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Father Dismissive of Concerns Regarding His Excessive Alcohol Consumption

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT NEWCASTLE

 

NCC 2809 of 2016

 

MR TALIS

Applicant

 

And

 

MR TALIS

Respondent

 

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. I have an application for parenting orders in relation to X, who is 11 and Y, who is eight.
3. The children live with their mother and have done so since their parents separated in January 2016.They have spent some time with their father since separation but the father is an alcoholic. He has a longstanding problem with alcohol consumption and there have been a number of issues in trying to get arrangements in place for him to spend time with the children which are safe for the children.
4. Initially after separation the mother agreed to the children spending regular weekend time with the father but it was because he was living at Town B and the mother believed that he was living with his parents.
5. The girls love their father and they enjoyed those visits. However in November 2016 there was an incident where the father had the children for the weekend and was supposed to deliver them to school on the Monday morning but failed to do so. A friend of the father’s went to investigate and found that the father was extremely drunk and was making statements that caused fear for his safety in terms of him perhaps harming himself.
6. The father was taken to hospital and the children were returned to the mother and shortly after that the mother commenced these proceedings.
7. The father was in a fairly awful state when he arrived at hospital. He was breath tested on several occasions that evening. His initial reading when he turned up at the hospital was .24 and it had dropped to .19 when the last test was taken. The father was seriously drunk and in a very bad way. The children had been in his care when he consumed a very large amount of bourbon overnight and then failed to be in a condition to take them to school the following morning.
8. After the mother commenced proceedings interim orders were made for the father to spend time with the children (because the mother has never wanted to stop that) but it was on the basis that his time with them would be supervised and that he undergo a breathalyser test at the beginning of the time.
9. The father has by and large spent time with the children in accordance with the interim orders but similarly to the way the father has been for a large part of his adult life, he refuses to accept that he has a serious alcohol problem. He has never been willing to undergo testing during the court proceedings and he deeply resents the supervision that the mother considers necessary for the girls’ protection.
10. In June 2017 I ordered the preparation of a limited issues report and the issue I asked the family consultant to consider was what time could be ordered for the father to spend with the children given his historic alcohol dependency.
11. The family consultant interviewed the father. He made some admissions about his heavy alcohol use, which he said had commenced when the parties started their relationship and prior to X’s birth in 2007. He tended to cast some blame on the mother and said that she also liked to drink but the information he gave the family consultant confirmed that he had a lengthy history of very heavy drinking.
12. In 2013 the father underwent detox. Things seemed to get a little better for him for a while after that but eventually (the father said it was in 2015) his alcohol use spiralled out of control again and in January 2016 the parties separated.
13. The father was told during the detox that the only solution for him was abstinence but he has never been able to achieve abstinence as far as anyone is aware.
14. The post-separation period was a difficult one for the mother. She remained in the former matrimonial home and the father frequently let himself into the home. It would appear that he had a key made and kept using it to get in. There were some concerning incidents where the mother came home and found that things in the home had been moved.
15. The mother ultimately had the locks changed which meant that the father did not have a key but I cannot remember if that entirely ended the problem or not. I think it may not have. So aside from continuing to drink very heavily the father also continually invaded the mother’s space and entered the home in her absence.
16. The mother mentioned earlier a concern about the father’s mental health. That was also a common thread through the parties’ lives when they were together. The father was sexually abused by a teacher as a child. He has struggled to deal with that. It is his case as I understand it that on occasions that he drinks heavily to mask the pain of that.
17. The father has also suffered from depression during his adult life and has made some threats to harm himself and of course alcohol being a depressant would not help him in that regard.
18. The father’s alcohol consumption and his mental health issues are seriously concerning because there is a real potential for the children to be at risk of harm if the father drinks heavily or drinks at all when they are with him. I say drinks at all because the situation is one where if the father has one drink he just cannot stop.
19. The children will be at risk if they are with the father and he is drinking and that is why the mother has insisted on the breathalyser at the commencement of the time.
20. Sadly for the father he simply does not accept that he has a problem and does not accept that the mother should be able to control his time with the children or test him for alcohol. He has put up with it since the interim orders were made but it is his position that the mother should now trust him and let him have regular weekend and half holiday time with the children unsupervised.
21. The mother is not willing to agree to that. She basically cannot do it and given the incident in November 2016 and the father’s complete and utter refusal to undergo any testing in the course of these court proceedings, not only is the mother’s position understandable but the court cannot do it either.
22. The mother is caring well for the children. She recognises that they love their father; the family report writer mentioned that they loved their father. She would like them to see their father regularly but she wants them to be safe.
23. The mother has proposed a set of orders which will provide for the children to live with her and for her to have sole parental responsibility and for the father to spend time with the children but she has built in some protective measures, including the father undergoing the breathalyser test at the beginning and having someone present when the children are with him.
24. It may be that at some time in the future the father will be able to demonstrate to the mother that he has ceased using alcohol. That is not beyond the bounds of possibility. Some people do become abstinent. But at the moment the father has not done that and the only thing I can do is to finalise the matter in the way the mother suggests.
25. In terms of parental responsibility the presumption of equal shared parental responsibility in s. 61DA of the Family Law Act is not rebutted because of any family violence or abuse of the children. However it would not be in the children’s best interests for me to make an order for equal shared parental responsibility given the father’s alcoholism. I cannot expect him to be always available to discuss decisions about the children with the mother. It is also open to question whether he is able to make good decisions. He just cannot see at the moment that he has a problem of the seriousness that he actually does have so I am going to make the order for sole parental responsibility.

 

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judge Terry

 

Date:     20 August 2018

Posted in: Derek Legal Blog at 10 August 20

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