Bahnsen & Stengel
[2022] FedCFamC1F 870
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bahnsen & Stengel [2022] FedCFamC1F 870
File number(s): BRC 11360 of 2018 Judgment of: BAUMANN J Date of judgment: 9 November 2022 Catchwords: FAMILY LAW – PARENTING – Assessment of risk – Final orders made for the children to spend increasing unsupervised time with the father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286 Division: Division 1 First Instance Number of paragraphs: 66 Date of hearing: 1 and 4 November 2022 Place: Brisbane Counsel for the Applicant: Mr Baston Solicitor for the Applicant: Rhonda Sheehy & Associates Solicitor for the Respondent: Rosen Lawyers Counsel for the Independent Children’s Lawyer: Ms Bertone Solicitor for the Independent Children’s Lawyer: Wallace Perkins Family Law ORDERS
BRC 11360 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BAHNSEN
Applicant
AND: MS STENGEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
9 November 2022
THE COURT ORDERS:
1.That all previous parenting Orders be discharged.
2.That the mother shall have sole parental responsibility for major long-term issues in relation to the children, X born … 2014 (“X”) and Y born … 2016 (“Y”) (“the children”)
3.That in relation to any long-term decision the mother is required to make, the mother shall, save for an emergency:
(a)communicate with the father in writing with regard to any such proposed decision and provide the father with all necessary information;
(b)seek to obtain the views of the father within fourteen (14) days of such communication; and
(c)advise the father of the decision in writing seven (7) days thereafter.
4.That notwithstanding the provisions of Orders 2 and 3 hereof:
(a)the mother shall be responsible for the day-to-day care, welfare and development of the children at all times when the children are in her care; and
(b)the father shall be responsible for the day-to-day care, welfare and development of the children at all times when the children are in his care.
Living arrangements
5.That the children live with the mother.
6.That provided the father provides an updated Carbohydrate-deficient Transferrin (“CDT”) test evidencing the absence of alcohol use (a “clear test”), the children spend time with the father as agreed, and failing agreement, as follows:
(a)From 10.00am to 2.00pm on Saturday 12 November 2022, Saturday 26 November 2022, Saturday 3 December 2022 and Saturday 17 December 2022;
(b)From 10.00am to 4.00pm on Saturday 24 December 2022 (Christmas Eve), Saturday 31 December 2022, Saturday 14 January 2023 and Saturday 28 January 2023;
(c)From 10.00am to 4.00pm Saturday 11 February, 25 February, 11 March and 25 March 2023 and 10.00am to 4.00pm Sunday 12 February, 26 February, 12 March and 26 March 2023;
(d)From 9.00 am Easter Sunday 9 April 2023 until 5.00pm Easter Monday 10 April 2023;
(e)From 3.00pm Friday or after school until 4.00pm Saturday on 21 and 22 April 2023, 5 and 6 May 2023, 19 and 20 May 2023, 2 and 3 June 2023, 16 and 17 June 2023, 30 June and 1 July 2023; and
(f)Thereafter during the school term, from 3.00pm Friday or after school until 9.00am or before school Monday each alternate weekend with such time to extend to 4.00pm should Monday be a public holiday.
Changeover
7.That save for where changeovers occur at the children’s school in accordance with these Orders, and unless otherwise agreed in writing, changeovers shall occur at the B Town Public Library.
School holidays
8.That commencing the term three (3) school holidays (September/October) in 2023, the following school holiday provisions shall apply:
(a)That otherwise where stated or agreed, the school terms provisions as set out in Order 6 hereof shall be suspended during school holiday periods;
(b)During the March/April, June/July and September/October holidays in an equal time arrangement, with the mother to have the first half and the father the second half in even numbered years and the father to spend time with the children for the first half and the mother the second half in odd numbered years;
(c)for the purpose of Order 8(b) and 8(c) hereof, the school holidays shall be deemed to commence at the conclusion of the last day of the school term and conclude at 9.00am on the first day the children attend school for the new term and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights then the parent with whom the child is to spend the first half of such periods shall retain the additional night;
(d)during the December/January school holidays 2023, the children spend time with the mother and father in a week about arrangement with such time to occur from 9.00am Friday to 9.00am the following Friday, and shall commence with the parent whose care they were not in on the last week of the school term;
(e)That during the school holiday time, the father shall be available to care for the children and secure leave from his employment. in the event the father is not able to secure leave from his employment then the children shall spend time with the father:
(i)from 3.00pm Friday until 9.00am the following Monday for the first and last weekends of the school holiday periods in March/April, June/July and September/October school holidays; and
(ii)from 3.00pm Friday until 9.00am the following Monday on the first, third and fifth weekend of the December/January school holidays.
9.That after the conclusion of the school holiday period, the fortnightly arrangements shall recommence with the parent whose care the children were not in on the last weekend of the school holiday period.
Special occasions
10.That notwithstanding the terms of the previous Orders, the children shall spend time with the parents during special events as follows:
(a)For Christmas:
(i)In 2022, the children shall spend time with the mother from 5.00pm Christmas Eve until 9.00am on Boxing Day and with the father from 9.00am until 2.00pm on Boxing Day; and
(ii)From 2023 onwards at Christmas, in even numbered years the children spend time with the mother from 9.00am Christmas Eve until 2.00pm Christmas Day and with the father from 2.00pm Christmas Day until 5.00pm on Boxing Day. In odd numbered years the children spend time with the father from 9.00am Christmas Eve until 3.00pm Christmas Day and with the mother from 3.00pm Christmas Day until 5.00pm on Boxing Day.
(b)For Father’s Day, the children shall spend time with the father from 9.00am on Father’s Day until before school or 8.30am Monday if not already in his care;
(c)For Mother’s Day the children shall spend time with the mother from 9.00am on Mother’s Day until before school or 8.30am Monday if not already in her care;
(d)For the children’s birthday:
(i)If a non-school day the children shall spend time with the parent they are not spending time from 12.00pm to 4.00pm; and
(ii)If a school day the children shall spend time with the parent they are not spending time with, from after school or 3.00pm until 6.00pm.
CDT testing
11.That the mother be at liberty to call for the father to undertake one (1) further CDT test and/or blood screening (in addition to the CDT test in Order 6) for the presence of alcohol use, with the following to apply:
(a)Such test to only occur at least fourteen (14) days before the scheduled commencement of the first school holiday time with the father under Order 8 hereof at the end of term three (3), 2023;
(b)Such test is to be undertaken within seventy two (72) hours of the written request by the mother;
(c)The results of such test be immediately forwarded to the mother upon receipt; and
(d)The costing of any such testing shall be shared equally.
General provisions
12.That the mother provide the father with a brief written update, via the Our Family Wizard parenting application, advising him of any issues arising for the children that may assist the father to care for the children and will do so:
(a)on a fortnightly basis for a six (6) month period;
(b)thereafter on a monthly basis; and
(c)at any other time that an issue arises about which the mother considers it important to inform the father.
13.That for the purposes of Order 12 hereof, the father is not to respond to the mother’s update, but the father may, from time to time, provide the mother with his own update in writing via the parenting application in respect of any issues he experiences when the children are in his care.
14.That the mother and father be at liberty to attend all school functions to which parents are invited including, but not limited to, sports days, carnivals, concerts, plays, fetes, parent/teacher meetings, training sessions, games and other like-activities. For the purpose of this Order, the parents shall notify each other parent of their intention to attend forty eight (48) hours prior and shall otherwise not approach the other parent save where agreed.
15.That each parent shall:
(a)inform the other of any changes to their residential address and/or home telephone number and/or mobile number and/or email address within forty eight (48) hours of any such change;
(b)notify the other parent as soon as practicable, and within two (2) hours, if a child requires urgent medical attention, is admitted to hospital or otherwise suffers any significant health issue or illness whilst the children are in their care; and
(c)keep the other parent informed of the names and addresses of any and all medical practitioners or other allied health professionals who are involved in treating or caring for the children.
16.That the parents shall communicate with each other solely via “Our Family Wizard” parenting application other than in the case of an emergency where they shall otherwise communicate by telephone.
17.That in the event either of the children is prescribed medication for any medical issue, each parent shall ensure that the child takes the medication as prescribed.
18.That each parent shall authorise, and this Order irrevocably authorises, the children’s school or other educational facilities and entities with whom the children are enrolled in extra-curricular activities to provide to each of the parents any reports, notices, copies of school photos, letters, notices of excursions and invitations to attend parent/teacher interviews or other activities, information or other material regarding the children which the parents may reasonably request, including in relation to extra-curricular, with any costs associated with a request pursuant to this Order, to be paid by the requesting parent.
Restraints
19.That neither parent criticise or denigrate the other parent or the other parent’s family or partner to or in the presence or hearing of either of the children.
20.That the parents use their best endeavours to ensure that no third party criticises or denigrates the other parent or the other parent’s family or partner to, or in the presence or hearing of either of the children.
21.That neither parent discuss any issues in dispute between the parents with the children, or in the presence of the children, or allow the children to be in the presence of third persons who discuss these Orders or any issues in dispute between the parents.
Courses and therapy
22.That the mother and father, shall continue to engage in counselling and therapy from their current treating psychologist and/or other allied mental health provider and shall advise the other parent within forty eight (48) hours:
(a)of any change to their treating psychologist or other allied mental health provider; or
(b)in the event that parent ceases to engage in counselling and therapy.
23.That within fourteen (14) days of the date of this Order, each parent provide to their treating psychologist and/or other allied mental health provider a copy of the single expert reports prepared by Dr C and Ms D.
24.That within fourteen (14) days of the date of this Order, the mother and father shall engage with the children’s psychologist and/or psychiatrist and/or other allied health professional to provide ongoing support for the children.
25.That for the purposes of Order 24, pursuant to s 121 of the Family Law Act1975 (Cth) the parties be at liberty to provide to any treating professional described in Order 24 a copy of the single expert reports prepared by Dr C and Ms D, and a copy of these Orders.
Overseas travel
26.That pursuant to s 11(1)(a) of the Australian Passports Act 2005 (Cth), the children are permitted to have or be issued with an Australian travel document.
27.That pursuant to s 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) and this Order, the children are permitted to travel outside the Commonwealth of Australia using an Australian travel document.
28.That upon issue, the mother will retain the children’s passports.
29.That the children be at liberty to holiday outside of the Commonwealth of Australia whilst in the care of the mother and/or father as per the terms of these Orders for the purpose of an overseas holiday provided that:
(a)the parents exchange consent in writing;
(b)the travel occurs only in the time that the travelling parent will otherwise be spending with the children pursuant to these Orders or as agreed between the parents;
(c)the travelling parent gives six (6) weeks written notice to the other parent of their intention to travel overseas with the children;
(d)the overseas travel is to a Hague Convention country only;
(e)the travelling parent does not take the children to a country where the Australian travel advice on smarttraveller.gov.au (or any other government website that replaces smarttraveller.gov.au) is ‘Level 4 - Do not travel’ or ‘Level 3 - Reconsider your need to travel’ (or any similar levels of travel warning if smarttraveller.gov.au is replaced); and
(f)at least four (4) weeks prior to departure, the travelling parent provides the other parent the following:
(i)a general itinerary setting out the travel arrangements for the parent and the children which must include details of the intended destination/s, accommodation, departure and return dates; and
(ii)telephone numbers on which the children may be contacted during the period the child will be overseas.
Provision of information
30.That pursuant to s 121 of the Family Law Act1975 (Cth), the parents shall jointly execute a notification to the children’s school informing them of Orders 5, 6, 14 and 18 made by the Court on 9 November 2022.
31.That the Independent Children’s Lawyer be discharged thirty (30) days from the date of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bahnsen & Stengel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
Introduction
The parents of X (now aged eight years) and Y (now aged six years) separated finally in March 2018 – less than a few months after the father, Mr Bahnsen, was involved in a serious car accident – an accident which tragically caused the death of another road user.
The consequence of the accident shaped, until the final hearing conducted before me on 1 November 2022, the parenting arrangements for the children, although then and as is the agreed position at the conclusion of the hearing, the children will live primarily with their mother, Ms Stengel.
At the conclusion of the evidence, the Independent Children’s Lawyer (“ICL”) was given some time to formulate a proposal – as it transpires shaped by the exchange between the Bench and the Bar table at the conclusion of evidence.
When final oral submissions were delivered on 4 November 2022 by the mother’s solicitor advocate Mr Rosen; the father’s Counsel Mr Baston, and Counsel for the ICL Ms Bertone, the orders that were ultimately in dispute had narrowed – meaning these Reasons are not as lengthy as may have otherwise been the case.
Principles
In all cases involving parenting orders, the children’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
The primary issue was how the children’s relationship with their father can be nurtured considering their unique personalities and taking into account the mother concerns as to the father’s past excessive use of alcohol.
Contextual chronology
Statements of fact that follow should be constituted as findings of fact.
The mother is aged forty two years and father is aged thirty eight years. When the parents’ relationship began in late 2007, the mother had the substantial care of two sons from an earlier relationship, V and W (then aged approximately eight years and five years respectively).
X was born in 2014 and Y was born in 2016.
I am satisfied that the tensions in the parental relationship were becoming obvious after the birth of Y. The father was unhappy at work and the continued tensions at home and at work caused him to more frequently drink to excess, which of course exacerbated the parties’ relationship and meant the father was not always at least emotionally available.
In late 2017 the father drove his car whilst intoxicated. It was a serious error of judgment – impaired by excessive alcohol use – and tragically whilst driving he collided with another road user, causing their death. He was charged with dangerous driving causing death whilst intoxicated. His blood alcohol level was .114 – in the middle alcohol limit (not over the high level alcohol limit).
The father says, and I accept, he has not consumed alcohol since the accident five years ago. The combination of the accident and the separation in March 2018 led to the father being assessed by the E Hospital Mental Health Unit as suffering depression and anxiety and where the father was reporting “suicidal ideation”. The discharge summary dated March 2018 identified his “principle diagnosis” as “situational crisis in context of relationship breakdown” and “Post-Traumatic Stress Disorder” whilst “alcohol use disorder” was described as “Previous Medical History”. On the father’s evidence at the time of admission, he was not consuming alcohol at all.
In May 2018, the father was taken to E Hospital and reported he had “taken approx 40 ‘cold/flu tablets’, 24 nurofen and 1 x unknown sleeping tablet sometime since approx 16:30”; had “sent text message to [his] sisters and ex partner stating that he wants to die”. The primary diagnosis was an “overdose” and his past medical history was described on admission as “Anxiety, Depression”. It is clear from the notes of E Hospital that the father’s pending incarceration was a significant factor troubling him.
When he was discharged in June 2018, it was reported that the father “had improved sustained mood, future-focused and denied any suicidal thoughts”. He was encouraged “to continue with private psychiatrist and psychologist”. He engaged with F Psychology service.
Between separation and him pleading guilty in late 2018, the father’s time with his sons was irregular and interrupted.
When the father was sentenced, on his guilty plea, to imprisonment (with an obligation to serve nearly 2 years), time with the children ceased initially with four prison visits facilitated. He was released from prison in mid-2020 on parole. A copy of the unsigned Parole Order is Exhibit 3. The conditions attaching to the Parole Order, which remains in force until 19 March 2024, relevantly included:
(v)You must abstain from the consumption of alcohol …
(w)You must not enter upon or remain upon any licensed hotels or clubs for the duration of the order …
There is no evidence to suggest that the father has in any manner failed to comply with all the conditions of his parole. In fact, he did consult a private Psychiatrist Dr G, after his release. Earlier, before his incarceration Dr G opined in a report dated 13 November 2017 that the father’s history of alcohol abuse “is substantial” and he had been prescribed medication “to cope with the withdrawal symptoms that developed after he stopped drinking”.
A further report to the father’s General Practitioner by Dr G dated 26 October 2020 (post release from prison) identified the “most pertinent factor” in his symptoms of depression and anxiety is the father’s view that “the mother of the two children who are aged 6 and 4, has taken into her own mind that she should prevent [Mr Bahnsen] from having any further relationship with his own children”. The father reports to Dr G that he “is working towards regaining normal function he sees therapists, he works with community groups, he is taking the medications prescribed for him…”
The fact that the father was distressed by the lack of time with his children is to be seen in the context of his instigation of Court proceedings (whilst in prison) on 24 July 2019. The effect of Orders made in the Federal Circuit Court of Australia (as it then was) were initially not to define any orders for the children to spend time with the father – but to permit the children to maintain a relationship with the father’s sisters – the paternal aunts, Ms P and Ms Q.
However, after the father’s release from prison, and with the benefit of a Child Inclusive Conference report of 10 September 2020, on 7 October 2020 Judge Cassidy ordered the children to spend two hours supervised time a fortnight with the father. A family report was also ordered. On 29 September 2021, the time was ordered to increase from 2 October 2021 to a total of six hours per four week period – being two hours on a Monday and four hours on a Saturday. This regime of supervised time was being maintained until the date of hearing, although the father had applied to increase time and remove supervision conditions on an interim basis at least on one earlier occasion.
The Court has been assisted, as no doubt have the parents, by two independent assessments, being:
(a)On 5 May 2021 experienced social worker Ms D interviewed and observed the parents and the children, and published a report dated 17 June 2021. The report was not formally updated for the hearing, however the ICL did provide to Ms D some trial material, including Dr C’s report, before she was the subject of cross-examination; and
(b)On 11 and 13 October 2021, Consultant Psychiatrist Dr C assessed both parents and provided a report dated 2 February 2022. Dr C was not required for cross-examination.
On 26 July 2022, a Division 2 Judge listed the Applications for final hearing for one day on 31 October 2022, however as no Division 2 Judge was available to hear the matter on that day, the proceedings were transferred to Division 1, and I heard the matter on 1 November 2022.
Competing proposals
At the commencement of the hearing, the father’s proposal, set out in his case outline filed 20 October 2022 (prepared by solicitors retained by the father shortly before the hearing), contended essentially that:
(a)the parents have equal shared parental responsibility and that the children live with the mother;
(b)beginning immediately, the children spend each alternate Saturday (9.00am to 5.00pm) with the father for three months; then 9.00am Saturday to 9.00am Sunday each alternate weekend for three months; then 9.00am Saturday to 5.00pm Sunday each alternate weekend for three months before reaching the stage of 5.00pm Friday to 5.00pm Sunday each alternate weekend;
(c)school holidays were to commence from the September/October school holidays 2023. Special occasion time was proposed; and
(d)the time prescribed was to be all unsupervised, with no obligation on the father to undertake any further CDT testing.
The mother’s proposal in her case outline filed 17 October 2022 sought an order for sole parental responsibility, with the children to live with the mother and spend supervised time as currently occurring until the father’s parole ended in March 2024. The proposed order contained at clause 6, an order which the Court indicated at the start of proceedings it would be unable or reluctant to make. Sensibly, Mr Rosen for the mother took further instructions, after which a draft order (tendered as Exhibit 2) was proposed – essentially providing for unsupervised time to begin (after a “clean CDT test”) and proposed to increase as follows:
(a)Four hours for four months; then
(b)Six hours for a further four months; then
(c)Eight hours for a further four months.
After twelve months, and with a further “clean CDT test”, overnight time for one night a fortnight would begin and after four months it would be increased to two nights a fortnight before, after further four months, it would result in the children spending time each alternate weekend from after school Friday to before school Monday or Tuesday (if Monday was a public holiday). The mother’s proposal for any school holiday time was unclear.
Although the ICL’s initial proposal contained in the case outline filed 25 October 2022 contended for orders that the children live with the mother, and that the mother have sole parental responsibility (with an obligation to consult the father), the ICL indicated that she would particularise the time the children should spend with the father “after evidence from the report writer under cross-examination in terms of the proposition to unsupervised time (or the retention of supervised time as per initial recommendations) with reference to the steps that the father has undertaken to address his alcohol use and mental health issues”.
As earlier indicated, the ICL formulated a minute of order (which is Appendix One to these Reasons) from which a number of orders were consented to by the parents.
As a result, after dealing with two discrete issues next, the Court will make findings on the evidence before dealing with the remaining issues that require determination.
I do, however, wish to record that both parents, no doubt with the benefit of advice from their lawyers, showed a capacity to compromise from their earlier articulated positions. The Court did express a view that, on the evidence, the father’s progression to unsupervised overnight time was too fast, whilst the mother’s progression was too slow. The Court, not being bound by the proposals, identified a timetable more likely to be in the children’s best interests and the ICL broadly adopted that timetable – with which both parents now basically agree.
The children
These two delightful, yet different, boys have been diagnosed with some challenges which has the capacity to reflect in their behaviour and raise issues about effective strategies for their care and management, in that:
(a)X has been diagnosed with Autism Spectrum Disorder, and his assessment dated 16 March 2021, by Occupational Therapist Ms H was tended by the ICL. It is recorded as a summary that:
“Throughout this assessment, [X] presented willingness to engage in the assessment but demonstrated difficulties that are social, and communication based. [X] was observed to require time to process information verbalised to him. These difficulties may cause problems with interactions in everyday life and translate to other environments where he may struggle with social constructs, developing friendships, and regulating his emotions and displaying appropriate behaviours. The ADOS-2 assessment supports this and is indicative of Autism disorders, with a high level of autism related symptoms.”
As a result of this diagnosis, and I infer with the benefit of some NDIS funding, X has maintained a therapeutic relationship with Psychologist Ms J and it is anticipated that such therapy will continue. The father has had some interaction with Ms J and accepts X’s diagnosis, and will continue in the future to consult Ms J.
(b)Y has been diagnosed, during an assessment undertaken by Occupational Therapist Ms K on 22 April 2021 (report dated 30 April 2021), as having difficulties that “are social emotional, communicative, and sensory-based…[t]hese difficulties are impacting enough to cause him to have engagement difficulties in his everyday life.”
Although it was reported that the ADOS assessment “is highly indicative of Autism Spectrum related behaviours when characterised by behavioural and social interaction difficulties. It is important to consider other factors when determining diagnosis.”
Ultimately as I understand the mother’s evidence, Y was diagnosed with Attention Deficit Hyperactivity Disorder but does not have the same level of personal therapy provided to X.
The mother’s evidence is that the diagnoses for both children were confirmed by a Paediatrician Dr M, which has shaped the education support offered at their school and other forms of therapy (for example speech pathology; hearing assessments and the like).
Mental health of the parents
Dr C assessed both parents as set out in the chronology above.
The mother
The mother informed Dr C that she has been diagnosed with Autism a couple of years ago. At the time of her assessment she was taking some prescribed psychotropic medication “which is indicated in the management of mental disorders marked by anxiety and depression.” However, Dr C opined that as the mother has not developed a serious mental illness to date in her life and has functioned at work in various roles, her prognosis is good.
The father
The submissions of Counsel for the ICL relied heavily on the history of the father’s previous alcohol use and the opinions of Dr C, to initially support the recommendation of the family report writer at paragraph 112 that if the father “is not already engaged in counselling with a specifical [sic] focus on the triggers to alcohol abuse and on relapse prevention.” He should do so. The ICL’s contentions about risks associated with the father’s previous excessive use of alcohol (adopted broadly by the mother), were used to support the ICL’s final proposal that the father provide an updated CDT test before unsupervised time commences, and further allowing the mother to request the father to undertake a CDT test and/or blood screening:
(a)once in every 12 month period whilst the father does not have a driver licence; and
(b)two more times within 12 months of the father obtaining his driver licence (see proposed order 14).
Although the father provided evidence from his current treating Psychologist Mr O, which confirm the father’s continued therapy and enabled the Psychologist to opine the father “has shown significant progress in his mental health since the beginning of therapy in 2020”, Mr O acknowledged that the focus of his treatment was not directed to alcohol abuse or relapse prevention.
Dr C’s report refers to his concerns at the time in the context of the father’s historical alcohol use as follows:
(a)At page 12 line 18 to line 45, Dr C opined that the syndrome of repetitive ingestion of large amounts of alcohol over some years leads to “[t]he label to summarise these issues is a Substance Use Disorder for Alcohol”;
(b)Whilst Dr C reported there is “no evidence or intoxication at this time”, there is an “impact of recurrent alcohol intoxication on mental state functions” with the possible adverse effect on parenting described at page 15 line 45 of Dr C’s report;
(c)A treatment plan “for the permanent cessation of alcohol ingestion” was recommended as prudent. Further, Dr C said that he identified two negative prognostic points being:
(i)the father was not able to articulate the details of the conditions of his parole; and
(ii)the father has chosen to alter his medication regime without direct medical assessment and treatment advice from his medical specialist,
He said this “means the Substance Use Disorder for Alcohol is at an increased chance of relapsing” (page 17 line 41).
It could never be confidently predicted that a person who had a history of excessive alcohol use (coupled with anxiety, depression and PTSD which arose from the fatal accident) could never “relapse”. However, all the evidence before the Court (including Dr C’s opinion) persuades me that the risk of relapse is minimal because:
(a)the father has not ingested alcohol now over five years and the terms of parole (which the ICL asserts contributes to the father’s continued abstinence) continues until March 2024;
(b)the father had undertaken courses in prison relating to his previous alcohol use;
(c)without in any way minimising the error of impaired judgement exercised by the father in 2017, there is no evidence of any previous driving under the influence offence; clinical history associated with excessive alcohol use and on the one occasion he was tested after the accident, his reading was in the mid-range; and
(d)when he seeks to obtain his driving licence again (having been disqualified for five years from 2018), he will be the subject of continual driving laws relating to driving whilst under the influence of alcohol (like all drivers) – but in his case, with his traffic history now, likely to incur more significant penalties for an offence; and
(e)The father shows genuine remorse for his conduct and, as the prison system is designed to deliver, I assess he has a clear understanding of the conduct and extreme loss suffered by the victim and their family, such that some rehabilitation around his future alcohol use has already occurred. The father has expressed his awareness that the accident details are discoverable by Internet search and that he will carry his guilt for his life. His sensitivity to how his conduct was explained to his sons and how they may judge his behaviour in the future is understandable.
Primary considerations
The parties now both acknowledge that the boys will benefit from a meaningful relationship with both parents.
I rely upon my earlier findings about the parents’ mental health history, but find at present a more obvious and continuing risk is the capacity for these parents (both of whom characterise their current parental relationship as “toxic”) to contribute to an eruption in parental conflict. These two sensitive boys are likely to become distressed if they are exposed to negative expressions by one parent about the other – or worse, seeing these parents engage in conflict. My assessment is that both parents are aware of this negative outcome, but are at times more focused on the other parent’s attitude and behaviour then, at times, their own.
Additional considerations
The boys’ last independent record of their wishes by Ms D was at a time when they had only experienced limited time over about six months after the father had been released from prison. However, I am satisfied at this stage the children support continuing to live with their mother, but move from the restricted forms of interaction offered in a contact centre (which has now been happening for nearly two years), to an increasing level of unsupervised time where they can engage more fully with their father.
The children’s relationship with the mother is their primary form of support. She has been devoted to their care and management of their mental health during a period since separation where the children’s time with the father has been limited. However, the report from R Contact Service (Exhibit 1) shows that observed visits appear to be a positive and enjoyable experience for the children and the father; the relationships continue to develop positively; the father engaged more naturally during “free play”, and there was a general improvement in the quality of interactions between the father and the children.
I accept the boys have a good relationship with their older brothers V and W.
The father pays child support as assessed. Because of the father’s unavailability at times, the mother has made, since separation, most decisions relating to the children. The father does not assert she has made poor decisions – just that he felt he was not asked or involved in decision-making.
I assess the further opportunities for the children to spend time with their father will have a likely positive effect on the children. There are no practical effects on spending time.
Ms D makes no real criticism of the mother’s parental style or attitude and neither do I. She has managed the development of these two boys (both with some behavioural challenges) with sensitivity, insight, and basically as a single parent. The father offers less credit to the mother, in my view, than the evidence suggests he should.
The father’s parental attitude is identified by Ms D at paragraph 110 of her report as displaying “a strong self focus and he tended to report incidents only in terms of their impact on him, minimising his role and behaviour, or listing various mitigating circumstances, and he lacked insight into how such incidents impacted on others, such as the boys or [Ms Stengel]”. I agree with this assessment.
Whilst I accept an unrepresented person preparing their own trial affidavit (as this father did before representation) often can allow their frustrations to more easily emerge in their affidavit – the use of terms such as the mother “alienating” the children were so wide of the mark as to be concerning. If the father fails to develop some greater self-awareness and a capacity to separate his needs from those of the children, his relationship (not the mother’s) with the children could be affected. The assessment of the father in Exhibit 1, and my view of the text exchanges arising around Father’s Day this year, supports this finding.
Provided the father continues to develop a better understanding of his children’s behavioural challenges (which continued involvement with Ms J might assist to develop), then he has a similar capacity to the mother to meet the children’s physical and emotional needs. In this regard, where the parents both support the ICL’s proposal for the mother to provide regular reports to the father, if he is able to give the mother’s observations and guidance uncritical acceptance, he will quickly develop more insight into the children’s needs and how to manage them.
There are no family violence issues that arise in this case.
Although I accept that this father may retain a view, not sensibly pressed now, that an equal time arrangement is in the best interests of these children, this unsatisfied desire could fuel further unnecessary litigation. I am satisfied however that the order I now pronounce is the order that is less likely to lead to further proceedings.
Parental responsibility
Although I accept the father has the capability to offer some thoughts worthy of consideration about major long-term issues, I am persuaded by the submissions of the ICL (adopted by the mother), that at this point in time an order for the mother to have sole parental responsibility for major long-term issues is in the best interests of the children.
I could not confidently predict when the communication between the parents will improve, but my assessment is that the tone and demanding tenor of the father’s communication needs to be much less assertive and more conciliatory before the mother’s current “feelings” of being overwhelmed by the father’s approach, could be expected to subside. She should continue to undertake therapy. She is a resilient and capable parent, and the quality of her decisions to date are not easily criticised.
She will be required to consult the father – with a slightly longer consultation period then the ICL proposed – so as to allow the father sufficient time, in the rare event he may feel compelled to do so, to bring an application to the Court if he believes a major decision to be made by the mother will be clearly contrary to the children’s best interests.
If the Court decided to make a sole parental responsibility order, the father sought restraints against the mother “without the prior written consent of the father” making decisions in respect of the children’s surnames and schooling. The ICL proposed a restraint against the mother changing the children’s surnames. There is no evidentiary foundation to support any of these restraints. The older children of the mother still carry their biological father’s surname. I am satisfied with more time spent between the children and the father, and the requirement of the mother to consult, it is not likely the father will not be aware of a pending major long-term issue to be decided.
At the father’s proposed new orders 4 and 5, he seeks that rather than the usual “live with/spend time with order” when care is shared, the father seeks the arrangements be expressed differently and does not agree with an order the children live with the mother. Frankly, the submission to change orders which have been in place with this style since 2019 was unconvincing – and says something about the father’s attitude, earlier referred to in these Reasons, in my view. I intend to order the children live with the mother.
I do however adopt the father’s proposed order 5, which sets out the dates for visits which I think these parents will regard as helpful – save I include the words proposed by the ICL at the beginning of the father’s proposed order 5 of “provided the father provides an updated CDT test evidencing the absence of alcohol use (a “clear test”)” then the children will spend time with the father. Although Mr Baston for the father argued that there was no need to incorporate an order for the father to undertake further CDT testing – in cross-examination the father agreed to do so before unsupervised time began on 12 November 2022, and the Court was informed on 4 November 2022 that he has in fact taken the test and anticipates a result before 12 November 2022. In respect of future testing (noting the father’s proposed order included a proposed notation that the father “agrees to provide CDT test on two further dates – one in April 2023 and September 2023), the issue seems to be the father being ordered to do such testing. In my view, the mother would draw some comfort from receiving one further test, and in my view it should occur at least 14 days before the commencement of the end of term three 2023 school holidays. I will so order.
I acknowledge that the ICL contends for further testing – until the period of parole ends or when the father obtains his driver licence and then after a driver licence is obtained by the father. For reasons already set out, I have assessed further testing beyond the orders I now make, unnecessary. I also have formed the view that the boys are likely to be hyper-vigilant to any observed behaviour of the father having resumed drinking, and will tell their mother. The father knows the possible significant consequences if he drinks during the parole period and, in terms of the orders I make, after the parole period ends.
In the end, the ICL did not press for the self executing order (proposed orders 15 and 16) or order 9 of her draft and neither did the mother, sensibly. The mother’s proposal for an injunction restraining either parent from changing the children’s school enrolment details including address, phone numbers and emergency contact, seems to be a request out of the blue. Mr Rosen articulated the mother’s concern that somehow, absent such a restraint, the father would alter the details the school had (at the time of enrolment) to gain some sort of control. This exchange led to the Court’s suggestion (after hearing from the ICL) that the parents provide the school with a jointly signed notification of the orders relevant to the school administration. The school has no powers of enforcement and either parent seeking to engage the school in such a way is likely to cause embarrassment to the children – where their school should be a sanctuary from parental conflict. I make the order set out to cover this situation.
In my view, school holiday time (one week) with the father should commence in the end of term three school term (generally September each year) in accordance with the proposed order of the ICL at 11.
I am aware the children attend a faith based school, but have no evidence how they are required, at their school, to attend church services over Easter (if at all). In the future, Easter will generally fall within a school holiday period so it will fall where it falls, having adopted the father’s proposed dates for time at Easter 2023 at order 5(e) which required an amendment to the ICL’s order.
Although Christmas Day in 2022 (being a Sunday) had originally been requested by the father, he shall spend time with the children on Christmas Eve (being a Saturday), 24 December 2022 instead.
For the reasons given, I find the orders which are set out at the commencement of these Reasons are in the children’s best interest.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 9 November 2022
APPENDIX ONE
1.That the Mother shall have sole parental responsibility for major long-term issues in relation to the children, X born … 2014 and Y born … 2016 (“the children”).
2.In relation to any long-term decision the Mother is required to make, the Mother shall, save for an emergency, undertake the following:
1.1Communicate with the Father with regard to any such proposed decision and provide the Father with all necessary information;
1.2Seek to obtain to the views of the Father within 7 days of such communication;
1.3 Advise the Father of the decision in writing 7 days thereafter.
3.That notwithstanding Order 1, the Mother be restrained from changing the children’s surname without the express written consent of the Father or order of the Court.
4. Notwithstanding the provisions of the above orders, that:
4.1the Mother shall be responsible for the day-to-day care, welfare and development of the children at all times when the children are living with or spending time with her; and
4.2the Father shall be responsible for the day-to-day care, welfare and development of the children at all times when the children are living with or spending time with him.
Time and Communication
5.That the children live with the Mother.
6.That pending the Father providing an updated CDT test evidencing the absence of alcohol use (a “clear test”) the children spend time and communicate with the Father each alternate weekend supervised at R Contact Service for a period up to 4 hours on a Saturday, unless otherwise agreed.
7.That upon the Father providing a clear test as per Order 6, the children shall spend unsupervised time with the Father as agreed, and failing agreement, as follows:
a. From 10.00am to 2.00pm each alternate Saturday for 4 occasions; and then
b. From 10.00am to 4.00pm each alternate Saturday for 4 occasions; and then
c.From 10.00am to 4pm Saturday AND 10.00am to 4.00pm Sunday on the same weekend each alternate weekend for 4 occasions.
8.Then provided that the time has taken place in accordance with Order 7c), the children’s time with the Father shall increase to include overnight time (anticipated to commence in the April 2023 school holidays):
a.From 3.00pm Friday or after school until 4.00pm Saturday on each alternate weekend for 6 occasions; and then
b.Thereafter during the school term, from 3.00pm Friday or after school until 9.00am or before school Monday each alternate weekend with such time to extend to 4.00pm should Monday be a public holiday.
9.That in the event that the Father is unable to care for the children for a period of more than 4 hours, the children shall return to the Mother’s care.
Changeovers
10.That save for where changeovers are at R Contact Service or at the children’s school in accordance with these orders, changeovers shall occur at the B Town Public Library, unless otherwise agreed in writing.
School Holidays
11.That commencing the Term 3 school holidays (September/October) in 2023, the following school holiday provisions shall apply:-
(a)That otherwise where stated or agreed, the school terms provisions as set out in Order 8 shall be suspended during school holiday periods;
(b)During the March/April, June/July and September/October holidays in an equal time arrangement with the Mother to have the first half and the Father the second half in even numbered years and the Father to spend time with the children for the first half and the Mother the second half in odd numbered years;
(c)for the purpose of order 12b) and 12c), the school holidays shall be deemed to commence at the conclusion of the last day of the school term and conclude at 9:00am on the first day the children attend school for the new term and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights then the parent with whom the child is to spend the first half of such periods shall retain the additional night;
(d)during the December/January school holidays, the children spend time with the Mother and Father in a week about arrangement with such time to occur from 9.00am Friday to 9.00am the following Friday, and shall commence with the parent whose care they were not in on the last week of the school term.
(e)That during the school holiday time, the Father shall be available to care for the children and secure leave from his employment. In the event the Father is not able to secure leave from his employment then the children shall spend time with the Father:
a)from 3.00pm Friday until 9.00am the following Monday for the first and last weekends of the school holiday periods in March/April, June/July and September/October school holidays; and
b)from 3.00pm Friday until 9.00am the following Monday on the 1st, 3rd and 5th weekend of the December/January school holidays.
12.That after the conclusion of the school holiday period, the fortnightly arrangements shall recommence with the parent whose care the children were not in on the last weekend of the school holiday period.
Special Occasions
13.Notwithstanding the terms of the previous order, the children shall spend time with the Mother and Father during special events as follows.
For Christmas:
(a)That in 2022, the children shall spend time with the Mother from 5.00pm Christmas Eve until 9.00am Boxing Day and with the Father From 9.00 am until 2.00pm Boxing Day.
(b)That from 2023 onwards at Christmas, in even-numbered years the children spend time with the Mother from 9:00am Christmas Eve until 2.00pm Christmas Day and with the Father from 2.00pm Christmas Day until 5:00pm on Boxing Day. That in odd-numbered years the children spend time with the Father from 9:00am Christmas Eve until 3:00pm Christmas Day and with the Mother from 3:00pm Christmas Day until 5:00pm on Boxing Day.
For Easter:
(c)In 2023 the children spend time with the Mother from 9.00am Good Friday until 9.00am Easter Sunday and with the Father from 9.00 am until 5:00pm Easter Monday.
(d)That in even numbered years commencing in 2024 the children spend time with the Father from 9.00am Good Friday until 9.00am Easter Sunday and with the Mother from 9.00 am Easter Sunday until 5:00pm Easter Monday.
(e)That commencing in 2025 in odd years children spend time with the Father from 9.00 am Easter Sunday until 5:00pm Easter Monday and with the Mother from 9.00am Good Friday until 9.00am Easter Sunday.
For Father’s Day:
(f)The children shall spend time with the Father from 9.00am on Father’s Day until before school Monday or 8.30am Monday
.
For Mother’s Day:
(g)The child shall spend time with the Mother from 9.00am on Mother’s Day until before school Monday or 8.30am Monday.
For the children’s birthday:
(a)If a non-school day the children shall spend time with the parent they are not spending time from 10.00am to 2.00pm;
(b)If a school day the children shall spend time with the parent they are not spending time with, from after school or 3:00pm until 6:00pm.
CDT Testing
14.That the Mother be at liberty to call for the Father to undertake a CDT test and/or blood screening for the presence of alcohol use, with the following to apply:
a.Such test to only occur on one occasion in each 12 month period whilst the Father does not have a drivers’ licence;
b.In the event the Father obtains a drivers’ licence the Father will immediately advise the Mother and she be at liberty to call for two CDT tests within a 12 month period; and
c. Such test to be undertaken within 72 hours of the request;
d. The results of such test be immediately forwarded to the Mother upon receipt;
e. The costing of any such testing shall be shared equally.
15.That in the event the Father’s CDT test results returns a reading of any alcohol use, the children’s unsupervised time as per these orders shall be immediately suspended and the children shall otherwise spend supervised time with the Father for up to 4 hours at R Contact Service pending the following:-
a.The Father returning a further CDT no less than 3 months later evidencing a nil reading for alcohol use; and
b.The Father providing a report from his Psychologist confirming his re-engagement for counselling and support for his alcohol use.
16.That following the Father confirming those steps set out in Order 15, the unsupervised time as set out in these orders shall otherwise recommence.
General Provisions
17.That the Mother will provide the Father with a brief written update, via the Our Family Wizard parenting application, advising him of any issues arising for the children that may assist the Father to care for the children and will do so;
a) On a fortnightly basis for a 6 month period; and
b) Thereafter on a monthly basis; and
c)At any other time that an issue arises about which the Mother considers it important to inform the Father.
18.That for the purposes of Order 17, the Father is not to respond to the Mother’s update, but the Father may, from time to time, politely and respectfully provide the Mother with his own update in writing via the parenting application in respect of any issues he experiences when the children are in his care.
19.That the Mother and Father be at liberty to attend all School functions to which parents are invited including, but not limited to, Sports Days, Carnivals, Concerts, Plays, Fetes, Parent/Teacher Meetings, training sessions, games and the like. For the purpose of this order, both parties shall notify the other parent of their intention to attend 48 hours prior and shall otherwise not approach the other parent save where agreed.
20. That each parent shall:
20.1inform the other of any changes to their residential address and/or home telephone number and/or mobile number and/or email address within 48 hours of any such change;
20.2notify the other parent as soon as practicable, and within two (2) hours, if a child requires urgent medical attention, is admitted to hospital or otherwise suffers any significant health issue or illness whilst the children are in their care;
20.3keep the other parent informed of the names and addresses of any and all medical practitioners or other allied health professionals who are involved in treating or caring for the children.
21.The Mother and Father shall communicate with each other solely via “Our Family Wizard” parenting application other than in the case of an emergency where they shall otherwise communicate by phone.
22.That in the event either of the children is prescribed medication for any medical issue each parent shall ensure that the child takes the medication as prescribed.
23.That each parent shall authorise and this order irrevocably authorises the children’s school or other educational facilities and entities with whom the children are enrolled in extra-curricular activities to provide to each of the parents any reports, notices, copies of school photos, letters, notices of excursions and invitations to attend parent/teacher interviews or other activities, information or other material regarding the children which the parents may reasonably request, including in relation to extra-curricular with any costs associated with a request pursuant to this order, to be paid by the requesting parent.
Restraints
24.Neither parent will criticise or denigrate the other parent or the other parent’s family or partner to, or in front of, or within the hearing of the child.
25.The parents shall use their best endeavours to ensure that no third party criticises or denigrates the other parent or the other parent’s family or partner to, or in front of, or within the hearing of the child or any of them.
26.Neither parent shall discuss any issues in dispute between the parents with the children, or in the presence of the children, or allow the children to be in the presence of third persons who discuss these orders or any issues in dispute between the parties.
Courses and Therapy
27.That the Mother and Father, shall continue to engage in counselling and therapy from their current treating Psychologist and/or other allied mental health provider and shall advise the other parent within 48 hours’:
a.of any change to their treating psychologist or other allied mental health provider;
b. in the event that parent ceases to engage in counselling and therapy.
28.Within 14 days, each parent shall provide a copy of the Single Expert Reports of Dr C and Ms D to their treating psychologist and/or other allied mental health provider.
29.That within 14 days of the date of this Order, the Mother and Father, shall engage with the children’s Psychologist and/or Psychiatrist and/or other allied health professional to provide ongoing support for the children with leave granted for the Single Expert Reports of Dr C and Ms D as prepared in the family law proceedings in addition to a copy of these orders to be provided.
Overseas travel
30.Pursuant to section 11(1)(a) of the Australian Passports Act 2005, the children are permitted to have or be issued with an Australian travel document.
31.Pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 and this order, the child is permitted to travel outside the Commonwealth of Australia using an Australian travel document.
32.Upon issue, the Mother will retain the children’s passport.
33.That the children be at liberty to holiday outside of the Commonwealth of Australia whilst in the care of the Mother and/or Father as per the terms of these orders (save for where time is supervised) for the purpose of an overseas holiday provided that:
33.1 The parents exchange consent in writing;
33.2the travel occurs only in the time that the travelling parent will otherwise be spending with the children pursuant to these orders or as agreed between the parents;
33.3the travelling parent gives 6 weeks written notice to the other parent of their intention to travel overseas with the children;
33.4the overseas travel is to a Hague Convention country only;
33.5the travelling parent does not take the child to a country where the Australian travel advice on smarttraveller.gov.au (or any other government website that replaces smarttraveller.gov.au) is ‘Level 4 - Do not travel’ or ‘Level 3 - Reconsider your need to travel’ (or any similar levels of travel warning if smarttraveller.gov.au is replaced); and
33.6at least 4 weeks prior to departure, the travelling parent provides the other parent the following:
(i)a general itinerary setting out the travel arrangements for the parent and the children which must include details of the intended destination/s, accommodation, departure and return dates
(ii)telephone numbers on which the children may be contacted during the period the child will be overseas.
Provision of Information
34.Pursuant to section 121 of the Family Law Act 1975 (as amended) leave is granted to the parties and their legal representatives to provide a copy of the orders to:
34.1any school, education institution or care provider attended / consulted by the children;
34.2any treating medical practitioner, hospital or health care professional attended / consulted by the children.
35. That the Independent Children's Lawyer be discharged within thirty (30) days.
0
0
0