CDT results fail to change interim living arrangements

CDT results fail to change interim living arrangements

White & Ingle

Issues

6. I am asked by the father to change the current arrangements, to which he consented to in both July and December 2016, so that the children move from their mother’s care to live primarily with him. He brings that application on the basis of what his counsel described as a ‘trigger’, i.e. the mother has provided two CDT blood tests with readings in excess of 1.5% and therefore attracting the liberty to apply pursuant to Order 5 of the July 2016 orders. In determining any change of residence however I must not just look at the triggering event in isolation but determine what is in the children’s best interests having regard to the legislative framework.

Evidence

18. The parties commenced their relationship in 2004 and lived in the (country omitted) from where the mother hails. They relocated to Australia in 2012 and lived on a property near (omitted) owned by the father’s parents. X was born on (omitted) 2012 and Y was born on (omitted) 2014. The parties separated on 23 July 2015.
19. For the purposes of this interim determination I do not propose canvassing much of the evidence surrounding separation other than to note there are a number of allegations raised as to the extent of the mother’s care of the children as a consequence of her consumption of alcohol and a withholding of the children by the father for lengthy periods of time. There is no dispute however that the mother has been the children’s primary carer since birth. She now lives with the children in (omitted) some 280km from the father’s home on the (omitted) property. The travel time is around three and a half hours drive.
20. On 6 August 2015 and 26 November 2015 the parties entered into parenting plans but the circumstances surrounding the reasons for reaching agreement in relation to the parenting plans is challenged. The mother commenced these proceedings by filing her Initiating Application on 17 March 2016.
21. The mother has provided the father with numerous CDT test results since August 2015. The father’s evidence is that he has requested five CDT tests from the mother after the July 2016 orders. The mother has complied with the first four requests. The first two results were within what is described as the normal range but the reading from the test conducted on 20 October 2016 was 2.8 and is regarded as ‘elevated’. The test conducted on 4 November 2016 was 1.6 and therefore over the 1.5 provided for in the July 2016 orders but is said to be inconclusive.
22. The mother said that she remembered in October 2016 having three to four drinks on two separate nights early in the month when attending a friend’s home for dinner and on another weekend she attended a concert in Brisbane and consumed a number of alcoholic drinks. The boys were in their father’s care that weekend. She attributes the elevated reading to this consumption.
23. A consultant pharmacologist and forensic toxicologist, Mr M, gave evidence on behalf of the father. He said that CDT tests do not detect alcohol directly but rather the effect of alcohol on the body. He has prepared three reports^[11] after reviewing the mother’s test results. In his first report he said:
    i) Carbohydrate deficient transferrin (CDT) is regarded as an indirect alcohol biomarker. That is, this test does not detect alcohol directly, but rather the affect of alcohol on the body. Levels of total CDT are generally less than 1.4% in social or infrequent users of alcohol with values between 1.4% and 1.6% being somewhat equivocal. Total CDT values greater the than 1.6% are regarded as elevated and result from a transient or short-term change in the glycosylation pattern of transferrin where the relative amounts of carbohydrate deficient transferrin (CDT) are increased over the amount of normally glycosylated transferrin.
    This change in glycosylation pattern may be caused by excessive consumption of alcohol and / or medical or analytical issues such as liver disease; paraprotein interference; hypertension; iron deficiency and some genetic disorders.

 

ii) Whilst the amount of alcohol required to elevate CDT levels is somewhat variable, it is generally accepted that the consumption of more than 50 to 60 grams of alcohol (5 to 6 standard drinks) a day for more than 7 to 10 days will cause an increase in CDT levels above ‘normal’ levels. Following the abstinence from alcohol use, CDT levels may remain elevated for a period of a further couple of weeks. Therefore when CDT levels in the blood are found at levels above ‘normal’ this may indicate or be consistent with excess alcohol consumption in the week or weeks prior to sample collection. When CDT levels in the blood are found at levels regarded as ‘normal’, this is consistent with either no alcohol use or minimal alcohol use. Infrequent or isolated drinking sessions are unlikely to significantly raise or alter normal CDT levels, therefore when CDT levels in the blood are found at levels above ‘normal’ this may indicate or be consistent with excess alcohol consumption.

24. In his last report he said in response to specific questions:
    1. Interpret the results since August 2016
    a. The results of testing on samples collected on 26/08/16 and 21/09/16 suggest that in the two weeks prior to these samples being collected, excessive consumption of alcohol is not likely. These results do not exclude ‘social’ use of alcohol or the occasional ‘binge’ session.

 

b. The result of the testing on the sample collected on 20/10/16 is regarded as high and is consistent with regular, excessive use of alcohol in the two weeks prior to the collection of this sample.

 

c. The result of the testing on the sample collected on 04/11/16 is regarded as equivocal and higher than ‘normal range’.

 

i. Whilst this CDT value may have been contributed to by the regular excessive use of alcohol in the two weeks prior to the collection, given the preceding elevated reading and the normally slow reduction in CDT levels (50% fall every two weeks) this reading could also be explained by the normal reduction in CDT values. That is, in absence of other evidence, this result should not be interpreted as being caused by excessive alcohol ingestion.

 

2. Advise whether the spike in October 2016 can be explained by one off binge drinking session over the period of a weekend

 

a. It is not likely that one off drinking session would lead to such a significant increase in CDT results. It is more likely that these results are due to excessive regular consumption over a period of a week or more.

25. The mother filed evidence from Dr D who is employed by a pathology company as a specialist in clinical chemistry, endocrinology who has experience in interpreting CDT test results. He said in his affidavit:
    7. It has been requested that I comment on whether a CDT test reading of 2.8 it is indicative of prolonged regular drinking, or if it could be caused by drinking alcohol over a shorter period, such as during the afternoons and nights of a weekend.

 

8. From my experience, CDT elevation may be seen with a variety of patterns of drinking alcohol. It does not necessarily indicate daily alcohol consumption, as elevated levels can be seen after a short period of significantly elevated consumption, such as over a weekend. An elevated level of consumption of alcohol over the period of a two (2) days on a weekend could result in a CDT level of 2.8. Therefore, the shortfalls of CDT testing in the family law context so as to ascertain whether an individual is drinking excessively are that:-

 

a. heavy social drinking on weekends can lead to elevated CDT test results

 

b. differences in individual body composition will result in larger amounts of alcohol being required in some individuals and smaller amounts in other to return the same CDT readings.

26. Although the evidence of the two experts appear to be at odds as to how an elevated reading can be interpreted I am satisfied that the reports of Mr M are of more benefit to this interim determination as his are based on a more longitudinal study of the mother’s results as opposed to Dr D’s more narrow focus given he was asked to report on one reading. Having said that I am not rejecting Dr D’s report but given the difficulties in determining the disputed issues at this interim stage I am of the view the more detailed report of Mr M is more helpful to me in weighing up the risk of harm issues.

Determining the best interests of the children – the s.60CC considerations

27. The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In interim proceedings it is not always possible to give full consideration to all of the factors given the difficulty in determining factual disputes. In Banks & Banks^[12] the Full Court held that in interim hearings it is not always necessary for the judge to discuss each factor. Their Honours^[13] said:

[47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

[48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
[49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CCfactor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD.^[14]
[50] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

28. In addressing the relevant considerations I propose to group some of them together to minimise repetition.

Each child’s relationships[15]

29. There is no dispute that the mother has been the children’s primary carer all of their lives. The family reporter observed the children to have warm and familiar interactions with each of their parents. She observed nothing concerning in those interactions. Neither party alleged the children did not have a good relationship with the other parent. The report writer recommended the children live primarily with their mother. This recommendation was however made on the assumption that the mother was not consuming alcohol which is not the case.
30. I would be concerned however as to how the children would cope moving from their mother’s primary care if the father is successful in this application. Further evidence from the family report writer may assist in this regard.

Risk of harm issues[16] and parental capacity/responsibility[17]

31. The primary concern of the father is his belief that the children are at an unacceptable risk of harm whilst in the care of the mother for their primary care. His counsel was clear though that the father did not consider the children to be at an unacceptable risk of harm if they were to spend shorter periods of time with her. He did not seek any supervision of her time and the orders sought provided for the children to spend alternate weekends with their mother from Friday morning to Monday afternoon and in the other week from Monday morning to Tuesday afternoon.
32. The report of Mr M would suggest that in October 2016 the mother had been using alcohol excessively and if that is accepted the children would have been in her care for some of the times she was consuming alcohol. In the context of the father’s allegations that the mother has passed out whilst caring for the children this is a significant concern. It is somewhat surprising that the father does not say the mother is an unacceptable risk to the children for short periods of time but is a risk of that magnitude for long periods. These issues need a proper and thorough exploration that an interim hearing can not accommodate.
33. The mother also raises concern as to the fathers ability to supervise the children particularly in regards to his work obligations on the rural property and the approach taken to care of children by him and his family in that context. This also needs to be tested at a final hearing.

Practical difficulties[18]

34. The parties live some three and a half hours from each other. This imposes some practical difficulties in ensuring the children move between both homes but not such that the orders sought in either application would be unworkable.

Limiting further proceedings[19]

35. This matter needs to have a final hearing set down as soon as possible in order to determine the contested issues and to minimise the prospects of repeated applications in a case.

Presumption of Equal Shared Parental Responsibility

36. Neither party sought to set aside the orders for equal shared parental responsibility made in the July 2016 orders and continued in the December 2016 orders. I am also of the view that there is no reason to re-visit this order.

Consideration of Equal Time or Substantial and Significant Time

37. The current orders provide for substantial and significant time with each parent and the competing applications would see that continue. Given the ages of the children and the distance between the two homes it is not surprising neither party sought an equal time order. Such an arrangement would not be in the children’s best interests in those circumstances.

Discussion

38. The father raises legitimate concerns for the safety and well being of the children in light of the mother’s test results. I am not satisfied however it is in the best interests of the children to change their primary care at this interim stage because despite the legitimate concerns when I weigh up the young ages of the boys, the fact that the mother has been their primary carer, the lack of evidence as to how they will cope with such a significant change in care arrangements and take into account the dispute between experts as to the interpretation of the mother’s test results I am of the view that a testing of the evidence is necessary. I was pleased to read at paragraphs 14 to 16 of his affidavit, that the father was aware of the potential for the children to experience difficulty in transitioning between the two homes. What he did not address however was how he planned to take over the primary care of the boys when he has significant work responsibilities on the property. That of course will be explored at the final hearing but I am without that evidence at this stage. Rather than changing the children’s residence at this interim stage I am satisfied the concerns raised by the father are sufficiently serious to warrant an early listing for final hearing.
39. For these reasons I dismiss the application in a case and allocate trial dates at the earliest opportunity.