SHEARMAN & SHEARMAN

[2020] FCCA 3123

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEARMAN & SHEARMAN [2020] FCCA 3123

Catchwords:
FAMILY LAW – Parenting – final parenting orders made in November 2017 –   where the orders provided for the mother to use a breath alcohol testing device in a strict regime – whether the orders with respect to the use of the breath alcohol testing device should be discharged.

Applicant: MS SHEARMAN

Respondent: MR SHEARMAN

File Number: ADC 1102 of 2016

Judgment of: Judge Kari

Hearing date: 14 October 2020

Date of Last Submission: 14 October 2020

Delivered at: Adelaide

Delivered on: 14 October 2020

REPRESENTATION

Counsel for the Applicant: Ms Pyke QC

Solicitors for the Applicant: Hamilton Legal

The Respondent appeared in person

THE COURT ORDERS:

1. That paragraph 9 to 13 inclusive of the orders made on 16 November 2017 be discharged.

2. The parties do all such things as may be reasonably required to enable a Family Assessment to be carried out with respect to the competing applications for parenting orders before the Court, with such Assessment and the Report arising thereafter:

   (a)To include interviews with the child and, at the discretion of the expert, observed interaction of the children with any relevant adult person in addition to the parties as the expert considers appropriate;

   (b)To be carried out by such person as agreed in writing between the parties within fourteen (14) days or, in default of agreement, as Ordered by the Court upon application of either party at the expiration of that time;

   (c)To be at the joint and equal expense of the parties; and

   (d)To be released to the parties no later than 26 March 2021

3. The Family Assessment Report to deal with the following matters:

   (a)Any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)Any other matters that the expert considers important to the welfare or best interests of the said children.

4. That the mother’s solicitors forward copies of all documents filed and orders made in the current set of proceedings to the nominated report writer in accordance with the directions of the expert and a copy the family assessment prepared by Ms B prepared in the previous set of proceedings together with a copy of the Order made on 16 November 2017.

5. The parties do all things necessary to facilitate the completion of the report by the expert, including making themselves available for appointments by expert and executing any authorities for the release of information to the expert and/or the Independent Children’s Lawyer.

6. The expert be at liberty to liaise with any person in relation to the welfare of the child.

7. The parties be restrained from providing any documents (other than those filed with this Court or Orders made in these proceedings) to the expert without providing a copy to the other party and/or the Independent Children's Lawyer, such copy to be provided no less than seven (7) days prior to any appointments with the expert (NOTING the expert has the discretion to accept or reject the document so provided to them).

8. That the Applicant file and serve a copy of the Report within 48 hours of receipt of the same.

UPON NOTING that in the event that the Orders for the filing of documents for the Callover provided for in these Orders have not been complied with, the Court shall:

(a)Give consideration to vacating the Callover and listing the matter for Mention only;

(b)Give consideration to making an Order:

(i)That the defaulting party pay the costs of the party not in default; and/or

(ii)Consider as to whether costs Orders be made personally against the solicitor for the defaulting party and/or a referral of the solicitor to the South Australian Legal Profession Conduct Commissioner.

THE COURT FURTHER ORDERS:

1. That the proceedings are adjourned to 24 May 2021 at 3.00 pm for Callover and possible Trial listing.

2. That the parties personally attend the Callover AND it is requested that Counsel properly instructed for Trial attend and in the event they are not available, the file principal attend.

3. That no less than seven (7) days prior to the Callover date the parties shall file and serve:

   (a)A brief summary of the issues in dispute, together with a Minute of the specific Orders sought;

   (b)A Trial plan identifying the witnesses to be relied upon at Trial, an estimated length of Trial and any Subpoena which will be issued.

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

EX TEMPORE REASONS FOR JUDGMENT

1. The matter that comes before me today relates to parenting issues pertaining to the parties’ three children: X, who will be 15 next month; Y, who is 12; and Z, who is 10.  I intend to give brief reasons in the matter today as I am permitted to do.

2. The parenting issues that arise in relation to the children arise as a consequence of final orders made by the Court on 16 November 2017 by consent.  Those orders provided a range of arrangements for the children but principally that the parents have shared parental responsibility, that the children live with the mother and that the mother’s time build to an alternate Wednesday through to Monday commencement of school arrangement.

3. Those orders also provided very strict arrangements around the mother’s use of alcohol and, indeed, those orders which were made by consent provided for the mother to use a breath alcohol analysis device in a strict regime as follows:

   9. That the mother spending time with the said children shall occur upon condition that:

   9.1. the mother shall do all things necessary to record on a breath alcohol analysis device at the commencement and conclusion of such time her blood alcohol content; and

   9.2. the mother shall do all things necessary to record on the said breath alcohol analysis device her blood alcohol content at 7:00pm each day that the children are in the mother's care (other than the days upon which the mother commences and concludes such time); and

   9.3. the mother shall make available at the father's request a copy of the blood alcohol readings recorded by the breath analysis device; and

   9.4. the mother shall return a blood alcohol concentration reading of 0.00% at all times the children are in her care.

   10. That the breath alcohol analysis device referred to at paragraph nine (9) of this Order:

   10.1. Shall be a Lion Alcolmeter SD-400 or 400 Touch Breathalyser; 10.2. Shall be acquired by the husband at the expense of:

   10.2.1. the mother in the sum of $1,035.00;

   10.2.2. the father in the sum of $565.00; and

   10.2.3. with any sum in excess of $1,600.00 to be shared equally between the parties

   11.That the mother shall at the request of the father provide the said breath alcohol analysis device to the father for the purposes of downloading or otherwise recording the data in the said breath alcohol analysis device.

   12.That each party do not discuss the use of the breath alcohol analysis device with the children or any of them or in their presence or hearing or allow any other person to do so and they each ensure that the children are not present when the mother uses the device.

   13.That in the event that the mother fails to submit to blood alcohol concentration testing or returns a reading of greater than 0.00% on the breath alcohol analysis device then and in such event:

   13.1. The mother's time pursuant to these Orders shall stand suspended; and

   13.2. The mother shall spend time with the children for two (2) hours once a week at such times as the parties agree or in default of agreement at such time as the Court shall determine for four (4) weeks UPON CONDITION that the mother return a 0.00% blood alcohol reading on the breath alcohol analysis device at the beginning and conclusion of all such two (2) hour periods in which event the mother’s time shall resume in accordance with these Orders; and

   13.3. In the further event that the mother fails to submit to blood alcohol concentration testing or returns a reading of greater than 0.00% in the four (4) weeks referred to at paragraph 13.2 hereof, then the mother's time with the children pursuant to these Orders shall stand suspended for a further four (4) weeks.

   13.4. That upon the expiration of the period of the further four (4) weeks referred to at paragraph 13.3 hereof, the mother shall spend time with the said children for two (2) hours each week for four (4) weeks UPON CONDITION that the mother return a 0.00% blood alcohol reading on the breath alcohol analysis device at the beginning and conclusion of all such two (2) hour periods and should:

   13.4.1. if the mother fails to submit to blood alcohol concentration testing or returns a reading of greater than 0.00% during this period, the Orders for the mother's time with the children under this Order shall be suspended until further of this Court or agreement of the parties; or

   13.4.2. the mother return a blood alcohol concentration reading of 0.00% on each and every occasion, the mother shall resume time with the children pursuant to these Orders.  

   14. That until the breath alcohol analysis device arrives:

   14.1. to effect handover, the father shall deliver the children to and collect them from such places as the parties agree and in default of agreement to and from the mother’s ordinary place of residence; and

   14.2. the mother be restrained and an injunction be granted restraining her from driving with the said children.

4. In addition, those orders, significantly, at paragraph 28 provided an injunction that the mother be restrained from consuming any alcohol, any prescription medication other than in doses prescribed or any non-prescription medication for 24 hours prior to or during any time that the mother spends with the children. 

5. The proceedings obviously concluded by the making of those final orders.  However, they came back before this Court when the mother filed an Initiating Application on 11 February 2020.  The genesis and the events that precipitated the filing of that application was that in about late January of this year the eldest child, X, was refusing to return to the father’s home and, to use a colloquial term, had voted with her feet and was wishing to live with the mother.  In addition, and as a consequence of that decision by X, the father, the mother asserts, failed to facilitate the mother’s time spending arrangements with Y and Z.  They were the issues that brought the proceedings before the Court when the mother filed her application on 11 February this year. 

6. Ultimately, on 2 March of this year, I made orders by consent that X live with the mother and that she spend time with the father as she and the father were able to agree.  That is a state of affairs that has continued since that time and, indeed, I have made today by consent orders continuing that very arrangement.  So far as the arrangements for Y and Z are concerned, the orders made on 2 March again continue to be the orders in place, albeit that the mother is agitating for a shared care arrangement for those children.  The orders that I made on 2 March in relation to Y and Z is that they spend time with the mother on alternate weekends from 5.00 pm on Friday through to 8.00 pm on Sunday in each alternate week and in the intervening week from 5.00pm Tuesday until 8.00 pm on Thursday together with a sharing of school holidays. 

7. While the parenting arrangements are the subject of dispute between the parties so far as Y and Z are concerned, the issue that is before me today - because I have indicated to the parties I am not prepared to deal with the parenting arrangements by way of interim hearing, the issues before me today are whether or not from the mother’s perspective the orders with respect to the use of the breath alcohol testing device be discharged, or not from the father’s perspective, and, in addition, from the father’s perspective whether I should make some further orders in relation to production of information and records and further testing by the mother as set out in paragraphs 1, 2 and 3 of his Application in a Case filed on 16 September 2020 as follows:

   1.   The Applicant do produce to the Respondent a copy of all bank account statements operated by the Applicant in her sole name or jointly with others for the last 12 months;

   2.   The Applicant do produce to the Respondent a copy of all her medical records of her general medical practitioner, any medical specialists, any psychologists, any therapists and any hospital to which she has been admitted (or through which she has been treated as an outpatient) relating directly or indirectly to the consumption of alcohol and its effects upon the Applicant;

   3.   The Applicant do undergo Carbohydrate deficient transferrin testing or, in the alternative, blood and liver tests to measure her alcohol consumption.

8. I otherwise have already made orders by consent in relation to matters raised in that Application in a Case by the father.  The father also seeks some further orders in relation to the supervision of Y and Z when in the mother’s home, however again I have indicated to the parties that that is an issue that I propose to deal with when I deal with the parenting arrangements on a final basis for the children. 

9. Accordingly, the issues exercised in my mind today all centre around the mother’s alcohol consumption and what is appropriate moving forward in relation to the same.  The mother’s position, in short, is that she has more than satisfied the Court and the father that alcohol no longer is a problem in her life.  She acknowledges that it was a problem at the time and a significant problem at the time that the orders were made on 16 November 2017 and that is why she consented to the stringent orders in the terms that she did. 

10. From the father’s perspective, his position is that the Court should tread cautiously and that the mother has not provided sufficient evidence so that the Court can be satisfied that alcohol is no longer a problem in the mother’s life. 

11. The mother, in bringing the application that she has, has provided to the Court a range of evidence and objective evidence.  The evidence that she has provided can be distilled into three categories.  The first is a log of all of the breath analysis recordings from the device she has used pursuant to the orders made on 16 November 2017.  The second is a report she has obtained from her clinical psychologist, a Mr C, dated 9 February 2020.  The third is a liver function test accompanied by a report from the mother’s GP.

12. The performance of the liver function test was undertaken on 2 September 2020 and it is accompanied by a report from her general practitioner in relation to that testing dated 2 October 2020.  I also have the benefit of an earlier report prepared by the mother’s GP dated 9 January 2017.  Importantly, I note, and I will come back to this, the report from 2017 is by a Dr D and the report in October of this year is by a Dr E.  Both practitioners operate from the F Surgery.  From the mother’s perspective, she says that collectively the three categories of evidence to which I have just referred more than satisfy the Court that alcohol is no longer a problematic feature in her life. 

13. Turning firstly to the log records, I have been provided by way of annexures to affidavits of each the father and the mother records for the mother commencing as early as 5 June 2018 through to 17 September 2020.  That is a period in excess of two years.  Those records are striking on a quick reference to them in that routinely throughout the records a zero percentage of blood alcohol content is reported with regularity.  I note, and the father complains, that there are some records over the testing period to which the Court’s attention should be drawn.  Those records are records on occasion which are recorded with a reference FTP.  It is agreed between the parties that on occasions where that has been recorded that is a test failure and no reading was taken. 

14. Significantly, from my perspective, on all bar one or two occasions where that recording is recorded there is very quickly and within minutes, sometimes longer but on the same day, a further recording taken which the results are zero for blood alcohol content.  In addition, the father draws the Court’s attention to three occasions, as best as I can ascertain, where a positive blood alcohol content is recorded.  One is on 14 May 2019 where a recording of .006 is recorded, another on 9 December 2019 when a recording of .016 is recorded, and another on 21 March 2020 when a recording of .006 is recorded.  In relation to all three occasions where a positive recording is recorded, within a minute or so a further test has been undertaken and the result is recorded as zero.  The mother has not provided an explanation to the Court as to those three test results. 

15. While, on the face of it, that may be cause for concern, however I propose to deal with that concern when I consider the totality of the information that the mother has presented.  Other than the three occasions to which I have just referred, as I said earlier, what is clear to me from the records is that when the mother has used the device it overwhelmingly establishes that the recording has been zero.  The father makes complaint that the mother has not always used the device when she should have, however that is not something that I propose to deal with in isolation and, again, I propose to deal with that complaint on the father’s part when I consider the totality of the information the mother has put before the Court. 

16. When I turn to the second record which the mother has referred, namely the report of Mr C, what appears from that report is that the mother is not receiving regular psychological treatment.  She is not doing so because in February of 2018 it was assessed that treatment was no longer required.  The mother has had a further clinical review in June of 2019 and again the mother was assessed as not requiring ongoing treatment and that any treatment should be provided on an as needs basis.  Significantly, Mr C indicated that through a combination of the mother’s self-report, his observation of her and the psychological testing undertaken that the mother did not present with any symptoms that were cause for concern.  Indeed, he considered that the mother was managing generally very well and that she had her alcohol consumption under control. 

17. The third piece of evidence to which the mother points is the liver function test and the accompanying report from her GP.  They were completed very recently.  The mother’s GP in referring to the liver function test indicates that the tests are normal.  The GP also had the benefit of the readings from the breath alcohol device the other had been using pursuant to the orders.  The mother’s GP proffered the following opinion:

    I believe both of these pieces of information are evidence enough that Ms Shearman doesn’t have any problem with alcohol use.  On my most recent reviews, I think Ms Shearman is managing very well and I have no concerns in regards to her mental health o her ability to care for her children. 

    Dr E also refers to a carbohydrate deficient transferrin blood test and she provides a comment that it would not be a useful tool in identifying whether the mother has an alcohol problem or not.  That is a comment which takes on some significance because that is one of the additional pieces of evidence the father has sought from the mother in his application. 

1. From my perspective, when I consider the combination and the totality of the evidence the mother has put before the Court, the overwhelming inference that I must draw from the information is that the mother has successfully managed to get her alcohol consumption on track.  I acknowledge that there are three readings, one as recently as March of this year, which appear to be positive.  However, as Ms Pyke properly points out, the injunctions that have been made do not require total abstinence on the mother’s part. 

2. In the absence of properly understanding where the children were on each occasion that a positive reading was taken, it is difficult for me to take that matter much further, albeit that I acknowledge that X was in the mother’s primary care by March of this year.  Having said that, I also note that in very quick succession to the positive tests there is a zero test recorded.  More importantly, the tests recorded and the most recent test recorded in March of this year is at a very, very low rate, .006.  Accordingly, when I consider, as I say, the totality of the information put before the Court by the mother, I do not consider that alcohol continues to be a risk factor for these children. 

3. I also have the benefit of two child inclusive memorandums conducted very recently be family consultant Ms G, one on 15 July where the child X and the parents were interviewed and one on 11 August when the younger children, Y and Z, were interviewed.  What can be understood from the children’s interviews is that they both have a good relationship with the mother.  Indeed, while the relationship between X and the father appears to have stumbled and there are some difficulties with it, the relationship between Y and Z and the father is a positive one. 

4. Significantly, from my perspective, all of the children appear to have an awareness that alcohol consumption on the mother’s part had been a concern.  None of the children record or report and concerns to the family consultant in that regard.  I consider that to be an additional significant piece of evidence that I have before me today to satisfy me firstly that the mother has her alcohol consumption well under control and, secondly, that it no longer presents a risk factor for these children. 

5. For all of those reasons, I am satisfied that it is appropriate to discharge the orders made at paragraphs 9 through to 13 of the orders made on 16 November 2017.  In addition, and because I propose to discharge those orders and for the reasons I have already given, I do not consider that the mother needs to submit to any further testing or provide any further documents, reports, records or the like as sought by the father.  In my view, that is an overly heavy-handed response given the evidence that I have before me today. 

6. Indeed, as I indicated to the father during the hearing, I’m not entirely clear whether bank accounts will establish that the mother is consuming alcohol.  I consider the information that I already have before me to deal with that issue comprehensively.  I also have had regard to the report from Dr E in relation to the carbohydrate deficient transferrin testing and her opinion that it would not be useful in establishing whether the mother has an alcohol problem or not but it is only useful in monitoring alcohol abstinence in an acute period.  Given the orders made in 2017 do note require total abstinence on the mother’s part, I do not consider such testing in all of the circumstances to be necessary. 

1. For all of those reasons, I make the following orders:

NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Judge Kari

Associate: 

Date: 17 November 2020