Wu and Heaton and Hurst and Heaton
[2009] FMCAfam 1112
•27 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WU & HEATON and HURST & HEATON | [2009] FMCAfam 1112 |
| FAMILY LAW – Parenting – two separate applications consolidated – previous partners of respondent mother sought parenting orders with respect to their biological children – mother diagnosed with alcohol abuse disorder – who children should live with – whether children should be separated – whether equal shared care appropriate – capacity of fathers to care for their children with their employment responsibilities – children to spend significant and substantial time with fathers – whether interim or final orders. |
| Evidence Act 1995 (Cth), s.128 Family Law Act 1975 (Cth), Part VII Family Law Rules 2004 (Cth), rule 15.66 |
| R v R (Children’s Wishes) (2000) 25 Fam LR 712; [2000] FamCA 43 Harrison and Woollard (1995) 18 Fam LR Doyle and Doyle (1992) FLC 92-286 H and H (2003) FLC 93-168 Goode and Goode (2006) 36 Fam LR 422; [2006] FamCA 1346 |
| Applicant: | DR WU |
| Respondent: | MS HEATON |
| File Number: | SYC 1805 of 2009 |
| Applicant: | MR HURST |
| Respondent: | MS HEATON |
| File Number: | SYC 1836 of 2009 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 27, 28 & 31 July 2009 |
| Date of Last Submission: | 31 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2009 |
REPRESENTATION
| File Number: | SYC 1805 of 2009 |
| Counsel for the Applicant: | Mr Friedlander |
| Solicitors for the Applicant: | Lawyers Central Pty Ltd |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Michael Conley Lawyers |
| File Number: | SYC 1836 of 2009 |
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Michael Conley Lawyers |
ORDERS
SYC 1805 of 2009
That the Husband, Dr Wu, and the Wife, Ms Heaton, have equal shared parental responsibility for making decisions about long term issues in relation to [Y] born in 2003 and [Z] born in 2001 (hereinafter referred to as ‘the children’ in these orders).
That the children live with the Husband as follows:-
During term time
(a)from the conclusion of school on Thursday until the commencement of school on the following Monday in each alternate week commencing from the first Thursday in each school term; and
(b)from the conclusion of school on Wednesday until the commencement of school the following Thursday morning in each alternate week commencing from the second Wednesday in each school term.
School Holiday Periods
(c)For one half of each of the school holiday periods such period to be agreed between the parents in writing and failing agreement the Husband to spend time with the children during the first half of the holiday period to start after the end of the school term.
Significant and Special Occasions
(d)In the event that the children are not otherwise living with the Husband on Father’s Day in accordance with these Orders, then the children shall live with the Husband on the weekend which includes Father’s Day from 9.00 a.m. on the Saturday immediately preceding Father’s Day until 4.00 p.m. on Father’s Day.
(e)In the event that the children are not otherwise living with the Husband on the husband’s birthday then the children shall spend time with the Husband from after school on the day of his birthday until before school the following day or if his birthday falls on a weekend, then from 9.00 a.m. on Saturday until 6.00 p.m. on the following Sunday.
(f)In the event that the children are not otherwise living with the Husband on either of the children’s birthdays in accordance with these orders, then the children shall spend time with the Husband from after school until 6.00 p.m. should the birthday fall on a week day or from 9.00 a.m. until mid day should the birthday fall on a weekend.
(g)On Christmas Day in 2009 from 3:00pm Christmas Day until 5:00pm Boxing Day.
That at all other times the children live with the Wife.
That notwithstanding any of the provisions to the contrary contained in order (3) above:
(a)In the event that the children are not otherwise living with the Wife on Mother’s Day then the children shall live with the Wife on the weekend which includes Mother’s Day from 9.00 a.m. on the Saturday immediately preceding Mother’s Day until 4.00 p.m. on Mother’s Day.
(b)In the event that the children are not otherwise living with the Wife on the Wife’s birthday from after school on the day of the Wife’s birthday until before school the following day or if the Wife’s birthday falls on a weekend, then from 9.00 a.m. on Saturday until 6.00 p.m. on the following Sunday.
(c)In the event that the children are not otherwise living with the Wife in any given year on either of the children’s birthdays, then the children shall spend time with the Wife from after school until 6.00 p.m. should the birthday fall on a week day or from 9.00 a.m. until midday should the birthday fall on a weekend.
That in the event that either the Husband and Wife have a significant or special event such as a family gathering, christening, wedding or other special event then the Mother and Father shall give notice to the other parent of their desire for the children to spend that time with them and to attend that event and the parents may agree in writing to vary the time that the children are to live with each of them so as to permit the children to attend that event and where a variation to these orders is required then the parents shall agree for make up time.
That the Husband and the Wife may attend the children’s school for the purpose of collection and delivery during their respective residence periods and in relation to any event that parents are invited to, such as a special day, prize day, sports carnivals and parent teacher interviews.
That the Husband and Wife are restrained from removing the children from the [W] School other than in accordance with these orders until the conclusion of their primary education without the written consent of the other parent.
That the Husband and Wife be restrained from denigrating each other within the presence or hearing of the children.
That the Wife attend upon The Sydney Clinic within 24 hours of being requested to do so by the Husband, and the Wife shall do all things necessary to undertake urinalysis and/or a blood test for alcohol screening, with such requests to be no more frequent than once per 7 days collectively with Order (9) in the matter SYC 1836 of 2009. Thereafter the Wife to provide to the Husband’s legal representatives a copy of the results of such test as soon as practicable after same are available.
It being noted that in the event the Wife is unable to attend at The Sydney Clinic at any given time she be permitted to attend an alternate Pathology Clinic for the purpose of testing and furthermore that in the event CDT Testing is not available at that Pathology Clinic the Wife shall undertake such other alcohol screening test as may be available.
That the Husband be responsible for the costs associated with compliance with Orders (9) and (10).
In the event the Wife fails to comply with Orders (9) and (10), the Wife must provide to the Husband or his legal representatives, within 48 hours of the request, an explanation for her failure to comply with the Orders, or any part of the Orders.
That the parties have liberty to restore the matter to the list on 48 hours notice in the event a significant issue concerning the children’s welfare arises, including if the mother resumes consuming alcohol or fails to comply with orders (9) and (10) without reasonable explanation.
That the matter be listed for mention before me on Wednesday 27 October 2010 at 10.00 am.
SYC 1836 of 2009
That the Mother, Ms Heaton, and Father, Mr Hurst, have equal shared parental responsibility for making decisions about long term issues in relation to [X] born in 1996 (herein referred to as “[X]”).
That [X] live with the father as follows:-
During term time
(a)from the conclusion of school on Thursday until the commencement of school on the following Monday in each alternate week commencing from the first Thursday in each school term; and
(b)from the conclusion of school on Wednesday until the commencement of school the following Thursday morning in each alternate week commencing from the second Wednesday in each school term.
School Holiday Periods
(c)For one half of each of the school holiday periods (except for the 2009 Christmas/New Year school holiday period) such period to be agreed between the parents in writing and failing agreement the Father to spend time with [X] during the first half of the holiday period to start after the end of the school term.
(d)During the 2009 Christmas/New Year school holiday period from 9.00 am on Monday 28 December 2009 until 6.00 pm on a date 8 days preceding commencement of the school term in January 2010.
Significant and Special Occasions
(e)In the event that [X] is not otherwise living with the Father on Father’s Day in accordance with these Orders, then [X] shall live with his Father on the weekend which includes Father’s Day from 9.00 a.m. on the Saturday immediately preceding Father’s Day until 4.00 p.m. on Father’s Day.
(f)
In the event that [X] is not otherwise living with the Father on the Father’s birthday then [X] shall spend time with the Father from after school on the day of his birthday until before school the following day or if his birthday falls on a weekend, then from
9.00 a.m. on Saturday until 6.00 p.m. on the following Sunday.
(g)In the event that [X] is not otherwise living with the Father in any given year on [X]’s birthday, then [X] shall spend time with his Father from after school until 6.00 p.m. should the birthday fall on a week day or from 9.00 a.m. until mid day should the birthday fall on a weekend.
(h)On Christmas Day in 2009 from 3:00pm Christmas Day until 5:00pm Boxing Day.
That at all other times [X] live with the Mother.
That notwithstanding any of the provisions to the contrary contained in Order (2) above:
(a)In the event that [X] is not otherwise living with the Mother on Mother’s Day then [X] shall live with the Mother on the weekend which includes Mother’s Day from 9.00 a.m. on the Saturday immediately preceding Mother’s Day until 4.00 p.m. on Mother’s Day.
(b)In the event that [X] is not otherwise living with the Mother on the Mother’s birthday from after school on the day of the Mother’s birthday until before school the following day or if the Mother’s birthday falls on a weekend, then from 9.00 a.m. on Saturday until 6.00 p.m. on the following Sunday.
(c)In the event that [X] is not otherwise living with the Mother in any given year on [X]’s birthday, then [X] shall spend time with the Mother from after school until 6.00 p.m. Should the birthday fall on a week day or from 9.00 a.m. until mid day should the birthday fall on a weekend.
That in the event that either the Mother or Father have a significant or special event such as a family gathering, christening, wedding or other special event then the Mother and Father shall give notice to the other parent of their desire for [X] to spend that time with them and to attend that event and the parents may agree in writing to vary the time that [X] is to live with each of them so as to permit [X] to attend that event and where a variation to these orders is required then the parents shall agree for make up time.
That the Mother and Father may attend [X]’s school for the purpose of collection and delivery during their respective residence periods and in relation to any event that parents are invited to, such as a special day, prize day, sports carnivals and parent teacher interviews.
That the Mother and Father are restrained from removing [X] from [R] other than in accordance with these orders until the conclusion of the 2009 school year without the written consent of the other parent.
That the Mother and Father be restrained from denigrating each other within the presence of hearing of [X].
That the Mother attend upon The Sydney Clinic within 24 hours of being requested to do so by the Father, and the Mother do all things necessary to undertake urinalysis and/or a blood test for alcohol screening such requests to be no more frequent than once per 7 days collectively with Order (9) in the matter SYC 1805 of 2009. Thereafter the Mother to provide to the Father a copy of the results of such test as soon as practicable after same are available.
It being noted that in the event the Mother is unable to attend at The Sydney Clinic at any given time she be permitted to attend an alternate Pathology Clinic for the purpose of testing and furthermore that in the event CDT Testing is not available at that Pathology Clinic the Mother shall undertake such other alcohol screening test as may be available.
That the Father be responsible for the costs associated with compliance with Orders (9) and (10).
In the event the Mother fails to comply with Orders (9) and (10), the Mother must provide to the Husband, within 48 hours of the request, an explanation for her failure to comply with the Orders, or any part of the Orders.
That the parties have liberty to restore the matter to the list on 48 hours notice in the event a significant issue concerning [X]’s welfare arises, including if the mother resumes consuming alcohol or fails to comply with orders (9) and (10) without reasonable explanation.
That the matter be listed for mention before me on Wednesday
27 October 2010 at 10.00 am.
IT IS NOTED that publication of this judgment under the pseudonym Wu & Heaton and Hurst & Heaton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1805 of 2009
| DR WU |
Applicant
And
| MS HEATON |
Respondent
SYC 1836 of 2009
| MR HURST |
Applicant
And
| MS HEATON |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to two separate applications for parenting orders by former partners of the same respondent, Ms Heaton (‘the Mother’). Each application only seeks orders with respect to the applicant’s biological child/ren of their previous relationship with the respondent. Mr Hurst is the father of [X] ([X]), age 13. Dr Wu is the father of [Y] ([Y]) and [Z] ([Z]), ages 6 and 8, respectively (referred to as ‘the girls’ for ease of reference as the parties have done so in their evidence). Ms Heaton is the biological mother to all three children (‘the children’).
Both matters were consolidated by interim orders made on 3 April 2009.
Ms Heaton and Dr Wu were represented at trial. Mr Hurst was provided with legal assistance in the preparation of his case but appeared self-represented at final hearing.
Background
Between 1995 and 1997 the mother was in a de facto relationship with Mr Hurst. [X] was born in 1996.
In 1998 the respondent mother commenced a relationship with Dr Wu and they began cohabitation three months later. They married in 2000. The children of the marriage, [Z] and [Y], were born in 2001 and 2003, respectively. [X] lived with the respondent and after, the respondent and Dr Wu, and spent time with Mr Hurst.
Consent orders were entered into on 26 March 2004 between the mother and Mr Hurst regarding [X], providing each alternate weekend and half of school holiday periods.
On 2 March 2009, an altercation between Dr Wu and Ms Heaton occurred in the family home which resulted in charges of assault being laid against Dr Wu. Those criminal proceedings have not been finalised and are continuing in the local court.
On 4 March 2009 the mother voluntarily admitted herself to the Sydney Clinic for alcohol rehabilitation and the mother and Dr Wu separated. The mother was discharged from the clinic on 26 March 2009 whereupon Dr Wu refused to allow the mother to return to the matrimonial home.
On 26 March 2009 Dr Wu made an application in this Court for parenting and property orders.
On 1 April 2009 interim orders were made with respect to Dr Wu’s application and on 3 April 2009 interim orders were made with respect to Mr Hurst’s application. The latter also included an order that both files were to be consolidated. Amongst other things, the interim orders in effect provided the children live with the mother in the matrimonial home on condition that the maternal grandmother, Ms H, supervise.
[X] currently spends time with Mr Hurst pursuant to those orders after school on Thursday until Monday before school, and Wednesday overnight in alternate weeks.
As the interim orders did not prescribe overnight time, on 3 June 2009 Ms Heaton and Dr Wu came to an agreement that the girls spend time with him every second weekend (school to school) and every Wednesday overnight.
The mother resides with the children in the matrimonial home in [B]. The orders of 1 April 2009 provided for Dr Wu to reside in the studio on the premises of the matrimonial home. On 24 April 2009 he moved from those premises and is currently, since May 2009, renting an apartment in [W]. Mr Hurst resides in [E] and in a de facto relationship with Ms B, aged 38, since 2000. He has a daughter, [C] who is nine months older than [X], from a previous relationship. She lives with her mother and stepfather in [A]. [X] had seen [C] when he was young but has resumed seeing her in the last two or three years.
On 20 August 2009, Federal Magistrate Howard made orders, amongst other things, for sale of the matrimonial home and spousal maintenance to the mother upon completion of sale of the home. At an interim hearing before me on 1 October 2009, the parties indicated the property was listed for auction on 7 November 2009. I made orders that the application with respect to property of the marriage be listed for final hearing on 8 and 9 December 2009. The parties on that date also handed up a letter indicating they had come to an agreement as to appropriate supervisors for the mother in the period prior to delivery of judgment with respect to the parenting orders. There was no concession by the mother that a supervisor was necessary.
The Issues
The following issues are raised by the parties:
a)With whom the children shall live; whether the children should have different residences or the same;
b)The amount of time the children should spend with each parent; how any further alcohol consumption by the mother may affect these orders; if the children are to live apart, whether there should be orders relating to time the children spend with each other; and
c)Issues relating to the mother’s alcohol consumption and rehabilitation including any alcohol testing for the mother; whether time spent with the mother is to be supervised and if so, whether a specific supervisor is to be named; involvement of the fathers in the mother’s rehabilitation (e.g. such as sending clinic notes to the father(s)).
During the course of the hearing it became evident that another issue was whether to make interim or final orders. Other issues on the evidence include the question of whether any orders should be made with respect to the children’s school and telephone contact between the parties and their children.
At hearing Mr Hurst clarified that he sought orders to the effect that [X] live with him and spend supervised time with the mother each alternate weekend (school to school arrangement). [X] would also spend half of the school holidays with his mother and which would coincide with time when the girls are with their mother. He later clarified that the mother be supervised or that she undergo alcohol testing.
Dr Wu’s case outline sought for the children to live with him and spend time with the mother overnight every second Monday, and during the weekend (school to school arrangement) each alternate week. During submissions, counsel for Dr Wu indicated that if the Court did not accept either party’s proposals, then shared care would also be appropriate.
Ms Heaton sought for [X] to spend time with his father from Thursday after school until Monday before school, and overnight Wednesdays in the alternate week; she sought for the holidays to be split evenly. She sought the same for the girls with respect to their time with Dr Wu, except that time would commence at 6.00pm each week due to a concern he would not take the children to their after school activities.
Dr Wu and Ms Heaton have agreed on equal shared parental responsibility. Ms Heaton seeks equal shared parental responsibility with respect to [X]. I note Mr Hurst seeks sole parental responsibility in his initiating application.
The Evidence
At hearing Dr Wu relied upon the following affidavits:
a)His affidavits affirmed on 26 March 2009, 31 March 2009, 6 July 2009, 14 July 2009 (paragraphs 10 to 14 only), 20 July 2009 and 22 July 2009.
b)Affidavit of Mr W affirmed on 31 March 2009;
c)Affidavit of Ms K sworn 31 March 2009; and
d)Affidavit of Ms W sworn 31 March 2009.
Mr Hurst relied upon:
a)His Affidavit sworn on 20 July 2009 (he agreed at hearing that his affidavit of 26 March 2009 had been replicated in the later document);
Ms Heaton relied upon:
a)Her two affidavits sworn on 31 March 2009, and her affidavits sworn on 24 June and 23 July 2009;
b)Affidavits of Ms H sworn on 1 April 2009 and 2 July 2009;
c)Affidavit of Ms M sworn on 31 March 2009; and
d)Affidavit of Dr S sworn on 26 June 2009.
All the parties attended the hearing and were cross-examined. The witnesses that were called for cross-examination are Dr Waters; Dr S who gave evidence by telephone; and Ms H.
Single Expert Report
On 17 June 2009 Dr Brent Waters’ expert report dated 30 May 2009 was released. His report was prepared after interviews with the parties and children in May 2009 and the documents on file. His report was very detailed. He emphasised that for an order to be made for the children to reside with the fathers, then it would need to be a demonstrated that Ms Heaton was unable to rehabilitate herself. He indicated that the least disruptive arrangement would be for the children to live with the mother and spend substantial periods with the fathers.
Dr Waters indicated that currently [X] saw his father four times overnights one week and one occasion overnight the following week. He recommended this for all of the children with their respective parents. This would leave the children with the parent who has had primary care of the children and, would not affect the fathers’ capacities to work. This was dependent on the mother’s ability to keep her drinking under control. He was also of the view that any separation of the children was an important matter.
On 23 July 2009 Dr Waters’ replied to questions from Dr Wu’s legal representatives pursuant to r 15.66 of the Family Law Rules 2004 (Cth).
Ms Heaton
Although I find that although Ms Heaton’s evidence was generally credible, there were parts of her evidence which were contradictory, particularly in respect of her alcohol consumption and testing and her relationship with [X].
Ms Heaton made semantic distinctions between actual knowledge of how long alcohol stays in the body and her own reasonable assumptions about the issue. In light of her history, her evidence in this respect appeared quite evasive.
These findings are supported by Dr Waters’ comments in the family report that:
“Ms Heaton presented as open, buoyant and positive in her manner. She seemed to respond promptly to questions although in some critical areas, I felt that her answers were probably fairly incomplete.”
In cross-examination he clarified this to mean that there was probably more she could have told him about her drinking.
I note that Ms Heaton disagreed with the medical notes of the Sydney Clinic which said she had monthly alcohol binges and that she would drink up to two bottles of wine.
Although I find some of Ms Heaton’s evidence was evasive and to some degree inconsistent, I am not of the view that she was motivated to destroy some of her diaries in order to obstruct proceedings and there is no evidence to support such allegations.
Mr Hurst
Mr Hurst’s oral evidence was quite brief and on all the materials before the Court I find his evidence to be credible.
Dr Wu
I find Dr Wu’s evidence was generally credible.
During cross-examination counsel for the mother brought to light omissions in Dr Wu’s affidavit evidence with respect to days he attended work whilst the children were in his care. He did not include the evidence about the mother sounding intoxicated on the phone in April 2009.
Although I find that there are some problems with his affidavit evidence, Dr Wu’s evidence appeared generally credible and he accepted the inconsistencies and omissions when they were put before him.
I accept that Dr Wu’s evidence is that of a parent and not of an expert witness in the area of drug and alcohol abuse. Although a medical doctor, there was no evidence that Dr Wu had any specialisation in that field and in any event, there was expert evidence provided on this issue.
Dr S
Dr S is a psychiatrist who saw the mother on 4 March 2009 and prepared a report on 19 March 2009. He was her doctor whilst at the Sydney Clinic and she has continued to see him regularly. I give some weight to his evidence.
Ms H
The children’s maternal grandmother, Ms H, aged 57, lives in [M] with her partner of more than a decade. They operate a [occupation omitted].
Mother’s alcohol abuse
The mother has been diagnosed with Alcohol Abuse disorder.
She told the family report writer that although growing up in her family had been good, her father “probably had a drinking problem” and that he would “go to the club every night”. At hearing she indicated that he would drink daily and Ms H’s evidence corroborated this.
The mother said she has had drinking episodes in the past. She said to the family report writer that Dr Wu would drink every night and that she would often drink with him. She said that in about September 2007 she noticed she was regularly drinking with him, although not same quantity.
In cross-examination, Ms Heaton said she started binge drinking within the last two years. She defined binge drinking as “drinking excessively” and for her excessive would be a bottle and a half of wine a night. This included drinking episodes where she would have around a bottle of wine in the day, some vodka at night and this would go on for days. She said she would binge when her husband was home and that she would just hide it. She accepted that admitting herself to hospital was a big step.
Dr Wu contends in his affidavits that he has known his wife to “binge drink”. However, he states that it was during the last 2 years of marriage that she consumed increasingly more alcohol and embarked upon alcoholic binges more regularly. The family report states Dr Wu thought his wife’s drinking became a problem over the past 3 years.
Dr Wu in his affidavits and in the family report made references to incidents of her drinking in the past when she was ill and expressed contrition about her excessive drinking. He told the family report writer that it was in 2008 he became aware Ms Heaton was drinking surreptitiously.
Dr Waters in his family report accepted the father’s version of
Ms Heaton’s drinking which was that it started 3 to 4 years ago and became problematic in the 18 months prior to separation. At hearing he clarified that he was aware that the father contended Ms Heaton had a longer history of drinking, but made no findings of fact as to that longer history. Dr Waters was of the view she had a significant drinking problem which had escalated out of control. He recommended abstinence as the safest approach.In March 2008 Ms H and Ms Heaton had an argument over Ms H’s concern about the mother being affected by alcohol that night. At the time, Ms Heaton was staying at the grandmother’s home in [M] with the children. The grandmother indicated that it was less than two years since she had become aware the mother would drink until she was visibly drunk.
Dr Waters at hearing stated that hiding bottles and sneaking out to drink was indicative of “a more advanced drinking habit” than a habitual heavy drinker. The mother’s evidence indicated that she had on occasion in the past few years consumed alcohol surreptitiously in her own home.
As to whether the mother would relapse into alcohol consumption,
Dr Waters’ evidence at hearing was that because her drinking has only been under control for the past 4 months, and as “four months is not a long time, if you accept her history of the drinking anyway” and because she has had periods of controlled drinking, “the passage of time that there has been so far really is not a great test of permanence”.
Dr Waters’ at hearing also indicated that a person’s drinking history could affect the likelihood of relapse. In his words:
On the other hand, at least on her account, the binge drinking had not been a problem until quite recently, so it’s not as if you’re looking at somebody who has had like, maybe a year history of binge drinking during their adult life, and this is the first time it’s been interrupted. I think that if somebody sort of built up to a climax over a period of a couple of years, at the mid point of their adult life, that the prognosis for their drinking is substantially better than somebody who has got a, as I say, a record of a fairly steady pattern going back 10 or 15 years.
…
[I]f she’s had a pattern of drinking to intoxication of that frequency, which has pretty much persisted through the marriage, which, I gather, is the father’s argument, and perhaps things have got even worse in the last two or three years, but that was the baseline, then I think that that would be a very concerning – a very concerning issue, and only four months after. You know, there would be – one would have to be concerned that there might be a relapse. If, on the other hand, you know, these represented a sort of a pattern of drinking 10 years ago and then she was – her drinking wasn’t nearly as bad as that in the intervening years, and then she sort of took off again, then you might perhaps feel a little bit more optimistic, but as I say, if the court is satisfied that that’s been the pattern that’s been going on more or less continuously for the last 10 or 15 years, then I think it’s – there is a risk there of relapse…
Mr Friedlander relied on the above statement and sought to undermine Dr Waters’ recommendations by attempting to show the mother had a longer drinking history stretching as far back as 1994.
Tendered into evidence as exhibits were marked pages of Ms Heaton’s diaries for 1994, 1995, and 1999. Ms Heaton was not sure if everything in the diaries was a true recording and also indicated that she wrote poetry and “all sorts of stories”. Mr Friedlander went through various diary entries and the events in those entries relating to alcohol and amphetamine use.
From her evidence at hearing wherein she accepted many of the diary entries referred to her taking alcohol and other addictive substances and the number of entries which referred to those activities, I find that the mother has taken substances such as ecstasy in the past and has engaged in excessive alcohol use on specific occasions as indicated in the diaries. However, I do not make a finding that she has had a history of continuous alcohol usage, especially as the diaries are limited to specific years, relate to a period at least ten years ago. Ms Heaton said there were periods when she did not drink, for example when pregnant with [X]. I emphasise that there is a very large amount of time between the date of the diaries and the past few years.
Mr Friendlander read out various excerpts of those tendered diaries to Dr Waters at hearing. Dr Waters agreed that such a history was “quite likely” but “not absolutely inevitable” to attract a diagnosis of binge drinking. Dr Waters conceded that if the evidence in the diaries was accepted, then it would indicate that Ms Heaton has a “substantially more significant history” than he was told and that the period from 1 April 2009 until the hearing was not a long enough time for her to demonstrate she had been successfully rehabilitated.
In his letter to Dr Wu’s solicitors, Dr Waters stated that if her history has been of “drinking being out of control episodically for a period of at least 15 years” it would reduce her ability to rehabilitate. However, Dr Waters emphasised that it was difficult to predict individual cases.
Mr Friedlander submitted that Dr Waters’ initial opinion was based on a false history of the mother’s drinking and urged the Court to find the mother’s unacceptable drinking had started as early as 1994.
I am not of the opinion that Dr Waters’ opinion regarding the mother’s rehabilitation has been undermined by my findings at [52], especially as I have found binge drinking by the mother only on discrete occasions during the relevant years and no finding that it has been continuous. I understand that there maybe a stronger risk of relapse if the mother’s history of drinking has been longer. Even without the caveat regarding the acceptance of the diaries, Dr Waters has never suggested the mother has rehabilitated. He stated that he was interested in abstinence and lack of intoxication. He said at hearing:
“[Y]ou can’t predict a lot about the future on the basis of four months of not drinking. The longer that period is, the more confident you can be that the people have put it behind them”.
He agreed that it “may well be” a matter for interim orders.
Dr Waters’ stated that alcoholics who were ‘rehabilitated’ may still have the urge to drink alcohol. I therefore place little weight on evidence that the mother has expressed a desire to consume alcohol. It is what she does that is important.
Dr Waters stated at hearing that the more candid a person is in relation to their drinking habit, the more they can be helped. His evidence in the family report was that although she had been candid, he felt there were some things Ms Heaton did not say to him about her drinking. With respect to her history, he found that the history she provided to him was similar to the one she gave to Dr C and to the Sydney Clinic. There was evidence Ms Heaton gave evidence as to past sexual abuse to Dr S only recently.
Mr Friedlander submitted that the mother has not been candid and that she has not accepted full responsibility for her drinking including blaming her husband for the problem.
Dr S in his affidavit of 26 June 2009 said that he did not consider the mother likely to relapse and that she was progressing “exceptionally well”. He noted that she had withstood some challenges such as not drinking over the June 2009 long weekend when without her children and that Ms Heaton was coping well with the stress of court proceedings. He also emphasised that whilst his report recommended a supervisor for the mother, this was to enable independent reporting rather than as a protective measure for the children.
In cross-examination Dr S stood by the opinion in his interim report prepared in March 2009. He said that the history given by a patient can be a significant factor but it was not the only thing and that the history she gave was certainly adequate. His opinion was that Ms Heaton did not need medication and that some of the alcohol abuse came from marital discord. He had been given a history that in the past 10 months she had engaged in binge drinking on two occasions. He said that her history only formed part of his opinion – albeit a significant part – which also included her presentation in hospital. He currently sees her regularly around once a week.
Mr Friendlander challenged Dr S’s evidence. He referred to Dr Waters’ evidence that even after four months it was difficult to make an assessment of relapse. Additionally Dr S did not know Ms Heaton’s full history. However, Ms Heaton’s evidence was that she continued to see him after the 15 days and Dr S at hearing confirmed his original recommendations.
Other evidence relating to the mother’s alcohol abuse include:
a)A letter from Dr C (exhibit A3) stating Ms Heaton has fleeting thoughts of alcohol when her mood is low. She is not currently taking medication for her depression and Dr C asked her to return to medication.
b)The mother agreed in cross-examination that she told someone from Allied Health in 10 June 2009 that she was scared of being alone as she might start drinking.
On the other hand, the mother has said she did not believe the children would be at risk with her unsupervised because it was not her intention to drink. Her evidence is that she has not had a drink since 2 March 2009.
She attends the Sydney Clinic outpatient program at least on a weekly basis, and attends the Outreach program on a weekly basis. She feels positive with this support and the separation from Dr Wu which has alleviated stress. She also consults Dr S weekly. Ms H has given evidence that she supports the mother in her attendance at these support sessions. She attended Alcoholics Anonymous at least once a week but at the time of the family report stopped attending.
Supervision and alcohol testing
Dr Waters said that the mother spending seven days continuously with the children without either supervision or testing put the children at risk. However, he indicated that although some form of a safety net was required, he said he did not necessarily mean both supervision and testing, nor did she require supervision 24 hours a day 7 days a week.
With regards to blocks of time spent with the children, Dr Waters agreed with counsel for the mother that the risk of drinking was present at any time. However he also agreed that if Dr Wu’s evidence that there was predictability to the mother’s drinking (in that it was mainly when she went out with her friends) was accepted, then the risk was primarily when the children were not with her.
Dr Wu in his initial applications sought that the mother be supervised for a period of 3 months. However he now continues to seek that her time with the children be supervised for at least 12 months and explained at hearing that at least three events have caused him to form that view. He indicated that these were:
a)
The event at [M] and other events at that time including
Mr Hurst’s communication to Dr Wu of [X]’s observation of the mother holding a bottle and glass of wine and looking red-faced/puffy;
b)During the June long weekend Dr Wu had trouble contacting the respondent he said which was “a behaviour pattern that I had seen before and aroused my suspicion”, including the daughters having difficulty speaking with her on the telephone and contacting her in his presence.
c)An incident in mid-June where Dr Wu had a conversation with Ms Heaton and from various observations it reminded him of when she had been drinking.
Mr Schonell at hearing cast doubt on the veracity of the evidence regarding (a) and (c). I place no weight on any of these pieces of evidence. They are merely circumstantial and in particular, with respect to (a), second hand hearsay.
Although the evidence against Ms Heaton is limited, I am concerned the results of the mother’s alcohol tests are also limited.
Regardless of Ms Heaton’s actual knowledge of a specific timeframe when alcohol dissipates in the body, at hearing she agreed that she would assume that if a test was delayed by 3 to 4 days then alcohol in the body would dissipate. Although she was quite emphatic with her lack of knowledge on how alcohol works in the body, she accepted she would make assumptions as to how it did. It is not a long stretch to say that the same assumptions as to alcohol she held at hearing would have been the same she held in April. It was clear from her evidence that she subjectively assumed that delays in attending the test would affect the alcohol tests.
Orders for alcohol testing within 24 hours of request were made on
1 April 2009. The mother has undergone at least 9 tests and her results have all been negative. However, there have been complications with her history of compliance with such requests and they do not assist greatly in indicating whether her rehabilitation is progressing:a)A request of 13 April 2009 was complied with 7 days later. Opiates were found but this was consistent with her having had surgery on 16 April 2009.
b)A request of 8 June 2009 was complied with 3 days later and opiates were found but the mother indicates this was due to the ingestion of Nurofen plus.
I find that she delayed taking the tests deliberately. Her lack of compliance with these tests is disappointing and reflects poorly on her especially as Ms Heaton indicated at hearing that she understood compliance with the testing within 24 hours was one of the means to prove she was alcohol free. Mr Friendlander submits that there is a strong inference the mother had been drinking.
The affidavit evidence indicates that Ms Heaton explained the April test coincided with her travelling to [M] and undergoing elective surgery whilst the June test was made on a public holiday, that she had some practical difficulties being tested at a clinic and also had a migraine. Although there are some unsatisfactory components to the explanation regarding the June testing, in all the circumstances I am unable to accept that the delay itself indicates the mother had been drinking. It does go to the effectiveness of testing as a form of supervision.
Although Mr Hurst also seeks the mother either be supervised or undergo alcohol testing, on 17 August 2009 I note that he allowed the mother to remain unsupervised with [X] because after weighing the risks and benefits particularly on that occasion, he thought the mother would not consume alcohol because the ‘court date was looming’.
In the event that I make orders that the mother be supervised, the appointment of an appropriate supervisor is a major issue.
Dr Wu suggests Ms H and Mr G be supervisors. He agreed that the supervisor would have to live in the same home with the children for the period of supervision. He has in the past expressed dissatisfaction with Ms H’s supervision due to her having to travel to [M] from time-to-time and fears her complicity in the mother’s drinking. He has now ‘softened’ his views towards Ms H.
Dr Wu did not approve of other supervisors, for example Ms S, although I note this related more to Ms S’s relationship with him than any criticism of her ability to supervise.
Ms Heaton indicated that there was no-one who could supervise on a 24 hour basis.
Ms H lives in [M]. She said at hearing that she would assist the mother but can only attend once every one or two months. Her recent affidavit indicates this is because of her partner’s retrenchment and that she now has to give attention to her business and property.
Family Violence
On 20 April 2004 Dr Wu was charged with common assault and assault occasioning bodily harm.
A certificate under s128 of the Evidence Act1995 (Cth) was provided to Dr Wu covering his evidence at hearing on 27 July 2009 on this issue.
From the material before me, the parties are generally in agreement as to what occurred on that day, with some minor differences as to the significance of each party’s role in the altercation.
Ms Heaton states that on evening of 1 March 2009 she and Dr Wu consumed alcohol together. Dr Wu denies they consumed alcohol together but rather when he came home he found a half consumed bottle of wine (which he assumed the mother had been drinking) down the sink.
The next morning Ms Heaton was not feeling well and asked Dr Wu to take the children to school which he did. Dr Wu’s recollection was that in the morning his wife appeared intoxicated and that she had agreed she consumed a bottle of wine in the night. Dr Wu then drove the children to school.
Ms Heaton’s evidence is that when he returned Dr Wu pushed her. She was thrown to the floor and held down by his knees on the wooden floorboards. Ms Heaton wrenched him off, he got her down again and then went off and telephoned his brother to act as a supervisor. He threw some things at Ms Heaton. She picked up a golf club to protect herself and then used one of his crutches instead.
Dr Wu’s evidence is that when he returned he found the mother parking the car in the driveway and he then confronted her about driving whilst inebriated. His evidence was that Ms Heaton attacked him first. In
re-examination he said that she was in a ‘violent rage’ and gave details of her attack. He said that her bruising was occasioned by him holding her down on the floor. However, he indicated that some other bruising was occasioned by Ms Heaton repeatedly launching herself at him and him holding his hands out in front to protect himself. He did not agree that she came through the door and he attacked her.
Ms Heaton disagreed at hearing that she had lunged at Dr Wu.
Both parties agree that Dr Wu called his brother Mr W who arrived and facilitated dialogue between the parties. Dr Wu’s brother corroborates that he attended their residence that day to discuss the relationship between the parties.
Dr Wu then went to work. Ms Heaton collected the children from school and took them to their extra-curricular activities. At 4.00pm she asked [X] to watch the girls so she could drive to the shops to buy a bottle of wine. She fed the children and prepared them for bed. The family report states that when she returned home she had 2 or 3 glasses of wine very quickly (which [X] noticed). Ms Heaton’s account was that she had 5 wines very quickly and went to bed. Dr Wu arrived home at about 10.00pm by which time Ms Heaton was in bed. He confronted her and pushed her out of the front door. She slept in the car as it was unlocked. At around 2:30am she found [X]’s window was open, climbed through the window and slept on the couch. She woke up early the next day, made the children’s breakfast and school lunches. She then telephoned Dr C who advised her to attend the Sydney Clinic. For the rest of that day she did not drink alcohol and went to the Sydney Clinic the next day.
Dr Wu’s evidence was that he returned home at around 9.00pm or 9.30pm and that Ms Heaton was in bed. He gave evidence of the children’s distress when he came home. He said that he then carried Ms Heaton from her bed (she still in her pyjamas) and took her outside by holding her arm in a manner described as “escorting”. Dr Wu did not agree that he had “frog-marched” his wife. Dr Wu agreed that this incident was observed by [X].
Dr Wu explained that it was an upsetting and disappointing incident. However, he did not agree that his behaviour was ‘disgraceful’.
Legal principles
The legal principles which govern this case are set out in Part VII of the Family Law Act1975 (Cth) (the Act). Most importantly, s.60CA provides that the best interests of the child is the paramount consideration.
In determining the best interests of the child, the Court must consider the primary considerations, which are set out in s.60CC(2) together with those matters (‘additional considerations’) set out in s.60CC(3). Also of relevance are ss.60CC(4) and (4A) of the Act which I have considered whilst addressing the matters set out in s.60CC(3).
Application of the law to the facts
The Primary considerations
The benefit to the child of having a meaningful relationship with both of the child's parents
Ms Heaton has been engaged in home duties since the birth of her daughters. Although Dr Wu’s counsel at hearing did not concede the mother has always been the primary carer, Dr Wu’s affidavit evidence states that Ms Heaton has been “[f]or the majority of [their] relationship”, “a stay-at-home mother” (with sporadic employment) but contends that she has had difficulties fulfilling this role.
The mother asserts that Dr Wu worked long hours and has been a relatively uninvolved parent. He spent time with the children when he could and has been actively involved in the children’s activities.
I find that the mother has been the primary carer of all three children, including being the primary carer for [X] since separation from Mr Hurst. However, I find that Dr Wu has been actively involved in many of [Z] and [Y]’s activities, including assisting with housework and caring for the children when the mother could not.
Ms Heaton’s relationship with [X] appears very complex. On the one hand [X] is unhappy to return to his mother’s home after staying with his father. On the other hand, [X] is very protective of his mother. The Easter 2008 incident indicates that the mother, although in part inciting [X]’s behaviour, was able to calm him down by talking with him.
The family report found that [Y] and [Z] had a strong attachment to their mother and a particularly strong and demonstrative attachment to their father. Dr Waters at hearing said that the girls’ attachment to their father was sufficiently strong that they could live with him quite well, even though there would be a disruption in making a change from the mother.
Although Dr Wu has worked hard, he has also been involved in his children’s lives. He has pursuits outside of his work, such as music and sport.
As the primary carer of all three children (which provides stability) and given her daughters’ strong attachment to her, I find that it would benefit all of the children to continue a relationship with Ms Heaton.
Clearly, Dr Wu has been positively involved in [Z] and [Y]’s lives, and their strong attachment to him means that it would benefit them to continue to have a relationship with him.
Although the time Mr Hurst has spent with [X] has not been continuous, he has always been a part of [X]’s life and has seen him regularly (a weekend each fortnight). My view is that it is critical for [X] to have a strong relationship with his father especially at this time. Although he has spent time with Dr Wu (and considers him a step-father), there are currently tensions in [X]’s relationship with both
Dr Wu and his mother.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Family Violence
The mother asserts that the father has been bullying and aggressive towards her and that there have been several incidents of violence.
Dr Wu in examination in chief denied having a habit of pulling the mother out of bed to talk to her. Dr Wu indicates that when the mother is under the influence of alcohol she becomes aggressive.
Mr Hurst raised incidents in June 2008 and March 2009 where [X] said his mother slapped him. Ms Heaton denies slapping him but said she has grabbed him by the face to make a point (she was not intoxicated at the time). There is also the incident on 12 April 2009 in [M], which I provide details later, where [X] held a curtain rod to defend himself against the mother. This is a matter of concern and I find that it indicates significant tension in the relationship between [X] and his mother. I do not however regard [X] as being at any unacceptable risk of harm from his mother in this regard.
I find the event of March 2009 between Dr Wu and Ms Heaton was a one off occurrence. [X] witnessed this incident. However, given that the parties are now living apart I do believe it is unlikely that such an incident will recur. I note that the mother admitted herself to the clinic shortly after the incident and that criminal proceedings only arose because Dr Wu himself went to the police to make a complaint.
Mother’s alcohol consumption
Dr Waters gave evidence that at least in the last six months of the relationship, the mother’s alcohol abuse was affecting the children and that the children were aware of it. This is supported by the affidavit evidence of both parties and the observations of Dr Waters’ at the interviews where the children talked openly about their mother’s drinking.
At hearing Dr Waters said exposure to alcoholism can affect children even when they are not aware of it, and that it probably had affected the two older children for a greater period of time than when they were consciously aware of it.
Problems with a parent drinking to excess included: neglect and parents being irritable to the children. There was very strong evidence alcoholism runs in families with children copying the parents. Children also feel burdened by conflicted loyalties.
The mother agreed at hearing that her alcoholic binges were putting the safety of the children at risk. The mother’s counsel accepted in submissions that in the years prior to separation the mother’s alcohol use increased to the point where the children were at risk and that from 2007 onwards the mother laboured under a significant disability.
The mother conceded there were days when she was unwell because of alcohol abuse and family friends would pick the children up from school and she in the past sent [X] to school by taxi. On the day of the altercation with Dr Wu (March 2009) she had left the children alone at 4:30pm, driven when she had previously consumed alcohol (although she said it had ‘worn off’), and bought more alcohol.
Dr Wu says that “when she [the mother] is intoxicated she becomes physically violent and verbally abusive”. He gave examples of arguments between them. He related two incidents prior to separation where the children saw the effect of alcohol on the mother – in 2006 where the mother waved a knife at the father and in 2008 where the mother took [Z] to a bar in Malaysia. I accept that these incidents further demonstrate that the children are at risk if the mother drinks to excess.
The family report indicates that the mother agreed that when she was drinking she was more impatient and would yell at the children more easily. [Z] said to Dr Waters that the mother’s drinking would make her “mother go crazy” which was explained as her mother becoming irritable and distracted.
The mother said to the family report writer that she has suffered blackouts. The father is also concerned about the mother’s blackouts and that this may affect her driving. Dr Waters’ reply to the father’s legal representatives indicated that blackouts are a direct and immediate consequence of heavy alcohol intake, which I accept.
Dr Waters was of the view that if the mother could maintain abstinence, her parenting should not be substantially impaired especially as she has been a satisfactory parent when not alcohol affected.
I find that that the mother’s drinking does pose a risk to the children. Although the evidence mainly relates to the mother’s excessive consumption of alcohol, I find on Dr Waters’ evidence that there is a higher risk of her relapsing if she commences drinking any alcohol. However, when she is alcohol free there appears to be no risk.
I do not find a need for the children to be supervised in her care whilst she continues to abstain from alcohol consumption – this was on the evidence of the expert witness and Dr S.
However, she needs to undergo regular testing to ensure that she remains alcohol free. Dr Waters stated the children were at risk if they were in her care for longer than 7 days if there was no testing or supervision. I am of the view that even if the children spend less than 7 day periods with her, there should still be a form of monitoring. She has said that she is happy to undergo testing and due to the significant risk to the children if the mother resumes drinking, I do not find weekly testing to be excessive, particularly as it is unlikely, given the costs, that the fathers will seek such testing unless there is reason for concern.
I found above the mother deliberately delayed attending testing in the past. It is very important that there is monitoring of the mother’s progress and that she complies with the orders. However, in the circumstances and the difficulty with having an appropriate supervisor, I find that testing is still an appropriate form of monitoring. I have made orders that the mother must provide explanation to the requesting father within 48 hours if she does not comply with the testing, including delaying the testing. I have provided 48 hours because there may be some unforeseeable events that may reasonably prevent the mother from contacting the father/s.
I have made orders that the parties are able to relist the matter if the mother does not comply with the orders as to testing without reasonable explanation to Mr Hurst or to Dr Wu. This does not mean that failure to comply with the orders with reasonable explanation on a significant number of occasions is acceptable and it may well go to whether there is a significant issue regarding the children’s welfare.
I have considered part time supervision of the mother, but I am of the view that testing is acceptable.
The father’s raise the risk of the mother’s relapse. There would be a risk of harm to the children if they were in the mother’s care if she were to relapse into excessive alcohol consumption.
I find that on the evidence (especially in relation to Dr Waters and
Dr S) and the implementation of testing, I do not find there is an unacceptable risk of harm to the children being in the mother’s care, including if they were to live with her and spend time with their fathers.
Dr Wu’s alcohol consumption
The mother’s evidence raises issues of alcoholism on the part of
Dr Wu. Dr Waters indicated that from his estimates, Dr Wu would technically meet the definition for Alcohol Abuse Disorder. However, there was no evidence it affected his capacity to work.
The Mother contends Dr Wu consumed alcohol on a daily basis since she has known him. Dr Wu denies consuming excessive amount of alcohol. He indicates that he has undergone testing as requested by the orders. I accept that on one occasion he did not attend because of a communication difficulty with his lawyers and that on another occasion he attended a work function which caused raised levels of CDT.
There is no evidence that Dr Wu’s alcohol consumption has affected his parenting. Further, the family report states [Z] is not aware of him ever drinking in front of her.
I find there is no unacceptable risk to the children with respect to
Dr Wu’s current drinking habits.
Other substance abuse
Both Dr Wu and the mother admit to consuming illicit drugs, such as cocaine, but both only admit to consumption together.
The mother contends she has only sporadically used cocaine and always with Dr Wu. The last time was New Years Eve in 2008/2009. She says Dr Wu provided the cocaine and instigated the use of it.
Although I find it unsatisfactory that both parties have engaged in consumption of illicit drugs, I do not find on this evidence that it has affected their parenting or placed the children at risk of harm.
Additional considerations
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The evidence of all the parties is that [X] has said he wants to live with Mr Hurst. Dr Waters described his view as being expressed “quite strongly and decisively”.
[X] said that his mother’s place was ‘the worst place in the world’.
Dr Water’s explained however that this was only one aspect of his feelings towards his mother’s home and that one important factor in [X]’s opinion was that he was the centre of attention at his father’s place where he enjoys being special. Dr Waters also said at hearing that he thinks he, “also has a need to be [special] – but it doesn’t seem to me that any of the parties disagree about that part of it”.
I am not aware of any views expressed by [Y] or [Z].
The Full Court in Harrison and Woollard (1995) 18 Fam LR 788 expressed approval of the statement by Hannon J in Doyle and Doyle (1992) FLC 92-286 where his Honour said:
“If the Court is satisfied that the wishes expressed by the child are soundly based and founded upon proper considerations as well thought through as the ability and state of maturity of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances.”
In R & R: Children's Wishes (2000) 25 Fam LR 712 the Full Court discussed the decision of Harrison and Woollard (1995) 18 Fam LR 788 and concluded that:
It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so
[X] is now twelve years old. However, Dr Waters found [X] to be emotionally immature. He found that [X]’s views in some ways reflected being the centre of attention at his father’s place and that he is more indulged at Mr Hurst’s home. Dr Waters also found that [X]’s view reflected the difficult atmosphere in his mother’s home over the last 18 month.
I am of the view that [X]’s opinion does stem in part from the difficult situation at his mother’s house relating to her excessive alcohol consumption.
I therefore give [X]’s views some, but limited, weight.
(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);
I found above that the mother has been the primary carer for all three children; that Dr Wu has been involved in his daughter’s lives; and that both daughters have strong attachments to Ms Heaton and to Dr Wu.
I have also found there is benefit in a relationship between Mr Hurst and [X].
Dr Wu has cared for [X] since marrying Ms Heaton with [X] calling him ‘Dad’ (he also calls Mr Hurst ‘Dad’). He has been involved in [X]’s life, such as being his soccer coach and travelling to school/work together in the mornings. Ms Heaton agrees he has been a good step-father. She says there is a father/son tension has developed between them, something which she thought was common amongst teenage boys and that it was something both father and son contributed to. I am of the view that it is important to keep in mind that although [X] has a father, Dr Wu has cared for [X] for many years and there is a strong relationship between them. Dr Wu indicates that although the orders do not provide specifically for time with [X], he said he sometimes speaks to him on the telephone and that Mr Hurst has brought [X] over to Dr Wu’s place.
There is tension between [X] and Ms Heaton. Ms Heaton’s response as to why [X] would take such a negative view of her household, was that it was probably his opinion on the day and reflected more discipline in her home and that “at least the last year hasn’t been pleasant for him watching me”.
I have also had regard to the events of 12 April 2009 (‘the [M] incident’).
On that day, [X] had been given some toys in the form of action men which [Y] had accidentally broken. When [X] found the broken pieces on the mattress in his room he became very upset. Ms Heaton spoke to him and tried to calm him down. At one point he locked himself in his room. The mother knocked on the door and he told her to go away. The mother then went straight to the kitchen, obtained a bread knife and prised open the latch. She said she was concerned for [X]. When she came into the room [X] held a steel bar (which the mother believes to be a curtain rod). She said he said to her “go away or I’ll hit you” or words to that effect. She agreed that it was a serious thing for a child of his age and that it was out of the ordinary. The mother then spoke with [X] and he calmed down.
[X] had been on the phone to Mr Hurst who called Dr Wu who called the police (who didn’t come until midnight). Ms H agreed that the mother had not been drinking that night. The mother, in cross-examination said she did not know why [X]’s behaviour had been so extreme.
Counsel for Dr Wu indicated that [X] was scared of his mother because he had seen her violent behaviour. I find that there is tension in the mother’s household. Dr Waters’ said that “[X] appears rather unhappy and trouble”. When cross-examined on this finding he accepted that it was “quite possible” this was caused by his mother’s uncooperativeness over the years and her drinking of the last couple of years.
[X]’s relationship with Mr Hurst appears to be very good and as noted above during the [M] incident, he called Mr Hurst when he needed assistance. However, he has not lived for long periods with Mr Hurst. As discussed above, [X] feels special at Mr Hurst’s place being an only child. I note that the observations of Dr Waters was that [X] did not interact with Mr Hurst. Mr Hurst explained that it was [X]’s mood that day. Ms Heaton agrees that [X] gets along with Mr Hurst. Dr Waters in his report also notes that “I wonder whether [X]’s relationship with his father has even more immature elements to it and perhaps also petulance than his relationship with his mother”. Dr Waters at hearing indicated that although the children could have different regimes, he was not saying that [X] needed to spend more time with his father than the girls with their father.
All three children have lived with each other. Dr Waters’ observation of the children together was that they were very positive with each other, with [X] interacting with them more as a peer than as a child who was older. His evidence at hearing was that the children’s relationship with each other is very important and continues into their adulthood. I have discussed this factor further (under factor (e)).
Dr Waters’ recommended at hearing that:
“So I think – so I think that if he is not – the less time he spends with his sisters, the greater the threat there is to that [the sibling relationships]. I mean, if he was to spend five days a fortnight, or six days a fortnight, I don’t think it would enormously undermine that but, you know, it would perhaps be not quite the same as spending a few more days a fortnight – a few more days a fortnight with them.”
I have also had regard to [X]’s relationship with Mr Hurst’s partner,
Ms B, because Mr Hurst’s orders seek for [X] to live with him.
Mr Hurst did not agree at hearing with the proposition that [X] did not get along with Ms B, but did agree there had been on occasion shouting matches between her and [X]; the last one being a month ago. There was very little evidence as to this issue. The family report notes that
Mr Hurst said this was because of Ms Heaton turning [X] against
Ms B. At one point [X] slapped Ms B across the face. Ms B and Ms D (Mr Hurst’s sister) would be home to care for [X] in the event Mr Hurst was delayed at work.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
There is evidence of a continuing lack of communication between
Mr Hurst and Ms Heaton. Dr Waters was of the view that Ms Heaton has been quite uncooperative towards Mr Hurst over the years and was only now behaving appropriately because her parenting has been in the spotlight.
Mr Hurst alleges that the mother has been uncooperative about the time he has spent with [X] since separation when [X] was only 15 months old. He also asserts that the mother has a negative attitude towards him and his partner Ms B and that this has adversely affected [X].
The mother engaged Ms B, psychologist, to address issues in the family dynamic and the mother, Mr Hurst and [X] have attended sessions with her. On the other hand, Mr Hurst refused to go to counselling at UNIFAM because there were court proceedings in place.
Regardless of their ability to communicate with one another, and the difficulty Mr Hurst alleges as to his having time with [X], [X]’s relationship with Mr Hurst is quite good and time with Mr Hurst is currently working. It does not appear that the relationship between the adults interferes with the relationship between [X] and Mr Hurst. This is supported by the fact Mr Hurst in cross-examination agreed he did not have a good relationship with Ms Heaton but he would be enthusiastic about encouraging [X] to spend time with the mother as long as she was not drinking. He said he was happy for [X] to see his mother whenever he wanted.
Mr Hurst indicated that he and Ms Heaton are not able to discuss [X]’s welfare and telephone communication is difficult. Mr Hurst takes [X] at his word and does not confer with the mother. Additionally Mr Hurst has not raised any concerns regarding the mother’s parenting e.g his concerns over allegations she has slapped him, the children being aware of her drinking, or his concern she was denigrating him in front of [X]. With regards the latter, Mr Hurst said: “it was ‘typical’ of her”.
Dr Wu states he wants to assist Ms Heaton with her rehabilitation. This is denied by Ms Heaton and there is conflicting evidence as to
Dr Wu’s support or lack of support for Ms Heaton attending Alcoholics Anonymous. I do note however that Dr Wu did not stop his own drinking even after becoming concerned about Ms Heaton’s drinking. He also did not allow her to return to the matrimonial home after leaving the clinic. In relation to difficulty in communication, I also note the incident on 2 March 2009 and the difficulty in telephone contact with the girls.
Dr Wu seeks the mother be supervised but only proposed two appropriate supervisors, one of which he was dissatisfied with and the other, Ms H, who lives in [M].
Dr Wu agreed that he said to the daughters (and [X]) words to the effect that the mother needed to go hospital so that she can love them properly. He indicated there were various other things said that day and that he said this to comfort and reassure them. He also referred to the incident where the mother waved a knife at him.
Ms Heaton says she supports telephone contact but Dr Wu has frustrated this contact.
There is certainly conflict between the mother and Dr Wu. However, both parties have said they would encourage the relationship between the children and the other and since separation they have done so, including agreeing to some interim overnight time for the girls to spend with Dr Wu.
(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;
Both applicants have only sought orders as to their biological children and they do not seek formal orders as to how [X] would spend time with [Z] and [Y].
Dr Waters, in response to being asked by Mr Hurst about [X] living with him, indicated that although being separated from his sisters might be a ‘big relief’ for [X], he was of the view that it was important for [X] to spend time with his sisters. He said that [X] was “quite attached” to his sisters and that:
“[H]aving to live with his sisters – I don’t mean 24/7 but having to live with his sisters is an important part of growing up for him…The better his relationship with his sisters can be consolidated, and be a really important central part of his life, the more robust that relationship will be for the next 50 or 60 years, which is really what you want, you know. So I think – so I think that if he is not – the less time he spends with his sisters, the greater the threat there is to that. I mean, if he was to spend five days a 15 fortnight, or six days a fortnight, I don’t think it would enormously undermine that but, you know, it would perhaps be not quite the same as spending a few more days a fortnight – a few more days a fortnight with them.”
On the other hand, Dr Waters noted that there were also benefits to [X] being an only child as he would be able to obtain the attention that he needs. These benefits of [X] living with Mr Hurst would only occur if his neediness was not overindulged, he was not going to be a ‘latchkey child’, and that his sisters continue to “play a big part in his life”.
Dr Waters indicated that [X] is very eager to please both of his parents. Even though he has expressed a wish to live with his father, if taken away from his mother he may feel guilt about this.
[X] is currently a year 7 student at [R] in [B]. Mr Hurst indicated that if [X] lived with him he would move him from [R]. He did not think the move would be a bad thing. The school said that they could ‘work something out’. Dr Waters’ evidence was that it did not matter so much that [X] stayed at the same school but that the school he attends should had an active anti-bullying programme. He indicated that mixed-sex schools in his age group were less associated with bullying than single-sex schools.
[X] would have to change schools in 2010 regardless of the outcome of these proceedings as the parties have paid his school fees until the end of the year but are unable to pay beyond that. Mr Hurst said that he would leave [X] in the current school this year.
Dr Waters recommendation was to continue the current arrangements for [X].
I give weight to the children living together:
a)They have been together all or most of their respective lives;
b)There are psychological benefits as described by Dr Waters;
c)The benefit to [X] of living with Mr Hurst is uncertain due to a lack of evidence as to the suitability of Mr Hurst’s household;
The fathers have indicated that they would support the children spending time with each other but no formal arrangements were proposed. Although Dr Wu is not [X]’s biological or legal parent, he has cared for [X] for a number of years.
The mother seeks orders that [X] may see his own father from after school but the girls can only spend time with their father from 6.00pm because when she was in hospital the children were with the father and they did not go to some activities.
Dr Waters has indicated that although it maybe at first hard for the daughters to live with Dr Wu, due to their strong attachment to their father they would be able to cope reasonably well.
I am of the view if [X] went to live with Mr Hurst, this may affect his relationship with his mother – [X] has indicated he is unhappy returning to his mother’s house after spending time with Mr Hurst.
Mr Friendlander submitted that part of Dr Waters’ recommendation relied on the need for the children to spend lots of time together. Mr Friendlander indicated that the fathers reside a short distance from each other, have an amenable and supportive relationship and the children would be able to sleep over with each other and see each other after school. He submitted that “they’ll still be seeing each other on a virtually daily basis”.
Dr Waters’ evidence was based on the least disruption to the children. I note that the matrimonial home will shortly be auctioned and that if the children were to continue living with their mother they would in any event reside in a different house.
(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;
There are difficulties surrounding the supervision of the mother, choice of supervisor, and how it affects the mother’s ability to care for the children (e.g. logistics of taking the children to extra-curricular activities), including spending one-on-one time with the children.
Both fathers seek the children live with them and to spend time with the mother. However, the fathers’ capacities to care for the children are affected by their employment obligations.
Children spending time together
Due to the orders which propose different arrangements for the children, I have considered the difficulty with the children spending time with each other and [X] spending time with Dr Wu.
Mr Hurst said of his relationship with Dr Wu that: “Well, we have a dual interest in the children at the moment and so we go around just to make sure that they re seeing each other”. He indicated that he would like [X] to spend time after school with the girls and also to see
Dr Wu’s extended family on the weekends. Mr Hurst’s evidence was that he currently resides 200 metres or one block away from Dr Wu.
I am unsure how these informal arrangements would work although the fathers assure me that the children’s views would be considered.
The children’s activities
The children’s routine are as follows:
a)[Y] finishes kindergarten at 2:00pm
b)[Z] finishes school at 3:30pm.
c)On Mondays both girls attend drama from 3.15pm to 4.15pm; [X] has martial arts at 6 to 7pm.
d)On Tuesdays [Y] attends ballet from 4pm to 5pm; [X] attends the gym from 3pm to 5pm.
e)On Wednesdays [Y] attends yoga in the afternoon; [X] attends band practice in the morning;
f)On Fridays [X] has ‘cycle test’ before school and finishes school at 2.30pm.
Dr Wu states that [Y] has only recently been attending yoga.
Although these activities may change in the future, I am of the view it is important to consider how the fathers’ work and outside commitments affect their ability to care for the children, including attending to these current extra-curricular and sporting needs.
Dr Wu
Dr Wu is a [healthcare professional] at [B]. His original contract of employment was never produced to Court as a signed copy could not be found, and the amended contract that was produced did not incorporate the whole of the contract.
Dr Wu sets out in his affidavits and oral evidence his employment obligations and contends that he would have the capacity to care for his daughters if they were to live with him according to the orders he seeks.
Dr Wu currently works at [B] but his contractual obligations are to the parent company. However, he indicated that the location of his work was through “mutual agreement” and rather than the employer being able to stipulate a particular branch.
Dr Wu confirmed that his employment contract requires him to attend work 50 hours per week. He works at an ‘extended hours’ [omitted] (7am to 10pm 7 days a week) and by agreement he works late on Mondays. He is obliged to work weekends but his commitment to work on Saturdays is ‘variable’. This year the pattern of working on a weekend would be described as one Saturday per month approximately and – a Saturday and a Sunday per month. Not necessarily in the same weekend. The decisions on which days are made by arrangement between him and his co-workers and are determined by seniority. In cross-examination in reply to the question “So you can positively tell his Honour that you can guarantee that there won’t be a weekend when the children are in your care that you work?” Dr Wu replied: “That is correct”.
The mother contends that Dr Wu works from 7am to 7pm on Tuesdays to Saturday and from 8.30am to 10:30pm on Mondays.
Dr Wu in his affidavit says that leading up to separation and after separation he has reduced his working hours.
He is contracted to work public holidays and a certain number of nights each fortnight (two nights a week). However, he indicated that his contract was amended by mutual agreement and therefore he need only work one night a week. Dr Wu was not sure if there was anything in the written contract which excluded oral amendments.
Dr Wu said his contract allows him 4 weeks of leave per year (unpaid) although he was not aware of any technical allowances for further time. Although he is not obliged to take those weeks off, they are not able to be carried over to the next calendar year.
He has indicated that he is able to take more time off work than stipulated in the contract because he has been in discussion with his employers and has “received assurance that, given my situation and possibility of future obligations towards caring for my children, that my working arrangements will be adjusted to allow me to do whatever is necessary”. Dr Wu indicated that this was in writing and is attached to his affidavit. Annexed to his affidavit of 6 July 2009 as annexure J is a letter from a Dr J of 30 June 2009. In re-examination, Dr Wu indicated that Dr J was the medical director and has been aware of Dr Wu’s situation since March. That letter states the medical practice is aware he would require time off during half of the school holidays and that once his time with the children during the school term is decided, they would amend the roster accordingly.
During the time the mother was at the clinic, Dr Wu hired the assistance of a Nanny, Ms K, who worked from 19 March 2009 until the mother’s release on 26 March 2009. In his affidavits, he deposes that he can drop off and pick up the children from school but in the event he cannot, then his family members and the nanny could assist.
Dr Wu also did not take the children to their extra-curricular activities. He says this because in the circumstances at the time he thought it was best for them to stay at home.
At hearing, Dr Wu indicated that during the holiday period in April 2009 when his daughters were residing with him for 10 days, he had to go to work on four of those days. They were cared for by the paternal grandmother and paternal aunt. He indicated in cross-examination that this was not a “consistent pattern moving into the future of his working arrangements” and that it was unique.
Dr Wu agreed that he could accommodate Dr Water’s recommendation in his work roster. He stated that according to his own proposal he would personally take the children to school and pick them up. However, he has entertained the idea of a nanny and was uncertain whether or not he would acquire the services of one in the future.
Dr Waters found that Dr Wu’s proposals meant that he would be reliant upon others to assist him in caring for the girls at the beginning and at the end of the day. This was not necessary restricted to a nanny and could include a family member.
The Mother seeks Dr Wu to collect the children from 6pm. She is concerned he would not support their afternoon activities such as ballet and yoga.
The father’s most recent affidavit however, indicates he has the children for 5 nights out of 14 and been able to care for the children.
Mr Friendlander submits that Dr Wu has previously worked long hours because of the financial issues relating to supporting his family’s lifestyle and which was not now an issue. Dr Wu’s affidavit filed 6 July 2009 says: “This [arrangements with his employer] must be balanced against the heavy financial burden which I am currently carrying alone, and which can only be met by working more hours, which I do not believe is in the best interests of the children or of my health”. In a later affidavit he confirms reducing his working hours would be in the children’s and his own health interests. Dr J’s letter does not say the medical practice is aware of whether Dr Wu is seeking primary care of the children or of any orders he is seeking. This is important as Dr J’s assurance may rely on an assumption of what Dr Wu seeks.
I am not entirely persuaded by Dr Wu’s evidence regarding his work hours and obligations. They rely on flexible arrangements which although have allowed him to care for the children on some occasions (I note in particular examples in July), it is quite uncertain how flexible it is for him to spend time with them for longer periods. In particular, his obligation to work certain days and hours, even with Dr J’s assurances, will impact on how much time and when he can care for the girls. I note however that he has been able to demonstrate adequate care of the girls 5 nights a fortnight.
I find that Dr Wu has very significant work obligations which would likely impact on the time he can spend with his children, especially with regards to their school hours and extra-curricular activities.
Mr Hurst
Mr Hurst works as a [omitted]. His work hours vary each month.
Mr Hurst provided that in one month he may work from 8.00am till 4.00pm and the following month from 11.00am until 7.00pm. Mr Hurst indicated that he has a colleague he could swap shifts with when necessary. He has also indicated that where he cannot be at home, he has made arrangements for his partner, Ms B, to care for [X] after school and his sister Ms D. Tendered as an exhibit was a letter from Ms D which states she can look after [X] when he is unavailable.
Ms B has not sworn an affidavit in these proceedings. In any event, he indicated that Ms B works in [omitted] and her working hours were 8.00am to 5.00pm and that [X]’s school finishes at 3:30. He indicated that he has a letter from his employer indicating flexibility but they are not attached to his affidavit.
Both Ms Heaton and Dr Waters fears that [X] would be a ‘latch-key’ child i.e. there would be limited adult supervision in Mr Hurst’s home after school. The mother says that she could care for [X] after school.
The mother is also concerned that Mr Hurst is not equipped to deal with the day-to-day care of [X] including a failure to take him to extra-curricular activities.
Currently Mr Hurst sees [X] in total 5 days a fortnight including overnight time. There has been no evidence put forward that Mr Hurst has had difficulty with that amount of time.
Dr Waters was concerned about Mr Hurst as he has been “largely untested as a parent on a day-to-day basis”. He was concerned about Mr Hurst’s lack of parenting experience and deeper awareness of [X]’s problems.
In all the circumstances I find that although Mr Hurst is clearly a significant figure in [X]’s life and it is important this relationship develops, there are limitations on Mr Hurst’s ability to be a full time carer.
(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;
The mother has in the past not been able to care for the children due to her alcohol consumption. However it appears that when not under the influence of alcohol, the mother is capable of caring for them.
(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;
There is evidence that [X] has been bullied at school which I have already canvassed. This has affected his self-esteem.
Dr Waters’ evidence at hearing was that:
I think probably that the girls seem to be in general seem to be sort of happier, more content sort of children, whereas [X] is a rather insecure boy with not very good self esteem.
The family report also outlined some problems with self-esteem such as difficulties in the past with schooling and self-image. Mr Hurst told the family report writer that [X] can become withdrawn at times and bang his head when he is angry.
Dr Waters’ examination indicated that [X] seemed uncomfortable with questions about the separation of his parents and it appeared the parties had each been saying things to him about each other. I find the conflict between his parents and the separation of Ms Heaton and Dr Wu have exacerbated tensions between [X], Dr Wu and his mother.
Much of the affidavit evidence and Dr Waters’ evidence indicate unhappiness on the part of [X] and negativity towards both his mother and Dr Wu. On the other hand the affidavit evidence and Dr Waters’ observation demonstrate that [X] feels very protective of his mother.
Mr Hurst submitted that [X]’s troubles could be attributed in part to his mother’s behaviour. He submitted that having [X] live with the mother would only exacerbate [X]’s problems.
As noted above, [X] feels being at Mr Hurst’s house. I think this is very important to him in light of his personal development and the relationship between his mother and Dr Wu. I think it is important for [X] to feel special and to recognise the effects of conflict and bullying on the child.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have previously discussed the mother’s alcohol abuse. I particularly note here the mother’s abuse had taken control of her life and in some instances meant the children suffered detriment, e.g. being unable to take or pick the children up from school. This is supported by
Dr Waters’ general evidence that that one of the significant consequences of children being aware of a parent drinking was that it indicated a “lack of awareness – or a relative insensitivity to the needs of the children, that the need to drink predominates…” . This irresponsibility toward her responsibilities as a parent was conceded by the mother’s counsel for the period from 2007 onwards.Dr Wu indicated that he changed practice branches and adjusted his working hours to be at home more often as his Wife’s drinking became more problematic. He indicated that his work was 35 minutes from their previous home prior to the branch move (he was at [N]).
He worked long hours for financial reasons which he and Ms Heaton had discussed. During the periods when Ms Heaton had been binge drinking and recovering, Dr Wu had cared for both the children and
Ms Heaton.
The mother says the father had not adjusted his work hours in the last year or 2 years of marriage.
There were other issues raised in relation to parenting by Dr Wu and Ms Heaton, including Dr Wu travelling to Vietnam for 3 weeks, not raising his concerns about the mother’s blackouts if she drove prior to separation, and both parents not taking any steps to address [Y]’s ‘self-rubbing’. Whilst perhaps indicating some lack of insight on the part of both Dr Wu and Ms Heaton, I do not find any of these issues of significance.
Both Ms Heaton and Dr Wu have taken an active interest in their children’s lives. Overall they have shown a responsible attitude to parenting. In the case of Dr Wu who has taken responsibility for [X] and cared for the children whilst the mother was recovering from excess alcohol consumption, he has shown very responsible attitude. The mother has played a very active role in the girls lives, including being heavily involved in activities.
The mother asserts that Mr Hurst has been disinterested in the day-to-day aspects of [X]’s life and has not been providing financial assistance. Dr Wu has been paying for [X]’s schooling at [R]. Mr Hurst agrees that he has in the past not played any part in decisions about [X]’s schooling or activities and was never told about events and school reports. There were also concerns that Mr Hurst did not communicate his concerns about Ms Heaton’s parenting.
I find that there have been significant communication difficulties between Mr Hurst and Ms Heaton and this is the primary problem. I note Ms Heaton says that Mr Hurst usually comes by twice a week to drop off [X]’s things and may stay at the house up to 15 or 20 minutes, such as to set up a computer game.
(j) any family violence involving the child or a member of the child's family;
I have discussed this factor above.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
I have discussed this factor above.
(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;
The family report stated that “The most urgent need is that final arrangements are made for the children”. This recommendation was made with respect to the children’s emotional and behavioural states and which were not assisted by the current disruptions to their lives.
However, with respect to the mother’s alcohol abuse it was noted that it “may well be” a matter for interim orders, with self-executing orders in place.
After I heard the parenting application, interim orders were made with respect to the property proceeding between Ms Heaton and Dr Wu. The orders provided the parties were to sell the matrimonial home.
Dr Waters’ evidence was that;
“[I]f it is the case that she is able to maintain abstinence, then I do not see why her parenting would be substantially impaired. She seems to have been quite a satisfactory parent when she has not been alcohol affected, although perhaps rather uncooperative towards Mr Hurst in respect of [X]”.
and
“I would emphasis that for orders to be made for the children to reside with their respective fathers, there would need to be a demonstration that the mother is unable to rehabilitate herself, because probably the least disruptive arrangement for the children would be one which would entail them living with their mother and spending fairly substantial periods with their respective fathers”.
The incident which triggered the separation from Dr Wu and
Mr Hurst’s application was the voluntarily admission in March 2009. Four months have elapsed since her discharge and the time of hearing.
In this case I have given a great deal of consideration to the question of whether I should make interim or final orders. On the one hand there is clearly a benefit in bringing the matter to a conclusion. However, on the other hand there are many unknowns, most importantly whether or not the mother will be able to refrain from drinking. Although I found above that at the moment there is no unacceptable risk to the children being in the mother’s care unsupervised for long periods of time, I accept it is too early to come to a final view as to the mother’s rehabilitation.
The overriding consideration is the best interests of the children in each case.
It is because of all the uncertainties, particularly the lack of certainty as to the mother’s capacity to overcome her problems with alcohol that I have decided to make interim orders. This is a question crucial to the welfare of the children and there needs to be more time before a final conclusion can be reached. In the meantime, if the mother continues to abstain from alcohol the evidence is that the children are well cared for. If she fails to abstain other arrangements maybe necessary.
There are also many questions left unanswered as to how [X] would fit into his father’s household, how he would maintain a relationship with his sisters and how Dr Wu would be able to balance his need to work and full time responsibility for the children. Property proceedings between Dr Wu and Ms Heaton are yet to be resolved and may also impact on where the parties live and any arrangements for the children.
(m) any other fact or circumstance that the court thinks is relevant.
The mother says that Dr Wu is the ‘requesting doctor’ for the alcohol tests. I have given consideration as to whether the fathers are able to directly communicate with Ms Heaton regarding the tests or whether it should be mediated through the legal representatives. I am of the view that the fathers can be allowed to directly contact her (rather than through the legal representatives) as this should minimise any delay in Ms Heaton receiving (and responding to) the request.
With respect to Dr Wu’s involvement in Ms Heaton’s rehabilitation, I make no orders as to clinic notes being sent directly to him. This is because any such order would only exacerbate the communication difficulties and acrimony between the parties and in any event,
Ms Heaton does not want Dr Wu to be involved in that aspect of her rehabilitation.
Presumption of equal shared parental responsibility
I find that issues of violence and the mother’s alcohol abuse do not pose a risk to the children at this point in time. The [M] incident between the mother and [X] is of concern. However, I am not of the view it rebuts the presumption of equal shared parental responsibility. The mother has been the primary carer of the children and she has demonstrated an adequate ability to care and make decisions regarding their welfare provided she remains sober.
Additionally, Dr Wu and Ms Heaton agree there should be equal shared parental responsibility with regard to the children of the respective applications. Although Mr Hurst has not been as involved in [X]’s parenting in the past, and has difficulty in communicating with
Ms Heaton, I find they will both attempt to responsibly deal with parenting decisions as both parties have evinced an intention to be involved in [X]’s life.
Consideration of equal time or substantial and significant time
Section 65DAA of the Family Law Act 1975 (Cth) states that:
(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.
In submissions, Mr Friedlander said that “a sharing arrangement at the very least as much time with the father as with the mother would work and would work very well” because the children would spend a lot of time with their fathers but minimise the risk with the mother. He sought an opportunity to provide submissions on such an arrangement if I were to consider it as appropriate.
Mr Schonell stated that equal time for the girls with Dr Wu would not be appropriate due to the unresolved issues relating to March 2009 and the lack of communication between them. With regards to Mr Hurst, Mr Schonell was of the view that equal time would not be appropriate due to the lack of communication between the parties. I note that, equal time was not sought by the parties throughout the hearing except as raised by Dr Wu’s counsel in submissions.
Federal Magistrate Ryan (as Her Honour was then known) summarised in H and H (2003) FLC 93-168 the various factors as to shared care. Although that decision was determined prior to the 2006 amendments it is still applicable with regards to those factors to consider with respect to shared care. Her Honour said:
47. Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
• The parties' capacity to communicate on matters relevant to the child's welfare.
• The physical proximity of the two households.
• Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
• The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
• Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
• Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
• Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
• Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
• Whether or not the parties respect the other party as a parent.
• The child's wishes and the factors that influence those wishes.
• Where siblings live.
• The child's age.
48. This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s 65E nor s 68F(2). Each factor fits comfortably within s 68F(2).
The paramount consideration is still the best interests of the child.
This is much evidence of poor communication between the parties e.g. affidavit evidence of the difficulty in providing [X]’s things when changing residence (see Mr Hurst’s affidavit evidence in annexures), difficulty in contacting each other, difficulty in communicating drug testing results which although not a parenting issue goes to difficulty in communicating. Dr Wu also seems to express some difference of opinion as to parenting with Ms Heaton (e.g. having the television on during homework, whether the children should attend extra-curricular activity during March 2009). I note that that there was evidence of different rules in the households of Ms Heaton and Mr Hurst.
On the other hand, the parents have been quite civil at change over.
I find that equal shared care would not be in the best interests of any of the children. There is a lack of communication and conflict between both fathers and the mother, different rules in the households and a lack of confidence on the part of the fathers as to the mother’s parenting capacity.
In essence, the mother has sought the children live with her and that they spend 5 nights with their respective fathers. This was Dr Waters’ recommendation. The orders sought by the fathers also indicate the children are to spend significant and substantial time with their mother.
I am of the view that it is crucial for [X] to spend time with Mr Hurst. In light of his changing relationships with the significant adults in his life, [X]’s personal development and the changing nature of his household (with Dr Wu not being present), I think that it is important for him to spend time with Mr Hurst and that his views are taken into consideration.
However, in considering the arrangement for these parties I am disappointed by the lack of the evidence before me. There was little evidence on Mr Hurst’s household nor much information provided regarding his partner, Ms B, and her relationship with [X], and no more specific and detailed information as to how Mr Hurst would ensure [X] would be cared for at times when he was not present.
Additionally, if the children were to live with their respective fathers, I find the arrangements suggested for the children to spend time with each other are vague.
I am not entirely persuaded that Dr Wu’s employment hours would allow him to care for the children as the primary carer. I have found the mother does not currently pose an unacceptable risk of harm to the children.
Dr Waters’ evidence focussed on the least disruption to the children. With regards to the concept of status quo, I have regard to the decision of Goode & Goode (2006) FLC 93-286 wherein the Full Court said:
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.
…
That is not to say that maintenance of a stable arrangement will not be in the best interests of children in a particular case, but it will be one of the factors to be considered pursuant to the additional considerations in s 60CC(3) and to be determined in conjunction with the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents.
I understand that the mother has at times dealt with [X] inappropriately. However (except for the [M] incident), most of this related to her alcohol consumption. The mother appears not to be consuming alcohol. She was found to be a satisfactory parent when not consuming alcohol.
Additionally, by residing with their mother the children would spend more time together. This is important given the children have enjoyed this arrangement their whole lives, not only would this benefit the sibling relationships, it would also be the least disruptive to them (even with the selling of the matrimonial home).
On the evidence I am not persuaded to change the children’s residence, although I am however concerned about [X]’s emotional/psychological needs which I have found may benefit from more time with his father. However, on the limited evidence before me I find that changing his residence at this stage would not be in his best interests. I have however provided additional time for [X] to spend with his father during the Christmas/New Year school holiday period in 2009.
I find that significant and substantial time in the form of 5 nights each fortnight with their respective fathers, half of holiday time (except for the Christmas/New Year holiday period for [X]), and significant and special occasions, would be in the children’s best interests. The evidence indicates that this amount of time has demonstrated a capacity to maintain a meaningful relationship between the children and their respective fathers. I am of the view that it would also be reasonably practicable especially with regards to each of the father’s employment obligations.
The orders with respect to [X] spending time with Mr Hurst during the Christmas/New Year school holiday period allows for additional time for bonding between [X] and his Father, give [X] some time away from his sisters whilst maintaining the relationship between the siblings and removing him the mother’s household at a time of significant disruption (such as the need to move house and establishing a new routine).
I understand the mother is concerned about Dr Wu not taking the girls to extra-curricular activities. I do not accept Ms Heaton’s proposition that time should commence from 6.00pm. At hearing Dr Wu expressed some regret over not doing so in the past and in more recent evidence it seems he has taken them to their activities.
I do note Dr Wu’s affidavit of 6 July 2009 sought only for ‘extra time’ additional to the 5 nights he was spending with the girls. Such an arrangement would be close to equal shared care. Although it is a question of degree, for the same reasons as equal shared care, I am not of the opinion that significant and substantial time in the form of
6 nights for the children to spend with their respective fathers is in their best interests. I have discussed above that for the children spending
5 nights with their respective fathers would be in their best interests as it enables the many benefits discussed but also comfortably fits in with the fathers’ employment obligations.
Conclusion
Dr Wu and Ms Heaton have indicated difficulty in communicating with the children by telephone. However, the parties appear to be facilitating this communication and I am not of the view that orders she be made at this point in time. I also note that Dr Wu has sought orders that non-school changeovers take place at a Westfield shopping centre. There was little argument as to changeovers or any real controversy over it and I will not make orders with respect to changeover.
I have not made orders regarding [X] spending time with Dr Wu, especially as no orders were sought. I encourage the parties to facilitate [X] spending time with him (for example, [X] to continue attending
Dr Wu’s workplace after the gym on Tuesdays) as they have demonstrated a close relationship.
I note the requirement for the mother to undertake alcohol testing if requested to do so and I have granted the parties liberty to restore this matter to the list on 48 hours notice in the event that the mother fails to comply with the orders in this regard (without reasonable explanation) or if there is a significant issue as to the children’s welfare, such as the mother shown to have resumed alcohol consumption.
I am of the view that the orders I have made are in the best interests of the children.
I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Associate: TH Nguyen
Date: 27 October 2009
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