ALBERS & HAYMANS

[2018] FCCA 3672

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALBERS & HAYMANS [2018] FCCA 3672

Catchwords:
FAMILY LAW – Parenting – interim orders – time with the father – alleged alcohol intake issues – risk issues – injunctive relief – overseas trip – costs.

Legislation: 

Family Law Act 1975 ss.60B, 60CA, 60CC, 61DA, 68B

Cases cited:

Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Redmond & Redmond [2014] FamCAFC 155

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

M & K[2007] FMCAfam 26

Stott & Holgar & Anor [2017] FamCAFC 152

R & R: Children’s Wishes (2000) FLC 93-000

Salah & Salah [2016] FamCAFC 100

Harridge & Harridge [2010] FamCA 445

Theophane & Hunt [2014] FamCA 1038

Sieling & Sieling (1979) FLC 90-627

L & T (1999) FLC 92-875

Applicant: MS ALBERS

Respondent: MR HAYMANS

File Number: SYC 1204 of 2018

Judgment of: Judge Kemp

Hearing date: 4 December 2018

Date of Last Submission: 4 December 2018

Delivered at: Sydney

Delivered on: 14 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Othen

Solicitors for the Applicant: First Choice Family Lawyers

Counsel for the Respondent: Mr Watkins

Solicitors for the Respondent: GA Lawyers

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

1. Orders 3 and 4 of the orders made on 30 April 2018 be discharged.

2. [X] born 2006 and [Y] born 2009, together described as “the children”, spend time with the father as follows:

   (a)During the children’s school term:

   (i)Each alternate weekend from after school (or 3.00pm) on Friday to before school on Monday; and

   (ii)Each other week from after school (or 3.00pm) on Wednesday to before school on Thursday; and

   (iii)Such other times as agreed between the parties in writing.

3. There be no order, in respect of school holidays in 2019 to the effect that order 2 above applies during those time periods.

4. In the event that the children are not already spending time with the father on the following days, the mother’s time with the children shall be suspended and the father shall spend time with the children as follows:

   (a)By consent, from 11.00am Christmas Eve until 11.00am Christmas Day in 2018.

   (b)From 3.00pm Good Friday until 3.00pm Easter Sunday in 2019.

5. By consent, each party notify the other within 24 hours of any changes to their address, landline or mobile telephone number or email address.

6. By consent, for the purpose of changeover the father shall collect the children from the mother’s residence at the commencement of his time, and the father shall deliver the children to the mother’s residence at the conclusion of his time.

7. By consent, the parties shall have telephone, Skype and/or Facetime communication with the children at least once a day before 7.00pm when the children are not in their care.

8. By consent, neither party will unreasonably prevent the children from telephoning the other parent and each parent will facilitate, at all times, the children’s communication with the other parent.

9. By consent, each parent may receive from the children’s school copies of all school reports, notices and photographs and each parent may telephone the children’s school to discuss progress with staff and access information about the children.

10. By consent, each parent be at liberty to receive information about the children from their treating medical practitioners.

11. By consent, the parties agree that they will ensure that the children attend all extra-curricular activities inclusive of any sports or academic events which the children may be enrolled in.

12. By consent, (save as to the identity to the expert), pursuant to Rule 15.09 of the Federal Circuit Court Rules, Dr A, be appointed the Single Expert Witness to investigate and report on the following:

    (a)Whether the children have been or is at risk of being exposed or subjected to any physical or psychological harm or family violence;

    (b)Any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

    (c)The nature of the relationship between the children and with each of their parents and any other relevant person;

    (d)The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents;

    (e)The capacity of each parent to provide for the needs of the children, including emotional and intellectual needs;

    (f)The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents;

    (g)The effect on the children if spending equal time, or substantial and significant time, with each party having regard to the parents current and future capacity to:

    (i)implement such an arrangement; and

    (ii)communicate with each other and resolve difficulties that may arise.

    (h)The mental state of both parents in so far as it relates to parenting issues and treatment options if required;

    (i)Any alcohol or substance abuse of either party;

    (j)The current emotional and mental well-being of the children;

    (k)Any developmental and social issues that the children may suffer including and recommendations as to how they may be addressed; and

    (l)Any other matter the single Expert considers relevant.

13. By consent, each party pay one half of the Single Expert’s costs.

14. By consent, the parties have leave to forward to the Single Expert the Family Consultant Memorandum, all pleadings and affidavit material.

15. By consent, the parties shall facilitate the preparation of the Report including attending on and arranging for the children to attend up on the Single Expert.

16. By consent, each party notify the other within 24 hours of any changes to their address, landline or mobile telephone number or email address.

17. The parties provide a copy of these orders to any out of school care or school which the children from time-to-time attend and each party is to:

    (a)List the other parent as well as themselves as a primary emergency contact in the event of an emergency involving the children anytime a situation arises requiring an emergency contact together with one alternative contact in the event that neither parent is able to be reached on such occasion;

    (b)Authorise such out of school care or school to communicate with each party on matters relating to the children's welfare and education, including school events;

    (c)Authorise such out of school care or school to provide notices, newsletters and reports directly to each party; and

    (d)Authorise such out of school care or school to contact each party in the event of an emergency.

18. By consent, in the event that the children suffer any injury, illness or require any medical attention while in the care of a party, that party shall notify the other as soon as practicable, but no later than one (1) hour, of said injury, illness or medical treatment.

19. By consent, at changeovers each party is to provide to the other any medication prescribed for the children whilst the children are in that party’s care together with any information or directions provided by the children's treatment providers or health professionals as to how that medication is to be taken by or administered to the children and each party is to ensure that the children takes or that they administer to the children, any prescribed medication in accordance with such directions while the children are in their respective care.

20. The father be and is hereby restrained from consuming any alcohol 12 hours prior to and whilst the children are in his care.

21. The father do all acts and things to undertake, at his own expense, the following one (1) test as requested of him on a random basis and on 3 days’ notice in writing from the mother's solicitors that he do so:

    (a)A Carbohydrate Deficient Transferrin ("CDT") test to detect excessive alcohol use for this purpose;

    (b)The CDT test is to be analysed using High-Performance Liquid Chromatography ("HPLC") analysis method; and

    the father shall provide copies of the CDT test results to the mother's legal representation.

22. By consent, the parties are hereby restrained from the following:

    (a)Discussing these proceedings with all or individually with the children or in their presence or hearing, unless required by a Court order and showing any of the children documents relating to these proceedings, including reports and affidavits, and from discussing the contents of any such documentation with them;

    (b)Passing messages to the other parent through the children;

    (c)Physically disciplining the children; and

    (d)Making any critical, disrespectful, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to any or all of the children, or in the presence or hearing of any or all of the children, or allowing any third party to do so and such order is to include verbal, written or electronic means including email, text message, Facebook and other forms of social media.

23. The matter be adjourned to 4 April 2019 at 9.30am for mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1204 of 2018

MS ALBERS

Applicant

And

MR HAYMANS

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed 27 February 2018 and as updated by a minute of proposed order, the mother seeks certain interim parenting orders in respect of the children of the relationship, [X] born 2006 currently aged 12 years and [Y] born 2009 currently aged 9 years (together described as “the children”) as follows:

   1) That the father enrol and complete approved courses “Parenting After Separation” and an Alcohol Awareness Program.

   2) That upon completion of the courses at Order 1 above, the father shall provide appropriate certificates of completion to the mother’s legal representative.

   3) That each party notify the other within 24 hours of any changes to their address, landline or mobile telephone number or email address.

   4) That the parties provide a copy of these orders to any out of school care or school which the children from time-to-time attend and each party is to:

   (a) List the other parent as well as themselves as a primary emergency contact in the event of an emergency involving the children anytime a situation arises requiring an emergency contact together with one alternative contact in the event that neither parent is able to be reached on such occasion;

   (b) Authorise such out of school care or school to communicate with each party on matters relating to the children's welfare and education, including school events;

   (c) Authorise such out of school care or school to provide notices, newsletters and reports directly to each party; and

   (d) Authorise such out of school care or school to contact each party in the event of an emergency.

   5) In the event that the children suffer any injury, illness or require any medical attention while in the care of a party, that party shall notify the other as soon as practicable, but no later than one (1) hour, of said injury, illness or medical treatment.

   6) That at changeovers each party is to provide to the other any medication prescribed for the children whilst the children are in that party's care together with any information or directions provided by the children's treatment providers or health professionals as to how that medication is to be taken by or administered to the children, and each party is to ensure that the children takes, or that they administer to the children, any prescribed medication in accordance with such directions while the children are in their respective care.

   7) That the father do all acts and things necessary to undertake at his own expense once every three months within 3 days of a request in writing from the mother's solicitors that he do so:-

   i) Carbohydrate Deficient Transferrin ("CDT test") to detect excessive alcohol use for this purpose;

   ii) The CDT test is to be analysed using High-Performance Liquid Chromatography ("HPLC") analysis method; and

   8) The father shall provide copies of the CDT test results to the mother's legal representation.

   9) That the father be and is hereby restrained from consuming any alcohol 12 hours prior to and whilst the children are in his care.

   10) That the parties are hereby restrained from the following:

   (a) Discussing these proceedings with all or individually with the children or in their presence or hearing, unless required by a Court Order and showing any of the children documents relating to these proceedings, including reports and affidavits, and from discussing the contents of any such documentation with them.

   (b) Passing messages to the other parent through the children.

   (c) Physically disciplining the children.

   (d) Making any critical, disrespectful, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to any or all of the children, or in the presence or hearing of any or all of the children, or allowing any third party to do so and such order is to include verbal, written or electronic means including email, text message, Facebook and other forms of social media.

   11) That the father pay the mother's costs of and incidental to this application. 

   12) That Dr B be appointed as single joint expert in the proceedings.

2. The Respondent father in his Response filed 24 April 2018 and as updated by a minute of proposed order, seeks his own interim parenting orders as follows:

   1) That Orders 3 and 4 of the Orders made 30 April 2018 be discharged.

   2) That the children spend time with the father as follows:

   (a) During the children’s school Term:

   (i) Each alternate week from after school on Friday to before school on Monday;

   (ii) Every other week from Tuesday after school to before school on Thursday; and

   (iii) Such other times as agreed between the parties.

   (b) During the children’s school holidays:

   (i) For the first half of the Term 1, 2 and 3 school holidays commencing on the day after the last day of the school term and concluding at 7.00pm on the middle Saturday of the holidays;

   (ii) For the first half of the Term 4 school holidays commencing on the day after the last day of the school term and concluding at 7.00pm on the middle Saturday of the holidays in each odd numbered year;

   (iii) For the second half of the Term 4 school holidays commencing at 7.00pm on the middle Saturday of the holidays and concluding on the last Sunday before the commencement of Term 1 of the new school year in each even numbered year; and

   (iv) Such other times as agreed between the parties.

   3) That order 2.1 be suspended during the school holidays.

   4) In the event that the children are not already spending time with the father on the following days, the mother’s time with the children shall be suspended and the father shall spend time with the children as follows:

   (a) From 3.00pm Christmas Eve until 3.00pm Christmas Day in each odd numbered year;

   (b) From 3.00pm Christmas Day until 3.00pm Boxing Day in each even numbered year;

   (c) From 3.00pm Easter Sunday until 3.00pm Easter Monday in each even numbered year; and

   (d) From 3.00pm Good Friday until 3.00pm Easter Sunday in each odd numbered year.

   5) In the event that the children are not already spending time with the mother on the following days, the father’s time with the children shall be suspended and the mother shall spend time with the children as follows:

   (a) From 3.00pm Christmas Eve until 3.00pm Christmas Day in each even numbered year;

   (b) From 3.00pm Christmas Day until 3.00pm Boxing Day in each odd numbered year;

   (c) From 3.00pm Easter Sunday until 3.00pm Easter Monday in each odd numbered year; and

   (d) From 3.00pm Good Friday until 3.00pm Easter Sunday in each even numbered year.

   6) That for the purpose of change over, the father shall collect the children from the mother’s residence at the commencement of his time and the father shall deliver the children to the mother’s residence at the conclusion of his time.

   7) That the parties shall have telephone, Skype and/or Facetime communication with the children at least once a day before 7.00pm when the children are not in their care.

   8) That neither party will unreasonably prevent the children from telephoning the other parent and each parent will facilitate at all times the children’s communication with the other parent.

   9) That each parent may receive from the children’s school copies of all school reports, notices and photographs and each parent may telephone the children’s school to discuss progress with staff and access information about the children.

   10) That each parent be at liberty to receive information about the children from their treating medical practitioners.

   11) That the parties agree that they will ensure that the children attend all extra-curricular activities inclusive of any sports or academic events which the children may be enrolled.

   12) That in the event that either party wishes to travel interstate or overseas with the children the following will occur:

   (a) The parent wishing to travel will provide to the other parent three weeks’ written notice of any proposed travel;

   (b) Any time that a parent misses out on time with the children while they are travelling, this time will be made up on a convenient date to both parents. It being noted that the parent that has missed out on the time will provide to the other parent either prior to the holiday or shortly after the holiday a schedule of proposed make up dates and the other parent will not reasonable deny such a request.

   (c) The parent wishing to travel will provide an itemised itinerary of the proposed travel, such itinerary to include all necessary contact details as well as a copy of the air flight details;

   (d) The other parent will not deny any reasonable travel;

   (e) That the children’s Passports will remain with the mother and will be provided to the father two weeks prior to the children travelling overseas with the father; and

   (f) That the parties undertake to keep the children’s Passports current at all times and to sign any such document to renew the children’s Passports when required.

   13) That the children shall be permitted to travel to New Zealand with the father for a period of five days to visit the paternal grandparents.

   14) That pursuant to Rule 15.09 of the Federal Circuit Court Rules Dr A, be appointed the Single Expert Witness to investigate and report on the following:

   (a) Whether the children have been or is at risk of being exposed or subjected to any physical or psychological harm or family violence;

   (b) Any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

   (c) The nature of the relationship between the children and with each of their parents and any other relevant person;

   (d) The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents;

   (e) The capacity of each parent to provide for the needs of the children, including emotional and intellectual needs;

   (f) The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents;

   (g) The effect on the children if spending equal time, or substantial and significant time, with each party having regard to the parents current and future capacity to:

   1. implement such an arrangement; and

   2. communicate with each other and resolve difficulties that may arise.

   (h) The mental state of both parents in so far as it relates to parenting issues and treatment options if required;

   (i) Any alcohol or substance abuse of either party;

   (j) The current emotional and mental well-being of the children;

   (k) Any developmental and social issues that the children may suffer including and recommendations as to how they may be addressed; and

   (l) Any other matter the Court Expert considers relevant.

   15) That each party pay one half of the Single Expert’s costs.

   16) That the parties have leave to forward to the Single Expert the Family Consultant Memorandum, all pleadings and affidavit material.

   17) That the parties shall facilitate the preparation of the Report including attending on and arranging for the Children to attend up on the Single Expert.

1. Mr Othen of Counsel appeared for the mother and Mr Watkins of Counsel appeared for the father. 

2. Mr Watkins requested leave to make submissions relating to an interim property order which was to the following effect:

   That the mother shall make an interim payment to the father in the sum of $58,000.00.

3. Mr Othen opposed the leave sought by Mr Watkins on the basis that when the matter was listed for interim determination, it was limited to only parenting matters as set out in the order made on 20 August 2018 and the father’s affidavit material relevant to not only the parenting matter but the property issue had only been filed and served on 29 November 2018 and that his client had not had an opportunity to properly address the property aspect and had filed no material relating to that matter.  In the circumstances, the Court was of the view that leave would not be granted.

4. As Mr Othen submitted, the parenting matters before the Court can, to an extent, be circumscribed by the parties’ agreement.  In those circumstances, the father indicated his consent to the mother’s proposed non-time orders 3, 4(a) to (d) (provided that the parties were not required to provide a copy of the orders to any out of school care or school care, which the children attend from time to time), 5, 6, 9, 10(a) to (d).  Similarly, the mother indicated her consent to the father’s proposed orders 6, 7, 8, 9, 10, 11, 14(1) to (12) (save as to the identity of the expert), 15, 16 and 17.  The mother noted that the father completed a parenting after separation course (see paragraph 29(ii) below).  She did not press her proposed order for the father to complete an Alcohol Awareness Programme. 

5. The orders that the parties have agreed to may be made by consent. Under s.60CC(5) of the Family Law Act 1975 (“the Act”), the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.

6. While the mother, initially, sought that Dr B be appointed as the single joint expert in the proceedings, Mr Othen conceded that the parties had no currently available date for Dr B.  In those circumstances, the election came down to a choice between Dr A and Dr C.  Dr A was available on both 8 and 15 January 2019 and Mr Othen conceded, had other dates available.  Dr C, however, was not available until dates in April 2019.  The parties, substantially, agreed that both Dr C and Dr A had the necessary qualifications to provide a single joint expert report in relation to the matters in dispute in these proceedings.  Of particular significance is the submission made by Mr Watkins to the effect that [X] reported to Ms D an emotional burden that she appeared to be struggling with, which potentially involved the option for her to have some therapeutical support.  See paragraph 13(17) below.  That issue weighs in favour of an earlier interview and potential report date.  The mother agreed with the father’s proposed machinery orders for the implementation of that report.  Accordingly, the Court is of the view that Dr A should be selected and orders will be made to effect a single joint expert report from him.

7. Mr Othen tendered the father’s conviction history in [country omitted] in respect of a drink driving charge matter which occurred in 1995; that is, some 23 years ago.  Mr Othen conceded that there was no record of the father having any such issues recorded in NSW. 

8. The mother alleged that she had been the responsible driver on many occasions during the parties’ relationship which would have minimised the potential for any detection of the father if he was drinking to excess at such social occasions.  The father alleged that he was the responsible driver on many occasions during the parties’ relationship.  This was clearly a disputed fact that could not be determined on an interim hearing. 

9. When the matter first came before the Court, on the return of the mother’s Initiating Application on 30 April 2018, the Court made orders and notations which included orders about which the parties had reached agreement.  Those orders and notations were to the following effect:

   1) Omitted

   2) By consent, orders and notations as referred to in paragraph 12 below.

   3) Omitted

   4) Omitted

   5) Pursuant to s.11F of the Family Law Act 1975, the parties and the children attend a Child Inclusive Conference with a Family Consultant nominated by the Child Dispute Section on Level 2 in this Registry on 4 July 2018 at 9.00am and pursuant to section 11C of the Act, such conference be reportable. The parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person, the consultant must report the failure to the Court.

   6) The Child Inclusive Conference Memorandum may be released to any mediator selected by the parties, for the purpose of any mediation.

   7) The matter be adjourned to 20 August 2018 at 9.30am for mention.

10. The following consent orders and notations were made:

    1) That the parties have equal shared parental responsibility for the children of the marriage,

    2) The children shall live with the mother.

    3) That the children shall spend time with the father as follows:

    I) During the children’s school term:

    (i) Each Wednesday from 4.00pm to 7.00pm;

    (ii) In week 1, Saturday from 9:30am to 6.00pm, and each alternate Saturday thereafter;

    (iii) In week 2, Sunday from 9:30am to 6.00pm, and each alternate Sunday thereafter;

    4) That the father undergo a full liver function test, which includes the Gamma-glutamyl transferase test. A copy of the test results is to be provided to the mother’s solicitor within 48 hours of the fatherreceiving the test results. If the test does not show that the father has liver damage from long term alcohol abuse then the father’s time with the children shall be as follows:

    i) Each Wednesday from 4.00pm to 7.00pm;

    ii) Each alternate weekend from 9:30am Saturday to 6.00pm Sunday;

    iii) Four months after the results being submitted to the mother’s solicitor, the father’s time with the children shall increase to:

    (i) Each Wednesday from 4.00pm to 7.00pm;

    (ii) Each alternate weekend from 9:30am Saturday to before school Monday.

    5) In the event that New Year’s Day does not fall within the periods that the children shall be spending time with the father pursuant to these orders, the children shall spend time with the father on New Year’s Day at such times agreed between the parties or failing agreement, between 9.00am to 12.00pm in even numbered years and between 4.00pm and 8.00pm in odd numbered years.

    6) That in the event that the children’s birthdays fall on a weekday on which the father is not already spending time with the children pursuant to these orders, the children shall spend time with the father on the children’s birthdays at such times agreed between the parties or, failing agreement, from the conclusion of school until 6pm.

    7) That in the event that the children’s birthdays fall on a weekend on which the father is not already spending time with the children pursuant to these orders, the children shall spend time with the father on the children’s birthdays at such times agreed between the parties, or failing agreement, between 9:30am to 1.00pm.

    8) In the event that Father’s Day does not fall within the periods that the children shall be spending time with the father, pursuant to these orders, the children shall spend time with the father on Father’s Day at such times agreed between the parties or failing agreement, between 9.30am to 6.00pm.

    9) In the event that Mother’s Day does not fall within the periods that the Children shall be spending time with the mother, pursuant to these orders, the children shall spend time with the mother on Mother’s Day at such times agreed between the parties or failing agreement, between 9.30am to 6.00pm.

    10) That the parties are restrained from allowing [X] to be at the residence of Ms E without the supervision of either of the parties.

    11) That within 14 days, the wife pay to the husband the sum of $50,000.00 by way of interim partial property division.

    That the parties do all acts and things necessary to attend a private mediation within 3 months of the date of these orders.

    13) That within 14 days the mother’s solicitors provide to the father’s solicitors a list of 3 mediators. That within a further 7 days the father’s solicitors nominates one mediator from the mother’s solicitors list of mediators.

    14) That the costs of the mediation be borne equally by the parties.

    15) Omitted

    16) Notation that the parties’ Interim Parenting Applications and Responses remain on foot.

11. On 17 July 2018, Ms D prepared a Child Inclusive Conference Memorandum following the parties and the children attending at a Child Inclusive Conference.  That Memorandum has been made Exhibit “Court 1”.  That Memorandum sets out, inter alia, the following matters:

    RISK FACTORS

    1) Family violence

    i) The mother claimed that, during the relationship, the father physically pushed her on one or two occasions and that he hit her on the arm on one other occasion. The father denies this.

    ii) Both parents said that, throughout the marriage, they argued and yelled at each other frequently, and that this often occurred in the presence of the children. Both parents said that police attended the family home on 2 such occasions, however, no action was taken.

    2) Child protection

    i) The mother claimed that the children are at risk of negligence while in the care of the father due to his alcohol consumption. She claimed that the father has, at times, used excessive force to pick [Y] up from his bed, and that the father generally has little patience with [Y].

    ii) The father claimed that he is aware that he handled [Y] too roughly on one occasion, which he claimed was isolated and accidental.

    3) Substance misuse

    i) The mother claimed that the father consumes excessive amounts of alcohol on a daily basis and that this compromises his parenting capacity. The mother claimed that, after consuming alcohol, the father is unable to meet the children’s emotional needs. She claimed that the father struggles to regulate his emotions while under the influence of alcohol, and that he has in the past left the family home unlocked and the stove turned on due to alcohol misuse.

    ii) The father claimed that he may possibly have left the family home unlocked on only one or two occasions. He claimed that the stove in the family home was left burning on only one occasion and that either he or the mother may have been responsible for this. The father claimed that the mother over-exaggerates his alcohol use and that she has an unrealistic idea of what is a normal amount of alcohol use. He strongly denied that the children are at risk in his care and claimed that he abstains from alcohol completely when the children are with him. The father said that he is willing to undergo drug testing to reassure the mother of this.

    4) Parental mental health

    i) Nil reported.

    5) Overseas abduction

    i) Nil reported.

    COPARENTING RELATIONSHIP

    6) Both parents said that, currently, they rarely communicate at all.

    7) The father said that he has completed a parenting after separation course, which he said he found useful as far as understanding how parental separation and conflict may be experienced by children. He said he has tried to implement communication strategies with the mother but that he does not believe she is yet ready to work toward a co-parenting relationship. The father said that, although he is seeking an equal time arrangement, he is open to negotiating around this and that he would consider an arrangement whereby the children live with him five nights per fortnight.

    8) The mother said that she still struggles to cope with the aftermath of the separation. She appeared to respond positively when informed of the father’s willingness to negotiate a parenting arrangement.

    THE CHILDREN

    9) Both parents said that the children are happy, healthy and making good progress at school, socially and from a developmental perspective.

    10) Both parents said, however, that they believe the children are experiencing some emotional hardship as a result of the parental separation and exposure to parental conflict.

    11) The mother said that she and the children live close by the children’s maternal grandparents whom she said have always played a significant role in their lives.

    12) The father said that his extended family live in New Zealand and that he would like to be able to take the children to visit them so they have the opportunity to get to know the paternal side of their family.

    13) Currently, the children live with the mother and spend time with the father each alternate Saturday night and each Wednesday evening (that is, 2 nights a fortnight).

    14) [X]:

    i) appeared to be a very mature young person and very articulate for her age and stage of development. [X] appeared to be carrying a considerable emotional burden in relation to the parental separation. [X] said that she was expecting the parents to separate because she heard them fighting and yelling at each other most nights over a period of about 2 years. She said that her parents’ arguments often kept her and [Y] awake and that, even now, she does not believe her sleep pattern has returned to normal. [X] said that, since her parents separated, she has developed a closer relationship with [Y], but that she worries about him in relation to the parental separation. She said that [Y] is “too young to understand what’s happened” and said that she worries about how he will cope when he realises that their parents will never reconcile;

    ii) expressed concern about her mother and what she perceives as her mother’s ongoing distress regarding the parental separation. [X] said that she sometimes feels “annoyed” when she spends time with the father because it means leaving the mother alone. She said that she feels torn about this because, while she does not like leaving her mother alone, she also worries about not being with [Y]. [X] also expressed concern regarding her maternal grandparents and said that she believes they, too, are “sad” about the breakdown of her parents’ relationship. [X] said that she believes she is perceived as “mature” by the adults around her and, therefore, more able than [Y] to cope with the difficulties of family life;

    iii) spoke about her recent transition to high school and how this has changed the dynamic of her peer group. [X] described her first year of high school as “not great” and said that she misses her old friends whom have now, apparently, joined new peer groups;

    iv) agreed with the Family Consultant that, while she is mindful of the emotional hardships of those around her, she has few sources of emotional support for herself. The Family Consultant discussed with [X] her options for accessing such support, such as headspace or a school counsellor. [X] said that she would prefer not to use such services at this time;

    v) said that, while she would prefer to spend the majority of her time with the mother, she would like “some more” nights with the father. She suggested an arrangement whereby she and [Y] spend two nights per week with their father, from lunch time on Sunday until before school on Tuesday. [X] reasoned that it would be preferable to have the opportunity to spend some weekend and some week day time with each parent;

    vi) said that she feels safe in both the maternal and paternal homes and that she enjoys good relationships with both parents; and

    vii) had no message for the Judge.

    15) [Y]:

    i) presented as a quirky child with a cheeky sense of humour;

    ii) said that he knows he is in the Court and that this is because his parents “got divorced”. He said that he recalls the end of his parents’ relationship, and said that, at that time, the father slept in [X]’s bed while [X] slept in the mother’s room. [Y] said that he did not think this was fair and that he should have also had an opportunity to sleep in the mother’s room. [X] also recalled hearing his parents “yelling a lot” and being unable to sleep because of this;

    iii) described the mother as a “fun Mum” who “jokes around” and the father as “fun active and strong”. He said that he feels safe in both the maternal and paternal home, but that on 1 occasion his father picked him up quite roughly, hurting his arms. He said “it was because I wouldn’t get out of bed”;

    iv) said that he enjoys school, especially playing with his friends, but that his most important friends have been moved to different classes this year. [Y] appeared to feel sad about this, in particular, about no longer sharing a class with his friend, “[L]”;

    v) said that he misses the father “sometimes” and that he wants “a little bit more time with Dad”;

    vi) said that, if he were able to change anything, he would like to “go back in time to change this so it didn’t happen [meaning the parental separation]”; and

    vii) had a message for the Judge: “tell him that Dad doesn’t get much time”.

    FUTURE DIRECTIONS

    16) It is positive to note that the parents are to shortly attend mediation and that there may be some possibility of negotiating a parenting arrangement without further judicial assistance.

    17) It would appear that, while the children are clearly mourning the loss of the parents’ relationship, they are coping reasonably well at the present time. Of concern, however, is the emotional burden [X] appears to be struggling with. It is suggested that the parents take note of this and reassure [X] that they are adequately managing the parenting dispute. It may be useful to offer [X] the option of some form of therapeutic support.

    18) The mother may benefit from grief and loss counselling.

    19) The risk concerns raised by the mother regarding the father’s alcohol consumption are noted. Without further assessment, however, it is difficult to make much comment about this.

    20) It is noted that there is a property settlement that may be driving this matter.

Principles to be applied and procedure to be followed

1. The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:

   (a)     identifying the competing proposals of the parties;

   (b)     identifying the issues in dispute;

   (c) identifying any agreed or uncontested relevant facts;

   (d)     considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)     deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)     if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)     if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (h)     if equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (i)     if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s.60CC;

   (j)     if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and

   (k)     even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

1. To determine what time orders should be made under s.65DAA(1) & (2) of the Act, the Court must look to determine whether the actual spending of “equal time” or “substantial and significant time” is in the best interests of the child and, as a separate and distinct matter, whether the actual spending of such time is reasonably practicable. The Court must affirmatively answer both of these questions for it to have the power to make a time order of that nature. See the High Court of Australia’s decision in MRR v GR [2010] HCA 4. If it cannot do so, the Court must consider making such “other” time order as is, otherwise, in the best interests of the child.

2. The best interests of the children remain the paramount consideration; s.60CA of the Act.

3. The best interests of the children are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:

   (1) The “objects”…are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The “principles” … are … :

   (a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and

   (b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) Parents should agree about the future parenting of their children; and

   (e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).

   (3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)  to maintain a connection with that culture; and

   (b)  to have the support, opportunity and encouragement necessary:

   (i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)  to develop a positive appreciation of that culture.

   (4)   In relation to proceedings commenced after 7 June 2012, an additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

   Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4).  In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( type="1">

   The mother relied on:

   (a)Her Affidavit sworn and filed on 20 November 2018;

   (b)Her Notice of Risk filed 27 February 2017;

   (c)Affidavit of Mr F sworn and filed on 21 November 2018; and

   (d)Affidavit of Ms G sworn and filed on 28 November 2018.

   The father relied on:

   (a)His Affidavit affirmed and filed on 29 November 2018; and

   (b)His Notice of Risk filed on 24 April 2018.

   The following documents were placed into evidence as follows:

Exhibit No	Document	Tendered by
A	Letter dated 18 July 2018 from the [country omitted] relating to the father’s conviction.	Father
Court 1	Child Inclusive Conference Memorandum of Ms D dated 17 July 2018.	Court

The Limitations of an Interim Hearing

1. The Court, as stated, hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief.

2. The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read, documents tendered and the submissions of the parties’ legal representatives.  There is no provision, at the interim hearing stage, for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.

3. The combined practical effect of sections 60B, 61DA and 60CC of the Act is that, on an interim basis, the Court may have little practical alternative other than weighing the probabilities of the parties’ respective claims and balancing the questions of risk.

4. In this regard, the Full Court of the Family Court of Australia in Redmond & Redmond [2014] FamCAFC 155 acknowledged the limitations of interim hearings when determining questions of disputed facts. In response to the father’s submission in that case that the trial judge should have ignored or disregarded any allegations or matters of disputed fact that were adverse to the father on an interim hearing, the Full Court noted that:

   This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.

5. In relation to this “weighing up” or balancing of risk, the Full Court of the Family Court of Australia in SS & AH [2010] FamCAFC 13 (Boland and Thackray JJ), stated that:

   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.  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. 

6. Further, in the decision of Banks & Banks [2015] FamCAFC 36, the Full Court of the Family Court of Australia stated that:

   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.   
   …

   Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees.  It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.  Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s.60CC considerations.  Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s.60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

Proposals

1. The parties seek the various competing orders, as set out above.

Issues

1. The essential issues in dispute the subject of determination are:

   a)Interim parenting arrangements;

   b)The mother’s application for the father’s CDT testing and restraints;

   c)Which of Dr A or Dr C ought to be appointed to prepare a report as to the parenting issues, including alleged abuse of alcohol by the father; and

   d)Whether the father should be permitted to take the child to [country omitted], without the mother’s approval.

Factual Matters

1. There appear to be a number of relevant uncontested and disputed facts, as follows:

   a)The mother was born on 1964 and is, currently, 54 years of age.

   b)The father was born on 1969 and is, currently, 49 years of age.

   c)The parties commenced a relationship in mid-2003 and were married on 2005, when they commenced cohabitation.

   d)On 2005, the mother said that she noticed that the father withdrew from sexual intimacy and drank 2-4 glasses of wine each night.

   e)From 2005 to 2018, the mother said that she regularly raised concerns with the father about his drinking.  The mother said that the father dismissed her concerns. The mother said that she assumed the position of designated driver at all functions attended to by the parties. The mother said that she was embarrassed by the father’s drinking at social engagements and was advised frequently by friends and family that the father was “drunk”.  The father disputes the mother’s allegations.  The father maintained that there were isolated events where he may have overconsumed alcohol being at engagements, weddings, christenings, birthdays and at events such as Christmas and  Easter.  The father also said that later in their relationship he performed the services of designated driver.

   f)On 6 May 2007, the mother said that the father was drunk at [X]’s christening.  She said, the father appeared unsteady on his feet, with slurred speech and his eyes were unfocussed.

   g)In early 2009, the mother said that the father frequently drank about 3 to 4 glasses of wine and 2 to 3 glasses of spirits on a nightly basis.

   h)On 2009, at [Y]’s christening, the mother said that the father was seen by her to be staggering, drinking and slurring words whilst holding [Y].  The mother said that her sister took [Y] from the father, whilst [Y] was slipping from his hands.

   i)In late 2009, the mother said that the father smacked [Y]’s head against a wall as he was carrying him after a day of drinking at the maternal grandfather’s name day celebration.

   j)In early 2011, the mother suffered heart palpitations and struggled to breathe, with a constriction to her chest and hyperventilation.  She had physical shaking which she perceived to be an anxiety attack.  The mother did not seek professional help at the time.

   k)On 2011, the mother said that the father appeared to stumble and was unsteady on his feet after consuming alcohol at a maternal family wedding.  The mother said she observed her brother in law to take [Y] from the father’s shoulders and to exchange words with the father.  The mother said she was embarrassed and took the family home from the wedding.  When confronted by the mother, the mother said that the father denied having a drinking problem.

   l)On 2013, the mother at [Y]’s 4th birthday, said that the father again appeared drunk and acted intoxicated.  The mother said she decided from that point on to not have social events and gatherings at her home given her embarrassment and shame arising out of the father’s drinking.

   m)   In mid-2013, the father and the mother argued again over the father’s drinking. The mother said the father had ceased drinking for 5 months. The mother said that the father became irritable and aggressive towards [Y] at this time and [Y] was hurt as a result.

   n)On 2014, the mother said that the father commenced to drink alcohol again.

   o)In mid-2014, the parties commenced marriage counselling. The mother said that the father refused to cease drinking and drank about 4 Ouzo and Cokes at home and pushed her into a kitchen wall. The Police were not called.

   p)In mid-2015, the mother said that the children noticed a TV actor behaving drunk and drinking and commented to her that it was "Dad".

   q)On 2015, the mother said that the father hurt the mother’s nephew, [A], after having drunk alcohol by squeezing him too hard. She said that the father drank 2 or 3 bottles of beer and a bottle of wine that he had brought to a birthday party for the nephew.  The mother said that both she and the nephew’s mother expressed concern that [A] was hurt. 

   r)On 25 December 2016, the mother said that the father drank alcohol at a Christmas party and again hurt her nephew, [A], by grabbing him too hard at that party.

   s)In 2017, the mother asserted that the father had again consumed too much alcohol at a birthday party and had hurt her nephew, [A], by squeezing him on his arms. 

   t)On 1 July 2017, the parties separated under one roof.  The mother said that the father refused to remove himself from the former matrimonial home at Property A NSW until Court orders were made for the children.  The children then commenced to share a bedroom with the mother.

   u)In around August 2017, the mother attended an appointment with Dr H of Suburb M Family Practice where she was advised that she had symptoms consistent with someone suffering from long term trauma.

   v)On 2017, the mother said that her next-door neighbour reported that she saw the father staggering drunk.

   w)On 2017, the mother called the father on behalf of the children and said she could hear the father slurring his words and sounding drunk. The mother called the Police due to an incident in the former matrimonial home.  The mother said she went to her sister’s home to stay with the children.

   x)On 23 November 2017, the father left the former matrimonial home.

   y)On 24 November 2017, the father forwarded emails to the mother advising her that he had relocated from the former matrimonial home.

   z)The mother’s occupation is [occupation omitted].

   aa)The father’s occupation is [occupation omitted].

   bb)The mother lives with the children at Property A.

   cc)The father lives at Suburb M.

   dd)On 20 January 2018, the father spent time with the children from 9.30am to 6.00pm.  The father said that the children asked him: “Dad, why don’t you want to spend more time with us?”

   ee)On 26 January 2018, the father spent time with the children from 9.30am to 12.30pm.  The father said that [X] said to him: “Mum said the Courts won’t let us sleepover at your place.”

   ff)On 27 January 2018, the father spent time with the children from 9.30am to 6.00pm.  The father said that [Y] said to him: “Mum was asking us why we wanted to spend time with Grandma and Grandpa when they visit.”

   gg)On 16 February 2018, the father spent time with the children from 3.00pm to 7.00pm.   The father said that [Y] said to him: “Mum said that you take drugs when we leave.”

   hh)On 27 February 2018, the mother commenced proceedings in this Court.

   ii)On 28 February 2018, the father completed the “Keeping Kids in Mind Parenting After Separation” Course.

   jj)On 15 April 2018, the father spent time with the children from 9.30am to 6.00pm.  The father said that [Y] said to him: “Dad, did you hurt me in the mornings when you tried to get me up and Mum had to stop you from hurting me… Mum says this is why we can’t sleep at yours… Mum won’t be there to protect us.”

   kk)On 30 April 2018, consent orders were made as set out in paragraph 12 above.

   ll)On 17 July 2018, the parties and the children attend a Child Inclusive Conference.

   mm)On 20 August 2018, the matter was listed for mention and a Conciliation Conference was ordered. Orders were also made listing the matter for an interim parenting hearing.

   nn)On 19 September 2018, the children reported to the mother that they had seen a box of wine at the father’s residence.

   oo)On 26 September 2018, the mother completed the post-separation parenting course “Keeping Kids in Mind”.

   pp)On 2018, the mother said that the paternal grandmother suffered from a stroke.  The father requested that the children accompany him to [country omitted] to see her.

   qq)On 15 October 2018, the mother's solicitors forwarded a letter to the father's solicitors advising them that the mother did not consent to the children so travelling to [country omitted].

Presumption of equal shared parental responsibility

1. Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.

2. The presumption, however, does not apply if the Court is making an interim order and considers that it would not be appropriate in the circumstances for the presumption to be applied when making that interim order.

3. Although Mr Othen submitted that it may not be necessary for the Court to apply the presumption on this occasion, he conceded that the parties had, previously, agreed to there being equal shared parental responsibility for the children and that an order to this effect had been made an order on 30 April 2018.  Accordingly, the Court finds that the presumption should apply.

Time to spend

1. The making of an order for equal shared parental responsibility is, however, not of itself determinative of the amount of time that a child is to spend with his/her parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA (1) of the Act.

2. If the presumption is applied, certain matters follow by virtue of s.65DAA of the Act and the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” or some other time with both his/her parents. Neither party, at this stage, is seeking equal time.

3. Substantial and significant time is defined in s.65DAA(3) of the Act as:

   1) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays; and

   2) the time the child spends with the parent allows the parent to be involved in:

   (iii) the child's daily routine; and

   (iv) occasions and events that are of particular significance to the child; and

   3) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

4. To determine what time orders should be made, the Court must look to the best interests of the children and whether the actual spending of such time is reasonably practicable.

Primary considerations

1. In order to determine the children’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:

   1) the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

1. In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b). See s.60CC(2A) of the Act.

2. The following terms “abuse” (see s.4 of the Act) and “family violence” (see s.4AB(1) of the Act) are defined in the Act as follows:

   abuse, in relation to a child, means:

   (a)     an assault, including a sexual assault, of the child; or

   (b)     a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)     serious neglect of the child.

   family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

3. Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:

   (a)     an assault; or

   (b)     a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d)     repeated derogatory taunts; or

   (e) intentionally damaging or destroying property; or

   (f)      intentionally causing death or injury to an animal; or

   (g)     unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)     unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

4. The Court notes the examples set out in s.4AB(2) of the Act provide a non-exhaustive list. The explanatory memorandum (at 17) referrable to the introduction of the relevant provision provided that: “Behaviour that fits within the general characterisation set out in the definition will be captured. …The definition encompasses patterns of family violence and single violent events”.

5. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. (see s.4AB(3) of the Act). The Act provides in s.4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:

   (a)     overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)     seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d)     cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

6. The Court cannot order that the parties and the children have a meaningful relationship. In M & K[2007] FMCAfam 26 [at para 44], Altobelli FM (as he then was) quoted from Professor Parkinson’s article “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179 as follows:

   “… courts cannot by order, create meaningful relationships  between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case”.

7. In Stott & Holgar & Anor [2017] FamCAFC 152, the Full Court of the Family Court of Australia (Thackray, Kent and Watts JJ) considered the application of the “unacceptable risk” test.

8. Mr Othen submits that this is not a case of unacceptable risk where the mother seeks to curtail the father’s time or seeks that it be supervised.  Mr Othen says that the mother does not seek to reduce the father’s time with the children but merely to keep the current orders in place pending a final hearing and pending the provision of the expert report, which the parties have agreed to obtain. 

9. Mr Othen submits that an increase in time to the father which would include week day overnight time would expose the children to the father’s drinking, given the father’s propensity to drink to excess during the relationship and the father’s lack of insight into his drinking issues.  The Court is of the view that this concern can be dealt with by way of an injunctive order with a random CDT test to provide an oversight, as discussed further below.  

10. The father says that the mother has sought to restrict his time with the children in terms of exaggerating her concerns as to his consumption of alcohol.  The father says that the mother has told the children that they cannot sleep over because he drinks to excess.  The father acknowledged some events (without specific description) where he says he consumed excessive alcohol in the past but asserts that the children were never put at risk. 

11. The father says that when the children are with him, he does not consume alcohol and intends to continue to do this.  The father says that he will not consume alcohol provided it is not at a “social function”.  This weighs in favour of an injunctive order restraining the father from consuming any alcohol 12 hours prior to and whilst the children are in his care.    There is no clear definition of what the father says is a “social function”, save for referring to his birthday and New Year’s Eve.  The mother’s concerns relate to these type of social functions, including at weddings, birthdays and christenings. 

12. The mother’s version of events was supported by affidavits from Mr F (the mother’s brother in law) and Ms G (the mother’s sister).  Mr F states that for approximately 12 years he has observed the father to consume excessive amounts of alcohol in his presence on almost every occasion.  He refers to a christening event in 2007, when he said he observed the father to get intoxicated at the reception.  He observed the father to slur his speech, be unable to walk straight and was incapable of assisting the mother with [X].  He refers to the father appearing drunk in a video taken at the time of the christening.  Similar observations were made at a Christmas function in 2008, at a 21^st birthday in 2008, at a wedding at Suburb N in 2011, at a Christmas lunch in December 2016 (when he said that his son, [Y] was hurt by the father grabbing him hard on the sides of his body), in 2017 when he alleged that the father had again hurt his son, [Y], by squeezing him hard on his arms.  Mr F asserted that the father’s drinking had become increasingly worse and that he had observed the father carry a bottle of his preferred alcohol usually wine, with him at the majority of family functions he had attended at.  Mr F stated that he rarely saw the father at a family gathering where he did not become intoxicated at some point during the evening.  Some weight is placed on Mr F’s evidence.

13. Similarly, Ms G who is married to Mr F confirmed Mr F’s recollection and the bruising to her son [A].  Ms G deposed to the father, upon consuming alcohol, to become cheerful and talkative and then as more alcohol was consumed opinionated and overbearing and then as more alcohol was consumed aggressive.  She said that this aggressive behaviour had been directed towards her son, [A], the parties’ son, [Y], and her sister, the mother.  Some weight is placed on Ms G’s evidence.

14. The mother’s evidence was directed to her observations of the father’s behaviour when, she said, he was drinking alcohol to excess.  The mother said that she confronted the father and that his response showed little insight.  The mother said that the father told her: “I am not drunk, I am intoxicated, there is a difference.”  The mother responded that there was no difference as he was observed to be staggering, slurring, with bloodshot unfocused eyes and unable to hold a conversation.  In another conversation with the mother, the mother said that he denied that he had a drinking problem and said that he would stop drinking for 6 months to prove it.  The mother conceded that the father did, indeed, cease drinking alcohol for a period of some 5 months.  The mother said that during this period he became more irritable and aggressive towards [Y].  The mother’s recital of chronological events involving the father’s drinking of alcohol to excess is referred to paragraph 29 above.  The mother says that many of these events led to an argument between the parents.  The mother also referred to [X] reporting that she had seen a box of wine at the father’s flat and that [X] had reported seeing the father drink wine.  This is supportive of an injunction in the terms sought by the mother.

15. The Court finds that:

    1)The primary consideration referred to in s.60CC(2)(a) of the Act is supportive of the position that as much time as possible with both parents is in the children’s best interests provided such time is safe and secure for them.The Court accepts that the children have a meaningful relationship with both parents.

    2)The primary consideration referred to in s.60CC(2)(b) of the Act is relevant on the facts of this case. The mother asserts that the father’s excessive use of alcohol exposes the children to potential abuse, neglect or family violence. The father disputes the mother’s assertions, in this regard.

Additional considerations

1. The Court refers to the decision of Banks & Banks [2015] FamCAFC 36 and in light of that decision will focus on the s.60CC factors that are plainly relevant to the determination that the parties ask the Court to make on this interim decision.

2. In this matter, the Court will focus on the following s.60CC factors.

(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;

1. In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:

   “There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”

2. Mr Othen submitted that little weight could be provided to the expression by [Y] of the statement to Ms D that the judge should be told that: “Dad doesn’t get much time”, in light of [Y]’s age.  Mr Othen stating that that could be simply the child’s view as to what the father had told him, as to the father’s position.  So far as [X] was concerned, she stated that she would prefer to spend the majority of her time with the mother but would like “some more” nights with the father.  Given [X]’s age, the Court gives this statement some weight.  In that regard, the Court also tempers the children’s views in the context of the parental dispute given that it accepts that the children were potentially aware of that dispute.  Indeed, the Court accepts that [X] is struggling in terms of the emotional burden that that dispute is having on her. 

(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);

1. The Court accepts that the children have meaningful relationships with both parents.

2. The mother concedes that the children have a good relationship with the father. 

3. The mother does not agree that the children have a close relationship with the father’s parents and his extended family in [country omitted] given what she said has been a much more limited involvement with them, being via Skype, telephone and an annual short visit. 

(c) 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 spend time with the child; and

(iii) to communicate with the child;

1. The mother says that since the commencement of proceedings, she and the father have steadily improved their co-parenting and communication.

(ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. Neither party addressed the Court on this factor.

(d)     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. Mr Othen submits that some weight should be given to the father’s position in consenting to earlier interim orders.  In this regard, those orders would reflect what the parties considered were in the children’s best interests and while not specifically excluded on a Rice & Asplund threshold given the interim nature of those orders, an investigation as to what had changed may be considered important.  Although such concession may have been as noted made to obtain spend time orders in circumstances where the Court had insufficient time to deal with applications in its busy duty lists. (See Salah & Salah [2016] FamCAFC 100). Mr Watkins specifically refers, in that regard, to the notation set out in paragraph 12 above.

2. Mr Othen submits that the current parenting arrangements are working and the children appear to be enjoying their time with the father and the mother.  Mr Othen says that, in those circumstances, the current time orders provide the children with a meaningful relationship with the father.  The Court is of the view that the father’s time should, however, be expanded but not to the extent sought by him so as to minimise any risk of neglect and harm as asserted by the mother.  The protective measures proposed by the Court also form a safe guard in terms of the father’s expansion of time. 

(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;

1. There do not appear to be any issues raised by the parties. 

(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;

1. The mother says that the father’s capacity to provide for the children’s needs is, negatively, impacted upon by his abuse of alcohol.  The father disputes that.  The objective evidence in terms of the father’s conviction of a drink driving offence in [country omitted] where he was fined and disqualified from driving relates to a conviction on 1995.  That is, some 23 years ago.  Relevantly, Mr Othen conceded that despite the issuance of subpoenas, there have been no other incidents involving alcohol and driving recorded in NSW of more recent origin.  Weight is attached to that.

2. The Court has had specific regard to the mother’s Notice of Risk.  In that regard, the mother said that in about mid-2013, the father ceased his consumption of alcohol for  a period of approximately 5 months and during this period, on approximately 3-4 occasions, if [Y] had been taking too long to prepare for school or not do as he was told, the father would grab him by the shoulders and shake him.  The mother said that the child experienced hurt and would scream out in pain.  The mother said that, in about mid-2014, when the parties were watching TV, she observed the father drink 4 glasses of Ouzo and Coke, to slur his speech and to sway and to be unsteady on his feet.  The mother said that the father became aggressive and volatile and pushed her against the kitchen wall.  The mother conceded the children were in bed at the time and did not see the incident.  The mother did not report the incident to the Police nor tell her family about it as she felt embarrassed.  As Mr Othen submitted and the Court accepts, it is not unusual in cases where family violence occurs (which the father disputes here) for there to be limited external reports. 

3. The mother refers to, regularly, approaching the father raising her concerns as to his consumption of alcohol to receive responses from him to the effect that he drinks because he likes it, that he grew up with alcohol and that his whole family drinks and that he did not think he drank too much. 

4. The mother refers to specific events involving her observations of the father’s over consumption of alcohol, namely, in 2007 at a christening; in 2009 following [Y]’s birth when she said the father failed to lock the house and to turn off the stove; in 2009, following [Y]’s christening at a celebration party at [location omitted]; in late 2009 at the mother’s parent’s home at a lunch; in 2011 when the parties and the children attended the mother’s cousin’s daughter’s wedding at the Suburb N; in 2013 at [Y]’s fourth birthday party; in 2015 at a birthday party for the mother’s nephew and her brother in law at their residence; on 25 December 2016 at the mother’s sister’s residence for a Christmas lunch and in 2017 on the telephone when the mother contacted him whilst he was in [country omitted] on a trip. 

5. The father raised no issues of risk in his Notice of Risk filed 24 April 2018.

6. The father has provided a test result in terms of his liver functioning.  The purpose of that test was to determine whether there were signs of long term alcohol abuse.  That test was clear in the sense that there was no evidence of liver damage from long term alcohol abuse as the gamma-glutamyl transferase test was normal.  The father says that he is prepared to not consume alcohol while the children are with him, unless at a “social function”.  The father, further, says he will not undertake CDT testing at the mother’s discretion as he believes she will use it to harass him requesting tests to be done in circumstances where she knows he has been at a social function.  Mr Watkins submits that the father ought not be forced to take further tests at the whim of the mother.  There is some force in that submission.  However, the Court is of the view in terms of Mr Othen’s submission that an injunctive order restraining use would be difficult to enforce unless there was also an order requiring a test as that would provide an oversight to any restraint.  The Court is of the view that that oversight could be imposed by one random test requested on 3 days written notice from the mother’s solicitors. 

(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.

1. There are no other matters relevant to the Court’s determination with respect to the children under this factor.

(h)    if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

1. These factors do not apply to these children.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. Mr Watkins submitted that the mother in seeking to obtain evidence as to the father’s consumption of alcohol from members of her family showed little insight.  Mr Othen, on the other hand, submitted that this was a matter of significant concern and that evidence in relation to the father’s consumption of alcohol was unlikely to be obtained from persons outside the extended family.

2. The father says that the mother has arranged a lot of activities for the children without informing him.  Nevertheless, he deposes to being involved with the children in [activities omitted] and going on other activities together.  The father also says that he assists the children with their homework.

3. The father also refers to conversations with the children where he says that the mother has raised her own concerns about him with them to such an extent that the children have repeated the matters set out at paragraph 29(cc), (dd), (ff) and (ii) above.  The father says that this would indicate that the mother has engaged the children in the parental dispute.  This is disputed by the mother. 

4. The mother is a qualified [occupation omitted] and deposes to assisting the children with their homework, essays, speeches and assignments.

(j)      any family violence involving the child or a member of the child's family;

1. The Court notes the mother’s assertions that the father has, at times, grabbed and shaken [Y], when she said [Y] was not responding to what the father wanted him to do. 

2. The mother refers to an event in 2017 when the father banged on her bedroom door and demanded the return of his computer.  The mother said the father pushed past her and shoved her aside.  The mother said that she felt shaken and contacted the NSW Police at Suburb O.  The Police attended and interviewed the children and the father and the mother but took no further action advising the mother that they would speak to the father about it.  The mother said that about an hour later, the father attempted to access her bedroom and slammed the door into her when she was standing behind it. The mother said that she left the home and went to her sister’s home and, on the way, again attended Suburb O Police station. 

3. The Court notes the mother’s assertion that the father had pushed her into the wall of the kitchen when the parties were arguing and when she said that the father was intoxicated and had misunderstood a comment that she had made.  Mr Watkins submitted that if the matters raised by the mother had been of genuine concern to her she would have left the parties’ relationship at a much earlier time or would have reported matters to external authorities, such as the Police.  Mr Othen, however, submitted and the Court accepts that often persons do not take such a stance given their desire to continue in a relationship and the perception of potential embarrassment arising from the making of such disclosures.  That is the very difficult issue facing the Court when parties make such allegations and the other party denies the allegation.  No findings of fact can be made on an interim hearing, given the paucity of evidence and the conflicted positions taken by the parties, in that regard. 

(k)    If a family violence order applies, or has applied, (be it final, interim, contested or consented to) 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. This factor does not apply to these children.

(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

1. The Court finds that, as this is an interim hearing, this factor must be assessed in this light.

(m)   any other fact or circumstance that the court thinks is relevant

1. There is no other matter for consideration under this factor.   

Reasonably practicability of ‘spending time’

1. The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the following matters set out in s.65DAA(5) of the Act:

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

1. The mother lives at Property A.  The father lives at Suburb M.  Neither party has raised geographic distance between them as an issue, impacting on their proposals.

(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

1. The father says that he has flexible work hours which enable him to pick the children up from school and after school care.  The mother disputes that the father’s working environment is as flexible as he says.  The mother, in turn, says that she works locally to the children which provides her with the flexibility to accommodate collecting them from school.

(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

1. The Court notes that the mother believes that the parties’ are improving in their co-parenting and communication.   Weight is attached to that concession.

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

1. The Court is of the view that the expansion in the father’s time as ordered is unlikely to have any negative impact on the children and is likely to assist them in building up their relationship with the father, given other orders provide for a protective regime to be implemented around his spend time arrangements.   

(e) such other matters as the Court considers relevant

1. The Court finds that there do not appear to be any other matters.

Conclusion

1. Finally, the Court must have regard to all the matters set out in s.60CC of the Act, to consider how, together, they should give effect to either or both of the primary considerations in determining the children’s best interests.

Time

1. The Court has considered, in particular, the mother’s historical role as primary care-giver and the need to ensure that her parenting is not, negatively, affected by concerns surrounding her view that the father has an alcohol problem which has the potential to also negatively impact upon the children.

2. The Court is of the view that the father’s time should expand during school term to be from after school on Friday to before school on Monday each alternate week with mid-week overnight time from after school on Wednesday to before school on Thursday.  That gives the father the opportunity to engage with the children’s schooling in the mid-week period; it provides for substantial and significant time and it provides the opportunity for the father to build up his meaningful relationship with the children. 

3. The father is to be afforded time with the children from 3.00pm Good Friday until 3.00pm Easter Sunday in 2019 . The Court is of the view that the time periods contemplated in paragraph 91 should continue during the school holiday periods until the Court can be assisted by the provision of an expert report.  This limitation on time provides a further protective environment for the children.  Similarly, the Court is of the view that there should be no orders for international travel given that issue, as discussed further below.    

Restraints & injunctions

1. Under s.68B of the Act, the Court may make such orders as it considers appropriate for the welfare of a child. Under s.68B(2) of the Act, a Court exercising jurisdiction, thereunder, may grant an injunction in relation to a child in any case in which it appears to the Court to “be just or convenient to do so”.

2. In Harridge & Harridge [2010] FamCA 445, Murphy J referred to a list of enquiries discussed by an English author (who, he described, as qualified as both a psychiatrist and a barrister being B. Mahendra; “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569) to assist with the assessment of risk of harm in parenting matters. The approach was adopted by Tree J in Theophane & Hunt [2014] FamCA 1038. Those enquiries include, inter alia, asking the following questions:

   1)What harmful outcome is potentially present in this situation?

   2)What is the probability of this outcome coming about?

   3)What risks are probable in this situation in the short, medium and long term?

   4)What are the factors that could increase or decrease the risk that is probable?

   5)What measures are available whose deployment could mitigate the risks that are probable?

3. Justice Murphy in the above quoted case made it clear that the Court is assessing the issue of risk within the framework of determining whether there is an “unacceptable risk”, as the measure in this jurisdiction to assess parenting orders so as to minimise any potential harm to a child.  That assessment has to be carried out in relation to the particular facts of each case.

4. The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court in Sieling & Sieling (1979) FLC 90-627 (at page 78,264). Without further evidence as to the content and utility of the mother’s proposed course described as an Alcohol Awareness Programme and in light of the father’s position, the Court would not make an order in terms sought by the mother as set out in her proposed order 2 in paragraph 1 above. The Court notes that this order was not pressed, in any event.

5. The mother says that the children could be exposed to the father’s excess consumption of alcohol and his inebriation which has the potential to expose them to physical harm, either by the father being less constrained by his own use of physical force or by him being less available to them in terms of meeting their needs.  The mother does not explain how an increase in time to include overnight weekly time would necessarily increase the risks that she has identified, given that she had previously agreed to the father having overnight weekend time.  There would be, potentially, less social events in the normal mid-week working calendar.  The Court is of the view that the risk factors would, potentially, be lower, in this regard.  Further, that those factors could be mitigated against in terms of an injunctive order restraining the father from using alcohol whilst the children are in his care or for 12 hours prior to, together with an oversight test.  In this regard, the Court notes that these are interim orders which can be assessed within a, relatively, short period of time.  Weight is attached to that.  See paragraph 81 above.

[country omitted] trip

1. The father says that he has elderly parents and the rest of his family in [country omitted].  His mother had, in 2018, what the husband described as a mild stroke.  Following that, she has received operative treatment for tumours and is, currently, receiving radiology over the next few months.  Mr Othen submitted and the Court accepts that the father led no evidence that his mother was facing any “end of life” concerns.  The father does not say that his parents cannot travel, only that they cannot travel “as much as they used to”. 

2. The father has told the children that he will not be able to spend time with them in 2018 as he would be travelling to [country omitted] to visit his family. 

3. While there do not appear to be any specific risk factors in terms of flight risk, put simply, the father has not spent that period of time, as contemplated by his proposal for overseas travel, with the children, but more importantly, the children have not spent that amount of time in a block away from the mother.  The mother says that she believes that the children would not be comfortable travelling to [country omitted] with the father.  That weighs heavily against the father’s proposal.  Mr Watkins, substantially, accepted that position when he proposed an oral variation to 3 days.  The reasonable practicability for the children travelling for 3 days, again, weighs against that proposal. 

4. The mother also raises concerns that the father’s parents and siblings drink alcohol to excess.  The mother said that she observed them to become intoxicated, slur their words, walk unsteadily and knock over or fall off furniture. 

5. The mother asserts that the children have not had a close relationship with the father’s extended family. 

6. The mother says that before overseas travel should be considered, the single expert’s report should be obtained.  The Court accepts that submission.

Consequential orders

1. The parties agreed to the mother’s proposed order 4, as set out in paragraph 1 above.  The father, however, did not agree to the provision of the information contained in that order to any out of school care or school that the children from time to time attend.  The Court is of the view that the utility of that order is to so authorise the said care or school provider in terms of the information and authority provided and, therefore, it would be sensible for the parties to provide the said providers with a copy of all of the orders made. 

Costs

1. Whilst the applicant mother sought that the father pay her costs of and incidental to the application, Mr Othen did not address on the issue of costs.  In light of the Court’s orders, neither party has been entirely successful.  The Court is not satisfied that there are any justifying circumstances to depart from the position that each party would, otherwise, pay their own costs.  The Court will, therefore, make no order as to costs.

2. The Court is satisfied on balance, having considered and weighed the primary and additional considerations referred to above, that the orders set out above, at the commencement of these reasons, are in the children’s best interests and, accordingly, will so order.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Kemp

Date: 14 December 2018