Cuinn & Freund
[2024] FedCFamC1F 591
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cuinn & Freund [2024] FedCFamC1F 591
File number(s): SYC 1199 of 2021 Judgment of: ALTOBELLI J Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – PARENTING – Where the parties are largely in agreement – Where the parties cannot agree on the father’s time regular or special occasion time with the children – Where it is alleged that the children are unsafe with the father – Where allegations of family violence and excessive alcohol consumption are made – Where the safety risk is contended to be mitigated by breathalyser testing – Where the risk is not mitigated – Where increased weekend time with the father is ordered – Where no overnight, special occasion or holiday time is ordered. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, s 60B, 60CA, 60CC, 61DA, 61DAA, 65DAA, s 66CC, 102NA
Family Law Amendment Act 2024 (Cth)
Cases cited: Adamson & Adamson(2014) FLC 93-622 ; [2014] FamCAFC 232
Cao & Cao (2018) FLC 93-880; [2018] FamCAFC 252
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Keane v Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
M v M (1988) 166 CLR 69; [1988] HCA 68
Marvel v Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
Wei & Xia (2024) FLC 94-186; [2024] FedCFamC1A 65
Division: Division 1 First Instance Number of paragraphs: 90 Date of hearing: 8–9 July 2024 Place: Sydney Counsel for the Applicant: Ms Robinson Solicitor for the Applicant: Solve Legal Counsel for the Respondent: Ms Spain Solicitor for the Respondent: Bartier Perry Lawyers Solicitor for the Independent Children's Lawyer: Mr MacDiarmid ORDERS
SYC 1199 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CUINN
Applicant
AND: MS FREUND
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
Spend time with arrangements
1.The children, X born 2012 and Y born 2016 (“the children”), spend time with the Applicant father (“the father”) every Sunday from 9.00 am to 6.00 pm.
Make-up time mechanism
2.The Respondent mother (“the mother”) may elect one weekend, no more frequently than once every three months, to travel with the children.
3.If the mother elects to travel the following must occur:
(a)The mother must communicate that decision with the father via SMS and email at least one month in advance of the travel weekend;
(b)The mother must nominate two Saturdays suitable for the father to spend make-up time with the children in the next calendar month after the elected travel has occurred and communicate the same to the father via SMS and email; and
(c)The father may elect one of the two nominated Saturdays and communicate the same to the mother via SMS and email.
4.Upon the process in Order 3 occurring:
(a)The father’s regular time pursuant to Order 1 is suspended; and
(b)The father shall spend time with the children on the nominated Saturday from 9.00 am to 6.00 pm.
5.The parties must do all things reasonably necessary to facilitate the change of time outlined in Orders 2–4.
Special occasion time arrangements
6.The children shall spend additional special occasion time with the father as agreed in writing between the parties and failing agreement as follows:
(a)On each of the children’s birthdays from 10.00 am to 3.00 pm if the birthday falls on a non-school day, and 4.00 pm to 7.30 pm if the birthday falls on a school day;
(b)In even numbered years on Christmas Day from 9.00 am to 3.00 pm;
(c)In odd numbered years on Christmas Day from 2.00 pm to 7.00 pm;
(d)In even numbered years on Easter Sunday from 2.00 pm to 7.00 pm; and
(e)In odd numbered years on Easter Sunday from 9.00 am to 3.00 pm.
7.In the event that the children’s time with the father pursuant to Order 1 falls on Mother’s Day, the father’s time with the children shall be suspended and the children shall remain with the mother on Mother’s Day.
8.In the event the children are not ordinarily in the father’s care on Father’s Day, the children shall spend time with the father on Father’s Day each year from 9.00 am to 6.00 pm.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cuinn & Freund has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the final orders that the Court has made in relation to two children, X who is 12 years old (“X”), and his sister Y who is seven years old (“Y”) (“the children”). The children currently live with the mother and spend time with the father each alternate Sunday from 9.00 am to 6.00 pm.
BACKGROUND
The father is the applicant in this matter (“the father”). He is 39 years old and is employed in construction. The father currently lives in Town B in Region D of New South Wales, but works and resides in City C during the week. The mother is the respondent (“the mother”). She is 32 years old and currently works part-time at a recreational venue. The parties commenced cohabitation in 2010, married in 2014, separated on 16 February 2018, and were divorced in 2019. The mother has since re-partnered and lives with Mr E.
The children are generally in good health. X and Y attend a local school and commenced year seven and year two in 2024, respectively. The children have a busy extra-curricular schedule. Y undertakes various extra-curricular classes, whilst X attends sport twice weekly. Y has been diagnosed with a medical condition that resulted in her hospitalisation in early 2019 and mid‑2019.
The matter first came before the Court on 2 June 2021 where Judge Boyle, as her Honour then was, made interim orders by consent. The parents agreed for the children to live with the mother, for the children to spend regular unsupervised day time with the father, and for the children to spend special occasion time with the father on their birthdays, Christmas Day, Easter Sunday, and Father’s Day. The father was ordered to submit to a carbohydrate deficient transferrin (“CDT”) testing regime, to enrol in a parenting course and an anger management course, and was restrained from approaching within 50 meters of the mother. An Independent Children’s Lawyer was appointed, and a Family Report was ordered.
On 2 March 2022, orders were made by Judge Boyle, as her Honour then was, in chambers and by consent, in circumstances where the father had not complied with the CDT testing regime (the mother’s affidavit, paragraphs [114]–[128]). The father’s time with the children was predicated on his compliance with a new mobile breathalyser testing regime. On 17 April 2023, an order was made under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) following allegations of family violence perpetrated by the father. On 8 July 2024, Judge Beckhouse made an order transferring the proceedings to the Federal Circuit and Family Court of Australia (Division 1).
The matter came before the Court for final hearing on 8–9 July 2024.
To both party’s credit, they arrived at the hearing in agreement on most parenting issues. They produced an amended Joint Minute of Order dated 8 July 2024 (“the joint minute”) on the first day of the hearing. The Court made orders by consent reflecting the terms of the joint minute. The joint minute has been reproduced in full in the first schedule to these reasons.
These orders provide for the mother to have sole parental responsibility and sole decision making on major long-term issues for the children, for the children to live with the mother and spend time with each party on the children’s birthdays, Father’s Day and Mother’s Day. The orders provide for the father to communicate with the children weekly on Tuesday and Thursday at 3.30 pm and also for the children to be permitted to travel internationally.
The father is obligated to use a mobile breathalyser unit before and after spending time with the children, with his time with the children to be suspended if he fails to comply. He is restrained from consuming alcohol when the children are in his care and must not approach within 50 meters of the mother’s residence or place of work. The father must also enrol into a Men’s Behavioural Change course and a Tuning into Teens parenting course.
The parties were unable to arrive at a full agreement on the frequency and duration of the children’s regular and special occasion time with the father. The mother believes that the father poses an unacceptable risk to the children’s safety and should not have increased time, or overnight time with the children. The father believes that any risk to the children’s safety associated with his alcohol consumption will be ameliorated by submitting to a breathalyser testing regime.
COMPETING PROPOSALS
All parties produced an updated Minute of Order on the final day of the hearing which differed from their original positions.
The father proposed two alternatives. He sought orders that would incrementally increase his time with children, as well as introduce overnight time. The father proposed that over a six‑month period his time with the children increase from 9.00 am to 6.00 pm every alternate Sunday, to time and overnight time each alternate weekend from after school or 4.00 pm on Friday to 6.00 pm Sunday. The father also sought that the children spend block time with him during the December and April school holidays, as well as special occasion time on their birthdays, Christmas Eve/Day, Boxing Day, Easter, and Father’s Day. Alternatively, in the absence of any overnight time, the father sought time with the children every Sunday from 9.00 am to 6.00 pm. The father’s proposed orders are reproduced in full in the second schedule to these reasons.
The mother sought orders that maintain the current time the children spend with the father. This includes the father spending time with the children each alternate Sunday from 9.00 am to 6.00 pm, as well as time on special occasions including the children’s birthdays, Father’s Day, Christmas Eve/Day, and Easter Sunday. The orders sought by the mother are reproduced in full in the third schedule to these reasons.
The Independent Children’s Lawyer sought similar orders to the father and adopted his mechanism for gradually increasing time. The orders sought by the Independent Children’s Lawyer are reproduced in full in the fourth schedule to these reasons.
ISSUES
The issues that remain to be determined by the Court are:
(1)Whether the evidence of any party impacts upon their credibility;
(2)Whether the father poses a risk to the safety of the children, and if so how is that risk best managed;
(3)What is the significance, if any, of the family violence allegations made by the mother against the father;
(4)What significance, if any, does the father’s current and future work placement have on his ability to spend time with the children; and
(5)What orders for the father to spend time with the children are in their best interests?
THE EVIDENCE
In support of his case, the father relies upon the following material:
(a)Outline of Case Document filed 5 July 2024;
(b)Initiating Application filed 23 February 2021;
(c)His affidavit filed 18 June 2024;
(d)Notice of child abuse, family violence or risk filed 10 May 2021; and
(e)Various documents tendered and marked as Exhibits A1–A5.
In support of her case, the mother relies upon the following material:
(a)Outline of Case Document filed 5 July 2024;
(b)Response to an Initiating Application filed 10 May 2021;
(c)Her affidavit filed 21 December 2023;
(d)Affidavit of Mr E filed 21 December 2023;
(e)Notice of child abuse, family violence or risk filed 10 May 2021; and
(f)Various documents tendered and marked as Exhibits R1–R18.
In support of his case, the Independent Children’s Lawyer relies upon the following material:
(a)Outline of Case Document filed 7 July 2024;
(b)Child Inclusive Conference Memorandum of Court Child Expert Ms F dated 25 October 2021;
(c)Family Report of Ms H dated 29 July 2022; and
(d)Various documents tendered and marked as Exhibits ICL1–ICL2.
The Minutes of Order provided by the parties to the Court on 9 July 2024 are tendered as the Court’s exhibits and have been marked in chambers. The father’s Revised Minute of Order is marked as Exhibit C1, the mother’s Minute of Order is marked as Exhibit C2, and the Independent Children’s Lawyer’s Minute of Order is marked as Exhibit C3.
The father, the mother, and the Court Child Expert Ms H (“the CCE”), were cross-examined.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Act. The Family Law Amendment Act 2024 (Cth) (“the Amendment Act”) came into effect on 6 May 2024 and made substantive amendments to the previous Act which apply to these proceedings. In determining parenting matters under Part VII of the Act the Court must still regard the best interests of the child as the paramount consideration: s 60CA.
The objects of Part VII are set out at s 60B:
60B Objects of Part
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In regard to parental responsibility, the presumption of equal shared parental responsibility as created by the previous s 61DA of the Act has been abolished. Instead, s 61D(3) of the Act provides the Court with the ability to deal with the allocation of responsibility for making decisions in relation to children as follows:
61D Parenting orders and parental responsibility
…
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Section 61DAA of the Act provides the Court with an understanding of what joint decision‑making about major long-term issues entails:
61DAA Effect of parenting order that provides for joint decision-making about major long-term issues
(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Subject to any order to the contrary, s 61DAB clarifies that if a child is spending time with a person under a parenting order, the order is not taken to require that person to consult with a person who has parental responsibility about decisions that are made in relation to the child that are not major long-term issues.
Because s 60CA and s 60B refer to the best interests of the child, the Court must consider s 60CC which specifies how the Court determines what is in a child’s best interests:
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
It should further be noted that due to the repeal of the former s 65DAA of the Act, there is no longer the statutory requirement for the Court consider equal time or substantial and significant time. Cases that refer to this section will need to be carefully considered as to whether they still apply in limited ways, if at all.
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The recent amendments to the Act
Pursuant to subsection 60CC(2)(a) of the Act the Court must have regard to what arrangement would promote the “safety” of the child and each person who has care of the child (whether or not a person has parental responsibility for the child).
“Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning (Momcilovic v The Queen (2011) 245 CLR 1 at [56]). This Court is drawn to a view that “safety” is a state in which hazards or conditions leading to physical, psychological or material harm are controlled in order to preserve the health and wellbeing of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child the most optimal protection from harm.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence order previously or currently in place.
The assessment of risk, or the existence of indicators of potential harm, is an evidence-based conclusion referable to the statutory framework and is not discretionary (Isles & Nelissen (2022) FLC 94-092 at [84]). The finding about whether an unacceptable risk to safety exists, based on known facts and circumstances, is either open on the evidence or it is not (Evidence Act 1995 (Cth) s 140(2)).
The central task of the Court is to assess the risk of harm posed to the child and to determine what orders should be made to ameliorate that risk. Intrinsic to that process is the need to assess the strength of the evidence from which it is said the risk should be inferred (Cao & Cao (2018) FLC 93-880 at [46] (“Cao”)). Inconsistencies and anomalies can reduce the weight given to evidence (Cao at [56]).
The Court’s function is discharged by examining the evidence carefully to determine whether it establishes an unacceptable risk of harm (M v M (1988) 166 CLR 69at [25]). Some risks to a child’s safety may be capable of amelioration by further order of the Court (Keane v Keane (2021) 62 Fam LR 190). A risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not (Fitzwater v Fitzwater (2019) 60 Fam LR 212 at [148]–[149]).
CREDIT FINDINGS
The Court acknowledges that in many parenting cases findings about the credibility of the parents is irrelevant, unnecessary and sometimes ultimately harmful (Adamson & Adamson (2014) FLC 93-622). In the circumstances of this matter, however, the Court believes that any assessment of the risk presented by the father to the safety of the children requires a finding of credibility in relation to his allegedly excessive alcohol consumption, family violence, and compliance with CDT testing.
The mother presented her evidence responsively, concisely, and in a matter-of-fact manner. At no stage did the Court have concerns about her memory relating to past events. She did not attempt to be an advocate in her own cause. Her answers to questions in cross-examination were child focused and were not self-defensive. The Court found her to be an impressive witness and accepts her evidence.
By contrast, the father often struggled to recall comparatively recent events, including facts pertaining to critical issues in this case, such as his alcohol purchases, allegations of family violence and consistent non-compliance with orders. The Court found the father to be an unconvincing witness and remains circumspect about his evidence.
Alcohol
On the topic of alcohol particularly, the Court formed the impression that the father’s answers were unresponsive and evasive. Where he did respond directly, he was selective in his evidence, seemingly in a bid to alleviate the Court’s concerns about any risk he poses to the children’s safety. The Court has concerns about the way the father detailed his alcohol consumption, especially in relation to the substantial gap between his admitted consumption of alcohol, and the amount he likely consumes based on conflicting evidence and impartial financial records.
The father maintained that he would never jeopardise his job by taking drugs or abusing alcohol (the father’s affidavit filed 18 June 2024, paragraph 108 (“father’s affidavit”)). Despite this, the father conceded that he consumes “about a carton of beer a week” and has a few more drinks if he goes out with work colleagues after work (the father’s affidavit, paragraph 107). When questioned about the size of the carton and the strength of the beer, he stated that he drinks a full strength 24-pack of beers. This amounts to 3.8 beers daily in addition to any alcohol he consumes whilst out with his friends. The Court does not know what this equates to in terms of standard drinks but infers that it is substantial.
The mother’s counsel took the Court to the father’s recent bank account statements for the period between 11 May 2024 to 10 June 2024 (Exhibits R9 and R10). The father’s transactions between 30 May 2024 and 1 June 2024 particularly caught the attention of the Court. On 30 May 2024, the bank statements suggest that the father made five purchases of beer, which he did not deny in cross-examination. On 31 May 2024, the statements detail $61.54 of potential alcohol related expenses. On 1 June 2024, another $213.59 was potentially spent on alcohol. When cross-examined about the collective impression created by the purchases, the father responded, “It doesn’t look good on a bank statement”. Whilst it is not possible to make findings from the evidence as to exactly how much alcohol the father consumes, it is clearly a substantial amount despite his protestations to the contrary.
The Court finds the father’s evidence about his alcohol consumption to be unreliable and incomplete. The reality is likely to be much greater than he concedes. His tendency to minimise what was plainly a critical issue in this case is disconcerting, and the Court’s concerns extend to other important aspects of his evidence.
Family violence
The Court holds significant concerns about the father’s ability to recall acts of family violence he may have perpetrated. Where the father did recall his behaviours, the Court is cautious to accept his evidence due to the habitual minimisation of his actions in the evidence he presents.
In the Family Report of Ms H dated 29 July 2022 (“Family Report”), the CCE gave the father limited credit for acknowledging that some of his behaviour towards the mother and Mr E was wrong. This recognition of fault, however, is only surface level. The CCE noted that “it does not seem that he has insight into the intimidating and threatening nature of this behaviour” (Family Report, paragraph 27). This may be related to the father’s view that the mother “has made many false allegations in relation to family violence” (Family Report, paragraph 27). The CCE concluded that the father’s communication “in the past has been problematic and abusive” (Family Report, paragraph 47). He appears to relate his poor behaviour to his emotions and is unable to show insight into how his behaviour may have impacted the mother and the children.
A clear example of this can be seen in the cross-examination of the father regarding the first Apprehended Domestic Violence Order (“ADVO”) issued against him in protection of the mother. On a date in early 2019, the father called and messaged the mother over 50–80 times (Exhibit R11) causing her to seek intervention from the New South Wales Police. When the father was asked if he sent the messages in question, he responded, “I don’t recall”. In the ADVO proceedings, the father denied the severity of his actions by asserting that the messages were “only harassing, not threatening”. This pattern of behaviour is likely a tactic designed to minimise the impact of his actions. If the father genuinely holds that belief, it reflects poorly on his insight into how his actions may have been experienced by the mother. In either event, the father’s actions add to the Court’s concerns about his memory, and/or credibility generally.
Compliance
When cross-examined on his failure to undertake a CDT test, the father was ambivalent and refused to accept personal responsibility. He attests to complying with every request by the mothers’ solicitors to submit to CDT testing (the father’s affidavit, paragraph 109). This is plainly incorrect. The father failed to comply with previous CDT testing orders made by Judge Boyle, as her Honour then was, on 2 June 2021. Pursuant to those orders the father was to submit to a CDT test after the publication of the orders, and within 24 hours after receiving a request from the mother’s solicitors. The father did not undertake testing after receiving requests from the mother’s solicitors dated 8 July 2021 (Exhibit R2), 8 September 2021 (Exhibit R4) and 8 December 2021 (Exhibit R7).
Similarly, within 28 days of the consent orders made 2 June 2021, the father was obliged to enrol in an anger management course and a post-separation parenting course. He was required to furnish the mother’s solicitor with a copy of his certificate of completion within seven days of his completion of the courses. The father did not comply with this order. The Court considers this evidence to further demonstrate the father’s pattern of unaccountability and minimisation of his actions.
It must be born in mind that the orders made on 2 June 2021 were made by consent. If the father was going to comply with any orders of this Court, it would likely be consent orders he had prior knowledge and approval of. The father’s genuine inability to comply with orders, or perhaps, blatant disregard for the Court, further undermines the credibility of any proposals he has made.
The father has demonstrated a historical propensity to disregard the Court’s authority. The Court does not accept the father’s contentions, express and implied, that he will comply with future orders of the Court. The Court is reticent to accept his evidence of compliance over that of the mother where they conflict.
THE EXPERT EVIDENCE
The expert evidence in this case was provided in the Family Report released to the parties on 1 August 2022. The CCE’s recommendations were for the mother to have sole parental responsibility, continue to have the children living with the mother, and to not change the father’s time with the children until the father permanently ceased his work in City C. She believed that any change to overnight time should occur slowly and be predicated on the father continuing to submit to breathalyser readings as per the orders in place at the time.
The CCE was cross-examined. She frankly acknowledged the limitations of the Family Report given that she had spoken to the children two years ago. She gave evidence to the effect that the Court should not make an order for the children to spend more than one overnight per fortnight with the father. This recommendation was largely due to the difficulties with maintaining independent oversight and tracking the children’s progress post-final orders, and the flexibility of the father’s work arrangements. The CCE also suggested that, should the Court have any reservations about the father’s ability to pick up the children after school on a Friday, it would be better to make an order for overnight time on the Saturday night only. The CCE indicated that the children’s time with the father could be increased to two to four nights during school holidays.
The CCE believed the breathalyser was a sound assurance to the mother regarding the father’s alcohol consumption. She urged the Court to be careful in ordering overnight time against X’s wishes, as he may “feel resentful towards the Court and both his parents that his views have not been heard and that could have an impact on his mental health”. She also warned that X is now of an age that he could “vote with his feet” and not abide by any Court order. The CCE concluded her evidence by stating that it was not the responsibility of the children to keep themselves safe in the father’s care.
Overall, the Court accepts the evidence of the CCE and the Family Report.
SECTION 60CC CONSIDERATIONS
Whether the father poses a risk to the children’s and the mother’s safety
Issues relating to the safety of the children are nuanced in this matter. The Court accepts that the evidence does not demonstrate the father has, since separation, acted inappropriately with the children because of his alcohol consumption. Indeed, the breathalyser testing regime and records provided by the father indicate that he was not above the legal limit for alcohol each time he commenced spending time with the children (Exhibit A4). This does not, however, preclude a finding that the children have been exposed to family violence during the parties’ marriage, or during the post-separation period.
From the Court’s perspective, the focus of the safety assessment must be on future risk. This future risk is intimately related to uncertainty about the father’s excessive alcohol use and any potential residual effects of historic family violence on the mother’s parenting capacity.
Alcohol consumption
The father assures the Court that he will not drink alcohol whilst the children are in his care. The weight afforded to this assurance is low. The father appears to have no ability or desire to reflect on his alcohol consumption, or act on it.
For example, in the Child Inclusive Memorandum by Court Child Expert Ms F dated 25 October 2021 (“the CIM”), the father reported that he consumed three to four beers each night mid-week and six to seven on the weekend (the CIM, paragraph 8). The father did not consider his consumption at the time of the CIM “a concern or problematic” (the CIM, paragraph 8). The father attended an alcohol support group twice before concluding “that he did not see the need to continue attending” (Family Report, paragraph 38).
The mother validly raises concerns about the father’s alcohol consumption. She holds no faith in the father’s ability to self-regulate his alcohol consumption if his time with the children were to increase. On the father’s own evidence, he drinks every single day. The Court does not accept that the father currently drinks minimally or socially. Based on the father’s own admissions and the more objective financial evidence, the Court finds that the father currently consumes alcohol to excess. Whilst there is no evidence that he is a risk to the children with the current time arrangements, this does not assure the Court that this will remain the same with overnight time.
The father’s assertions that his alcohol consumption has not, and will not, impact on his parenting capacity is also rejected. Currently the father’s time with the children is limited and during the day only. Extending the father’s time to include overnight visits renders the father responsible for the children’s essential needs at a higher level previously untested. Adding to this concern, the father did not complete the mandatory parenting course in accordance with the timeframe ordered by Judge Boyle, as her Honour then was.
This course may have equipped the father with the necessary skills to manage overnight time with the children. The father only provides evidence that he enrolled in the “[G Services] Men’s Behaviour Change Course” in May 2024 (the father’s affidavit, pages 36–37). He completed a seemingly separate course in June 2024 (Exhibit A2). When the father was questioned on what he might learn from any future courses, he responded with “no idea”. The Court suspects that the father only completed the course in June to appease the Court and that he had no real intention to learn and improve as a parent.
The mother’s concern about the safety of the children in the father’s care is both subjectively, and objectively, reasonable. At paragraph 39 of the mother’s affidavit, she alleges that there were occasions where the father fell asleep in the garage after drinking, passed out on X’s bed whilst X was sleeping or passed out drunk on the matrimonial bed. No harm to the children occurred during these occasions. The mother astutely raised in cross-examination that the children’s safety is not assured if this occurs in the future. The CCE holds similar reservations (Family Report, paragraph 77). For example, given Y’s medical issues, if the father fell asleep by virtue of excessive intoxication, he might be unable to respond to a medical episode during the night. This might endanger the safety of at least one child.
In accepting the mother’s evidence, the father’s consumption of alcohol was also shown to have impacted his parenting capacity during the relationship. In May 2016, the father failed to put X to bed as he was intoxicated to the stage that he nearly injured himself (the mother’s affidavit, paragraph 80).
The Court is simply not prepared to take the risk of believing the father’s unreliable word in the face of overwhelming factual and inferential evidence to the contrary. The Court is not required to find that the father will drink whilst the children in his care. Nor is it required to find that the father will be unable to care for the children if overnight time is ordered. The Court is required to, and does, find that the children will be unsafe if overnight time with the father is ordered.
Whether the safety issues arising from the father’s alcohol consumption can be mitigated
The father currently poses a risk to the children. All proposals before the Court require the father to submit to a breathalyser test through an application 45 minutes prior to commencing time with the children, and within 45 minutes after the conclusion of this time. This testing is contended to mitigate the risk the father poses to the children.
The breathalyser testing regime logically cannot do so. A test before visitation merely reassures the mother that the father has not been drinking, at most, the night before. The testing regime does not prevent the mischief at which it was directed. To ameliorate the risk posed by the father, the alcohol testing must prevent the mischief of the father drinking alcohol. Under the current orders, provided the father has no alcohol in his system, he is free to collect the children. There is no mechanism to monitor whether the father consumes alcohol whilst the children are then in his care. The only method by which the mother can ascertain if this has occurred is through the breathalyser result at the conclusion of the father’s time with the children. In this sense, the potential risk posed by the father to the children has not been ameliorated during their time with him.
It is only upon the father providing a test with a positive blood alcohol indication after the conclusion of the time, that the mother becomes retrospectively alert to this risk. If the father chooses not to submit to the test, or if the breathalyser application fails, the mother has no ability to become aware of any risk. The mother’s evidence details significant issues with the reliability and timeliness of the breathalyser app (the mother’s affidavit, paragraph 143). The father denies that there have been any issues in this regard (the father’s affidavit, paragraph 112).
The mother’s affidavit highlights five specific incidents of the testing regime failing and provides a fulsome background as to the cause of these faults (the mother’s affidavit, paragraph 132–145). The mother’s evidence is preferred over that of the father. Consequently, the breathalyser testing regime, under certain circumstances, may only function as a method by which the mother can merely retrospectively identify potential harm to the children.
Under the current arrangements, any need that the father has to consume alcohol can be satiated after he returns the children to the mother. If the children were to start spending overnight time with the father, he would not have this opportunity. There can be little reassurance that the father will not attempt to drink at night based on his own admissions of daily drinking. The mother suggested that the father may try to flout the testing regime by only consuming alcohol after he has completed his final test for the night. The Court accepts the risk that this could occur, due to the father’s highly selective approach to complying with Court orders, and manifest deficit in insight about his problematic alcohol consumption.
The mother’s counsel submitted to the Court that we cannot know how long the father can abstain from consuming alcohol. This is a powerful submission. The breathalyser scheme does not solve the root issue of putative harm and has not yet been tested with overnight visits. Consequently, the Court finds that the agreed tests will not provide adequate mitigation of the risks posed by overnight time with the father.
Family violence
The mother alleges that the father was physically, verbally, and psychologically abusive towards her, both during the relationship and post-separation. The mother maintained a similar position during the Family Report interviews (Family Report, paragraph 34). She detailed occasions where the father destroyed marital property, threatened animals on the property, harassed and stalked her. She claims that the father’s aggression increased when he consumed alcohol and that she was worried about how this would impact the children as they grow older (Family Report, paragraph 38). The father denies having perpetrated any family violence against the mother.
The father has also failed to comply with orders of this Court, and the Local Court, designed to ensure the mother’s safety. The mother has been subject to three ADVO’s pertaining to the father. The first ADVO was issued in early 2019. On 2 June 2021 Judge Boyle, as her Honour then was, made complimentary orders by consent restraining the father under s 68B of the Act. The father admits to breaching the first ADVO on at least three occasions (the father’s affidavit, paragraph 65). By proxy, the father also admits to breaching the restraints imposed by the orders made 2 June 2021. The mother provides extensive evidence that the father similarly contravened more recent s 68B restraints, and the mother’s third ADVO. In the father’s own material, he estimates “a total of 13 breaches” (the father’s affidavit, paragraph 67).
The Court accepts the evidence of the mother over that of the father regarding family violence. The mother provides corroborating evidence of her claims where possible, and, where cross‑examined on her allegations she presented her evidence responsively, concisely, and in a matter-of-fact manner.
On balance, I find that the allegations of family violence made by the mother are established notwithstanding the father’s denials. Each of the following events individually, and failing that, collectively constitute family violence under s 4AB of the Act:
(1)During the matrimonial relationship, the father committed varying threatening and violent acts that caused the mother to feel fear. These include attempting to kill an animal on the parties’ property, punching a mirror in the parties’ bedroom whilst drunk in or around 2014, smashing a radio on the ground during a disagreement with the mother in 2014, and pulling up the handbrake in the mother’s car whilst she was driving in 2015;
(2)During the post-separation period the father harassed the mother through various fake social media accounts named “[Ms Freund] aka […]”, “[Ms] Adultery [Freund] marriedtwokids” and “[Ms Freund] Adultery” (Exhibit R12);
(3)In early 2019, the father harassed the mother by calling and messaging her over 50–80 times (Exhibit R11);
(4)The father stalked the mother on at least two occasions – early 2019 and late 2019; and
(5)The father contravened orders of the Local Court and this Court at least 13 times causing the mother to fear for both her own and the children’s safety.
I also conclude that the children have been exposed to family violence during and after the parties’ marital relationship. I find that:
(1)During the marriage, in mid-2016, the father exposed X to an altercation between himself and his brother. During this altercation, the father and X had to lock themselves in a garage for protection. X was clearly distressed and phoned the mother five times between 8.00 pm and 10.30 pm; and
(2)In the post-separation period, the children have been exposed to threats of death and personal injury from the father towards Mr E. The most notable incident of this occurred in late 2020 where X reported that the father told him he has a weapon and that “he wants to chop [Mr E’s] head off with it” (the mother’s affidavit, paragraph 91).
Not only has the father perpetrated family violence against the mother, but he has also exposed the children to it. The father’s denials hold little weight in the face of more reliable witness and documentary evidence to the contrary. The father’s lack of introspection and habit of avoiding responsibility minimises the weight that can be placed on his denials.
Views expressed by the children
The children, X in particular, appear to enjoy their time with the father. In the Family Report, the CCE noted that the parties have a positive relationship with the children, and that the children enjoy spending time with both parties. X reported feeling safe around the father whilst Y felt happy when she spent time with the father (Family Report, paragraph 52). The CCE affirmed that the current time the children spend with the father is beneficial, meaningful, and positive (Family Report, paragraph 68). X has expressed a desire to increase the time he spends with the father. The parents disagree over whether X desires overnight time with the father, extended time within the current arrangements, or one on one time without Y.
The CCE took X’s views into account within the Family Report, whilst Y was considered too young to provide an informed opinion on her care. During the interview process, the CCE noted that X appeared hesitant to spend overnight time with the father (Family Report, paragraph 74). X, historically, has been “mindful of expressing his views out of concern that he did not wish to upset [the father]” (Family Report, paragraph 74). The CCE believed that X’s fear of saying the “wrong thing” in front of the father may contribute to his anxiety (Family Report, paragraph 64). On that basis, it was suggested that X had more awareness about the parties’ conflict and that he “may internalise some of these emotions regarding this” (Family Report, paragraph 73).
No evidence, aside from alleged conversations between the father and X, was proffered to suggest that X no longer suffers from anxiety, or has fundamentally altered his view on overnight time. If X did express such sentiment to the father, it is entirely possible that he did so in order to appease the father. The Court does not accept, largely based on paucity of evidence, that X desires overnight time with the father.
Y is still only seven years old, so her views must be regarded with circumspection. During cross-examination the CCE suggested that Y prefers time with the father whilst X is also present, and that it may generate anxiety in Y if she is split up from her brother. It is not appropriate in the circumstances of this matter to make any order that would split the children up in the time they spend with the father. The Court infers, on these bases, that Y would prefer a continuation of the current arrangement.
Parental capacity
The mother deposes that her mental health has deteriorated due to anxiety related to past traumatic incidents and current fears and concerns over the children’s safety with the father (the mother’s affidavit, paragraph 189). The mother has sought medical intervention and ruled out the possibility of any physical illness impacting her wellbeing. She is currently attending upon a counsellor provided for her through the Victim Services scheme (the mother’s affidavit, paragraph 189). The mother’s wellbeing is deteriorating in circumstances where the children are seeing the father once fortnightly (the affidavit of Mr E filed 21 December 2023, paragraphs 48–55). Should the father’s time be extended, or include overnight time, the mother’s wellbeing may further decline which could potentially undermine her parenting capacity.
Concerns about the father’s parental capacity arise from his excessive alcohol consumption. The Family Report highlights the severity of the father’s alcohol consumption and his inability to accept his likely dependency. The father told the CCE that there “was a period in 2019 to 2020 where he drank to excess by having approximately six beers per night” (Family Report, paragraph 27). The CCE opined that the father’s misuse of alcohol may put the children at risk of harm if they were to spend overnight time with him “given that this would likely impact his overall functioning and ability to be responsive to their needs” (Family Report, paragraph 77). The Court is satisfied that the father’s current alcohol consumption is comparable to that mentioned by the CCE. Consequently, the concerns raised within the Family Report remain valid.
IMPACT OF THE FATHER’S WORKING ARRANGEMENTS
To accept that the father can comply with the terms of his own proposed orders, the Court must have assurance that the father’s workplace will provide him adequate flexibility. The CCE had some concern that the father’s inflexible working arrangements “have made it a challenge for the current orders for time to be implemented which has led to him missing his time with children on Monday evenings” (Family Report, paragraph 67). The Court is similarly sceptical about the contended flexibility of the father’s employers. The father’s inability to provide either historical facts or contemporaneous material to support his employer’s asserted flexibility renders his evidence unreliable.
Current work arrangements
The father seeks orders that require him to pick up the children after school on Friday. The feasibility of this order, and the flexibility of the father’s employer, create concerns for the Court. The father currently works in City C and is a considerable distance away from the children during most of the work week. The father asserted that he would need to leave City C between 10.00 am and 11.00 am every second Friday to pick up the children from Region D.
The father suggests that his employer “is willing to accommodate flexible times to fit with any parenting arrangements” (the father’s affidavit, paragraph 43). He attests to having had a meeting with his employer’s management team on 11 June 2024 to confirm that the “flexible arrangements are still in place and available subject to change by court orders” (the father’s affidavit, paragraph 46). Despite this, the father did not provide any written confirmation of this contended flexibility by his employer. When pressed about the paucity of evidence, he could only respond “I didn’t organise it early enough”. The father bore the onus of proof to satisfy the Court about the flexibility of his employer.
The Full Court in Wei & Xia (2024) FLC 94-186 at [16] stated:
…where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person’s case…
It is clear that the father did not provide evidence that he could and should have provided. The Court draws the inference that the information provided by the father’s employer would not have helped his case. This inference aligns with the mother’s historical evidence the father worked long hours, five-to-six days a week during the party’s marriage (the mother’s affidavit, paragraph 86). It also algins with relatively recent requests by the father to alter the children’s time arrangements to accommodate his work schedule (the mother’s affidavit, paragraph 86).
The Court is not comfortable ordering any further weekday time between the father and the children whilst he works in City C. It is not sustainable for the father to leave work between 10.00 am and 11.00 am every second Friday, even if he was afforded the flexibility to do so. This is an unfortunate by-product of the father’s choice of employment. The effort associated with mid-week after school, or holiday travel would place all parties under stress and risk unsettling the children.
Future work arrangements
The father is expected to finish his work in City C in or around late 2024. Moving closer to the children would eliminate some of the Court’s concerns regarding weeknight time. Following the conclusion of the City C project he has a “plan to work [in Region D]” (the father’s affidavit, paragraph 45). Unfortunately, the father recognises that a return to Region D is only a future hypothetical as “the company I work for will pick up jobs as needed and there is a chance I could be put on projects anywhere across NSW” (the father’s affidavit, paragraph 45). It is unlikely that the father will have a choice in his next work placement as “the construction industry is not strong at the moment and my company will take whatever jobs they need to stay afloat” (the father’s affidavit, paragraph 45).
If the father does not obtain a favourable work placement in Region D, the Court is not convinced that he would leave his current employer to facilitate weeknight time with the children. The father holds a strong allegiance to his current employer and stated in cross‑examination that he “wouldn’t leave and go to a different employer just to be [in Region D] because I trust they’ll be flexible”. The father, seemingly, does not contemplate a reality in which he is required to change employers. The Court has no evidence of what the father would do in that difficult situation and is not convinced that he would make a choice that favours the best interests of the children. The father’s lack of credibility underpins the Courts reluctance to accept the father’s optimistic placement predictions.
ORDERS IN THE BEST INTERESTS OF THE CHILDREN
There is no doubt that the father enjoys an excellent relationship with two children who he loves, and who love him. This is being achieved with the current alternate weekend day time the children spend with the father. The Court also accepts the underlying premise that, subject to the safety of the children, the children’s relationship with him would be deepened if this time could be extended. The issue for the Court is to what extent it can be extended without placing the children in an unsafe situation.
The father seeks more regular time, more special occasion time, the introduction of overnight time, and block time during the school holidays with the children. The Independent Children’s Lawyer tentatively supports the father’s proposals. On the evidence, however, the Court cannot accept this proposal. The conclusion is that any order for the children to spend time with the father cannot include overnight time due to the father’s excessive alcohol consumption.
The special occasion time outlined in the mother’s Minute of Order received 9 July 2024 ought to be preferred to that of the father and the Independent Children’s Lawyer. The Court cannot accede to any special occasion time that provides for overnight time, particularly where this occurs around a holiday or festivity of some sort. The Court holds significant reservations about the father’s ability to refrain from alcohol consumption in regular circumstances. It would be inappropriate to make orders for the children to spend holiday time with the father during festive periods where individuals tend to consume more alcohol. The father and the children would benefit from weekly time together each Sunday during the day.
The Court has done the best it can to formulate orders which will minimise the risk the father poses to the children, whilst attempting to increase the father’s time with them.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 6 September 2024
SCHEDULE ONE
Parental Responsibility
1.That the mother have sole parental responsibility and shall be allocated sole decision-making on major long-term issues for the Children X, born 2012 (“X”) and Y, born 2016 (“Y”) (together, “the Children”) and for the purpose of this Order the following shall apply:
1.1.The mother shall provide the father with seven (7) days’ notice of her proposal with respect to any major welfare long-term decision pertaining to the Children’s welfare including but not limited to residence, education, medical treatment, religious upbringing, (“the welfare proposal”); and
1.2.Within seven (7) days thereafter, the father shall provide to the mother any response he may have to the welfare proposal; and
1.3.The mother shall consider the father’s response prior to implementing the welfare proposal and she shall communicate to the father her decision as soon as reasonably practicable.
Live With
2.That the Children live with the mother.
3.That X born 2012 and Y born 2016 are permitted to travel internationally, as provided by Section 11(1) (b) (ii) of the Australian Passports Act 2005 and, for this purpose, the mother is permitted to apply for an Australian passport for X and Y under the provisions of Section 11(1)(b) (i) of the Australian Passports Act 2005.
4.That the mother shall be permitted by these orders to do all acts and things and sign all documents necessary to apply for a passport for the Children pursuant to order 3 and including any subsequent renewal of a passport for each of X and Y and the father‘s consent to the issue of the said passport is hereby dispensed with.
5.Spend time including special occasions being Christmas/Easter and school holiday time to be determined by the Court.
Father’s Day and Mother’s Day
6.That in the event the Children are not ordinarily in the father’s care on Father’s Day, the Children shall spend time with the father on Father’s Day each year from 9:00am to 6:00pm.
7.That in the event that the Children’s time with the father pursuant to order 5 falls on Mother’s Day the father’s time with the children shall be suspended and the Children shall remain with the mother on Mother’s Day.
Children’s birthdays
8.That in the event that the Children’s birthday falls on a Sunday when the Children are ordinarily in the father’s care pursuant to order 5, the father’s time with the children shall be suspended from 3:00pm to 6:00pm on the Children’s birthday and the Children shall return to the mother during that time period.
9.That in the event that the father is unable to spend time with the Children pursuant to these orders, for any reason, he shall provide the mother with 48 hours’ notice of his inability to spend time and the Children shall remain in the mother’s care and the mother is not required to facilitate make-up time.
Telephone communication between Father and the Children
10.Subject to order 11.2, the father shall be at liberty to communicate with the Children each Tuesday at 3:30pm and Thursday at 3:30pm and at any other time as agreed between the parties or as requested by the Children.
11.For the purpose of order 10 the following shall occur:
11.1.The mother shall do all things necessary to reasonably facilitate the call between the children and the father.
11.2.In the event the Children’s extracurricular activities schedule changes, such that they are not able to participate in the call at the time specified in order 10, the mother shall, as soon as practicable, communicate to the father another time on Tuesday and Thursday for the Children to call the father.
11.3.That the parties shall inform the other of any change of telephone number within 24 hours of such change occurring
11.4.That if the father uses expletive language or makes denigrating or disparaging comments about the mother or the mother’s partner during his weekly telephone calls to the Children, the mother is at liberty to terminate the phone call between the father and the Children
12.INTENTIONALLY LEFT BLANK
Mobile Breathalyser Unit
13.The father shall use a Breathalyser unit (‘the Unit’) which: Complies with Australian Standard AS3547;
13.1.has the capacity to photograph the person using the device; and
13.2.has the capacity to provide a digital printout of results.
14.The father shall do all acts and things necessary, including paying all costs necessary to calibrate the Unit and shall do all acts and things necessary so that the Unit is calibrated at all times.
15.In the event that the Unit is being calibrated during a period that the Children would otherwise spend time with the father, then the Children’s time with the father shall be suspended until such time as the Unit is fully calibrated and fit for use.
16.For the purpose of order 16, the father shall provide to the mother seven (7) days written notice that the Unit is being calibrated and shall advise the mother when the Unit is returned fully calibrated, including but not limited to providing the mother with a copy of the receipt confirming payment of the calibration, with the father’s time with the Children to resume in accordance with the schedule set out in orders 5 and 6.
17.Within 7 days of the date of these orders the father shall establish an account on the breathalyser app with username “[…]” and password “[…]” and thereafter the father shall maintain an account and shall not change the username or password for the breathalyser app account so that the Mother can access the breathalyser results on the app.
18.Within 7 days of the date of these orders the father shall undertake a breathalyser test to ensure that the Unit is functional and the results of the test are uploaded to the breathalyser app and received by the mother.
19.The father shall do all acts and things necessary to ensure that the Unit uploads a photograph of the father using the Unit each time a result is uploaded to the breathalyser app.
20.Upon the father having obtained and configured the Unit, the father shall thereafter use the Unit as follows:
20.1.Within forty-five (45) minutes prior to the Children commencing time with the father; and
20.2.Within forty-five (45) minutes after the Children have been returned to the mother.
21.If any breathalyser reading completed in accordance with order 20 (inclusive of sub orders) displays a recording higher than zero (0) or shows a faulty reading, or does not record a reading, then the Children’s time with the father shall be immediately suspended and the mother or her agent is at liberty to collect with the Children.
22.In the event that the father fails to comply with orders 13 to 21 herein, then the father’s time with the Children pursuant to these orders shall be suspended until he resumes compliance with the said orders.
23.That the father’s requirement to comply with orders 14 to 22 shall cease after the father produces breathalyser readings of zero (0) for twelve (12) consecutive months.
24.That in the event the mother notifies the father that she has not received results through the breathalyser app pursuant to order 20, the father will send a screenshot of each of his results from the breathalyser app to the mother prior to time commencing with the Children.
Changeover
25.For the purpose of these orders, changeover shall occur at the Service Station at J Street, Suburb K NSW unless otherwise agreed between the parties in writing.
Extra-Curricular Activities
26.In the event that Y’s performances, end of year concert and annual extra-curricular photo shoot (“the extra-curricular activities”) take place during the time that the Children would otherwise spend with the father then the following shall occur:
26.1.The father’s time with the Children shall be suspended for the extra-curricular activities weekend; and
26.2.The mother shall provide the father with twenty-eight (28) days written notice of the extra-curricular activities and propose alternate weekend dates for makeup time between the father and the Children.
And for the purpose of the above order it is noted that Y engages and participates in extensive extra-curricular lessons and performances.
27.That subject to order 26, the father shall facilitate the Children’s attendance at any extracurricular activities in which they are enrolled or any part-time employment they have obtained, during the time that they are due to spend with him pursuant to these orders.
28.The father shall ensure that any equipment for extra-curricular activities including but not limited to shoes, clothes and sporting equipment (“the extra curricular equipment”), and any of the children’s items including but not limited to lunch boxes and water bottles brought to his home with the Children are returned with the Children at the conclusion of time.
29.That in the event that the extra curricular equipment and/or the children’s items are not returned pursuant to Order 28, the following shall occur:
29.1.The mother shall notify the father via text message identifying any equipment or items that have not been returned;
29.2.The father or his nominated agent shall return the items to the mother within 48 hours following receipt of the mother’s notification and to give effect to this order, the father shall deliver the items to the mother at the changeover location at a time nominated by the father;
29.3.In the event the father does not return the requested items within 48 hours following receipt of the mother’s notification and the mother has purchased replacement extra curricular equipment or items, the following shall apply:
29.3.1.The father shall be liable to reimburse the mother for the replacement costs
29.3.2.The mother shall provide the father with a paid tax invoice with respect to the replaced extracurricular equipment and items; and
29.3.3.The father shall make payment to the mother of the amount paid, within 7 days of receipt of the paid tax invoice.
30.That the Mother do all acts and things and sign all documents necessary to give the Father access to the School App for M School, for the Father to be kept up to date of school activities (concerts, sporting events etc.) that the children are participating in.
Extra-curricular Concert
31. That the father shall be at liberty to attend the first of Y’s end of year concerts only and the mother shall attend second concert only.
Courses
32.That within twenty-eight (28) days from the date of these orders, and if he has not already done so, the father shall do all acts and things to cause the following to occur:
32.1.Enrol in a Taking Responsibility – Men’s Behavioural Change course;
32.2.Tuning into Teens course; and
32.3.Provide to the mother’s solicitor written evidence of his registration in each course including the commencement date of each course.
33.The father shall complete the courses referred to in sub-orders 32.1 to 32.3 within six (6) months of the date of these Orders and he shall provide to the mother’s solicitor a copy of his certificate of completion for each course within seven (7) days of his completion of each course.
Restraints
34.The father is and shall hereby be restrained by way of injunction, pursuant to Section 68B of the Family Law Act 1975 from:
34.1.Approaching within 50 metres of the mother’s place of residence and the mother’s place of work;
34.2.Approaching the mother, contacting or communicating with the mother by any means including but not limited to telephone, email, video call, Skype, FaceTime, text message or in any other way, including asking someone else to contact the mother, unless in relation to the Children or otherwise in accordance with these Orders;
34.3.Entering into any place where the mother lives, works and attend schools;
34.4.Causing any other person to reside permanently in his home other than a de facto partner or wife or immediate family member with the exception of Mr L;
34.5.Drinking alcohol at any time whilst the Children are spending time with him.
35.The father shall be and is hereby restrained from permitting, facilitating or otherwise causing the Children to come into contact with his brother Mr L born 1983 and in the event the Children do come into contact with the said Mr L, the father shall do all things necessary to immediately remove the Children from his presence.
36.The father shall be present at all times that the Children are in his care and he shall not leave the Children in the primary care of any third party with the exception of the paternal grandmother.
37.The Mother is restrained from relocating the Children’s residence interstate.
38.The mother is restrained from changing the Children’s names.
39.That each parent is restrained from using expletive language or making denigrating or disparaging comments about the other parent to the Children or in the presence of the Children.
Communication between the parties
40.The parties are to communicate solely about matters concerning the children and such communication shall occur by text message only.
41.That each party is hereby authorised to obtain from the children’s schools or be notified by the other parent of all notices, letters, school reports.
42.That the mother be permitted to provide a copy of these orders to the school, any extra‑curricular service provider at which the Children are enrolled to attend and any of the Children’s treating medical practitioners or allied health workers.
Medical Issues and Notice Requirements
43.That the party with care of the Children shall inform the other party via text message as soon as reasonably practicable should any of the Children become sick, have a medical episode or emergency, need to see a doctor or be unable to attend school.
SCHEDULE TWO
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT SYDNEYFile No. SYC1199/2021
MR CUINN
(Applicant Father)
AND
MS FREUND
(Respondent Mother)
MINUTE OF ORDER
THE COURT ORDERS
Spend Time With1.The father shall spend time with the Children (inclusive of school holidays) in accordance with Orders 2,3,4 and 5.
2.The father shall spend time with the Children as follows:
2.1.Commencing the second Saturday the making of these Orders, for three (3) months, on a four-weekly cycle as follows:
2.1.1.In week 1, on Sunday from 9:00am to 6:00pm.
2.1.2.In week 2, the Children shall spend no time with the father.
2.1.3.In week 3, from Saturday 6:00pm to Sunday 6:00pm.
2.1.4.In week 4, the Children shall spend no time with the father.
2.2.Following the completion of Order 2.1, for a further period of three (3) months, on a fortnightly cycle as follows:
2.2.1.In week 1, from Saturday 1:00pm to Sunday 6:00pm.
2.2.2.In week 2, the Children shall spend no time with the father.
2.3.Following the completion of Order 2.2 and until the Children turn 18 years old, on each alternate weekend from after school (or on non-school days, from 4:00pm) on Friday until 6:00pm Sunday.
2.4.For the purposes of Order 2.3, ‘after school’ shall involve the father picking the Children up from the Children’s school on school days. On non-school days, the changeover shall occur pursuant to Order 25 of the Consent Orders dated 8 July 2024.
Notation: In the event that the Court does not make an order for the Father to spend overnight time with the Children, the Father puts forward a secondary position pursuant to which he would spend time with the Children every Sunday from 9.00am to 6.00pm.
Special Occasions3.The father shall spend time with the Children on special occasions as follows:
3.1.In even numbered years commencing in 2024, from 2:00pm on Christmas Day until 2:00pm on Boxing Day.
3.2.In odd numbered years commencing in 2025, from 6:00pm on Christmas Eve until 2:00pm on Christmas Day.
3.3.In odd numbered years commencing 2025, from 3.00pm Easter Saturday until 11.00am Easter Sunday.
3.4.In even numbered commencing 2026, from 11.00am on Easter Sunday to 11.00am Easter Monday.
4.In the event the Children’s birthday fall on a day when the Father is not otherwise spending time with the Children, the Father shall spend time with the Children from 4.00pm to 7.00pm.
December School Holidays
5.That the father spend time with the Children from 12:00pm 1 January 2024, to 12:00pm 7 January 2024.
6.That in the event the Mother indicates that she would like to take the Children on an overseas holiday that interferes with the Father’s time referred to in order 5, the Mother and Father may, by agreement, reschedule that time, for another time in the December School Holidays.
April School Holidays
7.That the father spend time with the Children for one (1) week during the April School Holidays, as follows:
7.1.In odd numbered years, from 9:00am on the first Saturday of the school holidays until 9:00am on middle Saturday of the school holidays; and
7.2.In even numbered years, from 9:00am on the middle Saturday of the school holidays until 9:00am on the Saturday of the school holidays.
Extra-Curricular Activities
8.That notwithstanding the Consent Orders dated 8 July 2024, the father shall be at liberty to attend any extra-curricular events, carnivals, sporting events and similar such events, provided he provides notice to the mother of same:
8.1.For the purposes of Order 8, notice shall be provided by the father to the mother of the father’s intention to attend any such event, prior to 24 hours before the commencement of the event, or if within 24 hours before the commencement of the event, as soon as reasonably practicable after the father becomes aware of the event taking place.
SCHEDULE THREE
SPECIAL OCCASION ORDERS SOUGHT BY THE MOTHER
Spend Time
5. That the Children spend time with the father each alternate Sunday from 9am to 6pm.
Special Occasion Orders
6. That the Children’s time pursuant to order 5 be suspended on the following special occasions during which they shall spend time with the father as follows:
6.1.On each of the children’s birthdays from 10:00am to 3:00pm if the birthday falls on a non-school day and 4:00pm to 7:30pm if the birthday falls on a school day.
6.2.That in the event the Children are not ordinarily in the father’s care on Father’s Day, the Children shall spend time with the father on Father’s Day each year from 9:00am to 6:00pm.
6.3.In even numbered years on Christmas Day from 9:00am to 3:00pm.
6.4.In odd numbered years on Christmas Day from 2:00pm to 7:00pm.
6.5.In even numbered years on Easter Sunday from 2:00pm to 7:00pm.
6.6.In odd numbered years on Easter Sunday from 9:00am to 3:00pm.
7. That in the event that the Children’s time with the father pursuant to order 5 falls on Mother’s Day the father’s time with the children shall be suspended and the Children shall remain with the mother on Mother’s Day.
8. That in the event that the Children’s birthday falls on a Sunday when the Children are ordinarily in the father’s care pursuant to order 5, the father’s time with the children shall be suspended from 3:00pm to 6:00pm on the Children’s birthday and the Children shall return to the mother during that time period.
SCHEDULE FOUR
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA FILE NO: (P)SYC1199/2021 DIVISION 2
AT SYDNEY
BETWEEN:MR CUINN (Applicant)
AND:
MS FREUND (Respondent)
AND:
INDEPENDENT CHILDREN’S LAWYERON A FINAL BASIS THE COURT ORDERS THAT:
Spend time with
1.The children X, born 2012 and Y, born 2016 (‘the children’) shall spend time with the father as agreed in writing between the parents and failing agreement as follows:
1.1.Commencing the second Saturday following the making of these Orders, for three (3) months, on a four-weekly cycle as follows:
1.1.1. In week 1, on Sunday from 9:00am to 6:00pm;
1.1.2. In week 2, the children shall spend no time with the father;
1.1.3. In week 3, from Saturday 6:00pm to Sunday 6:00pm;
1.1.4. In week 4, the children shall spend no time with the father.
1.2.Following the completion of the previous Order, on a fortnightly cycle as follows:
1.2.1. In week 1, from Saturday 1:00pm to Sunday 6:00pm;
1.2.2. In week 2, the children shall spend no time with the father.
1.3.Subject to the next Order, during the children’s Term 1 and December/January school holiday periods, the children’s regular time with their father pursuant to Order 1.2.1 above shall be extended so that that time commences on Friday at 1.00pm and concludes on Monday at 1.00pm;
1.4.From 2.30pm Christmas Eve until 2.30pm Christmas Day in odd numbered years;
1.5.From 2.30pm Christmas Day until 2.30pm Boxing Day in even numbered years;
2.The children’s time with the father shall be suspended on the following occasions:
2.1.As agreed between the parents, and failing agreement for the final 3 weeks of each December/January school holiday period;
2.2.From 2.30pm Christmas Eve until 2.30pm Christmas Day in even numbered years;
2.3.From 2.30pm Christmas Day until 2.30pm Boxing Day in odd numbered years.
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