Sparkes and Sparkes
[2009] FMCAfam 1111
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPARKES & SPARKES | [2009] FMCAfam 1111 |
| FAMILY LAW – Parenting orders – time mother to spend with children – mother has alcohol dependency – risk of harm to children spending unsupervised time with mother – respondent did not attend the hearing – order made to allow respondent to vary or set aside the orders within 45 days of judgment. |
| Family Law Act 1975, Part VII |
| CDJ v VAJ (No. 1) (1998) 197 CLR 172; [1998] HCA 67 Goode & Goode (2006) 36 Fam LR 422; [2006] FamCA 1346 M and M (1988) 166 CLR 69; [1988] HCA 68 |
| Applicant: | MR SPARKES |
| Respondent: | MS SPARKES |
| File Number: | SYM 5728 of 2006 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 22 September 2009 |
| Date of Last Submission: | 22 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2009 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Cassidy |
| Solicitors for the Applicant: | Fox O'Brien |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Solicitor Advocate for the Independent Children’s Lawyer: | Ms Shea |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of New South Wales |
ORDERS
That all previous parenting orders in relation to the children, X, born (omitted) 1997, and Y, born (omitted) 2003, be discharged.
That the children shall live with the father, Mr Sparkes.
That the children shall spend time with the mother, Ms Sparkes, on each Sunday from 1.00 pm until 5.00 pm or any four hour period between the hours of 8.00 am and 6.00 pm per weekend as agreed to between the parties.
That in addition to order (3), the mother shall be at liberty to attend and spend time and communicate with the children:
(a)At the children’s extra-curricular and sporting activities, including but not limited to karate and swimming lessons; and
(b)At functions and events at either of the children’s schools, including but not limited to sports days and school concerts,
PROVIDED that parental attendance and participation is permitted by the school or other body responsible for organising such activities, functions and events.
That the children shall spend time with the mother on the following special occasions:
(a)On the mother’s birthday, if it falls on a Saturday, from 12.00 noon until 2.00 pm; and
(b)On the mother’s birthday, if it falls on a weekday, from 4.00 pm until 6.00 pm; and
(c)On Christmas day (if it does not fall on a Sunday) from 11.00 am to 2.00 pm in 2009 and every alternate year thereafter; and
(d)On Christmas day (if it does not fall on a Sunday) from 3.00 pm to 6.00 pm in 2010 and every alternate year thereafter.
That for the purposes of orders (3), (4) and (5), the father shall deliver the children at the commencement of the mother’s time (or the commencement of the activity, function or event in which the children are involved), and the father shall collect the children at the conclusion of that time (or that activity, function or event).
That neither party shall denigrate the other party in front of the children or within their hearing.
That the father shall authorise any school attended by either of the children from time to time to forward directly to the mother a copy of each child’s school reports and copies of newsletters and notices of functions and events involving either of the children.
That each parent shall notify the other as soon as practicable of any illness, hospitalisation or medical emergency involving either of the children whilst they are in that parent’s care.
That the mother shall be and hereby is restrained from:
(a)Consuming alcohol during or for at least 12 hours prior to spending time with the children; and
(b)Driving a motor vehicle in which either of the children are passengers.
That at the beginning of each period of time the children spend with the mother pursuant to orders (3) and (5), the father may request the mother to undergo a breath analysis test.
If the father wishes to request the mother to undertake a breath analysis test then:
(a)The father is to give the mother the breath analysis testing device in a shaving bag or similar bag;
(b)The mother is to test her breath in a closed room in her home and not in the presence of the father and the children;
(c)The mother is to return the device to the father in the shaving bag or similar bag; and
(d)The father is to inspect the reading in a closed room or in the mother’s house and not in the presence of the children.
That until 11 December 2009 the mother shall be at liberty to apply to re-list this matter and seek a variation or discharge of these orders by 7 days written notice to the Associate to Chief Federal Magistrate Pascoe, the father’s solicitor and the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Sparkes & Sparkes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 5728 of 2006
| MR SPARKES |
Applicant
And
| MS SPARKES |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for X (born (omitted) 1997) and Y (born (omitted) 2003) who are the children of the marriage of the applicant and respondent.
This matter is made difficult because of the need to balance the children having a relationship with both their parents and the need to protect the children from harm which might arise because of the mother’s alcohol dependency. The mother in this case clearly loves her children and plays an important role in their lives. The relationship is supported by the children who clearly love their mother and to some extent the father, but the time the mother spends with the children must be determined in light of concerns expressed for their safety.
The applicant father Mr Sparkes (born (omitted) 1962) (‘the father’) and the respondent mother Ms Sparkes (born (omitted) 1962) (‘the mother’) were married on (omitted) 1991, separated under one roof on 24 July 2004 and physically separated on 12 December 2005.
Proceedings in relation to parenting orders were originally initiated by the mother in the Family Court on 24 February 2005 and consent orders were made on 14 December 2005 with shared care arrangements for the children.
However, due to concerns about the mother’s alcohol consumption affecting her parenting, the Department of Community Services (DoCS) contacted the father who filed an application in the local court at Sutherland and on 10 February 2006 orders were made providing the children live with the father and spend supervised time with the mother.
On 6 September 2006 the matter was transferred to the Federal Magistrates Court. A number of interim orders have been made, with the most recent set of interim orders made on 9 July 2009. Those orders suspended the mother’s overnight time and allowed the mother to spend time with the children on a four weekly cycle. This timetable provided the mother spend time with the children one day per week on a weekend from 9.00am until 6.30pm, with an additional day from 9.00am until 7.30pm during week two. Those orders also allowed additional time during school holidays and time as agreed between the parties.
The mother has been self-represented since 12 June 2007.
The mother seeks further time with the children including overnight time. The father and the Independent Children’s Lawyer seek that the mother spend time with the children for four hours on Sunday every week and for her to be able to attend the children’s extra-curricular and sporting activities.
Events at hearing
The mother appeared at a directions hearing on 9 July 2009 and was advised of the trial date for the final hearing. At 10.00 am on the trial date, 22 September 2009, there was no appearance by the mother. The matter was called three times at 10:12am and there was still no appearance by the mother at the commencement of the hearing.
Given concerns about the mother’s mental health expressed by all parties present at hearing and on the request of the applicant’s counsel, I made directions for the Independent Children’s Lawyer to attempt to contact the mother and that the father’s counsel call the local police to attend at the mother’s residence. The matter was adjourned while this took place.
Due to delays in making such enquiries, court resumed at 2:16pm. The Independent Children’s Lawyer indicated that she had left messages on the mother’s telephone as the mother was not answering. She indicated that the police had attended her house but there was no answer and that they would return later in the day. Both the father and the police had also left telephone messages for the mother.
I considered that it was appropriate to continue hearing the matter for the following reasons: firstly, it seemed the parties did not intend to call any other witnesses (there were no recent affidavits filed by any other witnesses on behalf of the mother); and secondly there were concerns regarding cross-examination because the mother was self-represented and the possible effect of cross-examination on the mother’s mental health. There was argument as to concern over whether final orders would be in the best interests of the children in light of the real risk to them (as indicated in the family report) if the current interim orders were to be continued. I formed the view on the material presented that it was clearly not in the best interests of the children for the Orders then current to remain in force.
The Independent Children’s Lawyer put forward that the requirement of natural justice could still be complied with as the applicant had been able to provide evidence to the Court through various affidavits, had attended interviews for both the family report and psychiatric report, and was aware of the hearing date. Additionally, she indicated that an order could be made to allow the mother to vary or set aside any orders made at trial.
The Independent Children’s Lawyer was granted leave to allow her telephone to remain switched on during the course of the proceedings so that the mother could contact her, of which she did later in the afternoon. The mother said she was sick with rotovirus, that she had been sick for a few days, suffering from vomiting and had seen a doctor for her illness. The Independent Children’s Lawyer had asked the respondent if she would be attending Court on Wednesday for the second day of trial, to which the respondent said: “I have to”. The meaning of this was considered ambiguous by the Independent Children’s Lawyer and she was not sure if the mother would appear at the trial the next day.
The matter concluded on the first day of trial and I reserved my judgment on that day.
Events after the hearing date
On 29 September 2009, my associate received a letter from the mother dated 24 September 2009. The letter stated that on the day of the trial the mother was feeling nauseous and began vomiting in the early hours of the morning. She provided a medical certificate from Centrelink which expressed she was unfit for work from 17 August 2009 until 17 October 2009. She said that she would not be able to obtain a retrospective medical certificate (specifically for the date of the trial) and stated that “[w]hen I am under undue pressure I do tend to get quite ill”.
The letter also said that Dr C believes the mother did not “jump from the bridge” and that “My GP knows and also from blood tests that I am hardly consuming alcohol”.
The mother is concerned that she, “appear[s] to be tainted with an air of foreboding” and that the proceedings emphasised the possibility of risks that have not previously occurred.
The mother referred to her own childhood, how her brother and herself wanted to see her father but her mother would not allow them, and how detrimental this was to her brother.
I note the mother makes no request in her letter to re-open the trial.
On 6 October 2009, with the consent of the mother, a copy of the mother’s letter was sent to the father’s solicitor and the Independent Children’s Lawyer. There were no objections as to the letter being considered.
In light of the events at trial and post-trial, I make orders on the evidence before me without re-opening the trial. However, I have given the mother leave to relist the matter within 45 days of the date of this judgment.
I accept the Independent Children’s Lawyer’s proposal any orders I make would provide finality to the litigation (see discussion below regarding interim or final orders) whilst providing the respondent an opportunity to provide further evidence if she so wishes.
The Evidence
The applicant father relied on:
a)His affidavit sworn on 31 August 2009 and filed on 4 September 2009;
The Independent Children’s Lawyer relied upon:
a)Expert report of Dr C dated 30 April 2007;
b)Updated expert’s report by Dr C dated 14 September 2009; and
c)Family Report of Ms R dated 24 August 2009.
Both parties were uncertain as to which documents the mother relied upon but I note the mother has filed the following affidavits:
a)Ms Sparkes’ affidavit sworn on 5 September 2006 and filed on 6 September 2006
b)Ms Sparkes’ affidavit sworn and filed on 3 May 2007;
c)Ms Sparkes’ affidavit filed on 30 October 2007;
d)Ms Sparkes’ affidavit sworn 4 May 2009 and filed 6 May 2009; and
e)Ms Sparkes’ affidavit sworn on 4 September 2009 and filed on 11 September 2009;
At hearing, the family report writer, Ms R gave evidence and was cross-examined by the Independent Children’s Lawyer. None of the parties or any witnesses were called.
Expert report
Dr C prepared an expert’s report on 30 April 2007. His report relied on interviews with the father and the children on 19 March 2007; both the parents and children on 20 March 2007; and a telephone interview with Dr S (the mother’s general medical practitioner at the time) on 10 April 2007.
The report found that the applicant was a capable parent, with the children ‘developing well in his care’, that he was intuitive and insightful as to the needs of the children and wanted to support a relationship between the mother and children. The report found the children had a “close relationship with the mother”, that she cared for the children “a great deal” and the children recognised the mother as an important person in their lives. However, Dr C found that the mother did not have a great deal of insight into her problems and he believed she would not be able to deal with the children at any complex level and cope with them for extended periods. He noted she had a history of post-natal depression, alcohol dependent disorder and prescription drug dependency. She was drinking up to 3 bottles of wine or a bottle of spirits a day, with a history of multiple admissions to hospital and attempts at detoxification.
Dr C was concerned that the mother would have a relapse with her alcohol consumption. He said it was necessary that time with the children should be supervised but that there should be “some mechanism for responding” regarding her alcohol usage; he did not believe a supervisor was necessary during time with the children if she was not drinking alcohol when they were in her care. He was also concerned that she may find it difficult to cope with the stress of having the children for extended periods on her own. Dr C recommended the children have brief but regular contact with their mother. His other recommendations included a follow up by DoCS, that the mother take an anti-alcohol substance, and attend/continue drug and alcohol counselling.
Psychiatric report
Dr C prepared a further report on 14 September 2009 with the aims of addressing the following issues:
a)The mother’s mental health;
b)The mother’s alcohol consumption;
c)The effect of the mother’s mental health on significant relationships; and
d)Recommendations regarding contact and risk of harm when the children are in the mother’s care.
His report was based on an interview with the mother on 27 August 2009 and examination of some of the Court documents.
Dr C noted that NSW Health documents from (omitted) Hospital indicated that the mother was brought into hospital at around 11.30pm on 24 February 2009 after being found in the water near (omitted) in Sydney (I will refer to this as the ‘(omitted) bridge incident’). The notes indicated the mother had told the police she was not suicidal but had slipped on some steps. The police notes indicated she was heavily intoxicated and stressed about being evicted from her rental property. Dr C discussed the bridge incident at (omitted) with the mother and noted her recollection of events which confirmed her reports to the police.
Dr C also noted that there were statements regarding a sexual assault on the mother on 27 November 2006.
The report also noted the mother’s day-to-day arrangements, including her limited social activities other than caring for the children.
The report indicated that the mother was using Efexor and was vague about seeing psychiatrists in the past. The report stated that the mother denied “any drug or alcohol problems now”.
Dr C’s opinion was that the mother continued to have “significant alcohol dependent syndrome”, that she “continues to have poor insight into her condition” and “there is lack of acknowledgement of any significant problems”. She appeared to minimise the significance of the (omitted) bridge incident. Dr C’s opinion was that due to her poor insight and her history of alcohol abuse she will continue to relapse. It appeared to Dr C that the mother’s alcohol use was episodic and it was difficult to predict when she would drink excessively. His opinion was that although when sober she is able to provide for the children’s physical and superficial needs adequately, she did not appear to relate well emotionally. He noted her limited social network and support.
Dr C recommended that the mother should have contact of up to three or fours hours at a time during the day where there are mechanisms to determine whether she is alcohol free prior to contact. Specifically, he recommended brief contact once a week on either Saturday or Sunday for four hours. He was of the view that the mother was not capable of caring for the children for any extended period of time.
The report also recommended that neither parent denigrate the other in front of the children, that the mother continue with drug and alcohol counselling, that the mother take an anti-alcohol substance, and DoCS to review the mother’s well-being.
Family report
A family report was prepared on 24 August 2009 by Ms R after interviews with the parties and the children and a telephone conversation with Dr B (the mother’s general practitioner). The family report writer attended at the hearing on 22 September 2009. She was provided with recent affidavits of the parties and an updated report from DoCS, and indicated she had made further enquiries including consultation with Mr G (a behavioural scientist who is an expert on drug and alcohol issues).
The family report raised the following issues:
a)Whether or not the children are at risk when in their mother’s care due to her alcohol and drug dependence;
b)Whether or not the mother’s health problems impact on her ability to care for the children;
c)The impact on the children of being exposed to the mother’s long term history of alcohol and prescription drug dependence;
d)The needs of the children with respect to their developmental stages.
The family report indicates that notes from the (omitted) Clinic filed in May 2009 showed the mother was diagnosed with anxiety disorder and alcohol and benzodiazepine dependence in 2006. At the hearing, the family report writer stated the mother was at the ‘severe end’ of the range of alcohol dependency. She stated that one of the concerns with alcohol dependency is that the need to consume alcohol could take priority, and that it is strongly linked to depression and anxiety and an increase in the risk of suicide and self-harm.
The report indicated the mother is currently drinking about half a bottle of wine per day and has two alcohol free days per week, with her goal being abstinence. At hearing the family report writer indicated that it was “likely she [the mother] could be under-reporting”. In the family report it was noted that Dr B said the mother was “trying hard” to deal with her alcohol dependence and “has made good progress”, and that her liver function test results are also ‘normal’ indicating she has not been drinking to a dangerous level.
The family report states that the mother seemed reluctant to acknowledge that she has a problem with alcohol but agrees that when she drinks alcohol she does things that she “wouldn’t ordinarily do”. The mother acknowledged that her alcohol consumption has impacted on her relationship with her children, in that she does not see them as often as she would like to. At hearing the family report writer indicated the mother said she felt that “alcohol was the only thing that was keeping her stable”. The family report writer was also concerned the mother was not able to understand how difficult it was for the children not to spend time with her.
The family report indicated the mother has had health problems, including a number of seizures over the last few years. She has had three seizures this year. The report stated doctors were unable to conclusively state what causes the seizures with probable causes including alcohol withdrawal, low sodium levels or a sudden decrease in valium.
The report indicated the mother is taking 30mg of valium per day to prevent seizures.
The family report writer at hearing was concerned that the combination of prescription drugs and alcohol may compromise the mother’s ability to monitor how much of either she is taking and stated that “we don’t have a clear picture of what she is taking”. The mother’s substance intake could also cause drowsiness and compromise her capacity for judgment, short-term memory, and capacity to supervise the children. The family report writer was questioned by the Independent Children’s Lawyer and agreed that that the mother’s capacity to keep up good quality interaction with the children decreases as the amount of time with the children increases.
The family report writer noted that the mother had entered alcohol detoxification programmes at least twice (Jarrah House in May 2006 and (omitted) Hospital in January 2007) and had seizures on both occasions. She indicated that the mother would be better with the assistance of a medical professional in substance misuse than her local general practitioners. She indicated the mother was not currently attending to any alcohol support group. She indicated that the mother would need to be closely monitored medically and needed to be physically and emotionally strong to cope with detoxing. She also said that the risk of relapse would be high.
The family report writer indicated that the mother is “doing a good job” in reducing her alcohol intake and the level of risk will continue to reduce in line with her efforts to reduce alcohol consumption. However, the family report writer indicated that a number of serious incidents relating to her alcohol, including an incident as recent as February this year, indicated the risk to the children was quite high. She also noted that the mother as recently as February 2009 was found (by police) to be driving whilst under the influence of drugs and alcohol.
At hearing the family report writer was referred to the DoCS notes which indicated the mother was brought into hospital on 22 January 2009 after she lost consciousness at a health clinic whilst getting an ultrasound. She was found to be heavily intoxicated at the time. The family report writer was concerned that the mother would leave the children home alone to attend to the health clinic for a lengthy period of time and that she was drinking during the day.
Ms R at hearing was also referred to a DoCS report of an incident on 12 February 2009 where the mother alleged the father assaulted her and that the father alleged the mother grabbed his shirt and tried to stop him leaving with the children. She said she was concerned about these incidents as they took place in front of the children.
The family report writer also stated that notes from the (omitted) Clinic filed in May 2009 indicate that the mother has made seven attempts at suicide in the past. The mother described two of these to the family report writer at interview and said she was not trying to harm herself. The first was where someone from her home called the police and alleged they tried to hang themselves. The police found synthetic rope on the mother’s patio and although she said she does not remember the circumstances, she does remember drinking that night and acknowledge it must have been her calling the police.
The other incident referred to was the (omitted) bridge incident. At hearing the family report writer said it was potentially “very dangerous” if the children had been home alone with her that night as the garage door was open and the back door unlocked.
At hearing Ms R was further concerned that the mother was drinking in front of the children and that this could predispose them to alcohol abuse.
Both in the written report and at hearing, Ms R noted issues of responsibility falling onto the children especially as X has had the responsibility of calling for help, on at least six occasions, when his mother had been ill, and had to then care for Y.
The family report writer also referred to a DoCS report which indicated that in April 2008 the mother was asleep on the couch and X (at the time 10 years old) gave Y a paracetamol tablet presumably because she was suffering fever. The family report writer indicated this was an inappropriate responsibility for a child that age.
Ms R was also concerned that X may blame himself if something happened to their mother or Y and this would be “detrimental to him”. This inappropriate responsibility or ‘parentification’ was in the family report writer’s opinion at hearing considered to be “exceedingly dangerous” to X. She indicated this responsibility could affect his development both in his relationship with his mother but also on his ability to focus on himself and his peer relationships.
At hearing Ms R was referred to DoCS and police reports of June 2009 that Y had been inappropriately touched by the father’s girlfriend’s son, A, who is six years old. After Y complained to the mother that her vagina was sore, the mother inserted her own finger into Y’s vagina to apply Canisten cream (which she had been instructed to do so by her general medical practitioner in the past) but she also wanted to confirm Y’s complaints regarding A. Although the mother did take the child to a doctor and subsequently approached the relevant authorities, the family report writer was concerned that this initial reaction by the mother showed a lack of insight into the effect of her own actions on Y. This could cause further distress to Y and confuse her as to what is appropriate and inappropriate touching. There was also discussion at hearing that the father may have minimised the seriousness of the incident with A. The family report writer also referred to Dr C’s initial report regarding X assisting the mother with catherisation and raised a concern there were boundary issues between the mother and the children.
Ms R emphasised that it was important to prevent the possibility of the children being present in situations that were life-threatening to the mother. The family report writer was of the opinion that the mother’s chances of “relapsing and returning to consuming dangerous levels [of alcohol] is significant”.
Ms R’s evaluation was that both children have a good relationship with each of their parents, and regardless of negative experiences as a result of the mother’s alcohol and drug dependence still “maintained admiration and respect for her”.
Ms R was aware that the children want to spend time with their mother and may feel upset if time with her is reduced. The family report writer was supportive of the mother attending the children’s after school activities (karate and swimming), as it is activity focussed and there would not appear to be any risk to the children. The family report writer noted at hearing that although the children did not complain about the time they spend with the mother at home, they did not appear to enjoy it as much as the time they spent with her during activities.
Ms R was of the view that there was no disadvantage to the children in activity-based contact, especially balanced against the mother’s current physical and emotional state. She said there could be more contact as long as it was reasonably monitored, supervised, and activity-based. She indicated that the time they spent at home with their mother where they did nothing, was not helping the relationship and may in the long-term be detrimental. Ms R indicated that a way to minimise the risk to the children was for their time with the mother be monitored until the mother was drug and alcohol free. She could not see any benefit to the children of continuing the current arrangements unless the mother’s condition was to improve.
Ms R was of the view that the father is genuine in his desire to support a relationship between the children and their mother. Ms R noted that the father’s approach seemed to be retroactive rather than proactive and that his desire for a ‘perfect situation’ may cloud his judgment.
The family report recommended that the mother “only spend time with the children during activities like karate and swimming until such time as she stops drinking alcohol altogether”.
Weight of the evidence
I give significant weight to the family report writer’s report, her evidence at hearing and Dr C’s recent report and the relevant materials that have been provided to the Court including DoCS and police reports. Although both the family and expert reports express ostensibly different recommendations, both reports are consistent with each other on a fundamental level. Both reports express a concern as to the mother’s consumption of alcohol, her capacity to care for the children and the risk to the children. Both reports recommend brief regular time.
I give some weight to Dr C’s earlier report as it is consistent with the more recent reports.
I place limited weight on the recommendation that the time with the mother must be activity-based because it should be enjoyable and meaningful interaction. In life generally, children spend time with their parents which is not exciting or activity-based but nevertheless provides for normal interaction and relationship building. I do however, place weight on the recommendation that there should be a focus on supervised time in light of the risks to the children (including the mother’s lack of capacity to monitor them properly).
Legal Principles
The legal principles which govern this case are set out in Part VII of the Family Law Act 1975 (Cth) (‘the Act’). Section 60B(1) enumerates the objects of this part as ensuring the best interest of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Most importantly, s.60CA provides that the best interests of the child are the paramount consideration. In determining the best interests of the child, the Court must consider the primary considerations, which are set out in s.60CC(2) together with those matters set out in s.60CC(3). In considering those factors, regard must also be had to ss.60CC(4) and (4A)
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both parents; and secondly, the need to protect the child from physical or psychological harm; from being subjected to, or exposed to, abuse, neglect or family violence.
There is a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for that child; s61DA (1). This presumption does not apply if I find that there are reasonable grounds to believe that a parent of the child has engaged in child abuse or family violence; s61DA(2). In the event that I do find that a parenting order should be made for equal shared parental responsibility, I must also consider whether the child spending equal time with each parent is in the child’s best interests and is reasonably practicable; s65DAA(1)(a) and (b). In the event that I do not find that it is in the child’s best interests for the child to spend equal time with each parent, then I must consider ordering that the child spend ‘substantial and significant’ time with each parent, again with the best interests of the child in mind; s65DAA(2).
Parental responsibility
In relation to parental responsibility I accept the Independent Children’s submission that no orders should be made. I accept that to remain silent effectively means that each parent retains responsibility under the Act, and that there is no positive obligation to exercise it jointly. The full court decision of Goode & Goode (2006) 36 Fam LR 422 provides that where a court does not make an order on this aspect, then the parents retain this responsibility and may exercise it independently or jointly. There was very little argument regarding parental responsibility in this matter and I make no orders as to it.
Primary considerations
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
The father has been the primary carer for the children since February 2006. Both parents cared for the children prior to separation. The family report writer indicated that both X and Y were comfortable in the company of their parents.
The mother says in her affidavit that she provides them with love, security, happiness, mutual support, companionship, and a good sense of self worth. She endeavours to love and treat them as they would like to be cared for. She writes that as consequence of the above they have strong self-esteem. She also indicates that the father is a positive role model. I have no doubt as to the authenticity of the mother’s statement that she would want to treat the children in the way she outlines.
The family report indicated that the children are developing well living with their father and spending time with their mother and I accept that there is a benefit to the children in having a meaningful relationship with both parents.
However, the extent to which the mother is able to relate to her children in a positive way must be looked at in light of her health issues discussed below. The family report writer accepted the children did benefit from the time they spent with their mother, but this depended on whether they were supervised and that her capacity to care for them diminished over long durations of time.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Family Violence
On 21 December 2005 the mother sought an Apprehended Violence Order (AVO) against the father but no interim orders were made and the matter was dismissed on 15 February 2006 as the mother withdrew the complaint. The details of complaint noted that the mother said the father had been verbally abusive and had now become physical violent towards her. Police records indicate there were some slight marks on her body which appeared to be bruising. The father denies these allegations.
On 8 April 2007, the father was arrested by police and a provisional ex parte AVO was made against him. The provisional AVO notes that the father continued to harass the mother on the street and pushed her whereupon she fell over grazing her palm, elbow and knee. When the matter came before the local court however, the mother who had sought the AVO did not appear nor did she appear on the adjourned date and the AVO was dismissed. The father denies the allegations and indicated that he was not with the mother on that day.
I also refer to the incident of 12 February 2009 where there was a physical altercation between the parents in front of the children. The DoCS report notes the mother had black eyes and swollen cheeks that night but the DoCS report was unsure whether this was caused by the alleged assault between the parties or due to a seizure the mother had earlier that week resulting in facial injuries. The DoCS reports indicate the mother was intoxicated with alcohol the night of the altercation.
The children told the family report writer of animosity between the parents. The mother in her affidavits indicated that the father was verbally abusive to her about her parenting abilities.
However, as discussed by the report writers, the parties are willing to encourage a close relationship between each of them and the children.
I note the father denies the allegations relating to the two AVOs. I accept that there can be at times high levels of parental conflict which in this situation has on at least one occasion become a physical altercation. I note that such behaviour is serious. However, on the evidence the risk of any family violence between the parties occurring in the future is low. There is therefore in my view, no unacceptable risk in relation to the children spending time or living with each of their parents in this regard.
I now turn to whether the children will be at risk of harm because of the mother’s alcohol dependency and use of prescription drugs.
Mother’s alcohol usage
I refer to the family and expert reports in this matter discussed above and accept the mother has an alcohol dependency which was described as ‘severe’.
In Dr C’s 2007 report, Dr S is reported to have said that there was improvement with the mother’s drinking over the past 2 years but she had not been free of dependency long enough for him to be confident. When she was not drinking she appeared to function quite well. Dr S was indicated that he would have concerns if she had full time care of the children because of the likelihood of her relapsing.
A letter dated 7 November 2008 from Dr I of the (omitted) Specialist Centre notes that the mother had reduced her alcohol intake to 1 litre daily from 2 litres but was not willing to enter a formal detoxification program as she felt it would adversely affect her court case. (omitted) Hospital notes of 23 February 2009 indicate that she “currently drinks 13 standard drinks per day” and that she had seizures when she tried to stop drinking.
The family report writer’s more current evidence is that the mother has reduced her intake to half a bottle of wine a day with two free days per week. Her current general practitioner, Dr B, believes she had made good progress.
The mother has tried to undergo detoxification programmes in the past but has suffered severe seizures.
The family report writer at hearing said that the mother was not attending Alcoholics Anonymous at the time of the interview and was obtaining support from the Church but this was personal and not specific support related to alcohol.
In particular, the family report writer said at hearing of the mother’s health treatment that:
“At the moment, where she’s monitoring her own intake, and in a position where, really, her capacity to monitor herself adequately is limited, it’s a very precarious position that she’s in”
In particular, the family report writer stated that the mother’s combination of prescription drugs and alcohol may affect her ability to monitor her intake. The mother is not undergoing any formal detoxification programme. The family report writer recommended the mother be closely monitored medically to cope with detoxification.
The family report writer’s evidence at hearing made a link between emotional health and the ability to succeed with a detoxification programme. She said it would require a ‘strong’ emotional ability to overcome these issues. The current family report outlines the mother’s troubled family history, including that both her parents ‘drank alcohol to excess’, violence by her father (towards both her and her mother), and difficulties in the relationships between Ms Sparkes and her brother with their father. The mother’s brother Mr D drank heavily from an early age and was 29 years old when he committed suicide. The report states that his death has been “extremely difficult to deal with” for the mother.
Additionally, the mother has on a number of occasions driven a motor vehicle whilst under the influence of alcohol (and been disqualified from holding a licence), with the most recent incident occurring in February 2009.
Both family reports indicate a lack of insight by the mother into alcohol as a problem.
Although the mother has decreased her consumption of alcohol and is determined to achieve abstinence for the sake of her children, in view of her history with alcohol (both her drinking history and her childhood history), her relapses and difficulties with previous detoxification programmes, the family report writer’s view is that the current health treatment for the mother is not sufficient. I agree with the family report writer’s view that the mother’s chances of “relapsing and returning to consuming dangerous levels [of alcohol] is significant”.
Mother’s mental health
The family report writer said that the notes she read indicated the mother has attempted self-harm on at least seven occasions.
I accept the mother’s evidence that she did not attempt to harm herself during the (omitted) bridge incident and accept she climbed on a ladder near the bridge and fell. There was very little evidence from health care workers as to the mother’s motives and the mother strongly expressed that she did not attempt to harm herself. However, she did not indicate why she was climbing a ladder whilst intoxicated. She was found floating 300 metres from shore and had broken ankles. In the early hours of the next morning, police came to her house and noted that the garage door was open, the lights were on and the back door unlocked.
I do have concerns that the mother may not realise the seriousness of the incident in that she could have harmed herself and that the children could have been alone in her home that night.
It is plausible that the mother did attempt to harm herself in September 2008. She admitted to the family report writer that it must have been she herself who made the call to the police.
The mother was sexually assaulted on 27 November 2006 after someone broke into her home. At the time of the report in 2007 she was seeing a psychologist for alcohol counselling and relapse prevention at (omitted).
I also refer to the mother’s family history discussed above at paragraph [92].
The mother has few social contacts in Sydney.
I find there is a possibility the mother may harm herself whether intentionally or otherwise, particularly when she has been drinking. She admitted to the family report writer that she may do things she would not normally do when she drinks.
Effect on children and risk to the children
There have been a number of instances of the mother leaving the children alone for long periods of time.
The risk of harm to the children is increased as a result of the parentification of X. As discussed above in the family report writer’s evidence, the mother has suffered seizures in the past including a seizure in February this year.
As a result, responsibility is placed upon X. The family report writer indicated the level of responsibility was inappropriate and ‘dangerous’ and could adversely affect his future development (see paragraph [57] above).
The family report writer raised a concern that the mother drinks in front of the children and that this could predispose them to alcohol abuse. Both children are aware that their mother drinks. The mother has been seen to drink during the day, and it was concerning that Y believes her mother to be drinking at “breakfast, lunch, and dinner”.
I note in particular that both reports indicate the mother lacks insight into the damage caused by her drinking. I place great weight on this evidence as it goes to the likelihood of her placing herself (and the children) at risk when intoxicated.
Both family reports and psychiatric reports in this matter indicate that there is a high level of risk to the children being in the mother’s care and clear recommendations that the children should only be in the mother’s care for limited periods of time.
I accept that because of the mother’s alcohol dependency, the risk of harm to her, and the likely adverse effect on the children makes it important that they are not left in her care for long periods without supervision.
I accept the mother’s contention that she would never willingly harm her children, but there is a significant risk that she will indirectly harm the children, either psychologically or physically.
This risk must be balanced against the benefit of the children spending time with the mother and other factors.
Additional considerations
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
I note that X recently told the family report writer that he would like to see his mother more, maybe “one more day”. X indicated that he was pleased that his mother attends the same karate class as himself and his sister, and that she swims with him on Tuesday evenings. On the other hand, he also expressed to the family report writer that he would like to spend more time with his friends on the weekend. These views were consistent with his views in 2007 the report.
X is 12 years old and I give some weight to his wishes. However, this must be balanced with the other considerations in this matter, in particular, the risk of harm to the children being in the mother’s care for long periods of unsupervised time.
(b) the nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child);
I have found above that the children benefit from a meaningful relationship with both parents.
However, I note that with respect to the their relationship with the mother, there are concerns that X has been given more responsibility than is appropriate for his age and, as discussed below, he may feel obliged to see his mother.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The family reports indicate that the father understands and is committed to supporting a good relationship between the mother and the children, but only if the mother remains sober. He acknowledges the children care and want to spend time with their mother. The family report writer was of the view that the good relationship between the children and mother was due to the father encouraging that relationship.
There was also evidence that the mother would be willing and is able to facilitate and encourage such a relationship between the father and children.
On the other hand, the mother’s affidavit of 6 May 2009 stated that on Saturday 13 December 2008, the father broke into her home and wanted her to look after the children so he could spend time with his girlfriend. The mother says in her affidavit that the father berated her in front of the children. I also note the physical altercation between them which took place in front of the children in February 2009.
Both children indicated there was some negativity between the parents. For example, Y said in the current family report that her parents were “always angry at each other”.
I note the mother’s letter of 24 September 2009 asserts that the father is not supportive of the mother having time with the children.
Regardless of what both parents have said about each other, from the evidence of the family report writers and the fact both children have close relationships with both parents, I find that both parents are willing to encourage a close and continuing relationship between the children and the other parent, although at times this may be difficult for them.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
What I need to address here in particular is the impact on the children’s relationship with the mother of continuing day only time; increasing or decreasing the amount of time or re-introducing overnight time.
If more time is given to the mother or even if time is kept at the current level and particularly if there is overnight time, all of the report writers state that there is risk of harm to the children. On the other hand the family report writer indicated that the children are likely to be upset or feel disappointed if the time they spend with their mother is reduced. However, X has expressed an interest in spending more time with his friends.
I have also considered how this will affect the children’s extra-curricular activities, since one of the suggested orders is for the mother to attend the children’s extra-curricular activities. This may mean the children may continue doing such activities even if they do not enjoy them so that they can spend time with their mother.
The mother also has concerns that the children would suffer detriment if they spend less time with her.
I accept that the children maybe upset or feel disappointed if the time with their mother is decreased. However, I note that X has some maturity and both children have admiration for their mother and this should obviate any negative feelings.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
X attends: karate training at 5.30pm on Monday, swimming from 6.00pm to 7.00pm on Tuesday, Scouts at 7.00pm on Wednesday, and tennis at 8.00am on Saturday mornings. Y has swimming from 5.30pm to 6.00pm on Tuesday, and attends karate and tennis with X. She plays netball in winter.
The family report writer’s recommendation suggest the children spend time with the mother during extra-curricular activities. No evidence has been presented which suggests that there are any financial difficulties in this respect.
The mother is currently not working and has not worked since Y was born. If she commences work this may affect her ability to attend the children’s extra-curricular activities. However, the children’s current activities appear to occur after general work hours and on the weekends.
(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The family reports indicate the mother is able to care for both children on a superficial level and this is also supported by her own affidavits (e.g. she cares for their physical well-being, takes them to the dentist.)
However, I accept the mother’s capacity to provide for the children’s needs is limited by the factors below.
I accept the family report writer’s concern that the combination of alcohol and drugs may affect short-term memory and the mother’s ability to supervise and care for the children. In particular, I note that she suggests the quality of the interaction with the children decreases as the length of time increase. The mother has liver disease and this will reduce energy levels and impact on daily functions. There was a concern raised by the father that the mother after drinking alcohol becomes tired and does not take the children out. Both children have said they do not go out because the mother is tired.
There are also concerns regarding the mother’s capacity to relate to the children, in particular:
a)The father’s concern she has discussed issues about her previous pregnancy which was terminated, with Y whom he believes is too young for such topics;
b)In the experts report of 2007, the father said he was concerned about the mother’s poor judgment. He said that she had a bladder problem which required self catheterisation and had asked X when he was 6 or 7 years old to assist with this.
c)The way the mother initially dealt with Y’s complaint of inappropriate touching (however, she did approach the appropriate authorities the day afterwards);
The father has been the children’s primary carer and the evidence is that he is able to provide care for the needs (albeit with some lack of insight). There were also concerns that the father minimised the seriousness of the inappropriate touching and has not taken any further action (e.g. taught both children what is appropriate). There was also concern that the father is slow to react and did not take any actions after the mother had placed the children at risk. However, the family report writer’s evidence is that he has now put the children’s needs as a priority.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The family report writer at hearing raised issues of parentification with X (see above) and in particular with regards to his developmental age and that X may want to spend time with friends but feels forced to spend time with his mother. I note that the father told the family report writer in 2007 that X was seeing a child psychologist, Ms L because his socialisation was a little slow. I note that this was not raised as a specific concern in this matter by either party, but I find that it does further emphasise that the developmental needs of the children is a factor that needs to be considered.
(h) If the child is an Aboriginal child or a Torres Strait Islander child the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right;
This factor is not relevant in this matter.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father has been the ‘main’ carer for the children since 2006 and the children’s primary carer since Ms Sparkes moved out of the family home.
The mother’s affidavit indicates that on 4 October 2008 the father and his girlfriend took the children from her against her wishes and against court orders. There is little evidence on this assertion. It is concerning if the father is breaching court orders. The other evidence before me however weighs against this assertion and indicates that the father overall has shown a responsible attitude to parenthood.
I accept the mother has cared for the children and genuinely loves them, but I find that at times her health and alcohol dependency may affect her ability to prioritise their needs.
(j) Any family violence involving the child or a member of the child’s family;
I have discussed this issue above.
(k) any family violence order that applies to the child or a member of the child’s family, if the order is a final order; or the making of the order was contested by a person;
I have discussed this issue above. The father challenged the AVO’s sought.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This matter has been continuing in this Court since 2006 and earlier in the local court since 2005. Interim orders have previously made in the past and I am of the view that the children deserve stability. It is quite clear from the evidence that this is not a case where the mother’s circumstances are likely to change in the foreseeable future. The evidence is that rehabilitation is a long and difficult process – one she has attempted previously but with limited success. The children need stability and an end to legal proceedings. In the absence of any special circumstance, which I have not found to exist, there needs to be finality to this litigation; see CDJ v VAJ (No. 1) (1998) 197 CLR 172.
In the interests of natural justice given the circumstances of this case, there is an order that allows the mother to reopen the matter but within a reasonable timeframe of 45 days which takes into account the mother’s health issues and gives her reasonable time to seek legal advice.
(m) any other fact or circumstance that the court thinks is relevant.
I have considered the effect on the mother of any variations to the current arrangements. In her affidavit she said that “I am so devastated from their absence, I asked my GP for an anti-depressant, which I have been on for 4-5 weeks”. The mother’s affidavit indicates that she feels she is ‘under a radar’. The mother in her affidavit of September 2009 is concerned that their relationship is not as strong as it was. She also says “Please don’t take my children away from me. In effect, I will be completely alone.”
I am concerned about the mother’s mental health if her time with the children is reduced. This is further heightened by the factors relating to her alcohol consumption, mental health and risk of self-harm referred to above. This may impact on her parenting of the children and risk of harm to them. However, considering the evidence as a whole, the orders provide for the mother to continue regularly spending time with the children and that her mental health would not be so affected as to deteriorate any benefits as to meaningful time with them or to place them at an unacceptable risk of harm.
I note that Dr C makes recommendations such as the mother attend Alcoholics Anonymous and that the Department of Community Service review the matter in 6 months. Ms R states in her report that the mother is “unemployed and unwell and will require support during this process”. The Independent Children’s Lawyer at hearing submitted that she did not think it was appropriate to make any orders regarding the mother’s medical treatment as this may only worsen the situation. She made reference to previous difficulties the mother has regarding rehabilitation. Although the mother had previously attended Alcoholics Anonymous and counselling at Enough is Enough, the mother’s affidavit of October 2007 with regards to Enough is Enough and Relapse Prevention Group is that they could not assist her anymore as the topics were repetitive. There is very little evidence of the benefits or impacts this type of support would have on the mother and I make no orders as to them, especially in light of the Independent Children’s Lawyer’s submission.
Conclusion
The impact of the mother’s use of alcohol and drugs on her parenting capacity and whether the children will be at an unacceptable risk of physical or psychological harm is the major issue in this case.
I can understand from the mother’s perspective that it may be disheartening that these orders provide the mother with less time with the children as compared to previous orders, and in particular with respect to her concerns that this would be adverse to the children. However, she has by consent of all parties been left with unsupervised time for a period short enough for her to engage positively with the children as well as seeing them at their activities, being involved at their schools, and having telephone contact.
I accept the Independent Children’s Lawyer’s submission that there are clearly limits to the mother’s capacity to use her time with the children positively.
I note that the mother in her letter dated 24 September 2009 says that she is concerned that there is an unfair emphasis on the future possibilities, the ‘“what if” that have never occurred in all these years’.
It is however clear that both the recent family report and the psychiatric report consistently support limited time periods with the children and state that any longer periods may place the children at risk of harm. The view of the report writers was affirmed by the Independent Children’s Lawyer. Even the first report by Dr C recommended that time the mother spend with the children be limited to periods of 3 to 4 hours (although he suggested full day contact was possible if there were no relapses after a period of 12 months).
The Court has now had time to review the mother’s progress and make an assessment as to the future. As discussed above I have found that the ability for the mother’s alcohol dependency to improve to a level where she could spend time with the children for longer periods unsupervised is low. This goes to the reasons for final orders.
I acknowledge that the mother is motivated to control her drinking in order to spend time with the children. Dr B indicates that she is “trying hard” and has “made good progress”. Ms R has stated that “Ms Sparkes clearly loves her children and is apparently doing a good job in reducing her alcohol intake”.
The reports acknowledge the mother’s willingness to control her drinking but it is clear from the other evidence that her current progress is not enough to minimise the risk of harm to the children. This evidence includes the following incidents:
a)In February 2009 the (omitted) bridge incident which involved intoxication;
b)In February 2009 the mother was caught driving under the influence of alcohol;
c)No abatement of seizures;
d)Leaving the children by themselves;
I give weight to the evidence (in both reports) that the mother lacks insight into her drinking and minimises the harm in significant events. Even though the mother may be making progress, there is still an unacceptable risk of harm to the children.
Other risk factors such as parentification which the Family report writer describes as “exceedingly dangerous”, also tip the balance in favour of less time.
Clearly, the fact that things may not have become worse and that there has been no actual incident in which the children have been harmed does not mean that there is no risk to the children in the future.
In finding there is a risk to the children of being in the mother’s care for long durations of time, this finding plays only a part, albeit a significant part, of my determination as to what is in the best interests of the children: M and M (1988) 166 CLR 69; [1988] HCA 68.
I have considered the impact of these orders on the children and weighed up the risks and benefits of these orders. These children are clearly and demonstrably loved by both parents. They love their parents in return. I take particular note of the following evaluation by the family report writer:
“Both X and Y appear to have a good relationship with each of their parents. Both children have had negative experiences as a result of their mother’s alcohol and drug dependence but have maintained admiration and respect for her”. (emphasis added)
I find there is a strong relationship between the children and both parents. In particular, the father is supportive of the children’s relationship with their mother and this will assist in maintaining a strong relationship between her and the children.
Although the mother spends time with the children at Karate and swimming, the children may change their extra-curricular activities as they grow older and develop. The orders allow the mother to spend time with the children at any extra-curricular activity (where the providers allow her to do so), rather than locking the children into any specific activity.
I am of the view these orders meet the objects of the Act, including to ensure that children have the benefit of a meaningful relationship with both of their parents consistent with the need to protect them from the risk of physical or psychological harm.
The orders provide for monitoring of alcohol. I accept that this is very humiliating for the mother, however the orders provide that this can be carried out discreetly and away from the children. I note that Order (5) of the orders of 20 November 2007 prescribe a method for testing to be carried out discreetly.
I also make orders in respect of the mother driving a motor vehicle with either or both of the children as passengers and that changeover is to occur by way of the father transporting the children. This is again to minimise any risk of harm.
The reports indicated that the time the mother spends be limited to a maximum of 4 hours and the orders reflect this. It was proposed at hearing that this amount of time was sufficient for the mother to be able to carry out activities with the children, such as watching a movie together. The Independent Children’s Lawyer indicated that they needed to spend meaningful time with the mother. I accept that four hour periods are preferable to two hour periods as it will allow the mother and children to have more meaningful time together. I have also provided some time for the mother to spend with the children on special occasions such as birthdays and Christmas as this time may also be spent meaningfully but only for short durations.
The family report writer indicated there was risk to the children with the mother in an un-supervised capacity. However, it was felt that this was an acceptable risk given the limited period of time, X’s demonstrated capacity to call for assistance, and the mother being restrained from driving the children. In the end, any element of risk also needs to be balanced against the children’s obvious affection for their mother and the desirability of maintaining a meaningful relationship between them. Additionally, submissions by the father’s counsel indicated there was lack of a readily available adult who could supervise those fours hours with the mother.
I do commend the mother for trying very hard to deal with her alcohol dependence and health issues.
For the above reasons I make the Orders as set out above.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Associate:
Date: 27 October 2009
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