Varela & Baum
[2023] FedCFamC2F 427
•28 April 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Varela & Baum [2023] FedCFamC2F 427
File number: PAC 6232 of 2022 Judgment of: JUDGE LIOUMIS Date of judgment: 28 April 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives – Allegations of unacceptable risk – Alcohol misuse – Mental health concerns – Family violence – Interim orders Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 65D(1), 69ZL
Mental Health Act 2007 (NSW)
Cases cited: Bant & Clayton [2015] FamCAFC 222
Deiter & Dieter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Isles & Nelissen (2022) FLC 94-092
M & M (1988) FLC 91-979
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Salah & Salah (2016) FLC 93-713
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 139 Date of hearing: 12 April 2023 Place: Sydney Counsel for the Applicant: Mr Silva of Counsel Solicitor for the Applicant: Borg Boga & Co Solicitor for the Respondent: Ms Rutkowska as agent Solicitor for the Independent Children's Lawyer: Ms Mason ORDERS
PAC 6232 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VARELA
Applicant
AND: MS BAUM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
28 APRIL 2023
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Orders 1, 2, 3, 4, 5, 6 & 7 of the interim Orders dated 21 December 2022 are discharged.
Living arrangements
2.The child X born in 2021 (hereinafter “the child”) live with the Father.
3.To effect Order 2 herein, changeover shall occur at 6pm on 28 April 2023 at a location agreed between the parties in writing or otherwise at B Petrol Station Suburb C located at D Street, Suburb E, NSW.
Spend time with arrangements
4.The child spend time with the Mother as agreed between the parents in writing but failing agreement as follows:
(a)Each week on three (3) occasions on days and times as agreed but failing agreement each Tuesday, Thursday and Saturday from 8 am until 12 pm.
(b)On Mother’s Day from 8 am until 12 pm.
(c)On Christmas Day from 8 am until 12 pm.
(d)On the Mother’s birthday from 8 am until 12 pm.
(e)On the child’s birthday from 8 am until 12 pm.
5.Provided the Mother’s results from CDT testing set out in Order 13 herein show social and/or recreational levels of alcohol consumption, for three (3) consecutive tests, the Mother’s time in Order 4(a) herein shall be expanded to be from 8 am to 5 pm on three (3) occasions each week.
6.At the Mother’s instigation, the Mother has a video call with the child between 5.30 pm and 6 pm each Monday, Wednesday and Friday via the Father’s phone and the Father is to do all such things necessary to facilitate such call. The Father is to ensure that the child, as much as reasonably possible, is free from distractions during calls with his Mother.
7.Unless otherwise agreed between the parents in writing, changeover occur at B Petrol Station Suburb C located at D Street, Suburb E, NSW.
Communication
8.The parents are to communicate with each other on all non-emergency or non-urgent matters relating to the child using the Our Family Wizard application. The parents are at liberty to call and/or send text messages to each other for urgent medical or other emergencies.
Restraints
9.The Mother is restrained by injunction from consuming alcohol within twenty-four (24) hours prior to spending time with the child and during any time the child spends with her.
10.The Mother is restrained by injunction from consuming illicit substances when the child is in her care or twenty-four (24) hours prior to the child coming into her care.
11.Without admissions, when the child is in their respective care, each parent is restrained from:
(a)Physically disciplining the child or permitting any other person to do so.
(b)Questioning or interrogating the child about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the child.
(c)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence.
(d)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence.
(e)Permitting the child having access to any of the documents filed in these proceedings.
(f)Communicating any information intended for the other parent through the child.
(g)Causing the child to be a medium in any way between the Mother and the Father or between the Mother and the Father and any other person.
BAC testing
12.The child’s time with the Mother in accordance with these Orders is subject to her complying with Blood Alcohol Concentration (hereinafter “BAC”) testing as follows:
(a)The Father purchase a handheld breathalyser device with an Australian Standard AS3547 certification forthwith and within five (5) days of the date of these Orders.
(b)The Mother is to submit to a breathalyser test at the commencement and conclusion of her time with the child, with such test to be performed at changeover under supervision of the Father or his nominee.
(c)In the event that the breathalyser device purchased by the Father is compatible with a phone application or subscription, the Mother is to do all things necessary to ensure this is utilised when submitting to alcohol breath tests and the Father receives notifications and/or reports to his mobile phone.
(d)The Father is to retain possession of the breathalyser device and ensure it is brought to changeover by himself or his nominee effecting changeover on his behalf.
(e)At the request of the Independent Children’s Lawyer and/or the Mother or Mother’s solicitor, the Father is to provide data available from the breathalyser device.
(f)In the event that the Mother returns a BAC reading higher than zero (0), or shows a faulty reading, or does not record a reading, the Mother’s time with the child shall be suspended until further Order of this Court or agreement of the parties and the parties are at liberty to relist the matter upon seven (7) days’ notice.
CDT testing
13.The Mother shall submit to random blood tests to identify the level of Carbohydrate Deficient Transferrin in the her blood (hereinafter “CDT testing”) and such testing shall occur as follows:
(a)The Mother is required to submit to CDT testing within forty-eight (48) hours of notification of a request from the Independent Children’s Lawyer to the Mother and/or the Mother’s solicitor, with a copy of the notification being sent to the Father’s legal solicitor or the Father directly if self-represented.
(b)Such requests for CDT testing occur on no more than two (2) occasions per month until the Mother achieves a CDT return result of less than 2.1 per cent on three (3) consecutive occasions, and thereafter shall occur on not more than once per month.
(c)The tests be conducted at a laboratory accredited by the National Associate of Testing Authorities Australia, in accordance with the current Australian Standard for the collection and detection of drugs of abuse.
(d)The Mother do all acts and things and sign all documents to authorise the testing laboratory to release the test results directly to the Father, the Father’s lawyers, the Mother’s lawyers and the Independent Children’s Lawyer.
(e)The parties are at liberty to provide a copy of these Orders to the referrer of the CDT testing and/or the laboratory conducting the CDT testing.
(f)The cost of the tests be borne solely by the Mother.
Hair drug and alcohol testing
14.The Mother make an appointment and attend for hair collection at a U Services (hereinafter “U Services”) Clinic or nominee for hair drug and alcohol testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:
(a)The Mother is required to maintain her head hair at a length of not less than six (6) centimetres to test for a 6-month period from the date of the collection of hair.
(b)The Mother’s head hair is not to be cut, bleached or dyed between the date of this Order and the time of collection of hair.
(c)Not later than 4 pm on 1 June 2023, the Mother is required to make an appointment with U Services by telephoning … for the purpose of providing a hair sample for hair drug and alcohol testing purposes.
(d)Each party (and, if legally represented, their legal representative) is at liberty to provide U Services with a copy of these Orders.
(e)The Mother is to attend at a U Services Clinic or nominee and submit to the supervised collection of a hair sample from the Mother on 30 June 2023 or first available appointment closest to this date.
(f)The Mother is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this Order also hereby authorising U Services or nominee to provide the results of each test to all parties, including the Independent Children’s Lawyer, and their legal representatives upon receipt of such test results.
(g)The hair drug and alcohol test may screen for alcohol EtG and drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required.
(h)U Services is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body. U Services’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with the International Society of Hair Testing (“SoHT”) guidelines, cost, and time required for results to be made available.
(i)The Independent Children’s Lawyer is to submit an application for grant with Legal Aid NSW with respect to funding for the hair alcohol and drug test by no later than 4 pm on 24 April 2023.
(j)In the event that the funding is refused then the Independent Children’s Lawyer is to notify the parties as soon as practical, and the cost of the test is to be borne solely by the Mother.
Child care
15.The Father shall forthwith enrol the child into a child care centre for no less than two (2) days per week. In relation to this enrolment:
(a)The Father shall provide the Mother with the name and details of the child care centre; and
(b)The child shall attend on the days enrolled unless he is unwell.
16.Both parents shall be at liberty to make enquiries in relation to the child’s attendance and progress at the child care centre.
17.The parties are permitted to provide a copy of these Orders to any day-care, preschool education or care provider for the child.
Future listing
18.The matter is next listed for directions before a Judicial Registrar on 8 May 2023 at 12pm.
BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS THAT:
19.The Mother, her servants and/or agents, are restrained by injunction from:
(a)Bringing the maternal grandfather Mr G to changeover or having him present at or facilitate changeover on her behalf; and
(b)Bringing the child into contact with the maternal grandmother’s partner Mr H by any means whatsoever.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to the child X born in 2021 (hereinafter “X”). There are competing applications for where X will live.
The father and Independent Children’s Lawyer (hereinafter “ICL”) contend that X is at an unacceptable risk of harm in the mother’s care as a result of her alcohol misuse and mental health issues. It is further contended that these risks of harm cannot be ameliorated while X is living with the mother. The father’s interim application before the Court is for X to live with the father, the mother’s time with the child to be limited, and for a comprehensive suite of orders for regular testing of the mother in respect of alcohol usage.
The mother contends that X is not at an unacceptable risk of harm in her care. The mother disputes the findings of hair follicle tests which cover the period of mid-April to mid-December 2022 which class the mother’s consumption of alcohol as “chronic excessive alcohol consumption”. [1] The mother contends that she was subjected to violence by the father and that the father continued to be aggressive and coercive towards her and her family subsequent to X’s birth.
[1] Affidavit of Dr J filed 16 February 2023, page 50 [2.8].
The mother also contends that her mental health is well managed and she has proactively sought and followed the advice of her psychologist.
EVIDENCE
The father relied on his Case Outline document filed 11 April 2023 and the following documents:
(a)Amended Initiating Application filed 27 January 2023;
(b)Affidavit of Mr Varela filed 16 February 2023;
(c)Affidavit of Mr Varela filed 11 April 2023 in respect of paragraphs one to and including seven only;
(d)Affidavit of Dr J filed 16 February 2023;
(e)Affidavit of Ms F filed 27 February 2023;
(f)Affidavit of Mr K filed 28 February 2023;
(g)Affidavit of Ms L filed 28 February 2023;
(h)Notice of Child Abuse, Family Violence or Risk filed 11 November 2022; and
(i)Further Expert Report of Dr J dated 6 April 2023.
The mother relied on her Case Outline document filed 11 April 2023 and the following documents:
(a)Affidavit of Ms Baum filed 1 March 2023;
(b)Affidavit of Mr G filed 28 February 2023; and
(c)Affidavit of Ms M filed 28 February 2023.
The ICL relied on her Case Outline Document filed 1 March 2023.
All parties also relied on documents from subpoena bundles that were tendered during the course of submissions.
BACKGROUND
The parties commenced a relationship in 2019. They separated around June 2020.
There is one child X who was born in 2021. Following X’s birth he has lived with the mother on a full time basis.
The parties arranged the father’s time with X on an ad-hoc basis from June 2021 to the beginning of 2022. It is agreed that the time the father spent with X included periods where there were disputes between the father and the maternal grandfather.
The father spent no time with X from the end of January 2022 until May 2022. During this period, the parties attempted mediation as to how the father would spend time with X but ultimately no agreement was reached.
In May 2022, the father spent unsupervised time with X from 5 pm until 7 pm on a weekly basis. The parties reached an agreement to increase the father’s time with X to twice a week. The father saw X on Wednesdays from 3 pm until 7 pm, and on Sundays from 12 pm to 4 pm.
Each parent makes allegations of illicit drug use and excessive alcohol consumption by the other parent. In December 2022, the matter was before the Court and interim Orders were made for both parents to submit to hair follicle testing. The results of that testing were released in January 2023 and as a consequence, the father amended his interim application to include an application for interim change of residence on the basis that the mother is an unacceptable risk to the child.
At the time of the interim hearing:
(a)The father lives in a four bedroom home with flatmates Ms L and Mr K and their two children.
(b)The father works full time from 8 am until 5 pm on weekdays and is able to work from home and change his working hours as needed.
(c)The mother and X live with the maternal grandfather father Mr G (hereinafter “the maternal grandfather”) and the mother’s stepmother Ms N (hereinafter “Ms N”).
(d)The mother is not in employment and cares for the child on a full time basis. The maternal grandfather and his partner are both retired and do not work.
(e)Neither parent has re-partnered.
PROPOSALS
The father and ICL seek orders contained in the Minute of Order provided by the ICL.[2] Those orders provide inter-alia that:
[2] Exhibit ICL1, pages 5-8.
(a)X lives with the father.
(b)X spends time with the mother as agreed between the parties or failing agreement, on three occasions each week from 8 am until 12 pm, with time to increase to 8 am until 5 pm on three occasions per week if the mother provides results from three consecutive Carbohydrate Deficient Transferrin (hereinafter “CDT”) tests that show social and/or recreational levels of alcohol consumption.
(c)At the mother’s instigation, she and X have a video call between 5.30 pm and 6 pm each Monday, Wednesday and Friday.
(d)The mother is restrained by injunction from bringing or permitting the maternal grandfather to be present at changeover.
(e)The mother is restrained by injunction from consuming alcohol and illicit substances within 24 hours prior to and during any time she spends with X.
(f)The mother shall submit to a breathalyser test, under supervision, at the commencement and conclusion of her time with X and in the event the mother returns a Blood Alcohol Concentration reading higher than zero or does not record a reading, her time with X shall be suspended.
(g)The mother shall submit to random CDT testing within 48 hours’ of notification of a request by the ICL and/or her solicitor twice per month until the mother returns a CDT result of less than 2.1 per cent on three consecutive occasions, where the testing will reduce to once per month.
(h)The mother shall submit to hair drug and alcohol testing involving chain-of-custody procedure, with the ICL to submit an application for a grant of Legal Aid NSW with respect to funding.
(i)The parents shall communicate via the Our Family Wizard application.
The mother seeks that:
(a)The Orders dated 21 December 2022 continue, with the exception of Order 3, being an order for the child to have video calls with the father, which is to be discharged.
The parties agree that the maternal grandfather will not attend changeover, and further agree that X will not be brought into contact with the maternal grandmother’s partner Mr H. Beyond that, there is no agreement.
ISSUES IN DISPUTE
The issues for determination are as follows:
(a)Does either parent pose an unacceptable risk of harm to X?
(b)If so, how can the risk be ameliorated?
(c)Where should X live?
(d)What time should X spend with each parent?
THE LAW
The Full Court in Salah & Salah (2016) FLC 93-713 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode & Goode (2006) FLC 93-286. It also affirmed that the procedure for making interim orders is a truncated process in which the Court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.
Pursuant to section 65D(1) of the Family Law Act 1975 (Cth) (hereinafter “the Act”), subject to certain sections, a Court may make such parenting order as it thinks proper. In deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration. The children’s best interests are ascertained by a consideration of the objects and principles in section 60B of the Act, and the primary and additional considerations in section 60CC of the Act.
As set out in section 60CC(2) of the Act, the primary considerations are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the Court is to give greater weight to the need to protect the child from harm or being subjected to, or exposed to, abuse, neglect or family violence.[3]
[3] Family Law Act 1975 (Cth) s 60CC(2A) (“the Act”).
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 stated at [100] that:
…Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The assessment of risk thus requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event.[4] I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[5] The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances, bearing in mind of course the inherent limitations of an abridged hearing.
[4] Deiter & Deiter [2011] FamCAFC 82 [61].
[5] M & M (1988) FLC 91-979.
It is to be observed that the reference to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect children from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.[6] In that way, where risk is alleged in interim parenting proceedings, a conservative approach or “one which is likely to avoid harm to a child” is warranted.[7]
[6] Bant & Clayton [2015] FamCAFC 222 at [99].
[7] Marvel & Marvel (No.2) [2010] FamCAFC 101 [120].
As for risk, or unacceptable risk which is at the heart of the father’s case, the Full Court clarified in Isles & Nelissen (2022) FLC 94-092 that past allegations of violence and abuse are to be determined by reference to section 140 of the Evidence Act 1995 (Cth). The Full Court added that the assessment of unacceptable risk cannot be measured by the civil standard of proof.[8] Rather, I look to realistic possibilities.
[8] Isles & Nelissen (2022) FLC 94-092 [86].
As this is an interim hearing, I may give my reasons in short form,[9] and I am only required to address the relevant considerations as presented by the parties through the evidence.
PRIMARY CONSIDERATION – RISK OF HARM
[9] s 69ZL of the Act.
Alleged risks posed by the mother
The father acknowledges that X has a meaningful relationship with both parents, and further concedes that the mother has to date been X’s primary caregiver. However, the father alleges the mother poses an unacceptable risk of harm to X. There are three limbs to the father’s assertion of unacceptable risk:
(a)That the mother has persistently and excessively consumed alcohol, and transferred alcohol to X through her breastfeeding;
(b)That the mother has poorly managed mental health issues; and
(c)That X is exposed to family violence and alcohol misuse by the mother and members of the mother’s extended family.
The Mother’s alcohol usage
The Father’s evidence
The father’s affidavit is replete with examples of the mother’s excessive alcohol usage, with some of the examples pre-dating the mother becoming pregnant. It was submitted that those examples support the father’s proposition that the mother’s excessive consumption of alcohol has a long standing history.
The father also says that the mother continued to breast feed when affected by excessive consumption of alcohol.
The father gives evidence that in December 2021, there was an incident where he and his family attended for dinner at the mother’s home. It was intended that there would be a family dinner and then the parents together with X would go and see Christmas lights. The father says that when he arrived the mother was intoxicated and that she continued to consume alcohol whilst dinner was occurring. The father says that the mother took exception to his attempts to ask her to cease drinking.
The father alleges that there was also an altercation between himself and the mother on that occasion where the mother pushed the father while he was holding X. The father says that he yelled at her to stop and the mother then ran through the hallway falling over before screaming to everyone “[Mr Varela] just abused me!”
The father says that he declined to make a police statement because he feared the mother would sever his contact with X. He determined that it was protective of X to remain available to spend time with him.
The father gives evidence that on spending time with X in January 2022, he observed the mother to be intoxicated and that she was also breastfeeding the child.
In January 2023, the father consulted Dr O about the mother’s drinking. The father’s evidence is that the mother overheard the conversation and suspended the father’s time with X.
The Mother’s evidence
The mother’s evidence in relation to alcohol consumption is that she prioritises X and his health and safety in everything that she does and would not do any activities that may cause harm to or endanger X.
The mother’s evidence is that when she discovered that she was pregnant she made a conscious effort to reduce her alcohol consumption and ultimately stop drinking.
Following X’s birth, the mother says that she researched facts about breastfeeding and drinking alcohol to make sure that she could prioritise X’s health and safety. The mother says that she shared this information with the father. The mother alleges that she began to drink occasionally two months after X was born and that she ensured that she drank around X’s breastfeeding routine.
The mother denies that she drinks the quantities outlined in the toxicologist report discussed below. She estimates that on average she drinks two to four standard drinks per day, and that she has taken steps to ensure that she does not consume any alcohol in the presence of X. The mother also says that she makes sure to drink after she has finished breastfeeding for the day. It the mother’s evidence that she makes sure she drinks after X’s needs are met for the day and he is asleep, and that there is someone else present in the home when she is drinking. The mother says that she consumes her alcohol in her bedroom so that X does not witness her drink, and for that reason neither the maternal grandfather nor Ms N have observed her drinking.
In his affidavit, the maternal grandfather says that he has never seen the mother appear to be under the influence of alcohol and has never seen her to be sedated or sleepy to the point of non-arousal. He says that he has never seen the mother to be affected by alcohol such that she could not provide for X and meet his needs.
The mother is also supported by an affidavit from the maternal grandmother who says she has only observed the mother drink alcohol on rare occasions. The maternal grandmother says this would include a standard glass with a meal, at night time, when she is sleeping over. The maternal grandmother says that she has seen the mother declined invitations to parties because she has to look after X, and has observed that at social functions the mother would drink water. She says that she has “never witnessed any concerning behaviour from [Ms Baum] when she consumes alcohol.”
The mother has also undertaken two Carbohydrate Deficit Transferrin tests in March 2023. The mother submitted that each of these tests have been negative for excessive alcohol usage.
The mother relies on reports from the Department of Communities and Justice (DCJ) which do not find the report of risk of alcohol misuse by the mother substantiated.[10] I place limited weight on these reports as I have not received the information on which the assessment was based and as a result cannot determine whether DCJ had the hair follicle results and Dr J’s report at the time they made their assessment.
[10] Exhibit M4; Exhibit M5.
The mother’s application contains no orders for ongoing alcohol testing for either parent.
It was only during the course of submissions that the legal representative for the mother indicated that the mother would agree to attend therapy in relation to her alcohol consumption, and the maternal grandfather would agree to an undertaking to notify the father if the mother consumed alcohol to excess.
Independent evidence
The mother undertook a hair follicle test in December 2022. There were two samples taken and the Ethyl Glucuronide (hereinafter “EtG”) MS Screen results were:
(a)For the sample length of 0-3.9cm, a result of 66.6 pg/mg; and
(b)For the sample length of 3.9-7.8cm, a result of 68.3 pg/mg.
A result higher than 30 pg/mg is positive for excessive consumption of alcohol.
The father undertook a hair follicle test in December 2022. There was one sample taken and the Ethyl Glucuronide MS Screen result was:
(a)For the sample length of 0-3.9cm, a result of 21.7 pg/mg.
A result between 2 and 29.9 pg/mg is positive for low to moderate consumption.
The results were analysed by Dr J (hereinafter “Dr J”) who is a Pharmacologist, Forensic Toxicologist and Chemist. Dr J was initially engaged by the father, and subsequently the mother through her solicitor asking a series of questions. He provided an analysis within his affidavit.
According to Dr J, because an amount of recent hair growth resides under the scalp, the two weeks immediately prior to the collection is not included in the time period. Therefore, as to the mother, Dr J opines that the time period represented by the 0 - 3.9 cm segment is approximately mid-August 2022 to mid-December 2022, and the time period represented by the 3.9 -7.8 cm segment is approximately mid-April 2022 to mid-August 2022.
Dr J was asked to provide an opinion as to the usage and frequency of the mother’s alcohol consumption. He firstly outlined how hair follicle testing results are assessed with reference to The Society of Hair Testing (SoHT) and then said:
2.7 Whilst only an approximation, it is estimated that the average ingestion of 60 grams, or six standard drinks, per day is required to exceed a EtG concentration of 30 pg/mg i.e approximately 42 standard drinks per week.
2.8 It is estimated from the provided hair test results of [Ms Baum]’s that she consumed an average of 6 or more standard drinks daily throughout the time period represented by the two hair segments i.e mid-April 2022 to mid-December 2022. The results suggest that the pattern of consumption would be regarded as chronic excessive alcohol consumption.
2.9 It is possible that within the time period represented by the hair samples, there have been periods of little, if any, use of alcohol and conversely periods of greater use of alcohol. That is whilst an average, this does not infer that consumption was daily however it is likely to have been regular and if not daily, the volume consumed when drinking would have exceeded an average of 6 standard drinks.
As to the father, Dr J opines that:
3.2 An EtG result of 21.7 pg/mg is consistent with the regular consumption of alcohol within the time period represented by the hair sample.
3.3 The amount consumed is not likely to have exceeded 6 standard drinks daily and may reasonably represent the social or recreational consumption of alcohol.
A series of questions were also posed to Dr J from the mother’s solicitor, including[11]:
2. Is it possible that despite a hair sample returning an EtG concentration of approximately 66.6pg/mg 68.3pg/mg, [Ms Baum] did not consume 6 or more standard drinks on average per day and that her alcohol consumption was much lower?
2.1 An EtG of approximately 66.6 pg/mg 68.3 pg/mg is most likely the result of consuming at least 6 standard drinks per day on average.
2.2 That said, as stated above, if shampoo or other hair product is used that contains EtG, this may contribute to the EtG concentration in hair. The amount of EtG that may be contributed from hair products cannot be reliably determined.
3. Is it possible that [Ms Baum] did not experience any of the impacts on her daily functioning as noted at paragraph 4 of your report, even assuming that her level of alcohol consumption was as suggested in your report?
3.1 The described impacts on [Ms Baum]’s daily functioning as noted at paragraph 4 of my report dated 15 February 2023, assumes a steady pattern of consumption that would result in an increasing blood alcohol consumption.
3.2 The impact on daily functioning as noted at paragraph 4 of my report dated 15 February 2023, assumes that the blood alcohol concentration of [Ms Baum] exceeds 0.03% during a drinking session.
3.3 It is possible that if [Ms Baum] consumed alcohol very slowly i.e one or less standard drink every hour, her blood alcohol would remain below 0.03% and she may not experience any of the impacts on her daily functioning as noted at paragraph 4 of my report dated 15 February 2023.
[11] Exhibit ICL4, pages 4-5.
The mother’s evidence is that she drinks between two and four standard alcoholic drinks a day. She does not consider her alcoholic consumption to be excessive nor does she concede that her level of alcohol consumption has impacted upon her parenting.
There is no evidence by the mother that she used hair products that contained alcohol or that she drank slowly over several hours.
Surgery consultation notes recorded by the mother’s treating clinical psychologist Ms P (hereinafter “the mother’s psychologist”) were tendered. These records show that on 9 August 2019 the mother reported that was “monitoring [her] ETOH use,” that she “starts drinkign [sic] after 12 o clock [sic]” and that she was encouraged to use methods for limiting her alcohol usage including alternating a glass of wine with a glass of water.[12]
[12] Exhibit F2.
Discussion
The mother disputes the father’s claims of her excessive alcohol usage, and on an interim basis I cannot make findings in relation to the father’s assertions.
I have however paid particular regard to the hair follicle testing that was undertaken in December 2022 by both parties and the results therein. I am satisfied that when considering the results in the hair follicle testing and the report by Dr J, that on an interim basis there is an unacceptable risk that the mother has at least since April 2022 consumed alcohol in quantities that would satisfy a classification of “chronic excessive alcohol consumption”.
I have also had regard to the mother’s evidence in respect of her consumption of alcohol. The mother’s explanation that she consumed between two to four standard drinks per day is inconsistent with her hair follicle results. It is implausible that if the mother’s usage was at the level nominated by her in her affidavit that this would have resulted at a level that is consistent with an average usage of six standard drinks per day for the period of April 2022 – December 2022.
Throughout this significant period of time, there is a consistent reading of alcohol usage in the excessive consumption range. X was around one year of age during this period and therefore dependent on the mother for his day to day care. It is not credible that the mother would be able to sustain a pattern of alcohol usage at an excessive consumption range which did not impact on X.
It is also of significant concern that the mother’s own evidence is that she would drink in her room away from her father and stepmother. This coupled with the mother’s failure to acknowledge that her alcohol consumption is excessive, a position supported by her father and mother, means that there has been limited visibility and accountability for the extent of the mother’s alcohol consumption.
The mother asserts that she only drinks when there are others in the home, presumably as a protective factor. However, the effectiveness of that as a protective factor must be limited in circumstances where her alcohol consumption has been largely hidden.
I am also troubled by the maternal grandfather’s affidavit which fails to acknowledge any alcohol use or adverse impact of alcohol use on the mother’s functioning. This appears to be consistent with the maternal grandfather’s position at Q Hospital in 2021, as discussed below, where he was unable to provide any information in relation to the mother’s mental health history or her alcohol usage.[13]
[13] Exhibit ICL2.
I am concerned that the maternal grandfather has either minimised or been unaware of the mother’s history of mental health issues and also her history of alcohol usage.
I find that the mother’s alcohol consumption is an unacceptable risk to X. X is one year old and is dependent on his primary carer for all of his needs. There is a significant and in my view unacceptable risk that the mother while affected by alcohol will be unable to meet X’s physical and psychological needs. I find that there is a realistic possibility that X will be at unacceptable risk of physical and psychological severe harm while in the mother’s care due to her excessive consumption of alcohol.
When I then consider whether the risk of the mother’s alcohol consumption can be ameliorated and X can remain living with the mother, the following factors are significant:
(a)There is no acknowledgement by the mother that she has excessive alcohol consumption.
(b)It was only during the interim hearing when questioned by me that the mother proffered that she would be undertaking alcohol treatment. This is at odds with her previous assertion that she does not have excessive alcohol consumption. I am not satisfied that the mother has any insight into the nature, extent and impact of her alcohol usage.
(c)It was only during the interim hearing that the maternal grandfather agreed to provide an undertaking to the Court that he would notify the father if the mother was alcohol affected and would remove X from her care. Given the maternal grandfather’s evidence that he has never seen the mother affected by alcohol, the Court remains concerned that either the maternal grandfather has been less than truthful to the Court or the mother is able to disguise her excessive consumption of alcohol to the extent that her father is not aware of her drinking and has not been able to assess the mother’s presentation when she has been affected by alcohol.
(d)While the mother agrees to undertake fortnightly CDT testing, there would potentially be periods where excessive consumption of alcohol by the mother would occur with X remaining in her care. I am not satisfied that this type, or indeed any type of testing regime, would sufficiently protect X.
The Mother’s mental health
The father’s evidence
The father gives evidence of the historic issues in relation to the mother’s mental health.
The father alleges the mother has been diagnosed with a mental health disorder and Post Traumatic Stress Disorder, has been admitted to hospital due to her mental health, and that the mother has self-harmed on multiple occasions.
The father also alleges that in 2020 he drove the mother to some of her appointments for Dialectical Behavioural Therapy. The father asserts that the mother did not complete this course of treatment.
The mother’s evidence
The Mother does not in her affidavit material provide any information in respect of her mental health.
The mother relies on a letter from Dr R her General Practitioner who says that the mother has had “fluctuating issues with Anxiety and Depression but has for the last 2 years, been faring very well with regular medication and counselling if needed”.[14]
[14] Exhibit M3.
Two reports by the mother’s psychologist were also tendered, which are discussed below.
Independent evidence
Several surgery consultation records by the mother’s psychologist were tendered in relation to the mother’s mental health:[15]
(a)In July 2019, the mother was referred to a DBT therapy group at S Hospital, Suburb T. The mother disclosed during that appointment that she had been “drinking ETOH – not daily but using it to cope,” and that if she wasn’t drinking she would be self-harming.
(b)in August 2019, the mother reported that she “self-harmed.” The record goes on to say that the mother was “aware of [mental health disorder] tendencies” and “brought DBT manuak [sic] to session.” The mother also acknowledged that she had “been drinking much less” and that she used also “[…]” (presumably an illicit substance) on a night out.
(c)The notes recorded in October 2019 state that the mother’s “affect [was] much more regulated today” and that the mother “agrees to condsider [sic] admission to hospital.” The notes also record that the mother is “v[ery] worried about who can access her record, if [it] will limit possibilities later in life for her eg working with children etc.” The notes record “high anxiety” and that the mother “reports [she is] keen to use prescription medication, axcnkolwedges [sic] use of ETOH when unabel to cope with anxiety” and has been recommended a medication review with a psychiatrist.
[15] Exhibit F2.
Further, clinical notes from Q Hospital in early 2021 note that while there is “no evidence of acute mental illness now,” there are “likely on balance emotional / behavioural effects of Polysubstance abuse [and] [mental health disorder] with comorbid drug use”.[16]
[16] Exhibit ICL2.
Two reports by the mother’s psychologist were also tendered. The first report dated 13 May 2020 states:
[Ms Baum] is engaging well in a CBT / DBT approach to address [mental health symptoms] including self harm ([…]), emotional dysregulation, relationship difficulties, impulsive and self destructive behaviours (ETOH use) and a lack of self identity. Her partner [Mr Varela] has been a supportive and positive presence.[17]
[17] Exhibit F3.
In the second report dated 5 April 2023,[18] Ms P states that she has been the mother’s clinical psychologist for over four years. Her last session with the mother was in December 2021, until she received a new referral in 2023 from the mother’s GP. The mother’s psychologist reports that the mother attended on her own for psychological assessment on 15 March 2023.
[18] Exhibit ICL3.
There is no evidence from the mother which explains the gap of two years. This is particularly significant given the events that led to the mother’s presentation at Q Hospital in early 2021.
An Ambulance Record dated early 2021 was tendered,[19] which details attendance on the mother at a time where the mother was exhibiting “bizarre behaviour.” The record indicates that the mother admitted to this behaviour but did not know why she was acting erratically and denied any mental health disturbance or that she was affected by alcohol. As a result of concerns by the attending ambulance officers, the mother was transported to hospital.
[19] Exhibit F11.
In early 2021, records from Q Hospital[20] indicate that from the mother’s perspective, she denied past psychiatric history, hallucination and depressed mood. The mother denied smoking, alcohol or drug use but admitted the behaviour observed by the police, which included sitting in the car on the side of the road, jumping around the car and turning the windscreen wipers on and off repeatedly. The mother found out, while in hospital it appears, that she was pregnant. The mother also complained about the behaviour of her stepmother Ms N as discussed below.
[20] Exhibit F13.
When the maternal grandfather was contacted by hospital staff, it was reported that[21]:
Essentially [the] father is not clear about a lot of things, says “not sure” if [Ms Baum] is using drugs, “not sure” if [Ms Baum] has a formal diagnosis, but said had no money to continue private psychiatric
[21] Exhibit ICL2.
When the maternal grandfather was contacted by the Suburb V Mental Health Service Access & Assessment Mental Health Team, he indicated that he had no concerns in relation to the mother and that “she has been feeling well, better than usual”.[22]
[22] Exhibit F4.
Further records produced by Q Hospital dated early 2021 noted the mother’s clinical presentations on previous occasions including:[23]
(a)An apparent overdose in early 2009;
(b)in early 2009, the mother overdosed on prescription medication, was found to have a history of self-harming and issues with her mother and friends, and was diagnosed with “adjustment disorder with depressive mood accompanied by alcohol and other substance abuse”;
(c)In early 2009, “depression with suicidal ideation” was noted and the mother was scheduled under the Mental Health Act 2007 (NSW). The mother was released to the care of the Community Mental Health Team.
(d)In early 2009, it is noted that the mother had alcohol two days prior.
(e)In early 2009, the mother stated that she had been using illicit drugs and that she has been taking drugs intermittently and irregularly. The mother stated that she had increased the number of tablets taken over the last 2 years, though she has only taken illicit drugs once.
(f)In early 2009, the mother presented to hospital with aggressive behaviour and possible drug use.
(g)In late 2017, Q Hospital Mental Health Acute Assessment Team reviewed the mother and received the impression that there was a “situational crisis.” Subsequent to that assessment, there appears to have been no contact between the mother and the mental health service until early 2021, and their records indicate that despite attempts made to contact the mother, no contact had been successful.[24]
[23] Exhibit ICL2; Exhibit F14.
[24] Exhibit F4.
Discussion
I note that the historical records tendered indicate that the mother has a previous history of mental health issues.
I am not satisfied that the mother’s psychologist Ms P is able to provide an effective analysis of the mother’s current presentation. I say this because it would appear that the mother’s psychologist was not provided with copies of the mother’s hair follicle test results, the GP records, the Q Hospital records, or reports of the mother’s recent behaviour as noted by the father. As a result, the report dated 5 April 2023 is based on what the mother was willing to reveal, rather than a forensic analysis of the mother’s overall functioning.
Further, Ms P did not see the mother from the end of 2021 through to March 2023 and there are significant gaps in the reporting that the mother provided to Ms P.
That is not unusual on an interim basis and I note that as this matter progresses it is likely that forensic material will need to be obtained to further assess the mother’s mental health, as well as her alcohol consumption and any risk that either parent presents for X. Unfortunately, what I do find is that Ms P’s report does not ameliorate the risk that I find exists on an interim basis resulting from the mother’s alcohol consumption.
Therefore, I place limited weight on the report of Ms P in respect of satisfying the Court that the mother’s mental health is well managed.
These are interim proceedings and I do not have the benefit of a forensic expert’s report which can assess the mother’s mental health. I am satisfied that the mother can spend the short periods identified by the ICL in their orders with X on an interim basis. There is no evidence that the mother’s mental health poses an immediate risk to the child. On balance, I am satisfied that the orders proposed by the ICL will be sufficiently protective of X while allowing him to spend frequent short periods with his mother.
I am concerned that the mother’s affidavit evidence includes no explanation of the mother’s mental health history.
The child’s exposure to family violence and alcohol misuse by the maternal family
The father’s evidence
The father says that the mother sent him text messages on 22 September 2019 in relation to the maternal grandfather and Ms N which read as follows:
‘I’m scared of [Ms N] being drunk and violent again’
‘I Just want to go home and be in peace’
‘not feeling like I have to be in survival mode constantly’
‘constantly wondering if something will make them blow up’
The mother’s evidence
There is no evidence in the mother’s affidavit nor in the maternal grandfather’s affidavit in relation to any issues with Ms N.
Independent evidence
A series of surgery consultation records by Ms P were tendered in relation to the maternal family which included the following:[25]
(a)On 24 February 2021, the mother reported that she is “now living upstairs in father’s house” and that there were “issues with his wife [Ms N] – has ETOH of an evening and becomes emotionally abusive and wakes [Ms Baum].” The notes also state that “[Ms Baum] calls her father who takes care of [Ms N]” and that the mother had called mental health services for Ms N and “an avo has been suggested.”
(b)On 24 March 2021, the mother reported that there were “issues at home” as her stepmother had become intrusive and was yelling when drinking. The notes state Ms N has a long standing 10 year history of drinking and that the mother was waiting to hear back from a social worker at Q Hospital in relation to housing options.
(c)On 28 April 2021, the mother reported that her stepmother Ms N had been less aggressive and had been away every second week.
[25] Exhibit F2.
Records from Q Hospital dated early 2021[26] also show that the mother complained Ms N had been abusive towards her and was an alcoholic. The mother reported that her father was only keeping the peace and was not helping the home situation, and that after an argument with her father, the mother got into her car because “she didn’t have to deal with it.” The mother reported that her stepmother is “often drunk and irritable, and agitates / argues with [Ms Baum]” and that this happens “rather frequently”.[27] On this occasion, the mother’s behaviour in the car led to ambulance officers transporting her to Q Hospital as previously discussed.
[26] Exhibit F13.
[27] Exhibit ICL2.
Subsequent to her presentation at Q Hospital in early 2021, the mother appears to have been assessed by Suburb V Mental Health Service Access & Assessment Mental Health Team. In the assessment, the mother says that in relation to the incident in early 2021:
dad has a drunk, alcoholic wife – dad’s wife started to yell and abuse her so she left the house. Had a further argument with her dad, stated ‘I was acting erratically’, ambulance was called and she ended up in hospital.[28]
[28] Exhibit F4.
The report goes on to state that “[Ms Baum] is concerned about the step-mother’s behaviour” and that she had commenced seeing her psychologist on a fortnightly basis as a consequence of being pregnant.[29]
[29] Ibid.
I also received into evidence records from a series of telehealth appointments that appear to have occurred during the mother’s pregnancy.[30] What is evident from those telehealth appointments is that the mother complains about the stress that she felt she was under because of Ms N’s alcohol use.[31]
[30] Exhibit F5; Exhibit F6; Exhibit F7; Exhibit F8; Exhibit F9.
[31] Ibid.
Discussion
The records from third party sources indicate that the mother has consistently complained of Ms N as being affected by alcohol and violent.
However, there is no affidavit before the Court from Ms N.
There is also no explanation in either the affidavit of the mother or the maternal grandfather as to why the mother has consistently asserted to health professionals that Ms N is often affected by alcohol and is abusive. The mother and the maternal grandfather do not provide any information in respect of any risk that Ms N poses; they are simply silent on the issue. It is difficult then to reconcile this with the mother’s repeated complaints to third-party health professionals that her stepmother was often affected by alcohol and was violent.
The mother’s failure to address Ms N raises significant concern in relation to the stability of the mother’s living situation. The mother says, presumably as a protective factor, that she only consumes alcohol when others are in the home. It is implausible that Ms N is a protective factor for X if she consumes alcohol to excess and is abusive when affected by alcohol.
Drug use
While the father raises historic drug use by the mother, no submissions were made in relation to this and I note that the hair follicle test of each parent indicates no illicit drug use.
Alleged risks posed by the father
The mother raises concerns regarding the father, particularly in relation to his abusive behaviour towards the mother.
Family violence
The mother’s evidence
It is the mother’s evidence that during and post the relationship the father has been abusive and controlling of her. This includes incidents of physical and sexual abuse.
The mother says that during the course of her relationship, she had concerns about the father’s abusive and controlling behaviour. She gives evidence that the father pressured her to buy drugs for his use.
The mother also gives evidence that the father constantly pressured her to have sex and that he was aggressive towards her when having sex. The mother says that this resulted in an injury.
The mother states that she sought treatment for panic attacks due to the father’s conduct during the relationship. The mother says that the father attended on a counselling appointment with the mother and when the parties were advised not to have sex for a week the father said “You can’t tell me when I can and can’t have sex with my girlfriend.”
The mother alleges that at times the father has been abusive and controlling of her when organising changeovers and that she is frightened of the father and has organised family members to assist with changeover.
The evidence of the mother and maternal grandmother Ms M (hereinafter “the maternal grandmother”) is that at changeover there is often commentary on how X is presented and that generally the experience is one in which they find the paternal family’s conduct to be intimidating.
The mother’s evidence is that subsequent to the drug and alcohol screening test results being released the father has made complaints to NSW Police and the Department of Communities and Justice. It is the mother’s evidence, supported by documents tendered, that the Department of Communities and Justice did not substantiate the notification. For the reasons given earlier I am not satisfied that this finding is based on the full evidence which is available to the Court.
The father’s evidence
The father denies the allegations by the mother that he has been abusive towards her.
In particular, the father denies the allegation that he sexually assaulted the mother or caused her to have an injury because of aggressive sexual intercourse.
The father’s evidence is that he attended on doctors with the mother while she received treatment for the injury which was not caused by any trauma during intercourse.
Discussion
The mother makes serious allegations of violence against the father which are denied. I am not in a position on an interim basis to make any findings in relation to the allegations of violence.
However, I note that during the course of the interim hearing no party sought orders that the father’s time with X be supervised. While this does not answer the very serious allegations made by the mother, it does on an interim basis indicate that no party considered on balance that the father poses a risk to X.
Drug use
The father admits some casual drug use and has undertaken drug screening hair follicle tests in April 2022. The results were released in April 2022 and were negative.
Conclusion of primary considerations
As a consequence of the above assessment, I have prioritised protecting X from risk. I accept the ICL’s Minute in relation to time with the mother which balances such risk against the benefit of X maintaining a meaningful relationship with the mother.
ADDITIONAL CONSIDERATIONS
Relationship of child with significant others
The parties concede that the child has lived with the mother and has had limited time with the father. The mother asserts that the child has a good relationship with her and that she has met all of his developmental needs. It was submitted on behalf of the mother that there has been no complaint or concern raise by any doctor or treating professional regarding her parenting capacity.
X lives with his mother, maternal grandfather and the mother’s stepmother Ms N. He is a child who is one year of age. He does not attend childcare. There are no eyes on X outside of the home on a regular basis. This significantly increases the risk to X and on an interim basis, prohibits the Court on the limited material before it to assess the nature of the relationship between X and his mother or indeed his father.
Practical difficulties
The father currently lives in share accommodation and his flatmates have put before the Court affidavit material in which they tell the Court that they are happy for X to spend time pointedly with the father. The father proposes that X will live with him and that in the share household X will have his own bedroom.
In the mother’s home, the mother lives with the maternal grandfather and her stepmother Ms N. This has been X’s home for the whole of his life and he has not spent significant periods of time away from the mother.
Impact of Change
I accept that for X any order which would move him from the mother’s primary care to the father’s would result in a significant change for him. I am further satisfied however that the father has spent time with X and is a person who is known to X.
These Orders are made on the basis of the risk that the mother poses to X and I am not satisfied that an order less than moving X to the father’s home will ameliorate those risks.
The Orders that I make today also enable X to continue to spend some time with the mother on a regular basis, including face-to-face time and time by video link. I accept that this is not a complete solution to the distress that X will feel of being separated from his mother, however it is the best the Court can do given I am tasked with prioritising X’s protection.
Capacity to provide for the child
I am satisfied of the proposals that have been proffered by the father for X to attend at a childcare centre, and that the father will have support from his own family and his flatmates. I am also satisfied that on an interim basis, the father will be able to meet X’s psychological, emotional and physical needs in a safe and loving environment.
The father has spent time on a limited unsupervised basis with X. The father has attended to drug screening in April and December 2022. On both occasions the results were negative to any illicit substances.[32]
[32] Affidavit of Mr Varela filed 16 February 2023 [110]; Affidavit of Dr J filed 16 February 2023 page 22.
I am not satisfied that the mother can provide a safe environment for X at present. I am particularly concerned that the mother has failed to acknowledge, accept and act upon a report which clearly indicates she consumes alcohol at a chronic excessive level. The questions that were asked by the mother’s solicitors of Dr J do not address how to reconcile the mother’s evidence of consumption of two to four drinks per day with the analysis undertaken by Dr J of the hair follicle test.
Indeed the supplementary answers by Dr J raise more questions than they answer. The mother does not say that she consumes alcohol for extensive periods of time, nor does she say that she uses products which contain alcohol. The mother’s evidence in relation to her alcohol consumption is implausible and while the mother belatedly said she would engage in therapy there was no evidence of when, how or where this would occur.
CONCLUSION
As discussed above, I am satisfied that the mother’s excessive consumption of alcohol poses an unacceptable risk to X’s physical and psychological wellbeing.
I am satisfied that the unacceptable risk posed by the mother cannot be ameliorated if X is to reside in her care. I am not satisfied that prior to the mother engaging in therapy as she belatedly proposed and gaining insight into her excessive consumption of alcohol that any order would be sufficiently protective of X if he was to reside in her care.
I am satisfied that the father will provide protective care of X and will prioritise X’s psychological, physical and emotional wellbeing.
I adopt and make orders for alcohol and drug screening as proposed by the ICL. I find that these orders are appropriate and protective of X. These orders provide for a comprehensive testing regime of the mother.
In respect of the mother’s time, the ICL proposes that the mother spend three periods a week unsupervised. I am satisfied that this adequately protects X. I am satisfied that the testing regime immediately prior to the mother spending time with X will provide sufficient protection for X.
In the event that the mother undergoes treatment and the testing she has been ordered to undergo indicates no further excessive use of alcohol, I agree with the proposal by the ICL that the mother should then spend time with X from 8 am until 5 pm.
I otherwise find that remainder of the orders of the ICL are clear and effective orders in this matter. They provide for appropriate orders for X to changeover between the parents without being exposed to the parental dispute. Further, they provide for X to at least see and speak to his mother on a regular basis. I am further satisfied that the specific orders in relation to the conduct of the parties towards X are appropriate in the circumstances.
I am not satisfied that it is in X’s best interests to have significant periods away from spending time with his mother and as a consequence, I do not propose to make orders 5 and 6 as sought by the ICL.
In respect of X’s care in the father’s home, I note that the father’s evidence is that X will be enrolled in and attend child care. I make an order requiring X to be enrolled in and to attend child care on at least two days per week.
In respect of the father’s application, I have dealt with the majority of the matters in contest above. I do however make orders 8(a) and (b) as sought by the father as these were orders by consent.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis. Associate:
Dated: 28 April 2023
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