Woolley and Telford
[2015] FCCA 3618
•21 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WOOLLEY & TELFORD | [2015] FCCA 3618 |
| Catchwords: FAMILY LAW – Interim parenting – whether mother suffers addiction to alcohol – where she appears unable to take advantage of opportunities given to her to control her drinking – no contact. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 |
| Applicant: | MR WOOLLEY |
| Respondent: | MS TELFORD |
| File Number: | WOC 376 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 13 October 2015 |
| Date of Last Submission: | 13 October 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 21 October 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Soden Legal |
| Solicitors for the Respondent: | Williamson Isabella Lawyers & Public Notaries |
| Solicitors for the Independent Children's Lawyer: | Verekers Lawyers |
ORDERS
Pending further order, Orders 2, 3, 4, 6, 7 and 11 made 27 June 2014 be suspended.
The matter be listed for three day Final Hearing in 2017 on a date and time to be fixed.
The matter be adjourned to 10 October 2016 at 11:30am for Mention.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days’ notice by application to the Court in Chambers in appropriate circumstances.
Leave be granted to the parties to file Consent Orders in Chambers.
IT IS NOTED that publication of this judgment under the pseudonym Woolley & Telford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 376 of 2014
| MR WOOLLEY |
Applicant
And
| MS TELFORD |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
On 27 June 2014 I gave reasons for judgment in an earlier interim application in this case and therefore I do not propose to set out once again matters of background or introduction. The Orders I made on 27 June 2014 provided for X, who is now nearly 4 years old, to live with his father at the home of the Paternal Grandmother and to spend time with the Mother supervised by the Maternal Grandmother between 9.00am and 12.00pm each Sunday. Order 10 of those Orders specifically dealt with what was the main issue then and what remains the main issue today, that is, the Mother’s consumption of alcohol, and that Order provides, for example that she was to continue with her alcohol counselling and so forth.
A significant event since that Order was made is the release of Ms K's Family Report dated 28 May 2015. I am going to incorporate into these reasons a number of paragraphs from Ms K’s report.
For example, paragraph 19 that dealt with the Mother’s presentation at the report interviews, paragraph 20 dealing with her confusion, paragraph 21, her variable narrative, paragraph 33 and 35 recording the Maternal Grandmother’s observations and paragraphs 36 and 37 recording the Mother’s partner’s observations. The Family Consultant’s evaluation commences from paragraph 55 and goes on to paragraph 60.
19.Ms Telford (aged 36 years) presents as having an unsteady gait. [The writer was later advised by administration staff that, when Ms Telford was observed to enter and leave the waiting area, she was using a walking stick.] She was somewhat hesitant in her responses to questions and, on occasions, seemed uncertain of what information the writer was asking her to provide. Ms Telford’s speech, throughout her interviews, was slurred. When asked about this slurring, Ms Telford talked about a sense of tingling in her facial muscles around her mouth, particularly on waking. It was unclear to the writer whether this was Ms Telford’s explanation for her slurred speech or a comment on the effects of the bone transplant. She did, however, comment that she thought her speech becomes slurred when she is stressed or anxious.
20.Ms Telford was adamant that X is “two years old”. Despite the writer advising her that the Court documents showed that he was born in 2011 and, thus, he is three years old, Ms Telford steadfastly maintained that, “no, he’s two”.
21.Ms Telford’s narrative of her relationship with Mr Woolley, X’s parenting history and her own medical and drug and alcohol history changed within her interview. She admits to having used alcohol since she was “17 years old”, but vehemently denies having ever used any illegal substances. Ms Telford’s responses to questions were often at odds with the information contained in Affidavit material (both hers and Mr Woolley’s), and with the information contained in the exhibits and subpoenaed material (the two latter records were not read until after the interviews for this Report were concluded). The subpoenaed material indicates that Ms Telford had, in the past, detailed her drug and alcohol use to at least one general practitioner as using: cannabis from 16 years to 26 years; amphetamines from 21 years to 23 years; alcohol from 17 years and “daily” from 26 years. Ms Telford described her current alcohol consumption as being that of “an occasional drinker”. She asserts that she only has “two or three drinks” of vodka mixed with coke each week.
33.Mrs Telford (aged 63 years) seems to be a protective mother and caring grandmother. She said that she is aware that Ms Telford continues to drink alcohol but said that, “As I work full-time so I don’t know how much she drinks. I think she spends all day in her bedroom watching videos of X”. It seems that one of the adults in the maternal family videos most of X’s time with his mother so that Ms Telford has a record of their interactions. Mrs Telford said that, on the nights prior to Ms Telford spending time with X, “She is in bed by 8.30 pm as she knows she cannot drink” prior to spending time with X, or while he is in her care. Mrs Telford confirmed that she used to visit Ms Telford and X most nights, prior to Ms Telford and X moving to live with her, as “Mr Woolley worked long hours and she (Ms Telford) would be alone”.
35.Mrs Telford said that, currently, Ms Telford is not engaged in any programs in relation to alcohol use or parenting as Ms Telford is concerned such records will be subpoenaed by the Court and “strengthen the case against her”. (Ms Telford confirmed that this is a concern and the reason she is not prepared to be involved in any programs, at this stage.) It was explained to Mrs Telford (and Ms Telford) that engagement in services is normally viewed as a positive step for a parent in seeking to address a perceived problems or deficits in parenting capacity. Mrs Telford supports X returning to his mother’s care and did not express any concerns about Ms Telford’s ability to parent X.
36.Mr D (aged 41 years) talked openly about Ms Telford’s struggle with alcohol and his attempts to encourage her to seek professional assistance. He said that his mother, who is a drug and alcohol counsellor, has also tried to help Ms Telford understand the potential health damage daily drinking can cause.
37.Mr D said he believes that Ms Telford continues to drink up to two 700 mls bottles of vodka each week. He said that she normally mixes the vodka with Diet Coke. He also commented on Ms Telford spending long periods in her bedroom watching videos of X and he wondered whether she is “depressed”.
55.Ms Telford’s presentation, during the interviews for this Report, is troubling (the unsteady gait and slurred speech, apparent difficulty in correctly interpreting questions) and coupled with her own admission that she continues to drink, indicates that she is unlikely to have the physical and/or emotional capacity to appropriately parent X. Added to these concerns is the fact that both Mrs Telford and Mr D describe the mother’s behaviour as being indicative of someone who is “depressed” and this exacerbates the concerns for X, should he live with his mother. A parent who is experiencing either significant sadness or depression is usually not emotionally available or attuned to a child’s needs. Without seeking counselling perhaps also supplemented by a course of an appropriate medication, such troubled emotional states compromise parenting capacity. Ms Telford seems to have no insight into how her own emotional state might be communicated to X and/or impact on her ability to parent him. It is concerning that, at this stage, she is unwilling to seek any professional assistance in relation to any aspect of her life. Additionally, the future of Ms Telford’s relationship with Mr D is unclear. They have no plans to live together, at this stage, while describing their relationship as committed and on-going. Ms Telford admits to “sometimes” feeling jealous of the bond which is forming between X and Mr D. Thus, in his mother’s care, X would be placed in an emotionally complex and uncertain situation.
56.Mrs Telford, by alleging that she is unaware of how much Ms Telford is currently drinking is, no doubt, trying to protect her daughter. Unfortunately, in the short to medium term, this is likely to provide further support for Ms Telford’s belief that her alcohol consumption is not having any adverse impact on her life, including on her relationship with X.
57.Whether or not Mrs Telford ought to continue to take the role of supervisor is a matter on which the Court is likely to need further evidence. Certainly, her comment that Ms Telford goes to bed by 8.30 pm on the night prior to spending time with X, “as she knows she cannot drink” does not lead the writer to feel confident that Mrs Telford is able to ensure that Ms Telford is alcohol free for the prescribed period before and/or during the time X is with her. Mrs Telford, no doubt, does not check up on Ms Telford after she has gone to her bedroom for the night. A period of supervised contact by an agency which is prepared to breathe test Ms Telford, prior to contact occurring, is something which the Court might need to consider. If Ms Telford returns a positive reading, then no contact ought to occur on that occasion. Those involved would need to ensure that X is prepared for an outing, but not necessarily told he was spending time with his mother, so that he does not experience any sense of disappointment and/or confusion if the visit does not proceed.
58.Mr D expressed a realistic view of the negative impact on Ms Telford of her on-going use of alcohol, particularly in relation to X’s future parenting arrangements. Nonetheless, he is able to admit that he has not been able to motivate Ms Telford to recognise her problems and/or seek treatment. This is a further concern particularly as Ms Telford described her relationship with Mr D in positive terms. If she continues to be unwilling to seek professional assistance then this is likely to have an impact on her relationship with Mr D. As Ms Telford described her relationship with Mr D in positive terms, her reaction to this relationship potentially ending will likely further exacerbate any significant sadness or depression which she may be experiencing and thus negatively impact her ability to relate to and/or parent X.
59.X is a child who is not sufficiently mature to have the ability to inform his father of any risk he might have been exposed to, or any concerns he might have, in his mother’s care. It would seem therefore that, in the short to medium term, there ought to be a focus on ensuring that X has a range of appropriate interventions to help him meet the normal milestones of children his age as well as, importantly, strengthening his bond with his father, rather then the focus being on what time, if any, Ms Telford ought to spend with him.
60.The Court might need to consider seeking that FACS intervene in this matter, given the concerns raised by FACS in the past (particularly in relation to its support for X being in his father’s care seemingly being dependent on Mr Woolley living with the paternal grandparents). Based on the observations and interactions of X with the adults, it is the writer’s opinion that the relationship which stands out as being the one X enjoys the most is that between him and Mr D. This is not an appropriate bond to be fostered at this stage. X needs to develop a much more secure and positive (and playful) bond with his father, it ought to be this bond which is privileged in terms of the first one to be strengthened. If this does not occur then the Court might need to consider (as will Mr Woolley snr and Mrs Woolley) whether Orders ought to be made for X to live with his paternal grandparents, rather than either of his parents, with whom he ought to spend defined periods, if appropriate.
At paragraph 56, for example she records her concerns, that is, the Family Consultant’s concerns about the Maternal Grandmother and her supervision. This continues at paragraph 57. At paragraph 60 she raises the issue of the Department of Family and Community Services intervention in this case. In any event, the Family Consultant recommended sole parental responsibility to the Father, that X continue to live with the Father provided he remains with the Paternal Grandparents, and that before there be time with the Mother, that she provide up-to-date information about her alcohol consumption and medical condition.
On 6 October 2015, the Father filed an amended Application in a Case seeking, in effect, that there be no time between X and the Mother. The Mother’s Response of 13 August 2015 seeks equal shared parental responsibility and that X continue to live with his father but spend time with the Mother during daytimes on Wednesday and Saturday supervised by the Maternal Grandmother.
The evidence that was before the Court is referred to and indeed listed in detail in the Independent Children’s Lawyer’s Case Outline document and I will simply incorporate the relevant lists of pleadings and affidavits into Schedule 1 of these reasons. The evidence before the Court also included a Family Report and some documents produced on subpoena again which are listed in the Independent Children’s Lawyer’s case outline document. I will also incorporate the chronology and the outline of submissions into Schedule 1.
The applicable law is set out in Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The Court makes the observation that this case involves an assessment of risk of harm. Indeed, those issues dominate - the risk being not just physical but emotional as well.
This is a sad case, and it is a difficult case. On any objective view of the evidence the Mother has not taken advantage of the opportunity that the Court gave to her on 27 June 2014 to engage with the services available to assist her with what can only be described as an addiction to alcohol. There is relevant objective material to establish this, and it’s found, for example at paragraphs (vi) to (x) of part 5 of the Independent Children’s Lawyer’s submissions.
The impact on X, both direct and indirect, of the Mother’s alcohol abuse is discussed in the Family Report and is, in any event, observed by the Father in his evidence. Submissions were valiantly made on behalf of the Mother but those submissions are simply incongruous with the evidence. The Mother denies ongoing drinking but the objective evidence is that her last relapse was on 19 August 2015, which is hardly a timeframe that would engender confidence. There is no adequate or satisfactory explanation for failure to persist with counselling and rehabilitation. Her presentation at the Family Report interview is of great concern. The level of supervision provided by the Maternal Grandmother is concerning. With great respect, the Orders sought by the Mother were at all relevant times doomed to fail and reflect a massive lack of insight on her part.
The real issue in this case is, in fact, how to move forward. The Father and the Independent Children’s Lawyer say that there should be no contact or communication. The Mother in a rear-guard action proposes that there be time at a supervised contact centre at (omitted) where they can do breath testing before any visit. This indeed was raised as an option at paragraph 57 of the Family Report. The obvious benefit to this is that it creates an opportunity for X and his mother to have an ongoing relationship especially if this were to coincide with a period when the Mother was engaging in rehabilitation and counselling and not relapsing.
But the ongoing risks to X need to be considered even on this proposal. Whilst there is no physical risk as such, there is a risk that he will be disappointed if his mother does not turn up or does not pass the breath test; a matter that is adverted to specifically at paragraph 57 of the Report. It is unclear how exactly breath testing before supervised contact would take place. One would expect that the breath test would need to be reasonably proximate to what is otherwise a fixed time for supervised contact. The failure of the breath test would mean cancellation.
How can X, as a practical matter, be shielded from the effect of disappointment if his time does not eventuate? The Court believes that the issue could be managed by careful arrangements and detailed Orders but there is a greater concern that is this: the possible futility of making these Orders. What is the point of subjecting X to this arrangement if in the end result the Mother simply does not satisfactorily address her alcohol and medical issues? Her track record is less than impressive in this regard.
She might do enough to ensure that she is sober for supervised contact but no more. Any final order for ongoing supervised contact at a centre is neither practicable nor desirable from X’s perspective quite apart from the issues of the ongoing availability of scant resources. If the Mother cannot so improve her situation so that permanent ongoing supervised contact is not needed, then there is actually little point in ordering interim supervised contact.
This is a very difficult case. It must not be overlooked that there are risk issues in the Father’s household as well as the Mother’s household. X’s vulnerability is exacerbated in this regard. It is necessary to act in a manner that is very protective of X. In the Court’s reasons for judgment of 27 June 2014, the Court noted a number of features of the Mother’s alcohol problem. Firstly, that it was longstanding and a serious issue. Secondly that the Mother’s evidence was selective, that her disclosure was minimalistic insofar as it referred to the nature and extent of her problem but not just to the Court but also to those professionals seeking to assist her. Next, the Court observed her ambivalence about addressing this issue and lastly, the Court observed on that occasion a reliance on recent events – back then it was a recent CDT test – to somehow justify her position and there are shadows of that in her present case where she sought to rely on what she asserted was abstinence since August.
What strikes the Court presently is that so many of these features continue to be present today. Despite the opportunity that was given to her last year, so little has changed. The Court acknowledges the difficulty of this case. On any realistic appraisal of the evidence as it stands one would have to be sceptical and pessimistic about the Mother’s ability to manage her alcohol and medical issues in a way that she will have the requisite parenting capacity to become meaningfully involved in X’s life without being a risk to him either physically or emotionally.
In these circumstances, the Court has decided it is not in X’s best interest to implement an arrangement for supervised time which may not be sustainable in the long term in the sense of progressing to unsupervised time and which would be potentially emotionally stressful on X. In fact, there may be less harm to him in having no contact with his mother. But that is not the end of the matter. The Final Hearing will probably be in February or March 2017. The Mother will have between now and then to demonstrate to the Court that she has got her life together. If and when she does so she can apply once again for reinstatement of some time with X depending on her circumstances. Until she does so, however, the Orders will be as proposed by the Independent Children’s lawyer.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 18 July 2016
Schedule 1
Independent Children’s Lawyer’s List of Relevant Documents, Chronology and Submissions
PLEADINGS
The Applicant father appears to rely upon the following documents:
i.Amended Application in a Case dated 6 October 2015;
ii.Affidavit of Mr Woolley sworn 7 October 2015;
iii.Affidavit of Ms S sworn 6 October 2015;
iv.Affidavit of Ms G sworn 1 October 2015.
The Respondent mother appears to rely upon the following documents:
i.Response filed 13 August 2015;
ii.Affidavit of mother filed 13 August 2015;
v.Affidavit of mother sworn 6 October 2015;
vi.Affidavit of Ms J sworn 6 October 2015.
SUBMISSIONS
i.This matter previously came before the Court for Interim Hearing on 26 June 2014 at which time the ICL prepared a comprehensive Case Outline Document and repeats the issues set out in that document so far as they are relevant to the Application in a Case now before the Court for Interim Hearing.
ii.Interim Orders were made on 27 June 2014 whereby Orders were made inter alia that the child X born (omitted) 2011 live with the father provided he lives at the home of the paternal grandmother and that the child spend time with his mother each Sunday from 9:00am to 12 Noon with such time to be supervised by the paternal grandmother or another agreed adult person.
iii.On Wednesday 19 February 2015 the father did not allow the mother to spend time with the child X as he formed the view that she was intoxicated the night prior on the telephone (Par 37 father's Affidavit sworn 7 October 2015). By March 2015 the father had ceased all contact visits between the mother and X though the phone contact continued.
iv.A Family Report dated 1 June 2015 was released by the Court. The Report recommended that "prior to Ms Telford recommencing spending time with X, she provide the Court with up to date information about what, if any, impact her medical condition has on her parenting capacity as well as the result of a Drug and Alcohol Assessment." The Report also indicated in paragraph 61 that until the Court has more information about Ms Telford's medical condition and the outcome of a Drug and Alcohol Assessment, great caution ought to be exercised in deciding whether or not X ought to be spending any time with his mother. The Report questions in paragraph 57 whether the maternal grandmother ought to continue in her role as supervisor as there was no confidence by the Family Consultant that the maternal grandmother could ensure that the mother was alcohol free for the period of time with X. It was indicated that a period of supervised contact by an agency which is prepared to breath test the mother prior to contact occurring was something which the Court might need to consider (Paragraph 57 of the Report).
v.This matter came before the Court on 12 May 2015 at which time it was indicated by the solicitor for the mother that enquiries were being made in regard to a rehabilitation course which the mother might attend. The mother subsequently entered into an agreement to engage in a Rehabilitation Course with (omitted) Day Recovery Centre;
vi.Subpoenaed materials from (omitted) indicate that such course was to commence on 30 June 2015 and be completed on 21 September 2015. Records indicate a mental health diagnosis in addition for the mother of depression. The mother indicated that she had last used alcohol on 24 June 2015 some 6 days prior to her admission. She also indicated that she had first used cannabis between the ages of 17 and 21 and speed between the ages of 21 and 23 but gave no indication whether she had in fact stopped using those illicit drugs. She indicated that she had had 21 sessions of previous rehabilitation with the (omitted) Centre but had stopped those sessions approximately 1 month before. It is noted that Orders made 27 June 2014 provided for the mother to continue with alcohol counselling on at least a weekly basis and provide the Independent Children's Lawyer with evidence of her attendance. No details have been provided by the mother in regard to her cessation of ongoing alcohol counselling. The ICL was advised previously that she had completed a detoxification program at (omitted) Hospital and that she was to commence attending the (omitted) Centre.
vii.It is noted in the subpoenaed documents that though the mother stated that she swears to express her feelings and expresses her anger by swearing. She indicated that she felt that her drinking was out of control always or nearly always. She further indicated that the 4 weeks prior to entering the rehabilitation course that when she was drinking heavily she was drinking as many as 10 standard drinks a day and that she had drunk to that level for 5 days over the previous 4 weeks and 4 standard drinks on another 10 days over the previous 4 weeks;
viii.On 19 August 2015 the mother disclosed that she had a lapse on her use of alcohol on the previous Saturday night so that a relapse prevention plan had to be put into place;
ix.On 10 August 2015 the father apparently telephoned the Centre to complain that the mother had telephoned on the previous Friday evening and that she had sounded really drunk;
x.On 2 September 2015 the mother phoned in saying she was sick and that she could not attend and that she had obtained a Doctor's Certificate. She subsequently did not attend on 3, 4, 5 September and failed to make contact except for a message left on 5 September. Staff attempted to telephone the mother about her attendance but the mother failed to make subsequent contact on 8, 9, 10 September. The mother was therefore discharged on 16 September 2015 due to her absenteeism and no contact. The mother was informed that she could reapply to attend the course. The mother has provided no evidence in regard to her decision to leave the program without notice and without completing the program.
The ICL cannot support at this stage reintroduction of any time with the mother to be supervised by the maternal grandmother.
It is clear that even on her own admission to (omitted) that the mother was drinking to excess up to June 2015. Again, on her own admission, she had a relapse in late August 2015. The ICL cannot support reinstating the time as sought by the mother in her Response to Application in a Case.
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Consent
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Stay of Proceedings
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Injunction
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