Allcroft and Allcroft

`FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLCROFT & ALLCROFT

[2017] FCCA 3199

Catchwords:
FAMILY LAW – Parenting – where the father seeks orders concerning time with children aged 8 & 9 – where the younger child has ASD, SPD and other diagnoses and the older child suffers from anxiety - where the father loves his children but lacks empathy for them, sometimes makes poor decisions which place them at risk and has a highly conflicted relationship with the mother – where those problems are unlikely to abate – where there is also an unresolved concern about whether the father is using illicit drugs or improperly using prescribed medication – order for supervised time while further drug testing is carried out and then if the results are satisfactory unsupervised time but for restricted periods during the day only.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:

Mazorski & Albright (2007) 37 FamLR 518

Applicant:

MR ALLCROFT

Respondent:

MS ALLCROFT

File Number:

NCC 262 of 2016

Judgment of:

Judge Terry

Hearing dates:

6, 7, 8 & 9 November 2017

Date of Last Submission:

9 November 2017

Delivered at:

Newcastle

Delivered on:

20 December 2017

REPRESENTATION

The Applicant:	In person
Counsel for the Respondent:	Mr Graham

Solicitors for the Respondent:	HelpMac Lawyers
Counsel for the Independent Children's Lawyer:	Ms Court
Solicitors for the Independent Children's Lawyer:	Harpers Legal

ORDERS

The mother shall have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2009 (“the children”).
The children shall live with the mother.
The children shall communicate with the father by telephone as agreed between the parties but failing agreement:
(a)each Tuesday between 4.00pm and 4.30pm;
(b)on Christmas Day each year by telephone; and
(c)on each of the children’s respective birthday’s.
To facilitate such telephone communication, the father shall call the telephone number nominated by the mother and the mother shall ensure that such phone is working and if a mobile that it is charged and has sufficient credit to take such call.
The children shall spend time with the father supervised either by Mr Robert Allan for as long as he is willing to provide supervision or for a period of two hours each alternate Sunday by Big Brown House or ReKonnect or if they are both unavailable a similar children’s contact service.
If Mr Allan declines at any time to continue to provide the supervision then the father shall advise the mother of which of the contact services referred to in order (5) he wishes to utilise and the mother shall forthwith upon being provided with that information undergo the necessary intake procedure with that service .
Time supervised by Mr Allan or by a children’s contact service shall take place on a day and at a time and venue to be agreed between the mother and father and either Mr Allan or a children’s contact service as the case may be and failing agreement at a day and at a time and venue nominated by Mr Allan or Big Brown House or Rekonnect or if they are both unavailable the children’s contact service as the case may be.
The father shall forthwith and on one occasion between now and six months from the date hereof within 7 days of receiving a text message from the mother asking him to do so undergo hair follicle testing and provide a copy of the results to the mother as soon as the results are received.
The father shall also on three occasions within the next six months within 48 hours of the mother requesting him to do so undergo supervised chain of custody urinalysis of a sample provided under supervision to test for the presence of illicit drugs and provide a copy of the results to the mother as soon as the results are received.
Provided that each of the hair follicle tests and urinalysis tests:
(a)have no sample integrity issues;
(b)are negative for the presence of illicit drugs other than amphetamines if the father declares that he is taking dexamphetamine medication;
(c)are negative for the presence of prescription drugs not prescribed for the father; and
(d)are positive to an extent consistent with the father taking his dexamphetamine medication in accordance with his prescription; then
following the last test result being received and subject to the father having complied with Order (11) the father shall spend time with the children each alternate Sunday from 10.00am to 4.00pm and at such additional or alternate times as may be agreed between the parties in writing.
The time in Order (10) shall not commence until the father provides the mother with written confirmation:
(a)From a representative of a recognised parenting course provider that the father has in the previous twelve months attended and successfully completed a recognised ‘Parenting After Separation’ course with that organisation NOTING THAT for the avoidance of doubt the parties agree that the course known as ‘Parents Not Partners’ provided by Interrelate is such a course from such a provider; and
(b)From a representative of Autism Spectrum Australia that the father has attended and successfully completed the (omitted) Program with Autism Spectrum Australia.
The father shall within 7 days of commencing unsupervised time with the children in accordance with Order (10) and on one occasion between then and six months from then within 7 days of receiving a text message from the mother asking him to do so undergo hair follicle testing and provide a copy of the results to the mother as soon as the results are received.
The father shall also on three occasions within six months of the time in Order (10) commencing within 48 hours of the mother requesting him to do so undergo supervised chain of custody urinalysis of a sample provided under supervision to test for the presence of illicit drugs and provide a copy of the results to the mother as soon as the results are received.
Provided that each of the hair follicle tests and urinalysis tests:
(a)have no sample integrity issues;
(b)are negative for the presence of illicit drugs other than amphetamines if the father declares that he is taking dexamphetamine medication;
(c)are negative for the presence of prescription drugs not prescribed for the father; and
(d)are positive to an extent consistent with the father taking his dexamphetamine medication in accordance with his prescription; then
the father shall at the expiration of six months from the commencement of the time provided for in Order (10) spend time with the children each alternate weekend from 10.00am on Saturday to 4.00pm on Saturday and from 10.00am on Sunday to 4.00pm on Sunday and at such additional or alternate times as may be agreed between the parties in writing.
The mother shall deliver the children to and collect the children from an agreed location at the commencement of the time the father spends with the children in accordance with Order (10) and (14) and failing agreement changeover shall take place at the McDonalds Restaurant closest to the mother’s home.
Notwithstanding any other order the father’s time with the children is suspended from 20 May 2018 to 30 June 2018 during which time the mother intends to take the children away on holiday
Each party shall promptly notify the other if either of children while in their care are involved in an accident or medical emergency requiring treatment at hospital or are diagnosed as suffering from a serious medical condition.
Each party may obtain from the children’s schools copies of newsletters, reports, order forms for school photographs and information normally provided to parents and each party may attend events at the school normally attended by parents.
Each parent shall inform the other parent, as soon as practicable, of any change to that parents’ residential address and/or fixed or mobile telephone number.
For the personal protection of the mother the father is restrained and an injunction is granted restraining him from entering the mother’s home or loitering within 100 metres of the mother’s home.
The father is restrained and an injunction is granted restraining him from attending at the children’s schools other than in accordance with Order (18) or from removing the children from any school, out of school hours service, extra-curricular activity or from the care of any person in whose care the mother has placed them.
The mother may obtain passports for the children and travel internationally with the children notwithstanding that the consent of the father has not been obtained.
If the mother intends to travel internationally with the children she shall give the father 14 days’ notice in writing of her dates of departure and return, travel details including flight numbers if she is travelling by plane and the address of the place where the mother will be staying with the children while absent from Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 262 of 2016

MR ALLCROFT

Applicant

And

MS ALLCROFT

Respondent

REASONS FOR JUDGMENT

Introduction

X, 9, and Y, 8, live with their mother and have done since their parents separated two years ago.
There is no dispute that this should continue and the dispute when the trial started was about:
i)whether the mother should have sole parental responsibility for the children or whether parental responsibility should be shared; and
ii)the time the children should spend with the father.
During the trial the father conceded that the mother should have sole parental responsibility and only issue which remained in dispute was the time the children should spend with the father.
The mother has always had concerns about the father’s parenting capacity and drug use and the father commenced proceedings in February 2016 because in light of these concerns, the mother would only agree to him spending very limited time with the children.
In April 2016 an order was made for the father to spend unsupervised time of limited duration with the children. However due to incidents which occurred in early 2017, that order was suspended and when the trial commenced in November 2017 the father was only spending two hours per fortnight with the children supervised by a private supervisor.
The mother’s proposal at trial was that supervised time should continue until the father produced 6 months of drug tests clean for use of illicit drugs, showing no abuse of prescription medication and confirming that the father was taking his dexamphetamine medication regularly. She proposed that thereafter he spend time with the children from 10.00am to 3.00pm on Sunday each alternate week and if that went well for six months and he produced further satisfactory drug test results he then spend time with them from 10.00am to 4.00pm on Saturday and 10.00am to 4.00pm on Sunday each alternate week.
The mother said that she could not envisage a time when she would be comfortable with the children staying overnight with the father.
It was the mother’s case that due to the children’s issues (X suffers from anxiety to the point where she qualifies for NDIS funding and Y has a range of problems including Autism Spectrum Disorder (ASD) and Sensory Processing Disorder (SPD) they required exemplary and attentive parenting and the father lacked the necessary parenting skills to provide this and placed the children at risk by his decisions. She said that this made both children anxious and they were now quite reluctant to spend time with him.
It was also her case that the father might either be using illicit drugs and/or abusing his dexamphetamine medication which was affecting his behaviour or both and that he lacked judgment and people skills and frequently overstepped boundaries or went back on his word which caused disappointment and upset for the children and had eroded her trust in him. She said that he was very difficult to deal with because when he felt thwarted or upset he resorted to verbally abusing her or intimidating her by such actions as going to her home and turning off the power.
The father does not accept that there are deficiencies in his parenting skills or that he has bullied, abused or intimidated the mother and he denied that he was using illicit drugs or failing to take his dexamphetamine medication. It is his case that the problems he has had spending time with the children were due to parental alienation.
The father sought orders that the children spend time with him each alternate weekend from Friday to Sunday and each alternate Wednesday from 3pm until 6.30pm during school terms together with half of the school holidays.[1]
[1] Father’s Case Outline Document Exhibit A
The case presents something of a puzzle.
Judged against many yardsticks the father is a productive non-troublesome member of community. He has worked for the same employer for ten years, he has stable housing, he has not been diagnosed with any mental health issues and save for a very old malicious damage charge he does not have a criminal record. He is not the usual sort of person who has difficulty being able to spend time with his children.
The family report writer did not see any sign when he prepared his report of the father having any debilitating parenting capacity issues and he recommended that the father spend regular unsupervised weekend and holiday time with the children.
However the father has made some bizarre decisions during the course of these proceedings. Failing to do a series of drug tests in late 2016/early 2017; leaving the children alone on the beach in January 2017; attending the children’s school in August 2017 and taking them out onto the footpath with him despite only being entitled to spend supervised time with them; and poking around the mother’s home on a number of occasions while she was out despite her having repeatedly requested him not to go there are examples which spring to mind.
I will have to critically examine the evidence which includes the family report to try to resolve the puzzle and come up with orders which are in the children’s best interests.

The evidence

The father relied on his affidavit filed on 3 November 2017 and the affidavit of his sister Ms L also filed on 3 November 2017.
The mother relied on her affidavit filed on 26 October 2017 and the affidavit of her neighbour Ms H filed on 21 December 2016.
The Independent Children’s Lawyer called Mr Robert Allan, the private supervisor of the father’s time, to give evidence about the supervised visits, and Dr C, a Clinical Pathologist employed by (omitted) Pathology, to interpret the father’s drug test results.
A family report was prepared by Mr N, a Regulation 7 Family Consultant and was released to the parties on 30 January 2017.
Ms L was not available for cross-examination but the mother’s counsel consented to her affidavit being read. All of the other witnesses were cross-examined.
There were issues with the evidence of both parties.
The father robustly denied both in his trial affidavit and during cross-examination that text messages he sent the mother in 2015 and 2016 were bullying or abusive but there is absolutely no doubt that they were, and he sometimes changed his answers when confronted about his actions. In one text message for example he told the mother that he would find out instantly if she was taking drugs. When asked in cross-examination how he would do that he said through mutual friends. When asked who the mutual friends were he first responded that he wasn’t at liberty to say and then backtracked and said that he would not have found out.
The mother was prone to draw conclusions which were not always the only ones open on the information and her evidence about being told certain things by Mr Allan was contradicted by Mr Allan.
That leaves me in a position where I will not be able to use the general reliability of the evidence of one party as a means of trying to arrive at the truth, but the father’s denial that the clearly abusive text messages he sent were abusive has other implications for his case which I will refer to later.

Background

The parties commenced living together in either 2006 or 2007 and married on (omitted) 2008. There was a dispute about whether and if so to what extent they had a relationship for a discrete period prior to 2006 but the evidence about that came down to one parties word against the others. I cannot resolve that dispute and nothing turns on which version of events is correct.
The parties have two children, X born on (omitted) 2008 and Y born (omitted) 2009.
The father has an older child Ms J who was born on (omitted) 1998. He separated from Ms J’s mother when Ms J was a baby. The father conceded that he did not currently have a relationship with Ms J and had not for some time and I am satisfied as a result of an email attached to the mother’s affidavit that he is unlikely to have a relationship with her in the future.
During the parties’ relationship the father worked full time and the mother was the stay at home parent.
The parties put forward very different narratives about what happened during their relationship.
The father said that the mother had a history of drug taking and alcohol abuse and had joined him in swinging activities early in the relationship. He disputed her claim that she was the children’s primary carer and that he showed little interest in the children and was ignorant about the extent of Y’s medical issues. He said that he was involved in the children’s case and had a close relationship with the children and knowledge of their medical issues and he was critical of the mother over her lack of attention to Y’s medical issues.
The mother said that it was the father who had a history of alcohol abuse and drug taking and alleged that he abused his dexamphetamine medication. She denied his allegations about the swinging activities and said that he had engaged in some bizarre behaviour of a sexual nature which he took no pains to shield the children from (although there was no evidence they had viewed it).[2] She said that he showed little interest in caring for the children prior to separation and left all the medical and educational decisions to her and neither accepted nor understood the extent of Y’s disabilities.
[2] The photos of the father on the lounge and the evidence about the punching bag is the evidence referred to
It is impossible for me to make findings about all the issues in dispute between the parties about things which occurred during the relationship. However while I had cause to question some of the mother’s evidence at the trial because of contradictory evidence by Mr Allan about some things which had occurred or were said during the supervised time and because of her propensity to leap to conclusions, her narrative about what happened during the relationship has a greater ring of truth than the father’s. I cannot believe that the mother staged the photo of the father on the lounge, and the father’s admitted historic drug use is extensive while the mother’s is much more limited. The fact that the father worked full time and commuted to work in Sydney together with the mother’s depth of knowledge about the children’s medical issues satisfies me on the balance of probabilities that the mother was the children’s primary carer and that she did make all the medical and educational decisions during the relationship.
The parties separated under one roof in January 2015 but they did not live happily under one roof. In July 2015 the mother called the police after an argument and an ADVO was made for her protection for twelve months. It was a non-assault non-harass/stalk type ADVO and the parties continued to live under one roof until September 2015 when the father moved out to his own rental accommodation.

After he left the home the father pressed the mother to agree to him spending time with the children but the emails he sent her in October and November 2015 to try to achieve an agreement about this were aggressive, unpleasant and abusive.
The mother agreed to some visits but only with her present. She took the children to see the father on Christmas Day 2015 and a visit was arranged at (omitted) in December 2015. That ended badly however when the father “went off the radar” with the children leaving the mother worried and searching for him for about an hour and it would seem that no further visits occurred after that.
In February 2016 the father commenced proceedings and in April 2016 orders were made for the children to live with the mother and spend time with the father from 10.00am to 3.00pm each alternate Sunday and from the conclusion of school until 6.00pm on Wednesday. An order was also made for telephone communication each Friday.
This time continued until 22 January 2017.
The mother declined to allow the children to spend time with the father after the incident on 22 January 2017 and on 31 January 2017 she filed an application seeking to have the order for unsupervised time suspended. She said that after the children returned from a Wednesday visit on 18 January 2017, X told her that during the visit the father started the car in the driveway and then went inside. X said that she was behind the car. She said that when the father went inside Y got into the car and touched the controls and the car began to run backward towards her.
The mother said that after the children returned home on Sunday 22 January 2017, X told her that the father had taken them to (omitted) Beach and had left them on the beach unattended for what X described as ages. X said that she was on the sand and Y was in the water and she was frightened. X also complained about being left at the change shed alone at the end of the visit while the father took Y to the car before he returned and fetched her. She said she was scared.
X also complained that the father had not brought any water to the beach and that she was thirsty.
The mother said that both children came home so severely sunburned that she took them to a doctor who made a report to the Department of Family and Community Services.
The mother’s application was given a return date of 1 March 2017. On that day the court adjourned the application to 5 May 2017 for further consideration and ordered that the father file a response.
The mother informed the father that pending the determination of her interim application, she was willing for the father to see the children in a safe place and after discussion it was agreed that father would spend time with the children at (omitted), a play venue, and would remain at that venue with the children throughout the time.
The first visit pursuant to this agreement was scheduled for Wednesday 29 March 2017. The mother dropped the children to (omitted) as agreed but said that she had a bad feeling about the father’s appearance and waited in the car park. She said that at 4.00pm the father emerged from (omitted) with the children and got into his car. The mother tried to follow him but lost him and called the police who located the father and children at (omitted) Beach. It was another extremely hot day.
There was no further time after 29 March 2017.
The mother’s interim application came before me on 5 May 2017. The father admitted that he had been working on his car on the day X complained about the incident with the car and admitted that Y had got into the car but denied that it had rolled.
The father admitted that he had left the children alone on (omitted) Beach. He said that he needed to go the carpark and asked the lifeguards to keep an eye on the children while he was away. He could not see that there was anything wrong with what he had done.
At trial the father said that he was away for no more than five minutes.
The father said that he left (omitted) because it was too hot inside the venue. He did not explain why he then decided to take the children to the beach given the concerns the mother had raised about the incident at (omitted) Beach.
After hearing submissions on 5 May 2017, I indicated that I intended to suspend the father’s unsupervised time and I stood the matter down so that the parties could have discussions about putting into place some supervised time between then and when the matter was listed for trial which at that stage was in August 2017.[3]
[3] The trial later had to be adjourned because of unforeseen circumstances.
The father however left the court building and did not return and the only order I was able to make was that supervised time occur at a venue nominated by the Independent Children’s Lawyer.
Shortly afterwards the father sent a letter to my Associate apologising for leaving and asking if the matter could be relisted. I relisted it as requested and on 8 June 2017, an order was made that the father spend time with the children at a supervised contact centre and also on one occasion for two hours supervised by Robert Allan, a supervisor agreed upon by the parties and the Independent Children’s Lawyer.
In fact a supervised contact centre was never engaged and time continued to be supervised by Mr Allan.
On Friday 25 August 2017 another bizarre incident occurred. The father turned up unannounced at the children’s school at the end of the school day and collected the children. The mother was waiting in her car outside the school to pick the children up and saw the father walking out of the school with the children who were carrying their bags and who each had a bag of lollies. The mother feared that the father was intending to leave with the children but when she approached him and took the children’s hands the father left.
At trial the father denied that he had intended to take the children away and said that he just wanted to see them, but it was not his time and his behaviour alarmed the mother. The only explanation he was able to offer for his actions was that he missed the children.
The final example of the father’s inexplicably erratic behaviour occurred on the first day of the trial. He was cross-examined by the mother’s counsel up to the luncheon adjournment. Cross-examination was due to resume at 2.15pm but the father did not return. He sent an email to my Associate saying that he did not feel equipped as a self-represented litigant to continue with the trial and did not intend to return.
At the request of the mother’s counsel, rather than proceeding to finalise the matter on an undefended basis, I stood it in the list until the following morning. The father appeared at 10.00am the next day and apologised for his behaviour and took part in the remainder of the trial without incident.

The parties circumstances

The father is a (occupation omitted) for (employer omitted) in (omitted). He has held this job for 10 years. He lives in rented accommodation in (omitted) and has not re-partnered.
The father was diagnosed with ADHD as a child and as an adult he has been medicated with dexamphetamine for many years. [4]
[4] Paragraph 19 of the Family Report
In her trial affidavit the mother claimed that during the parties’ relationship the father would sometimes binge on his dexamphetamine tablets rather than taking the prescribed dose and would then be left without any legal medication until he was entitled to receive another script. The father said that this was not the case and that he took his medication as prescribed but the mother’s claim was given some colour of credibility by the fact that a number of the drug tests the father did during the course of the proceedings were not positive for amphetamines even though the father said that he had been taking the medication.
The mother lives in the former matrimonial home with the children and is not currently employed.
Both children have medical needs although Y’s are by far the more severe. The mother said as follows about Y in her affidavit:
Y has been diagnosed with Autism Spectrum Disorder – ASD (moderate – 2), SPD, ADHD, ODD, separation anxiety, general anxiety, food aversion and a language delay. Y is medicated.[5]
[5] Paragraph 15 of the mother’s affidavit
The medical reports provided about Y were several years old but his diagnoses were not in dispute. Y has rigid food preferences and gets overwhelmed at school and has meltdowns and has a teacher’s aide.
X has been diagnosed with anxiety which does not impede her education but she does receive funding under the NDIS. She attended 10 counselling sessions with (omitted) in 2016.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations in s. 60CC (2) are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
S. 60CC (2A) provides that the court must give greater weight to the second consideration.
The children have a meaningful relationship with their mother. However they are currently only seeing their father for two hours once a fortnight at a play venue and if this continues the children will not have a meaningful relationship with him in other words a relationship which is significant valuable and important to them.[6]
[6] Mazorski & Albright (2007) 37 Fam LR 518
The children would benefit from having a meaningful relationship with their father in that he loves them and has a genuine desire to spend time with them, they reacted warmly to him at the family report interviews and he is a good role model for them in terms of being employed and having no recent criminal convictions.
However extensive unsupervised time does not in itself lead to a meaningful relationship. If there are deficiencies in the father’s parenting capacity so that he does not properly attend to the children’s needs and even puts them at risk and does things which heightens the anxiety, extensive unsupervised time might bring about the demise of a meaningful relationship.
The children will not be at risk of abuse, neglect or family violence in the future as a result of any actions of the mother. The father alleged that she had issues with drug use, alcohol use and promiscuity and I will consider these in the context of assessing the mother’s parenting capacity but the allegations taken at their highest do not suggest that the mother is likely to abuse or neglect the children.
For reasons to be given later, I am satisfied that some of the father’s behaviour toward the mother since separation can be characterised as family violence. There have been instances of verbal abuse and intimidating behaviour at changeover and there is some risk of the children being exposed to family violence in the future as a result of the father’s behaviour.
The mother raised concerns about the father’s drug use and parenting capacity which she implied could lead to the children being neglected but they are best dealt with in the parenting capacity section of the judgment.
I must then turn to the additional considerations in s. 60CC (3) and the first of those is any views expressed by the children and the weight to be given to those views.
The mother’s evidence was that the children were nervous about spending time with the father.
The father claimed that the children were initially enthusiastic about spending time with him but told the family report writer that Y had recently become less keen about the idea of spending overnight time with him as had X but said that he could not explain why.
Y declined to be interviewed by the family report writer so there is no independent evidence from that source about Y’s views.
X told the family report writer that she did not want sleepovers at her father’s home and the family report writer went on to say:
When I asked X as to why that was the case, she indicated that she had some anxiety about overnight time with her father, but couldn’t pinpoint as to why. She was clear to say that her father hadn’t harmed her in any way.[7]
[7] Paragraph 58 of the Family Report.
X's (omitted) counselling notes suggest that in 2016 she was not opposed to sleeping over at the father’s. However these sessions all took place before the incidents in January 2017 when the father left the children on the beach, left X at the change shed and left the car running in the driveway. X has anxiety problems and it is unlikely that her view about overnight time would be any different now to what she told the family report writer.
There was no evidence that the mother had coached X to make particular statements to the family report writer.
The Independent Children’s Lawyer’s provided information about the children’s views in her case outline document. She said as follows:
The children have expressed their concern to the Independent Children’s Lawyer about spending time with the Father. At the time of their interview with the Independent Children’s Lawyer they expressed a wish not to spend time with the Father that they wish it to occur in a supervised environment so they could feel safe.[8]
[8] Paragraph 47 of Exhibit “C”..
This evidence is not in the best possible form; Y declined to speak to both the family consultant who conducted a child inclusive 11F conference and to the family report writer and I cannot be sure about whether both children “expressed” a concern to the Independent Children’s Lawyer or whether only one did. However the general tenor of the evidence of the mother and father was that the children had become increasingly reluctant about spending time with the father as time went by and I accept that at the present time neither child is keen to spend unsupervised time with the father.
I must consider the nature of the relationship of the children with each of their parents and any other person including a grandparent of the children.
The children have a good relationship with their mother who has always been their primary carer.
The nature of the children’s relationship with the father is one of the puzzles in the case.
In his affidavit the father said that when the children first started spending time with him after separation they were reluctant to leave him at the end of visits and that was particularly so in the case of Y. He admitted however to the family consultant that they now seemed less keen to spend time with him.
The mother said that the children were sometimes reluctant to go to spend time with the father and that X said “Do we have to?” and that Y was extremely clingy upon returning home.
The family report writer observed a very positive interaction between the father and the children in December 2016. He said as follows:
During my observation of the father spending time with the subject children, both children ran into their father’s arms and were excited to see him. Mr Allcroft embraced both children and subsequently engaged both children in play. After a short period Y commenced to play independently, but Mr Allcroft made an effort to involve Y in his game with X. Both children were clearly relaxed in their father’s presence. X suggested certain activities for her and her father on the coming weekend and also for her future birthday. Mr Allcroft certainly presented as receptive to this and was positive in his interactions with both children. Y was calm throughout the entire observation.[9]
[9] Family Report paragraph 65
The family report writer reflected on whether some of X’s expressed reluctance to spend time with the father might be down to reacting to the mother’s anxiety.
At the time of trial in November 2017 both children were attending the supervised visits with the father but while there were no issues with X engaging with him and playing with him, Y sometimes broke off playing and went and sat with the supervisor.
The supervisor said that during two visits prior to the supervisor signing his affidavit, Y had begun looking anxiously for his mother before the visit ended and that on 1 October 2017 he clung to his mother upon arrival and would not leave her. With the father’s agreement the mother left with Y but brought him back half an hour before the visit was due to end so that he could have some interaction with the father.
Y mainly played independently at the family report interviews and his behaviour in breaking off playing with the father and sitting with the supervisor could be down to his ASD. However his behaviour in looking anxiously for the mother does not speak of a close, trusting and enthusiastic relationship with the father and X found some of the incidents during 2017 (the incident with the car and being left on the beach for example) very unpleasant and it is difficult to be sure about the nature of the children’s relationship with the father at present.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the children, to spend time with the children and to communicate with the children.
The mother said that historically the father had left it to her to make all the decisions about medical matters and education. The father denied that this was the case but I am satisfied on the balance of probabilities that the father was content to allow the mother to make those decisions during the marriage.
I do not consider however that this is a reason to be critical of the father. During the relationship the mother had time to deal with these matters and the father was working full time in Sydney and this division of labour is not uncommon in intact marriages.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to maintain the children.
Payment of child support was not raised as an issue in the case.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of their separation from either of their parents or any other child or person including any grandparent or other relative of the children with whom he or she has been living.
The children have spent fairly limited time with the father since separation and are currently spending only supervised time with him.
The father proposed that his time with the children increase to be each alternate weekend and half of the school holidays as well as time on alternate Wednesdays and that it be unsupervised. Whether it would benefit the children for me to make such a change is a major issue in the case and I cannot properly consider it until I make findings about the remaining s.60CC (3) matters.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is not an issue in the case.
I must consider the capacity of each parent to provide for the needs of the children including their intellectual and emotional needs.
The mother is providing capably for the children’s day to day needs. She has at all times made appropriate decisions about their medical needs and their education and she takes them to appointments and liaises productively with service providers.
During cross-examination the mother talked with knowledge and insight about the parenting courses she had done since separation. I have every confidence in the mother’s capacity to parent the children.
The father made allegations during the proceedings that the mother may be using drugs but the mother complied with orders for drug testing and the results were negative. There was no evidence at trial that the mother had an issue with the use of illicit drugs.

The father suggested in affidavit material he filed during the proceedings that at Christmas 2015 the mother became drunk at a party at her home and engaged in highly promiscuous sexual behaviour in the sight or the hearing of the children. He attached a graphic photo of the mother to one of his affidavits which he alleged had been passed on to him by a person who attended the party.
The mother said that the photo was taken during the early part of her relationship with the father when she and the father sometimes took photos of their own sexual activity and strongly refuted the father’s allegations about her behaviour, indeed through her counsel she considered it scandalous that the father had made this allegation.
This allegation does not sit comfortably with the father’s case that the children live with the mother. I do not accept the father’s evidence that such an event occurred and I am at loss to understand why he made this allegation.
The most charitable explanation for the father putting this evidence forward is that he did it in retaliation because the mother provided a lurid photo of him, although given that I consider it fabricated that does not entirely remove my concern about it. Another charitable explanation is that it was yet another example of the father’s lack of judgment about appropriate behaviour; however a more disturbing explanation, and I cannot discount this because of other behaviour by the father since separation, is that he did it to intimidate the mother.
For whatever reason it was done it is one more thing which adds to my general sense of unease about the father.
The father has appropriate accommodation for spending time with the children. The mother claimed that when she visited his home soon after separation, it was messy and had inadequate bedding but that was soon after the parties separated and the father provided a photograph of an appropriately fitted out children’s bedroom.
The mother complained that the father had problems with alcohol. The father said that he currently drank alcohol rarely and there was no evidence at trial which suggested that he had an alcohol problem.
The mother alleged that during the relationship the father engaged in highly inappropriate behaviour in regard to sexual matters. She attached a photo of him on the lounge which I am loath to describe in this judgment and a photo of a boxing bag which I am similarly loath to describe.[10]
[10] Mother’s affidavit paragraph 86
The mother did not make clear what she wanted me to do with this material. Her proposal was that if the drug use issue was resolved the children should commence spending five hours with the father unsupervised which would mean that he could take them to his home, and while the photo of the father on the lounge might indicate that the danger of being exposed to inappropriate sexual actions by the father was greater at night, the boxing bag or a similar item could potentially be on view at any time.
It has crossed my mind that perhaps the mother had included this material in retaliation because the father attached the graphic photo of her to an earlier affidavit.
Other complaints the mother made about the father’s parenting capacity cannot however be lightly dismissed and one is that the father might be using illicit drugs or abusing prescription medication.
The mother alleged that the father used illicit drugs extensively during the relationship and abused his dexamphetamine medication.
The father told the family report writer that as an adolescent he experimented with cannabis and also tried amphetamines and LSD. He said that he had not used cannabis for 15 years but had had recreational use of MDMA, other amphetamines and LSD. He said he used “ice” on approximately half a dozen occasions about five years ago and last used amphetamines about 18 months ago. He alleged that he and the mother used MDMA together during their relationship every few months.[11]
[11] Family Report paragraph 23
In his affidavit filed on 3 November 2017 the father denied that he had used illegal drugs during the relationship but he did not challenge the accuracy of the information in the family report and I prefer that evidence and the evidence of the mother about the father’s drug use during the relationship.
The father denied any recent illicit drug use but he tested positive for MDMA in a urine test done in May 2016. He vehemently denied that he had used MDMA and could offer no explanation for the result.
An issue with some of the father’s tests was that they did not show positive for the ingredients in dexamphetamine, which tended to bolster the mother’s claim that the father would binge on his dexamphetamine and then have none available for his use for a period of time.
During the course of the proceedings an order was made for the Independent Children’s Lawyer to request the father to do drug tests and he failed to do a number of tests in 2016 and 2017. He alleged that in two cases he did not receive the request but the main reason he gave was that it was because of lack of funds. That excuse is not persuasive given that he is employed and earns $79,000.00 to $80,000.00 per annum. He has also been self-represented for some time and does not have to pay legal fees.
The father eventually did a hair follicle test and the result was available at trial. Unfortunately the laboratory was only able to take 1cm of hair which only allowed them to test for drug use back one month instead of the usual three months. The father did not test positive for any illicit drugs and the ingredients of dexamphetamine showed up but he did test positive for Oxycodone. He had not been prescribed Oxycodone and said that he had taken his brother’s Oxycodone because he was in pain as a result of an abscessed tooth.
The father has a long history of illicit drug use and returned a positive result for MDMA in May 2016 and then did not do a series of tests in 2016 and 2017. That raises a red flag. The mother gave evidence that the father binged on his dexamphetamine during the relationship and the fact that the ingredients of this drug did not show up in a number of results adds credibility to this claim and raises another red flag. The fact that he was only able to provide 1cm of hair may be due to legitimate choices about his head and body hair but it does nothing to dispel concern, and the fact that the father tested positive for Oxycodone in 2017 may be the result of him innocently borrowing his brother’s medication when he was in pain but it is a medication which can be abused and that raises another red flag.
The fact that these red flags exist in a case where the father has a long history of illicit drug use and behaved on a number of occasions throughout the proceedings in ways which were impulsive and contrary to his own best interests if he wanted to achieve regular unsupervised time with his children means that I cannot lightly discount the possibility that the father has a problem with either illicit drug use or misuse of prescription drugs.
The mother alleged that at changeover for a recent visit Mr Allan told her that the father look drug affected. In cross-examination Mr Allan denied that he had said this. However in light of the drug test results or lack thereof and the father’s behaviour, there is considerable force in the submission at the end of the trial by both the mother’s counsel and counsel for the Independent Children’s Lawyer that before the court can consider unsupervised time there must be greater clarity around the drug use issue.
The mother was highly critical about the father’s parenting capacity generally. She alleged that he had a slack approach to providing lunch and he did not always give Y his medication. She said that X complained on occasions when unsupervised visits were occurring that the father had not offered the children much food.
In some cases I would be sceptical about such complaints but in a case where the father appears to be slack with his own medication and where he made an ill-considered decision to leave the children alone on the beach, I cannot simply brush these allegations aside as being the complaints of an overanxious mother who is placing too much weight on unreliable throw away comments by children.
The mother’s counsel submitted that the father did not accept that Y had disabilities but this is one criticism I do not accept. The father talked in his affidavit about encouraging Y to test different flavours and buying a drum kit for his son to give him sensory stimulation. He was not challenged about his evidence that he had done reading about children with autism and sensory processing disorder.
The mother’s particular concern was that because the father did not accept the diagnoses he might not administer the child’s medication. This is complex however. The father either through carelessness or misuse of his medication does not always take his own medication. There is a risk that the father might not administer the medication not because he disputes the diagnoses but for reasons such as this.
The father’s action in leaving the children unattended on the beach on an extremely hot day, nominally in the care of life-guards, is difficult to excuse and could easily have ended in any number of misadventures. The father was very slow to accept that he had done anything wrong and for a long time insisted that he had been right to trust the life-guards to keep an eye on the children. He eventually conceded that he should not have left the children but the fact that he took so long to accept this causes considerable concern that he could make other errors of judgment in the future.
The father does not have a diagnosed mental illness but his behaviour can be erratic and impulsive. He agreed in the early days after separation that he would spend time with the children at (omitted) but he left the park in his car with the children. The mother searched for him and he eventually returned 20 minutes later.
The father left (omitted) after agreeing with the mother that he would remain there with the children and somewhat bizarrely took them to the beach on a very hot day even though he was well aware that the mother was insisting on supervised time because of issues to do with his last visit to the beach.
After orders were made suspending his unsupervised time he left the court building and would not negotiate about unsupervised time. He later wrote to my associate apologising and asking for the matter to be relisted which occurred and an order was made for the father to spend time with the children supervised by Robert Allan, a private supervisor.
The father attended the children’s school in late August 2017 and gave the mother the impression that he was intending to leave with the children.
On the first day of the trial the father was cross-examined during the morning and he failed to return after lunch. He sent an email to my associate saying that he felt unprepared for the trial and did not intend to return.
I consider it highly likely that given all that has occurred over the course of this year in particular that the mother will be constantly and reasonably worried for the children if an order is made for them to spend unsupervised time with the father, unless and until a period of time passes in which no incidents occur.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
The children’s medical diagnoses are a relevant issue in the case.
The father was adamant that he accepted that Y had a number of diagnoses and that X had anxiety. I accept his evidence, but the fact that I accept it leaves me with grave concerns about the father’s parenting capacity because on a number of occasions this year he has acted in ways calculated to heighten the children’s anxiety.
I must consider any family violence involving the children or a member of the children’s family.
The father said that there was no family violence during the parties’ relationship and the mother did not suggest otherwise. She also did not raise family violence as an issue when talking to the family report writer.
However there is evidence that family violence has occurred post-separation.
There were numerous examples in the mother’s evidence at trial of the father threatening and abusing her by text message after the relationship ended. One sample is the following from 31 October 2015:
(M) Stop sending me abusive messages
(F)You stipulated all communication was to be via text message. Have your “lawyer” contact my lawyer with another incoherent demand and we’ll smash that out of court too. Weirdo.
(M) Stop sending me abusive text messages
(F)Are you drunk or have you been taking drugs with your neighbours again? Are the kid’s ok? Should I send the police and an ambulance?
Another is the message sent on 6 November 2015 which was as follows:
Hear this. If I find out, and trust me I will find out almost instantly..that you are taking drugs and drinking with your friends next door again when you’re supposed to be taking care of Y and X, the police will be on the doorstep before your pupils even dilate. I’d rather they be in state care than put in danger AGAIN by your “recreational drug use” and loose definition of “supervision”. It’s not on Ms Allcroft and I won’t tolerate it. You may have this temporary “power” to use the kids against me but I assure you, it doesn’t make you bulletproof or immune to the law. Your judgment and moral compass is obscenely corrupt and I will guarantee you, Y and X will not become victims of your poor choices. You can take that to the bank.[12]
[12] Annexures to mother’s affidavit page 60
Yet another are the following messages sent on 14 February 2016:
What do you think they’d choose if someone cared enough to give them a choice? 1) Grocery shopping with Ma topped off with another toy to throw on the obscene mountain of crap that Daddy’s pay was often blown because parenting is hard? ….I think you need to take the children’s swimming proficiency a little more seriously. God forbid one of them were to need rescuing and you’re the only one around….counting down to 1 April 16 and the end of this manipulation of the kids. FU
[After the mother asked him to stop sending abusive text messages] I don’t think I’ve ever seen such a loose…interpretation of the term “abuse”. I’d suggest googling the definition and while you’re at it check out – Narcissistic, Manipulative Neglect and Munchausens Syndrome. Add these abusive texts to all the others to put before the court on 1/16/4. I sincerely hope they’re all read. I am quite proud of some of them.[13]
[13] Annexures to the mother’s affidavit page 65 and 66
These are only a small sample indicative of the father’s willingness to threaten and abuse the mother.
The mother alleged that during 2016 the father came onto her property on a number of occasions even though she asked him not to and on one occasion pounded on the door. Her neighbour Ms H gave evidence of seeing the father on the mother’s property on a number of occasions in October 2016 and on two occasions seeing him looking through windows and trying doors.
The mother alleged that the father stalked and intimidated her after she called the police following him leaving (omitted) on 29 March 2017. She said that she twice returned home in April 2017 to find that the power had been turned off and on the second occasion discovered that the fuse for the air conditioner had been totally removed from the meter box.
She said that shortly afterwards her neighbour sent her a message when she was out saying that the father was at her home and loitering on her premises and that when she got home she found chewing gum in and around the locks of her garage and front door.
The mother contacted Staying Home Leaving Violence and was provided with a lock for the metre box, padlocks for the front gate and cameras for the property.
The mother said that after the orders were made for time to be supervised by Mr Allen there were incidents at changeovers. She alleged that on one occasion the father called her a fucking cunt in the children’s hearing and on another parked her in for two minutes preventing her leaving with the children.
The father did not admit that he had interfered with the mother’s power or deposited the gum and denied that he had verbally abused the mother or parked her in but I do not accept his denials and am satisfied that he has subjected the mother to the abuse and harassment she described.
The behaviour is consistent with the kind of threats and intimidation in the text messages, the father was observed at the mother’s home by a neighbour on at least two occasions when he had no reason to be there, and I do not accept that the mother would have made up these detailed fully particularised allegations.
The father’s behaviour at the mother’s home after his time was stopped in March 2017 was stalking and thus was family violence, parking her in was intimidating behaviour and some of the text messages he sent in 2015 and 2016 contain material which can be characterised as repeated derogatory taunts.
In my view the father has committed acts of family violence and that has a number of implications for the case.
It makes him a poor role model for the children, and the fact that he has verbally abused the mother in the children’s presence may be some explanation for their anxiety about him and the children would have picked up on the mother’s anxiety as a result of incidents in April 2017.
Another implication is that father’s behaviour to the mother whenever he feels thwarted or frustrated and his refusal to desist when she asks him to do so makes it completely understandable that the mother would be reluctant to attempt to discuss matters concerning the children with him.
I must consider whether there are any family violence orders and if so the implications of that.
An ADVO was made by consent in November 2015 for twelve months. It is evidence of the parties poor and conflicted post-separation relationship but I cannot make any other findings arising out of the fact that it was made.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of their parents.
I do not accept that the mother is attempting to alienate the children from the father or is behaving in a way deliberately designed to make it difficult for the father to have a relationship with them. I am satisfied that insofar as the mother has sought or seeks in the future to limit the children’s time with the father it is because she is concerned about their comfort and safety.
On 26 July 2016 both parents were ordered to do a parenting after separation course. The mother enrolled in and completed that course and has also done two healthy relationship courses and three parenting courses since separation and she was able to speak knowledgeably in the witness box about what she had learned.
The father has not complied with the order to enrol in a parenting after separation course. In light of the fact that the parties have had enormous trouble forming a post-separation parenting alliance that demonstrates a poor attitude to the children and the responsibilities of parenthood.
I must consider 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 children.
An order for extensive unsupervised time is the order most likely to lead to further proceedings. The likelihood of another incident occurring such as the one at the beach or with the car in the driveway or of difficulties arising because the children express reluctance to attend is high.
However a complicated order such as the mother proposed requiring time to be supervised by a person or organisation the parties might have to agree on and requiring the father to do regular drug testing and provide results satisfactory to the mother before unsupervised time commences is also highly likely to result in further proceedings. These are not parents who are likely to be able to successfully and smoothly navigate their way through complex orders.

I must consider any other fact or circumstance which the court thinks is relevant.
There are many examples of the father behaving in a disrespectful or overbearing way toward the mother. The father sent the mother many abusive text messages after separation, he wandered off at will at (omitted) causing the mother anxiety and distress, he dropped things off at her home even though she asked him not to, he came onto her property while she was out and looked through windows and took small items and intimidated her by turning off the power and disconnecting the air conditioner and he went to the school in August 2017 and walked out the gate with the children.
There is considerable reason to be concerned about whether the relationship between the parties is likely to improve in the future. If the father behaves in ways such as this while under the eye of the court it suggests that he is not able to help himself and there may be real difficulties once the proceedings are over.
An additional concern is that the father does not recognise his behaviour as abusive, and if he does not think he is being abusive or crossing boundaries there is little likelihood of things improving in the future.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them absent a finding that one of the parents has engaged in abuse of the children or family violence.
The presumption does not apply. The father was initially seeking an order for equal shared parental responsibility but he conceded before the trial ended that the appropriate order was that the mother have sole parental responsibility.

The recommendations in the Family Report

The family report writer conducted interviews on 17 January 2017 and his recommendations were as follows:
If there are no identified concerns with the father’s recent drug urine analysis, then Mr Allcroft to commence spending every fortnight weekend with the children, commencing on a Saturday morning at ten am and concluding on a Sunday afternoon at four pm, as well as maintaining the mid-week afternoon.
In six months from the date of this report, that the children’s overnight time with their father commences on a Friday afternoon and concludes on a Sunday afternoon, as well as maintaining the mid-week afternoon with them.
The family report writer noted X’s expressed reluctance to spend time with her father but said as follows:
There is no doubt that the mother presents as a protective parent, and that she only desires positive outcomes for both subject children. However it remains specifically unknown as to whether X’s alleged anxiety about spending time with her father is something that X has sensed from her mother particularly given as neither of the parents have identified any risk of harm issues for either of the children while spending time with Mr Allcroft.
Since the report was prepared incidents have occurred which makes understandable the children’s anxiety about spending time with the father. The court has also had the opportunity to consider and reflect on the text messages the father sent to the mother in 2015 and 2016 which the mother did not bring to the family report writer’s attention and which together with the father’s actions at the mother’s home in April 2017 after his time was suspended lead to the conclusion that he has perpetrated family violence.
The family report writer agreed during cross-examination that if there remained a concern about the father’s drug test results then it would be appropriate to order supervised time while the father undertook drug testing and he agreed that in light of the incident at the beach just for one his recommendation about the father spending alternate weekends and school holidays with the children would need to be reconsidered.
This is a case therefore in which I cannot place weight on the recommendations in the family report.

Conclusion

If the only problem in this case was the unsatisfactory evidence about the father’s drug use the matter would be relatively easy to resolve. An order could be made for the father to do drug tests and once he did them satisfactorily and removed the doubt about his drug use which is created by a convergence of matters which have happened since the proceedings commenced his time could move to unsupervised time.
I would still be left with a problem about what to do if the father did not remove the doubt, because long term orders for supervised time are problematic. Time is likely to break down if an order is made requiring the children to spend the next few years playing with the father at a play venue every fortnight and Y is already showing signs of finding it burdensome. But the problem would be clear and the options clear.
However the doubt surrounding the father’s drug use is not the only problem in the case.
I do not accept that the evidence supports a finding that the mother has sought to undermine the children’s relationship with the father or that her own anxiety is making the children anxious about spending time with the father. The father has made numerous questionable decisions over the course of these proceedings which would have been quite sufficient both to erode the children’s trust in him and erode the mother’s trust in him.
These include leaving the children on the beach, leaving them near the car when it was running, leaving (omitted) after agreeing to stay there, intimidating the mother by his actions at her home and walking out of court on two occasions. They all raise real concerns about his capacity to properly and peacefully parent the children and not cause anxiety in the mother which leads to her bringing the matter back to court.
It is difficult to understand why if the father wanted regular unsupervised time with his children he did these things while under the eye of the court unless the reality is that he is simply unable to control his impulses and is unable to make good child-focussed decisions.
The father does not admit to a drug problem and if his impulsive, erratic and ill-judged behaviour has not arisen from drug use then it is always going to be there and in that event it is difficult to see how unsupervised time is going to work in the children’s best interests and the prospects of the matter returning to court if an order is made for unsupervised time is high.
The mother asked the court to make an order which would lead to unsupervised time. She proposed that the father be ordered to do drug tests for six months and if the results were satisfactory then the children should commence spending unsupervised time with him each alternate Sunday from 10.00am to 3.00pm and if that went well for a further six months for the time to be extended to each alternate Saturday and Sunday from 10.00am to 4.00pm.
If drug use is not the reason for concerning aspects of the father’s behaviour this provides no protection for the children, but I have considerable sympathy for the difficulty the mother faces trying to come up with appropriate orders, and perhaps she hopes against hope that once the litigation ends the father’s behaviour may improve.
The mother also sought an order that the father be required to do a parenting after separation course and an educative course with Autism Australia. These things are all very well but they are unlikely to address deficiencies in the father’s parenting capacity arising out of erratic thoughtless behaviour.
In all the circumstances, however, the best I can do is to make the orders proposed by the mother and supported by the Independent Children’s Lawyer. It gives the father a chance at least to address the issues raised about his behaviour and will lead to the children spending a reasonable amount of unsupervised time with him.
There are problems with the orders proposed by the mother. One is that the parties may disagree over the interpretation of the drug test results. Another is that if the father does not provide satisfactory drug test results during the first six month period, then his time will remain supervised indefinitely and it is highly likely that supervised time will break down for example because the children may become reluctant to attend or the father is not always be able to afford it.
This creates a dilemma but I cannot consider ordering alternate weekends and half school holidays commencing immediately as proposed by the father nor am I even prepared to order overnight time once he provides satisfactory drug test results.
The children have become increasingly reluctant to spend time with the father since separation and there are concerns about his drug use and parenting capacity. It would not be in the children’s best interest to require them to immediately commence spending this kind of time with him and there is no guarantee that his parenting capacity is ever going to improve to the extent where they will be comfortable spending this kind of time with him.
During cross-examination the father was asked if he thought the children would cope if an order was made for them to immediately commence spending lengthy periods of unsupervised time with him. He said that he did not consider that there would be a difficulty but that he was sure that he and the mother would be able to co-operate if the children became distressed.
I can have absolutely no confidence that this would be the case. The father has never stopped disrespecting the mother since the parties separated; it has just taken different forms: bullying and verbal abuse immediately after separation and recently more subtle intimidation in the form of turning off the power to her house. I can have absolutely no confidence that the father would admit to the mother that the children were distressed let alone that the parents could be able to co-operate to deal with the situation.
I intend to order that provided that the father satisfactorily completes the drug tests he spends unsupervised time with the children during the day, because it will ensure that the father has a chance to maintain a relationship with the children, it will be for a limited period which will help them get used to spending unsupervised time with him without overburdening them and it is an outcome supported by the mother.
However I still have concerns and I cannot see further than this at the moment which means that there is a real risk of future court proceedings if the father feels that time is going well but he and the mother cannot agree on any extension of the time, because notwithstanding court orders parties are always at liberty to discuss and agree on changes to the orders and mediation can assist them to reach an agreement.
There is a real risk in this case that this may all get too hard either for the children or the father or both. I mentioned much earlier in the judgment that the father has an adult daughter Ms J from whom he is estranged. During the trial the mother’s counsel tendered documents which showed that there had been a couple of incidents at the home of this child’s mother which resulted in the police being called and an ADVO taken out against the father and no arrangements were ever made for this child to spend defined time with the father.
The father is at a cross-road with his time with X and Y. If there are further incidents then his relationship with them may go the same way as his relationship with Ms J. If however he is focussed and responsible and does not disrespect the mother or cross boundaries the future may be different but it is all in the father’s hands.

I certify that the two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 20 December 2017

[2017] FCCA 3199

20 December 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies

Standing