Wilson and Wilson
[2011] FMCAfam 448
•18 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILSON & WILSON | [2011] FMCAfam 448 |
| FAMILY LAW – Children – injunctive orders – onus and standard of proof – mother seeks injunctive order to prevent father consuming alcohol during “time with” periods. |
| Family Law Act 1975, s.60CA Evidence Act 1995, s.140 |
| D and D [2005] FamCA 356 Re H and Ors (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 All ER 1 Sieling and Sieling (1979) FLC ¶90-627 |
| Applicant: | MS WILSON |
| Respondent: | MR WILSON |
| File Number: | DGC 1258 of 2010 |
| Judgment of: | McGuire FM |
| Hearing date: | 21 April 2011 |
| Date of Last Submission: | 21 April 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 18 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Berkovitch |
| Solicitors for the Applicant: | McCormacks |
| Counsel for the Respondent: | Mr Dunlop |
| Solicitors for the Respondent: | David Wilkinson & Co |
ORDERS
That the application of Ms Wilson for an injunctive order restraining the father’s use of alcohol is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wilson & Wilson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 1258 of 2010
| MS WILSON |
Applicant
And
| MR WILSON |
Respondent
REASONS FOR JUDGMENT
Applications
The discrete but important issue before me is whether or not the father be permitted to consume alcohol during any time that the child [X] born [in] 2002 (“[X]”) is in his care. The mother seeks an injunction preventing the father from consuming any alcohol during any period that [X] is with him and from 12 midnight on the preceding day. The father says that there should be no such injunctive order but as a compromise position he says that he would agree to an order that he not “consume alcohol to excess” during any period that [X] is in his care. The mother rejects the compromise position.
On 30 March 2011 I made parenting orders by consent in respect of [X] which see the parents having equal shared parental responsibility for him and [X] living with the mother. [X] is to spend time with the father each second weekend from Friday at 6.00 pm until Sunday at 6.00 pm together with a block period of two weeks in the summer school holidays and special days.
The parents separated in January 2009. The mother commenced these proceedings in October 2010. On 23 November 2010 the parties entered into interim consent orders in respect of [X] including inter alia at paragraph 4:
Without admitting the necessity for the undertaking, the father undertakes to not consume alcohol when [X] is in his care in accordance with paragraph 3.1.
This “undertaking” appears as a Court order drawn by the solicitors for one or other of the parties. No undertaking in proper form is apparent on the Court file. There was a suggestion during cross-examination
of the father that he had unilaterally changed the terms of the undertaking to read “not consume alcohol to excess”.
The evidence
Each of the parties relied on a number of affidavits. Those affidavits included material as to the substantive parenting issues which were subsequently settled. Parts of each affidavit are relevant to the discrete issue before me and those sections were read into evidence subject
to some striking out after argument as to relevance.
The mother adduced evidence from a Mr C who was a witness to events on 9 January 2010 at a changeover for [X] at a supermarket car park. Mr C swore an affidavit on 28 February 2011 and was cross-examined on the contents. On the face of it, Mr C does not appear to be aligned to either of the parties.
The father adduced evidence from his current partner, Ms R. Both parties and their witnesses were cross-examined.
The law
Although the issue before me is a discrete one involving an application for a personal injunction, it remains effectively a parenting order and, as such, I am to have [X]’s best interests as my paramount consideration.[1]
[1] Section 60CA of the Family Law Act 1975 (“the Act”).
Prima facie the relationship between a child and a parent should not be hindered by conditions and restraints unless such are necessary in the interest or welfare of the child. It follows then that the party attempting to impose an injunction on the other bears an onus of proof. In considering the evidence before me I then apply a standard of proof being “on the balance of probabilities”.
Section 140 of the Evidence Act 1995 deals with the appropriate standard of proof. Sub-section 140(1) requires the facts asserted and relied upon by a party to be proved if the court be satisfied on the balance of probabilities.
Sub-section 140(2) of that Act states:
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Carmody J in D and D[2] considered the issue of the “standard of proof” in family law proceedings and cited Lord Nicholls in the decision of Re H and Ors (Minors) (Sexual Abuse: Standard of Proof)[3] as follows:
… Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established…
[2] [2005] FamCA 356.
[3] [1996] 1 All ER 1, 16.
Carmody J in D and D (supra) continues at paragraphs [146] and [147]:
What this means in a practical sense is the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. [Re: Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J.]
Thus, civil proof is not a simple matter of belief and persuasion but of "reasonable satisfaction" following a real search for the truth and evaluating the evidence adduced with regard to the matters mentioned in s140(2) and other relevant variable factors, including those referred to by Dixon J in Briginshaw [See generally, A. Ligertwood, Australian Evidence, 4th Edition, Butterworths, 2004 at p. 82-83.] and in the light of the parties' respective power or capacity to produce or contradict it. [Blatch v Archer (1774) 1 Cawp 63 at 65; 98 ER 969 at 970. See also Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454 [36]; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330[134].]
The applicant mother seeks an injunctive order be imposed upon the father during his time with [X]. In Sieling and Sieling[4] Evatt CJ and Marshall SJ stated at [78,264]:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction that is necessary to achieve the protection of the applicant's interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim…
[4] (1979) FLC ¶90-627.
The issue in Sieling and Sieling obviously concerned property.
The principle, however, remains sound in respect of children’s matters in that the Court will “not lightly interfere with” a parent’s free and open relationship with the child unless, of course, the child’s best interests demand such an imposition.
The mother’s case
The mother in her affidavit refers to a history of domestic violence in her own relationship with the father. She suggests that the father’s behaviour is connected to his use and abuse of alcohol. She maintains those concerns post-separation and in respect of the father’s capacity to properly attend to [X]’s care. She asks the Court to infer that [X] at eight years of age is not necessarily able to self-protect in any situation of crisis or danger. On the face of it, this would be a reasonable inference to make. The mother says generally that the father has an angry temperament which is enhanced by his use of alcohol.
In her affidavit material the mother alludes to many incidents which she says particularise her concerns. She says at paragraph 4 of her affidavit sworn 23 November 2010 that the respondent has admitted
to her that he cannot stop drinking once he starts drinking alcohol.
At paragraph 7 of the same affidavit the mother says that the father has:
…taken [X] to public bars, over eighteen birthday parties and other adult occasions, leaving [X] mostly unsupervised whilst the Respondent consumes alcohol.
This statement is generally unparticularised and hence of little probative assistance particularly given the general denials by the father that he is incapacitated by alcohol when [X] is in his care. Similarly, at paragraph 8 of the same affidavit the mother says:
I believe the Respondent would be a healthier role model for his son if he didn’t drink alcohol whilst [X] is in his care.
The mother is entitled to such an opinion but the fact remains that alcohol is a legal drug and it is the issue of responsible use of that substance that influences my determination rather than the fact of its use. Further, paragraph 13 of the same affidavit makes similar value judgments and expressions of opinion. That paragraph does, however, contain some particulars including:
-the Respondent has fallen off our verandah due to over intoxication;
- the Respondent has been so drunk when walking home that he fell asleep in our driveway whilst it rained;
- the Respondent defecated in our bed (I was not sleeping in the bed at the time due to him smelling of alcohol). Our son [X] then got in bed with his dad in the morning. [X] also ended up with faeces on him. This was in about 2006;
- the local pub gave the Respondent a “joke present” of a “pillow on a key ring” because he was often at the public bar drinking and often fell asleep at the bar;
- I remember an incident where the Respondent fell asleep on the public toilet at the pub. Water was thrown over the toilet to try and wake him up;
- I witnessed the Respondent talking to a rubbish bin because he was so drunk. He often seemed to ‘black out” from drinking…
In cross-examination the father effectively denied the fact or alternatively the context of these allegations.
In her affidavit sworn 27 February 2011 the mother repeats some of her allegations set out above. She also says at paragraph 21:
The husband broke my sternum during one time he was yelling at me. He had my arms held up over my head and was yelling at me. He was drunk at the time…
Further at paragraph 24 of the same affidavit the mother states:
I know the husband loves [X] very much and unlike the violence he has perpetrated on me, I doubt the husband would intentionally hurt [X]. When he has been drinking however, I am concerned that [X] could be hurt due to lack of supervision or rage. When [X] was 4 months old the husband came home very late and very drunk one night. He was so drunk he couldn’t get the keys into the door. He screamed at me to “get up and open the fucking door”. I didn’t answer the door because I was scared of his yelling and the mood he was in. The husband then smashed his fist through the bedroom window…
At paragraph 25 of that affidavit the mother says:
Every day I was with the husband he would drink alcohol.
I estimate that he spent at least $200 per week on beer alcohol when we were together.
In summary, therefore, the mother says that the father has a history
of alcohol consumption. She says that this has equated historically with a violent temperament. She does not fear that the husband would intentionally harm [X] but that his over-use of alcohol will impact on his capacity to appropriately care for the child.
Significantly, the only corroboration adduced by the mother comes from her witness Mr C who was present at a changeover for [X] in a supermarket car park in early 2011. The mother alleges that the father was drunk at the time. She said that he acted aggressively. Mr C can confirm some aggressive behaviour including the father’s driving upon his exit from the car park. Mr C, however, added little by way of probative corroboration. He admits that he asked the mother whether the father was an alcoholic. Such evidence is of little assistance. The only other corroboration of the mother’s argument comes from the father himself. She says that he has on an occasion walked [X] home to her whilst he was consuming a stubbie of beer. He further admits that he often drives home himself with a “traveller” which appears to be a bottle of beer consumed whilst he is driving a motor vehicle. One might have thought that the father would act more conservatively given
the obvious views of the mother as to his use of alcohol. He might also consider the legalities of “travellers” under State law. Generally the father under cross-examination appeared to be ambivalent about his
use of alcohol. It was quite clear that consumption of alcohol plays
a regular and fairly important part in his daily routine. He concedes drinking two slabs of beer per week. It is clear that his social life generally involves the consumption of alcohol.
The father’s argument
The father’s argument put simply is that the imposition of an injunctive order to prevent him using alcohol when [X] is in his care is onerous, unnecessary and not in any way relevant to his capacity to care for his son and hence not positively in [X]’s best interests. The father candidly admits his use of alcohol. It is apparent that he drinks alcohol on a daily basis and even when [X] is in his care but subject to previous interim injunctive orders which were entered into by him without admission as to their need. The father’s current partner gave evidence and corroborates that Mr Wilson drinks regularly and probably daily. She said, however, that she has not noted any related incapacity in his care of [X].
The father’s evidence is that he holds a responsible position as a [occupation omitted]. He asserts that there is no history or evidence that he has suffered any alcohol-related illness or that his capacity for employment has been impacted by his use of alcohol. There is no evidence that he has any relevant criminal convictions connected to his use of alcohol. He says blandly that he enjoys the social use of alcohol and that there are no objective indicators that his capacity to care for [X] would be affected by that use of alcohol. He concedes that he would enter into an order that he not use alcohol “to excess” when [X] is in his care. The father offers an alternative explanation for the mother’s application and that is that she seeks to control his relationship with [X].
Discussion
As set out above, the mother in seeking an injunctive order carries an onus and burden of proof. She must show on the balance of probabilities that it is in the best interests of [X] that an injunctive order be imposed on the father. The mother’s own personal views as to alcohol use are not relevant to my determination. I must consider the objective evidence and the probity and weight of that evidence.
The mother’s opinions and emphasis on the father’s general and historical use of alcohol are quite clear. It is likely that those views are influenced by his aggressive behaviour towards her. I had the opportunity to observe and listen to the father in the witness box. It is my view from those observations that he does perhaps have a “short fuse” and was prone to angry retort. It seems that the events in the supermarket car park observed by Mr C in early 2011 corroborate my observations of the father. Nevertheless, we as a human race do not all carry the same temperament and personality. Some people are passive. Some people are aggressive. The issue for me is whether there is evidence that the father’s aggressive nature is further influenced by his use of alcohol to the extent that his capacity to care for [X] is compromised. The father has not always acted in a mature way or perhaps presented as a proper role model for [X] in respect of the use of alcohol. To walk the child home to the mother’s residence whilst drinking a stubbie of beer might not be considered the actions of a good role model for an eight year old boy. Similarly, his candid acceptance of the fact that he can consume a “traveller” whilst driving a motor vehicle would generally be seen as inappropriate within the community and probably illegal. There is little doubt in my mind that the father is imbued with a cultural alcohol use both personally and socially. He presented as a person believing that he has a “right” to drink alcohol as he sees fit. In this country there is such a right at law subject to some restrictions usually enforced by State legislation. Again, the issue for my determination is in respect of the capacity of the father to care for his eight year old son and whether or not that capacity is compromised and thereby endangering the child without the imposition of an injunctive order.
On reflection and taking the evidence as a whole and considering the onus and standard of proof that applies, I am not of the view that the mother has made out her case for the imposition of an injunctive order to prevent the father from consuming alcohol during the period that [X] is in his care and for 12 hours prior to [X] coming into his care. I accept that the relationship between the father and the mother had violent elements. I accept that the father regularly drinks alcohol. However, there was no evidence of an expert nature or of sufficient nexus to show the effect of his consumption of alcohol on his capacity. The fact is that many parents use alcohol responsibly and without affecting their capacity to care for children. The indicators of incapacity in this matter are not readily apparent. The father holds a responsible position as a [occupation omitted]. There is no evidence that his employment has been affected by his historical use of alcohol. He has no prior convictions for offences involving alcohol. There is no evidence of him suffering any medical condition either currently or historically related to the use of alcohol. Such are the usual indicators that might assist a court.
Consequently, and whilst the father might consider taking a more generally responsible and mature approach to his use of alcohol and particularly whilst [X] is in his care and also to be aware of the likelihood that [X] will see him as a role model, there is not evidence with sufficient weight to cause an injunctive order in the terms sought by the mother to issue in the interests of [X].
I must consider whether to impose an injunctive order in the terms of the father’s option namely that he “not consume alcohol to excess” when [X] is in his care. The difficulty with such an order is in its terminology, subjectivity, and potential for enforcement. What is “excess” is virtually indefinable, a subjective term, and a practical manifestation that varies between individuals. Whilst such an order might appease some of the mother’s concerns, it also raises the possibility of more conflict or litigation between these parents. I do not consider such an order to be appropriate but do suggest that the father recognise and respect the mother’s concerns as to his alcohol use and behaviour.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 18 May 2011
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