Casely & Casely - [2022] FedCFamC2F 474

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Casely & Casely [2022] FedCFamC2F 474

File number(s): PAC 2682 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 13 April 2022

Catchwords: FAMILY LAW – parenting - Orders made - best interests of children

Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA(3), 65D, 65DA(2), 102NA(2)

Cases cited: Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 246

Date of last submission/s: 21 March 2022

Date of hearing: 17, 18 and 21 March 2022

Place: Parramatta

Counsel for the Applicant: Mr Hill

Solicitor for the Applicant: Mark Whelan Lawyer

Counsel for the Respondent: The Respondent appeared in person

Counsel for the Independent Children’s Lawyer: Ms Hayward

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Suburb R Family Law
ORDERS

PAC 2682 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CASELY

Applicant

AND:
MR CASELY

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

13 APRIL 2022

THE COURT ORDERS THAT:
Parental responsibility
1.That the Mother have sole parental responsibility for X born in 2016 and Y in 2018 (“the children”).
2.Before making any non-urgent major long term decision in relation to the children the Mother will:
(a)Advise the Father by email of the proposed decision.
(b)Provide the Father with 7 days to make any comment or proposal by email in relation to the decision.
(c)After the expiration of the 7 days, consider the comments or proposals made by the Father (if any).
(d)Advise the Father of the outcome of her decision at least 4 weeks prior to implementing it.

Father’s engagement with mental health professional and CDT testing
3.That within 14 days of the date of these Orders, the Father shall do all things necessary to obtain a mental health plan from his General Practitioner for the purpose of engaging with a treating professional recommended by the Independent Children’s Lawyer in consultation with the Regulation 7 Family Consultant.
4.That the Father’s treatment referred to in these Orders be specifically to address the impact of family violence on children, and the management of his mental health generally.
5.That the Father’s treating professional referred to in these Orders be authorised to receive copies of:
(a)The Family Report dated 11 January 2021,
(b)Such items from the Tender Bundles that relate to the Father’s mental health,

and the Independent Children’s lawyer is given leave to provide the same to the Father’s treating professional.
6.That the Father remain engaged with the treating professional under these Orders for as long as such engagement is deemed necessary by the treating professional.
7.That the Father undergo chain of custody CDT testing with a medical practitioner or accredited pathology centre, for the detection of alcohol use within 48 hours of a written request issued by the ICL with such tests to occur no more frequently than once in each two months until the ICL is discharged, and the Father to provide to the ICL and the Mother a copy of the results of testing within 48 hours of receipt.

Living arrangements
8.That the children live with the Mother.
9.That the children spend time with the Father as follows:
(a)For a total of four occasions, every second Saturday from 9:30 am to 1:30 pm (or such other times as can be accommodated by the Contact Service referred to in these Orders).
(b)After four occasions, every second Saturday from 9:30 am to 5:00 pm (or such other times as can be accommodated by the Contact Service referred to in these Orders).
(c)Commencing 12 months from the date of these Orders, every alternate weekend from Friday after school (or 3:30 pm) to the following Saturday at 4:00 pm.
(d)Commencing 3 months prior to the week that Y commences school, every alternate weekend from Friday after school (or 3:30 pm) to the following Sunday at 4:00 pm.
(e)On Father’s Day from 9:30 am to 4:00 pm.
(f)On Easter Sunday from 2023 onwards 9:30 to 2:00 pm.
(g)On Christmas Day from 2022 onwards 9:30 am to 2:00 pm.
(h)On each of the children’s birthdays from 9:30 am to 2:00 pm if not a school day and from after school (or 3:30 pm to 5:30 pm if a school day).

10.That the Father’s time as provided in Order 9 is conditional upon his compliance with his obligations in Orders 3 – 7.
11.That the Mother is permitted to suspend the children’s time with the Father on no more than one occasion per calendar year for a period of up to 14 consecutive days for the purpose of a holiday with the children and for this purpose the Mother will give the Father 28 days’ notice by email of the proposed suspension.

Changeover
12.For the first eight (8) occasions of the children’s time with the Father following the making of these Orders changeover will be facilitated by the B Contact Service (“the Contact Service”).
13.For the purpose of changeover at the Contact Service, each parent will:
(a)Re-engage with the Contact Service within 7 days of the making of these Orders and provide a copy of the Orders and make a request to recommence the changeover service.
(b)Attend to any additional requirements, further intake assessment, and complete any forms or declarations required by the Contact Service
(c)Comply with all reasonable rules, requests and directions of the Contact Service, including any COVID Safety rules.

14.The cost of facilitated changeover at the Centre will be met equally by the parents.
15.For the purpose of the changeover the Mother will bring the children to the Contact Service at the beginning of their time with the Father and the Father will collect the children from the Contact Service at such time as is advised by the Service. The Father will then return the children to the Contact Service at the end of their time with him or as directed by the Contact Service and the Mother will collect the children from the Contact Service at such times as are advised by the Service.
16.The Mother and father will otherwise follow the directions of the Contact Service at all times.
17.During the time that changeover is at the Contact Service, the children’s time with the Father is suspended on any day that the Contact Service is closed, or otherwise unable to facilitate the changeover.
18.That the time in these Orders is to commence at such time as the Contact Service is able to re-commence facilitating changeover.
19.After eight (8) occasions, changeover will occur at or outside the Suburb C McDonalds (or such other changeover location as is agreed in writing by the parties) and changeover is to be facilitated by:
(a)The Mother or a representative nominated by her delivering the children to the Father at the commencement of time, and
(b)The Father delivering the children to the Mother or a representative nominated by her at the conclusion of time.

20.Upon the commencement of alternate weekend time in order 9 (c), changeover will be effected by the Father collecting the children from their school at the conclusion of school on Friday and returning them to the Mother or a representative nominated by her at the Suburb C McDonalds (or such other changeover location as is agreed in writing by the parties) at the conclusion of time.
21.The Father will provide the Mother 48 hours’ notice by email in the event he is unable to attend to spend time with the children in accordance with these Orders, and if it is not reasonably practical to provide 48 hours’ notice because of illness, misadventure or emergency the Father will provide notice to the Mother as soon as it is reasonably practical.

Communication with the children
22.The children will communicate with the Father by FaceTime or other telephone video call each Tuesday at 6:00 pm and for this purpose:
(a)The video communication with the children will be implemented by the Mother (or her representative) facilitating the call to the Father and
(b)The Father will provide the Mother with an appropriate mobile telephone number which is only to be used by the Mother in accordance with these Orders.

Communication between parents and with schools and medical providers
23.That the parties communicate with each other by email only for the purpose of exchanging information relevant to the welfare of the children and for the purpose of implementing these Orders.
24.For the purpose of communication, the parties will keep each other informed of their respective email addresses and any changes to their email addresses.
25.The Mother is to provide all necessary consents, and these Orders act as evidence of her consent, to enable the Father to communicate with any school the children attend and obtain from the school any documents such as reports, awards, photographs (at his own expense) and any other documents usually provided to parents.
26.The Mother is to keep the Father advised about any medical information relevant to the children including any illnesses, medication or referrals to specialists and contact details for the children’s General Practitioner and any specialists.
27.The Father is authorised by these Orders to communicate with the children’s General Practitioner or any specialist consulted by the children.
28.The Mother and the Father must each inform the other as soon as practicable (and within 2 hours) of any serious injury or illness of the children while the children are in their care.

Relocation and Restraints
29.That the Mother is permitted to relocate with the children to a location no further than 90 km from Suburb R Train Station subject to the Mother having purchased a residential property for herself and the children to live in at her proposed relocation address.
30.That in the event that the Mother relocates the children from their current residence (and / or future residences) the Mother will inform the Father at least 4 weeks prior to the proposed move of:
(a)The suburb she intends to relocate to.
(b)The name and address of any school or day care centre the children will attend.

31.The Father is to advise the Mother of his residential address and keep the Mother advised of any changes to his residential address within 7 days of the change.
32.That each party is restrained from attending the residence of the other party without that party’s express permission in writing.
33.That each party is restrained from consuming alcohol while the children are in their sole care.
34.That each party is restrained from being affected by alcohol such that their blood alcohol reading exceeds the usual alcohol limits for driving a car in NSW while the children are in their sole care.
35.That each party is restrained from denigrating or speaking unkindly about the other parent, their respective partners, family or friends in the presence or hearing of either or both of the children and will use their best endeavours to ensure that no one else does so and / or that the children are removed from a situation where denigration is occurring.
36.That each party is restrained from using social media or any other public means to denigrate the other, or to comment on or discuss these family law proceedings.
37.That the Independent Children’s lawyer is to remain appointed for a period of four (4) months from the date of these Orders and is thereafter discharged.
38.Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
39.Pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet, attached hereto and these particulars are included in 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 a pseudonym Casely & Casely has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This hearing relates to the children X born in 2016 and Y born in 2018 (“the children”).
On 13 May 2020, the Court made interim parenting Orders, inter alia, that the children live the Mother; that the children spend time with the Father on a graduating basis leading to, after a period of three months, the children spending time with him each Saturday from 9:30 AM to 5PM, and each Thursday from 1 PM to 4:30 PM; on a without admissions basis the Father’s time with the children to be supervised by the paternal grandmother, or if impracticable, an alternative supervisor agreed in writing by the parties and the ICL. The Father was ordered to submit to hair strand drug testing on one occasion, and the Mother was ordered to undergo chain of custody CDT testing for the detection of alcohol use within 48 hours of a written request issued by the ICL, with such tests to occur no more frequently than once in each two months.
On 24 May 2021, Senior Registrar Crawford made interim parenting Orders, inter alia, suspending certain time-with Orders (relating to the children spending time with the Father) from the Court’s Orders of 13 May 2020 and ordered that the children spend unsupervised time with the Father at specific times provided that he remains living with the paternal grandmother. It was ordered that the children’s time with the Father occur on a graduated basis and that after three months they spend time with him each Saturday from 9:30 AM to 4 PM. Changeover was ordered to be facilitated by a Contact Service. The Father was ordered to remain engaged with his GP and treating psychiatrist and follow and comply with their directions. It was ordered that the balance of the Orders of the Court of 13 May 2020 remain in force including drug and alcohol testing in restraints, and the Mother complying with the reasonable recommendations and directions of her treating medical practitioners.
PROPOSALS
The Mother seeks Orders, inter alia, that:
Parental Responsibility
(1)That the Mother have sole parental responsibility for X born in 2016 and Y in 2018 (“the children”) provided that the Mother keeps the Father informed of any major long term decisions she makes in relation to the children.
(2)Before making any non-urgent major long-term decision in relation to the children the Mother will:
(a)Advise the Father by email of the proposed decision;
(b)Provide the Father with 7 days to make any comment or proposal by email in relation to the decision.
(c)After the expiration of the 7 days, consider the comments or proposals made by the Father (if any).
(d)Advise the Father of the outcome of her decision at least 4 weeks prior to implanting it.
Father’s Engagement with professional support services
(3)That within 14 days of the date of these Orders the Father do all things necessary to obtain a mental health plan from his General Practitioner for the purpose of engaging with a treating professional recommended by the Independent Children’s Lawyer in consultation with the Regulation 7 Family Consultant.
(4)That within 14 days of the date of these Orders the Father do all things necessary to enrol and in the next available course commencement date for the course “Parenting After Separation” through S Families.
(5)That the Father’s treatment referred to in these Orders be specifically to address the impact of family violence on children, and the management of his mental health generally.
(6)That the Father’s treater referred to in these Orders be authorised to receive copies of:
(a)The Family Report dated 11 January 2021
(b)Such items from the Tender Bundles that relate to the Father’s mental health and the Independent Children’s Lawyer is given leave to provide the same to the Father’s treater.
(7)That the Father remains engaged with the treater under these Orders for as long as such engagement is deemed necessary by the treater.
(8)That the Father undergo chain of custody CDT testing with a medical practitioner or accredited pathology centre, for the detection of alcohol use within 48 hours of a written request issued by the ICL with such tests to occur no more frequently than once in each two months until the ICL is discharged, and the Father to provide to the ICL and the Mother a copy of the results of testing within 48 hours of receipt.
Living Arrangements
(9)That the children live with the Mother.
(10)That the children spend time with the Father as follows:
(a)For a total of four occasions, every second Saturday from 9:30am to 1:30pm (or such other times as can be accommodated by the Contact Service referred to in these Orders).
(b)After four occasions, every second Saturday from 9:30am to 5:30pm (or such other times as can be accommodated by the Contact Service referred to in these Orders).
(c)Commencing the week that Y commences school, every alternate weekend from Friday after school (or 3:30pm) to the following Sunday at 4:00pm.
(d)On Father’s Day from 9:30am to 4:00pm.
(e)On Easter Sunday from 2023 onwards 9:30am to 2:00pm.
(f)On Christmas Day from 2022 onwards 9:30am to 2:00pm.
(g)On each of the children’s birthdays from 9:30am to 2:00pm if not a school day and from after school (or 3:30pm to 5:30pm if a school day).
(11)That the Father’s time is to commence upon his completion of the “Parenting After Separation” course with N Counsellors as provided in Order 4 and provided he continues to comply with his obligations in Orders 3 – 8.
(12)That the Mother is permitted to suspend the children’s time with the Father on no more than one occasion per calendar year for a period of up to 14 consecutive days for the purpose of a holiday with the children and for this purpose the Mother will give the Father 28 days’ notice by email of the proposed suspension.
Changeover
(13)For the purpose of changeover until Order 10(c) is effected, changeover will be facilitated by the B Contact Service (“the Contact Service”).
(14)For the purpose of changeover at the Contact Service, each parent will
(a)Re-engage with the contact service within 7 days of the making of these Orders and provide a copy of the Orders and make a request to recommence the changeover service.
(b)Attend to any additional requirements, further intake assessment, and complete any forms or declarations required by the Contact Service.
(c)Comply with all reasonable rules, requests and directions of the Contact Service including any COVID Safety rules.
(15)The costs of facilitated changeover at the Centre will be met equally by the parents.
(16)For the purpose of the changeover the Mother will bring the children to the contact Service at the beginning of their time with the Father and the Father will collect the children from the Contact Service at such time as is advised by the Service. The Father will then return the children to the Contact Service at the end of their time with him or as directed by the Contact Service and the Mother will collect the children from the Contact Service at such times as are advised by the Service.
(17)The Mother and father will otherwise follow the directions of the contact service at all times.
(18)During the time that changeover is at the contact service, the children’s time with the Father is suspended on any day that the Contact Service is closed, or otherwise unable to facilitate the changeover.
(19)That the time in these Orders is to commence at such time as the Contact Service is able to re-commence facilitating changeover.
(20)Upon commencement of alternate weekend time in order 10(c), changeover will be effected by the Father collecting the children from their school at the conclusion of school on Friday and returning them to the Mother or a representative nominated by her at the Suburb C McDonalds (or such other changeover location as is agreed in writing by the parties) at the conclusion of time.
(21)The Father will provide the Mother 48 hours’ notice by email in the event he is unable to attend to spend time with the children in accordance with these Orders, and if it is not reasonably practical to provide 48 hours’ notice because of illness, misadventure or emergency the Father will provide notice to the Mother as soon as it is reasonably practical.
Communication with the children
(22)The children will communicate with the Father by FaceTime or other telephone video call each Tuesday at 6:00pm and for this purpose:
(a)The video communication with the children will be implemented by the Mother (or her representative) facilitating the call to the Father, and
(b)The Father will provide the Mother with an appropriate mobile telephone number which is only to be used by the Mother in accordance with these Orders. Communication between parents and with schools and medical providers
(23)That the parties communicate with each other by email only for the purpose of exchanging information relevant to the welfare of the children and for the purpose of implanting these Orders.
(24)For the purpose of communication, the parties will keep each other informed of their respective email addresses and any changes to their email addresses.
(25)That the parties may also agree in writing via email to communicate immediate or urgent information regarding the children and for the purpose of implementing these Orders.
(26)The Mother is to provide all necessary consents, and these Orders act as evidence of her consent, to enable the Father to communicate with any school the children attend and obtain from the school any documents such as reports, awards, photographs (at his own expense) and any other documents usually provided to parents.
(27)The Mother is to keep the Father advised about any medical information relevant to the children including any illnesses, medication or referrals to specialists and contact details for the children’s General Practitioner and any specialists.
(28)The Father is authorised by these Orders to communicate with the children’s General Practitioner, or any specialist consulted by the children.
(29)The Mother and the Father must each inform the other as soon as practicable (and within 2 hours) of any serious injury or illness of the children while the children are in their care.
Relocation and Restraints
(30)That the Mother is permitted to relocate with the children to a location no further than 90km from Suburb R Train Station.
(31)That in the event that the Mother relocates the children from their current residence (and/or future residences) the Mother will inform the Father at least 4 weeks prior to the proposed move of:
(a)The suburb she intends to relocate to.
(b)The name and address of any school or day care centre the children will attend.
(32)The Father is to advise the Mother of his residential address and keep the Mother advised of any changes to his residential address within 7 days of the change.
(33)That each party is retrained from attending the residence of the other party without that party’s express permission in writing.
(34)That each party is retrained from consuming alcohol while the children are in their sole care.
(35)That each party is retrained from denigrating and speaking unkindly about the other parent, their respective partners, family or friends in the presence or hearing of either or both of the children and will use their best endeavours to ensure that no one else does so and/or that the children are removed from a situation where denigration is occurring.
(36)That each party is retrained from using social media or any other public means to denigrate the other, or to comment on or discuss these family law proceedings.
(37)That the Independent Children’s Lawyer is to remain appointed for a period of four (4) months from the date of these Orders and is thereafter discharged.
(38)Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
(39)Pursuant to s.65DA(2) of the Family Law Act, the Particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.

The Father, when questioned by the Court, confirmed that he sought Orders, inter alia, as set out in his proposed Order 4 in his Response filed 9 November 2021, and which provided:
4. For the Father to have the children every second weekend with an overnight stay from Saturday 9 AM to Sunday 3:30 PM for a period of time, progressing to overnight stays of two nights from Friday after daycare (or 5 PM) to Sunday 4 PM.
However, earlier in the Father’s oral evidence, he stated that he sought “50/50 custody” and clarified that that meant from Monday to Friday.
Accordingly, for abundant caution, the Court will proceed on the basis the Father is seeking an equal time shared care arrangement in relation to the children.
The ICL seeks Orders, inter alia, that:
Parental responsibility
(1)That the Mother have sole parental responsibility for X born in 2016 and Y in 2018 (“the children”) provided that the Mother keeps the Father informed of any major long term decisions she makes in relation to the children.
(2)Before making any non-urgent major long term decision in relation to the children the Mother will:
(a)Advise the Father by email of the proposed decision
(b)Provide the Father with 7 days to make any comment or proposal by email in relation to the decision.
(c)After the expiration of the 7 days, consider the comments or proposals made by the Father (if any).
(d)Advise the Father of the outcome of her decision at least 4 weeks prior to implementing it.
Father’s engagement with mental health professional
(3)That within 14 days of the date of these Orders, the Father do all things necessary to obtain a mental health plan from his General Practitioner for the purpose of engaging with a treating professional recommended by the Independent Children’s Lawyer in consultation with the Regulation 7 Family Consultant.
(4)That the Father’s treatment referred to in these Orders be specifically to address the impact of family violence on children, and the management of his mental health generally.
(5)That the Father’s treater referred to in these Orders be authorised to receive copies of:
(a)The Family Report dated 11 January 2021
(b)Such items from the Tender Bundles that relate to the Father’s mental health
(c)and the Independent Children’s lawyer is given leave to provide the same to the Father’s treater.
(6)That the Father remain engaged with the treater under these Orders for as long as such engagement is deemed necessary by the treater.
Living arrangements
(7)That the children live with the Mother.
(8)That the children spend time with the Father as follows:
(a)For a total of four occasions, every second Saturday from 9:30 am to 1:30 pm (or such other times as can be accommodated by the Contact Service referred to in these Orders).
(b)After four occasions, every second Saturday from 9:30 to 5:00 pm or such other times as can be accommodated by the Contact Service referred to in these Orders).
(c)Commencing the week that Y commences school, every alternate weekend from Friday after school (or 3:30 pm) to the following Sunday at 4:00 pm.
(d)On Father’s Day from 9:30 am to 4:00 pm.
(e)On Easter Sunday from 2023 onwards 9:30 to 2:00 pm.
(f)On Christmas Day from 2022 onwards 9:30 am to 2:00 pm.
(g)On each of the children’s birthdays from 9:30 am to 2:00 pm if not a school day and from after school (or 3:30 pm to 5:30 pm if a school day).
(9)That the Mother is permitted to suspend the children’s time with the Father on no more than one occasion per calendar year for a period of up to 14 consecutive days for the purpose of a holiday with the children and for this purpose the Mother will give the Father 28 days notice by email of the proposed suspension.
Changeover
(10)For the first eight (8) occasions of the children’s time with the Father following the making of these Orders changeover will be facilitated by the B Contact Service (“the Contact Service”).
(11)For the purpose of changeover at the Contact Service, each parent will
(a)Re-engage with the Contact Service within 7 days of the making of these Orders and provide a copy of the Orders and make a request to recommence the changeover service.
(b)Attend to any additional requirements, further intake assessment, and complete any forms or declarations required by the Contact Service
(c)Comply with all reasonable rules, requests and directions of the Contact Service, including any COVID Safety rules.
(12)The cost of facilitated changeover at the Centre will be met equally by the parents.
(13)For the purpose of the changeover the Mother will bring the children to the Contact Service at the beginning of their time with the Father and the Father will collect the children from the Contact Service at such time as is advised by the Service. The Father will then return the children to the Contact Service at the end of their time with him or as directed by the Contact Service and the Mother will collect the children from the Contact Service at such times as are advised by the Service.
(14)The Mother and father will otherwise follow the directions of the Contact Service at all times.
(15)During the time that changeover is at the Contact Service, the children’s time with the Father is suspended on any day that the Contact Service is closed, or otherwise unable to facilitate the changeover.
(16)That the time in these Orders is to commence at such time as the Contact Service is able to re-commence facilitating changeover.
(17)After eight (8) occasions, changeover will occur at or outside the Suburb C McDonalds (or such other changeover location as is agreed in writing by the parties) and changeover is to be facilitated by:
(a)The Mother or a representative nominated by her delivering the children to the Father at the commencement of time, and
(b)The Father delivering the children to the Mother or a representative nominated by her at the conclusion of time.
(18)Upon the commencement of alternate weekend time in order 8 c., changeover will be effected by the Father collecting the children from their school at the conclusion of school on Friday and returning them to the Mother or a representative nominated by her at the Suburb C McDonalds (or such other changeover location as is agreed in writing by the parties) at the conclusion of time.
(19)The Father will provide the Mother 48 hours’ notice by email in the event he is unable to attend to spend time with the children in accordance with these Orders, and if it is not reasonably practical to provide 48 hours’ notice because of illness, misadventure or emergency the Father will provide notice to the Mother as soon as it is reasonably practical.
Communication with the children
(20)The children will communicate with the Father by FaceTime or other telephone video call each Tuesday at 6:00 pm and for this purpose:
(a)The video communication with the children will be implemented by the Mother (or her representative) facilitating the call to the Father and
(b)The Father will provide the Mother with an appropriate mobile telephone number which is only to be used by the Mother in accordance with these Orders.
Communication between parents and with schools and medical providers
(21)That the parties communicate with each other by email only for the purpose of exchanging information relevant to the welfare of the children and for the purpose of implementing these Orders.
(22)For the purpose of communication, the parties will keep each other informed of their respective email addresses and any changes to their email addresses.
(23)That the parties may also agree in writing (email) to use an instant messaging application (for example “WhatsApp” to communicate immediate or urgent information regarding the children and for the purpose of implementing these Orders.
(24)The Mother is to provide all necessary consents, and these Orders act as evidence of her consent, to enable the Father to communicate with any school the children attend and obtain from the school any documents such as reports, awards, photographs (at his own expense) and any other documents usually provided to parents.
(25)The Mother is to keep the Father advised about any medical information relevant to the children including any illnesses, medication or referrals to specialists and contact details for the children’s General Practitioner and any specialists.
(26)The Father is authorised by these Orders to communicate with the children’s General Practitioner or any specialist consulted by the children.
(27)The Mother and the Father must each inform the other as soon as practicable (and within 2 hours) of any serious injury or illness of the children while the children are in their care.
Relocation and Restraints
(28)That the Mother is permitted to relocate with the children to a location no further than 90 km from Suburb R Train Station subject to the Mother having purchased a residential property for herself and the children to live in at her proposed relocation address.
(29)That in the event that the Mother relocates the children from their current residence (and / or future residences) the Mother will inform the Father at least 4 weeks prior to the proposed move of:
(a)The suburb she intends to relocate to.
(b)The name and address of any school or day care centre the children will attend.
(30)The Father is to advise the Mother of his residential address and keep the Mother advised of any changes to his residential address within 7 days of the change.
(31)That each party is restrained from attending the residence of the other party without that party’s express permission in writing.
(32)That each party is restrained from consuming alcohol while the children are in their sole care or .
(33)That each party is restrained from denigrating or speaking unkindly about the other parent, their respective partners, family or friends in the presence or hearing of either or both of the children and will use their best endeavours to ensure that no one else does so and / or that the children are removed from a situation where denigration is occurring.
(34)That each party is restrained from using social media or any other public means to denigrate the other, or to comment on or discuss these family law proceedings.
(35)That the Independent Children’s lawyer is to remain appointed for a period of four (4) months from the date of these Orders and is thereafter discharged.
(36)Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
(37)Pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.
MATERIAL RELIED UPON
The Mother relied upon her:
(a)Amended Initiating Application filed 10 March 2022;
(b)Affidavit filed 10 March 2022;
(c)Affidavit of Ms F filed 12 November 2021;
(d)Case Outline filed 14 March 2022;
(e)Tender bundle of documents;
(f)Family Report dated 11 January 2021;
(g)Child Dispute Conference Memorandum dated 17 December 2019.
The Father relies upon his:
(a)Response filed 9 November 2021;
(b)Affidavits (two) filed 5 November 2021;
(c)Affidavit of Ms H filed 5 November 2021;
(d)Affidavit of paternal grandmother, Ms T, filed 5 November 2021.
The ICL relied upon her Case Outline filed 15 March 2022 and the following documents:
(a)Tender bundle of documents;
(b)Family Report dated 11 January 2021;
(c)Child Dispute Conference Memorandum dated 17 December 2019.
The following documents became Exhibits:
(a)Exhibit A: ICL Tender Bundle with the exception of pages 5-10 and 18-31;
(b)Exhibit B: Mother’s Tender Bundle;
(c)Exhibit C: Family report dated 11 January 2021 and Child Dispute Conference Memorandum dated 17 December 2019;
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence relevant to the Court’s determination will be considered either in this section or whilst addressing the s.60 CC considerations (ie s 60 CC of the Family Law Act 1975 Cth) (see below).
The Court notes that the Father, at the final hearing, did not have legal representation. He was not permitted to cross-examine the Mother by reason of the application of s 102NA(2) of the Family Law Act 1975.
On 12 November 2021 the Court had ordered that, pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975, the requirements of s 102NA(2) are to apply to the cross-examination by the Father of the Mother (the Court had made this Order due to the family violence allegations made in these parenting proceedings). Section 102NA(2) provides that:
(2)Both of the following requirements apply to the cross-examination:
(a)the examining party must not cross-examine the witness party personally;
(b)the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
The Father had had ample opportunity since the Court’s above Order of 12 November 2021 to have secured legal representation under the Commonwealth Cross Examination and Family Violence Scheme. The Mother had obtained legal representation under that Scheme pursuant to the Court’s above Order of 12 November 2021.
The Father’s Affidavits
The Court does not propose to set out the entirety of the father’s two affidavits.
The Father stated that the mother’s neighbour has facilitated changeover on a multiple of occasions during September and October 2021.
Again, the Court has considered the affidavit of the Father’s former partner Ms H and the Affidavit of the paternal grandmother.
The Mother’s Affidavit
The Mother is aged 41 years. The Father is aged 43 years.
The parties commenced their relationship in 2013.
They separated on about 27 March 2018.
Post separation the children live with the mother in the former matrimonial home until it was sold in April 2020. The mother and children currently live in a rental property in Suburb U. The mother has been the children’s primary carer since separation.
Since 23 October 2021 the father would see the children every Saturday in the changeover would occur at the house of the paternal grandmother. At these changeovers the mother would have little contact with the father.
The father informed the mother that he had booked removalists for early February 2022. The mother was aware that the Orders allowing for the father’s unsupervised time was under the condition that he continued to resign at the home of the paternal grandmother. The father did not provide the mother with further details as to where he was moving or who he was moving in with. The father did not inform the mother of his new address and then the mother instructed her solicitors that she would be withholding the father’s time with the children.
The Court accepts the mother’s Affidavit evidence where in conflict with the father’s evidence, and subject to her oral evidence and the evidence of the family report writer.
Affidavit of Ms F
This Affidavit was relied upon by the Mother. Ms F is a next door neighbour of the Mother.
Ms F stated in her Affidavit that she has known the Mother for almost 12 months. Ms F has five children of her own.
Ms F offered to assist the Mother with changeovers. She commenced assisting the Mother in this regard on 4 September 2021.
Ms F stated that she attended changeover, on behalf of the Mother, on 22 October 2021.
(The Court interpolates at this point that on 26 August 2021 the Court had ordered, inter alia, that the changeovers would be at the Suburb C McDonald’s and would be affected by the Mother delivering the children to the Father’s nominee at the beginning of the time, and collecting the children from the Father’s nominee at the end of the time).
Ms F stated that the Father turned up at the changeover on 22 October 2021 with no supervisor. She rang the Mother. The Mother advised her to keep the children safe and come home as this was another (alleged) breach of Court Orders on the Father’s part.
Ms F stated that whilst at this changeover the Father proceeded to badmouth the children’s mother to her and in front of the children. The Father had a raised voice and stated, “Ms Casely is an alcoholic”, “Ms Casely got done high range drink-driving on Tuesday”, “Ms Casely was seen out clubbing in the city”, “Ms Casely doesn’t tell me anything”, “My friends follow her social media and tell me things”. Ms F stated that the Father talked a lot about what a bad person the Mother was and he also mentioned suicide and how common it was for men.
Oral evidence of Mother
The Mother gave oral evidence.
The Mother was cross-examined by the ICL’s counsel.
The Mother was asked why she did not propose that the children spend overnight time with the Father, and why it was not in the children’s best interests that that occur. (The Court observes that the Mother’s Amended Initiating Application filed 10 March 2022, inter alia, had sought Orders that the child spend time with the Father every second Saturday during the daytime). She stated that she does not know where the Father now lives. She had learnt from another person, not the Father, that he had moved from the residence of the paternal grandmother in Suburb O. She stated that she does not know anything about the Father’s new accommodation; in particular whether there is sufficient room for the children to stay. She had concerns regarding the Father’s consistency. She stated the children were very attached to her. She referred to the history of domestic violence and stated that there was a lot of unpredictability in the Father.
The Mother stated that she did have safety concerns for the children if spending overnight time with the Father. She stated that there was so much hatred in the Father towards her. She stated that she has been denigrated by the Father and that she was concerned that the Father would denigrate her to the children. She stated that it would be a huge change for the children in spending overnight time with the Father. The Mother stated that the children have not spent overnight time with the Father since separation on 27 March 2018.
Regarding proposed relocation, the Mother stated that she has a plan to get a job and apply for a home mortgage loan that she can service. She stated that she cannot afford to purchase accommodation in Sydney so she is looking to purchase a home on the Region V or around City W. She stated she has friends on the Region V including a work colleague. She stated that she has a brother and sister who live at Suburb Z and Suburb AA respectively. She later stated that she had a best friend who resides at Suburb BB.

The Mother was questioned as to why her proposed order 7.1 was necessary; this proposed Order provided that changeover was to take place through the B Contact Centre for the first six months. The Mother replied that there had previously been changeover at this contact service but not regularly. Changeover had occurred at that contact service once before but after Covid the Mother had effected changeovers at the residences of the paternal grandfather and paternal grandmother. She stated there had been a lot of conflict at changeovers which was not good for the children. She also stated that this conflict had caused her stress and anxiety over the last two years and that her parenting capacity was thereby not as good.
The Mother stated she did not want to do face-to-face changeovers with the Father until the children were older.
The Mother stated that she was currently studying a diploma. She was doing this diploma on a part-time basis. She said she was a professional by training. She stated that she did not have study commitments on weekends.
The Mother stated that the Father was paying formal child support, which began about 1.5 years ago. Initially the child support was paid in the sum of $36 per month. It was now $500 per month, having started about 3 to 4 months ago.
The Mother agreed with the contents of a COPS police report dated 24 September 2018 relating to her being barely conscious and significantly affected by alcohol when the children were in her care. (The child Y had been born in 2018). She stated that the children came back into her care the next day after she had requested the Father to return the children to her.
The Mother was questioned as to a COPS police report dated 24 April 2019. In relation to the contents of this report the Mother did not deny that she was drunk that day. She did not dispute that she had driven the car whilst affected by alcohol and she did not dispute her manner of driving the car as stated in the report. She maintained that she was less affected by alcohol when driving the car as suggested by the police in the report because the police had arrived at her residence one hour after she arrived home. The Mother confirmed her sentences in relation to her driving offences committed in 2019; namely the Local Court made Orders under section 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 providing for the Mother to attend upon her GP, psychiatrist, and abide by relevant treatment recommendations of the doctors.
The Mother stated that she last saw Dr CC, psychiatrist, about six months after 17 September 2019 having been prescribed anxiety medication. She started seeing a psychologist after 17 September 2019.
The Mother’s attention was drawn to the report of the above psychiatrist dated 8 October 2019. The report stated that the doctor had last seen the Mother six months previously. The doctor had taken a history from the Mother of the Father’s non-cooperation with the family home being sold including ongoing harassment by him, and threatening behaviour by him. The Mother had told the doctor that that behaviour affected her mood. She had stated that her anxiety had been okay with medication. She had stated that she occasionally uses alcohol, two glasses each time when she does not have the children. The doctor stated the Mother’s mood was okay but stressed by the Father.
The diagnosis was generalised anxiety disorder. The doctor stated the Mother has a history of panic disorder with agoraphobia and a significant family history of depression and anxiety and alcohol dependence. The doctor stated there was currently no alcohol abuse and the Mother was under significant stress due to issues of domestic violence and ongoing property settlement issues.
The doctor referred to the Mother’s past psychiatric history. Under the heading “Past notes”, in relation to the consultation on 30 November 2017, he stated, inter alia: The Mother presented with a history of alcohol abuse. Her alcohol use began at age 18. She has a binge pattern of alcohol use and currently happens once every fortnight. She would drink two bottles of wine until she blacked out. She stated that when she drinks she becomes very disinhibited, abusive and says things out of character. She wanted to address her alcohol issue as she feared that it would cause harm to the young child mentally. She also had a history of anxiety disorder first diagnosed at age 20. Currently the Mother has chronic anxiety, chronic worries about everything from financial to health to relationships. The Mother has seen a psychologist in the past with treatment of anxiety with CBT. No suicide attempt. No hospitalisation.
The doctor referred to the Mother’s developmental history. He referred to the maternal grandfather dying when the Mother was younger. The maternal grandmother had been emotionally and physically abusive. She had an unstable attachment to the maternal grandmother which had caused her problems to resurface when her daughter was born. The Mother was the primary carer for the maternal grandmother who suffers from Alzheimer’s.
The Mother stated that she does not suffer from alcohol dependency but rather she does not have a high tolerance to alcohol. She said her (excessive) alcohol consumption was situational.
The Mother referred to undergoing counselling through Victims Services; this counselling had commenced about nine months ago, one consultation each month, and the Mother envisages continuing this counselling for the next six months. The Mother stated, in relation to her mental health, that when she left the relationship with the Father her mental health improved. In this context she stated she has a support network. She stated that she ingests sertraline medication which her GP prescribes to manage her anxiety and which takes the edge off her stress. She stated her quality of life was better. She stated that the maternal grandmother was now in a nursing home which has lessened the Mother’s stress as a carer. The Mother stated that her break from employment has been good for her. She stated that the child X was doing very well at school.
The Mother told the Court that she doesn’t really drink anymore. She stated she sometimes consumes one or two glasses of alcohol. She stated that she is usually a designated driver in her mother’s group of friends. She stated that she doesn’t need to drink alcohol anymore.
In relation to relocation, the Mother stated that she had not yet ascertained where she could obtain health treatment if she was to relocate. She stated that she would only relocate if she was able to purchase a home (there). She wanted to purchase a home for family stability. She wanted to be able to start working again. She stated that the children had already had to move three times. She wanted to build a nest egg. She referred to already owning a house in Queensland.
The Mother was questioned in relation to the family report. She was referred to paragraph 9 of the family report referring to the Mother proposing, inter alia, that the children live with her, and spend time with the Father every second weekend from Friday to Sunday. The Mother stated that she had made that proposal on the basis of everything going well with the Father for the next two years. The Mother stated she did not agree with a lot of things in the family report; she stated that she felt the family report writer had minimised family violence and that the Mother didn’t have a voice.
The Mother stated that she no longer thought that an equal time parenting arrangement was possible. She stated that perhaps when the children were older and towards the end of primary school it might be possible (X was born in 2016, now aged five years, and Y was born in 2018, now aged three years).
The Mother was questioned again in relation to the children spending overnight time with the Father. The Mother stated that if the parties were to build up their relationship over the next couple of years it might be possible. She stated that she would feel more comfortable if the Father underwent alcohol and drug testing. She stated that she does not know enough (about the Father). She stated that the Father’s ex-girlfriend had called her. She stated that the focus had always been on herself regarding alcohol but there needed to be something in place for the Father. She stated that there was presently some communication with the Father through emails but it was often harassment (by the Father).
In relation to the Mother’s proposed order 11 relating to relocation (see the Mother’s aforesaid Amended Initiating Application), the Mother stated that her preference was for the Father not to know any new residential address, were she to relocate. She said it would be permissible for the Father to know any new schools where the children attended. The Mother referred to having security apparatus at any new residence she resided in. The Mother stated that Town DD would be the furthest that she would go to on the Region V.
The Mother was questioned in relation to the Father’s denials of having perpetrated family violence against her. The Mother stated that the Father lacks insight into what constitutes family violence. She stated that she had not made up allegations of family violence against the Father. She stated that it had been terrifying for her to live through and she would not want anyone else to have lived through what she had endured.
The Mother was questioned in relation to the Father’s allegations that the Mother had deliberately tried to obstruct the children having a relationship with him. The Mother denied that this was the case. To the contrary, she stated that she had waited at changeovers; she had contacted B Contact Service to arrange supervised time for the Father; she had suggested other supervisors; she had transported the children to the Father during Covid; and that she had always honoured the Court’s Orders.
The Mother stated that the children’s last time spent with the Father was in about late January 2022 for a period of 6 ½ hours. She stated that she had effected the children spending time with the Father in late 2021 by taking the children to the residence of the paternal grandmother and where on each occasion the children spent about 6 ½ hours with the Father.
Oral evidence of the Father
The Father was questioned by the Mother’s counsel.
The Father stated he now lives in the Suburb R area, and works as a tradesman.
The Father confirmed that he had stated to the family report writer (paragraph 53) that he would like $65,000 back from the Mother. In this context the Father stated that the Mother has his money. He confirmed that there were Court Orders as to how the parties’ monies were to be distributed. He then stated that his current position was that he has moved on from losing his money and he does not regard the Mother as owing him $65,000.
The Father confirmed separation was in late March 2018.
The Father stated that he believed the first ADVO started after the second incident involving the Mother drinking alcohol. He stated that the ADVO had been in place to stop him going to the Mother’s place to stop her drinking alcohol.
The Father was asked whether he now recognises that the Mother is uncomfortable being in his presence. He denied that the Mother would feel this way. He stated that the parties and the children had previously had lunch alone at a boat ramp. The parties had been emailing fine. The Mother had sent the Father real estate places. The Father stated the parties have been getting on great the last few months. He stated that he had seen the Mother and children for the last occasion on 23 January 2022.
The Father confirmed that there has been communication with the Mother regarding the children.
The Father confirmed an ADVO expired in June 2021.
The Father confirmed that he had made reports to the Department of Family and Community Services regarding the Mother’s alleged alcohol consumption in March 2019.
The Father criticised the Mother’s lack of cleaning of the former matrimonial home at about the time the house was to be sold in August 2019.
The Father was questioned as to a COPS report of 20 March 2019 relating to the Father’s alleged conduct against the Mother that day. The Father denied 95% of the content of the report as being lies. However the Father acknowledged becoming frustrated with the Mother because the Mother did not want to sort out issues relating to selling the house.
The Father was questioned in relation to the psychiatric report of Dr K dated 1 December 2017.
The Father stated that he was diagnosed with ADHD about 12 months prior to that report. He stated that he had started taking medication for the ADHD about 6 to 9 months prior to that report. Dr EE, psychiatrist, had prescribed medication.
The Father stated that he has an ongoing relationship with Dr K and that he sees him for his ADHD.
The Father stated that he lives alone with two dogs.
The Father was questioned in relation to his report to the police on about 28 November 2021 relating to his former partner Ms H’s persistent messaging to the Father regarding her pregnancy to the Father. He confirmed the contents of that report were essentially accurate. He told the Court that Ms H had aborted her pregnancy with the Father.
The Father stated that presently he was not in a relationship with Ms H. However he stated that he sees Ms H once a week or fortnight and that she has stayed one night at his new residence.
The Father confirmed that he had previously raised his voice at the Mother. He stated that he had closed a fridge too hard in the presence of the Mother; in this context he stated that a fridge was not a human being. He stated that he would have been in a mindset from what the Mother had done the previous night.
The Father’s attention was drawn to the Mother’s photos in exhibit -9 to her Affidavit showing damage to plasterboard. It was put to the Father that he had pushed doors into walls so hard that the doorhandles damaged the walls. The Father stated that the damage was not that severe and referred to what the Mother was doing emotionally to him.
The Father was questioned as to paragraph 78 of the Mother’s Affidavit relating to an incident on 18 March 2019. The Father stated that he did not recall being in a rage demanding the Mother’s wedding rings. He stated that he got the wedding ring back anyway having found it in the home.
The Father confirmed that he had contacted FACS over 20 times regarding the Mother’s care of the children. He had called the police to make welfare checks, with the last occasion being in 2021.
The Father confirmed that he had posted comments on Facebook regarding himself not seeing the children. He was asked whether that was appropriate with the Father responding that it was freedom of speech.
The Father stated that until an incident in a pub on the Friday night after 23 January 2022 his relationship with the Mother was fine.
The Father stated that he could communicate with the Mother in the future through emails, text messages or a secure App. He is open to any communication and he has an iPhone.
The Father stated that he does not take any responsibility for not having seen the children in the last 12 months.
The Father was questioned by the ICL.
The Father stated that he opposed the Mother relocating no greater than 90 km from Suburb R train station. He stated that the Mother would have no family and no doctors to support her. He stated that there was a chance of the Mother being by herself and drinking alcohol.
The property he presently rents in Suburb R is subject to a 12 month lease.
The Father disagreed with the Mother’s proposed Order 7.1 (in her aforesaid Amended Initiating Application) regarding an initial six months of changeover at a contact Centre. In this context he stated that the atmosphere of the Contact Centre was not conducive to the welfare of the children. The Father stated that, in relation to the Mother’s proposed order 7.2, he would not be able to provide a nominee to attend changeover; his mother is aged, and his sister has three children. He stated that he did not want to rely on another person to attend changeover on his behalf and referred to that person having their own commitments or incapacities.
He stated that McDonald’s restaurant at Suburb C would be satisfactory for changeover because it has CCTV.
Regarding parental responsibility, the Father stated that he wants to share in decision-making for the children.
The Father confirmed that he sought Orders to spend time with the children in accordance with his proposed Order 4 in his Response filed 9 November 2021.
The Father was questioned in relation to the family report writer’s comments as to the Father’s medical records indicating that the Father presented with Cluster B personality disorder (the family report writer had stated that such disorder was characterised by dramatic, overly emotional or unpredictable thinking or behaviour); he stated that he had never heard of that before. As to paragraph 108 of the family report the Father confirmed that during the first 20 to 30 minutes of the family report interview he was dramatic in presentation.
It was put to the Father that he had made highly derogatory remarks to the Mother. The Father initially responded that if he did so it was by reason of what the Mother had done to him. He then denied doing so. The Father was asked whether he had never made derogatory comments to the Mother with the Father responding, “What is derogatory?” The ICL then put to the Father that he had told the Mother that she could not drive a car. The Father replied that if he did so, there was no malice on his part. He then agreed it was a disrespectful comment.
It was put to the Father that he had called the Mother a conniving evil woman in the Child Dispute Conference on 16 December 2019. He stated that he did not recall (stating this) and he said it was something to do with money. He was asked whether he believed the Mother was conniving and evil. The Father responded that only an evil person would withhold children from a parent. He stated that it was illegal and immoral to withhold children from a parent.
The Father was asked about the phrase “she deserved it” in paragraph 11 of the family consultant’s Child Dispute Conference Memorandum dated 17 December 2019. The Father stated he did not know what it meant.
The Father was referred to paragraph 26 of the above Memorandum where he had stated that the Mother was unfit to be a mother. The Father stated that he still feels the same about the Mother. He stated that the Mother was not unfit to be a mother all the time but he still has those thoughts about her.
The Father confirmed that he had told the family report writer that the children would have a “shit life” in the Mother’s care. He stated that he still believes this, 100%. He stated that the children were safe in the Mother’s care the majority of the time however on certain occasions they were not safe. One occasion was when the Mother was drinking alcohol. The other circumstance was when the Mother meets someone and the Mother drinks alcohol and no one can care for the children.
As to the Mother obtaining a partner, the Father stated that he would not trust the Mother. He stated that the Mother had not been in a relationship with someone before him. He stated that he highly doubted whether he could trust such a person because of the Mother’s drinking of alcohol. The Father stated that he was sure the Mother would not tell him if she was drinking alcohol.
The Father stated that he was not comforted by the Mother’s negative CDT tests. In this context, he stated that the Mother could just stop drinking for seven days (and then do the test). He referred to the Mother’s own oral evidence that she thought it was okay to have a couple of drinks of alcohol. He referred to the Mother’s oral evidence stating that she rarely drinks and was a designated driver; he stated that he does believes that evidence and it was a lie.

The Father’s attention was drawn to page 78 of the Mother’s Affidavit referring to a Facebook post by the Father on 24 February 2022 referring to the Mother as pure evil. The Father was asked whether he had placed the post to which the Father replied, “100%”.
The Father stated that he was very fearful of the Mother’s drinking of alcohol.
The Father’s attention was drawn to his email to the Mother’s solicitors and the ICL dated 17 February 2022 and being at page 47 the Mother’s Affidavit. The Father stated that he 100% maintains his statement in that email, “But honest men don’t even get listened to, except hear the lies and go with that.”
In relation to paragraph 81 of the Mother’s Affidavit, and the incident on 26 October 2018, the Father stated that he had gained entry to the home through either the back door or a window. He stated the Mother had deadlocked the front door.
The Father stated that prior to 23 January 2022, when he last spent time with the children, his last regular time with them was in about late 2021 when he spent at least three months seeing them regularly.
In relation to the Father’s statement to the family consultant on 16 December 2019 that he drank 12 bottles of vodka a night, he said that was a joke. He stated that the family consultant had spoken with the Mother first and that was unfair. He stated that the questions asked of him by the family consultant were unfair to him as a father. He stated that he felt treated unfairly by the entire legal system. He said the system does not favour fathers.
The Father stated that he married the wrong person in the Mother. He stated that their relationship got worse and worse.
The Father was asked whether he believed the Mother provided a loving household to the children. In response he stated that he does not know the state of the Mother’s home.
The Father was asked whether he would comply with an Order that changeover initially occur at a Contact Centre. He responded by saying that he would have to but he would not want to (have changeover at such a venue).
Oral evidence of Ms F
Ms F stated that she had never seen the Mother consume alcohol, albeit stating that she and the Mother were not social (together).
Ms F was cross-examined by the Father.
Ms F stated that she felt uneasy in the Father’s presence on 22 October 2021. She stated that she was talking about chickens to the Father at one point in an effort to calm the Father down.
Ms F stated that she had spoken to the Father while she was sitting in the driver’s seat of her car with the children in the back seat. She stated that the car windows were open and the children could hear the Father speaking to her. She stated the Father was pacing up and down at one point. She observed that the Father was upset. She stated that the Father had raised his voice but not directly at her.
Child Dispute Conference Memorandum dated 17 December 2019
A Child Dispute Conference was held on 16 December 2019 by family consultant Ms FF. She interviewed both parties separately.
The Mother stated to the family consultant that the father’s behaviour was “explosive” and that she was daily and fear for her life.
The Mother acknowledged to the family consultant that one night, when Y was around two weeks old, she drank way too much. She said that the father somehow knew about this, and made a video of her. The mother said that she completely knows that this is not to be done when in charge of children, and that this was a wake-up call for her, in that she started seeing a counsellor, and reinstituted medication for anxiety.
The Father denied to the family report writer any physical violence in the parties relationship.
The Father referred to the Mother as a conniving, evil woman.
The Father expressed his frustration that he has contacted DOCJ 26 times but they have not acted.
The Father stated that he now consults Dr K for ADHD only. The father stated that he also sees a psychologist for depression because of the mother. He said that he has been diagnosed with depression, is homeless due to the parties financial dispute and can’t get up in the morning.
The family consultant stated that the father’s presentation was concerning. He loudly expressed his frustration that he had done nothing wrong, it is not seeing his children, and alternated between speaking loudly and aggressively and crying.
The father expressed the opinion that the process surrounding Court will get him nowhere and that he wants full custody of the children because the mother was unfit to be a mother. He stated that he wants the children to live with him and spend no time with the mother, because the mother was giving him no time. The father was of the opinion that this would be fantastic for the children and did not foresee any problems with this.
The mother stated that presently there was no communication at all between the parties. The father stated that any communication between the parties should be written and occur lawyer to lawyer.
The father stated that he has never put Y to bed and spoke again of having full custody before the children were 10 years of age.
The family consultant stated that the father may be assisted in the re-establishment of his relationship with the children if he is able to optimise his mental health. She stated that whether this would best be achieved by continuation of existing treatment or whether additional treatment may be necessary was beyond the scope of her assessment.
FAMILY REPORT
Ms GG was the family report writer; her family report is dated 11 January 2021. She had interviews and/or made observations on 22 October 2020, 14 and 17 December 2020, 6 and 7 January 2021.
The family report writer stated that when arranging report interviews both parents advised that the Father had not been spending time with the children with each party blaming the other, saying that the other had not attended changeover. Both parents agreed to comply with the Orders and observations were held two months after the children recommenced spending time with the Father.
Under the heading, “Risk Factors Family violence”, the family report writer stated:
11. Ms Casely said that Mr Casely threw items during arguments and slapped her on her arm a couple of times. She said that he grabbed her arms and shook her once and, on another occasion put his hands around her neck to scare her. Ms Casely said that Mr Casely did not try to choke her.
12. Ms Casely said that Mr Casely has pulled her out of a car by her hair, broke doors, punched holes in walls, broke door locks and kicked in a bedroom door. She said that he threatened her, saying that he would bash her, her brother and the police if she called police. Ms Casely said that Mr Casely told her that 'when they find you, they won't recognise you, they will never find you.'
14. Mr Casely said that Ms Casely shouted and swore ["not much"] when they argued. He described her as good with her words and indicated that she was demeaning toward him. Mr Casely said that he shouted and swore during arguments and once slammed a microwave down and broke it. He said that there is an AVO in place until June 2021. Mr Casely said that the AVO was put in place after he and Ms Casely argued about the sale of their property. He said that Ms Casely was successful in having the AVO extended.
Under the heading, Drugs and alcohol, the family report writer stated:
17. Ms Casely said that she used ecstasy when she was in her teens. She said that she was a binge drinker in her twenties and said that she has regret and is ashamed of some things she has done while intoxicated. Ms Casely described her problematic drinking as a reaction to Mr Casely's behaviour but did acknowledge that she has a drinking problem.
18. Ms Casely said that she does continue to drink a couple of glasses of wine but only if she has a babysitter for the children. She said that she has turned her life around now.
19. Ms Casely said that Mr Casely drank alcohol every day when they lived together. She said that he can drink, and drink and you would never know he was drunk. Ms Casely said that Mr Casely used amphetamines and doubled his Ritalin dose but said that he hid his use from her. Ms Casely said that she has not seen anything that would indicate that Mr Casely is using drugs or consuming excessive amounts of alcohol now.
20. Mr Casely said that he would prefer not to discuss his drug use. He said that he completed two hair tests in 2020 that were clear of drug use. Mr Casely said that he drinks four to seven schooners of beer on the weekend.
Under the heading Mental Health, the family report writer stated:
23. Ms Casely said that she was diagnosed with generalised anxiety in her early twenties. She was prescribed medication but stopped taking it when pregnant. Ms Casely said that she resumed taking medication after the incident in September 2019 when police were called to her home after she had consumed alcohol. Her medication was managed by a psychiatrist who referred her to a psychologist for ongoing therapy.
24. Mr Casely has been diagnosed with ADHD, depression and anxiety. He is described as being impulsive at times and gambles [although gambling was not reported as problematic]. Mr Casely's psychiatrist and psychologist believe that he is managing his anxiety and depression.
The family report writer stated that the Mother had told her that since engaging in the family report process, the Father had re-engaged with the children. She told the family report writer that the parties have both been flexible, that the Father now tells her if he cannot attend and she has arranged make up time. She had stated that the Father attended X’s Christmas concert.
She had stated that she had offered for the children to spend extra time with the Father on Christmas Day. She stated that having picked up the children and returned home she received a tirade of nasty emails from the Father, accusing her of poisoning the eldest child against him, of stealing his money, and suggesting that the children will turn against her in the future. She stated that once she threatened to contact the police, the Father stopped.
The Father appeared agitated when contacted about report interviews by the family report writer. He stated that he would not attend interviews and would give up because he had not seen the children for eight months. After some further discussion the Father agreed to attend interviews.
The family report writer stated:
58. Mr Casely does not think that Ms Casely will follow Court Orders in the future. He complained about his treatment thus far ['I have been in jail three times'] and the inequity in how Ms Casely has been treated [getting off 'Scott free'] after being found unresponsive while caring for a newborn baby and an infant and driving with high range PCA. Mr Casely said that the children will have "a shit life" in Ms Casely's care and drew comparisons between his and Ms Casely's upbringings.
The Mother said that X attends childcare on Monday, Tuesday and Friday and is due to start school in 2022.
The Mother said that both children love their father.
The children’s observation sessions with each parent were positive. The children were affectionate with each parent.
Under the heading Evaluation, the family report writer stated, inter alia, that the child X had been cared for predominantly by the Mother who is likely to be her strongest attachment figure. During observations X appeared to have little inhibition in relation to seeking affection/attention. The family report writer stated:
95. Children who display indiscriminate affection may have had their attachments disrupted. This can occur when a child is exposed to violence, has experienced neglect, have a parent with a mental illness or a parent with a drug or alcohol misuse history. These issues are all relevant for Y and X. To ensure that any damage that may have been caused already, or could occur in the future, is repaired or avoided, X and Y will require consistency in their care, particularly over the next three to six years.
96. X and Y must not be exposed to any violence or conflict between their parents, whether that is directly or indirectly [being told negative stories]. Their parents will need to be psychologically healthy and not drug or alcohol affected when caring for them. When a parent is depressed, they may not have the capacity to respond to their child's physical or psychological needs. This is the same for a drug or alcohol affected parent.
Under the heading Risk factors, the family report writer stated, inter alia, “The conflict remains at a high level with Mr Casely unhappy about the outcome of the financial settlement and continuing concerns about each other's alcohol use.”
The family report writer stated that, “To minimise the risk of exposure to violence or conflict, it may be appropriate for changeover to occur through a third party, such as a trusted friend or relative, school or a contact service.”
Under the heading, Drugs and alcohol, the family report writer stated that significant risk had been identified in relation to the Mothers alcohol abuse. The family report writer stated that during the report process the Mother continued to tend to blame the Father for her use of alcohol and minimised her alcohol abuse. It was of concern to the family report writer that the Mother said that she continues to consume alcohol.
The family report writer stated that it was unclear whether either parent currently uses drugs or consumes alcohol to the point where the children would be at risk in their care. She stated, inter alia, that it would likely be in the children’s best interests for there to be an order preventing each parent from being under the influence of drugs or alcohol when the children are in their care.
The family report writer stated that historically the parties have monitored each other’s drug and alcohol use, and that if the children do continue to spend time with each parent, this could be a protective factor.
Under the heading, Mental health, the family report writer stated, inter alia, that both parents have experienced anxiety and depression. The family report writer noted the Mother had sought support in relation to her mental health.
The family report writer stated that the combination of the stress of the breakdown of the relationship and taking drugs and/or excessive use of alcohol will have negatively impacted the Father’s mental health. She stated that if the Father does consume excessive amounts of alcohol and/or take nonprescribed medication or too much prescribed medication his mental health will suffer.
In relation to the Father, the family report writer stated:
108. Medical records indicate that Mr Casely presents with Cluster B personality disorder. This is characterised by dramatic, overly emotional or unpredictable thinking or behaviour. This behaviour was noted during the report process. Mr Casely initially said that he would not attend interviews and was "giving up." He was quite dramatic in his presentation. During face-to-face interview Mr Casely was more focussed and able to talk about the children but again over the telephone Mr Casely tended to follow a tangent [financial settlement]. When attempting to explain that an assessment about who the children live with would need to include his current circumstances [work, relationships, living situation] Mr Casely appeared suspicious and secretive, suggesting that divulging that information would encourage Ms Casely to seek more money and/or attempt to extend the current AVO.
110. X and Y have been cared for by their mother since birth. They have had a disrupted relationship with their father due to the breakdown of the relationship, violence and ongoing conflict. X and Y's primary attachment will be to their mother at this point. Ms Casely's mental health and substance abuse is likely to have negatively impacted the attachment process [regardless of the impetus]. This is not a criticism of Ms Casely, but it is the children's reality. If Ms Casely's mental health has improved and she has "turned her life around" and no longer drinks alcohol to excess, she is more likely to be emotionally available to the children and their attachment to her will develop to be more secure.
The family report writer stated that the many disruptions to the time that the children have spent with the Father will have impacted their attachments to him. In this context, the family report writer had stated that this means that, although the children may enjoy the Father’s company now, they have not experienced enough time with him, and experienced him providing them nurturance to have developed a strong, secure relationship.
The family report writer had stated that during the initial contact with each parent there were counter allegations about the other not attending changeover, and that had disrupted the attachment process with the Father.
The family report writer had noted that the Mother had stated that she would consider an equal time arrangement by the time the youngest child Y starts school. The family report writer had stated that it was impossible to determine what sort of parenting arrangement would suit the children by that time. She had stated in this context that at best, an arrangement that would assist the children to develop secure attachments with both parents by that time (when Y is five years old) is all that can be reasonably expected. She stated that if the children do consistently spend increasing time with the Father and his care is warm and nurturing and the parenting relationship improves, equal time might be considered then.
The family report writer had stated that it was important for the children that the Father had an opportunity to participate in the decisions that affect them (this is in the context of the family report writer discussing parental responsibility) albeit recommending that the Mother have sole parental responsibility for the children.
Ultimately, the family report writer recommended that the children live with the Mother and spend time with the Father:
(a)every second weekend from after childcare on Friday to 4 PM Saturday and from after childcare every Tuesday until Wednesday morning, no later than 10AM;
(b)after Y turns three (which is in 2021) every second weekend from after childcare on Friday to 4 PM Sunday and from after childcare every Tuesday until Wednesday morning, no later than 10 AM;
(c)after Y turns four, the children spend time with the Father every second weekend from after childcare on Friday to before childcare on Monday and from after childcare on one day until no later than 10 AM;
(d)once the eldest child X starts school, both children spend one week in the end of term one, two and three school holidays with the Father and two one-week periods in the Christmas school holidays until Y is in Year 1, and then alternative weeks until Y is in Year 3 and then half of the Christmas school holidays.
The family report writer had recommended that the children be restricted from living further than a one hour drive from the Father’s current address.
The family report writer gave oral evidence.
The ICL questioned the family report writer.
The ICL informed the family report writer of the parties present proposals and this evidence was given:
Now, in relation to your recommendations which you make at the back of your report from paragraph 118, is there anything that you’ve read in the updated material that changes your views in relation to the recommendations that you make? Re-reading, sorry. Obviously paragraph 121 would be different, given that’s not what the Father’s seeking nor what the Mother is proposing. I would – I would still suggest, given the relationship between the parents, that sole parental responsibility to the Mother if the children are to live with her predominantly. And also, as I say, when I saw the children they were quite young. It’s very difficult to determine what children are going to be like so many years down the track, and so I think I would still suggest that – the idea of that suggestion – for them to re-look at the parenting arrangements when the youngest starts school – was to give to the parents an opportunity to repair their relationships.
I see? Clearly that hasn’t happened.

The Court is not persuaded that the Father should complete the course Parenting After Separation through S Families as proposed by the Mother. The Court firstly observes that the family report writer had referred to the Father receiving the most benefit from one-on-one treatment advice rather than doing a course in a group setting.
The Court finds that the Mother has experienced anxiety historically and that the Father’s family violence and antisocial behaviour towards her has likely contributed to the Mother experiencing anxiety. The Court finds that the Mother has had, and continues to have, insight in relation to her anxiety symptoms and has sought appropriate treatment historically and to date. The Court’s proposed Orders relating to the children spending time with the Father, such time increasing cautiously, slowly and conservatively, as discussed above under the meaningful relationship primary consideration, will also assist in minimising the risk of the Mother experiencing significant anxiety. Should the Mother experience significant anxiety her parenting capacity for the children could be adversely affected. The Court finds that it is likely that the reduction, post separation, in face-to-face encounters between the parties has contributed to a lessening of the Mother’s anxiety symptoms.
As to the Mother’s use of alcohol, the Father expressed both significant concern and a fear that the Mother will significantly consume alcohol to the detriment of the children whilst they are in her care. The Court accepts the Mother’s evidence relating to her consumption of alcohol, including that she does not drink alcohol when the children are being cared for by her. The Court refers to the Mother’s satisfactory drug and alcohol testing results referred to, inter alia, in the ICL’s tender bundle, Exhibit A, pages 11 to 17 inclusive. The CDT tests reported 24 August 2020, 24 February 2021, and 11 March 2022 all refer to the normal CDTs not supporting recent or ongoing excessive alcohol use. The Court also refers to the negative hair analysis tests relating to the Mother. In conjunction with these satisfactory test results, and to minimise the risk of the Mother consuming alcohol to an extent that she is unable to satisfactorily care for the children, the Court will make protective Orders as follows:
(a)That each party is restrained from consuming alcohol while the children are in their sole care.
(b)That each party is restrained from being affected by alcohol such that their blood alcohol reading exceeds the usual alcohol limits for driving a car in NSW while the children are in their sole care.
The Court gives significant weight to this need to protect primary consideration.
This primary consideration, in all the circumstances discussed above, perhaps tends to favour relocation, but not significantly so.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The children are too young to express a relevant view.
(3) (b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussions above under the meaningful relationship primary consideration.
(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The Father has not consistently taken up opportunities to spend time with the children. The Mother has been making the major decisions for the children, at least since separation to date. Subject to the above, both parents would appear to have taken, or sought to have taken, such opportunities.
This consideration is probably neutral as to relocation.
(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The parents would appear to have maintained the children when the children were in their respective care, however the preponderance of the children’s care, timewise, has been provided by the Mother. The Father pays some child support.
(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The children have spent irregular time post separation with the Father to date. The Father has not spent overnight time with the children since separation. The children’s primary attachment is to the Mother. The transition from the children’s daytime time with the Father to overnight time needs to be effected cautiously. There should be no detrimental effect upon the children’s meaningful relationship with the Mother should the children spend time with the Father as discussed above under the meaningful relationship primary consideration.
(3)(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Should the children’s residence be relocated to the Region V or the City W region there is likely to be some practical difficulty in the children spending time with the Father; this is discussed further below under ss (3)(m).
(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The Mother has such capacities.
As to the Father, the Court refers to its discussions above under the need to protect primary consideration in relation to the issue of family violence perpetrated by the Father, as well as his denigration of the Mother on occasion in the presence of the children; the Father’s lack of insight in relation to these issues, in conjunction with his inadequately treated mental health issues, indicates the Father probably lacks some capacity to provide for the emotional needs of the children. For example, the Court refers to its finding as to the Father denigrating the Mother in the presence of the children on 22 October 2021, and the Father’s denials in relation to that incident.
(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The children appear to be progressing and developing well, subject to the family report writer’s concerns in relation to the children as expressed in the family report.
(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the meaningful relationship and need to protect primary considerations. Otherwise, the parents appear to have demonstrated appropriate attitudes.
(3)(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussions above under the need to protect primary consideration.
(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
As to this additional consideration, the Court refers to its discussion under the need to protect primary consideration, and the Mother’s evidence, in relation to ADVOs, discussed above in these Reasons.
(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Were the Court to make an Order for equal time, a significant risk would arise that the parties would experience conflict to the detriment of the children, and the significant prospect of further proceedings in relation to the children. Were the Court to make the Order proposed by the Father in his Response filed 9 November 2021 (his proposed order 4) relating to presently spending overnight time with the children, again there would be a significant risk that the parties would experience conflict to the detriment of the children, and the significant prospect of further proceedings in relation to the children. Orders relating to the children spending time with the Father as discussed above under the meaningful relationship primary consideration would be least likely to lead to the institution of further proceedings in relation to the children.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
The Court is of the view that the parties should communicate by email only for the purpose of exchanging information relevant to the welfare of the children and for the purpose of in permitting the Court’s Orders. The Father, in oral evidence, indicated that he was content to communicate with the Mother via email.
As to Orders for changeover, changeover should occur as proposed by the ICL, in particular with only the first 8 occasions of the children’s time with the Father being supervised through the B Contact Service. The Court is not persuaded that changeovers should occur at this Contact Service until the youngest child Y commences school and which will not occur until early 2024, as proposed by the Mother. The Court acknowledges the family report writer’s oral evidence that changeover at McDonald’s restaurant would not be suitable by reason of the potential for the children to witness conflict between the parents at such a restaurant changeover. However the ICL’s proposed changeover Orders provide, after the first 8 changeovers at the Contact Centre, that the Mother be permitted to effect changeover through her own representative and which will ameliorate the risk of conflict between the parties at changeover, and lessen the risk of the Mother experiencing anxiety through such risk of conflict. The Mother has, historically, been able to provide her own representative for changeovers, including a representative who is a neighbour of the Mother, and the Court observes that the Mother has siblings who live in Suburb AA and Suburb Z. There is a real prospect that after 8 supervised changeovers and with the children’s time with the Father proceeding satisfactorily, the changeovers at McDonald’s restaurant, with security cameras, can proceed without significant conflict. And finally, there is an element of impracticality to the Mother’s proposed Orders that the Contact Service facilitated changeovers for such a long period from the present time until early 2024; should the Contact Service cease to provide such changeover services prior to early 2024, then there is the real prospect that the parties will be unable to agree as to an alternative changeover arrangement leading to the potential for further litigation. And further there is the ongoing cost of supervised changeovers noting the parties’ apparent modest financial circumstances.
The Court is of the view that the Mother should not be required to carry out a hair follicle test in relation to alcohol consumption having regard to the satisfactory drug and alcohol tests that she has carried out so far, together with the other matters related to this issue as discussed above under the need to protect primary consideration.
The Mother seeks the Court’s permission, on an interim basis, to relocate the children’s residence to a location no further than 90 km from Suburb R train station, which is opposed by the Father. In this context, the Mother referred to potentially relocating the children’s residence to the Region V or the City W region.
The Court now addresses, to the extent that it has not been previously addressed in the Court’s consideration of s 60CC factors, the advantages and disadvantages in respect to the relevant proposals of the parties.
Turning first to the Mother’s proposals.
The Mother asserts advantages to the children in relocation being permitted, inter alia, as follows:
(a)the Mother cannot afford to purchase accommodation in Sydney so she is looking to purchase a home on the Region V or around City W where housing is more affordable. She states that she is currently struggling to meet rental obligations in Sydney for a home that is large enough for growing children. She wants to purchase a home for family stability. She is saving for a deposit for a home. She has friends on the Region V including a work colleague. Her siblings live in Suburb AA and Suburb Z. She stated that she would only relocate if she was able to purchase a home (there). She stated that the children had already had to move three times. She wanted to build a nest egg.
The Court would regard the Mother’s above asserted advantages in being permitted to relocate, as proposed by her, as a particularly important advantage to the children and the Mother and would attach significant weight to it; that is, stability of housing, thus affording the children stability in their day-to-day lives and affording the children and the Mother the opportunity to develop ties to a specific locale and community.
(b)the greater the distance between the Mother’s residence and the Father’s residence would assist in minimising the risk of conflict between the parties, and lessen the risk of the Mother developing related anxiety having experienced conflict. The Court would attach some weight to this asserted advantage.
(c)90 km from Suburb R train station is not a significant distance for the Father to travel. The Court would attach some weight to this issue but not significant weight.
Turning to the Father’s position opposing relocation not previously addressed under s 60CC:
(a)The Father, as a self-employed tradesman, if he is required to collect the children from after school, for example on a fortnightly Friday afternoon at about 3 PM, in order to begin to spend time with them, asserts that he will experience practical difficulties in scheduling his work commitments to the obligation to collect the children, and possible loss of income. The Father does not adduce significant evidence in this context in relation to his work activities, and the Court observes that the Father is self-employed probably allowing some flexibility in scheduling of work activities. Nevertheless, the Court would attach some weight to this asserted disadvantage.
(b)The Father asserts that it is quite unclear as to what health professional treatment providers would be available to the Mother if she is permitted to relocate. The Mother acknowledges that she has not as yet made enquiries in this regard. Nevertheless, the Court would not attach any significant weight to this asserted disadvantage noting the real prospect of the existence of health professional treatment providers on the Region V and in the City W region.
(c)The Father asserts that he would be better able to monitor the Mother’s drinking of alcohol if she was not permitted to relocate from Sydney. The Court would not regard this as a significant issue because the Father’s ability to monitor the Mother’s physical presentation would likely only occur at changeovers, and changeovers involving possible face-to-face meetings between the Mother and father, pursuant to the ICL’s proposed Orders, would only occur at Suburb C McDonald’s.
(d)The Father asserts his extra travel costs of having to travel to a place on the Region V on the City W area, albeit no further than 90 km from Suburb R train station. The Court would infer that the Father is referring to extra fuel costs. The Court would attach some weight to this issue but not significant weight, noting that the Father has adduced minimal financial material in relation to this issue.
On balance, the Court is of the view, evaluating the above considerations under section 60CC of the Act, and other matters discussed above, and having regard to relevant legal principle, that it will be in the best interests of the children to permit the Mother to relocate the children’s residence to a location no further than 90 km from Suburb R train station but on condition that she only be permitted to so relocate if she has purchased a residence for herself and the children to live in at the proposed relocation address.
Parental responsibility
The Mother seeks an order for sole parental responsibility which is opposed by the Father. It will be in the best interests of the children that the Mother have sole parental responsibility for them, and that before making any non-urgent major long-term decisions in relation to the children the Mother will, inter alia, afford the Father an opportunity to make any comment or proposal by email in relation to such proposed decision to be made by the Mother (see the ICL’s proposed Orders 1 and 2). In this regard, the Court takes into account the parties’ insufficient level of trust with each other, their lack of any significant coparenting relationship, the Mother’s primary care of the children from birth to date and her satisfactory major decision-making in relation to the children, and the Father’s mental health issues still requiring treatment (including Cluster B personality traits). Such an order will minimise the risk of conflict occurring between the parties if they otherwise had to reach agreement in relation to major decisions for the children. The Court is not satisfied that these parties could reach agreement in a timely fashion in relation to major decisions affecting the children without conflict.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view at this interim stage that it will be in the best interests of the child to make the following interim parenting Orders:
Parental responsibility
(1)That the Mother have sole parental responsibility for X born in 2016 and Y in 2018 (“the children”).
(2)Before making any non-urgent major long term decision in relation to the children the Mother will:
(a)Advise the Father by email of the proposed decision.
(b)Provide the Father with 7 days to make any comment or proposal by email in relation to the decision.
(c)After the expiration of the 7 days, consider the comments or proposals made by the Father (if any).
(d)Advise the Father of the outcome of her decision at least 4 weeks prior to implementing it.
Father’s engagement with mental health professional and CDT testing
(3)That within 14 days of the date of these Orders, the Father shall do all things necessary to obtain a mental health plan from his General Practitioner for the purpose of engaging with a treating professional recommended by the Independent Children’s Lawyer in consultation with the Regulation 7 Family Consultant.
(4)That the Father’s treatment referred to in these Orders be specifically to address the impact of family violence on children, and the management of his mental health generally.
(5)That the Father’s treating professional referred to in these Orders be authorised to receive copies of:
(a)The Family Report dated 11 January 2021,
(b)Such items from the Tender Bundles that relate to the Father’s mental health,
(c)and the Independent Children’s lawyer is given leave to provide the same to the Father’s treating professional.
(6)That the Father remain engaged with the treating professional under these Orders for as long as such engagement is deemed necessary by the treating professional.
(7)That the Father undergo chain of custody CDT testing with a medical practitioner or accredited pathology centre, for the detection of alcohol use within 48 hours of a written request issued by the ICL with such tests to occur no more frequently than once in each two months until the ICL is discharged, and the Father to provide to the ICL and the Mother a copy of the results of testing within 48 hours of receipt.
Living arrangements
(8)That the children live with the Mother.
(9)That the children spend time with the Father as follows:
(a)For a total of four occasions, every second Saturday from 9:30 am to 1:30 pm (or such other times as can be accommodated by the Contact Service referred to in these Orders).
(b)After four occasions, every second Saturday from 9:30 am to 5:00 pm (or such other times as can be accommodated by the Contact Service referred to in these Orders).
(c)Commencing 12 months from the date of these Orders, every alternate weekend from Friday after school (or 3:30 pm) to the following Saturday at 4:00 pm.
(d)Commencing 3 months prior to the week that Y commences school, every alternate weekend from Friday after school (or 3:30 pm) to the following Sunday at 4:00 pm.
(e)On Father’s Day from 9:30 am to 4:00 pm.
(f)On Easter Sunday from 2023 onwards 9:30 to 2:00 pm.
(g)On Christmas Day from 2022 onwards 9:30 am to 2:00 pm.
(h)On each of the children’s birthdays from 9:30 am to 2:00 pm if not a school day and from after school (or 3:30 pm to 5:30 pm if a school day).
(10)That the Father’s time as provided in Order 9 is conditional upon his compliance with his obligations in Orders 3 – 7.
(11)That the Mother is permitted to suspend the children’s time with the Father on no more than one occasion per calendar year for a period of up to 14 consecutive days for the purpose of a holiday with the children and for this purpose the Mother will give the Father 28 days’ notice by email of the proposed suspension.
Changeover
(12)For the first eight (8) occasions of the children’s time with the Father following the making of these Orders changeover will be facilitated by the B Contact Service (“the Contact Service”).
(13)For the purpose of changeover at the Contact Service, each parent will:
(a)Re-engage with the Contact Service within 7 days of the making of these Orders and provide a copy of the Orders and make a request to recommence the changeover service.
(b)Attend to any additional requirements, further intake assessment, and complete any forms or declarations required by the Contact Service
(c)Comply with all reasonable rules, requests and directions of the Contact Service, including any COVID Safety rules.
(14)The cost of facilitated changeover at the Centre will be met equally by the parents.
(15)For the purpose of the changeover the Mother will bring the children to the Contact Service at the beginning of their time with the Father and the Father will collect the children from the Contact Service at such time as is advised by the Service. The Father will then return the children to the Contact Service at the end of their time with him or as directed by the Contact Service and the Mother will collect the children from the Contact Service at such times as are advised by the Service.
(16)The Mother and father will otherwise follow the directions of the Contact Service at all times.
(17)During the time that changeover is at the Contact Service, the children’s time with the Father is suspended on any day that the Contact Service is closed, or otherwise unable to facilitate the changeover.
(18)That the time in these Orders is to commence at such time as the Contact Service is able to re-commence facilitating changeover.
(19)After eight (8) occasions, changeover will occur at or outside the Suburb C McDonalds (or such other changeover location as is agreed in writing by the parties) and changeover is to be facilitated by:
(a)The Mother or a representative nominated by her delivering the children to the Father at the commencement of time, and
(b)The Father delivering the children to the Mother or a representative nominated by her at the conclusion of time.
(20)Upon the commencement of alternate weekend time in order 9 (c), changeover will be effected by the Father collecting the children from their school at the conclusion of school on Friday and returning them to the Mother or a representative nominated by her at the Suburb C McDonalds (or such other changeover location as is agreed in writing by the parties) at the conclusion of time.
(21)The Father will provide the Mother 48 hours’ notice by email in the event he is unable to attend to spend time with the children in accordance with these Orders, and if it is not reasonably practical to provide 48 hours’ notice because of illness, misadventure or emergency the Father will provide notice to the Mother as soon as it is reasonably practical.
Communication with the children
(22)The children will communicate with the Father by FaceTime or other telephone video call each Tuesday at 6:00 pm and for this purpose:
(a)The video communication with the children will be implemented by the Mother (or her representative) facilitating the call to the Father and
(b)The Father will provide the Mother with an appropriate mobile telephone number which is only to be used by the Mother in accordance with these Orders.
Communication between parents and with schools and medical providers
(23)That the parties communicate with each other by email only for the purpose of exchanging information relevant to the welfare of the children and for the purpose of implementing these Orders.
(24)For the purpose of communication, the parties will keep each other informed of their respective email addresses and any changes to their email addresses.
(25)The Mother is to provide all necessary consents, and these Orders act as evidence of her consent, to enable the Father to communicate with any school the children attend and obtain from the school any documents such as reports, awards, photographs (at his own expense) and any other documents usually provided to parents.
(26)The Mother is to keep the Father advised about any medical information relevant to the children including any illnesses, medication or referrals to specialists and contact details for the children’s General Practitioner and any specialists.
(27)The Father is authorised by these Orders to communicate with the children’s General Practitioner or any specialist consulted by the children.
(28)The Mother and the Father must each inform the other as soon as practicable (and within 2 hours) of any serious injury or illness of the children while the children are in their care.
Relocation and Restraints
(29)That the Mother is permitted to relocate with the children to a location no further than 90 km from Suburb R Train Station subject to the Mother having purchased a residential property for herself and the children to live in at her proposed relocation address.
(30)That in the event that the Mother relocates the children from their current residence (and / or future residences) the Mother will inform the Father at least 4 weeks prior to the proposed move of:
(a)The suburb she intends to relocate to.
(b)The name and address of any school or day care centre the children will attend.
(31)The Father is to advise the Mother of his residential address and keep the Mother advised of any changes to his residential address within 7 days of the change.
(32)That each party is restrained from attending the residence of the other party without that party’s express permission in writing.
(33)That each party is restrained from consuming alcohol while the children are in their sole care.
(34)That each party is restrained from being affected by alcohol such that their blood alcohol reading exceeds the usual alcohol limits for driving a car in NSW while the children are in their sole care.
(35)That each party is restrained from denigrating or speaking unkindly about the other parent, their respective partners, family or friends in the presence or hearing of either or both of the children and will use their best endeavours to ensure that no one else does so and / or that the children are removed from a situation where denigration is occurring.
(36)That each party is restrained from using social media or any other public means to denigrate the other, or to comment on or discuss these family law proceedings.
(37)That the Independent Children’s lawyer is to remain appointed for a period of four (4) months from the date of these Orders and is thereafter discharged.
(38)Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
(39)Pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.

I certify that the preceding two hundred and forty-six (246) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 13 April 2022

File number(s):	PAC 2682 of 2019
Judgment of:	JUDGE NEWBRUN
Date of judgment:	13 April 2022
Catchwords:	FAMILY LAW – parenting - Orders made - best interests of children
Legislation:	Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA(3), 65D, 65DA(2), 102NA(2)
Cases cited:	Saif & Saif [2020] FamCA 119
Division:	Division 2 Family Law
Number of paragraphs:	246
Date of last submission/s:	21 March 2022
Date of hearing:	17, 18 and 21 March 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Hill
Solicitor for the Applicant:	Mark Whelan Lawyer
Counsel for the Respondent:	The Respondent appeared in person
Counsel for the Independent Children’s Lawyer:	Ms Hayward
Solicitor for the Independent Children’s Lawyer:	Legal Aid NSW Suburb R Family Law

PAC 2682 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CASELY Applicant
AND:	MR CASELY Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	13 APRIL 2022