Dover and Dover

FAMILY COURT OF AUSTRALIA

DOVER & DOVER

[2015] FamCA 1174

FAMILY LAW – CHILDREN – Best Interests – Where there are two children aged 16 and nine – Where the children live with the mother and spend day time only with the father – Where the mother sought that the children continue to live with her and spend day time with the father, with the youngest child’s time being supervised – Where the father and ICL seek that the children spend unsupervised time with the father pursuant to a graduated time regime, leading to overnight time – Where there has been family violence towards the mother perpetrated by the father – Where the father was diagnosed as having a severe long standing DSM5 alcohol use disorder – Where the father stopped drinking alcohol over two years ago – Where the children have meaningful relationships with both parents – Orders made for the parents to have equal shared parental responsibility – Orders made for the children to live with the mother and spend unsupervised time with the father pursuant to a graduated time regime, leading to overnight time.

Family Law Act 1975 (Cth) – Part VII; s 60B; s 60CA; s 60CC; s 60CC(2); s 60CC(2A); s 60CC(3); s 61B; s 61C; s 61DA(1); s 61DA(2); s 61DA(4); s 65AA; s 65DAA(1); s 65DAA(2); s 65DAA(3)

Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Ms Dover

RESPONDENT:

Mr Dover

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

SYC

251

2013

DATE DELIVERED:

21 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Johnston

HEARING DATE:

13, 14, 15, 16 & 17 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tockar

SOLICITOR FOR THE APPLICANT:

Forsters Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC with
Ms Christie

SOLICITOR FOR THE RESPONDENT:

Fox and Staniland Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales, Sydney Central Family Law

Orders

That the following parenting orders are made in relation to the children B born … 1999 and C born … 2006.
That these orders shall commence on 1 February 2016.
That all previous parenting orders are discharged.

Parental Responsibility

That the mother and the father have equal shared parental responsibility for the children.

Live with

That the children live with the mother.

Spend time with

Unless the parties agree otherwise in writing the children shall spend unsupervised time with the father as follows:
(a)      from the date of these orders for a period of six weeks:
(i)       each Sunday from 9.00 am to 5.00 pm; and
(ii)each Wednesday from after school, or if not a school day from 3.00 pm, until 8.00 pm
(b)      for the next eight weeks, commencing the following weekend:
(i)each alternate weekend from after school Friday, or if not a school day from 3.00 pm, until 5.00 pm Saturday;
(ii)each Wednesday from after school, or if not a school day from 3.00 pm, until 8.00 pm;
(c)for the next eight weeks, commencing the following weekend:
(i)each alternate weekend from after school Friday, or if not a school day from 3.00 pm, until 12 noon on Sunday;
(ii)each Wednesday from after school, or if not a school day from 3.00 pm, until 8.00 pm;
(d)thereafter, commencing the following weekend:
(i)each alternate weekend from after school Friday, or if not a school day from 3.00 pm, until before school the following Tuesday, or if not a school day until 9.00 am;
(e)in the case of B, unless otherwise specified in these orders, at any other time in accordance with B’s wishes, provided that B consults with the father and the father provides the mother notice by text message 24 hours prior as to the commencement time and end time of the spending time with arrangement

School holidays

That, unless the mother and the father otherwise agree in writing, the children shall spend school holiday time with the father, as follows:
(a)commencing in 2016, for the school holiday periods at the end of Terms 2 and 3 each year, but excluding the end of Term 1 holidays in 2016, for the first week from 10:00 am on the first Saturday of the school holiday period until 10:00 am on the following Saturday;
(b)for the school holiday period at the end of Term 4 in 2016, 2017 and 2018, as follows:
(i)in the event that either of the children's school holiday periods at the end of Term 4 commence before 10 December, from 10:00 am on 10 December until 10:00 am on 14 December;
(ii)from 2:00 pm on Christmas day until 2:00 pm on Boxing Day;
(iii) from 10:00 am on 2 January until 10:00 am on 9 January, and
(iv) from 10:00 am 16 January until 10:00 am on 23 January;
(c)for the school holiday periods at the end of Term 4 in 2019 and thereafter, as follows:
(i)where the school holidays commence in an even numbered year from 10:00 am on the fourth Saturday of the school holiday period until 10:00 am on the second last day of the school holiday period; and
(ii)where the school holidays commence in an odd numbered year from 10:00 am on the first day of the school holiday period until 10:00 am three weeks later;

Special days

That, unless the mother and the father otherwise agree in writing, the children spend special occasion time with the father as follows:
(a)on Father’s Day from 9:00 am until before school on Monday, or if the Monday is not a school day until 9:00 am;
(b)on the children’s birthdays, if the children are not otherwise in the father’s care that day, from 9:00 am until 2:00 pm if a non school day and from after school until 6:00 pm if a school day; and
(c)on the father’s birthday, from 9:00 am until 2:00 pm if a non school day and from after school until 8:00 pm if a school day.
That, unless the mother and the father otherwise agree in writing, the father’s time with the children will be suspended on the following occasions as follows:
(a)on Mother’s Day, such that if Mother’s Day falls on the father’s weekend his time will conclude at 9:00 am that morning;
(b)on C’s birthday, such that if the children are in the father’s care that day the mother shall spend time with C from after school until 7:00 pm, or if it is a weekend from 2:00 pm until 6.00 pm;
(c)on the children’s birthdays, if the children are not otherwise in the mother’s care that day, from 9:00 am until 2:00 pm if a non school day and from after school until 6:00 pm if a school day;
(d)on the mother’s birthday, from 9:00 am until 2:00 pm if a non school day and from after school until 8:00 pm if a school day;

Changeover

That, unless the mother and the father otherwise agree in writing, changeovers shall occur at the children's respective schools on school days or otherwise at the mother's residence as follows:
(a)the father is to park his car at the kerb in front of the mother's residence, and text the mother on his arrival and the mother is to provide her mobile phone number for this purpose;
(b)the father is to remain in his car;
(c)on the father collecting the children from the mother's residence at the commencement of his time, the mother is to ensure that the children are packed and ready to leave with the father; and
(d)the mother is to remain inside her property's boundaries;
(e)the mother shall facilitate the child C bringing items of comfort including her pillow and bear if C requests this for her overnight stays.

Communication by telephone, SMS, email, internet

That the mother and the father are at liberty to contact the children by telephone at any reasonable time when the children are in the other parent’s care, and the mother and the father ensure the children are at liberty to telephone the other parent at any reasonable times that the children wish to do so.
That the mother and the father are to communicate with each other regarding the children by email, or by text message or SMS in an emergency, unless otherwise provided for in these orders.

Alcohol support

That the father is injuncted and restrained from consuming any alcohol whatsoever when the children are in his care and at all other times.
That the father is required to provide Professor H a scheduled monthly CDT and GGT and MCV/MCH testing for a period of 6 months after the commencement of these orders.
That the father is required to:
(a)consult with Professor H at such times and at such frequency as recommended by Professor H and undergo any treatment, rehabilitation, or blood or other testing recommended by Professor H; and
(b)do all acts and things to authorise Professor H and any subsequent alcohol therapist to contact the mother if Professor H or the subsequent alcohol therapist suspects the father has lapsed or relapsed into consuming alcohol.
That if the father is no longer able to be treated by Professor H, then the father shall seek referrals to other alcohol therapists from Professor H and/or Dr K and on the father having made and attended the first appointment with an alcohol therapist, and been accepted as a patient by that alcohol therapist, the father provide the mother with the name and contact details of that alcohol therapist within 14 days.
That the father is required to provide Professor H and any subsequent alcohol therapist with a copy of Dr K’s report and a copy of these orders.
That for a period of 12 months from the conclusion of the period provided for in Order 14 above, the mother is permitted to require the father to undergo random CDT and GGT and MCV/MCH testing and for such testing to occur as follows:
(a)the father shall do all acts and things necessary to obtain in advance pathology test request forms from his general practitioner for CDT and GGT and MCV/MCH testing;
(b)that the mother notify the father by SMS or text message;
(c)that the father confirm that he has received such SMS or text message;
(d)that in the event that the mother has not received confirmation of the father's receipt of the SMS or text message within four hours of having sent it, she shall be permitted to call the father to request the testing;
(e)that the father is required to undertake such testing within 24 hours of notification by the mother for tests requested Sunday through to Friday, if the request is made on a Saturday the test should occur within 48 hours;
(f)that such requests for testing occur no more than once per 3 months;
(g)that the mother and father do all acts and things and sign all documents to authorise the testing laboratory to release the test results to both the mother and the father;
(h)that the cost of the tests be borne by the father; and
(i)that if there is a result indicating alcohol use, the mother is permitted to contact Professor H or any subsequent alcohol therapist to advise them of the result of the test, and if the test is confirmed by Professor H or the subsequent alcohol therapist, then the father’s time in accordance with these orders is suspended unless and/or until Professor H or the subsequent alcohol therapist advises the mother that the father is no longer consuming alcohol and has not consumed alcohol for a period of 3 months.
That if the father is directed to undergo CDT or other such alcohol testing by Professor H or the subsequent alcohol therapist, the father is to do all acts and things to provide the mother with a copy of the test results within 3 days of receiving those results.
That if the father has a major change of living circumstances, including but not limited to him separating from his current partner Ms J, the father shall arrange an appointment with Professor H (or the subsequent alcohol therapist) within 14 days to discuss management of the risk of relapse during such a transition.
That the father continue to attend for counselling upon Ms E for as long as and at such intervals as she may recommend.
The mother be able to contact Professor H to express any concerns she may have about the father’s alcohol use but the mother shall not contact him unless it is reasonably necessary for her to do so and she shall follow any requests/guidelines made by him about such communications.

Discipline

That both the mother and the father be restrained from physically disciplining the children.

Medical

That the mother keep the father informed by email, of all appointments for the children within 24 hours of such appointments being scheduled regarding:
(a)any medical or dental or specialist appointment the children have;
(b)any medication the children have been prescribed;
(c)any referrals she has obtained for specialist treatment.
That both the mother and the father are permitted to attend any specialist medical appointments relating to either of the children and are by these orders authorised to discuss and obtain information regarding the children's health and treatment with/from the children's medical practitioners.
That each party shall follow the advice and direction of the children’s treating health practitioners (and including but not limited to the children’s GPs, dentists, counsellors, and any other specialists) in relation to the children’s health, treatment and any medication and shall ensure that any treatment and/or medication is provided to the children whilst the children are in that party’s care, and ensure that the children are transported to any necessary appointment whilst in that party’s care.
That if either of the children are injured, require serious medical treatment or hospital admission, the parent who has the care of the child shall notify the other parent by telephone or text message as soon as possible and the other parent shall be invited to attend the place of treatment.

School and extra curricular activities

That both the mother and the father are permitted to attend any sporting or extra curricular activities that the children are involved in and to which parents are ordinarily invited.
That either parent is at liberty to attend any school events the children may participate or be involved in, including school concerts, presentations, assemblies, and parent teacher interviews, regardless of whether the children are due to be in their care pursuant to these orders.
That both parents do all acts and things and provide all authorities to ensure that any school that the children may attend provides to both parents copies of all school reports, merit cards and school newsletters.
That the Independent Children's Lawyer has leave to provide a copy of these orders to the children's schools.

Courtesy

That the mother and father shall identify the other parent as the children’s next of kin and/or emergency contact whenever this information is requested of them.
That each parent keep the other informed of their current residential address and mobile telephone number, and advise the other parent in writing of any change thereto within 24 hours of such change.
That neither parent shall denigrate, or make false or negative representations about, the other parent, other parent’s partner or family members in the presence of or within hearing distance of the children.
That the parties be restrained from passing information or messages for the other through the children.

Overseas travel

That the children are permitted to travel overseas with either of their parents in accordance with the time the children spend with each parent in these orders on the following conditions:
(a)that the parent provide 2 months notice in writing of the intended travel;
(b)that the parent provide the other parent 14 days prior to departure date a copy of the return tickets for the children, details of the address where the children will be staying, and telephone and/or Skype details so that the non travelling parent can contact the children; and
(c)such travel is only to take place during school holidays unless otherwise agreed.
That to give effect to order 35 above, the mother shall hold the passports for the children, and shall release the passports to the father within 48 hours of notification of the intended travel.

Support and therapy

That within two months of the date of commencement of these orders, both parents enrol in, and attend a parenting after separation, or keeping in contact, course with an organisation such as Relationships Australia, and provide the Independent Children's Lawyer (“ICL”) with a certificate of attendance and completion at the end of that course.
That the mother and the father do all things necessary to engage and attend upon a therapist as recommended by the ICL in consultation with Doctor K ("the therapist") for the purposes set out in paragraph 357 of Doctor K's Report.
That the mother and the father follow all reasonable directions of the therapist, including facilitating the attendance of the children if so requested.
That the mother and the father ensure that a copy of Doctor K's report is provided to the therapist at the time of engagement.

Independent Children’s Lawyer

That within seven days of the date of commencement of these orders the mother arrange for the children to attend the offices of the ICL for the purposes of the ICL explaining the orders to the children.

Independent Children’s Lawyer’s costs

It is noted that each parent has agreed to pay one-half of the costs of the ICL.

Property

It is noted that the property proceedings are listed for directions by the Registrar at 9.00 am on 8 March 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dover & Dover has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 251 of 2013

Ms Dover

Applicant

And

Mr Dover

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings involve competing applications for parenting orders.
The parties are Ms Dover and Mr Dover. For convenience I shall refer to them as “the mother” and “the father”.
There are two children of the marriage namely B born in 1999 who is 16 years of age (“the older child”) and C born in 2006 who is nine years of age (“the younger child”).
The father also has two children from his previous marriage namely A who is 29 years of age and Y who is 27 years of age.
A report has been prepared in these proceedings by Dr K. There are allegations of family violence between the mother and father.

Applications

The minutes of orders sought by each of the parties are annexed for completeness at Annexure A below.
In summary, the mother seeks orders to the following effect:
·That she have sole parental responsibility in relation to the children upon the basis of certain conditions as specified;
·That the children live with her;
·That the children spend time with the father as follows:
The older child
o    Each Sunday from 9.00 am to 6.00 pm;
o    Each Wednesday from 3.30 pm to 7.30 pm;
o    Alternate Tuesdays from 3.30 pm to 7.30 pm;
oOn his birthday from 3.30 pm to 7.30 pm if a school day, otherwise 2.00 pm to 6.00 pm or as agreed.
The younger child
o    Each Sunday from 9.00 am to 6.00 pm;
o    Each Monday from 3.30 pm to 7.30 pm;
o    Alternate Thursdays from 3.30 pm to 7.30 pm;
oOn her birthday from 3.30 pm to 7.30 pm if a school day, otherwise 2.00 pm to 6.00 pm or as agreed
Both Children
o    On special days as follows:
-          From 9.00 am to 5.00 pm on Father’s Day;
-          From 3.30 pm to 7.30 pm on the father’s birthday;
-From 3.30 pm to 7.30 pm on the mother’s birthday if it falls on a school day otherwise between 2.00 pm to 6.00 pm or as agreed between the parties;
-          From 9.00 am to 5.00 pm on Easter Sunday;
-From 9.00 am to 5.00 pm in odd numbered years on Christmas Day;
oDuring school holidays, two days per week from 9.00 am to 5.00 pm during each week of the school holidays.
·That all time between the younger child and her father be supervised by an independent private supervisor appointed by the mother or an independent agency and to continue until the child attains the age of 12 years, the cost of supervision to be borne by the father;
·Upon the younger child attaining 15 years of age, and depending upon her wishes, she be entitled to spend overnight time with the father on alternate weekends from 3.30 pm on Friday to 6.00 pm on Sunday; and
·Various other orders as set out in the annexed minute of orders sought including various restraints concerning alcohol.

The Independent Children’s Lawyer seeks orders to the following effect:
·That the parties have equal shared parental responsibility for the children;
·That the children live with the mother;
·That unless the parents otherwise agree in writing the older child shall spend time with the father:
oEach alternate weekend during school term from 5.00 pm Saturday to before school Monday
oUnless otherwise specified in these orders, in accordance with the older child’s wishes on the basis that the child consults his father and the father provides the mother notice by SMS not later than 24 hours prior to commencement the details of the arrangement;
·That unless the parents otherwise agree in writing, the younger child shall spend time with the father as follows:
oFor a period of two months from the date of the orders:
(a)Each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday; and
(b)Each Wednesday from after school, or if not a school day from 3.00 pm to 8.00 pm
oFor the following two months:
(a)Each alternate weekend from after school Friday, or if not a school day from 3.00 pm to 12.00 noon Sunday;
(b)Each Wednesday from after school, or if not a school day from 3.00 pm to 8.00 pm;
oThereafter, during school term:
(a)Each alternate weekend from after school Friday, or if not a school day from 3.00 pm until before school Tuesday, or if not a school day until 9.00 am.
·That unless the parents otherwise agree in writing the children shall spend holiday time with the father as follows:
oCommencing in 2016 for holiday periods at the end of Terms 1, 2 and 3 each year from 10.00 am on the first Saturday until 10.00 am on the following Saturday;
oFor the school holiday period at the end of Term 4 in 2015, 2016, 2017 and 2018 as follows:
(a)In the event that either of such period commences before 10 December, from 10.00 am on 10 December until 10.00 am on 14 December;
(b)From 2.00 pm Christmas day until 2.00 pm Boxing Day;
(c)From 10:00 am on 2 January until 10:00 am on 9 January;
(d)From 10:00 am 16 January until 10:00 am on 23 January
oFor school holiday periods at the end of Term 4 in 2019 and thereafter, as follows:
(a)for periods commencing in an even numbered year from 10.00 am on the fourth Saturday of the school holiday period until 10.00 am on the second last day of the school holiday period; and
(b)where the school holidays commence in an odd numbered year from 10.00 am on the first day of the school holiday period until 10.00 am three weeks later.
·Special occasions as specified;
·Changeovers as specified;
·Various other orders as specified including orders to facilitate the father’s management of his alcoholism in the interests of the children.
By the time of final submissions it was made clear that the father seeks orders almost identical to those which the ICL is seeking except that the father seeks overnight unsupervised time with the children each intervening Monday from after school Monday to before school Tuesday and some slight variation of school holiday time.

Background

The father was born in 1962 and the mother was born in 1966.
The father’s elder child of his former marriage, A, was born in 1986. A is currently 29 years of age.
The father’s second child of his former marriage, Y was born in 1988. Y is currently 27 years of age.
The parties commenced cohabitation in 1994 and married in 1997.
In mid-1998 the parties started a family business called X Company which provided communication services.
The parties’ first child, B, was born in 1999. B is currently aged 16.
In 2002 the mother employed Ms F to care for the maternal grandmother. Ms F also looked after the children on occasions.
In 2004 the mother commenced working for X Company from home.
The parties’ second child, C, was born in 2006. C is currently aged nine. C was diagnosed as deaf for the first two years of her life.
In 2006 the maternal grandmother was diagnosed as suffering from Alzheimer’s disease having displayed symptoms of this for a couple of years.
In 2008 the X Company business relocated from the parties’ home to an office in Suburb Z.
In 2009 the older child was diagnosed with Attention Deficit Disorder (“ADD”).
In July 2009 the father was diagnosed with prostate cancer.
On 14 April 2010 and 28 October 2010 the older child’s medical condition was assessed by Dr S of the V Psychology Service.
In mid 2011 the maternal grandmother passed away.
In 2011 the father underwent radiotherapy. Despite the cancer and therapy the father continued to drink approximately two bottles of wine per night although he achieved a period of abstinence for some months.
In January 2012 the father was diagnosed with depression and anxiety. The father often found himself sleepwalking and sleeping long hours.
In January 2012 the father moved out of the master bedroom and the mother put a lock on her bedroom door.
On 28 August 2012 the parties separated. The father moved to an apartment in Suburb Z in September 2012. An altercation occurred between the parties and the mother called the police. An ADVO issued. The police noted that the father was “well intoxicated”.
On 29 October 2012 an ADVO issued for the mother’s protection against the father for six months.
In March 2013 the father moved to live at Suburb P with his older children A and Y.
Following a case assessment conference, on 22 March 2013 the parties agreed that the children should spend time with the father on Wednesdays before school and after school from 5.30 pm to 7.30 pm and on Sundays from 9.00 am to 5.00 pm. It was also agreed that the father would not consume alcohol for 12 hours before spending time with the children.
The father was somewhat inconsistent in spending time with the children during arranged contact times.
On 23 April 2013 a final Apprehended Violence Order issued to protect the mother against the father for twelve months.
On 31 May 2013 the mother received a report from Dr N, consultant paediatrician, confirming a diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”) for the child B.
On 4 September 2013 there was an altercation between the parties concerning the children’s time with the father. He said that the mother arrived at his house and the father believed the mother had been drinking. The father said that the mother pushed into his house. The mother threatened to call the police.
The father said that the mother cancelled his time with the children on Wednesdays from 12 September 2013. He said that she also did not allow him to spend time with the children on four Sundays from 22 September to 29 December 2013.
In September 2013 the father ceased drinking alcohol and commenced to cohabit with his current partner, Ms J.
The father said that the mother cancelled his time with the children on 22 September, 10 November, 1 December and 29 December 2013.
On 19 January 2014 the father texted the mother asking if the children could stay the night. The mother called the police and the children were returned to her care at 9.30 pm.
On 26 January 2014 there was a disagreement between the parties about the time the children should be returned to the mother. The children subsequently remained in the father’s care for the evening despite the mother calling the police. The mother said that the younger child told her that the father slept in her bed and showered with her.
The mother said that in February 2014 the younger child told her that the father puts shampoo on her hand while she is in the shower.
The parties divorced in April 2014.
On 7 April 2014 orders were made providing that the children spend time with the father from 9.00 am to 5.00 pm on Sundays and 5.30 pm to 7.00 pm on Wednesdays, supervised by Q Contact Service.
Contact did not occur between the children and father on 17 April 2014.
On 22 May 2014 orders were made requiring the father to undertake random supervised urinalysis testing.
On 26 May, 4 June and 5 June 2014 the younger child came home from school distressed and complaining that she had been the victim of bullying. The mother’s solicitors wrote to the father’s solicitors about this and the father refused to agree to the child changing schools. The mother subsequently enrolled the child at Z Public School.
The father said that between June and November 2014 contact with the children commenced between 10 and 30 minutes late on 14 occasions and was cancelled on three occasions. He said that on four occasions the mother was not home at the conclusion of contact.
Interim parenting orders made on 28 November 2014 provided for the older child to spend time with the father from 3.00 pm to 7.30 pm each Tuesday and Thursday and on Sunday from 9.00 am to 6.00 pm in week one. In week two the father was to spend time with the older child from 3.00 pm to 7.30 pm each Thursday and from 9.00 am to 6.00 pm each Sunday. The orders provided for the younger child to spend time with the father from 3.00 pm to 7.30 pm each Thursday and on Sunday from 9.00 am to 6.00 pm in week one and in week two from 3.00 pm to 7.30 pm each Tuesday and on Sunday from 9.00 am to 6.00 pm. The orders provided for the younger child’s time to be supervised by Q Contact Service.
On 4 December 2014 the mother’s solicitor wrote that the older child had been rude to the mother, including swearing at her, and that the child had said that the father had spoken to him about the family law matters.
From 13 – 21 January 2015 contact did not occur between the father and children.
On 26 April 2015 the father’s time with the children commenced half an hour late and was shortened at the mother’s request.

Credit

The Mother

The mother appeared to be somewhat nervous and anxious in the witness stand. She had some difficulty with the process of cross-examination. She was not very responsive in her answers to questions to the point where after quite some time I informed her that she was required to provide responsive answers not to say things which she might think might favour her own case.
Having said this, when questions were asked about the alleged incident of sexual abuse by the father on her mother, the mother broke down in a very distressed state and I found it necessary to adjourn the court to enable her to recover her composure which took some minutes. I did not have a sense that this was contrived.
The mother appeared to be unable to give the father credit for having made much of a contribution to the parenting of the children. In this regard her evidence stands in considerable contrast against that not only of the father but also of Ms F and also stands in contrast against the reports of the various supervisors employed by Q Contact Service.

Mr G

Mr G is the mother’s brother and only sibling. He is resident in New Zealand and was cross-examined over the telephone from New Zealand. He indicated that he had suffered a stroke in early 2013.
He spoke with some slurring of his words and was somewhat slow in his responses. One could well understand these would be expected characteristics of his condition of having suffered a stroke. Having said this, in my view he was responsive in his answers to questions.
Mr G was asked a question to the following effect. In his affidavit he had said that recently he had received a telephone call from his sister and she said that there had been a breach of trust between the father and their mother. He was asked whether something indecent had happened and he responded in the negative. He was also asked whether his sister had raised any concerns with him to the effect that the children’s father had done anything indecent to the child C. Mr G responded “No”.
In fact, Mr G had said in his affidavit that his sister had informed him that she had walked in on the father making their mother do an unspeakable sexual act on him.
Learned counsel for the mother sought to read over to Mr G in re-examination what he had said in his affidavit about this. There was a strong objection by learned senior counsel for the father. But in circumstances where I was satisfied that Mr G was to some extent disabled by the effects of his stroke, I permitted this matter to be pursued by counsel for the mother. Mr G confirmed that his sister had informed him of this matter during their telephone conversation.
I must say I have no hesitation in accepting Mr G as a witness of the truth.

Ms L

Ms L is a longstanding close friend of the mother. Like Mr G, her cross-examination was conducted by telephone from New Zealand.
She gave her evidence in a responsive manner.
I regard Ms L as a witness of the truth.

Ms M

Ms M was not required for cross-examination.

The Father

On most occasions the father was responsive to answers in cross-examination. He made many concessions, including readily conceding that he is an alcoholic and that on numerous occasions he has behaved very badly towards the mother and the children.
He denied the very serious allegation of serious sexual misconduct by him against the children’s maternal grandmother. He also denied that he urinated on her bed and in her bedroom.
I shall refer below to the very serious allegations made by the mother against the father, most of which the father has denied. I have serious reservations about the reliability of much of the father’s evidence.
I must say I have difficulty accepting the father’s denials. But as indicated below I find myself unable to be satisfied that on the balance of probabilities it was more probable than not the father committed the various matters alleged by the mother against him.

Ms J

Ms J is the father’s partner. It is the case that she was not always responsive in her answers. But after learned counsel drew this to her attention Ms J was responsive.
Ms J made concessions readily. I had a strong sense that she is a very honest person and that her evidence can be relied upon.

Ms F

Ms F was employed from March 2003 to care for the maternal grandmother. She also took on the role of caring for the children and assisting with other housekeeping duties.
Ms F cared for the maternal grandmother up until 2011 when the grandmother passed away. She continued to care for the children until 2012.

Ms R

Ms R is the father’s former wife. Her affidavit came into the evidence unchallenged.

Ms A Dover

Ms A Dover is the father’s adult daughter. She is 28 years of age. Ms Dover conceded that she was nervous.
Ms Dover was thoughtful and responsive.
I regard her as a witness of the truth in relation to the matters to which she deposes. But there is nothing critical of her father in her affidavit. In my view a balanced account would have made some reference to the problems her father had with drinking alcohol during the many times when she and her father were living under the same roof.

Mr Y Dover

Mr Y Dover is the father’s adult son who is 27 years of age. He was responsive in his answers to questions during cross-examination. He readily made concessions.
I regard Y Dover as a witness of the truth in relation to the matters in his affidavit. But like his sister A’s affidavit, there was no reference in his affidavit to the father’s previous difficulties with drinking alcohol. There was no mention of any incidents of violence in the household which seems to be unrealistic in the face of the father’s concessions about violence.

Professor H

Professor H is a medical practitioner and the medical director of the Drug and Health Services at the O Hospital. Dr K had recommended that the father make an appointment with Dr D, a specialist medical practitioner for treating people with drug and alcohol addiction. Dr D was unable to accommodate the father and Professor H was recommended by the Wesley Mission.
Learned counsel for the mother submitted that I should be cautious indeed about accepting most of Professor H’s report. There were several aspects to this submission. Firstly, Professor H was not a single expert witness but rather he was the father’s witness. Professor H strayed into providing opinion in relation to areas for which he was not qualified.
As I shall indicate below, I accept part of these submissions. But in my view, the core aspects of Professor H’s opinion are admissible and significant. These are his opinion about the father’s alcoholism, his view that the father has remained sober against the odds and his view that the father’s risk of relapsing is diminishing as his period of sobriety lengthens. At the present time the risk of relapse is regarded by Professor H as low.

Dr K

Dr K is the child adolescent and family psychiatrist appointed as the single expert in these proceedings. Dr K has provided a detailed report and has also been cross-examined about his report. Where I have included his observations, comments or recommendations in these reasons, such evidence can be regarded as having been accepted by me.

Father’s Alleged Sexual Abuse of the Mother’s Mother

In her affidavit the mother alleged that in 2007 at about midnight she woke up from her sleep and noticed that the father was not in bed. She went into the TV room and he was not there. She said she decided to check on her mother and as she walked into her mother’s room she observed the father with his trousers down, his t-shirt up and he was holding the back of her mother’s head and forcing his erect penis into the maternal grandmother’s mouth. She said that she screamed “get out, get out, get out”. She said that he then stumbled out of the room. She said that her mother was crying, that she hugged her and consoled her and put her into bed and sat with her for a long time. The mother said that her mother did not want to talk about it. She said the next day her mother was very quiet and she spent the day with her hugging her and being close to her. She said that they never spoke about it. She wanted to say something to the father about it the following morning but she was too scared to do so.
During her cross-examination the mother gave a very similar account to this. She said she thought that she slept on the side of her mother’s bed that evening.
The mother next saw the father on the next day briefly when she was cooking breakfast. She said she never spoke to him about the incident because she was too scared to and she never spoke to her mother about the incident. She said she did not go to the police and in fact did not tell anybody about this incident until many years later when she informed her girlfriend Ms L. This was in approximately January 2013, so approximately six years later. The mother said she thought that night, that is the next night after the incident, she slept in the same bed with the father. The mother deposed that she installed a new lock on the maternal grandmother’s door following the incident. The father denied this, stating that the lock had always been there and was used to stop the maternal grandmother wandering at night. I prefer the evidence of the father and his witnesses about this matter to that of the mother.
It was submitted on behalf of the father that the mother’s account simply seems to be incredible. Clearly the father denied any such incident. Much was made by learned senior counsel for the father about the fact that notwithstanding the mother said she was horrified and disgusted by the incident, she quickly resumed sleeping in the same bed as the father, they presented themselves to family and friends as an intact couple, entertaining relatives and friends and being entertained by such persons. In addition, numerous photographs were tendered apparently taken only a few months after this alleged incident in which the mother seemed to be enjoying herself immensely in the presence of the father.
Dr K, when asked about the delay between the incident occurring and the mother reporting the incident to anyone, said that the lack of disclosure over time does not discount the possibility that the allegation itself is correct. He said that it is not uncommon for a long delay to occur in disclosure of such events, or for there to be an odd unassociated behaviour to remove risk in the context of a power imbalance. He opined that if there was a lesser pattern of family violence and power imbalance, then the mother’s behaviour would seem odd.

The mother said she was also concerned about three incidents in which she alleged that the father had urinated in her mother’s bedroom. She said in 2007 she went into her mother’s room and observed the father zipping up his trouser fly. She said she observed a wet, yellow patch on her mother’s doona which smelt strongly of urine and wet drips on the wooden floor. She said she asked her mother what this was and her mother said that the father had just passed urine. She said there was another incident where she found urine in her mother’s glass and a further occasion when she said there was urine on the bare, wooden floorboards of her mother’s bedroom.
There is no question that her mother had some level of incontinence at this time. But the mother said that her mother was able to manage, apparently without accident, to move from her bedroom to the bathroom. The mother said it was only when the mother went on extended bus trips that she found it necessary to use incontinence pads. I shall refer to this again below.

Father’s Alleged Sexual Abuse of the Mother

The mother alleged that the father used prostitutes during his former marriage and during cohabitation. The father denied this.
The mother also alleged that the father was violent to her in various ways during sexual intercourse. The father denied most of the alleged behaviours. It is unnecessary to set out any detail of these alleged behaviours because I am unable to make a finding one way or the other about the allegations.

Father’s Alcoholism

The father started drinking alcohol socially in his late 20’s. He grew up in a household where his step-father was an alcoholic. The father said that from a point where he regarded himself as drinking socially his intake of alcohol just started to increase.
The father and his first wife Ms R were practitioners of a religious faith, a tenet of which is not to drink alcohol. He endeavoured to keep the fact of his drinking alcohol secret from Ms R. But as it turned out, she became aware of this.
The father’s alcohol drinking was an ingredient in the breakdown of his marriage with Ms R.
The mother says that from the commencement of cohabitation, the father would drink alcohol almost every night.
The mother said that on several occasions from 2000 until separation she observed the father sleeping passed out outside the house. She said on four to five occasions she observed the father wandering in the garden naked. When asked about this, the father said that these incidents refer to him watering the garden, wearing boxer shorts, however on one occasion he would have been naked.
The father stopped drinking for approximately five months in both 2000 and 2004.
The mother said that in 2005 the father admitted to her that he was an alcoholic. She said that in 2005 the father began to demand particular meals and would on some occasions throw his plate of food at the wall or give it to the dogs.
By 2004/2005 the father was informed by health professionals that drinking alcohol was affecting his health. He endeavoured to abstain and achieved sobriety for a few months but each time this occurred he returned to drinking alcohol.
In 2006 again the father was told that his consumption of alcohol was affecting his health. He approached his general medical practitioner and informed the doctor that he was suffering withdrawal symptoms and cravings. He became abstinent for three months and then returned to drinking. He said that at that time he did not consider himself an alcoholic but with the experience he has now had from various therapists appreciates that he was alcoholic at the time.
In 2009 the father was diagnosed with prostate cancer and he underwent surgery which removed his prostate gland. But the cancer continued and he became very frightened and suffered from stress and anxiety. His excessive drinking continued. His cancer worsened.
The father stopped drinking for approximately six months in 2011. He became suspicious that the mother was engaging in an affair with a colleague and he commenced drinking again.
In 2012 the father was diagnosed with depression and was prescribed Stilnox, Diazapan and Zoloft. Despite being aware that alcohol should not be mixed with such medication he found himself unable to resist drinking alcohol.
The father said that he stopped drinking alcohol on 13 September 2013. He had commenced a relationship with his current partner Ms J and they commenced to cohabit on that date. Ms J said that their cohabitation commenced in circumstances where she invited the father to move into her home which she said was an alcohol-free environment. She said she informed him that it would help with his recovery. Both the father and Ms J said that since moving into Ms J’s home on 13 September 2013 the father has not had a drink of alcohol. Ms J said the father has only spent two nights away from her since that date. On those occasions he stayed at his adult children’s home. Ms J said on 13 September 2013 she was advised that in order to really support the father she should stop drinking alcohol. She has abstained from drinking alcohol since that date.
The father’s doctor prescribed Valium, Naltrexone and Vitamin B medications to assist the father to manage the effects of alcohol withdrawal. Ms J has been attending doctors’ appointments with the father. I am satisfied that she is very serious about her commitment to assist him to remain sober. She said that she observed his withdrawal symptoms to pass after a few weeks.
The father and Ms J moved to Suburb U, a semi-rural area, and subsequently to a large home in Suburb W. There is sufficient accommodation in their home to provide each of the children, including the children of the father and the mother, with their own bedroom in addition to the room in which the father and Ms J sleep. The father and Ms J gave evidence that their new home is an alcohol free home and that they ask guests generally not to drink alcohol at the property. However, if the guests do wish to drink, they are asked to take home any alcohol they may have left over.
The father said that he has been totally focused on remaining abstinent. He said that he still has urges to drink although not often. He says he is able to manage to overcome such urges without much difficulty.
Professor H has prepared a detailed report concerning the father. In his report Professor H said that the father expresses clear insight into his previous drinking problems and accepts the diagnostic label of being an “alcoholic”. He said the father feels now that he is an alcoholic who is in control of his drinking.
Dr K diagnosed the father as having a severe long-standing DSM5 alcohol use disorder. He said that this is an entrenched problematic pattern of habitual use of alcohol, which is self-reinforcing both physiologically and psychologically, and which carries a long-term risk of reinstatement of that pattern if there is a return to any alcohol use. Dr K said that particularly notable has been the father’s heavy daily or most days each week consumption of alcohol, dating back to at least 2005, but probably from early in the parental relationship. He said that the father has shown important psychological and social features of dependence from prior to the relationship with the mother and that such features appear to have been a significant factor in the break-up of his first marriage.
Dr K said that the father’s alcohol use disorder is evidenced by the following:
·The father has reported long-standing current daily or most days substantial alcohol use from as far back as April 2005. In April 2005 the father reported consuming ten standard drinks (about one and a half bottles of wine) per day on five to six days per week. Dr K referred to other details of the father’s drinking which it is unnecessary to set out in detail. Dr K noted that the father’s high level of consumption of alcohol led to biochemical evidence of liver cell death (raised GGT) on a number of occasions between 2005 and 2011, dropping from about 50 to about 20 when the father stopped drinking for ten months in 2011/2012.
Dr K said such regular consumption of high volumes of alcohol will inevitably lead to significant neuroadaptation, which he said was:
·The brain adapting to the volume of use by developing tolerance to use, such that a given volume of alcohol would have less effect on the father, motivating and allowing him then to drink more, so as to obtain the desired effect;
·The brain regulating to the depressant effects of alcohol, contributing to alcohol-induced depressive symptoms;
·Withdrawal, irritability and anxiety in the mornings and during the day until drinking recommenced in the afternoon or evening; and
·Drinking to manage withdrawal symptoms.
Dr K said a further part of the evidence was a persistent desire or unsuccessful efforts to cut down or control alcohol use and taking alcohol in larger amounts or for a longer period than intended.
Dr K listed a considerable number of further factors which he opined supported his diagnosis.
Professor H agreed with Dr K’s diagnosis.
Dr K said that the father appears currently to be in remission from his alcohol use disorder. Dr K said because of the father’s history of severe, persistent and recurrent alcohol dependence, recovery relies upon abstinence from alcohol. He said that if the father is found to have returned to drinking even now and again there is a very high risk of reinstatement of the full dependent syndrome over the subsequent days, weeks or months.
Dr K said that overall, he feels that the father’s prognosis for long-term abstinence is reasonable whilst he remains in a constructively controlled environment of his cohabitation with his current partner and positive co-parent role with her. He said that in that setting the father is receiving a lot of structural support for abstinence, for example there being no alcohol in the house, ongoing accountability to and reinforcement provided by his partner and an alternative channel for his desires and energies, that being his role as appreciated and acknowledged partner and co-parent. He said that other positive prognostic indicators are:
·The father’s acknowledgement that he is an “alcoholic”, that his drinking was problematic from 2009 and that his drinking has caused suffering for himself and others;
·The father’s commitment to long-term abstinence from alcohol;
·The father expresses ongoing caution about the risk of relapse and appears to have made lifestyle changes in order to address and manage that risk; and
·The father’s past and current willingness to attend therapy aimed in whole or in part at addressing his alcohol use disorder.
Dr K said he remains cautious about the risk of relapse even in the father’s current living environment and would be very concerned about relapse if the father was no longer in that living environment. Dr K set out in detail his reasons for this in his report.
Professor H noted that the father has been abstinent from alcohol for nearly two years. He said that accordingly, the risk of relapse to heavy drinking is ever decreasing although not zero. He said that the father exhibits the classic positive prognostic features these being that he has found a clear post-alcohol free lifestyle, a strong rehabilitative relationship that is not accepting of alcohol and the likelihood of immediate adverse effects should he return to heavy drinking. He said a final prognostic factor is a source of hope or improved self-esteem and that the father could look forward to a closer relationship with his children.
Professor H said that the father is seeing a psychologist approximately once per month (Ms E), has been seeing Professor H for about three months and is undergoing a monitoring program. The program has been successful to this point and the father appeared to be motivated to continue. Professor H said the father is on anti-depressant medication but has not currently been prescribed anti-craving medication for alcohol. He said that he is comfortable that the present management approach is appropriate for the father’s present circumstances.
Professor H agreed with Dr K that there is a long-term risk of reinstatement of the father’s pattern of drinking if he returned to any alcohol use. But Professor H said that although the father remains vulnerable to relapse to some degree, the risk of relapse reduces over time. He said that the father is now approaching two years of abstinence so that the risk has diminished. He thought any relapse to drinking could be relatively contained. He also described the risk of return to alcohol abuse if the father was to have even one alcoholic drink as being relatively low. This is for various reasons. The father’s social context is now different from what it had been some years ago when he was drinking heavily. This is that he has found a clear alcohol free lifestyle and a good relationship with his partner Ms J. This lifestyle is one in which alcohol is not accepted. He is undergoing an appropriate rehabilitative program which includes seeing a psychologist approximately once per month, seeing Professor H, undergoing a monitoring program and being managed by appropriate medication.
Professor H agreed that it was a concern that the father’s previous attempts to abstain from drinking alcohol, that is six periods of even up to nine months including attendance at Alcoholics Anonymous meetings were followed by relapse. But Professor H said the father’s social context is now different from what prevailed at that time and he still considered that the risk of relapse was low.
Professor H also agreed that if the Court was to find that a pattern of family violence permeated the father’s life over the relevant period this was a matter for concern. But he said that much of the violence, if it occurred, might have been triggered by the father’s previous drinking so that if the father was not drinking then the trigger would not be present.
There were further challenges to Professor H’s opinion as follows:
·In terms of the risk of relapse it was put to Professor H that if the father’s previous partner had also been supportive in his endeavours to become abstinent from alcohol that would be a concern. Professor H agreed with this and conceded that he had never met the mother in these proceedings; and
·Professor H notes that Dr K (at para 193) observes an apparent sense of “emotional detachment” which Dr K describes as an “anti social personality trait of a psychopathic type”. Professor H takes issue with this and says that as a matter of logic the incidents used by Dr K to establish such personality assessment are uncertain. Professor H goes on to say that he does not believe the term psychopathic to be appropriate to describe the process by the father of managing his financial affairs. It was submitted that Professor H is not qualified either as a psychiatrist, psychologist or social worker and that these observations intrude beyond his qualifications and experience to provide any such opinion. Professor H said he undertook some research in text books about this and spoke with two psychiatrists before making his observations in this regard.
Be this latter matter as it may, I accept the submission on behalf of the mother that the Court should not have regard to such opinion because it is outside Professor H’s area of expertise.
I also accept the objection in respect of the general parenting comments by Professor H including commentary on the recommendations by Dr K. I do not take these into account, again on the basis that it is questionable that Professor H has the qualifications and experience to profess such opinions.
With respect to the father’s alcohol use and its impact on his parenting capacity, Dr K noted that the father’s drinking will have a profound effect on any continuity of and communal development of shared experience and knowing with each child. He said further that the children were exposed in an ongoing way to paternal intoxication and to paternal modelling of an alcohol dependent pattern of living. The younger child said to Dr K “I used to worry… that he’d get too drunk, and kill himself”. She said that she could tell when the father was drunk because “he’d walk funny, and talk weird … he’d say his words weird.”
Dr K stated further that he did think it likely that the children were exposed to paternal irritable low-level aggression and intermittent impulsive more significant aggression, associated with the father’s drinking. Dr K said had the father been solo parenting during the years of his drinking, the father would likely not have had the capacity to meet the children’s basic needs for regular provision, monitoring and protection from harm, or their more complex emotional, intellectual, relational or developmental needs. Dr K said the same would quickly become true, if the father returned to drinking in future.
Dr K concluded that the father’s neglect of the children during his years of drinking was not absolute. He said that seen alone, the children described aspects of longstanding positive time with the father. The older child said that the father would come to play football games and/or training and help with his maths homework. The younger child said that she and the father would play games sometimes, but overall the children contrasted the father’s past relative absence with his current interest and engagement.
I shall refer to the father’s alcoholism again below.

Alleged Violence

An issue in these proceedings is whether the father engaged in family violence.
Family violence is defined in s 4AB of the Act as follows:
4AB(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.
4AB(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.
Sub-sections 4AB(3) and (4) of the Act set out how a child might be exposed to family violence as follows:
4AB(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.
4AB(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.

Allegations against the father

The mother alleged that an altercation occurred between her and the father in late 1994 and that the father threw a lamp at her. She said that two weeks later during a further argument the father swung a guitar at her. The mother said that on each of these occasions she was shocked and that the next morning the father gave her his credit card and suggested she buy something for herself. These matters were not put to the father in cross examination.
The mother alleged that in 1999 while she was pregnant with the older child, the father pushed her down stairs and caused her to fall. The father denied this during cross examination.
Ms L said that in mid-1999 the mother telephoned her in New Zealand and was distraught. She said that the mother informed her that the father had pushed her down the stairs. She said that they discussed the possibility of the mother leaving the marriage.
Given my favourable view of Ms L as a witness I accept that it is more probable than not that the mother’s allegations in this regard are correct.
The mother said that an altercation occurred between the parties in November 1999. She said that the father had been drinking, and that he yelled at her and threw eggs, plates and other food items at her. The father conceded that he had thrown eggs but denied that he had thrown plates. The mother said that the father then approached her with a carving knife and tried to take the older child from her arms. The father agreed that he tried to take the child from the mother. He also said that he had picked up a knife in the kitchen but said he did not have a knife when he asked for the baby. The mother said she yelled out to A for help. A gave evidence that she woke up on the same evening as she heard the mother yelling at the father, but then fell back to sleep. The mother telephoned the police who arrived shortly thereafter. I am satisfied that the police attended and took the father to hospital. The mother said that they were visited a month later by a caseworker from DOCS.
The mother said that in April 2002 the father slashed his legs with a large kitchen knife, causing them to bleed. The mother called the police and the father ran into the bushland to hide. I accept that the police attended following the mother’s complaint and that the father had consumed a vast quantity of alcohol.
In May 2003 the father shoved open the maternal grandmother’s door to her room and injured the maternal grandmother’s arm. The father conceded this. The maternal grandmother was taken to hospital three days later and her arm was in a sling for six weeks.
The mother said that she observed the father on 25 December 2003 to remove the older child’s shirt and strike him on the back, leaving red marks. She said that she barricaded the child and herself and hid in the child’s bedroom for the night. The mother said that the father hit the child with his belt or hand on several occasions. The father conceded to hitting the child with his belt on one occasion for biting a babysitter when he was five or six years old. Ms F also observed the father smack the child on the bottom with an open hand on an occasion in 2003. The father conceded he smacked the child on the bottom occasionally and said the mother also occasionally smacked the child.
The mother said that in June 2006 the father became very unhappy that she had worn a low cut dress to a party. She said that when they returned to their hotel room the father yelled at her, picked up a bedside lamp, a clock and various items of clothing and threw them at her.
The mother said that in 2007 the father smashed his fist into the sliding door of the maternal grandmother’s room and left a hole in the door. The father denied that this incident occurred. There is no objective evidence about this and I am unable to accept the mother’s assertion.
The mother said that in 2007 she found the father in the maternal grandmother’s room zipping up his trousers. She said she observed a wet yellow patch on her mother’s doona that smelt strongly of urine. The mother said this happened on many occasions. As indicated, I am unable to accept or dismiss the mother’s assertion in this regard.
The mother said that sometime in 2010 the father tried to force the mother to watch a video called “Rape of a 16-year old schoolgirl”. The father denied this.
The mother deposed that in early 2011 she observed the father to play a game with the younger child where he would pull her pants down past her buttocks and encourage her to pull his pants down. The father was not cross examined about this issue.
In March 2011 the mother’s mother moved into a nursing home.
The mother said that in 2011, the children’s babysitter told her that the father had bitten her toe and that she refused to baby sit for them again. The father denied that he had bitten the babysitter’s toe. The mother is concerned about this because she said that during sex the father would bite her toes.
The mother said that on 16 August 2011 the father sent her text messages containing words to the effect “You’re a bitch”. The mother said that when she returned home that day she found that the back door had been smashed. The mother said the older child told her that the father had smacked him twice. The mother observed the child to have a red cheek.
The mother said that she heard the father threatening to hit the younger child with a belt on 18 August 2011.
In January 2012 the father was diagnosed with depression and anxiety. He was prescribed medication. He said he often found himself sleepwalking.
An altercation occurred between the parties on 2 August 2012 that resulted in, so the mother says, the father grabbing her wrists causing her pain and bruising.
The mother said that the father bit the younger child’s toe in August 2012, causing her to scream with pain and cry out “I hate you Daddy”. The father denied ever having bitten the child’s toe.
On 28 August 2012 the parties separated. The father moved to an apartment in Suburb Z in September 2012. The mother said an altercation occurred between the parties. The mother called the police following the incident and the police report notes that the police asked the father to leave the home for the evening. The father resisted leaving the premises and verbally abused the mother in front of police. An ADVO was issued for the mother’s protection against the father. The father said he consented to this order on a “without admissions” basis. The police noted that the father was “well intoxicated”.
The mother said that following being served with the mother’s Initiating Application in January 2013, the father entered the mother’s office and called her a “fucking cunt”. The father later sent her text messages containing intimate photographs of the mother’s vagina and of the father’s penis in her vagina followed by a text message threatening to post the images on the internet. The mother reported this to the police. The father was charged with breaching the ADVO and later sentenced to 200 hours community service. The ADVO was later extended for a further 12 months until April 2014. The father said that he is deeply ashamed of this incident and that he was under the influence of Zoloft and Stilnox at the time. Yet the father was aware that he should not drink alcohol when on such medications. He said he has apologised to the mother many times for this. I accept the mother’s evidence about this.
Dr K said the paternal act in January 2013 of texting to the mother sequentially the photographs of the mother’s vagina, his penis in her vagina, then her genital region from behind, with a final warning of an intent to place the pictures “on the internet” was a cruel act which showed a disregard for and violation of the mother’s rights, was unlawful and was indifferent to the mother’s emotional experience. Dr K went on to comment that if this was an impulsive, alcohol-fuelled act driven by parental distress at the mother’s failure to respond to the father’s calls (as the father had represented it to Mr V and Mr HH), then it demonstrates a risk of the father resorting to antisocial acts when drunk and under pressure. Dr K said however, “I am concerned that in fact, this episode may have represented more intrinsic antisocial personality functioning in the father. It appears uncontested that these photographs were taken during a brief “attempted reconciliation” in November 2012, when the couple were already locked in combat over matters such as their business and financial affairs. Dr K was concerned that the father might have taken these photographs with the purpose of future coercive or retributive use.
The mother said that on 26 January 2014 the younger child said “Daddy came in and slept in my bed”. The mother said that a few days later the child said “Daddy gave me a massage as well”. The mother said that when she asked where, the child replied “on the hand”.
Although not an allegation of violence, the mother also said that when the younger child was in the shower on 13 February 2014 she said “Daddy puts the shampoo in my hand when I’m in the shower”. The mother said she said “But Daddy doesn’t have showers with you does he?” and that the child replied “Oh, I think I had my swimsuit on, I can’t remember”. The mother said that she became very concerned about this because when she tried to talk to the child about this she “suddenly bolted up”. The father was not cross-examined about this.
Upon the younger child saying these things to the mother, the mother instructed her solicitor to write to the father’s solicitor and indicate she required the father’s time to be supervised.
In April 2014, the father sent to the mother a photo of the family pet cat “XX” which had just died.
Dr K said at paragraph 189 of his report that the children did not express fear of the father or describe him as having been aggressive or abusive and appeared to have an overall positive inclination towards him. He said that his impression was that the father’s alcohol dependence caused paternal neglect but minimal, if any, experience of paternal aggression or abuse directed to them or to their mother in their presence.
Dr K opined that the father’s behaviour towards the mother over time has amounted to a pattern of family violence, with what he described as a baseline degree of coercion and disrespect, flaring up into overt aggression on occasions particularly around the period of separation and since separation.
At paragraph 232.3, Dr K said that the act of texting photographs of the mother’s genitals and the father’s penis in the mother’s vagina was a sexually aggressive coercive and retributive act.
In my view the evidence of the father’s behaviour is sufficient to enable the Court to find that during the parties’ relationship and following separation there has been a pattern of family violence perpetrated by the father upon the mother.

Is the Court Able to Make a Finding of Unacceptable Risk?

The Court is unable to make a finding that on the balance of probabilities it is more probable than not that the father acted against Mrs MG, the children’s maternal grandmother, in the manner alleged by the mother, that is by putting his erect penis into her mouth.
Dr K’s impression was that the father did not act in the manner alleged.
The mother did not raise the matter in any way with the father or anyone else including the police the next day or indeed until February 2013 when she informed Ms L and subsequently her brother Mr G. The mother never made a complaint to the police until January 2014. But Dr K said this would not be unheard of in the context of domestic violence.
The father denied the allegation about the sexual abuse and the allegations about him urinating on her doona, in her glass and in her bedroom. The mother conceded during cross-examination that she could not remember all the details of this alleged abuse.
Yet the father had reason to resent her continuing and long-standing presence in the home. He informed Dr K that the mother informed him that her mother would be coming for a month but she stayed living at the home for more than 11 years. Such a situation together with his ongoing habit of drinking to excess each evening might give rise to the possibility of the behaviour complained about.
And as indicated above, the mother appeared to me to be very distressed when being cross-examined about this.
I am unable to find on a balance of probabilities whether these alleged abuses of the maternal grandmother occurred or not.
If the father acted in the manner alleged, this was at a time when he was drinking excessively. This is no longer the case. He has been abstinent from alcohol since September 2013. Despite the caution urged by learned counsel for the mother about Professor H’s prognosis that the father’s risk of relapse to drinking alcohol is low, I accept this central component of this expert’s evidence.
The father is strongly supported by his partner Ms J and his adult children in his efforts to remain sober. The home of Ms J and the father is an alcohol free zone. The father appears to be very proud of his now quite substantial record of remaining sober. He appears to place a high value on his relationship with Ms J and her children, as well as with his own children. He is aware that Ms J would not tolerate any lapse in his behaviour. He also appears to enjoy his current alcohol free lifestyle with all of these persons. In my view, this is a very different situation from that which prevailed at the time of the alleged aberrant behaviour by him. This is a point considered significant by both Dr K and Professor H.
The father’s adult daughter A was clear in her evidence that the father never acted towards her in any sexual or inappropriate manner. I accept her evidence about this.
The mother herself, notwithstanding the very serious complaints she has made against the father, continued to leave both her mother and the children in his unsupervised care when she chose to spend recreational time with her friends undertaking her hobby weekends. In my view, it is very difficult to reconcile this behaviour with an expressed serious concern by the mother that the children would be at risk in the father’s care.
All reports from the professional supervisors about the father’s relationship with the children, his behaviour towards them and the children’s behaviour towards the father have been very positive.
In all the circumstances, in my view, the children would not be exposed to an unacceptable risk in the unsupervised care of their father provided that he continues to remain abstinent from alcohol, maintains the support of his ongoing therapy and continues to live with Ms J and her children. Orders will need to be put in place to support the father’s continuing sobriety in the best interests of the children.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that 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.
Section 61DA(2) of the Act provides in effect that 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 abuse of the child or another child member of the parent’s family or engaged in family violence.
Sub-section 61DA(4) provides to the effect that 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.
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 first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. But this does not apply if a parent has engaged in family violence.
As indicated above this is a case where the Court finds that the father has engaged in family violence as defined in the Act. So the presumption of equal shared parental responsibility does not apply.
Nevertheless, in my view the parents should have equal shared parental responsibility for the children.

The children love their father and a have a good relationship with him. The objects of the legislation are clear. These include that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests. But it is essential also for them to be properly protected from harm.
Dr K said that while the orders should encourage time between the children and father, he would recommend orders foundationally related to the children growing up with the mother. He said that the mother is fundamentally more honest and committed to the children in a day to day way and that she is a better model in terms of her relating to others. He said on the flipside, that the father could be charming, disingenuous, coercive and self-serving.
In my view, the orders I propose will provide proper opportunity for the children to further develop their meaningful relationship with their father without exposing them to unacceptable risk. In my view, the orders are in the best interests of these children.
The mother initially sought that the children spend time individually with the father. Dr K described this arrangement as “a bit fiddly” and suggested that it would be better for the children to spend time with their father together, to promote a more straightforward contact arrangement. But of course the reality of the older child’s age might mean that he would not slavishly follow the arrangement.

Orders

I accept the general thrust of the orders prepared by the ICL. This will involve a period of unsupervised day only time, followed by periods of one overnight occasion of time spent and building to alternate weekends involving four nights. And school holiday periods from the end of Term 2 in 2016.
In relation to practicability, the geographic distance between parents is manageable. They have both said they are committed to facilitating relationships between the children and the other parent. Admittedly their level of communication is poor but the orders will go some way towards managing this difficulty. In my view, the children will be able to manage the arrangements I propose.
The father sought an order that the children spend time with him on the intervening Monday evenings. It was submitted that Dr K’s concern that an intervening overnight occasion would provide opportunity for further conflict between parents would not apply because the children could be collected from school on the Mondays and returned to school the following morning.
Balancing the children’s need for opportunity for meaningful relationship with the father against the disruption of such a proposal and the mother’s level of anxiety generally about time spent, I would not regard such time to be in the children’s best interests.
Although the older child is now 16 years of age, I have decided to include him in the time spend orders for the purpose of endeavouring to provide a structure of opportunity for him to develop his relationship with his father. And the mother did say she would be more confident about the younger child if B was also present. But if the older child wishes to make some other arrangement with his parents that will be a matter for him.
I propose that the orders will commence on 1 February 2016 which should enable the children to resume school and have the distractions of the December/January school holiday period behind them.

I certify that the preceding three hundred and twelve (312) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 21 December 2015.

Associate:

Date: 21 December 2015

ANNEXURE A

MOTHER’S MINUTE OF ORDERS

The mother should have sole parental responsibility in relation to the children, and that she be required to keep the father informed of any decisions made by her in respect of any major long-term issues regarding the children and to provide him with all relevant information pertaining to such decisions.
The parties not be required to consult the other when making decisions while the children are in their care under this Order about issues that are not major long-term issues.
The children live with the mother and spend time with the father as follows:
[The older child, B]
·Each Sunday from 9.00 am – 6:00 pm;
·Each Wednesday from 3:30 pm – 7:30 pm;
·Alternate Tuesdays from 3:30 pm – 7:30 pm;
·On ‘Special Days’ as follows:
ofrom 9.00 am – 5:00 pm on Father’s Day;
ofrom 3:30 pm – 7:30 pm on the father’s birthday;
ofrom 3:30 pm – 7:30 pm on his birthday if it falls on a school day, otherwise between 2:00 pm – 6:00 pm or as agreed between the parties;
ofrom 9:00 am – 5:00 pm on Easter Sunday;
ofrom 9:00 am – 5:00 pm in odd numbered years on Christmas Day;
oAny further times in accordance with [the child’s] wishes.
[The younger child, C]
·Each Sunday from 9.00 am – 6:00 pm;
·Each Monday from 3:30 pm – 7:30 pm;
·Alternate Thursdays from 3:30 pm – 7:30 pm;
·On ‘Special Days’ as follows:
ofrom 9.00 am – 5:00 pm on Father’s Day;
ofrom 3:30 pm – 7:30 pm on the father’s birthday;
ofrom 3:30 pm – 7:30 pm on her birthday if it falls on a school day, otherwise between 2:00 pm – 6:00 pm or as agreed between the parties;
ofrom 9:00 am – 5:00 pm on Easter Sunday;
ofrom 9:00 am – 5:00 pm in odd numbered years on Christmas Day;
·During school holidays, for every one week of holiday, two additional days per week from 9:00 am – 5:00 pm
On Mother’s Day, and in the event of the mother’s birthday falling on a Sunday, the children’s time with the father on Sunday be changed to the preceding Saturday.
The time that [the child] spends with the father is to be supervised by an independent private supervisor appointed by the mother or an independent agency. Such supervision is to continue until [the child] attains the age of 12 years.
The cost of supervision is to be borne by the father.
That the father is to abstain from drinking alcohol within 12 hours before spending time with the children or while they are in his care.
Upon [the child] attaining the age of 15 years, and depending upon her wishes, she is entitled to spend overnight time with the father on alternate weekends from 3:30 pm on Friday to 6:00 pm on Sunday.
The mother be entitled to take the children on holiday (whether in Australia or overseas) for one month every year upon giving the father 30 days’ notice thereof and providing him with a full itinerary, and the father be afforded make-up time before or after any such holiday.
In the event that either of the children are invited by their friends’ parents or their relatives to spend time with them, either to participate in sporting, cultural or other activities for periods of up to 3 weeks, which may involve travel (local or overseas), that the mother considers is in the best interests of the children, the children shall, subject to the following:
10.1The mother giving reasonable notice to the father.
10.2The mother giving to the father details of: who the children are to stay with, travel arrangements, where the children will be and when they will be returned.
10.3The mother providing dates for make-up time either preceding or after any trips for any time that the children have not been able to spend with the father.
In the event that the mother wishes to take the children away for a weekend, or spend some time with the children away during their school holidays, the mother shall be permitted to take the children away subject to the following:
11.1The mother giving reasonable notice to the father.
11.2The mother giving to the father details of travel arrangements, where the children will be spending time and when she will be returning with the children.
11.3The mother providing dates for make-up time either preceding or after any trips for any time that the children have not been able to spend with the father.
The father be entitled to have reasonable telephone / Skype / electronic communication with the children at all reasonable times) on days that they are not spending time with him.
The father maintain abstinence from alcohol and that he comply with the recommendations of Dr [K] as set out in paragraphs 355.1 – 355.8 of his report (see Addendum) and that:
13.1He continue in treatment with a therapist (being professor [H] or, failing him, a therapist agreed by the parties or, failing agreement, recommended by Dr [K]) skilled in treating persons with severe alcohol use disorders;
13.2The therapist receives a copy of Dr [K’s] Report and relevant Orders of Court;
13.3The father see the therapist regularly, for at least until [the younger child] is aged 13, at a frequency recommended by the therapist, and undergo any treatment, rehabilitation, or blood or other testing recommended by the therapist. If things are going well, the frequency of visits may be reduced to a maximum of 6 months between visits;
13.4If the father has a major change of living circumstances, such as separation from his current partner ([Ms J]), he arrange an appointment with his therapist, to discuss management of the risk of a relapse;
13.5The mother be entitled to contact the rooms of the therapist to express any concerns that she may have regarding the father’s use of alcohol;
13.6The father continue to have or be available to have blood testing as a mechanism to monitor his drinking, with his therapist to have the authority to order and interpret any blood testing results in addition to providing treatment;
13.7Prior to the commencement of the Parenting Orders referred to above, the father provide 2 CDT blood samples, a fortnight apart, along with GGT and MCV/MCH to provide a baseline and to ensure that if test results are high, this can be sorted out either in terms of the father having returned to drinking and thus receiving appropriate assistance, or the rare occurrence of false positive results;
13.8After commencement of the Parenting Orders referred to above, the father provide to his therapist a scheduled monthly CDT for a period of not less than four months;
13.9The mother be entitled to receive copies of all reports and test results received by the father’s therapist;
13.10In the event of the father lapsing, or relapsing, into drinking, or in the event of this being suspected by the father’s therapist, then the children’s time with the father shall cease until he has recovered to a position of stable recovery, and abstinence from alcohol, and is fit (on advice of the therapist) to return to spending time with the children.
13.11If the mother signals concern about possible lapse or relapse, the therapist is to review the situation (with discretion to require blood testing) and, if appropriate, the children’s time with the father shall cease until he has recovered to a position of stable recovery, and abstinence from alcohol, and is fit (on advice of the therapist) to return to spending time with the children.
Both parties consult a therapist as envisaged by Dr [K] in paragraph 357 of his Report.
The father is not to approach the mother or any person with whom she has a domestic relationship or to come within 1 km of any such premises or place which she from time to time may reside or work, save for the purposes of implementation of these Orders.
Each of the parties be restrained from threatening, abusing, assaulting, demeaning or verbally abusing the other party.
The both parties be restrained from denigrating each other either publicly, in front of the children or in front of the children’s relatives.
That neither the mother nor the father will use physical discipline with the children.
Both parties shall notify the other:
19.1Not less than 14 days before changing that party’s residential address
19.2Not less than 7 days before changing telephone number and each party shall keep the other informed of their respective telephone numbers.
That both parties shall notify the other as soon as possible and in any event within 24 hours of any serious injury or illness suffered by the children whilst in the care of that party.
That both parties shall provide copies of school reports, school notices and announcements of school activities or otherwise pertaining to the education of the children and shall keep the other informed of school reports and activities in which parents are usually involved within 7 days of receipt of notice of such report or activity
That both parties be at liberty to attend school functions to which parents are invited.
The mother act as a custodian of the children’s passports until they reach the age of 18 years.
That if it is necessary for the mother to apply for a passport for either of the children and the father does not agree to sign a consent for the issuing of the passport to the mother within 21 days of any written request being made by the mother to the father, that the father’s consent for the issue of the either of the passports be dispensed with.

FATHER

That the parties have equal shared parental responsibility for the children [B] … 1999 ("[the older child]") and [C] born … 2006 ("[the younger child]") ("the children").
That the children live with the Mother;
That the children spend time with the Father as follows:
(i)From the date of these Orders for a period of 2 fortnights:
a.Each alternate Saturday night from 9.00 am Saturday to 5.00 pm Sunday;
b.Each Wednesday from after school to 8.00 pm;
c.In relation to [the older child], at other times as arranged directly between the father and [the child] provided that the Father notifies the mother by text message/email of these occasions once they are agreed with [the child].
(ii)For the next period of 2 fortnights:
a.Each alternate weekend from after school Friday to 12 noon Sunday;
b.Each Wednesday from after school to 8.00 pm;
c.In relation to [the older child], at other times as arranged directly between the father and [the child] provided that the Father notifies the mother by text message/email of these occasions once they are agreed with [the child].
(iii)For the next 4 fortnights :
a.Each alternate weekend from after school Friday to before school Monday;
b.In the other week from after school Monday to 8.00 pm;
c.In relation to [the older child], at other times as arranged directly between the father and [the child] provided that the Father notifies the mother by text message/email of these occasions once they are agreed with [the child].
(iv)Thereafter:
a.Each alternate weekend from after school Friday to before school Tuesday;
b.In the other week from after school Monday until before school Tuesday.
c.In relation to [the older child], at other times as arranged directly between the father and [the child] provided that the Father notifies the mother by text message/email of these occasions once they are agreed with [the child].
That the children spend additional time with the father during school holidays and special days as follows:
a.For each of the mid term school holidays commencing from the first Saturday of the holidays at 10.00 am for 7 nights until 10.00 am a week later;
b.For block time during the December/ January school holidays as follows:
IN ODD YEARS
i.From 2.00 pm 25 December to 6.00 pm 1 January;
ii.From 10.00 pm 9 January to 6.00 pm 16 January; and
iii.From 25 January to the day before school is due to go back for the new school term at 2.00pm.
IN EVEN YEARS
i.From after school/3.00 pm on the last day of the school term (but no earlier than 19 December) until 2.00 pm 25 December;
ii.From 6.00 pm 1 January to 6.00 pm 8 January;
iii.From 6.00 pm 17 January to 6.00 pm 24 January.
c.[On the children’s birthdays] from 9.00am to 2.00pm if a non school day and from after school to 7.00pm if a school day;
d.On [the father’s birthday] from 9.00am to 5.00pm if a non school day and if a school day from after school to 7.30pm;
e.On Father's Day from 9.00am to before school Monday each year
That the father's time with the children will be suspended on the following occasions:
a.Mothers day – such that if Mother's day falls on the father's weekend his time will conclude at 9.00 am that morning;
b.The mother's birthday – such that if the mother's birthday falls on a day when the children are due to be in the father's care that the mother be at liberty to collect the children at 9.00 am that morning or 3.00 pm if a school day and keep the children in her care until 5.00 pm on a non school day and 7.30 pm if a school day.
c.[The younger child's] birthday – such that if the children are in the father's care that day the mother spend time with [the younger child] from after school to 7.00 pm if a weekend from 2.00 pm to 6.00 pm.
d.[The older child's] birthday – such that if the children are in the father's care that day the mother spend time with [the older child] from after school to 7.00 pm if a weekend from 2.00 pm to 6.00 pm.
That the father be injuncted and restrained from consuming any alcohol whatsoever when the children are in his care and at all other times;
That the father be at liberty to contact the children by telephone at any reasonable time and the mother is to facilitate the call taking place.
That the father consult with Professor [H] at such times and at such frequency as recommended by him and undergo any treatment, rehabilitation, or blood or other testing recommended by Professor [H]. If Professor [H] is no longer able to treat the father, then the father shall seek a referral to another alcohol therapist.
If the Father has a major change of living circumstances, in particular if he separates from his current partner [Ms J], the father shall arrange an appointment with Professor [H] (or his treating therapist) to discuss management of the risk of relapse during such a transition.
That the mother be able to contact Professor [H] to express any concerns that she may have about the father's alcohol use, noting that the mother shall not contact the therapist unless it is reasonably necessary for her to do so and she shall follow any requests/guidelines made by the therapist about such communication from the mother.
That both the mother and the father be restrained from giving physical discipline to the children.
That the father be at liberty to obtain any information regarding the children including information from their school, treating general practitioner or specialist.
That the mother keep the father informed by email, of all appointments for the children within 24 hours of such appointments being scheduled regarding:
a.Any medical or dental or specialist appointment the children have;
b.Any medication the children have been prescribed;
c.Any referrals she has obtained for specialist treatment; and/or
d.Any other health information about the children's welfare.
That neither parent shall denigrate or make false or negative representations about the other parent, other parent's partner or family members in the presence of or within hearing distance of the children.
That the parties be restrained from passing information or messages for the other through the children.
That either parent be at liberty to attend any significant school events or after school activities which [the children] may participate or be involved in, regardless of whether the children are due to be in their care pursuant to these orders.

That each party shall follow the advice and direction of the children's treating health practitioners (and including but not limited to the children's GPs, dentists, counsellors, and any other specialists) in relation to the children's health, treatment and any medication and shall ensure that any treatment and/or medication is provided to the children whilst the children are in that party's care, and ensure that the children are transported to any necessary appointment whilst in that party's care. Reasonable efforts shall be made to consult with the other party before starting any new treatment.
The Mother and Father shall identify the other as the children's next of kin and/or emergency contact whenever this information is requested of the respective parent.
That each parent keep the other informed of their current residential address, mobile telephone number and advise the other parent in writing of any change thereto within 24 hours of such change.
That the Mother shall provide a copy of these Orders to the children's school in order to authorise the children's school to send copies of all newsletters, school reports and any other information to the Father.
That the Mother shall authorise the children's medical practitioners to communicate with the Father, and a copy of these Orders shall serve as authority to this effect (if there is a dispute).
If any of the children are injured, require serious medical treatment or hospital admission the parent who has the care of the child shall notify the other parent by telephone or text message as soon as possible and the other parent shall be invited to attend the place of treatment.
For all changeovers unless other specified in these Orders the father shall collect the children from school on a school day, or the mother's residence on a non-school day and the mother shall collect the children at the conclusion of the father's time from his residence on non-school days.

INDEPENDENT CHILDREN’S LAWYER’S MINUTE OF ORDERS

That the parties have equal shared parental responsibility for the children [B] (“[the older child]”) born … 1999 and [C] (“[the younger child]”) born … 2006 (together referred to as “the children”).
That the children live with the Mother.
That, unless the mother and the father otherwise agree in writing, [the older child] shall spend time with the father as follows:
(i)during school term, from 5:00 pm Saturday to before school Monday each alternate weekend, commencing on the second weekend following the date of these Orders; and
(ii)unless otherwise specified in these orders, at any other time in accordance with [the older child’s] wishes, provided that [the child] consults with the father and the father provides the mother notice by text message 24 hours prior as to the commencement time and end time of the spending time with arrangement.
That, unless the mother and the father otherwise agree in writing, [the younger child] shall spend time with the Father as follows:
(i)from the date of these Orders for a period of 2 months;
a.each alternate weekend from 9:00 am Saturday until 5:00 pm Sunday, commencing on the second weekend following the date of these Orders; and
b.each Wednesday from after school, or if not a school day from 3:00 pm, until 8:00 pm;
(ii)for the next period of 2 months;
a.each alternate weekend from after school Friday, or if not a school day from 3:00 pm, until 12 noon on Sunday; and
b.each Wednesday from after school, or if not a school day from 3:00 pm, until 8:00 pm; and
(iii)thereafter, during school term:
a.each alternate weekend from after school Friday, or if not a school day from 3:00 pm, until before school Tuesday, or if not a school day until 9:00 am.
That, unless the mother and the father otherwise agree in writing, the children shall spend school holiday time with the father, as follows:
(i)commencing in 2016, for the school holiday periods at the end of Terms 1, 2 and 3 each year, for the first week from 10:00 am on the first Saturday of the school holiday period until 10:00 am on the following Saturday;
(ii)for the school holiday period at the end of Term 4 in 2015, 2016, 2017 and 2018, as follows:
a.in the event that either of the children's school holiday period at the end of Term 4 commences before 10 December, from 10:00 am on 10 December until 10:00 am on 14 December;
b.from 2:00 pm on Christmas day until 2:00 pm on Boxing Day;
c.from 10:00 am on 2 January until 10:00 am on 9 January, and
d.from 10:00 am 16 January until 10:00 am on 23 January;
(iii)for the school holiday periods at the end of Term 4 in 2019 and thereafter, as follows:
a.where the school holidays commence in an even numbered year (eg. 2016), from 10:00 am on the fourth Saturday of the school holiday period until 10:00 am on the second last day of the school holiday period; and
b.where the school holidays commence in an odd numbered year (eg. 2017), from 10:00 am on the first day of the school holiday period until 10:00 am three weeks later;
That, unless the mother and the father otherwise agree in writing, the children spend special occasion time with the father as follows:
(i)on Father’s Day from 9:00 am until before school on Monday, or if the Monday is not a school day until 9:00 am;
(ii)on [the children’s birthdays], if the children are not otherwise in the father’s care that day, from 9:00 am until 2:00 pm if a non school day and from after school until 6:00 pm if a school day; and
(iii)on the father’s birthday (…), from 9:00 am until 2:00 pm if a non school day and from after school until 8:00 pm if a school day.
That, unless the mother and the father otherwise agree in writing, the father’s time with the children will be suspended on the following occasions as follows:
(i)on Mother’s Day, such that if Mother’s Day falls on the father’s weekend his time will conclude at 9:00 am that morning;
(ii)on [the younger child’s] birthday, such that if the children are in the father’s care that day the mother shall spend time with [the younger child] from after school until 7:00 pm, or if it is a weekend from 2:00 pm until 6.00 pm;
(iii)on [the children’s birthdays], if the children are not otherwise in the mother’s care that day, from 9:00 am until 2:00 pm if a non school day and from after school until 6:00 pm if a school day
(iv)on the mother’s birthday (…), from 9:00 am until 2:00 pm if a non school day and from after school until 8:00 pm if a school day.
That, unless the mother and the father otherwise agree in writing, changeovers shall occur at the children's respective schools on school days or otherwise at the mother's residence as follows:
a)the father is to park his car at the kerb in front of the mother's residence, and text the mother on his arrival;
b)the father is to remain in his car;
c)on the father collecting the children from the mother's residence at the commencement of his time, the mother is to ensure that the children are packed and ready to leave with the father; and
d)the mother is to remain inside her property's boundaries.
That the father is injuncted and restrained from consuming any alcohol whatsoever when the children are in his care and at all other times.
That the mother and the father are at liberty to contact the children by telephone at any reasonable time when the children are in the other parent’s care, and the mother and the father ensure the children are at liberty to telephone the other parent at any reasonable times that the children wish to do so.
That the mother and the father are to communicate with each other regarding the children by email, or by text message or SMS in an emergency, unless otherwise provided for in these orders.
That the father be required to provide Professor [H] a scheduled monthly CDT and GGT and MCV/MCH testing for a period of 6 months after the commencement of these orders.
That the father be required to:
a)consult with Professor [H] at such times and at such frequency as recommended by Professor [H] and undergo any treatment, rehabilitation, or blood or other testing recommended by Professor [H]; and
b)do all acts and things to authorise Professor [H] and any subsequent alcohol therapist to contact the mother if Professor [H] or the subsequent alcohol therapist suspects the father has lapsed or relapsed into consuming alcohol.
That if the father is no longer able to be treated by Professor [H], then the father shall seek referrals to other alcohol therapists from Professor [H] and/or Dr [K] and on the father having made and attended the first appointment with an alcohol therapist, and been accepted as a patient by that alcohol therapist, the father provide the mother with the name and contact details of that alcohol therapist within 14 days.
That the father be required to provide Professor [H] and any subsequent alcohol therapist with a copy of Dr [K’s] report and a copy of these orders.
That for a period of 12 months from the conclusion of the period provided for in Order 12 above, the mother be permitted to require the father undergo random CDT and GGT and MCV/MCH testing and for such testing to occur as follows:
a)the father shall do all acts and things necessary to obtain in advance pathology test request forms from his general practitioner for CDT and GGT and MCV/MCH testing;
b)that the mother notify the father by SMS or text message;
c)that the father confirm that he has received such SMS or text message;
d)that in the event that the mother has not received confirmation of the father's receipt of the SMS or text message within four hours of having sent it, she shall be permitted to call the father to request the testing;
e) that the father be required to undertake such testing within 24 hours of notification by the mother;
f) that such requests for testing occur no more than once per 3 months;
g) that the mother and father do all acts and things and sign all documents to authorise the testing laboratory to release the test results to both the mother and the father;
h)that the cost of the tests be borne by the father; and
i)that if there is a result indicating alcohol use, the mother be permitted to contact Professor [H] or any subsequent alcohol therapist to advise them of the result of the test, and if the test is confirmed by Professor [H] or the subsequent alcohol therapist, then the fathers time in accordance with these orders is suspended unless and/or until Professor [H] or the subsequent alcohol therapist advises the mother that the father is no longer consuming alcohol and has not consumed alcohol for a period of 3 months.
That if the father is directed to undergo CDT or other such alcohol testing by Professor [H] or the subsequent alcohol therapist, the father is to do all acts and things to provide the mother with a copy of the test results within 3 days of receiving those results.
That if the Father has a major change of living circumstances, including but not limited to him separating from his current partner [Ms J], the father shall arrange an appointment with Professor [H] (or the subsequent alcohol therapist) within 14 days to discuss management of the risk of relapse during such a transition.
That the father continue to attend for counseling upon Ms [E] for as long as and at such intervals as she may recommend.
That both the mother and the father be restrained from physical disciplining the children.
That the mother keep the father informed by email, of all appointments for the children within 24 hours of such appointments being scheduled regarding:
a)any medical or dental or specialist appointment the children have;
b)any medication the children have been prescribed;
c)any referrals she has obtained for specialist treatment.
That both the mother and the father be permitted to attend any specialist medical appointments relating to either of the children and are by these orders authorised to discuss and obtain information regarding the children's health and treatment with/from the children's medical practitioners.
That both the mother and the father be permitted to attend any sporting or extra curricular activities that the children are involved in and to which parents are ordinarily invited.
That neither parent shall denigrate or make false or negative representations about the other parent, other parent’s partner or family members in the presence of or within hearing distance of the children.
That the parties be restrained from passing information or messages for the other through the children.
That either parent be at liberty to attend any school events [the children] may participate or be involved in, including school concerts, presentations, assemblies, and parent teacher interviews, regardless of whether the children are due to be in their care pursuant to these orders.
That both parents do all acts and things and provide all authorities to ensure that any school that the children may attend provides to both parents with copies of all school reports, merit cards and school newsletters.
That the Independent Children's Lawyer have leave to provide a copy of these orders to the children's schools.
That each party shall follow the advice and direction of the children’s treating health practitioners (and including but not limited to the children’s GPs, dentists, counsellors, and any other specialists) in relation to the children’s health, treatment and any medication and shall ensure that any treatment and/or medication is provided to the children whilst the children are in that party’s care, and ensure that the children are transported to any necessary appointment whilst in that party’s care.
That the mother and father shall identify the other parent as the children’s next of kin and/or emergency contact whenever this information is requested of the respective parent.
That each parent keep the other informed of their current residential address, mobile telephone number and advise the other parent in writing of any change thereto within 24 hours of such change.
That if either of the children are injured, require serious medical treatment or hospital admission, the parent who has the care of the child shall notify the other parent by telephone or text message as soon as possible and the other parent shall be invited to attend the place of treatment.
That the children be permitted to travel overseas with either of the parents in accordance with the time the children spend with each parent in these orders on the following conditions:
a)that they provide 2 months notice in writing of the intended travel;
b)that they provide the other parent 14 days prior to departure date a copy of the return tickets for the children, details of the address where the children will be staying, and telephone and/or Skype details so that the non travelling parent can contact the children.
That to give effect the Order 33 above, the mother shall hold the passports for the children, and shall release the passports to the father within 48 hours of notification of the intended travel .
That within 2 months of the date of these orders, both parents enrol in, and attend a parenting after separation or keeping in contact course with an organisation such as Relationships Australia, and provide the ICL with a certificate of attendance and completion at the end of that course.
That within 7 days of the date of these orders that the mother arrange for the children to attend the offices of the ICL for the purposes of the ICL explaining the orders to the children.
That the mother and the father do all things necessary to engage and attend upon a therapist as recommended by the Independent Children's Lawyer in consultation with Doctor [K] ("the therapist") for the purposes set out in paragraph 357 of Doctor [K's] Report.
That the mother and the father follow all reasonable directions of the therapist, including facilitating the attendance of the children if so requested.
That the mother and the father ensure that a copy of Doctor [K's] report is provided to the therapist at the time of engagement.

[2015] FamCA 1174

21 December 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies