FATHER WANT HIS CHILDREN TO LIVE WITH HIM DUE TO THE MOTHER’S ALCOHOL PROBLEMS
Labeck & Calandros (No 5) [2021] FCCA 1046 (17 May 2021)
This is a parenting case where the father seeks that the children live with him instead of the mother due to the latter’s alcohol problems and for contravening court orders.
Facts:
This is an application for parenting orders about two children: X, who has just turned five years old, and Y, who is almost four years old. Both children have lived with their mother since the time of separation.
The father alleged that the mother abused alcohol and illicit drugs, including methamphetamine; that she is associated with a man with a criminal record for rape or sexual assault and allowed the children to come into contact with this man and that she associated with other undesirable persons; and that she had failed to comply with court orders and was likely to do so in future.
The mother alleged that the father had exposed her and the children to family violence and that he was temperamentally ill-equipped to properly care for young children. The mother pointed to instances over a reasonably lengthy period of X refusing to transition to the father for time spending.
The mother was found guilty of one count of contravening orders by failing to make the children available to spend time with the father. The mother’s contravention was deliberate.
In December 2020, the mother was found to be driving a motor vehicle with a blood alcohol concentration of 0.085%. The children were in the car with her. She was charged with an offense and on 2 February 2021, was found guilty and convicted of driving with a medium-range blood alcohol level.
Issue: Should the children live with the father?
Analysis:
The children have a good relationship with the father and that the mother’s contraventions of orders are unrelated to any legitimate concern about the father’s care of the children but, instead, reflect the mother’s own anxiety and distress.
There is abundant evidence of what the family consultant described as the mother’s “problematic relationship with alcohol or drugs or both”. The mother’s abuse of alcohol or drugs or both posses a risk to the children. The fact that she was apprehended, relatively recently and while this litigation was in progress, with an excess blood alcohol level while driving with the children in the car is a clear demonstration of that.
The father is an engaged, child-focused and stable parent. He is more than adequately able to care for these children and there is no risk of harm to them in his care.
There is benefit to the children in having a meaningful relationship with their mother and father. However, the mother’s problematic relationship with drugs or alcohol or both constitutes a risk of harm to the children. It is necessary that the mother engage with a therapeutic service such as J House to mitigate the long term risks to the children.
The mother’s current inability to encourage a relationship between the children and the father, her problematic relationship with illicit drugs or alcohol or both and her history of non-compliance with court orders indicates that such an arrangement would have unacceptable emotional and psychological, and perhaps physical, risks for the children.
Conclusion: The children shall live with the father.
