AGNEW & AGNEW - [2011] FMCAfam 25

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AGNEW & AGNEW

[2011] FMCAfam 25

FAMILY LAW – Parenting orders – consideration as to making interim orders after lengthy trial – issues of mental health and alcohol abuse affecting parenting – children’s views strongly held – possible alignment.

FAMILY LAW – Cost Application by Independent Children’s Lawyer.

FAMILY LAW – Divorce – Costs Application – dispute as to date of separation – Divorce Application withdrawn.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA,117

MRR v GR [2010] HCA 4
L & T (1999) 25 FamLR 590

Applicant:

MR AGNEW

Respondent:

MS AGNEW

File Number:

NCC 3038 of 2009

Judgment of:

Lapthorn FM

Hearing dates:

2, 3, 4, 5 & 10 August 2010

Date of Last Submission:

5 October 2010

Delivered at:

Brisbane

Delivered on:

17 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Kelly

Solicitors for the Applicant:

Winder Lawyers

Counsel for the Respondent:

Ms Cotter-Moroz

Solicitors for the Respondent:

The Family Law Firm

Solicitor Advocate for the Independent Children’s Lawyer:

Ms Shea

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission NSW

ORDERS

That, commencing 26 January 2011, all previous parenting orders in relation to the children, [X], born [in] 1999, [Y], born [in] 2001 and [Z], born [in] 2003, be discharged.

PENDING FURTHER ORDER:

That, subject to the father complying with Orders 14 and 15, the children live with the father.
That, subject to Order 4, and subject to the mother complying with Order 16, the children spend time with the mother as follows:
(a)During school terms – from Thursday after school until Monday before school in each alternate week, commencing on the first Thursday of each school term.
(b)During school holidays – for one half of each NSW school holiday period, being the first half in even numbered years and the second half in odd numbered years, unless otherwise agreed between the parties.
(c)From 5 pm on the Saturday immediately before Mother’s Day until 5 pm on Mother’s Day if Mother’s Day falls on a weekend when the children are otherwise with the father.
(d)At other times as agreed between the parties.
That the children’s time with the mother in accordance with Order 3 take place in the general vicinity of either the maternal grandmother or the maternal grandfather (or another suitable person agreed between the parties and the Independent Children’s Lawyer), such that the maternal grandmother, maternal grandfather or other person agreed to between the parties and the ICL is present in the same premises as the children and the mother at all times.
In the event that the maternal grandmother and maternal grandfather are not available to be present during the children’s time with the mother during school terms (and no other agreed person is available), then the children shall spend time with the mother as follows:
(a)On each alternate weekend from 9 am until 5 pm on Saturday and 9 am until 5 pm on Sunday.
(b)On one mid-week day each week (to be nominated by the mother) from after school until 8 pm.
In the event that the maternal grandmother, maternal grandfather or other agreed person becomes available to be present during the children’s time with the mother and the mother intends to exercise time in accordance with Order 3(a) then she is to notify the father in writing at least 14 days prior to the commencement of such time.
In order to facilitate the children’s time with the mother in accordance with Orders 3 and 5, changeovers shall take place as agreed between the parties in writing but failing agreement as follows:
(a)For the purposes of Order 3(a), the mother shall collect the children from school at the commencement of the time and return them to school at the conclusion.
(b)For the purposes of Order 3(b) and 5(b), the mother shall collect the children from school at the commencement of the time and return them to the father’s home at the conclusion.
(c)For the purposes of Orders 3(c) and 5(a), the father shall deliver the children to the mother’s home at the commencement of the time and the mother shall return them to the father’s home at the conclusion.
That the father facilitate telephone communication between the children and the mother on each Saturday, Monday and Wednesday if they are not in the mother’s care and shall afford the children privacy when they are having such communication.
That each party be and hereby is restrained from:
(a)Consuming any alcohol during periods of time when the children are in their care and for at least 24 hours prior to such periods.
(b)Denigrating or making critical or derogatory remarks about the other party, or any member of the other party’s household or family, to the children or in the presence or hearing of the children.
(c)Discussing these proceedings, or any allegations raised in these proceedings, with the children or in the presence or hearing of the children.
That, except in the case of emergency, the parties use a communication book for the purposes of communicating with each other in relation to parenting matters.
That each party ensure that the other is kept informed of their current residential address and contact telephone number(s) at all times.
That each party notify the other as soon as practicable of any major illness, injury or hospitalisation involving any of the children while in that party’s care.
That each party be and hereby is authorised:
(a)To obtain information from the children’s school in relation to their progress.
(b)To obtain copies of school reports, newsletters and school photos at that party’s own expense.
(c)To attend school functions and events to which parents are generally invited, even if the children are not in their care at that time.
(d)To attend parent-teacher interviews as arranged by each party directly with the school.
(e)To attend sporting events and other extra-curricular activities involving the children, even if the children are not in their care at that time.
(f)To obtain information regarding the children from any doctor or other health professional providing treatment to the children (or any of them).
That the father undergo therapy with an adult psychologist in order to assist him in dealing with his personality dysfunction. For this purpose:
(a)The father shall make and attend an appointment within 21 days with an adult psychologist nominated by the Independent Children’s Lawyer in consultation with Dr W.
(b)The father shall attend ongoing sessions with the psychologist at such frequency as recommended by the psychologist.
(c)The father shall comply with the psychologist’s recommendations in relation to treatment.
(d)
The Independent Children’s Lawyer has leave to provide to the psychologist copies of Ms S’s report dated 28 June 2010 and

Dr W’s reports dated 14 July 2010 and 19 July 2010; a sealed copy of these Orders and a copy of Federal Magistrate Lapthorn’s reasons for judgment.
That the father undergo therapy with a child and family psychologist in order to assist him in developing insight into the impact of his behaviour on the children and their relationship with the mother, and modifying such behaviour. For this purpose:
(a)The father shall make and attend an appointment with a child and family psychologist nominated by the Independent Children’s Lawyer in consultation with Ms S.
(b)The father shall attend ongoing sessions with the psychologist at such frequency as recommended by the psychologist.
(c)The father shall comply with the psychologist’s recommendations in relation to treatment.
(d)The father shall use his best endeavours to ensure that his partner, Ms G, also attends therapy sessions if requested by the psychologist.
(e)
The Independent Children’s Lawyer has leave to provide to the psychologist copies of Ms S’s report dated 28 June 2010 and

Dr W’s reports dated 14 July 2010 and 19 July 2010; a sealed copy of these Orders and a copy of Federal Magistrate Lapthorn’s reasons for judgment.
That the mother attend upon a therapist(s) in order to monitor and address her depression and alcohol abuse. For this purpose:
(a)The mother shall make and attend an appointment within 21 days with Dr S, Director of Alcohol and Drug Clinical Services at the [omitted] Hospital.
(b)The mother shall attend ongoing sessions with Dr S, or such other therapist(s) to whom the mother may be referred by Dr S, at such frequency as recommended by Dr S or other therapist(s).
(c)The mother shall comply with recommendations made by Dr S or other therapist(s) in relation to her treatment.
(d)The Independent Children’s Lawyer has leave to provide to Dr S and any other therapist treating the mother copies of Ms S’s report dated 28 June 2010 and Dr W’s reports dated 14 July 2010 and 19 July 2010; a sealed copy of these Orders and a copy of Federal Magistrate Lapthorn’s reasons for judgment.
That each party undergo random supervised chain of custody urinalysis within 24 hours of a written request by the Independent Children’s Lawyer to that party’s solicitor, noting that such requests will not be made more than twice per month.
That Ms S be requested to prepare an updated expert’s report in relation to this matter in approximately 9 months from the date of these Orders and that the cost of such report be shared equally between the parties.
That these proceedings be adjourned for mention and directions on a date to be advised for the purposes of allocating a trial date in approximately 12 months from the date of these orders.
That both parties and the Independent Children’s Lawyer have liberty to re-list the matter on 7 days notice.
That each party do all acts and things necessary to facilitate any request made by the Independent Children’s Lawyer to meet with the children for the purposes of explaining these Orders to them, noting that the Independent Children’s Lawyer proposes to do so with the assistance of the Child Dispute Service.
That the father pay one half of the cost of Dr W’s fees for attendance at Court on 5 August 2010 within 14 days of receiving a written request by the Independent Children’s Lawyer, such payment to be made to the Legal Aid NSW Trust Account to be paid by Legal Aid NSW to Dr W. It is NOTED that the father has already paid his share of the cost of

Dr W’s reports in the sum of $660.00.
That the mother pay one half of the cost of Dr W’s reports in the amount of $660.00 plus one half of the cost of Dr W’s attendance at Court on 5 August 2010 within 14 days of receiving a written request by the Independent Children’s Lawyer, such payment to be made to the Legal Aid NSW Trust Account to be paid by Legal Aid NSW to Dr W.
That each party pay one half of the cost of Ms S’s attendance at Court on 10 August 2010 within 14 days of receiving a written request by the Independent Children’s Lawyer, such payment to be made to the Legal Aid NSW Trust Account to be paid by Legal Aid NSW to Ms S. It is NOTED that:
(a)Each party has paid the sum of $1,650.00 towards Ms S’s fees (being a total of $3,300.00);
(b)The sum of $2,640.00 has been paid by Legal Aid NSW to Ms S in respect of the cost of her report dated 28 June 2010;
(c)Legal Aid NSW currently holds the balance of $660.00 in trust on behalf of the parties, and
(d)Legal Aid NSW will apply this amount to Ms S’s court attendance fees and will request further payment from the parties in the event that the amount owed to Ms S exceeds $660.00.
That within 6 months the father pay the sum of $3,000.00 towards the costs of the Independent Children’s Lawyer to date in these proceedings.
That within 6 months the mother pay the sum of $1,350.00 towards the costs of the Independent Children’s Lawyer to date in these proceedings. It is NOTED that the mother has already paid her initial contribution of $1,650.00.
The mother’s application for the father to pay her costs in the sum of $3,962.00 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Agnew & Agnew is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 3038 of 2009

MR AGNEW

Applicant

And

MS AGNEW

Respondent

REASONS FOR JUDGMENT

Introduction

The parents of [X], [Y] and [Z] can not agree on their future parenting arrangements. Their mother, Ms Agnew, would like the boys to live primarily with her and spend time with the father on weekends and during school holidays. Their father, Mr Agnew wants the boys to live with him and to spend time with their mother on weekends supervised by the maternal grandparents.
During the course of the hearing which took five days it became clear that the orders sought by the parties and the Independent Children’s Lawyer (“ICL”) required refinement so I requested fresh minutes of proposed orders[1] to be filed along with written submissions.
[1] The Father’s proposed minute of order: Exhibit F5;
In summary the ICL sought interim orders rather than final orders that would provide for the children to live primarily with the father. She proposed the children spend time with the mother from Thursday afternoons to Monday mornings each alternate week during school terms and for half school holidays provided the maternal grandparents would be available to provide oversight during those times rather than strict supervision. If the grandparents were not available to provide that oversight her proposal was for the mother’s periods of time with the children to be unsupervised each alternate weekend from 9am to 5pm on Saturdays and Sundays and from afterschool to 8pm one evening each week.
The ICL also sought orders for the parties to attend various forms of therapy, drug testing and for an updated report to be prepared by Ms S in about 9 months from the date of the judgment. The intent of the orders would see the hearing resume before me in about 12 months from the date of judgment. Certain costs orders were also sought.
The mother also sought interim orders but that the children live primarily with her. She proposed the children spend time with the father from after school Friday to before school Monday each alternate week and half school holidays. The mother sought similar orders to the ICL in relation to therapy and drug testing.
The father argued for final orders to be made providing for children to live with him. He proposed the children spend time with the mother each alternate weekend from afterschool Friday to before school Monday and from afterschool to 7.30pm on Wednesday each alternate week as well has half school holidays. Such time was to occur in the general vicinity of either of the maternal grandparents for a period of 12 months. He sought the continuation of the ICL’s appointment for a period of 12 months and that the mother furnish the father and ICL a report from her treating therapist six weeks prior to the conclusion of the appointment as to her progress in relation to alcohol dependency. The father also sought orders for the parties to attend upon therapists but in different terms to those sought by the ICL and the mother.
A further issue for determination was whether the father should pay the mother’s costs in relation to an application for divorce that was withdrawn.

Background

The father who is 36 years of age is a [occupation omitted] employed by [omitted] and is studying for a Masters Degree in [omitted] at [university omitted].
The mother is 35 years of age and is a [occupation omitted] employed by [omitted].
Both parties live in the [M] area.
They married and commenced to live together [in] 1997. Their evidence differed significantly as to the date of separation. The father said they separated 1 April 2008 but continued to live under the same roof until 24 June 2009. According to the mother it was not until 1 April 2009 that they separated. She agrees they continued to live under the same roof until 24 June 2009.
The father has re-partnered with Ms G.
[X] was born [in] 1999 and is therefore 11 years of age. [Y] is 9 years old having been born [in] 2001 and [Z] was born [in] 2003 making him 7 years of age. At the date of the hearing the children were living with each parent in a week about arrangement although there have been periods of time since separation when they have lived with either parent primarily.
On 24 June 2009 the father was arrested for and subsequently convicted of assault of the mother. He received a fine and an apprehended violence order was put in place for a period of 12 months. The father and mother disputed the facts surrounding this assault.
Both parents have had difficulties with alcohol misuse and mental health issues.
The father filed his Initiating Application on 7 December 2009. On 27 January 2010 Orders were made by consent providing for the appointment of the ICL and in the interim for the children to live with the father and spend supervised time with the mother.
On 5 March 2010 the parties entered into interim consent orders that provided for the children to live with them on a week about basis. There were a number of provisions in those orders for both parties to attend upon treating professionals. Both parties were also restrained from drinking alcohol whilst the children were in their care. After an incident on 3 June 2010 where the mother breached this restraint the father filed an Application in a Case seeking that the children live with him and spend supervised time with the mother at a contact centre. On 29 June orders were made by consent maintaining the week about arrangement but requiring the maternal grandmother to be present during the weeks the children were living with their mother. There were also a number of restraints designed to ensure the children were not exposed to discussions about these proceedings.

Issues

During the hearing it became clear that in deciding what parenting orders should be made it would be necessary to consider a number of issues surrounding parental capacity. The mother has experienced problems with depression and alcohol misuse but the parties disagree as to the extent of this and its effects on her capacity to properly care for the children. The father has had a history of mental health issues but the parties do not agree as to how that should be taken into account in determining his parenting capacity.
The children have expressed clear views as to where they would like to live but at issue is what weight should be given to those views given their relatively young ages and the allegation that they may have been influenced by the father.
A significant issue that arose during the hearing was whether interim orders should be made notwithstanding that the parties have endured a five day final hearing.

The evidence

The father relied on his Initiating Application filed 7 December 2009 but at the request of the court submitted a minute of order at the end of the hearing. In support of his application he relied upon the following:
a)His affidavits filed:
i)7 December 2009;
ii)25 February 2010;
iii)10 June 2010;
iv)29 June 2010; and
v)29 July 2010.
b)The affidavits of:
i)Ms G filed 25 February 2010;
ii)Ms A filed 25 February 2010;
iii)Mr K filed 19 June 2010; and
iv)Ms H filed 30 July 2010.
The mother relied on her Response filed 12 February 2010 but also submitted a minute of proposed orders at the request of the court. The documents relied upon in support of her case are:
a)Her affidavits filed:
i)12 February 2010;
ii)29 June 2010;
iii)29 June 2010; and
iv)30 July 2010.
b)The affidavits of Ms W filed:
i)10 February 2010;
ii)29 June 2010; and
iii)29 June 2010.
c)The affidavit of Mr W filed 12 February 2010; and
d)The affidavit of Ms C filed 12 February 2010.

The court was also assisted by the following reports:
a)Chapter 15 Psychologist’s Report by Ms S filed 28 June 2010;
b)Chapter 15 Psychiatrist’s Report by Dr W in relation to the father released 29 July 2010; and
c)Chapter 15 Psychiatrist’s Report by Dr W in relation to the mother released 29 July 2010.
d)Memorandum from Family Consultant R dated 21 December 2011.[2]
[2] Exhibit C2
I have had regard to this evidence as well as the oral evidence of the witnesses.
I have also had regard to a number of documents that were tendered into evidence. These included:
i)Copy of an email dated 3 June 2010 from the father to the mother;[3]
[3] Exhibit M1
ii)Two letters to the ICL from the principal of [M] Public School and a teacher;[4]
[4] Exhibit ICL1
iii)A handwritten statement from the mother responding to the affidavit evidence of Ms H. This statement was adopted by the mother in her evidence in chief;[5]
[5] Exhibit M2
iv)A copy of an undated letter from the mother to the father’s partner, Ms G;[6]
[6] Exhibit F2
v)A fax from [omitted] Chemist, [M] as to the mother’s medication history as at 4 August 2010;[7]
[7] Exhibit M3
vi)An aide memoir as to the mothers list of prescriptions showing the total number of days from the original script;[8]
[8] Exhibit F3
vii)Tax invoice from Mallik Rees Lawyers to the mother dated 2 March 2010;[9]
[9] Exhibit M4
viii)Memorandum of fees from The Family Law Firm to the mother dated 2 August 2010;[10]
[10] Exhibit M5
ix)Letter from Mr R to The Family Law Firm dated 6 August 2010;[11]
[11] Exhibit M7
x)Criminal history of the father;[12]
[12] Exhibit M8
xi)File note of [M] Public School in relation to meeting with father and teachers dated 1 February 2010;[13]
[13] Exhibit M9
xii)Copies of pages from mother’s diary dated 23 March 2010;[14]
[14] Exhibit F4
xiii)Pages from the records of [omitted] Hospital in relation to the father;[15]
[15] Exhibit ICL2
xiv)Pages from the records of [omitted] mental Health in relation to the father;[16]
xv)NSW Police Records in relation to the parties;[17]
xvi)Records from the Department of Human Services;[18]
xvii)[omitted] Hospital records in relation to the mother;[19]
xviii)[omitted] Mental Health records in relation to the mother and father;[20]
xix)[omitted] Surgery medical records in relation to parents and children;[21]
xx)NSW Police COPS Entry records in relation to both parents;[22]
xxi)Medicare Australia Records in relation to the mother;[23]
xxii)[omitted] Pathology liver function test results in relation to the mother;[24]
xxiii)[omitted] Pathology Service liver function test results in relation to the father;[25][26]
[16] Exhibit ICL3
[17] Exhibit ICL4
[18] Exhibit ICL5
[19] Exhibit ICL6
[20] Exhibit ICL7
[21] Exhibit ICL8
[22] Exhibit ICL9
[23] Exhibit ICL10
[24] Exhibit ICL11
[25] Exhibit ICL12
The father presented as an intense man, rigid in his views and committed to ensuring his children were safe and properly cared for. Overall I found his evidence to be honestly given to the best of his ability even though I formed the view that he was at times either minimising his involvement in the dispute or had formed a view of events that could not be objectively held. I will address these findings in more detail when I consider specific events and circumstances.
The mother’s evidence was most troubling. It became apparent, and the mother conceded, that she has on many occasions been less than truthful with medical practitioners, report writers and even her family. Regrettably and despite a number of admissions made against her own interest, I was left with the impression that the evidence the mother gave could not always be trusted. This made it difficult to determine what weight should be given to her evidence when it differed to that of the father. Further to her evidence the mother’s demeanour and presentation at the bar table and in the witness box was at times unusual. Sometimes during the giving of evidence, particularly from the father but also during Dr W’s evidence the mother was unable to refrain from exhibiting her irritation and disagreement in an emotional way. So much so that I found it necessary to warn her from time to time.
Overall I preferred the evidence of the father to that of the mother but will address specific factual matters where I have arrived at a different conclusion.
The maternal grandmother, maternal grandfather and maternal aunt,

Ms C gave evidence. I found all of them to be quite partisan in support of the mother. So much so I did not feel they could be objective about the father. The maternal grandmother in particular appeared to be determined to be critical of the father at every opportunity when giving her evidence. She also saw no need for the mother’s time with the children to be supervised and down played the mother’s alcohol consumption. Ms C’s evidence about the father being verbally abusive of the mother in front of her and the children and of having a violent temper was denied by him. I have not given much weight to this evidence as I am not persuaded Ms C was sufficiently objective about each of the parents.
I do not propose to repeat much of the evidence save where I consider it necessary to weigh up the legislative considerations or where a significant fact requires determination. In doing so I will consider the evidence under various headings.

The father’s mental health history and current status

The father has had three admissions to mental health facilities in 2004, 2007 and 2009. The father’s recollections of the events leading up to and including the admissions differ from the records of the respective facilities. Despite these differences I am able to find that on each occasion the father presented in a highly distressed state and sought help of his own accord. Notwithstanding his own insight into the need for professional assistance the circumstances surrounding his calls for help and presentation were not without incident.
In 2004 the father phoned the police for assistance and according to the hospital records, upon their arrival they observed him to be dressed in combat fatigues with camouflage paint and with knives strapped to his body. The father says there was only one knife and upon being told to drop it he did so. The father denied any threat to harm the police. It is not possible to determine with any accuracy the facts surrounding the police visit at this time. The father’s recollection would no doubt have been clouded by the distress he was suffering at the time and the hospital records are not first hand recollections. The police records however clearly show a volatile and potentially dangerous situation had developed. There can be no doubt that the father’s mental health was seriously compromised at that time. On any account this event can only be described as one of extreme behaviour on the part of the father and one where there were serious risks not only to his safety but also the police.
The father was recorded as having given a history of thoughts of suicide, mood swings and angry outbursts. He was discharged from the hospital the following day after having been diagnosed with having had an acute dissociative episode subsequent to alcohol intoxication, post traumatic stress disorder and depression.
Three and a half years later the father sought admission to the Mental Health Unit of the [omitted] Hospital where he was diagnosed with bipolar affective disorder, depression and alcohol dependence. This was during a period of separation between the parties.
After the violent episode between the father and mother on

24 June 2009 the father presented at the [omitted] Hospital Emergency Department. He was admitted to the [omitted] Hospitals for treatment between 25 June and 1 July 2009. He was diagnosed with a major adjustment disorder with depressive mood.
After assessing the father and viewing his medical records, Dr W was not persuaded the father met the criteria for a diagnosis of bipolar disorder, but formed the view that the rapidity from which the father recovered from the extremes of his behaviours and low mood was suggestive of behaviours consequent upon substance abuse or personality dysfunction or both. He opined that the father’s mental health history can be understood in terms of a Cluster B personality dysfunction and substance abuse. Notwithstanding this Dr W was satisfied that there had been a significant period of stability and in July 2010 when he conducted his interviews there was no objective evidence of anxiety, depression, psychosis, substance abuse or organic mental disorder leading him to conclude that the father was no longer a deeply troubled person nor was he mentally ill. He recommended however that the father abstain from the consumption of alcohol for life.

The mother’s history of alcohol abuse and mental health status

The mother gave evidence of being diagnosed with depression in 2006 and from about that time she started to consume alcohol and occasionally to excess. Her evidence was that this would occur no more than once every 3 months. She said this escalated in 2008 to about once a month and continued until April 2009. She denied ever consuming alcohol on a daily basis. She blamed her drinking on the pressures she was experiencing in her relationship with the father and her depression. In cross-examination the mother conceded she had a major problem with alcohol but was not an alcoholic.
The father painted a more serious picture. His evidence was that the mother’s alcohol dependency started in 2003; that by 2006 about once a month he would return home from night shift at 10am to find the mother heavily intoxicated and by the end of 2006 the mother was under the influence of alcohol daily. He said he would get phone calls at work from the children and neighbours expressing concern for the mother and at times saying that the mother had passed out on the floor of the home. He described instances of having to coach the children over the phone how to make sandwiches or to turn the stove off because the mother was not able to be woken. There was an incident in 2007 where he found the mother drunk and lying in the front garden when he returned home from work at 4pm and on another occasion that year where the mother had crashed the car into a fence post near their home whilst she had the youngest child in her care. The mother denied she had been drinking and said the accident was as a result of recent heavy rains causing deterioration of the road surface. She said this event occurred at the time of wild weather in the [omitted] region. She recalled it occurred the same weekend that a ship came ashore at Newcastle which was on the June long weekend. The subpoenaed records showed that this incident occurred nearly two months later. After reading the documents the mother said she had no recollection of being taken to the [omitted] Mental Health unit that night.
In September 2009 the father returned the children to the mother’s home at about 7pm after they had spent Father’s Day with him only to find the mother staggering and slurring her words. Later that month he received a message from the children’s school to say that the children had not been picked up.
On 31 October a mutual friend of the parties Ms H took her child [name omitted] to the mother’s home for a pre-arranged sleep over. When she arrived the mother was in her bedroom and Ms H observed the mother to be unsteady on her feet and to be slurring her speech. She had a number of children in her care as well as her own children. Ms H organised for all children to return to their respective homes. By mid November there were a number of incidents where the children were not collected from school.
Ms H described observing the mother being intoxicated during this time. On 19 November Ms H and another friend, Ms O drove the mother to the [omitted] Hospital emergency department for crisis intervention. Ms H gave evidence of observing the mother’s breath test which recorded a very high reading of over 0.38. Being a nurse she was familiar with this testing procedure. I found Ms H to be a most helpful witness. Her evidence was given in an honest and forthright manner. She was not partisan in any way being able to be positive about both parties.
When questioned about this night by Ms S the mother said she could not recall all of the events of that night but that it was ludicrous that she would have tested 0.4 as asserted by the father. Ms S, in her report, was also dismissive of the father’s evidence as to the extent of the mother’s alcohol consumption on this occasion. She formed the view that the father had over-exaggerated the mother’s alcohol abuse. Ms S did not have the benefit of the subpoenaed documents from the [omitted] Hospital in relation to this attendance which showed the reading was 0.368. The reading leads me to conclude that the mother had seriously abused alcohol on that occasion.
Dr W recorded in his report that the mother told him that by October 2009 she considered the father to be harassing her and used alcohol to “to block myself out”. She denied drinking regularly and said that it only happened twice. Dr W was sceptical of the mother’s story taking the view that the mother’s friends taking her to hospital was suggestive of a bigger alcohol problem.
After this incident in November the mother attended a program run by the [omitted] Hospital’s Drug and Alcohol team. This program lasted for 8 weeks. She was prescribed Antabuse by Dr S. According to

Dr W this drug is an alcohol sensitising medication which causes individuals who are taking it to be violently ill. It also reduces cravings. The mother also saw Dr T.
The mother was adamant to Ms S that she had not consumed any alcohol at all since that time and that she had not missed her daily Antabuse medication even for a day. This was not true.
Police attended the mother’s home on 3 June after receiving a call from [X]. They formed the view that the mother was intoxicated after initially observing her to be asleep on the floor and taking a number of attempts to wake her. They then observed her to be unsteady on her feet and confused. Her breath was reported to have smelt of alcohol. The children were not removed from her care.
During her initial interview with Ms S the mother denied being intoxicated on 3 June. When she was told by Ms S that she was aware of an incident on that day the mother “sighed in response”. She told Ms S that [X] had called the police and they did a search of her house when they arrived and found no alcohol and she told them she had not been drinking. She again denied to Ms S that she had been drinking. Ms S interviewed the mother again 10 days after the initial interview. At this interview that mother admitted she had not told Ms S the truth on the last occasion. She said she had two standard glasses of wine but because of her taking Antabuse she became sick. She blamed her relapse on harassment from the father. The mother again confirmed apart from this incident she had not consumed alcohol since November 2009 when she started taking the Antabuse.
When challenged as to why she had lied to Ms S during her initial interview the mother said: “because I thought I could get away with it”.
The mother told Dr W that she had two glasses of wine while taking Antabuse and became very sick including vomiting. His evidence was that her reaction was not consistent with only having two glasses of wine and one Antabuse tablet.
I find that the mother’s evidence cannot be accepted in relation to this incident. I am satisfied that the mother had been consuming alcohol on that occasion and it would have been more than two glasses of wine. She was significantly intoxicated and as a consequence was unable to properly care for her children. Her evidence that she thought she could get away with lying about it is indicative of a person who has insight into her drinking rather than being in denial. Her dishonesty may also be indicative of someone not prepared to face up to the task of overcoming her addiction.
The mother blamed the father for her relapse on 3 June saying she was being harassed by him through text messages and emails. However apart from one email tendered[27] there was no corroborative evidence to support her assertions. Exhibit M1 in itself can not be said to be harassing. It was an email from the father in relation to the settling of their financial affairs. It was not inappropriate in its wording. I am not satisfied there is sufficient evidence to find the mother was being harassed by the father at around this time.
[27] Exhibit M1
The mother’s evidence in relation to her taking the Antabuse medication was also concerning. She told Ms S that she was taking the Antabuse daily and had not missed any doses. This was also her evidence in the witness box. After records were produced from her chemist[28] the mother changed her evidence saying she may have missed one or two doses especially when she was travelling to [omitted]. The following day she changed her evidence again. This time her evidence was that she only took the medication every second day between December and March. Under cross-examination as to the plausibility of this given the subpoenaed documents she conceded she may also have only taken it every second day in April and May. Her evidence was that she had read somewhere that the drug remained in the system for more than a day and in order to save costs she stretched out her consumption of it. Dr W’s evidence was that the drug was available free if obtained through the Antabuse Program run by Mental Health Services. The mother said she did not want to access it there because of her employment at [omitted].
[28] Exhibit M3
When I consider all of the evidence of the parties including the views of Ms S I am not persuaded the father has been exaggerating the extent of the mother’s drinking and preferred his evidence on this issue. I find the mother has had a serious problem with alcohol abuse since at least 2006 and on a number of occasions she has not been able to properly care for the children.
During the course of the mother’s evidence she told the court that although she regularly obtained prescriptions for Avanza to treat depression from her treating doctor she did not have them filled by a chemist but rather stole them from the medicine cabinet at [omitted] Hospital. Dr W found this hard to believe as in his view the audit processes at all New South Wales hospitals are so strict that any such theft would be found out. The evidence on this issue is troubling as either the mother has not been collecting and taking her medication for depression but telling her treating doctor as well as Ms S and Dr W that she has been or she has been stealing it repeatedly as an act of dishonesty against her employer. Given the mother maintained her position after being warned about the potential consequences of her evidence as to the theft I am persuaded she has been taking the medication after stealing it from the hospital.
In his report Dr W formed the view that the mother had suffered from Unipolar Major Depression but had recovered. He held the view that she has a mood disorder that has been complicated by alcohol abuse. He did not consider that she had any active psychiatric disorder or substance use disorder which would preclude her from parenting. He said she should remain on the Avanza indefinitely to avoid a relapse and to abstain from alcohol.

Legal principles

Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975 which sets out a legislative framework to be followed. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[29] That is the overriding principle.
[29] Section 60CA

The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[30]
[30] Section 60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests I must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[31] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[32]
[31] Section 61DA
[32] Section 61DA(2) & (4)
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[33] If the court finds that equal time is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[34]
[33] Section 65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[34] Section 65DAA(2)(c) & (d)

Presumption of equal shared parental responsibility

There are a number of concerning aspects to this case that warrant a consideration of whether the presumption of equal shared parental responsibility applies. There have been allegations of family violence and compromised parental capacity as a result of mental health issues and alcohol abuse. The communication between the parents is also poor.
Despite this the father seeks an order for equal shared parental responsibility and neither the mother or ICL sought any orders for sole parental responsibility. The mother in her evidence said that despite their ongoing difficulties she felt that in the future they would be able to consult in relation to important decisions affecting the children.
I am persuaded that the presumption as been rebutted given the history of family violence and compromised parenting. Notwithstanding this I am persuaded that it is appropriate to make an order for the parties to share equally their responsibility for making the important parenting decisions for the children. I have arrived at that decision because of the mother’s confidence the parents will be able to consult about such decisions and by the father seeking such an order he also implicitly shares that confidence.

Consideration of equal time or substantial and significant time

Both parties accepted that the equal shared care arrangement currently in place is not working to the benefit of the children and neither party sought its continuation. I am satisfied that although the parties live in close proximity to each other such that it would be reasonably practicable for the children to move easily between the two homes it is not in their best interests for it to continue. I have arrived at this decision after considering all of the factors in s.60CC below however my conclusion on this point can be summarised as the children needing stability in their lives as a result of the significant upheaval they have experienced prior to and post separation.
I will consider the appropriateness of a substantial and significant time order after a more detailed consideration of the s.60CC factors.

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

The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.

The children’s relationships

S.60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents;

S.60CC(3)(b) 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);

S.60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

S.60CC(3)(d) The likely effect of any changes in the child’s circumstance, 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

Both parents have played a significant role in the care of their children since their birth. They each worked shift work and would care for the children when the other was at work. During the early years of the children’s lives the mother worked part time and was more available for the children. Nothing much turns on that as I am satisfied that prior to separation both parents were what could be described as “hands on” parents and since separation the children have been cared for in a shared care arrangement for the majority of the time. Because of this involvement in their care the children would have developed meaningful relationships and have strong attachments with both parents. There is no dispute that the children would benefit from continuing to develop those relationships.
Although Ms S reported that the father was not sure if the children loved their mother I am satisfied that they have loving relationships with each parent but at present their relationships with their mother have been compromised, particularly in the case of [X].
The ICL submitted that the children's relationships with the father appeared to be characterised by pressure having been placed on them by him to monitor the mother's behaviour and report back to him. She submitted that this was more likely to have been by way of indirect pressure rather than direct. Ms S was of the opinion that the father had been placing pressure on the children. She observed that [X] was “parentified” and had been given "an inordinate amount of responsibility by the father". The father gave evidence that when the children returned to him on Friday afternoons the first thing they do is "purge themselves" of information about their mother, such as her alcohol consumption. Ms S gave evidence that was an unusual way for children who are distressed to make disclosures. She was concerned that this was more likely a feature of the children becoming alienated from their mother.
The mother has experienced a number of difficulties in the children's behaviour which have negatively affected her relationship with them. Her evidence was that [X] in particular but also the other children have been rude and argumentative with her and she has had trouble encouraging them to do as they are told. Both maternal grandparents corroborated the mother’s evidence in this regard.
Ms S gave evidence that this behaviour could be a result of a number of factors the three most likely being:
i)the ongoing conflict between the parents;
ii)a failure on the part of the father to discourage such disrespectful behaviour, or
iii)a reaction on the children’s part towards the mother as a result of their experience of their mother’s drinking or compromised mental health.
Ms S held the view that the second of these factors was the more likely explanation.
Counsel for the father strongly argued that it was more likely to have been the children’s reaction to living with and observing their mother seriously affected by alcohol misuse as well as her parenting being compromised by her depression. Although it was submitted the children may have a “realistic estrangement” from their mother I am not satisfied there is sufficient evidence to conclude the children’s relationship with their mother has reached such a level.
The mother and ICL submitted that Ms S’s opinion should be accepted. Their submissions highlighted concerns as to the father’s capacity to support the children having a close relationship with their mother.
The father told Ms S during the interviews she conducted in June 2010 that he did not know whether the children loved their mother, or whether she loved them. Despite the submissions by the father’s counsel that the evidence was that the children have a good relationship with both parents I found the father’s evidence troubling. In cross-examination the father struggled to identify any positive aspects of the children's relationship with their mother. This has led me to conclude that the father is unable to appreciate the importance of the mother/child relationship and may have difficulties supporting its development and retention. My observations of the father in the witness box appear to be consistent with the conclusions that Ms S drew after her interview with the father particularly the conclusion that he had a limited capacity to be empathic towards the children and to respect and encourage their relationships with their mother.
Where I differ from Ms S is her conclusion that the father appeared to want to sever any meaningful relationship between the children and their mother. Although I have no doubt he has been disparaging of the mother and has not managed to keep this from the children I doubt he has deliberately set out to sever the relationship. Rather I find he has lacked the insight necessary to understand how to promote a relationship between the children and their mother despite his serious, and well founded, concerns as to the mother’s capacity to parent. I am not persuaded that, when the father told [X] he was “brave” for contacting the police when he was unable to wake his mother up one night after she had been drinking to excess, or when he has told them he will “get in trouble” if they don’t go to their mother’s, he was deliberately attempting to alienate the children from their mother. Rather I find these incidents to be further evidence of his lack of insight into the effects of his statements on the children.
It is this lack of insight that the mother argued was a pivotal factor to this case. Her counsel argued that I should find that he lacked any genuine desire to improve the dynamics of either his or the children’s relationships with the mother and that as a result of his personality dysfunction, as found by Dr W, I could not be confident he would be able to overcome this lack of insight unless he engaged in a therapeutic relationship with a counsellor recommended by Ms S.
Ms Cotter-Moroz argued that there was a real risk that the children’s relationships with their mother will further deteriorate if they live predominantly with the father, whether it be on an interim or final basis. I accept this issue is a significant one and there is a real risk of further deterioration in the children’s relationships with the mother if they live with the father unless he engages in therapeutic counselling.
Although I am satisfied that the father’s approach has been a significant factor in the way the children have related to their mother I am not persuaded that that alone is the cause of the difficulties in their relationships. I find that the other factors proffered by Ms S would have also contributed to the children’s perception of and relationship to their mother. The ongoing conflict between the parties, which has involved physical violence at the time when the parties physically separated would have and will continue to have a significant effect on the children. Their observations of the mother affected by alcohol, as the father argued, would also have been a most significant contributor to the children’s perceptions of their mother. These observations would no doubt have been re-enforced by the father being unable to shield his views of the mother from the children. Consequently a combination of all of these factors is likely to have contributed to the deterioration of the children’s relationships with the mother and all need to be addressed.
The mother gave evidence of denigrating the father in the presence of the children by referring to him as “the ass” when she has been talking to members of her family. Although this name calling is inexcusable I am not persuaded the mother lacks the capacity to support the children’s relationship with the father. She readily gave evidence of the children loving their father and enjoying their time with him. She recognised that the father wanted what was best for the children and that he had been a “hands on” father to them. The mother also appears to have shielded the children from any knowledge of the father’s mental health history. When I consider the evidence in this regard I am satisfied that despite the mother’s dislike for the father she will not allow that to undermine the children’s relationships with him.
The children currently live in an equal shared care arrangement with both parents. Both parties sought a change to that arrangement believing that it was not in the best interests for the children for it to continue. The ICL also submitted that it was not appropriate to continue this arrangement. To change that arrangement will see the children spending longer periods of time away from one of their parents. The ICL submitted that they are now of an age where they would be able to cope with longer periods of time away from a parent. I accept that submission and note there was no argument to the contrary.
The mother was particularly concerned that if the children were to live primarily with the father there would be a real risk that the children’s relationship with her would further deteriorate. This was acknowledged by the ICL as a reason for the need for interim rather than final orders. The concerns are well founded. Although the potential for further compromising of the relationship exists regardless of whether the orders are interim or final I am satisfied that interim orders will enable the parties and the court to review the progress of the children’s relationships with the mother and the father’s commitment to gaining further insight into the children’s needs in this area.

Risk of harm

S.60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

S.60CC(3)(j) Any family violence involving the child or a member of the child’s family

S.60Cc(3)(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) The order is a final order;

(ii) The making of the order was contested by a person

These factors are significant considerations in this case.
The father’s case is that the children are at risk of harm in the mother’s care because of her inability to refrain from excessive alcohol consumption leaves them vulnerable to neglect. The mother is concerned that the children would be exposed to psychological abuse in the father’s care because he is likely to alienate the children from her. She is further concerned that the father’s history of mental health issues raises the potential for the children to be exposed to physical harm in his care. The issue of alienation is more appropriately considered under the factors dealing with the children’s relationships and parenting capacity.
In 2009 the father was convicted of Assault Occasioning Actual Bodily Harm against the mother. The father’s evidence did nothing to persuade me he acknowledged his role in the physical fight between the parties on the night they physically separated. Despite his conviction he maintained the position that the mother was physically aggressive to him and downplayed his own part in the physical altercation. My observation of the father in this regard is consistent with the opinion expressed by Ms S that he lacked empathy for the mother’s injuries and minimised his responsibility for the assault.
The father’s mental health history and the assault in 2009 show that the father has the capacity for aggression. Notwithstanding this finding I am not persuaded there has been an ongoing history of family violence. The circumstances of 24 June 2009 are more consistent with situational violence surrounding the breakdown of the parties’ relationship in the context of them living under the same roof although separated.
The mother submitted that the evidence suggests the father has also been heavy-handed in his discipline of the children. I was unable to accept the grandparents’ evidence on this issue and overall I was persuaded that although the father would be stricter than the mother he was not one to cause physical harm to the children.
An Apprehended Violence Order protecting the mother was made on 8 October 2009. It expired 12 months later.
Although the father has had a history of aggression I am not persuaded the children would be at an unacceptable risk of harm in his care given his mental health appears of have stabilised although more time would be of benefit in determining his ability to maintain that. The children however are young and vulnerable and at risk of neglect with the mother, unsupervised, if she is not able to remain abstinent form alcohol. To date there has not been a long enough period of abstinence for the court to have any confidence she would be able to maintain that. By use of the word neglect I am not suggesting the mother would not have the capacity to provide for the children on a daily basis but that there may be occasions when she is so affected by alcohol that she is unable to focus on the children’s needs and provide them with the care and supervision they need at that time.

The children’s views

S.60CC(3)(a) 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

All three children have expressed a wish to live with their father. Both the mother and ICL submitted that the court should not place significant weight on their wishes given their ages and the view of

Ms S that the boys have been under pressure from their father to reject their mother.
I do not accept those submissions.
Although the views of the children would not be determinative of this dispute given their ages all of the children are of an age when they should be listened to. They are 11, 9 and 7 years of age and both [X] and [Y] were considered by Ms S to be intelligent and articulate although she thought [X] was precociously mature.
The views they have arrived at have no doubt been influenced by the many facets of their experiences living with both parents prior to and after separation but particularly as a consequence of their observations of their parents in recent times and any influence placed upon them either deliberately or inadvertently by their parents and others in the extended family.
Even if the children have aligned with their father, a finding I am not prepared to make, the reality for them is they do not want to live with their mother at this time. I have found that the children’s relationships with their mother have been influenced by a number of factors including the father’s lack of insight in promoting those relationships but also their observations of the mother when she has been affected by alcohol. I have no doubt it would be frightening for children to find their mother asleep on the floor of her bedroom and being unable to wake her. Compared to the mother’s household the children are more likely to have found life in the father’s home to be more structured, stable and without the fear of finding their parent unable to respond to them. Consequently they would, in my view, be more inclined to want to live with their father regardless of any further influence he may place upon them.

It would not be in their best interests to ignore their wishes at this stage. Their wishes however may change in the event they are able to improve their relationships with their mother in the future. This is another reason why there is merit in considering interim orders rather than final orders.

Practical difficulties

S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The parties live in close proximity to each other and in that sense there are no practical difficulties or cost consequences for the children moving between the two homes.
One significant difficulty however is the proposal of the ICL and father and to a certain extent the mother for the maternal grandmother and/or maternal grandfather to be present when the children are with the mother. They live in [P] and have been travelling to [M] since the orders were made in June 2010 requiring the mother’s time to be supervised. This has been a significant burden borne by them. Whilst I am mindful of that burden I am satisfied that as the mother has not had a lengthy period of abstinence from alcohol and there have been times where the mother has not been able to appropriately supervise the children whilst under the influence of alcohol there needs to be a continuation of supervision at least in the sense of being generally present.

Parental capacity and responsibility

S.60CC(3)(f) 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 child, including emotional and intellectual needs

S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

S.60CC(4) The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent

There have been times when each of the parents has been unable to meet the children’s immediate needs as a result of their parenting capacity being compromised by alcohol abuse and mental health issues. At other times both parents have been able to appropriately care for and provide for the children.
Although the father appears to have been able to maintain stable mental health since June 2009 there remains concern that by not supporting the children’s relationships with their mother he is not meeting their emotional needs. This has the potential for long term negative consequences for the children. His personality may be such that he is unable to shift his position in this regard but if he was to effectively engage with a therapeutic counsellor to address this issue the children will benefit not only in the short term but also throughout their lives.
The mother’s alcohol abuse has seriously compromised her ability to parent at times. Although Ms S was critical of the father encouraging the children to phone the police rather than the paternal grandparents when the mother has been intoxicated the fact that the children have needed to seek help because they have been unable to wake their mother shows she has not been able to properly supervise and care for them at times. These children remain young and vulnerable. Until such time as the mother is able to properly address her issues with alcohol abuse there is a need for the children to be supervised when with the mother to minimise any risk of harm to them.
If both parents were able to positively address these issues I am confident they would be able to properly care for and provide for the children.

Background issues

S.60CC(3)(g) 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

S.60CC(3)(h) if the child is an Aboriginal child or Torres Strait Islander child

Neither of these considerations are relevant to the current determination.

Limiting further proceedings

S.60Cc(3)(l) 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

Ongoing litigation is always a burden for the parties not only in regards to their legal costs but emotionally as well. The children are also affected by litigation. The litigation commenced in November 2009 and the parties have had a five day hearing.
The father submitted that it would not be in the children’s best interests for interim orders to be made, as sought by the ICL and the mother, as the litigation would continue leading to the parents being guarded in their interactions and not co-parenting in an open and honest fashion.
The father’s submissions also suggest he sees any interim order as being an opportunity for the mother to have a second chance to demonstrate she is able to remain abstinent from alcohol. He argued that final orders should be made on the evidence presented and if the mother’s circumstances were to significantly change in the future there would be nothing preventing her bringing further proceedings if the parties are unable to reach agreement as to any change in the parenting orders. There would be much merit in this argument if it were not for the issues surrounding the father’s mental health history and his ability to positively encourage the children’s relationships with the mother.
Although I find the father has been able to remain in positive mental health since June 2009 I accept the view of Ms S that further time would assist in determining his capacity to maintain that status. Of more significant importance however is whether the father is able to obtain therapeutic assistance to help him support the children’s relationships with their mother. Although I have not adopted Ms S’s view that the father is largely responsible for the way the children relate to their mother I am persuaded he can and should do much more to help improve those relationships.
For these reasons I am persuaded that interim orders are in the children’s best interests although I am very cognisant of the extra costs burden that will impose on the parties.

Discussion

The mother proposed that the children live with her and her mother for a period of six months. For the reasons I have set out above I am not persuaded that that would be in the children’s best interests. Her concern as to further deterioration of her relationship with the children however remains important and needs to be addressed. It needs to be addressed by both parents. The mother needs to remain abstinent form alcohol and the father needs to develop the skills necessary to be supportive of the children’s relationship with their mother.
I have already addressed the father’s proposal for final orders and the reasons why I am not persuaded it is in the children’s best interests at this stage for such orders to be made. I accept the ICL’s submissions as to the need for both parents to continue to receive professional assistance and for an updated family report to be prepared by Ms S in about nine months time.
When I consider all of the factors discussed above I accept that the proposals of the ICL have much merit and will make orders largely in accordance with the minute of order sought by the ICL. This will ensure the children achieve some stability by having one primary home but still see their mother regularly. I am of the view their time with their mother needs to remain supervised until the court can be satisfied the mother is able to abstain from alcohol even though I appreciate the significant burden this will place on the maternal grandparents and the mother. Ms S was concerned that if supervision was not available the mother’s time with the children should not take place overnight as the children would be more vulnerable then. I accept that view.
Having found that it is in the children’s best interests for them to live primarily with their father in the interim I am required to consider whether it is in their best interests and reasonably practicable for them to spend substantial and significant time with the mother. The father proposed the children spend each alternate weekend with the mother from after school Fridays until the commencement of school the following Monday and from afterschool to 7.30pm each alternate Wednesday. The ICL submitted that the periods of time should be from after school Thursdays to before school Mondays each alternate week. These proposals were based on the mother’s time being supervised by her parents. If such supervision was not available the ICL proposed the mother’s time be from 9am to 5pm Saturdays and Sundays of each alternate weekend and one mid-week day each week. The father supported the ICL’s weekend proposal in this circumstance but sought only from after school to 7.30pm each alternate Wednesday for the mid week time.
Substantial and significant time is time that falls on weekends, during holidays and other times that allows parents to be involved in the daily routine of the children and special occasions.[35]
[35] S65DAA(3)
The ICL’s proposal for a block period was suggested because of the logistical difficulty of having the maternal grandparents travel from [P] each alternate week to supervise the time. Notwithstanding the strained relationship between the children and their mother I am persuaded that it would be in their best interests for them to have substantial and significant time with her and the ICL’s proposal best achieves that. It would also be reasonably practicable for the same reasons discussed above when considering equal time. The ICL’s proposal would see the mother have an opportunity to be more involved with the children’s school but collecting them from after school Thursday and taking them there on the Friday as well as the Monday. Overall this proposal is to be preferred to the father’s.
The therapeutic orders sought by the ICL are also very important not just to the parents but if successful of benefit to the children. A court does not have power to require a parent to attend upon a therapist or treating professional unless such an order is part of a condition of a parenting order.[36] To avoid any doubt I propose to make the orders for where the children should live and with whom they should spend time with conditional upon compliance with the therapeutic orders.
[36] See L & T (1999) 25 FamLR 590
The ICL and mother sought orders for the final hearing to resume before me in 12 months time. In this judgment I have been critical of the mother’s evidence which may cause her to reconsider whether it is appropriate for me to continue to hear the matter. I will allow the parties an opportunity to consider this issue prior to having it set down for final hearing.
For these reasons I make the orders set out at the commencement of this judgment.

Independent Children’s Lawyer’s Costs Application

The orders sought by the ICL included provision for each party to make contribution to her costs. The father opposed that application and the mother’s submissions where silent in that regard.
Ordinarily each party[37] to family law proceedings would bear their own costs of the proceedings[38] however if the court is of the opinion that the circumstances of the case warrant a costs order being made it may do so having regard to a number of factors set out in s.117(2A). The court however must not make an order for a party to pay the ICL’s costs if the party has received legal aid in respect of the proceedings or that party would suffer financial hardship if required to pay the costs.[39]
[37] Including an Independent Children’s Lawyer – S117(3)
[38] S117(1)
[39] S117(4)
Neither party in this case was legally aided. It was a complex case warranting the appointment of an ICL and one in which the court was greatly assisted by the representation.
The father submitted that although he was earning a good income he has a number of expenses which along with his own legal costs would mean that if he had to also contribute to the ICL’s costs he would suffer financial hardship that would have a corresponding effect of his ability to provide for the children. I accept that the father would find such costs order a further burden, that would reduce his capacity to provide for the children, but I am not persuaded that he would suffer financial hardship. The mother has already paid an initial contribution of $1,650 and in her proposed orders she sought the same orders as the ICL.
The tax payer should not ordinarily be expected to carry the costs of the representation of children if some contribution could be made by the parties. I take into account there will be further legal costs incurred by all the parties given I have decided to make interim orders as well as costs associated with attendance upon treating professionals and the preparation of a further report. When I weigh all of these factors I am persuaded that both parties should make some contribution to the ICL’s costs to date but limited $3,000 each. This order will not preclude the ICL making a further application at any resumed hearing for a further costs order for costs incurred after the date of this judgment. As the mother has already contributed $1,650 I will order her to pay the sum of $1,350.

Mother’s costs Application in relation to Divorce Proceedings

The mother sought an order that the father pay her the sum of $3,962 for costs associated with his application for divorce filed 26 November 2009. The father asserted that the parties separated on 1 April 2008 although they remained living under the same roof until 24 June 2009. The mother maintained that they did not separate until 1 April 2009 and although she did not oppose a divorce order being made given she maintained a date of separation less than 12 months prior to the date of the filing of the application the application required a contested hearing. This hearing was adjourned to be heard at the same time as the parenting application. The father withdrew his application for divorce on 2 August 2010 which was the first day of the hearing. During the hearing the court gave leave for a fresh application to be filed, and heard the divorce application without contest. The order was made.
The mother argued that the father’s original application should be regarded as wholly unsuccessful given he withdrew it. She submitted that she had incurred unnecessary expenses in preparing affidavit evidence to establish her case as to the date of separation. The father argued that the affidavits the mother claimed arose specifically for the divorce proceedings contained common material to that also relied upon in the substantive proceedings and there was a chance of ‘double dipping’ if costs were allowed for all of the preparation of those affidavits.
Although I accept the father did not give the mother any notice of his intention to withdraw the application for divorce until the first day of the hearing I am not persuaded this case warrants a departure from the ordinary position of each party bearing their own costs and accordingly I would dismiss the mother’s application.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Associate:

Date: 17 January 2011

The Mother’s proposed minute of Order: Exhibit M10;
The ICL’s proposed minute of Order: Exhibit ICL 13.

[26] Other exhibits included lists of documents, the father’s minute of proposed orders as at 3 August 2010 and a bundle of documents referred to the in the Affidavit of the mother filed 9 June 2010.