Wife’s alcohol abuse – impact on children and case

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/14.html

2. The wife did not attend the final hearing and her response which sought final orders, was struck out. To be clear, the Court was satisfied that the wife was aware of the hearing and had been given an opportunity to be heard but had chosen not to participate. She was present at a hearing before Macmillan J on
   7 December 2015 at which time various interlocutory orders were made for the filing of material for the forthcoming trial. She was also present on
   31 August 2015 again before Macmillan J when the matter was listed for a final hearing as a five day matter on 18 January 2016.

25. The husband’s evidence has been accepted as unchallenged. Unchallenged but admissible evidence still requires a court’s determination as to its weight. Here, there was nothing implausible about the husband’s evidence. In addition, this is not a jurisdiction in which orders are made on a default basis. The husband was required to prove his case on the balance of probabilities (s 40(2) of the Evidence Act 1995 (Cth)). In respect of such things as the values of assets, the husband produced admissible and accepted expert evidence.
26. There were clearly relationship problems by 2009 exacerbated by the wife’s alcohol consumption. In late 2009, she began seeing a counsellor and the husband said there was a reduction in her consumption. At the same time, the wife was referred to a specialist who diagnosed high functioning autism.

31. The children have been affected by the conflict between the parents.
    They were referred to a registered psychologist in 2014. Although there was no formal evidence from the psychologist, the husband tendered into evidence a report written by Ms M who concluded that if the “challenges” within the household continued, they were likely to lead to negative consequences for the children in areas such as academic achievement, peer relations and
    self-esteem. The report noted that the older child advised that her mother would become “annoying” when she was drinking and would not leave “them” alone and that it was very stressful being at home. The older child described her feeling of hopelessness. The younger child simply described his mother’s behaviour as embarrassing.
32. The intervention order and the fact of the children being provided assistance though the psychologist seems to have had little impact. The husband reported that in November 2013, having consumed alcohol for most of the evening, the wife accused the husband of sexual abuse of the children. It would seem that the older child was present. The conflict reached such a height that the police were required to attend to calm the troubled waters. The husband’s evidence was that there were other incidents where he was abused by the wife and the police were again called. The clear inference is that the police were regular visitors to the parties’ home. I have little doubt based on the evidence that the lack of action by the husband to end the relationship and exclude the wife caused not only frustration for the police but also an unnecessary waste of community resources.
33. There were continuing problems thereafter all of which appear to have been witnessed by the children. In December 2013, an incident occurred in which the older child and the wife struggled and the wife twisted the child’s arm causing her pain. Again sadly, the police were called and the wife was escorted from the home. Administration to the wife of a breath test showed the presence of alcohol. Similar incidents occurred thereafter. The husband gave evidence of the wife’s verbal abuse of him such as calling him: “a pathetic little man”,
    a “control freak”, and her abuse was then extended to the husband’s mother and inappropriate comments made in front of the older child.
34. In January 2014, the Department of Human Services intervened into the family’s home. A Department employee warned the husband about the impact of what was happening to the children. It was the Department’s view that the time between the children and the wife should be supervised.
35. The impact on the children of the exposure to the conflict ought be obvious.
    It had already become apparent from a counselling session with Ms M. By February 2014 however the children were witnessing chronic verbal abuse and denigration by the wife of the husband. At this time however, it was the wife who instituted proceedings for an intervention order in the State court. Just what happened to that remains unclear but the wife issued another intervention order later in 2014 but she failed to prosecute it and it was dismissed.
36. From February 2014, the police were further involved all of which would appear to be as a result of the conduct of the wife. That then saw the commencement of proceedings in the Federal Circuit Court. That court made an order by consent of the parties to attend upon Dr L for the preparation of a family report. The parties attended in March and April 2014. That culminated in the wife agreeing to leave the home and the children were to remain with the husband. The husband began paying the rent on a property for the wife.
37. Even the separation in the middle of 2014 did not result in the conflict abating. An incident occurred in June 2014 at the younger child’s school play in which the husband was verbally abused by the wife and kicked in the head. In September 2014, a series of text messages was sent to the husband by the wife which were unnecessary, abusive and cryptic. One might also glean that the wife had a very poor view of the legal system.
38. All of this continued over the ensuing year right up to a final incident in 2015 which I find epitomises the manifestation of the problem adverted to by
    Dr R. In November 2015, the wife attended the home intoxicated and attempted to enter whilst the children were present. The children were described as barricading the home with their backs. There is little doubt that they observed what was going on. Eventually the wife entered the home and assaulted the husband. At that moment, the police arrived and escorted the wife away. That precipitated the husband applying for an intervention order which ultimately came before the Magistrates’ Court on
    3 December 2015. The wife agreed to the order albeit without admissions as to the allegations.

43. Ms P observed that the children do not want their mother to drink alcohol because they have witnessed the detrimental effects and changes to her personality as a consequence. The children were described as being shaken and hurt by their mother’s behaviour but maintain a wish to pursue a relationship with her. The older child was described as impressive and a balanced young woman with a mature outlook. That comment has significance for the purposes of giving weight to the views of the children in these proceedings. The younger child was described as a young adolescent who was able to express his thoughts in a clear and capable manner. Sadly, the family consultant then observed:

Both children are acutely aware of the conflict between their parents and the impact on them of their mother’s unpredictable and errant behaviours. [The older child] readily forgives her mother and equally is able to forge plans for future contact. However it is likely she will seek and demand answers from her mother regarding her inappropriate text messages and behaviours.

Despite the (intervention order) incident, which occurred at the family home, the younger child was also open to spending time with this mother only if the older child was present prior to and on Christmas Day. He was able to identify positives about his mother and lamented again that if only she did not drink there would not be any problems.

44. The reasoning behind the wife’s non-attendance at the family consultant appointment remained a mystery. It is clear however that the children did spend some time with their mother at Christmas and I have already referred to the absence of the wife on 18 January because she was attending a theme park with the older child.
45. In a report dated 17 November 2015, which I also intend to admit into evidence pursuant to s 62G(8), Ms P observed that the children do love their mother and want to spend time with her but their experiences had been “tarnished” by her behaviour. The family consultant opined:

[The children] are young adolescents and at ages where they can leave their mother’s home if she engages in denigration of their father or consumes alcohol, or engages in behaviours that they find unsettling. The distance between each parent’s home is approximately a ten minute walk. Both children have mobile phones and can also contact their father to come and collect them.

46. The family consultant opined that the wife did act in a deliberate and provocative manner although at times she could control herself. It was the consultant’s view that both the children and the wife would benefit from help. That report was written prior to the intervention order proceedings in December 2015 so it would appear unlikely that there is much prospect in any order for counselling being carried out by the wife. In my view this is a case where the children will vote with their feet.
47. In her November 2015 report, family consultant Ms P recorded her observations of the wife. She was described as anxious and having
    a communication style which was verbose and often unclear. She made accusations against the husband of violence and accused the husband of not being available for the children in respect of their care. The very absence of the wife from these proceedings where she would have had the opportunity to test those propositions enables me to find that there is little substance to her accusations. It was noticeable that the wife told the family consultant that she had stopped taking medication for anxiety and depression because she was no longer exposed to the husband’s “controlling behaviours” in the home.
    Yet only weeks later in November 2015 she attended at the home and caused the ruckus that gave rise to the intervention order. The family consultant reported that the wife has a number of services available to her and with whom she is familiar and that the wife had found them invaluable. Again, the November incident would tend to suggest that things can change very quickly and the wife does not have her problems under control.
48. Ultimately, the family consultant noted that the wife said that the husband was not honest and that ultimately the truth would come out. However, the family consultant noted Dr R’s views to which I have earlier referred and in particular, his reference to the wife appearing to suffer some paranoid ideation in relation to the husband. There is much to be said for that opinion.
49. The children appear to have progressed well at school both academically and socially and there are no behavioural concerns there. That is a credit to the children and also to the husband having regard to what the wife has subjected them to over the period of time that they have been in Australia.

72. It is important that the Court protect the children from the harm to which I have already referred. The only way I can consider that feasible in this case is if the arrangements for the wife’s time with the children are made with the husband and having regard to the age and level of maturity of both children, he will no doubt canvas the wife’s request and take responsibility for arrangements until such time as he is satisfied that the children can make them with the wife.
73. It is important that the Court take into account the views of the children. I have already set out the opinion of the family consultant about the maturity and understanding of the children. In my view there should be provision for the children to have the opportunity to contact their mother if they so desire but it must not be at her whim or theirs. Accordingly, I will take into account that the children wish to see their mother but it must be under the guidance of the husband.

80. As part of the orders proposed by the husband, he sought injunctions in relation to denigration, harassment, intimidation and so forth. Notwithstanding the evidence is abundantly clear that the wife has engaged in such conduct and it would seem from the November incident that it will not abate, there is an extant intervention order at least until June 2015 which precludes the wife from behaving in such a manner. Whilst the Court could make an order under s 114 of the Act of that nature to take effect upon the cessation of the intervention order, my view is that the police involvement is more effective than having to come back to court to enforce such an order. It may be more appropriate if, by the time the intervention order expires, the problem is still extant, the husband takes out an application for an extension of that order. Accordingly, I do not see there is a basis for me to make the injunctive relief sought by the husband.

92. I conclude that on the evidence, the husband’s financial contribution throughout the entire relationship has been overwhelmingly greater than that of the wife. I do not consider it would be just and equitable to ignore two important facts here. First, the assets have generally all been purchased in the husband’s name. That evinces an intention on the part of the parties to keep their interests separate. Secondly, the separation agreement in 2009, although neither decisive nor binding on this Court, was an acknowledgment by the wife of the husband’s far greater contribution generally. To accept the modest sum as she did, indicates that.

94. Before contemplating the future for each party (and for the moment ignoring the relevant s 75(2) factors at this point in the assessment), I would alter the parties’ interests in all of the property on a global basis. Notwithstanding the husband maintained that he brought so much property into the relationship, I cannot overlook the role that the wife fulfilled in those earlier years. Having said that, the evidence supports a conclusion that the husband’s welfare role has been at least equivalent to that of the wife.
95. Because of the length of the relationship, any approach other than a global one would not do justice to the wife. To simply look at the financial contributions including the renovations would overlook the role the wife previously fulfilled.
96. On that basis, I would divide the non-superannuation assets on the basis of 72.5 per cent to the husband and 27.5 per cent to the wife.

101. In all of the circumstances, I would not make any further adjustment for s 75(2) matters.
102. I intend that in respect of the superannuation that each party keep what they have. The contribution arguments just rehearsed equally apply to the superannuation entitlements. Although again there is a disparity, neither party can use these interests other than as long term investments. Each has time to make up retirement plans. It would not be just and equitable to the husband to require that he split his superannuation interests.