Stilton and Neville (No 2)

[2020] FamCA 309

FAMILY COURT OF AUSTRALIA

STILTON & NEVILLE (NO. 2) [2020] FamCA 309

FAMILY LAW – PARENTING – No appearance by the father – undefended final hearing – where the father has not had face to face contact with the child for 3 years – where there is no evidence led by the father as to whether he has addressed his alcohol addiction – where spending time with the father could put the child at serious emotional or psychological harm – orders made for the child to live with the mother and spend no time with the father

Family Law Act 1975 (Cth) s 60CC

Banks & Banks (2015) FLC 93-637
Neville & Stilton [2018] FamCA 962
Tibb & Sheean [2018] FamCAFC 142

APPLICANT: Mr Stilton

RESPONDENT: Ms Neville

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2762 of 2015

DATE DELIVERED: 26 February 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 26 February 2020

REPRESENTATION

THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Watson & Watson Solicitors

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The call-over date of the 4 March 2020 at 2:00 pm be vacated.

2. The Applicant father submit to the solicitors for the Respondent mother within 14 days, notification of the address to which he wishes any further correspondence to be sent including an email address.

3. Orders be made in accordance with the Minute of Orders sought by the mother, contained in her Case Outline document at paragraphs [1] to [6], and with paragraphs [3] and [4] of the orders proposed by the Independent Children’s Lawyer in her Case Outline document as follows, and otherwise the proceedings be dismissed:

   1) That the mother have sole parental responsibility for the child X born … 2013.

   2) That the child live with the mother.

   3) That all existing parenting orders be discharged.

   4) That all pending Applications and Responses be dismissed.

   5) That the Applicant:

   (a) Not assault, molest, harass, threaten or otherwise interfere with the Respondent or a person with whom the Respondent has a domestic relationship.

   (b) Not engage in any conduct that intimidates the Respondent or a person with whom the Respondent has a domestic relationship.

   (c) Not stalk the Respondent or a person with whom the Respondent has a domestic relationship.

   (d) Not enter premises at which the Respondent may from time to time reside or work.

   (e) Not to approach or contact the Respondent by any means whatsoever except through the Respondent’s legal representative or as agreed in writing or as permitted by an Order or Direction under the Family Law Act 1975.

   (f) Not approach or contact the Respondent by any means whatsoever except through the Respondent’s legal representative or as authorised by a Parenting Order under the Family Law Act 1975.

   6) That the mother provide to the father, by forwarding same to his last known residential address and email address, once in each 12 month period, a photograph of X and a summary of her progress.

   7) For the purposes of Order 6 the mother is not required to provide a forwarding address or responding email address.

4. Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to rXw to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2762 of 2015

Mr Stilton

Applicant

And

Ms Neville

Respondent

EX TEMPORE REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

1. These are reasons for judgment in the matter SYC2762/2015. These are parenting proceedings concerning the child, X, born in 2013. The parents were married in October 2010. They separated in October 2013. Orders for divorce took effect in 2015.

2. As I understand it, the father commenced proceedings in the Federal Circuit Court of Australia in late 2015.  After a number of interim listings in that Court, the matter was transferred to the Family Court of Australia on 25 May 2017. Consideration was given to placing the matter into the Magellan program. But this did not happen. It came to be listed for a final undefended hearing on 26 February 2020 in circumstances outlined in my earlier reasons for judgment relating to proceeding in the absence of the Applicant father.

3. When the matter was heard on 26 February 2020, the Respondent mother was represented by Mr Harper of counsel and Ms Smith appeared as the Independent Children’s Lawyer. The matter was called twice before the hearing proceeded, but there was no appearance by the Applicant father.

4. The mother filed a helpful case outline document, as did the Independent Children’s Lawyer. I have had regard to both those documents and to the chronology of events provided by the Applicant mother.  I will refer to that only as necessary for the purpose of these reasons.

5. The outline oral submissions of the mother I also incorporate by reference, but I do not consider it necessary to articulate those orally. I will refer to the submissions of the Independent Children’s Lawyer also, as necessary, in the course of these reasons.

6. The best interests of the child are the paramount consideration in any parenting proceedings. There is no application before me for any order for either shared parenting or equal shared parental responsibility. The mother and the Independent Children’s Lawyer both seek an order that the mother have sole parental responsibility.

7. In determining the best interests of the child I have had regard to all the factors articulated in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). In accordance with the decision in Banks & Banks (2015) FLC 93-637 and the more recent Full Court decision of Tibb & Sheean [2018] FamCAFC 142. Although I have considered each of the s 60CC factors, it is only necessary to discuss several of them. In particular, the question of risk arising from evidence of alcohol abuse by the father was the focus of evidence in submissions, as was the absence of evidence of the father’s parenting capacity. By contrast, there was focus in the submissions and evidence upon the clear capacity of the mother to provide for the needs of the child. Accordingly, my reasons will address the matters that were primarily the focus of submissions.

8. It is necessary to briefly record the following matters. The father in the course of the proceedings was referred for an assessment by Dr B.  This assessment was dated 27 February 2018 and released to the parties on 1 March 2018. In that thorough assessment Dr B made the following observations:

   55. Independently of that Mr Stilton does present at times with having difficulties around management of alcohol.  I suspect that the exuberance of his personality from time to time can lead him in to errors of judgement around alcohol use. Until recently he was consuming alcohol at a problematic (hazardous) level.  His biological tests confirm a long-standing pattern of such behaviour. Despite some defensiveness Mr Stilton appears to have some insight into that for instance he made the point that he would not drink when he was around X, recognising that alcohol was a problem in terms of being able to attend to X’s needs. He also appears to have some insight into the undesirability of exposing X to him when he is intoxicated.  In contrast to this, Ms Neville (through her documents) claims that Mr Stilton cannot control his use of alcohol and is intoxicated when around X, or when Skyping her, issues which Mr Stilton denies.

   57. A critical issue remains Mr Stilton’s unwise alcohol use and the fact that despite engagement in litigation through 2017, in which his alcohol use was centre stage, he continued to drink in a hazardous pattern. His score of 17 on the AUDIT in 2017 for instance, shows the extent to which in 2017 he was drinking in a range indicative of alcohol dependence. It is likely that Mr Stilton will need treatment if he is to reduce his alcohol use over and above his belief that if his relationship with X is restored he will have no further incentive to drink unwisely. I suspect he lacks some insight at times when talking to his psychologists, and he needs to see an addiction specialist.  In my view he would benefit from a mix of psychological treatment combined with an anti craving agent such as Campral or Baclofen to assist in reducing his proclivity to alcohol abuse should he relapse. Mr Stilton does point out that partly his heavier drinking is because he does not have contact with X and if he did have such contact he would not have any reason to drink so heavily and would have a powerful disincentive to so do so.

9. I interpolate here that it was clear on the evidence that the father has not had any face to face time with the child since May 2017, that is, shortly before the order was made to transfer the proceedings to this Court.

10. Dr B continued at paragraphs 58 and 59 respectively:

    Alcohol use does represent both a real and reputational risk to Mr Stilton, and he needs to recognise that, and respond to it. Whilst he is a man who recognises his child’s needs, is aware of the need to ensure her safety, and to manage himself responsibility around her, I suspect he might from time to time lapse in his resolution to refrain from alcohol use when engaged with her.  Whilst it is likely in X’s best interest to enjoy a good relationship with her father, the enmity between Mr Stilton and Ms Neville is such that if he is perceived as using alcohol, Ms Neville will cease contact.  This interrupts the continuity of contact the development of a good relationship between father and child, and should be prevented.  The continuity of contact between the child and their parent is important to promote attachment and identification.  However, Mr Stilton has to recognise his contribution to this process by his continuation of hazardous drinking through 2017, and he needs to firmly get that under control by making a genuine commitment to treatment.

    Mr Stilton will benefit from adhering to a proper controlled drinking regime (3 standard drinks on three occasions only per week). Over time, and providing he adheres to that regime his GGT, AST and ALT markers should reduce (despite their likely remaining some elevation due to his fatty liver condition) and he should have low CDT readings. In the latest test results there is a clear reduction in his GGT level following what is now about sex [sic] weeks of abstinence.  For this reason I am suggesting a process whereby contact should be reinstated, Mr Stilton should engage with an addition specialist and possibly following advice from that specialist, seek anti craving agents, and remaining in treatment for a 12 month period.  Treatment typically begins with weekly or fortnightly sessions but should graduate to a relapse prevention model after a few months, whereby sessions would be monthly or even 6 weekly.  During that 12 month period LFT tests at 3, 8 and 12 months should occur, hopefully they will show a pattern of reducing enzyme markers as the most recent test provided to me shows, and some random CDT tests should also occur.  I see no need for ongoing urine screens for drug detection, as I do not believe that is warranted in this situation.

11. The proceedings came before McClelland J (as he then was) on 12 November 2018. On that occasion the father appeared and was self-represented.  In ex tempore reasons for judgment given that day, McClelland J made the following observations, in Neville & Stilton [2018] FamCA 962 at [5]:

    In this matter, there is a significant issue as to whether the father’s parenting capacity is impeded as a result of substance abuse and, in particular, alcohol addiction.  As a result of the father’s issue with alcohol abuse, there are concerns regarding the harm that could be caused to the child if she were to spend time or communicate with father.  As a result of those concerns, the child has not spent time with the father since 8 April 2017.  The father’s presentation during the course of these proceedings satisfied me that those concerns are real.

12. At [6] McClelland J continued:

    Dr [B], who has been appointed as the Single Expert in this matter, has provided a report to the parties recommending that the father undergo certain programs to address his substance abuse issues, prior to the child spending time with him in a supervised context. During the course of the hearing today, the father has indicated that he has undertaken various of those programs and that he is, to put it mildly, “sick” of the fact that he is required to undergo any further programs.  The Independent Children’s Lawyer submitted that she does not consider that the father has properly implemented Dr [B’s] advice. Despite the father’s protests, it is imperative, in my view, that he revisits Dr [B’s] advice.

13. In the orders made by McClelland J on 12 November 2018, he included an order dismissing an Application in a Case filed by the father on 18 September 2018 and a Response filed on 9 November 2018.  However, in relation to that order, McClelland J made a further order in the following terms:

    Order 3 is without prejudice to the Father’s right to bring a further application with respect to spending time with X once he has relocated his own residence to Queensland.

14. There is evidence in Dr B’s report that the father told Dr B that he wanted to be “a good dad” but he had found himself unable, at least up to the time when he saw Dr B, to shoulder the burden of parental responsibility effectively. The report of Dr B was thorough and gave the father clear guidance about steps he could take if he wished to address his alcohol addiction and set himself upon a path to return to a capacity to parent effectively.

15. As the Independent Children’s Lawyer submitted, there is no evidence that the father has ever responded adequately to the recommendations of Dr B.  The observations of McClelland J on 12 November 2018 and the submissions made by the Independent Children’s Lawyer on that occasion indicate that the father had not up to that point, some 10 months after the report of Dr B, taken any steps to adequately address his alcohol addiction.  After 12 November 2018, there is no evidence that the father ever availed himself of an opportunity to bring any further application to the Court supported by evidence to obtain orders that he spend time with a face to face supervised or unsupervised with the child.

16. The father has filed no evidence in the proceedings since November 2018 and, as already observed in my earlier reasons concerning proceeding undefended, he failed to update an Address for Service with the Court, thereby impeding any contact by or with the Court. Despite some evidence that the father was aware of the hearing on 26 February 2020, overall on balance, the evidence satisfies me that he disengaged with the proceedings at some point after November 2018.

17. I take account also of the evidence given by the mother that the father failed to spend time with the child in accordance with Court orders in 2016 and that at times the child was distressed at changeover. There was also evidence given by the mother that the father had an erratic history of contact with the child in 2017 prior to face to face contact being ceased. The evidence of the mother satisfies me that the father has demonstrated a very compromised capacity, if any capacity at all, to cooperate in parenting the child.

18. The evidence satisfies me that spending time with the father could put the child at serious emotional or psychological harm.  This is because of the father’s likely ongoing struggle with alcohol consumption and the complete absence of any contemporary evidence of any capacity, let alone an adequate capacity, to parent the child.  I have no evidence from the father about how or where he could spend time with the child or care for the child. I have no proposal supported by any evidence that the father could spend even supervised time with the child. 

19. Moreover, it is now almost three years since the child has spent face to face time with the father. I could not be satisfied that any re-introduction of time would necessarily be in the best interests of the child despite the fact this would mean the child does not have much prospect of a meaningful relationship with the father.  Even if time with the father was to be re-introduced, in light of the age of the child and the significant gap of time since the child last had contact with the father, such re-introduction would require a careful and graduated approach.  Again, there is no evidence before me which would indicate how any such graduated re-introduction could possibly take place.

20. I refer to the presumption of equal shared parental responsibility in the Act. I am satisfied that the presumption of equal shared parental responsibility should be rebutted in the best interests of the child. I am satisfied that the mother has demonstrated a more than adequate capacity to shoulder the responsibilities to parent the child including to provide for the emotion and psychological needs of the child. As already noted, there is no evidence which could go any distance to support a similar conclusion in relation to the father.

21. For these reasons I am satisfied the orders set forth at the commencement of the judgment should be made.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 26 February 2020.

Associate:

Date:  1 May 2020