to agree that orders during the period of adjournment have supervisors from the mother’s side.  I am sure they will ensure that the children will be physically safe.  I doubt that any person who supervises time would not do everything in their best endeavours to ensure that children are safe.

26. What does concern me is the sorts of conversations that the mother may be facilitated having with the children if she has supervisors present who, quite frankly, think that she is being hard done by.  That is the overwhelming impression that I get from the material filed by the mother.  Firstly, her underestimating the seriousness of the situation.  Secondly, her friends and family protecting her in that belief.  As I said, it may well be that this has all come about because the father has been absolutely appalling to the mother.  But I cannot make findings about that at this time. 

27. There is currently an intervention order in place where the father is the protected person.  The children are no longer on that order of course, but this has been a very unhappy time indeed for this family.  I am quite satisfied that the children have been significantly impacted on by what must have been a most difficult situation in the household.  What would have been visible to them was the mother’s excess consumption of alcohol.

28. I am concerned that orders today must ensure – even if from the mother’s point of view they seem very harsh and that the Court is moving very slowly indeed the protection of the children.  The mother has complaints about the father taking the children off to the police station.  They may be very valid complaints.  The mother is concerned that the father is discussing these issues with the children.  The reality is that at this point in time the father is the children’s primary caregiver.  I cannot see my way clear to making an order that I am satisfied would protect the children other than in the supervised circumstances that I intend to order today. 

29. When I turn to section 60CC(3), the first subsection that I come across is any views expressed by the child and any factors that the Court thinks relevant to the weight it should give to the child’s views. That is also a very important issue for me today. X is 10 and a half years old. She is a child who has lived through a very difficult set of circumstances, on anyone’s case, over the last two or three years. Y is eight. She likewise. Z of course is only six, and it may or may not have had the same impact on him. But I want to know what these children have to say about their circumstances and how that can feed into the decision making process that I have to undertake to make orders that are in the best interests of the children and protect them as I am required to do by section 60CC(2)(b).

1. As to the nature of the relationship with the children, as I said from what Ms Tydeman submitted yesterday, I find these are children who love both of their parents and I have absolutely no doubt that both parents love their children.  So do the grandparents.  That is obvious from the maternal grandfather Mr A’s affidavit.

2. For the purposes of today’s hearing, the next relevant subsection, from my perspective, is the capacity of the parents to provide for the needs of the children, including emotional and intellectual needs.  I have serious concerns at the moment about the mother, in particular, being able to properly provide for the emotional needs of the children.  I have little doubt that both parties can provide physically for the children.  There is no suggestion they are not going to school and having their intellectual needs met. 

3. As to the attitude to the children and the responsibilities of parenthood demonstrated by each of the child’s parents, I am concerned that the mother is minimising the impact on her and on her parenting of her use of alcohol over recent years.  It is concerning that she came to the Court with what could only be described as a glib affidavit, scooting over the issue.  And it needs to be addressed seriously. 

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 4 October 2016