ADLAM & ADLAM

[2020] FamCA 869

FAMILY COURT OF AUSTRALIA

ADLAM & ADLAM [2020] FamCA 869

FAMILY LAW – CHILDREN – Review of Registrar’s decision – Interim orders sought by father to increase time with children – conflict between the parents – order for equal shared parental responsibility – allegations of substance abuse – orders for hair follicle testing – where father alleges mother controlling time with the children – unilateral retention of children by mother for her birthday – where orders made for substantial and significant time with the father – Best interests of the children – travel to Adelaide with the father

Family Law Act 1975 (Cth) ss 60CC, 60CA, 61DA, 65D, 65DAA, 65DAB, 65DAC, 117
Family Law Rules 2004 (Cth) rr 18.08, 18.10

Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637
Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407
Cowling & Cowling (1998) 22 Fam LR 776; (1998) FLC 92-801
Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422
Jollie & Dysart [2014] FamCAFC 149
Lovett & McGregor [2019] FamCAFC 253; (2019) FLC 93-935
Marvel & Marvel (2010) 43 Fam LR 348
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Salah & Salah (2016) 56 FamLR 299; (2016) FLC 93-713
SCVG & KLD [2014] FamCAFC 42; (2014) FLC 93-582
Sigley & Evor [2011] FamCAFC 22; (2011) 44 Fam LR 439
SS & AH [2010] FamCAFC 13
Tibb & Sheean [2018] FamCAFC 142; (2018) 58 Fam LR 351

APPLICANT: Mr Adlam

RESPONDENT: Ms Adlam

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1082 of 2020

DATE DELIVERED: 23 October 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 7 and 8 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Kyle & McGowan Family Law

COUNSEL FOR THE RESPONDENT: Ms Gillies SC

SOLICITOR FOR THE RESPONDENT: Vizzone Ruggero Twigg

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Connor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

Parental Responsibility

1. That the parties shall have equal shared parental responsibility for X born on … 2008 and Y born on … 2010 (hereinafter referred to as “the children”).

Living Arrangements

1. The children shall live with the father as follows:

   a)During the school term commencing from the date of these Orders on a fortnightly basis:

   i)In week 1: Thursday from the conclusion of school or 3:00 pm until Monday return to school or 9:00 am; and

   ii)In week 2: Wednesday from the conclusion of school or 3:00 pm until Thursday return to school or 9:00 am.

   b)At all other times, other than specified in these Orders, the children will live with the mother.

School Holiday and Public Holiday Periods

1. That the children shall live with the parties during the designated short school holiday periods as follows (unless otherwise agreed in writing):

   a)The children shall spend the first half of each short school holiday period with the father in every odd year and the second half of each school holidays period with the father in every even year.

   b)That all other times during the short school holiday period that the children are not living with the father as per order 3(a), they are to live with the mother.

2. That during the Christmas school holiday period, the children shall live with the parties (unless otherwise agreed in writing) as follows:

   a)In every Christmas school holiday period commencing in an odd year:

   i)With the father from school break-up to 9:30 am on the mid-point date of the period from school break up to 23 December;

   ii)With the mother from 9:30 am on the mid-point date (in the period between school break up and 23 December) to 9:30 am on 23 December;

   iii)With the father from 9:30 am on 23 December to 9:30 am on 25 December;

   iv)With the mother from 9:30 am on 25 December to 9:3 0am on 28 December;

   v)With the father from 9:30 am on 28 December to 9:30 am on 12 January;

   vi)With the mother from 9:30 am on 12 January to before school or 9:00 am on the first day school resumes for the children.

   b)In every Christmas school holiday period commencing in an even year:

   i)With the mother from school break-up to 9:30 am on the mid-point date of the period from school break up to 23 December;

   ii)With the father from 9:30 am on the mid-point date (in the period between school break up and 23 December) to 9:30 am on 23 December;

   iii)With the mother from 9:30 am on 23 December to 9:30 am on 25 December;

   iv)With the father from 9:30 am on 25 December to 9:30 am on 28 December;

   v)With the mother from 9:30 am on 28 December to 9:30 am on 12 January;

   vi)With the father from 9:30 am on 12 January to before school or 9:00 am on the first day school resumes for the children.

3. That for the purposes of any school holiday time (unless otherwise agreed between the parties in writing):

   a)Each school holiday period is taken to commence at 3:00 pm on the last day the children attend school at the conclusion of the school term.

   b)Each school holiday period is taken to end at 5:00 pm on the day immediately before the first day school resumes for the children.

   c)During the school holiday periods of terms 1, 2 and 3, the first half is taken to end and the second half is taken to commence at 5:00 pm on the day closest to the midpoint of the school holiday period.

4. That during Easter public holidays, the children shall live with the mother in every even year and with the father in every odd year.

5. That on the October long weekend, the children shall live with the parties as agreed and failing agreement as follows:

   a)In every odd year with the mother from Friday 5:00 pm until Monday 4:30 pm.

   b)In every even year with the father from Friday 5:00 pm until Monday 4:30 pm.

   c)Notwithstanding Orders 7(a) and 7(b), if the October long weekend falls within the school holidays then the school holiday Orders will apply.

Children’s Birthdays

1. That on each of the children’s birthdays, the children shall spend time with each parent as agreed between the parties; however, failing agreement, the parent who does not have the care of the children on that child’s birthday shall spend time with both children from the conclusion of school or 3:00 pm to 7:00 pm on that day if such day falls on a school day, or from 10:00 am to 4:00 pm on that day.

Father’s Day

1. If the children are not spending time with the father pursuant to these Orders, the children shall spend time with the father, from 6:00 pm on the Saturday immediately preceding Father’s Day until 7:00 pm on Father’s Day.

Mother’s Day

1. If the children are not spending time with the mother pursuant to these Orders, the children shall spend time with the mother, from 6:00 pm on the Saturday immediately preceding Mother’s Day until 7:00 pm on Mother’s Day.

The Father’s Birthday

1. If the children are not spending time with the father pursuant to these Orders, the children shall spend time with the father on the father’s birthday, from the conclusion of school until 7:00 pm or in the event the children are not attending school from 9:00 am to 5:00 pm.

The Mother’s Birthday

1. If the children are not spending time with the mother pursuant to these Orders, the children shall spend time with the mother on the mother’s birthday, from the conclusion of school until 7:00 pm or in the event the children are not attending school from 9:00 am to 5:00 pm.

Hair Follicle Testing

1. The parties will undertake chain of custody hair follicle testing by an Australian Workplace Drug Testing Services (“AWDTS”) clinic at their own expense as follows:

   a)within seven (7) days of the date of these Orders;

   b)within seven (7) days of the three-month mark of the date of these Orders;

   c)within seven (7) days of the six-month mark of the date of these Orders;

   d)within seven (7) days of the nine-month mark of the date of these Orders; and

   e)within seven (7) days of the twelve-month mark of the date of these Orders.

2. The hair follicle testing referred to in Order 13 shall test for the following:

   a)Amphetamine, methamphetamine, MDMA, ecstasy;

   b)Marijuana and its metabolites;

   c)Cocaine and its metabolites;

   d)Benzodiazepines and its metabolites;

   e)Opiates;

   f)Opioids; and

   g)Any other drugs.

3. The parties shall refrain from taking any step which may interfere with the provision of hair samples or to interfere with the test results including taking any step to shave, cut, shorten, colour, bleach any scalp or body hair and the parties shall be restrained from cutting their head hair shorter than 4cm in length.

4. Each party is to provide the pathologist with photographic identification, to be recorded before each test, and provide to each party’s solicitor a copy of the results within 72 hours of receipt.

5. In the event one party fails to comply with Order 13 and/or fails to provide a test result to the party’s solicitor within 72 hours and/or returns a result that is positive to an illicit substance, the complying party shall have liberty to re-list the matter and, pending that re-listing, there shall be a suspension of the child's time with the non-compliant parent.

Communication

1. That the mother and the father ensure that they keep the other informed of:

   a)Any medical problems or illnesses suffered by the children while in their care;

   b)Any medication that has been prescribed for the children;

   c)Any school or religious functions which the children are to attend; and

   d)Any other matter relevant to the children’s welfare.

Travel

1. That the parties will do all things and sign all documents to ensure the children’s passports are kept up to date.

Other Matters

1. That the parents both be entitled to attend all events involving the children including:

   a)Sporting fixtures;

   b)Extracurricular activities that call for parental attendance; and

   c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent teacher interviews, canteen duties and social functions.

2. The parent who has the children in their care of the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.

3. That neither parent shall remove the children from school unless in the case of illness unless otherwise agreed by both parents.

4. That neither parent shall consume alcohol over the standard blood alcohol level or illegal drugs whilst the children are in their care.

5. For the purposes of the children spending time with each parent, changeover shall occur at the children’s school or if changeover does not occur at a time when the children are at school, then the father shall collect the children from the Mother’s residence at the commencement of his time with the children and the Mother shall collect the children form the father’s residence at the commencements of her time with the children.

6. That within fourteen days of these Orders being made both parties are to do all acts and things necessary to complete the course Parenting after Separation. That upon completion of the course each party is to provide a copy of the Certificate of Completion to the other party.

7. That either party be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders.

8. That neither party harass the other.

9. The parties are restrained from the following:

   a)speaking to the children, or within hearing distance of the children about any issue in dispute between the parties;

   b)allowing the children to remain in the presence of any person speaking about any issue in dispute between the parties;

   c)calling the other parent names, shouting or making critical or derogatory remarks about the other parent in person or via text message, social media, or any other communication medium; and

   d)making critical or derogatory remarks about the other parent, other parent’s partner or member of the other parent’s family, in the presence or within the hearing on the children.

10. If either parent requests to vary the arrangements on a one-off basis, this request will be made politely and the other parent will provide an answer as soon as practicable, but within three (3) days. If the other parent does not agree to vary the arrangement, the parent requesting must adhere to the restraints set out in Orders 31, and not make any critical or derogatory remark.

11. The father’s Amended Application in a Case filed on 4 August 2020 and his Application in a Case filed 8 October be otherwise dismissed.

12. The Response to an Application in a Case filed by the mother on 30 September 2020 be otherwise dismissed.

13. Within 28 days the mother pay the costs of the father of the Application in a Case filed 8 October 2020 in the amount of $5,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adlam & Adlam has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1082  of 2020

Mr Adlam 

Applicant

And

Ms Adlam 

Respondent

REASONS FOR JUDGMENT

1. These are property and parenting proceedings between Ms Adlam (“the mother”) and Mr Adlam (“the father”).

2. The parties married in 2006. They separated under one roof, either in January 2019, according to the father, or December 2019, according to the mother. It is unnecessary to resolve this difference for the purposes of this judgment. The father vacated the family home on 28 February 2020.

3. There are two surviving children of the relationship, X born in 2008 and Y born in 2010 (“the children”).

4. The proceedings were commenced by the mother on 19 February 2020 by filing an Initiating Application seeking property orders. On 15 May 2020, the mother filed an Amended Initiating Application which sought both parenting and property orders. 

5. The parties and the children have suffered the tragedy of three times losing a child and sibling. The mother gave birth to Z in 2008 however she passed away later in 2008. W was born in 2013. Her twin died in utero. W sadly passed away in 2014. I have no doubt both parents and children have been deeply affected by such heartbreaks.

6. There is an Independent Children’s Lawyer.

7. I will refer to further background facts as necessary in the course of these reasons.

Registrar’s Decision

1. On 23 June 2020, Senior Registrar Campbell (“the Senior Registrar”) made interim parenting orders.  In summary, those orders provided for the children to live with the mother, to spend time with the father during school term time on a range of specific occasions up to the commencement of Term 3 2020, after which the children spend time with the father each Wednesday from the conclusion of school or 3:00 pm until Thursday return to school or 9:00 am and each alternative weekend from after school or 3:00 pm on Friday until 5.00 pm on Sunday or as otherwise agreed between the parties in writing.  The Senior Registrar also made orders for the children to spend time with the father during Term 1, 2 and 3 school holiday periods for blocks of four nights and three nights as specified in the order, with the three block being from Wednesday at 9:00 am until Saturday at 5:00 pm. The significance of these particular times will become apparent later in these reasons. The Senior Registrar also made orders for the children to live with the father during the Christmas school holiday period in two-week cycles, again for blocks of four nights and then three nights.

2. The Orders of the Senior Registrar included an Order for the parties, upon notification to their legal representatives, to undergo drug hair follicle testing on no more than one occasion each three calendar months.

3. The father filed an Application in a Case seeking a review of the Senior Registrar’s orders, which was amended by an Amended Application in a Case filed on 4 August 2020. The mother filed a Response on 30 September 2020 seeking dismissal of the father’s Application in a Case, a restraint on the father travelling to Adelaide with the children and costs. This application was listed for interim hearing on 6 October 2020, after which judgement was reserved. 

4. On 8 October 2020, the father made a further urgent application, as part of his review application, in circumstances which are explained more fully later in these reasons. This further application sought, in summary, leave to reopen, a recovery order and costs.

5. These reasons deal with the father’s Amended Application in a Case seeking review of the orders of the Senior Registrar and the application made on 8 October 2020.

Review of Registrar’s Decision

1. A party may seek to review a Registrar’s decision pursuant to Rule 18.08 of the Family Law Rules 2004 (Cth) (“the Rules”). Rule 18.10 of the Rules specifies the powers of the Court on review as follows:

   (1) A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.

   Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.

   (2) The court may receive as evidence:

   (a) any affidavit or exhibit tendered in the first hearing;

   (b) any further affidavit or exhibit;

   (c) the transcript (if any) of the first hearing; or

   (d) if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.

2. It is clear that on Review I undertake a hearing of the father’s application for interim parenting orders as a hearing de novo. This was common ground.

3. On review, in summary, the father sought orders on an interim basis that his school term time with the children be increased from four nights per fortnight to six nights, together with increased school holiday time and a range of orders dealing with special occasions.

4. The mother filed a Response to the father’s Application in a Case on 30 September 2020.  By her response, the mother seeks orders that the father’s Application in a Case be dismissed,  and as such, the mother seeks that the regime ordered by the Senior Registrar be maintained on an interim basis.

5. The mother also sought an order that the father be restrained from travelling to Adelaide with the children. This was not the subject of any orders made by the Senior Registrar.

6. The Independent Children’s Lawyer proposed a regime which would see the father’s time with the children increase in a graduated manner with extra overnight time commencing in 2021.

7. The father’s ultimate proposed orders were marked Exhibit “A”. The mother’s proposal was contained in her Case Outline. She supported the existing orders and in addition sought a restraint on the husband travelling to Adelaide with the children. The Independent Children’s Lawyer’s proposal was marked Exhibit “ICL 1”. 

8. At the interim hearing, the central areas of difference between the parties can be summarised as follows:

   a)whether the children’s time with the father should remain at four nights per fortnight as the mother contended, should increase either to six nights per fortnight as the father contended, or should increase to five nights per fortnight by including Sunday nights each alternate weekend from the first weekend after the commencement of the 2021 school year as proposed by the Independent Children’s Lawyer;

   b)whether the children’s time with the father during school holidays should be adjusted or increased;

   c)whether the father should be restrained from travelling to Adelaide with the children.

1. There was some agreement between the parties about some of the orders proposed. The parents agreed there should be an order for equal shared parental responsibility and that the children should live with the mother. The mother agreed with the father proposal for the parties to keep the children’s passports up to date, to attend sporting fixtures, school functions and extra-curricular activities, provide copies of the Orders to third parties and a restraint, without admissions, on speaking to the children about the proceedings or making derogatory remarks. The mother agreed with the Independent Children’s Lawyer’s proposal for a restraint on the consumption of alcohol, and the Independent Children’s Lawyer’s proposed order for hair follicle testing, making the father’s time with the children contingent upon compliance with hair follicle testing. I will return to this later in these reasons.

Material Relied Upon

1. The parties relied upon the material identified in their Case Outlines. This was supplemented by further material relating to the father’s application on 8 October 2020

2. The father relied on:

   a)His Case Outline filed 2 October 2020;

   b)His amended Application in a Case filed 4 August 2020;

   c)His consolidated affidavit filed 30 September 2020;

   d)An affidavit from Dr B, a pharmacology expert, filed on 28 August 2020;

   e)The Tender Bundle provided 2 October 2020;

   f)His Application in a Case filed 8 October 2020;

   g)His affidavit sworn and filed 8 October 2020

   h)Written submissions filed 12 October 2020.

3. The mother relied on:

   a)Her Case Outline provided 6 October 2020;

   b)Response to Amended Application in a Case filed 30 September 2020;

   c)Her affidavit filed 30 September 2020;

   d)An affidavit of Ms C filed 22 June 2020; and

   e)An affidavit of Ms D filed 22 June 2020.

   f)Her affidavit filed 9 October 2020

   g)An affidavit of Ms D filed 9 October 2020

4. The Independent Children’s Lawyer relied on:

   h)The Case Outline provided 2 October 2020.

   i)Written submissions filed 12 October 2020.

Legislative Pathway

1. Both parties emphasised the need to follow the statutory pathway. Part VII of the Family Law Act 1975 (Cth) (“the Act”) governs the making of parenting orders.

2. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act. Section 61DA of the Act requires the Court, when making any parenting order, to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child. The parties agree that an order for equal shared parental responsibility should be made on an interim basis. Despite uncontested evidence that the parties have had great difficulty communicating in a constructive and respectful way since separation, and a high level of conflict, I will make the interim order by consent.

3. An order for equal shared parental responsibility enlivens s 65DAA and s 65DAC. Section 65DAA requires me to consider equal or substantial and significant time with each parent. I will return to this question later in these reasons. Section 65DAC imposes statutory obligations on the parents to consult and endeavour to seek consensus on decisions regarding major long term issues relating to the children.

4. The best interests of a child are the paramount consideration in making parenting orders (s 60CA of the Act). The best interests of a child, for the purposes of Part VII, are determined by reference to the primary and additional considerations set forth in s 60CC(2) and (3) of the Act.

5. Before turning to the best interests of the children, it is important to make clear the limitations of the interim hearing process, particularly in relation to disputed evidence and factual findings:

   a)At an interim hearing the Court’s determination is based only on affidavits read, documents tendered and submissions of the parties. The scope of the enquiry is “significantly curtailed”: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 at [68], therein citing Cowling & Cowling (1998) 22 Fam LR 776; (1998) FLC 92-801 at [18]. There is no provision for a more extensive hearing where evidence can be tested in cross-examination and the Court can make findings of fact, after testing credibility and truthfulness. The Full Court in Marvel & Marvel (2010) 43 Fam LR 348 at [120] observed that interim hearings and consequential orders are “a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing” such that a conservative approach is adopted, and at [122], that findings made at an interim hearing should be “couched with great circumspection” following the Full Court of the Family Court of Australia in SS & AH [2010] FamCAFC 13 at [88].

   b)Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court looks to the less contentious matters, such as the agreed facts and issues not in dispute, and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future: Goode & Goode (supra) at [68]; Salah & Salah (2016) 56 FamLR 299; (2016) FLC 93-713 at [36].

   c)The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. Merely because the facts are in dispute that does not mean the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue: SS v AH (supra) at [100]; Marvel & Marvel (supra) at [123]; Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 at [18]; Salah & Salah (supra) at [39]-[42].

6. The Full Court has recently confirmed that the use of the verb “consider” in s 60CC(1) imposes an obligation to give proper, genuine and realistic consideration to the matters in s 60CC(2) and s 60CC(3) of the Act: Lovett & McGregor [2019] FamCAFC 253; (2019) FLC 93-935 at [72]. The Full Court has also made clear that although consideration of each statutory factor in s 60CC is mandatory, express discussion is not: Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637 at [48]; Tibb & Sheean [2018] FamCAFC 142: (2018) 58 Fam LR 351 at [84]. The proposals of the parties, their evidence, and the manner in which they have run their case will largely determine what is discussed: Tibb & Sheean (supra) at [87].

7. In Banks & Banks (supra) the Full Court said at [47]-[50]:

   [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 60CC factor, the judicial officer may lose sight of the forest for the trees…

   [50] ...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.

8. Adopting this approach set forth by the Full Court, and noting I have given consideration to each statutory factor set forth in s 60CC, I turn to the relevant primary and additional considerations as raised by the parties in their evidence and the way they presented their cases.

Section 60CC Considerations

1. This section specifies the following considerations:

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child's parents

1. A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child: McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405. That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child: Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 at [26]; McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 at [117]- [120]; Sigley & Evor [2011] FamCAFC 22; (2011) 44 Fam LR 439 at [132] - [133]. The legislation aspires to promote a meaningful relationship, not an optimal relationship; the expression ‘meaningful relationship’ is a legal construct, not a psychological one and it is for the Court to determine what constitutes a ‘meaningful relationship’: Sigley & Evor at [135]- [136].

2. In seeking to achieve a child’s best interests, s 60CC(2)(a) directs the Court to consider “the benefit of the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors: Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 at [103].

3. There was no dispute that the children have benefitted and would continue to benefit from a meaningful relationship with both parents.  There was no dispute that both parents should have a continuing relationship prospectively with the children. It was the mother’s case that the children’s relationship with the father should be not be supported by more time with him because of risk factors, while the father argued the mother was undermining his relationship with the children by controlling his time with them.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Between the primary considerations, the Court is required to give greater weight to risk of harm to the children: s 60CC(2A).

2. Both parties made competing allegations against the other concerning drug use, irrational or mentally ill behaviour, physical violence, psychological abuse, abusive language and family violence of a controlling and coercive nature. Both alleged that the children had been made to witness the reprehensible behaviour of the other parent. As both parties acknowledged in submissions, in accordance with the authorities discussed above, at an interim hearing it is not possible to make findings about these mutual allegations. However, some allegations made by the mother should be specifically addressed in these reasons, since she puts in issue risk factors in the father’s care as a basis for resisting the children spending more time with him. In accordance with the authorities discussed above at [30.c)], the mother argued, correctly, that her allegations could not simply be ignored because the father put them in issue, so I have given them careful consideration.

3. The father contended that the evidence at an interim stage showed this case was not about risk factors.  As already pointed out, he argued it was a case about the mother’s attempts to control his time with the children and act as gatekeeper. He argued the mother was unable to support his relationship with the children.

4. The mother for her part made a case of risk based upon evidence suggesting the father had used cocaine in the past and that he regularly socialised and drank excessively even when the children were in his care. She expressed concern that the father is irrational and does not prioritise the children “when he is taking drugs”.[1]

   [1] Affidavit of the Mother filed 30 September 2020 at [53].

5. The mother gives considerable detail portraying the father as seriously addicted to cocaine, leaving it lying around the house and behaving in an erratic and irresponsible way under its influence. The father conceded past use of cocaine but denied the extreme picture painted by the mother. He says he has “very rarely consumed cocaine”.[2] In a session with a psychologist, Ms E, on 26 February 2020 the father is recorded as acknowledging “that as the tensions between them have intensified over the past year that he has been 'not the best husband' and has had late nights and had used drugs recreationally”.[3] 

   [2] Affidavit of the Father filed 30 September 2020 at [96].

   [3] Mother’s Tender Bundle, p. 9.

6. I consider it likely that the father may have used cocaine recreationally. However, it must be observed that whatever the father’s behaviour, the mother does not hold sufficient concerns to suggest the children should not spend overnight time with him. There is no dispute that the children should spend at least four nights per fortnight during the school term in his care, as well as up to seven nights during school holiday time.

7. Moreover, the father promotes an order for ongoing hair follicle testing for both parties, as does the Independent Children’s Lawyer.  The mother also embraced orders of that nature.

8. The father has undertaken a number of tests to demonstrate the absence of drug use since November 2019 at least.  According to the statement of agreed facts the father undertook a chain of custody urinalysis on 12 November 2019. He gave evidence that he undertook a further test on 19 March 2020.  The test results showed that no drugs were detected.  The father also underwent a chain of custody hair analysis drug test on the following dates: 2 May 2020, 22 May 2020, 5 June 2020, and 17 July 2020.  All those tests showed a negative result for the drugs tested.  Furthermore, on 4 August 2020 the father engaged the services of an independent expert to interpret the results of these chain of custody here analysis drug tests.  The expert, Dr B, affirmed an affidavit in the father’s case.  Attached to his affidavit was a letter dated 18 August 2020 addressed to the father and entitled “Expert Report”.  This evidence was read without objection.  Dr B confirmed that the four samples of the father’s hair tested negative for drugs as reported in the test results. The veracity of these drug tests was not called into question by the mother or the Independent Children’s Lawyer.

9. The mother argued the father has been evasive about his drug use.  She relied upon the evidence of Ms C who swore an affidavit in her case.  According to that evidence, Ms C ran into the father at lunch at a restaurant in Suburb F on 13 March 2020.  According to Ms C the father said to her that “I’ve just ordered 5 bags of cocaine for all of us, why don’t you spend the afternoon here with me and do some lines and have a good time”.[4]  This evidence is untested. It is denied by the father. It is hard to know what to make of it, especially in light of the hair follicle test results. It can be seen that the mother’s argument relies upon factual findings which I am unable to make at an interim stage, even using judicial intuition.

   [4] Affidavit of Ms C filed 22 June 2020 at [13].

10. In light of this evidence, the proposed orders for ongoing hair follicle testing and the agreement for blocks of overnight time with the father, I am not prepared to infer at an interim stage that the father presents a risk to the children in his care from the abuse of cocaine. In any event, I am satisfied there is good reason to believe that the risk, if any, associated with alleged drug use will be contained and ameliorated by Court orders for ongoing hair follicle testing. 

11. The mother also argued that the Court could infer that if the father was denied cocaine by regular hair follicle testing, he may well compensate by increased alcohol use.  She alleges domestic violence in the context of alcohol use by the father and aggressive behaviour in the presence of the children, which she contends should cause the Court to infer that the children may be exposed to the father’s use of alcohol as a central part of his lifestyle.  The mother argued it is not possible to police the use of alcohol.

12. The mother’s evidence of the father’s alleged alcohol abuse and more general “party lifestyle” is also untested. He may have indulged in alcohol to excess on occasion or stayed out late. The mother produced documentary evidence of withdrawals by the father from NAB account #...63 between 28 May 2019 and 8 May 2020, showing some took place in the small hours of the morning. She also relied on copy notices of some seven Uber trips undertaken by the father between May 2019 and January 2020 showing the father was out in the early hours of the morning. I am not persuaded much can be inferred from this evidence at an interim stage. The father told Ms E that he has had late nights and agrees in his affidavit that he “sometimes went out” in the period during separation under one roof, but he was dealing with “a very abusive home life”. I accept the father has stayed out late on occasion, but I am unable to make any finding that this behaviour poses any direct risk to the children.

13. I am unable to make an interim finding that either parent presents a risk to the children in their care. Indeed the competing proposals of the parties and the Independent Children’s Lawyer indicate that none of them believes the children are at any serious risk in the care of the other. I have not ignored the mother’s allegations, I have given them careful consideration. But the mother’s ultimate contention was that extra nights with the father risked exposing the children to more of his erratic and irresponsible behaviour, and possible neglect. As the previous discussion makes clear, this argument really relies upon factual findings and conclusions which, in the present matter, cannot be made at an interim hearing. Even when taken together, the strands of evidence relied on by the wife do not establish the risk for which she contends in the truncated and untested context of an interim hearing. At present I am not able to make any findings about the veracity of the mother’s allegations that the father has been neglectful or irresponsible when the children are in his care as a result of a weakness for late night socialising, alcohol or other substance abuse.

14. The combined evidence of the parties presents a dispiriting picture of fairly constant conflict and an inability to communicate in a respectful and constructive manner since separation, if not before. Each blames the other for this situation. The children are caught in the middle and if there is at present an undisputed risk, it arises from this conflict. I have no doubt these parents have been greatly traumatised from the loss of three children. There was evidence that the mother suffered depression and mixed patterns of dysphoria manifesting from the significant grief she felt after the loss of W. She expressed frustration with her relationship with the father as early as 2015. There is evidence from the father’s sessions with Ms E that he is suffering a high degree of distress. The legacy of grief may contribute to their inability to co-parent constructively. However, I do not lose sight of the best interests of the children remaining the paramount consideration.

Additional Considerations

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;

1. As already pointed out, the children are on the cusp of their teenage years.  X will be 12 in December, while Y is presently 10 years old.  The mother gave extensive evidence in her affidavit of remarks by the children to the effect that there is tension with the father and they do not want to spend more time with him.  For example, she gave evidence that:

   a)X told her on 2 August 2020 that “Dad keeps saying he is sending me to a psychologist.  Dad is ruining my life.  I don’t want to go anymore”.[5]

   b)Y said to her on 27 August 2020 “I don’t know what’s going on.  X and Daddy just fight all the time.  Dad should just be a Dad!”[6]

   c)X said to her on 30 August 2020 “I want to spend less time at Dads (sic).  I don’t know why I just do.  He keeps telling me I need a psychologist and it’s all your fault!”[7]

   [5] Affidavit of the Mother filed 30 September 2020 at[159].

   [6] Ibid at [161].

   [7] Ibid at [162].

2. The mother also gave evidence that both children have said to her “I only feel comfortable with dad for one or two nights at a time”.[8]

   [8] Ibid at [171].

3. This evidence is untested.  Senior Counsel for the mother argued that I should infer it is likely the children said these things to the mother and they reflect the views held by the children.  I am unable to accept that submission.  At an interim hearing it is not possible to make a finding that the children actually made such remarks to the mother. I recognise it is possible they made some such remarks, but even if they did, it is not possible to know what influences may have elicited them. For example, the children may hold these views or they may be articulating what they believe that the mother wants to hear, or there may be some combination of both.  At an interim hearing I am unable to resolve such factual questions and make any finding.

4. I also take account of the fact that the Independent Children’s Lawyer told the Court that she had spoken with the children. She told the Court that the orders proposed by her, which included an increase in time with the father commencing in 2021, were consistent with the views of the children as conveyed to her.

5. I am unable to find that the children do not want to spend more time with the father.

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);

1. Both parents claim a strong and loving relationship with the children.

2. Both gave evidence that they have been involved in the children’s lives since birth. The mother claimed to be the primary carer. The father put this in dispute. He claims the parents raised the children together. There was no dispute the mother has been closely involved in the care of the children. She gave evidence that the father was not equally involved in the children’s care. She said that she carried the greater load because of the father’s work commitments. The father claims he was heavily involved in caring for the children when they were young because, when working the mother was “a senior professional” and involved heavily in social and philanthropic pursuits after giving up work.[9] The father argued that having worked from home since at least November 2011 he had always been engaged across the broad fabric of the children’s lives. 

   [9] Affidavit of the father filed 30 September 2020 at [95].

3. The father accepted that orders should be made that permitted both parents remain engaged across the broad fabric of the children’s lives. The father argued that this would continue a situation which had applied historically and with which the children had become familiar. It was the father’s case that the mother had adopted the role of a gatekeeper, controlling and limiting the father’s time with the children, which was inconsistent with the manner in which both parents and interacted with the children prior to separation.

4. There was no expert evidence available which bore upon the nature of the relationship with the children and each of their parents. 

5. Having considered the affidavits of the father and the mother I am satisfied that both have been involved in the children’s lives, with the mother likely to have had a greater involvement than the father overall, but the children have a warm and loving relationship with both parents which is presently undermined by the ongoing conflict between the parents.

6. In particular there is evidence which suggests that X is recently presenting with some hostile behaviour towards the father, although the mother specifically agrees X loves his father. Session notes dated 19 August 2020 record the father as saying he continues “to worry about son's escalating aggressive/sadness” and that he “[u]nderstands that he is taking it out on him…”[10] The father has proposed X begin seeing a school counsellor but the mother has refused to agree to this, on the basis that the school, as recently as 2 September 2020, has not observed any deterioration in X’s academic performance or social interactions.

   [10] Mother’s Tender Bundle, p. 17.

7. I note here that the father gave evidence that the children have a good relationship with his parents and the paternal aunt.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child’ and

(ii)  to spent time with the child; and

(iii)  to communicate with the child;

1. I am satisfied both parents have taken the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time and communicate with the child.

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;

1. The father argued that an immediate move to six nights per fortnight with him would not be disruptive to the children because it would replicate the historical level of involvement of both parents in their lives.

2. The mother argued that the father’s proposal, resulting in the children spending six nights per fortnight, was tantamount to equal time.  She argued it would be destabilising for the children. She contended that the Court could not contemplate equal time because of the substantial history of conflict between the parents. 

3. She argued that equal time or even six nights per fortnight during the term would require a high level of coordination between households and the evidence demonstrated that this was unlikely if not impossible, taking account of the conduct of the parents after separation to date. 

4. In substance, the mother argued that the likely effect of a change to six nights per fortnight during term time would simply be to increase the scope for placing the children in the middle of unseemly and damaging confrontations between the parents.

5. There is some force in this submission. The mother pointed by way of example to a confrontation that erupted between the parents over the movement of Y’s clothes and musical instrument between households.  The mother asked the father to collect these items from her residence while the father wanted them dropped at his house. This resulted in acrimonious emails between the parents, in which each accused the other of being inconsiderate and difficult. There have also been arguments over shoes and school uniforms. More generally, the affidavits of the parties alone bear testament to their propensity to find points of contention and the opportunity to disagree, abuse or denigrate one another in an ample variety of circumstances.

6. It is also true that if the children were to spend six nights with the father, a greater level of co-ordination between the parents and their respective households, for school, clothing and extra-curricular activities, would be necessary to make such an arrangement function. Ongoing conflict between the parents will make this harder to achieve.

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 children, including emotional and intellectual needs;

1. I am satisfied both parents have shown a capacity to provide for the needs of the children, including emotional and intellectual needs, subject to the following.

2. The father contended that the mother’s parenting capacity was compromised to the extent she was unable to promote more time for the children with their father. There was undisputed evidence that the mother has been prepared to involve the children’s school in her conflict with the father by repeating allegations to staff members about the father’s use of cocaine, “a partying lifestyle and returning home at 7am in the mornings”, making comments about the conflict between the parents and denigrating the father.

3. For her part, the mother argued that the concerns about alcohol and drug abuse and neglect, together with evidence that the children did not want to spend more time with the father, should lead to a conclusion that the father’s parenting capacity was compromised. I do not agree. I have discussed the issues of risk above under s 60CC(2)(b).

4. After separation, and perhaps before, the evidence satisfies me that the degraded relationship between the parents, amplified perhaps by the corrosive effects of tragedy, has undermined the otherwise good parenting capacity of both by engulfing the children in conflict and hostility.

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;

1. This does not seem to be a relevant consideration.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. This does not seem to be a relevant consideration.

Any family violence involving the child or a member of the child’s family;

1. I have already referred to evidence of family violence above under s 60CC(2)(b). I have taken it into account. I have nothing to add here.

If a family violence order applies, or has applied, to the child or a member of the child’s family --- any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter

1. Both parties gave evidence that they had threatened AVO’s against each other. The mother said an ADVO was delivered to her at the former matrimonial home. In light of the other evidence and the proposals of the parties I do not give this consideration great weight.

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;

1. Senior Counsel for the father argued that the children need a well-defined and stable parenting regime. For this reason he pressed for a framework which was thorough and prescriptive. The Independent Children’s Lawyer broadly agreed with this approach. I am satisfied that a more, rather than less, prescriptive approach to the orders should be followed in this matter. On this basis the proposal, for example, of the Independent Children’s Lawyer for the father to be able to elect to spend more school holiday time should not be embraced. The father did not agree with this proposal. As the mother argued, it would be likely to lead to confusion and disputation.

Any other fact or circumstance that the court thinks is relevant

1. According to the existing orders of the Senior Registrar, the mother was obliged to deliver the children to the father by 9:00 am on Wednesday 7 October 2020. At the conclusion of the interim hearing, the father asked for a specific notation in orders made on 6 October 2020 that the father would make no allegation of contravention if the mother delivered the children to him by 5:00 pm on 7 October 2020. The mother made no submissions or comment about this and the notation was duly made, since it appeared to be a concession in the mother’s favour. The mother failed to deliver the children into the father’s care by 5:00 pm on 7 October 2020. This resulted in an urgent application by the father on 8 October 2020.

2. There was no dispute that the mother had participated in the hearing on 6 October 2020 electronically via Microsoft Teams. She knew the notation had been made.

3. On 8 October 2020, the solicitor for the mother informed the Court that the mother had, unilaterally, decided to remain in G Town so that she could hold a party which included the children.

4. The Court was also informed that the mother had in fact been located in G Town on 6 October and decided to remain there until 8 October 2020, despite the specific notation made by the Court regarding return of the children to the father by 5:00 pm on 7 October 2020. During the hearing on 6 October 2020, the mother made no submission about the return of the children to the father on either 6 or 7 October 2020, did not inform the Court she was in G Town, or mention that she wished to stay there until 8 October 2020.

5. I infer that the mother saw no irony in making allegations in her evidence condemning the father’s claimed indulgence in a “party lifestyle”, while then breaching the very Court orders she sought to uphold, to keep the children in G Town to attend a party.

6. Putting that to one side, on 8 October 2020 I granted leave to the father to reopen and read as part of his evidence at the interim hearing his affidavit sworn 8 October 2020 and for the mother to file some further evidence, limited to facts and events taking place between the conclusion of the interim hearing and 5:00 pm on 7 October 2020. She took advantage of this leave and filed a further affidavit, and an affidavit of Ms D, both sworn 9 October 2020. I have had regard to this evidence. I also granted leave for any party to notify my associate by no later than 4:00 pm on Monday, 12 October 2020, in the event that party wishes to make brief further submissions in writing. The father and the Independent Children’s Lawyer made further submissions pursuant to such leave.

7. In her further evidence, the mother frankly conceded she had breached the orders of the Court. The mother claimed that there was an agreement in June 2020 for the children to stay with her in G Town until 9 October 2020, for the party. The father disputes this. But her evidence shows clearly the mother, as at 6 October 2020, wanted to keep the children in G Town until 9 October 2020 and makes it all the more remarkable that she, through her lawyers, said nothing to the Court at the interim hearing about remaining in G Town.

8. It also appears that the father had booked flights to Adelaide on 8 October 2020. As a result of the mother’s breach of orders, the father’s travel to Adelaide with the children was disrupted. The mother expressed “concern that [Mr Adlam] has intentionally booked a trip to Adelaide with the children, in order to prevent them from spending time with [her] over [the] [party]”.[11] The evidence of Ms D, which I take into account over objection from the father, if true, suggests the father took pleasure in disrupting the mother’s party plans. The tenor of the mother’s evidence was that the father was behaving unreasonably. At paragraph [20] of her 9 October 2020 affidavit, the mother says:

   I also am concerned that Mr Adlam does not have the children’s best interest at heart, with respect to his travel to Adelaide with the children. I was disappointed as the children were having a very enjoyable time with friends in G Town, and I had conveyed that to Mr Adlam, both directly and through my solicitor and I believe it would be in the children’s best interest for them to have the full benefit of time in G Town with their friends and for the party, and then have the benefit of spending three days in Adelaide with Mr Adlam and their paternal family.[12]

   [11] Affidavit of the Mother filed 9 October 2020 at [19].

   [12] Ibid at [20].

9. The central lack of insight exposed by this evidence is the failure of the mother to focus, in two ways, on the consequences of the Court orders which allocated time for the children with their father. The first is that on 6 October 2020 she strongly argued those orders, made by the Senior Registrar, should not be changed while knowing, to get her own way about the party, she required either agreement from the husband or a dispensation from the Court to change the very same orders or waive compliance to avoid a breach. In the absence of either change or waiver the mother was required to return the children to the father by no later than 5:00 pm on 7 October 2020.

10. The mother raised her birthday in submissions at the interim hearing. She referred to an email chain between herself and the father between 9 and 11 September 2020 in which the father pointed out that pursuant to the Senior Registrar’s orders the children would be in his care from Wednesday 7 October 2020 to Saturday 10 October 2020. He offered to agree some different arrangement. The mother responded by saying “Kids will not be available on those dates and…I get my birthday so make other plans and raise this all in court”.[13] Despite the mother’s submission to the contrary, this evidence shows there was no agreement about her birthday. The father certainly raised with the Court the question of when the children should return to his care on 7 October 2020. The mother said nothing about this. The mother’s evidence shows she believed she could dictate how the orders she supported should be implemented and she was unilaterally entitled to ignore the Court orders, because in her mind the father was not acting in the children’s best interests to spite her. By definition, according to the logic of her own argument, the orders, which the mother supported, had been made in the children’s best interests, but she was prepared to breach them nonetheless.

    [13] Mother's Exhibit filed on 6 October 2020, p.127.

11. The second is the benefit to the children of time with their father and spending time with their extended paternal family in Adelaide. Although the mother seems to acknowledge this in her affidavit filed 8 October 2020, it is apparent that in her mind the main issue was the father trying to disrupt her birthday, which justified her breaching the Court’s orders, not what was in the children’s best interests. I am not satisfied the father was acting purely out of spitefulness, but even if he was, it was not open to the mother simply to impose her view of the appropriate parenting outcome, in defiance of Court orders.

12. I accept the father’s submission that the unilateral decision by the mother to remain in G Town until 8 October 2020 is consistent with a belief she was entitled to control the children’s time with the father when it suited her. It is also consistent with a deliberate choice to be unforthcoming with the Court on 6 October 2020. It was always open to the mother to have raised her intention to remain in G Town before the conclusion of the hearing on 6 October 2020. She did not do so.

13. As the Independent Children’s Lawyer submitted, the mother’s own evidence also showed she engaged in discussion with the children in G Town about returning to Sydney early and flying by themselves. The mother claims this possibility distressed them, but as the Independent Children’s Lawyer pointed out, any such distress was caused by the mother. Of equal concern is that Y became directly embroiled in this dispute between the parents, while in the mother’s care. She sent a message to the father at 8:57 am on 7 October 2020 which said “I am having the best time in G Town it is so much fun. I want to stay here. And so does X”.[14] The Independent Children’s Lawyer submitted Y should not have been placed in a position where she chose to challenge her father about the need to return. I agree. This evidence raises the inference, even at an interim stage, that the mother seeks the children to align with her.

    [14] Affidavit of the Mother filed 9 October 2020, p. 35.

1. The matters discussed under this consideration reinforce the need for detailed and prescriptive orders in this matter, and for orders which are designed to address and ameliorate the mother’s attitude to the control of parenting outcomes.

Equal or Substantial and Significant Time

1. As pointed out above, the proposed order for equal shared parental responsibility enlivens s 65DAA, requiring the Court to consider whether equal time (s 65DAC(1)) or substantial and significant time (s 65DAA(2)) with each parent is in the best interests of the children and reasonably practicable.

2. Section 65DAA(5) sets factors to which the Court must have regard in determining what is reasonably practicable, as follows:

   (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

   (a)  how far apart the parents live from each other; and

   (b)  the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)  the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)  the impact that an arrangement of that kind would have on the child; and

   (e)  such other matters as the court considers relevant.

3. I have already considered the mother’s argument that the father’s proposal, for six nights per fortnight, was tantamount to equal time.  It is however not equal time. I am not satisfied that the parents' current and future capacity to communicate with each other and resolve difficulties supports an equal time arrangement. I am also satisfied that it is presently beyond the parents to co-operate to the extent necessary to make a close to equal time arrangement viable. It is not possible at an interim hearing to form a clear view as to the extent to which either parent is responsible for this outcome. It may well be that the mother has stoked conflict by arrogating to herself the role of a “gatekeeper” to the children’s time with their father, as he alleges. The discussion above under s 60CC(3)(m) supports this conclusion. I accept there needs to be some counterbalance to the mother’s apparently unhealthy drive to control the children’s time with the father. Some of the evidence shows the father has conducted himself with anger and disrespect towards the mother on occasion. However, the paramount consideration is the best interests of the children. They should be shielded from the ongoing conflict between the parents, so far as Court orders can achieve this, without compromising the benefit of their relationships with either parent.

4. Both the parties and the Independent Children’s Lawyer support substantial and significant time, as detailed in their proposals, rather than equal time. I agree with this approach. The central question is what level of substantial and significant time is appropriate. Taking account of my discussion of the s 60CC considerations, and for the reasons which follow I am satisfied that orders for substantial and significant time with both parents are in the best interests of the children and reasonably practicable for the purposes of s 65DAA(2)(c) and (d).

5. To recap, in summary, for school term time, the choices put forward are four nights per fortnight in accordance with the existing orders, five nights per fortnight beginning in Term 1, 2021, as the Independent Children’s Lawyer proposed, or six nights per fortnight as the father proposes.

6. The father lives in Suburb F and the mother in Suburb H. There were no practical issues with availability or geographical proximity between the respective residences of the parties.

7. As these reasons already make clear, problems lie in the capacity of the parents to implement a co-parenting arrangement and communicate effectively and without conflict. In essence the mother’s argument is that, in addition to the alleged risk factors which I have already discussed, the children should have less time with the father because neither parent is capable of communicating in a civil, adult or constructive fashion with the other. 

8. I take account of the fact that the children presently benefit from a meaningful relationship with both parents. The scope for the children’s relationship with both parents needs to be given scope to grow. The fact that the children reside primarily with the mother, and there is evidence she seeks to control parenting outcomes, are factors militating in favour of more overnight time with the father.

9. My conclusions about alleged risk factors do not suggest that time with the father should be confined to the existing orders, as the mother contends.

10. I take account of the need for the Court at an interim stage to proceed cautiously. Being cautious does not necessarily mean doing nothing. However, caution favours incremental change at an interim stage.

11. The children have lived under the orders made by the Senior Registrar since 23 June 2020. However, I am persuaded that the configuration of nights with the father should be changed to reduce the number of movements between households. This will introduce greater stability rather than creating instability. At present in the alternate weeks the children spend Wednesday night with the father, then return to his care again on Friday night of the same week. There is also a need for the children to transition between households on Sundays in each alternate week. This changeover does not take place at school. The number of transitions under the existing orders have the propensity to result in more situations ripe for conflict between the parents.

12. There may be some tension between X and his father. I do not see this as a reason not to increase the children’s term time with their father. More time with the father may assist the relationship between X and the father. I infer that additional time with the father is consistent with the views as expressed to the Independent Children’s Lawyer.

13. If the father is able to prepare the children for school on Thursday mornings under the current regime, I see no reason why he would not be able to prepare them for school on Friday and Monday mornings on each alternative weekend.  While this may require some additional co-ordination between households, it would be minimal, and I am not persuaded that such a level of co-ordination is beyond the parties, despite the poor communication and antipathy between them. It will also ensure that all term time changeovers take place at school.

14. Having considered the evidence carefully, and weighed my discussion of the primary and additional considerations, I am satisfied at this interim stage that the children’s time with the father should increase. While there may seem little difference between four, five or six nights per fortnight, taking a conservative approach and proceeding cautiously, I am satisfied that one additional night each fortnight during term time is appropriate in the circumstances of this case. This is broadly consistent with the proposal of the Independent Children’s Lawyer, but in my view the commencement of the extra night should not wait until 2021, particularly in light of the age of the children.

15. The father, in the alternative, proposes a two week cycle during school term time with Thursday afternoon after school to Monday morning before school in Week 1 followed by Wednesday night to Friday morning in Week 2. I will make orders similar to this proposal, but reducing the time in Week 1 by one night. In my view, the appropriate balance can be struck by increasing the children’s time with the father each fortnight by night each alternate week, but to be spent in a block of four nights from Thursday night to Monday morning, with overnight on Wednesdays in the other week, making a total of five nights per fortnight. This arrangement keeps part of the existing orders, being a Wednesday night in one week, but increases the overnight time with the father in the other week. All changeovers can take place at school, reducing the risk of conflict at changeovers. This, in my view, is a preferable framework, more simplified than the existing orders, within which the parents can parent the children.

16. As to school holiday time, my discussion of the s 60CC considerations and alleged risk factors in particular raise no persuasive reason why during school holidays the proposal of the father for equal time should not be implemented commencing in the 2020 Term 4 school holidays. The current arrangements for holiday time, being blocks of four nights then three nights with the father, create the need for an undesirable number of changeovers, most of which would not take place at school. This also raises the scope for parental conflict. It is in the best interests of the children for changeovers to be kept to a minimum, especially where they do not take place at school. This would also go some distance to ameliorating any impact on the children of the mother’s drive to act as a gatekeeper.

17. Both parents say they have done ‘Parenting After Separation’ courses. If so it appears neither has been particularly influenced by what they learned. The conflictual deficits in the co-parenting between the parties is of great concern in this case. Both parents must learn to behave in a co-operative and respectful fashion towards each other, for the benefit of the children. Both need to gain a clear understanding of the damage the children will suffer if they are continually placed in the middle of conflict between their parents. I will order both parties to attend further courses.

18. The statutory obligations to seek consensus over major long term issues imposed by s 65DAC as a result of the proposed order for equal shared parental responsibility may well assist the parties to achieve better, or at least less conflictual, co-parenting.  I also take account of the possibility that a detailed and prescriptive set of orders may also help achieve the same outcome.

19. Specific mention should be made here of the differences in approach to the formulation of orders for hair follicle testing. The father’s proposal is for orders compelling the parties to undergo such testing according to a set regime of future dates. The Independent Children’s Lawyer’s proposal, with which the mother agrees, is for the lawyer for either party to notify the other party’s lawyer of a request for such testing on no more than one occasion each three calendar months. Thus no test would take place unless there is a request. In my view, the father’s proposal is preferable since it imposes the ongoing obligation for testing irrespective of any request. This should happen in my view in light of the competing allegations about the use of drugs. I consider that each party should receive the results of the tests carried out on the other party.

20. I am not persuaded that the children’s time with the father should be contingent upon him obtaining clear hair follicle test results. As pointed out earlier in these reasons, the father has undergone a number of hair follicle tests in the recent past which gave negative results for drug use.  In the event either parent returns a positive reading for drug use, the parties will have liberty to relist and that parent’s time with the children shall be suspended pending the relisting.

21. I accept it is desirable in the circumstances of this case to make orders which deal with special occasions such as birthdays and Christmas on an interim basis. This is in accordance with the prescriptive approach advocated by the father and the Independent Children’s Lawyer. I will make numerous ancillary orders, broadly based on those proposed by the father. They present a thorough regime, and, as noted earlier in these reasons, the proposals of the mother and the Independent Children’s Lawyer overlap with those of the father in places, while the mother agreed with some orders proposed by the father.

22. The father proposed orders permitting international travel. There was no agreement about this, although, as noted, the mother agreed with the father’s proposed order about passports. The impact of COVID-19 pandemic may make international travel unlikely in the foreseeable future. Although the Court does not want to invite further litigation between these parties, where the situation regarding international travel remains very uncertain, I do not consider it appropriate to make any orders about international travel at this stage.

Travel to Adelaide

1. There was no dispute that the maternal extended family lives in Country J, while the extended paternal family lives in South Australia.  Consequently the children have travelled regularly to Adelaide to visit their extended paternal family.  The father wishes to continue this pattern. As already pointed out above, the children were supposed to travel to Adelaide with the father on 8 October 2020.

2. The mother resists travel to Adelaide because she contends that the children have told her they do not  want to go and she does not “feel that the children are ready to travel as they currently have the security of being able to return home to be if necessary”.[15]  The mother also gave evidence that she believes that the father’s family will denigrate her directly to the children or within the hearing. She alleges that the father’s family do this regularly to third parties and the children will become extremely upset if they were to be present to hear such conversations.

   [15] Affidavit of the Mother filed 30 September 2020 at [169].

3. I am not persuaded by the mother’s arguments to prevent the father travelling to Adelaide with the children.  In her affidavit filed 9 October 2020 the mother referred to the benefit to the children of spending three days in Adelaide (see [87] above). As already pointed out in relation to other alleged remarks by the children I am unable to assess at an interim stage whether or not the children have either told the mother they do not want to go to Adelaide or whether this accurately reflects their views or what they think the mother would like to hear.  The children are on the cusp of their teenage years.  There was no dispute that after separation during 2019 the father and the children made two trips to Adelaide spending three to four days each time with the father’s family.  Unsurprisingly, the mother did not go with them. The father gave evidence that children’s aunt is in a wheelchair and cannot travel interstate. All these matters militate against any restraint on the children travelling to Adelaide to visit the paternal extended family.

4. The mother’s evidence to the effect that she does not feel the children are ready to travel because they would lose the ability to return to her care if necessary tends to infantilise children who are currently 10 and 11 years old, and seems inconsistent with the fact they have already travelled to Adelaide several times without her. Her fears of denigration seem to be focused more upon herself rather than the best interests of the children. They do not constitute a sufficient reason to prevent travel to Adelaide. Orders will be made imposing restraints on denigration.

5. The mother’s extended family live in Country J. As the Independent Children’s Lawyer pointed out in the current circumstances, where international travel is not possible by reason of the COVID-19 pandemic, the only extended family to which the children can have access will be those relatives living in Adelaide.

Costs

1. Both parties sought costs of the interim hearing of the father’s Amended Application in a Case and the mother’s Response. I am not satisfied any costs order should be made for in respect of that hearing. The position set out in s 117(1) should apply.

2. The father also sought a costs order for his Application in a Case filed on 8 October 2020, to be quantified by the Court. In my view, the mother’s conduct, discussed under s 60CC(3)(m) above, justifies departing from the position set out in s 117(1) of the Act. The father’s application was made necessary by unacceptable conduct of the mother in breaching Court orders. The evidence shows the parties are well resourced. I will order the mother to pay the costs of that application. The father provided a breakdown of his costs, including fees for senior counsel ($3,770) and solicitors ($2,970), and costs thrown away for travel to Adelaide. The mother made no submissions about costs. I consider it appropriate to make a costs order in favour of the father quantified in the amount of $5,000.

3. I will make the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 23 October 2020.

Associate: 

Date:  23 October 2020