Cassels and Jarratt

[2018] FCCA 1757

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASSELS & JARRATT [2018] FCCA 1757

Catchwords:
FAMILY LAW – Interim parenting – allegation that Father consumes excessive amounts of alcohol – no risk of harm established.

Legislation:

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

Cases cited:

Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Applicant: MR CASSELS

Respondent: MS JARRATT

File Number: WOC 1065 of 2016

Judgment of: Judge Altobelli

Hearing date: 24 May 2018

Date of Last Submission: 24 May 2018

Delivered at: Wollongong

Delivered on: 10 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Neil Jackson

Solicitors for the Applicant: Maguire & McInerney Lawyers

Solicitors for the Respondent:	Rossi Simicic Lawyers
Solicitors for the Independent Children's Lawyer:	Lukes Law

ORDERS

THE COURT ORDERS, PENDING FURTHER ORDER:

1. Pursuant to Section 65Y(2) of the Family Law Act 1975, the Mother be at liberty to remove the child from the Commonwealth of Australia in June/July 2018 to enable the child to travel overseas namely to (countries omitted) for one period not exceeding four (4) weeks and one (1) day.

2. That the Father's time with the child [X] born 2015 pursuant to the interim parenting Orders made 2 February 2017 and Notation A of Orders made 22 June 2017 ("the Orders") be varied to be (subject to these Orders) as follows:

   (a)Each Thursday from 4.30pm to 6.30pm;

   (b)From 8am to 2pm on the following Saturdays; 11 August 2018, 18 August 2018, 25 August 2018 and 1 September 2018;

   (c)Thereafter, and until 6 October 2018, from 8am to 6.30pm each Sunday;

   (d)From 13 October 2018, for four (4) weekend periods; each alternate weekend day on Saturday from 8am to 6.30pm, and on Sunday from 8.00am to 6.30pm;

   (e)Thereafter (commencing not before 15 December 2018); each alternate weekend from Saturday 8am to Sunday 6.30pm;

   (f)On Christmas Day 2018 from 2.30pm until 6.30pm Boxing Day;

   (g)On the Father’s Birthday from 8am to 6.30pm;

   (h)Such other time as agreed in writing between the parents.

3. That subject to Order 4 below, the Father’s time is to be supervised by one of the paternal grandparents or the paternal aunts.

4. That once the father has completed a CDT test in accordance with these Orders which indicates results under 1.4%, then his time shall, subject to Order 19; thereafter be monitored by one of the Paternal Grandparents or paternal aunts (the ‘Monitors’) during his time with the child, and upon those Monitors providing written undertakings that they would comply with the terms below and these Orders; as follows:

   (a)That until 6 October 2018, for one hour at the commencement of the Father’s time and one hour at the end of the Father’s time.

   (b)Thereafter, and until January 2019 for 30 minutes at the commencement of the Father’s time and 30 minutes at the end of the Father’s time.

   (c)That any overnight time that the Father spends with the child be spent at the home of the paternal grandparents, or in their presence from 8pm until 6am.

   (d)That should the father appear affected by illicit drugs, alcohol or behave inappropriately, then the ‘Supervisor or Monitor’ shall remove the child from the care of the father and shall not allow the child to spend time with the child further during that period of time.

   (e)In the event that the Supervisor or Monitor needs to remove the child from the father’s presence in Order 4.3 above, then they shall advise the mother of the incident when the child is returned to the Mother’s care.

5. That the Father’s time in Order 2 be suspended between 15 June 2018 and 18 July 2018 to enable to child to go overseas with the Mother.

6. That during the Mother’s overseas travel with the child, the Mother facilitate one telephone call per week between the child and Father at a time and day to be agreed between the parties, and in lieu of agreement as specified as to date and Australian Eastern Standard time by the mother in the child’s communication app prior to the travel.

7. That notwithstanding any Order to the contrary, the child shall be in the Mother’s care on the following special occasions:

   (a)On the Mother’s Birthday from 8am to 6.30pm;

   (b)On the child’s birthday from 2pm to 6.30pm;

   (c)On Christmas Day from 6.30pm Christmas Eve until 2.30pm;

   (d)On the Mother’s Day weekend from 6.30pm on the Saturday until 6.30pm on the Sunday.

8. That Order 4 made on 2 February 2017 be discharged and for the purposes of changeover one of the paternal grandparents, or the paternal aunts, or such other person agreed between the parties, are to collect and return the child at the residence of the maternal grandparents, and the father is not to be present during such changeover.

9. That within 7 days the parents shall do all such things so as to sign up to the ‘talkingparents.com’ App and shall communicate with each other in relation to the child through the App with all communication to be in a child focussed and respectful manner.

10. That through the talkingparents.com App and within 10 days the Mother shall advise the Father of the child’s routine including sleep times and any dietary or medical requirements, and shall update the father with any change to the routine from time to time.

11. That during any time that the father spends with the child, that he shall, as far as possible, maintain the child’s routine in regard to sleep and dietary requirements that the child has in the Mother’s care.

12. That the parents shall ensure that they do not swear in the presence of the child and use their best endeavours to ensure that no other person swears in the presence of the child and removes them from the hearing of any person swearing.

13. That each parent shall encourage the child to call the other parent mum or dad and correct the child if he refers to the other parent by their given name.

14. That the father be restrained from:

    (a)consuming alcohol during time he spends with the child or within 24 hours prior to spending time with the child;

    (b)using any prohibited drugs or any prescription medication unless it is prescribed for him by a doctor and only taken in the prescribed dosage

    (c)taking the child to a hotel, pub or licenced premises, with the exception of the sole purpose of dining in the bistro/food area during a family celebration;

    (d)Bringing the child into contact with the following persons: Mr N, Mr A, Mr C and Mr D.

    (e)Allowing the child to be in the company of the paternal Uncle Mr J without one of the Monitors being present;

    (f)Attending the changeover of the child;

    (g)Approaching or coming within 100 metres of the mother;

    (h)Approaching or coming within 100 metres of the mother’s place of residence or employment.

15. That within 7 days the Father attend upon a General Practitioner to obtain a referral to a reputable Pathologist in the local area for the purpose of undertaking supervised blood testing to be conducted for the measurement of CDT testing (Carbohydrate Deficient Transferrin) for the presence of alcohol.

16. That within 7 days, the Father is to undertake through a reputable pathologist a Carbohydrate Deficient Transferrin (CDT) blood test and provide a copy of the test results to the Independent Children's Lawyer and the solicitor for the Mother within 24 hours of receiving the test results.

17. That within 48 hours of a request being made in writing by the Independent Children’s Lawyer (ICL), the Father is to undertake through a reputable pathologist a Carbohydrate Deficient Transferrin (CDT) blood test and provide a copy of the test results to the Independent Children's Lawyer and the solicitor for the Mother within 24 hours of receiving the test results.

18. That the ICL be permitted to make such random requests for CDT testing of the father not more than once per month.

19. That should the results of the Father’s CDT testing indicate a result of 1.4 percent or higher then leave is granted to the ICL to request the matter to be relisted and the father’s time with the child shall revert to being supervised by either of the paternal grandparents or aunts until the matter is relisted before the Court.

20. That the father ensure that he feeds and baths the child during his time with the child prior to him being returned to the mother.

21. That within 6 months the father shall do all such things so as to engage in and complete the Circle of Security parenting Course.

22. That for at least 6 months the father attend relapse prevention counselling for drug and alcohol abuse.

23. That the parents be restrained from:

    (a)Smoking in the vicinity of the child or allowing the child to remain in the presence of other persons who are smoking;

    (b)Posting on Facebook or any other social media website any information or material pertaining to the Family Law dispute between the parties and / or encouraging other persons to post information and comments that are derogatory, critical and demeaning to the other parent or members of their family.

24. That the following Orders be discharged in so far as they relate to the Mother:

    (a)Order 12 of the Orders made 21 December 2016 in regard to urinalysis testing; and

    (b)Order 7(e) of the Orders made 21 December 2016 and 13(e) of the Orders made 2 February 2017 regarding disclosure of her residential address.

25. The matter be listed for 4 day Final Hearing commencing on 3 June 2019 at 10:00am.

26. The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1065 of 2016

MR CASSELS

Applicant

And

MS JARRATT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about a child, [X], born 2015. [X] is currently two years old. [X] lives with his Mother, and spends time with his Father. The issue for the Court is whether, and if so how, to extend the time that [X] currently spends with his Father, and whether his time should remain supervised.

Background

1. [X]’s parents were in a relationship for about 12 years, and separated on a final basis in April 2016. As a result of mediation held in December 2016 they reached an interim parenting agreement which was reflected in Consent Orders made on 21 December 2016. In those Consent Orders the parents agreed to have joint parental responsibility, that [X] should live with the Mother, and spend supervised time with the Father each alternate Thursday from 4:30pm until 6:00pm, each alternate Tuesday from 4:30pm until 6:00pm, and each Saturday from 8:00am to 10:00am. The Orders also provided for contact on special occasions, and set out the supervision regime.

2. On 2 February 2017, I heard the Interim Application between the parents and made Orders that [X] continue to live with his Mother, and spend supervised time with the Father each Thursday from 4:30pm to 6:30pm, and each Saturday from 8:00am to 2:00pm.  The Orders also prescribed matters about supervision, various restraining orders, the provision of information, and the participation in various courses.

3. The matter, again, came before the Court in relation to travel matters, and Consent Orders were entered into on 31 January 2018 that gave the Mother liberty to travel with [X] in June/July 2018.

4. The present proceedings came about as a result of the filing of an Application in a Case by the Father, on 3 May 2018, seeking to vary the existing parenting Orders. The Application was, no doubt, precipitated by the release of the Expert Report of Dr M, dated 9 February 2018. The Report will be discussed below. In the Father’s Application in a Case he proposed orders for equal shared parental responsibility, that [X] continue to live with the Mother, and spend unsupervised time with him. The amount of time would gradually increase from a few hours daily, through to entire days, and within a few months to alternate weekends.

5. In the Mother’s Response to an Application in a Case filed 22 May 2018, the central feature of the Mother’s proposal was the continuation of supervision, but the gradual relaxation of this commencing from December 2018. The progression in the Father’s time with [X] is much slower, compared to the Father’s proposal. The Mother’s proposal does not contain an order for overnight time. The Mother sought a number of other restraining orders.

6. [X] was represented by Mrs Luke, as Independent Children’s Lawyer. In effect, the Independent Children’s Lawyer’s proposal sought to steer a middle course between the proposals, whilst taking up the essence of the recommendations made by Dr M. The Father’s time would continue to be supervised for a period, then subject to the completion of a satisfactory CDT test would evolve into monitored time, and eventually become unsupervised.

7. The Orders proposed by the parents and the Independent Children’s Lawyer are reproduced in the first schedule to these reasons for Judgment.

8. As the current round of litigation in this matter was precipitated by the release of Dr M Report, after setting out the evidence and the applicable law it is appropriate to consider the terms of that Report.

The evidence before the Court

1. In the Father’s case, he relied on the following documents:

   a)Initiating Application of Mr Cassels filed 12 December 2016;

   b)Application in a Case of Mr Cassels filed 3 May 2018;

   c)Affidavit of Mr Cassels filed 3 May 2018;

   d)Affidavit of Mr Cassels filed 15 June 2017;

   e)Affidavit of Mr Cassels filed 30 January 2018;

   f)Affidavit of Ms S filed 12 December 2016;

   g)Affidavit of Ms S filed 31 January 2017; and

   h)Affidavit of Mr M filed 20 December 2016.

2. In the Mother’s case, she relied on the following documents:

   a)Response to an Application in a Case of Ms Jarratt filed 22 May 2018;

   b)Affidavit of Ms Jarratt filed 20 January 2018; and

   c)Affidavit of Ms Jarratt filed 22 May 2018.

3. The Mother also relied on the following documents produced pursuant to subpoena requests:

   a)Documents produced by Bank 1;

   b)Documents produced by Town B Hotel;

   c)Documents produced by NSW Police; and

   d)Documents produced by General Practice Pty Ltd t/as Family Medical Practice Town C.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

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

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

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

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

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

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

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

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

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

   (i) the child’s daily routine; and

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

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

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

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

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

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

   (e)     such other matters as the court considers relevant.

1. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

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

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

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (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;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (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;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

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

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

   (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:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (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;

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

The case law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

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

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

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

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

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

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

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

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

Report of Dr M

1. Dr M’s report is comprehensive. It involved interviews with the parents, the Maternal and Paternal grandparents and observations of the Child with each parent. Dr M had available to him all of the documents that had been filed by the parties in the matter to date, including extensive subpoenaed material. Dr M conducted a number of psychometric assessments on the parties. The report is lengthy, and for present purposes the focus will be narrow.

2. At page 30 of his report Dr M sets out the Mother’s responses to specific questions he asked about the Father’s contact with [X], and the role that he would play in [X]’s life: (lines 13 to 18, and lines 25 to 33)

   Q. Why do you want to put limits on Mr Cassels’ contact with [X]?
   Ms Jarratt began by asserting her disappointment that the Cassels family did not advise her of their alleged previous knowledge of Mr Cassels drug use and that they placed [X] in danger by not informing her. She went on to say that she fears that both she and [X] are at risk if Mr Cassels “takes ICE and then snaps”. She also worries about [X]’s physical health when in the care of Mr Cassels and his parents, citing in particular [X]’s severe nappy rash on returning from Sunday access (8am to 2pm).

   …

   Q. What role do you see Mr Cassels playing in [X]’s life?
   Ms Jarratt stated that she believed that [X] needs to know his father. She said that she “still cares” for Mr Cassels, but went on to add that she needs to be cautious because she believes Mr Cassels to be manipulative. Ms Jarratt did not answer the question, but rather went on to express her fears about Mr Cassels. She said that she did not think that Mr Cassels was “taking the whole situation seriously” and as a consequence may drink(alcohol, presumably when caring for [X]). Ms Jarratt expressed her fear that Mr Cassels may seek to take control and that he was/is using [X] to control her. She prognosticated that she and Mr Cassels would always be in disagreement and arguing and that they would never be able to agree or negotiate.

3. Dr M sought the Mother’s opinion about the best case outcome from the proceedings. She stated that she thought the best outcome would be that the Court would not lift supervision until such time as [X] is ready. She was opposed to overnight contact. Indeed, she expressed the view that the current contact arrangements were too generous, and that the Sunday visits were too long.

4. When the Father was asked what orders he sought, and the reason why, he stated at page 24, lines 35 to 44:

   Q. What Orders do you seek and why?
   Mr Cassels stated that he just wants to be in his son’s life as much as possible. He said that he wanted to part of his son’s life, and not just a visitor. He said that his ideal would be a 50:50 split but stated that he thought that a “long shot”. However he feels that he has already missed the most part of 1½ years of his parenting and wanted to recover opportunities to maintain and build his bond with [X]. He emphasised that he does not have any ill will towards Ms Jarratt and that he sought a civil relationship with her for [X]’s sake as he wants only what is best for [X]. Given that his goal of 50:50 was a self‐assessed “long shot”, the author reiterated the question. Mr Cassels said that he wanted over night visits so that when [X] was older he could take him camping. He stated that as a minimum, he sought every second weekend with [X] and a night in the off weeks so that [X] does not go too long without seeing his father.

5. The Father went on to explain whether he had any concerns about the Mother, as well as reflecting on changes that he needed to make in his life. These extracts are found at page 24, lines 46 through to page 25, line 9:

   Q. Ms Jarratt has clearly expressed concerns about you. What concerns, if any, do you have about Ms Jarratt?

   Mr Cassels stated that he has no concerns regarding Ms Jarratt using drugs as she has also been undertaking drug testing. He further stated that he has no concerns about Ms Jarratt’s family, in particular the maternal grandparents. However, Mr Cassels did want to know more about Ms Jarratt’s new partner (‘Mr K) “because he is taking [X] overseas next year”.

   Q. What changes do you feel you need to make to play a bigger part in [X]’s life?

   Mr Cassels stated that he believes that he has done all that he thinks he could over the last 2 years to recover from the mistakes that he feels that he has made. He acknowledged that he should have managed the breakdown of his relationship in a different way; that he should not have periodically taken off and that he should not have abused drugs. He felt that these mistakes will stay with him for life but that he will continue to manage his life and stressors in a more adaptive way.

6. Dr M was able to observe a contact visit being [X] and his Father, at the home of the Paternal Grandparents, on 17 December 2017. The observations are quite extensive, and are found at pages 35 and 36 of the Report.  The summary at page 36 is found at lines 23 to 30:

   In summary, Mr Cassels demonstrated sound basic parenting skills. There was evidence of good attachment between [X] and his father, and no evidence of distress. The author observed that Mr Cassels was highly attentive to [X]’s cleanliness, including what appeared to be an excessive amount of nappy cream, however he received no prompting from the grandparents and engaged in ‘cleanliness behaviours’ in response to situational stimuli (such as dirty clothes/hands, change in [X]’s posture, preparation to eat, etc). Mr Cassels was observed to provide developmentally appropriate guidance and instruction. On the basis of the single contact observation, there was no evidence of deficit in Mr Cassels’ parenting.

7. In relation to the psychometric testing undertaken by the Father, Dr M observed at page 38, lines 6 to 11, as follows:

   In summary, Mr Cassels PAI‐2 profile suggested honest responding. There were no mental health issues identified, including current use of drugs and alcohol, and there was no indication of risk to self or others. The only concerning feature was his treatment rejection score, which suggests that he does not see a need for any further personal change. However this may also reflect the numerous self‐development courses and counselling programs that he has attended since being discharged from hospital in 2016.

8. Moreover, a summary of the psychometric assessments for the Father is found at page 40, lines 4 to 13 inclusive:

   It was surprising to observe a complete absence of any psychological distress in Mr Cassels’ assessments, given his documented and self‐confessed history of mood disorder and self‐harm. In the author’s experience, it is not uncommon for parents in custody disputes to seek to portray themselves in a positive light, although by conventional standards, Mr Cassels' PAI profile did not evidence this. There was an absence of evidence of personality disorder and the PCRI indicated positive prognostic indicators for Mr Cassels’ parenting of [X]. It is possible that the measures used by the author were not sensitive enough to identify either mental health problems or personality disorder. However it is equally possible that his engagement in therapy and courses, and the support of his family, has ‘rehabilitated’ him, as asserted by Mr Cassels and his parents.

9. The summary of the Mother’s psychometric assessments are found at page 41, lines 1 to 5:

   The psychometric test results were suggestive of an elevated sense of self‐value. There was no indication of Narcissistic Personality Disorder and as such these results must be interpreted either as how Ms Jarratt sees herself in relation to Mr Cassels, or as an overt attempt to present herself to the author as without fault.

10. Dr M’s conclusions commence at page 41. He was of the view that both parents’ evidenced adequate parental capacity and neither currently demonstrate significant deleterious behaviours that might place [X] at immediate risk. Dr M’s concern for [X] was of continued exposure to the conflict between the parents, particularly if it was ongoing. He was also concerned about the potential involvement in the ongoing conflict of the paternal and maternal grandparents.

11. One of the issues in the present Application relates to the Mother’s concern about the Father’s alleged alcohol abuse. Dr M deals with this specifically at page 42, lines 34 to 43:

    One of the mother’s ongoing concerns is that the father may become aggressive in the context of alcohol abuse. The mother states in her affidavit that of 19/01/17 that the father claims to be abstinent from alcohol. However the father makes no such claim in his affidavit of 24/01/17, but rather says that he consumes “minimal” alcohol. While subpoena material from the Bank 1 with regards to the father’s expenditure indicates transactions at licenced venues and bottle shops up to and including December 2017, neither what was purchased nor how much was consumed is indicated. The author contends that on the balance of probabilities, Mr Cassels is likely to be drinking alcohol. However there is no evidence that he is doing so to excess or that he is doing so in the context of his care for [X]. Further, as stated above, Mr Cassels does not claim to be totally abstinent from alcohol.

12. Dr M also deals with a concern raised by the Mother in relation to [X]’s capacity to cope with the existing Orders, let alone any extension thereof. This passage is found at page 42, line 45, through to page 43, line 3:

    The mother, in her efforts to contradict the benefit of [X]’s contact with the father, raises multiple allegations such as that the child developed sleep terrors after contact time with the father was increased, that his behaviour has deteriorated, and that he has developed severe nappy rash (see affidavit 15/06/17). These allegations are unsupported by evidence or contradicted by expert opinion (see advice of Dr I, Paediatrician). The mother’s allegations of poor care are further contested in the affidavit of Mr Cassels, dated 18/12/17, wherein he provides evidence from the “communication book” of cooperation and communication with the mother over [X]’s care.

13. An important passage is found at page 43, line 36 through to page 44, line 7:

    Mr Cassels was realistic in his ambitions for access to [X] and willing to be supportive of Ms Jarratt’s role as parent. He expressed confidence in both the mother and the maternal grandparents and did not make accusations regarding the mother’s capacity or lifestyle. Ms Jarratt, on the other hand, was unable to articulate a role for Mr Cassels in [X]’s life (p.30, lines 25 – 33), stating that she sought sole PR and that the 8 hours a week that Mr Cassels sees [X] is too much. Ms Jarratt did not support overnight visits and sees as her “bottom line” a retention of the status quo. In terms of the Cassels and Jarratt families, Mr S and Ms Jarratt negate a role for Mr Cassels in [X]’s life, while Mr M and Ms S acknowledge the importance of Ms Jarratt as a parent. The author finds that there is little evidence that Mr Cassels or his family are a danger to [X]. Rather, there are numerous strengths in both Mr Cassels and the Cassels family. Mr Cassels has made demonstrable personal growth and engaged in a plethora of programs which enhance his parental capacity. He has a strong and verifiable work ethic and a consistent work history. There were clear, observable attachments between [X] and both Mr Cassels and his parents and on observation, Mr Cassels demonstrated parental capacity. Further, the extended Cassels family provide the opportunity for multiple attachment relationships for [X], including with similar aged cousins. Added to this are protective factors for the concerns that Ms Jarratt has raised, such as Mr M’s familiarity with the signs of drug abuse and Mr Cassels’ new partner’s (Ms A) apparent willingness to notify FaCS when a child is exposed to drug users. The author concludes that [X] is safe with Mr Cassels and would benefit from maintaining and strengthening his relationship with Mr Cassels.

1. Dr M responds to the specific question sought of him commencing from page 44. He expressed the view that there was no evidence that [X] is at risk and in need of protection from either parent. His professional opinion was that [X] had a clear attachment with both parents and both sets of grandparents. He noted the contrast between the Father’s willingness to support and encourage [X]’s relationship with the Mother, and what he described as the Mother’s clearly and transparently articulated view that the relationship between [X] and his Father ought to be minimised.

2. Dr M was of the view that neither parent has a substantial mental health issue at this time. Having regard to the Father’s tumultuous past, however, he was of the view that the Father had demonstrated both insight into his past mental health issues and adherence to treatment. Indeed, he had also shown initiative to seek help as needed.

3. Dr M expressed a concern about the level of animosity that the Mother had demonstrated towards the Father, some of which he thought had been fuelled by the Maternal Grandfather, who seemed to have a longstanding dislike of the Father. Whilst for the time being [X] appeared unaffected by this animosity, he was concerned that if it persists into the future it will cause [X] distress.

4. In relation to the specific issue of what time he should be spending with his Father, Dr M deals with this at page 46, line 26, through to page 47, line 34:

   k. The amount of time that the child should spend with each parent, if they were living primarily with the other parent:
   If [X] lives primarily with the mother, he should be enabled to see his father each alternate weekend, and for an afternoon/early evening mid‐week on the off week. If [X] was to live primarily with the father, it would be best that he has a week about arrangement and thus equal shared care. This is on the basis that the author believes that the father’s circumstances and the needs of [X] likely preclude equal shared care, but that a circumstance where the father had weekday custody, if the Court so determined, should then translate to equal shared care.

   l. Whether the father requires supervision while spending time with the child and his ability to care for the psychological and emotional needs of the child:
   The author does not believe that the father requires supervision and that the imposition of supervision limits the father’s capacity to explore the breadth of the relationship that he might have with [X]. The author is further of the view that the father demonstrates ability to care for the psychological and emotional needs of [X].

   m. Whether the mother’s parenting capacity or mental health would be impacted by any change to the time the child spends with the father and the weight that ought be given to any concerns that she may have:
   It is likely that the mother will initially experience a degree of anxiety if [X] spends increased time with the father, especially should that include overnight stays. However, it is the author’s view that her anxiety will dissipate over time in the absence of any adverse events. With respect to the mother’s concerns, the author has articulated in the body of this report that the mother exaggerates both her positives and the father’s negatives, and is locked in a perception of the father that is rooted in the past and previous to his treatment. Further, the longstanding animosity of the maternal grandfather toward the father serves to maintain the mother’s concerns, for which the author finds little corroborative evidence. Thus the author contends that her concerns should be given limited weight.

   n. Any other matter the Court Expert considers relevant:
   The author notes that the maternal grandfather is a significant influence on the mother’s opinions and has been described by both the mother and the father as controlling (evidenced in part by the mother’s own reactions to the father in her early adolescence). While the maternal grandfather demonstrably cares for [X] and clearly believes his views to be correct, his antipathy toward the father will only serve to harm [X] in the long term. The author suggests that the maternal grandfather considers this in his discussions with the mother in the future.

   Recommendations
   The author is of the opinion that Mr Cassels presents no threat to [X]’s safety and that both he and his family are significant current and future attachment figures. It is recommended that the father and mother share equal Parental Responsibility. While the father might reasonably seek a 50:50 shared care arrangement, the difficulties negotiating for the needs of [X] arising from the mother’s antipathy toward the father, coupled with his employment responsibilities, suggest that this might not be in [X]’s best interests. However, the father should be enabled greater contact with [X] and an ability to explore the full extent of a father‐son relationship. Thus the author recommends that the father be provided alternate weekend unsupervised contact, commencing Friday afternoons at 3.30pm (or after school when [X] begins school) through to 9am Monday mornings (or drop off at school when [X] commences school). The author further suggests that the father be afforded half school holidays, commencing immediately in line with NSW school terms to enable [X] to adjust to the new routine before he commences school. In addition, the father should share special events and occasions equally with the mother, such as (but not exclusively) Christmas, birthdays and father’s day. The author would hope that the parents are able to negotiate special occasions outside of the traditional events, such as special family events, for the benefit of [X] and thus “time as otherwise negotiated” is recommended. The author is of the opinion that Orders such as the above have the best chance of being maintained throughout [X]’s childhood without further involvement of the Court.

5. Dr M’s evidence is both independent, and expert. It is, of course, untested. That does not mean that it should not receive appropriate weight nonetheless.

6. Perhaps the most significant feature of Dr M’s recommendation is that no party to this case has advanced a proposal to the Court that is consistent with Dr M’s recommendations. For example, Dr M recommends the immediate introduction of half of the school holidays. Moreover, a reasonable interpretation of his recommendations is that unsupervised alternate weekend time should also commence immediately.

7. The only reasonable inference that the Court can draw from the absence of any proposal by the Father, or the Independent Children’s Lawyer, that is consistent with Dr M’s recommendations, is a frank and realistic acceptance that Dr M’s robust recommendations perhaps need to be considered more discerningly, and applied more sensitively to [X]’s needs.

8. By no means does this mean that Dr M’s report is unhelpful for the present application. Indeed, the Court found it very helpful, as will be seen below. Indeed, perhaps Dr M intended to imply that his final recommendations would be the result of a gradual implementation, or a staged approach, of increased time.

9. Nonetheless, Dr M’s risk assessment is very helpful. His observations, and professional opinion about the nature of [X]’s relationship with his Father and other significant adults in his life, is very informative. His observation that the Mother will probably initially experience a degree of anxiety if [X] spends increased time with the Father is entirely consistent with the Mother’s own case. His professional view that her anxiety will dissipate over time is the only evidence before the Court about this and, is in any event consistent with the Court’s experience.

The Father’s case, summarised

1. The Father’s case, briefly summarised, is that his relationship with [X] has grown satisfactorily, and there is no evidence to suggest that he presents a risk of harm to the Child. His case is that his mental health has improved significantly, his drug abuse is well and truly an historical matter and that his consumption of alcohol is moderate and does not have any impact on his capacity to care for his son.

2. Nonetheless, a curious feature of the Father’s case is that even though he knew that the Mother was running a case before the Court based on his continued abuse of alcohol, he nonetheless proposed that a restriction on him consuming alcohol whilst the Child was in his care be reduced from 24 hours to 12 hours. Indeed, what he was proposing to the Court is that there should be no prohibition on him drinking alcohol within 12 hours of any time spent with [X]. This is a curious anomaly in the Father’s case and may well have been ill-considered.

The Mother’s case, summarised

1. The Mother’s case was, in effect, that the Father continued to present a risk of harm to the Child. Specifically, the risk was unacceptable because of the Father’s consumption of alcohol, his past mental health, and his association with criminal elements. It must be noted that most of the Mother’s claims were expressed in general terms, and as will be seen the real focus of her case was alleged alcohol abuse. Nonetheless a key part of the Mother’s case was that her caregiving capacity would be impaired if the Court made the Orders sought by the Father.

The Father’s Abuse of Alcohol?

1. In many respects the focal point of the Mother’s case at the Interim Hearing itself was the Father’s alleged abuse of alcohol. The Mother’s case was trenchantly critical of the Father for his lack of candour about matters, the most important of which is his current alcohol consumption. A number of very broad and critical submissions are made of the Father, most of which are unsupported by evidence. These reasons will only focus on the submission about the Father’s alcohol abuse which was sought to be supported by evidence.

2. The Mother’s case seemed to hinge in many respects on evidence produced on subpoena by various entities which, the Mother submitted, demonstrated that the Father’s consumption of alcohol was much greater than what he was prepared to concede. For example, the Mother submitted that the records in question indicated frequent and large transactions at various licensed premises. Much was made of the fact that on 14 May 2018 the Mother, through her solicitors, requested the Father undergo a CDT and liver function test, but no response had been received as at the date of the Interim Hearing. The request was made on 14 May 2018. The Interim Hearing was on 24 May 2018.  The Father’s case does not explain why he did not accede to the Mother’s request. Indeed, it would have been very helpful to the Court, and possibly even to the Father’s case, if he had provided the results of a CDT and liver function test. However, that does not mean that the Court should draw an adverse inference against the Father, to the effect of that he would have produced an unsatisfactory test result. There are factors that contradict the drawing of the inference. This is particularly the case where the evidence that the Mother herself relies on to support her contention about the Father’s alcohol abuse is so inconclusive.

3. The Mother’s case about the Father’s alcohol abuse was based on records purporting to show the Father’s expenditure on alcohol over quite extended periods. There was much contention about these records, and in particular the value to the Court of the aide memoire prepared by the Mother’s solicitor, purporting to summarise the evidence. There are a number of difficulties with giving any substantial weight to the Mother’s case in this regard.  The biggest problem the Court has is that even if this expenditure is accepted as being the Father’s expenditure for his own personal use, it does not establish the level of risk that the Mother contends for, especially when in her own proposal there is the risk management tool of ongoing CDT and liver function testing. Moreover, the evidence adduced in the Mother’s case does not establish whether the withdrawals in question were used for the sole purpose of purchasing alcohol and, indeed, it would be logical to think that at least some of the purchases that were used for the consumption of meals, or food. There is no evidence to suggest, in any event, that the purchases were for alcohol only for the Father. There is no evidence about any potential adverse impact on the Father of the consumption of alcohol

4. In short, the evidence adduced in the Mother’s case is quite inconclusive. One wonders how it advances the Mother’s case to show that the Father purchased alcohol after the Child has been returned to the Mother’s care following a contact visit? What inference is the Court asked to draw from the purchase of a Jack Daniels with Cola, and a Wild Turkey with Cola, purchased between 7:09 pm and 7:56 pm on 21 September 2017? What inference is sought to be drawn from expenditure at Cab Company Town A? When on Friday, 20 April 2018, between 4:29 pm and 4:50 pm the Father allegedly purchased two XXXX Gold schooners and two 150mL Rose; is the inference to be drawn that the Father consumed both beer and Rose?

5. To the extent that the Mother’s case about unacceptable risk of harm to [X] from the Father’s consumption of alcohol is based on the evidence about liquor purchases, it is simply inconclusive. The Mother’s case about the unacceptable risk of harm presented to [X] from his Father in the present, and in the future, is based on the past. On any objective view of the evidence before the Court, assisted as it was by Dr M Expert Report, there is no current risk of harm to [X], and certainly not one based on alcohol abuse.

6. There are other issues that warrant a conservative approach to increasing the Father’s time with his son, but they are not the issues raised by the Mother. Regrettably, the Mother’s litigation strategy in this particular application has thrown light on issues of the Mother’s vulnerabilities, especially in terms of her attitude towards and about [X]’s relationship with his Father. Dr M’s concerns about the Mother’s attitude in this regard are merely evidenced, it could be said, by the Mother’s trenchant resistance to allowing her son’s relationship with his Father to grow.

Order in the best interests of the Child?

1. The best evidence available before the Court suggests that [X] has a meaningful relationship with both of his parents. It is hard to discern in the Mother’s case any serious position to the contrary.

2. Risk of harm issues arise in this case, but they seem to be based on historical factors, according to Dr M. Dr M believes the Father has come a long way and has, in effect, dealt with his past drug, alcohol, mental health and anti-social issues. It must be acknowledged that even the Mother had her past problems which, she contends, and which is uncontentious, that she has overcome. She struggles to accept that the Father might also have changed, and overcome his past problems.

3. Any risk to the Child is managed in the proposals put forward by both the Mother and the Independent Children’s Lawyer, particularly as regards CDT testing. On the Independent Children’s Lawyer’s proposal, the Father’s time is gradually increased. This, in part, is not just a developmental consideration, but also something that allays the Mother’s psychological fears.

4. Dr M is probably correct in hypothesising that the real risk to [X] is continued conflict between his parents. Regrettably, there is no indication to the Court at present to suggest the conflict will moderate. Indeed, there is a real risk that it will intensify the closer the matter moves to a Final Hearing. Both parents would do well to step back, reflect on the progress of [X]’s time with his Father, and reconsider the impact on him of this litigation.

5. One must not be too critical, however, of the Mother for her lack of trust of the Father. Less than three years ago the Father’s life was quite dysfunctional. He was a risk to himself, to [X], and arguably even to the Mother. She continues to fear him. It is possible that Dr M was unnecessarily dismissive of the Mother’s concerns about past family violence, though Dr M seemed more focused on future risks, and the impact of behaviour on [X] which was absent. The Mother struggles to accept that the Father can change, even though there are objective indications to suggest that he has done just that. Life moves on. It is the clear policy of family law in Australia that [X] should have the benefit of both parents in his life and, if there is no evidence of any risk of harm, this will involve substantially more time with his Father than is currently the case.

6. Despite the Father’s tumultuous past, and even the Mother’s past difficulties, Dr M was positive about their parenting capacity. 

7. The Court has already expressed some reservations about parental attitudes, but these are perhaps best dealt with at a Final Hearing, rather than in the present Interim context.

8. The Court finds the Independent Children’s Lawyer’s proposal to be the most child focused. The Mother’s proposal is far too conservative, and reflects her anxieties rather than the realities of risk in this case. The Father’s proposal is far too ambitious, and ignores the need to proceed sensitively from [X]’s perspective, and with some regard to the Mother’s anxieties.

9. The Court is attracted to the Independent Children’s Lawyer’s proposal that the Father’s time move from supervision, to being monitored by one of the Paternal Grandparents or Paternal Aunts.

10. The restraints proposed by the Independent Children’s Lawyer about the Father’s consumption of alcohol before he spends time with the Child is, perhaps, excessive. She proposed 48 hours, as did the Mother. The Father proposed 12 hours.  The Court will order 24 hours. The objective evidence before the Court simply does not warrant a more onerous restriction particularly when the orders provide for CDT testing. It is the testing that will provide the most reliable indicator of the Father’s consumption of alcohol.

11. This matter is listed for hearing for three days in June 2019. I had considered transferring the matter to the Family Court of Australia as I apprehend that a case involving at least seven witnesses (parents, Paternal Grandparents, Maternal Grandparents, Expert) would take at least four days, and probably more. The reality is that a transfer to the Family Court of Australia would not result in this case being heard any earlier and, in any event, with current proposals for restructure of the Family Law Court it is unclear where this case will end up and who, indeed, will be hearing it. The safest course will be to retain it and to seek to increase the hearing length to four days whilst maintaining the same dates.

12. There was an unfortunate delay in delivering these Reasons for Judgment. This was attributable to the pressure of work on the Wollongong Registry. Some of the time-frames in the Independent Children’s Lawyer’s proposal will therefore need to be varied slightly to maintain the intention which underpins the Orders, and the developmental needs of [X].

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 10 August 2018

First Schedule

The Father’s Proposed Orders

1. That all previous Orders be discharged.

2. That the Mother and Father have joint parental responsibility for the child [X] born 2015. 

3. That the child live with the Mother

4. That the child spend unsupervised time with the Father  as follows: -

   Forthwith

   4.1.1Every Thursday from 4.30pm until 6.30pm.

   4.1.2On Saturday 21 July 2018 from 8.00am until 2.00pm;

   4.1.3On Sunday 22 July 2018 from 8.00am until 2.00pm;

   4.1.4On Sunday 28 July 2018 from 8.00am until 2.00pm;

   4.1.5On Sunday 29 July 2018 from 8.00am until 2.00pm

   From Saturday 4 August 2018;

   4.1.6Each Thursday from 4.30pm until 6.30pm. 

   4.1.7Each alternate weekend on Saturday and Sunday from 8.00am until 6.30pm

   From Saturday 15 September 2018;

4.1.8Each Thursday from 4.30pm until 6.30pm.

4.1.9Each alternate weekend on Saturday and Sunday from 8.00am until 6.30pm Sunday.

From Saturday 2 February 2019

4.1.10Each Thursday from 4.30pm until 6.30pm.

4.1.11Each alternate weekend from 4.30pm Friday until 6.30pm Sunday

On Special Occasions as follows-:

4.1.12On Christmas Day 2018 from 11.00am until 6.30pm

4.1.13On Good Friday 2019 from 8.00am until 6.30pm

4.1.14On the Father ’s Birthday from 8.00am until 6.30pm

4.1.15On the Paternal Grandmother and Paternal Grandfather’s Birthday from 4.00pm until 6.30pm if the birthday falls on a weekend and if it falls on a weekend from 8.00am until 6.30pm

4.1.16That the Mother will not unreasonably object to the child [X] attending birthday parties arranged for [X]'s Paternal cousins and the Father will provide at least 14 days’ notice of such birthday parties.    

1. For the purposes of changeover, the Father will collect the child from the Maternal Grandparent's home and will remain in the car with the Mother or Paternal Grandmother to place the child in his car seat and the Mother to collect the child from the Maternal Grandparents home at the conclusion of time with the Mother to remain in the car and the Father or Paternal Grandparents to place the child in his car seat.

2. That the Father is restrained from consuming alcohol whilst the child is in his care, or for 12 hours before any period spent with the child.

3. That the Mother is restrained from consuming alcohol in excess of the legal limit for driving, being 0.05 whilst the child is in her care, or for 12 hours before any period of caring for the child.

4. That the Mother and Father are restrained from consuming any prohibited drugs, or any prescribed medication unless it is prescribed for them by a doctor and only taken in accordance with the prescribed dosage.

5. That the Mother and Father shall refrain from making critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of the child and that the parents shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of their family in the presence or within the hearing of the child, or immediately remove the child from the hearing of such comments.

6. That the Mother will ensure that the Father is always referred to as "Dad" or "Daddy" when speaking to the child.

7. That the Mother and Father inform the other, as soon as is reasonably practical of:-

   a.   any serious medical problems or illnesses suffered by the child;

   b.   any medication that has been prescribed to the child that needs to be taken while the child is in the care of the other parent;

   c.   any specialist appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the child;

   d.   details of any school or day care attended by the child;

   e.   any sporting, social, school or religious functions which the child is to attend;

   f.   their residential address or any change to their address;

   g.   the name of any other person with whom they reside, and any change thereto;

   h.   telephone contact number and any change to such number; and

   i.    Any other matter relevant to the welfare of the child.

8. That the Respondent Mother provide to the Applicant Father, in a timely manner, copies of all notices received from the child's school and details of all functions, parent and teacher nights and other activities to which the parents are invited.

9. That the Respondent Mother pay the Applicant Father 's costs.

The Mother’s Proposed Orders

The Mother seeks Orders in accordance with her Response filed 22 May 2018 that is:

1.That the child namely [X] born 2015 (“the child”) spend time with the father as follows:

(a)       Stage 1

i.      Each Thursday from 4.30pm until 6.30pm;

ii.      Each Saturday from 8.00am until 3.00pm.

(b)       Stage 2

i.      Commencing 11 August 2018 and thereafter in alternate weeks on Saturday from 8.00am until 12noon and Sunday from 9.00am until 5.00pm;

ii.      Commencing 16 August 2018 and thereafter on alternate Thursdays from 4.30pm until 6.30pm.

(c)       Stage 3

i.      Commencing 9 February 2018 and thereafter in alternate weeks on Saturday from 8.00am until 3.00pm and Sunday from 9.00am until 5.00pm.

(d)       Special occasions

i.      On Christmas Day from 2.30pm until 7.00pm;

ii.      Over the Easter long weekend on Saturday from 9.00am until 5.00pm and Sunday from 4.00pm until 7.00pm;

iii.      On the Father’s birthday from 9.00am until 5.00pm;

iv.      On the child’s birthday from 3.00pm until 7.00pm;

v.      On Father’s Day from 9.00am until 2.00pm.

2.         That notwithstanding any Order to the contrary, the child shall be in the mother’s care on the following special occasions:-

(a)    On the weekend of Mother’s Day from 6.00pm Saturday until 6.00pm Sunday;

(b)   From 6.00pm Christmas Eve until 2.30pm Christmas Day;

(c)    Over the Easter long weekend, from 5.00pm Saturday until 4.00pm Sunday;

(d)   On the mother’s birthday from 8.00am until 6.00pm;

(e)    On the child’s birthday from 8.00am until 3.00pm.

3.         That the father’s time continue to be supervised by the paternal family pursuant to the Orders made 2 February 2017, EXCEPT

(a)    Commencing 6 December 2018, the father’s mid-week time pursuant to Order 1(b)(ii) and herein be unsupervised provided that the father does not take the child to licensed premises or bring the child into contact with persons who are consuming or under the influence of alcohol.

4.         That changeover occur at the residence of the maternal grandparents.

5.         That changeover be facilitated by the paternal grandparents namely Mr M and Ms S or the paternal aunts namely Ms N and/or Ms K (“the father’s nominees”).

6.         That time pursuant to Order 3(a)  herein shall not commence until the father’s nominees provide a written Undertaking to assess the father prior to the child transitioning into his care and if the father appears to be affected by drugs or alcohol or otherwise acting inappropriately, shall immediately notify the mother and return the child to her care forthwith.

7.         That the father submit to supervised and chain of custody Carbohydrate Deficiency Transferrin (“CDT”) testing within 24 hours of being requested to do so by the Independent Children’s Lawyer and no more than three (3) requests shall be made in any three (3) calendar month period.

8.         That the father provide a copy of such CDT test results to the Independent Children’s Lawyer and Mother’s legal representatives forthwith upon receipt of the same.

9.         In the event the father defaults in complying with Order 7 (including failing to submit within the requisite timeframe) or such CDT test reveal results of 1.4 percent or higher the father’s time with the child pursuant to Order 3(a) herein be suspended and revert to being supervised in accordance with the Orders made 2 February 2017.

10.      That communication between the parents be restricted to the Talking Parents App.

11. That pursuant to section 68B of the Family Law Act 1975, the father be restrained by injunction from:

(a)   Consuming alcohol while the child is in his care or within 48 hours prior to caring for the child;

(b)  Attending changeover;

(c)  Bringing or allowing the child to come into contact with Mr D, Mr A, Mr N and Mr C;

(d)  Bringing or allowing the child to come into contact with his brother Mr J unless the paternal grandparents or Ms N and/or Ms K are present;

(e)  Smoking in the child’s presence or allowing the child to remain in the presence of third parties who are smoking;

(f)   Communicating with or contacting by any means including through any third person the mother except through the Talking Parents app;

(g)  Approaching or coming within 100 metres of the mother;

(h)  Approaching or coming within 100 metres of the mother’s or child’s place of residence, employment, educational facility and any other institutional place of regular activity or engagement should he become aware of the same;

(i)    Threatening, intimidating, harassing, molesting, stalking, threatening to cause bodily harm to the child, the mother, any person in whose care the child may be, the mother’s family or the mother’s partner.

12.      That the following Orders be discharged insofar as they relate to the mother:

(a)   Order 12 of the Orders made 21 December 2016;

(b)  Order 7(e) of the Orders made 21 December 2016;

(c)  Order 6 of the Orders made 2 February 2017;

(d)  Order 13(e) of the Orders made 2 February 2017.

13.      That Order 1 of the Interim Consent Orders made 21 December 2016 be suspended.

14.      That in all other respects the Orders made 21 December 2016 and 2 February 2017 be affirmed.

The Independent Children’s Lawyer’s Proposed Orders

The Court Orders; PENDING FURTHER ORDER:

1. Pursuant to Section 65Y(2) of the Family Law Act 1975, the Mother be at liberty to remove the child from the Commonwealth of Australia in June/July 2018 to enable the child to travel overseas namely to (countries omitted) for one period not exceeding four (4) weeks and one (1) day.

2. That the Father's time with the child [X] born 2015 pursuant to the interim parenting Orders made 2 February 2017 and Notation A of Orders made 22 June 2017 ("the Orders") be varied to be (subject to these Orders) as follows:

2.1Each Thursday from 4.30pm to 6.30pm;

2.2From 8am to 2pm on the following Saturdays; 2 June 2018, 9 June 2018, 21 July 2018 and 28 July 2018;

2.3Until 29 July 2018, from 8am to 6.30pm each Sunday;

2.4From 4 August 2018, for four (4) weekend periods; each alternate weekend day on Saturday from 8am to 6.30pm, and on Sunday from 8.00am to 6.30pm;

2.5Thereafter (commencing not before 29 September 2018); each alternate weekend from Saturday 8am to Sunday 6.30pm;

2.6On Christmas Day 2018 from 2.30pm until 6.30pm Boxing Day;

2.7On the Father’s Birthday from 8am to 6.30pm;

2.8Such other time as agreed in writing between the parents.

1. That subject to Order 4 below, the Father’s time is to be supervised by one of the paternal grandparents or the paternal aunts.

2. That once the father has completed a CDT test in accordance with Order 16 or 17 below which indicates results under 1.4%, then his time shall, subject to Order 19; thereafter be monitored by one of the Paternal Grandparents or paternal aunts (the ‘Monitors’) during his time with the child, and upon those Monitors providing written undertakings that they would comply with the terms below and these Orders; as follows:

4.1That until 31 August 2018, for one hour at the commencement of the Father’s time and one hour at the end of the Father’s time.

4.2That from 1 September 2018 until January 2019 for 30 minutes at the commencement of the Father’s time and 30 minutes at the end of the Father’s time.

4.3That any overnight time that the Father spends with the child be spent at the home of the paternal grandparents, or in their presence from 8pm until 6am.

4.4That should the father appear affected by illicit drugs, alcohol or behave inappropriately, then the ‘Supervisor or Monitor’ shall remove the child from the care of the father and shall not allow the child to spend time with the child further during that period of time.

4.5In the event that the Supervisor or Monitor needs to remove the child from the father’s presence in Order 4.3 above, then they shall advise the mother of the incident when the child is returned to the Mother’s care.

1. That the Father’s time in Order 2 be suspended between 15 June 2018 and 18 July 2018 to enable to child to go overseas with the Mother.

2. That during the Mother’s overseas travel with the child, the Mother facilitate one telephone call per week between the child and Father at a time and day to be agreed between the parties, and in lieu of agreement as specified as to date and Australian Eastern Standard time by the mother in the child’s communication app prior to the travel.

3. That notwithstanding any Order to the contrary, the child shall be in the Mother’s care on the following special occasions:

7.1On the Mother’s Birthday from 8am to 6.30pm;

7.2On the child’s birthday from 2pm to 6.30pm;

7.3On Christmas Day from 6.30pm Christmas Eve until 2.30pm;

7.4On the Mother’s Day weekend from 6.30pm on the Saturday until 6.30pm on the Sunday.

1. That Order 4 made on 2 February 2017 be discharged and for the purposes of changeover one of the paternal grandparents, or the paternal aunts, or such other person agreed between the parties, are to collect and return the child at the residence of the maternal grandparents, and the father is not to be present during such changeover.

2. That within 7 days the parents shall do all such things so as to sign up to the ‘talkingparents.com’ App and shall communicate with each other in relation to the child through the App with all communication to be in a child focussed and respectful manner.

3. That through the talkingparents.com App and within 10 days the Mother shall advise the Father of the child’s routine including sleep times and any dietary or medical requirements, and shall update the father with any change to the routine from time to time.

4. That during any time that the father spends with the child, that he shall, as far as possible, maintain the child’s routine in regard to sleep and dietary requirements that the child has in the Mother’s care.

5. That the parents shall ensure that they do not swear in the presence of the child and use their best endeavours to ensure that no other person swears in the presence of the child and removes them from the hearing of any person swearing.

6. That each parent shall encourage the child to call the other parent mum or dad and correct the child if he refers to the other parent by their given name.

7. That the father be restrained from:

14.1consuming alcohol during time he spends with the child or within 48 hours prior to spending time with the child;

14.2using any prohibited drugs or any prescription medication unless it is prescribed for him by a doctor and only taken in the prescribed dosage

14.3taking the child to a hotel, pub or licenced premises, with the exception of the sole purpose of dining in the bistro/food area during a family celebration;

14.4Bringing the child into contact with the following persons: Mr N, Mr A, Mr C and Mr D.

14.5Allowing the child to be in the company of the paternal Uncle Mr J without one of the Monitors being present;

14.6Attending the changeover of the child

14.7Approaching or coming within 100 metres of the mother;

14.8Approaching or coming within 100 metres of the mother’s place of residence or employment.

1. That within 7 days the Father attend upon a General Practitioner to obtain a referral to a reputable Pathologist in the local area for the purpose of undertaking supervised blood testing to be conducted for the measurement of CDT testing (Carbohydrate Deficient Transferrin) for the presence of alcohol.

2. That within 7 days, the Father is to undertake through a reputable pathologist a Carbohydrate Deficient Transferrin (CDT) blood test and provide a copy of the test results to the Independent Children's Lawyer and the solicitor for the Mother within 24 hours of receiving the test results.

3. That within 48 hours of a request being made in writing by the Independent Children’s Lawyer (ICL), the Father is to undertake through a reputable pathologist a Carbohydrate Deficient Transferrin (CDT) blood test and provide a copy of the test results to the Independent Children's Lawyer and the solicitor for the Mother within 24 hours of receiving the test results.

4. That the ICL be permitted to make such random requests for CDT testing of the father not more than once per month.

5. That should the results of the Father’s CDT testing indicate a result of 1.4 percent or higher then leave is granted to the ICL to request the matter to be relisted and the father’s time with the child shall revert to being supervised by either of the paternal grandparents or aunts until the matter is relisted before the Court.

6. That the father ensure that he feeds and baths the child during his time with the child, prior to him being returned to the mother

7. That within 6 months the father shall do all such things so as to engage in and complete the Circle of Security parenting Course.

8. That for at least 6 months the father attend relapse prevention counselling for drug and alcohol abuse.

9. That the parents be restrained from:

23.1Smoking in the vicinity of the child or allowing the child to remain in the presence of other persons who are smoking;

23.2Posting on Facebook or any other social media website any information or material pertaining to the Family Law dispute between the parties and / or encouraging other persons to post information and comments that are derogatory, critical and demeaning to the other parent or members of their family.

1. That the following Orders be discharged in so far as they relate to the Mother:

24.1Order 12 of the Orders made 21 December 2016 in regard to urinalysis testing; and

24.2Order 7(e) of the Orders made 21 December 2016 and 13(e) of the Orders made 2 February 2017 regarding disclosure of her residential address.