Eldridge and Drysdale
[2018] FamCA 1113
•21 December 2018
FAMILY COURT OF AUSTRALIA
| ELDRIDGE & DRYSDALE | [2018] FamCA 1113 |
| FAMILY LAW – CHILDREN – Interim application – Where the father seeks that the children spend certain time with him – Where the mother alleges that the father has been physically abusive towards the children – Where the parties agree that the father’s time with the children should be supervised by relatives, pending the release of the Single Expert’s report – Court orders that the children spend day time only with the father – Court orders that such time be supervised by relatives – Court orders that the father undergo hair follicle testing – Court orders that an Independent Children’s Lawyer be appointed. |
| Family Law Act 1975 (Cth) ss. 4AB, 60CC, 61DA, 65DAA |
| B & B (1993) FLC 92-357 Banks & Banks (2015) FLC 93-637 Bant & Clayton [2015] FamCAFC 222 Blinko & Blinko [2015] FamCAFC 146 Fitton & Kimble [2017] FCWA 106 Jurchenko & Foster (2014) FLC 93-598 M & M (1988) 166 CLR 69 SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Mr Eldridge |
| RESPONDENT: | Ms Drysdale |
| FILE NUMBER: | SYC | 5453 | of | 2018 |
| DATE DELIVERED: | 21 December 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 12 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richards |
| SOLICITOR FOR THE APPLICANT: | Walter & Elliott Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC |
| SOLICITOR FOR THE RESPONDENT: | Pearson Emerson Meyer Family Lawyers |
Orders
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
Parenting orders
By consent, the children live with the mother.
The children spend time with the father as agreed in writing between the parents and, in the absence of agreement, as follows:
(a) each Thursday from 3:30 pm to 5:30 pm; and
(b) each alternate Friday from 5:30 pm to 7:45 pm; and
(c) each Sunday from midday to 4:00 pm;
and on each of those occasions, such time is to be supervised by either Mr Drysdale, Ms B or Ms Eldridge.
For the purposes of changeovers that do not occur at the children’s school, the mother shall deliver the children to the father at the commencement of the time and collect the children from the father at the conclusion of the time.
By consent, the parents shall facilitate the children speaking with the parent with whom they are not spending time, in the event the children or either of them request to speak with that parent.
By consent, if for any reason the father is not available to spend time with the children pursuant to these orders, the father shall notify the mother by SMS text message as early as reasonably practical prior to the commencement of the scheduled time with the children.
By consent, each parent shall notify the other not more than 24 hours after any change to their landline and/or mobile phone telephone numbers and/or their email addresses, of his or her new landline and/or mobile telephone number and/or email address.
By consent, each parent shall notify the other, no less than 21 days prior to moving to a new residence, of their new address.
By consent, the parents shall:
(a)inform the other parent as soon as reasonably practicable and in any event not more than three (3) hours after any medical issue, significant health issue or significant illness or injury suffered by the children or either of them; and
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children.
By consent, the parents do all acts and things and sign all documents necessary to ensure that the children's school, from time to time, provides each parent with a copy of the children's school reports, as well as any other written material relating to their school, academic, sporting, social or other extra-curricular activities, including school newsletters and notices.
Injunctions
Without admissions, and save as provided for in these orders, each parent, their servants and agents be restrained by injunction from:
(a) assaulting and threatening the children;
(b) using physical force upon the children whilst disciplining them;
(c)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the children, and from allowing the children to remain in the presence or hearing of any third party who is engaging in such conduct;
(d)allowing or facilitating the children to engage in activities which are inappropriate for their respective ages, including but not limited to exposing the children to computer games, films or video clips with classification ratings in excess of those recommended for children of their age by the Australian Classifications Board;
(e)consuming:
(i)any prohibited drugs including but not limited to amphetamines, methamphetamines, cannabis, benzodiazepines and opiates (provided however that this shall not prevent either parent consuming opiates and benzodiazepines in strict accordance with a prescription issued by a treating medical practitioner);
(ii)prescription medication, including opiates and benzodiazepines, except in strict accordance with the prescription issued by the treating medical practitioner; and/or
(iii)alcohol in an amount in excess of the prescribed legal limit for driving a motor vehicle in the State of New South Wales;
both during periods when the children are spending time with them and for 12 hours prior to such periods; and
(f)denigrating the other parent or the other parent’s family and/or friends in the presence, or within hearing, of the children, and from allowing the children to remain in the presence or hearing of any third party who is engaging in such conduct
Hair Follicle Test
The father undergo a hair follicle test within seven (7) days, and every three (3) calendar months thereafter, the cost of which is to be borne by father.
By consent, the father be restrained and an injunction is hereby granted restraining him from cutting his hair shorter than three (3) centimetres and/or colouring his hair prior to the hair follicle test referred to in order 11, above.
By consent, the test is to be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse.
By consent, the father provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the other parent’s lawyer and the Independent Children’s Lawyer, immediately upon its completion.
By consent, in the event of a positive test or any breach of this order by the father, the children's time with the father under these orders is suspended until further order, each parent in that event having liberty to apply at short notice.
Counselling
The parents forthwith arrange for the children to attend therapeutic counselling with an agreed counsellor ("the counsellor") to assist the children with transitioning between the parents’ houses and dealing with the separation of the parents, and will ensure the children's attendance at such times and frequency requested by the counsellor.
By consent, the costs of the counselling referred to in order 16 above are to be borne equally by the parents as and when same fall due and do all acts and things possible to apply for a Medicare rebate in respect of the costs of the counselling, should a rebate be available.
Independent Children’s Lawyer
Pursuant to section 68L(2) of the Family Law Act 1975 (Cth), the interests of the children be independently represented by a lawyer and it is requested that the Legal Aid Commission of New South Wales make arrangements, as soon as is practicable, to secure that representation.
The parents each provide to the Legal Aid Commission of New South Wales all documents thus far filed in these proceedings by that parent, together with all existing orders and copies of any relevant reports.
The Independent Children’s Lawyer be granted leave to inspect and copy any subpoena material produced to date.
Single Expert
By consent, pursuant to Part 15.45 of the Family Law Rules 2004 (Cth), Dr S (“the expert”) be appointed as a single expert witness to prepare a report in relation these proceedings, and:
(a)forthwith, upon appointment of an Independent Children’s Lawyer, pursuant to the above orders, the parties shall join with the Independent Children’s Lawyer in agreeing upon the letter of instruction to the expert; and
(b)in the event of any dispute as to the terms of instruction to the expert, the parties and the Independent Children’s Lawyer shall, forthwith, make arrangements to relist the proceedings for further directions and shall, for such purpose, have liberty to apply to the Court on seven (7) days’ written notice to the Court and each other.
By consent, the parents shall do all acts and things necessary to facilitate the preparation of the single expert report, including:
(a) attending on the single expert;
(b) paying one half of the costs of the single expert.
By consent, the parents are to provide the expert with:
(a) a copy of these orders;
(b) a copy of any Child Inclusive Conference memorandum; and
(c) material produced pursuant to subpoenas by:
(i)R School,
(ii)C Clinic;
(iii)NSW Police;
(iv)The Department of Family and Community Services; and
(v)Suburb D Medical Centre.
By consent, for the purposes of order 23 above, the mother's solicitor have leave to photocopy all material produced under subpoena and provide such material to the expert.
The parents be granted liberty to apply in respect of a variation of the parenting orders currently in place, upon release of the Single Expert Report.
Provision of orders to the children’s school
By consent, the mother have leave to provide a copy of these orders to R School, Suburb E.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eldridge & Drysdale has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5453 of 2018
| Mr Eldridge |
Applicant
And
| Ms Drysdale |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns competing interim applications for parenting orders. Those applications are made in circumstances where both parties allege that the other has a history of substance abuse and has engaged in acts of violence against the parties’ children, X and Y (collectively “the children”).
Both parties have agreed to the appointment of Dr S as the Single Expert in this matter. Dr S will prepare a report to assist the parties and the Court to determine what parenting arrangements are in the best interests of the children. In the period pending the release of that report, I have determined that the children’s time with the father shall be supervised by identified relatives of the parties.
Background
As these are interim proceedings, there is a limit as to the extent to which I can make findings in respect to matters that remain in contention between the parties. The following facts, however, appear to be substantially agreed. Where there is no agreement, I have noted the parties’ respective contentions.
Ms Drysdale (“the mother”) was born in 1974 and is currently aged 44 years.
Mr Eldridge (“the father”) was born in 1974 and is currently aged 44 years.
The parties commenced cohabitation in January 2003 and were married in 2003.
The parties’ child X was born in 2007 and is currently aged 11 years.
The parties’ child Y was born in 2009 and is currently aged 9 years.
The parties agree that the mother has been the children’s primary carer since their births.
The parties separated in August 2017.
X suffers from Attention Deficit Hyperactivity Disorder (“ADHD”). That condition was diagnosed when he was six years old. He has been prescribed Ritalin and takes that medication at the same time each day. X’s ADHD is monitored by his Paediatrician, Dr Karen Knoll. As a result of that condition, X’s behaviour is, at times, challenging.
The parties both acknowledge having used illicit substances during the course of their relationship. The mother contends that the father continues to use such substances, including cocaine, methamphetamine and opiates.
The children attend R School in Suburb E. X will shortly be completing year five and Y will be completing year three.
The mother contends that the father was “physically aggressive” towards her on “no less than two occasions” during the course of the parties’ relationship. The mother further contends that the father engaged in other acts that would constitute family violence, as defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”). The husband denies the mother’s allegations. In these interim proceedings, I am unable to make a finding that such violence has occurred.
The mother further contends that, during the course of the parties’ relationship, the father was “physically aggressive towards the [children]” and that has continued that behaviour in the period subsequent to the parties’ separation. The father denies having been physically aggressive towards the children and asserts that he and the mother have previously both smacked the children on the hand or bottom at times when they were being naughty.
In September 2017, being approximately one month after the parties’ separation, the father began attending “C Clinic”, outpatient addiction treatment clinic, for counselling and group therapy sessions in respect to past substance abuse.
In October 2017, the parties reached an informal agreement in respect to the amount of time that the children would spend with the father, which was, as follows:
a)Week one – Tuesday from after school to the commencement of school on Wednesday and Saturday from 12:00 pm to Sunday at 12:00 pm [the father says that the children spent Friday night, rather than Saturday night with him]; and
b)Week two – Tuesday from after school to the commencement of school on Wednesday and Friday from after school to Sunday at 12:00 pm.
The mother asserts that she agreed to that informal arrangement on the condition that the father submitted to urinalysis testing immediately prior to the children spending time with him. Those test kits were purchased from a pharmacy. In the period between separation and late-November 2017, the father agreed to undertake the tests as requested by the mother. It is acknowledged that all of those tests were negative and, by agreement, were suspended between late-November and 9 December 2017.
The father acknowledges that on 8 December 2017, he found a small amount of cocaine in a cabinet and consumed it. On 9 December 2017, after the father returned from a business trip to Brisbane, the mother requested that he submit to a further urinalysis test, which showed a positive reading for opioids and cocaine.
After that trip to Brisbane, the father continued to comply with the mother’s requests that he undertake urinalysis tests purchased from a pharmacy. The mother did not challenge the father’s assertion that, in the period subsequent to 9 December 2017, he has undertaken 87 urinalysis tests, all of which have returned negative results.
The mother contends that on 16 June 2018, the father submitted to four urinalysis tests purchased from a pharmacy, three of which produced positive results for opioids. The father immediately went to C Clinic to undertake further testing, which proved to be negative. The mother agreed that the children could spend time with the father.
On 27 June and 13 July 2018, after receiving what she regarded as ambiguous urinalysis tests, the mother requested that the father to undertake a hair follicle test.
On 31 July 2018, the mother’s solicitors wrote to the father’s solicitors stating that the children had reported to the mother that the father had punched X in his back while they had been spending time with him over the previous weekend. The mother refused to facilitate the children spending overnight time with the father until he gave an undertaking not to hit or physically discipline them and provided the results of hair follicle testing previously requested by her.
That same day, the father’s solicitors responded to that correspondence asserting that the father had pushed X away after he had head-butted him in the sternum three times. The father provided a “without prejudice” undertaking in the form sought by the mother, together with the negative results of a hair follicle test he had undertaken on 13 July 2018. The father’s overnight time with the children was reinstated.
The father contends that, on 3 August 2018, the mother informed him that X had accidentally fractured her nose when he head-butted her.
The father contends that, on 17 September 2018, X called him in a distressed state, saying that the mother had called him a “moron” and “useless”.
After attending Family Dispute Resolution on 10 September and 9 October 2018, the parties agreed to vary their informal parenting arrangement so that the children would spend time with the father, as follows:
a)Week one – Tuesday and Friday overnight and Thursday from 3:30 pm to 5:00 pm; and
b)Week two – Tuesday, Friday and Saturday overnight and Thursday from 3:30 pm to 5:00 pm.
In October 2018, the mother requested the father to undertake a hair follicle test. That request was refused by the father, who proffered that he would submit to two random urinalysis tests each month for six months. The father asserts that the mother’s solicitors did not respond to that suggestion and that the next time the children came into his care, he found a note packed into one of their bags, which is annexed to his Affidavit filed on 29 November 29018, and reads:
[Mr Eldridge],
Shame on you for your continued drug-taking. You’re a disappointment and a disgrace to the boys and I.
Your father would be deeply embarrassed and ashamed at your selfish, self-gratifying, pleasure-seeking greed.
You haven’t learnt anything or changed a bit. Shame on You.
[Ms Drysdale].
On 23 November 2018, while she was on holiday in F Town, the mother asserts that she received a telephone call from the Principal of R School, who informed her:
… [Y] has been speaking to [Ms G]. He is upset about some of [the father’s] behaviour and I need to let you know about it. Apparently there’s been a lot of screaming and shouting at night. He mentioned something about a box being ripped off his head.
He said [the father] pushed him into a corner of a wall and that he and [X] have been trying to call you but [the father] wouldn’t let them.
The Principal requested that the mother make arrangements for the children to be collected from school that day by someone other than the father. The mother arranged for the father’s sister to collect the children. The incident will be further considered below.
That same day, the mother’s solicitors wrote to the father’s solicitors indicating that the mother would not facilitate the children spending time with the father, as a result of the disclosures made by Y.
Since 23 November 2018, the children have spent only brief periods of supervised time with the father.
On 29 November 2018, the father commenced these proceedings.
Applications
The father’s application
At the hearing, the father sought that orders be made in accordance with the following minute of orders (Exhibit “D”):
1. That the children live with the Mother.
2. That the children spend time with the Father during school term as agreed between the parties in writing, and failing agreement as follows:
2.1. In Week One:
2.1.1. From after school on Tuesday, or 3.00pm if it is a non school day, until before school on Wednesday, or 9.00am if it is a non school day;
2.1.2. From after school on Thursday, or 3.00pm if it is a non school day, until 5.00pm;
2.1.3. From after school on Friday, or 3.00pm if it is a non school day until 4.00pm on Sunday;
2.2. In Week Two:
2.2.1. From after school on Tuesday, or 3.00pm if it is a non school day, until before school on Wednesday, or 9.00am if it is a non school day;
2.2.2. From after school on Thursday, or 3.00pm if it is a non school day, until 5.00pm;
2.2.3. From after school on Friday, or 3.00pm if it is a non school day until 10.00am on Saturday;
3. That the children spend time with the Father during the April, June/July and September/October school holidays as agreed in writing between the parties and failing agreement as follows:
3.1. In odd ending years from after school on the last day of term until 5.00pm on the middle day of the school holiday period and if there is no middle day from 5.00pm on the first of the two middle days of the school holiday period;
3.2. In even ending years from 5.00pm on the middle day of the school holiday period and if there is no middle day from 5.00pm on the first of the two middle days of the school holiday period until the commencement of school on the first day of the new school term.
4. That the children spend time with the Father during the 2018/2019 Christmas school holidays as agreed between the parties in writing, and failing agreement as follows:
4.1. From after school on 13 December 2018 for a period of seven nights and until 5.00pm on 20 December 2018;
4.2. From 5.00pm on 27 December 2018 for a period of seven nights and until 5.00pm on 3 January 2019;
4.3. From 5.00pm on 10 January 2019 for a period of seven nights and until 5.00pm on 17 January 2019;
4.4. From 5.00pm on 24 January for a period of three nights and until 5.00pm on 27 January 2019.
Mother’s Day
5. That in the event Mother's Day falls on a weekend in respect of which the children are spending time with the Father, the Father's time with the children above be suspended from 9.00am to 4.00pm on Mother's Day, unless otherwise agreed in writing between the parties.
Father’s Day
6. That in the event Father's Day falls on a weekend in respect of which the children are spending time with the Mother, the Mother's time with the children above be suspended from 9.00am to 4.00pm on Father's Day, unless otherwise agreed in writing between the parties.
Children’s Birthdays
7. That the parent who does not otherwise have the care of the children on either of the children’s birthdays spend time with the children on either of the children’s birthdays as agreed in writing between the parties and if there is no such agreement from after school until 6.00pm if it is a school day and from 11.00am to 3.00pm if it is a non school day.
8. Without Admission, that the time referred to in Orders 2, 3, 4 and 6 shall be supervised by [Ms Eldridge].
9. If for any reason the father is not available to spend time with the children pursuant to these orders, the father shall notify the mother by SMS text message as early as reasonably practical prior to the commencement of the scheduled time with the children.
Injunctions
10. Until further order, and without admissions, and save as provided for in these orders, each party be restrained by injunction from
10.1. assaulting and threatening the children;
10.2. using physical force upon the children whilst disciplining them;
10.3. discussing these proceedings or any parenting disputes or issues in the presence or hearing of the children, and from allowing the children to remain in the presence or hearing of any third party who is engaging in such conduct;
10.4. allowing or facilitating the children to engage in activities which are inappropriate for their respective ages, including but not limited to exposing the children to computer games, films or video clips with classification ratings in excess of those recommended for children of their age by the Australian Classifications Board;
10.5. consuming any prohibited drugs including but not limited to amphetamines, methamphetamines, cannabis, benzodiazepines and opiates (provided however that this shall not prevent any party consuming opiates and benzodiazepines in strict accordance with a prescription issued by a treating medical practitioner);
10.6. prescription medication including opiates and benzodiazepines except in strict accordance with the prescription issued by the treating medical practitioner; or
10.7. alcohol in an amount in excess of the prescribed legal limit for driving a motor vehicle in the State of New South Wales;
10.8. both during periods when the children are spending time with the father and for 12 hours prior to such periods.
11. Each party is restrained by injunction from:
11.1. denigrating the other in the presence of or within hearing of the children and from permitting the children to remain in the presence or hearing of a third party denigrating the other party; and
11.2. discussing these proceedings with the children.
Hair Follicle Test
12. Within 7 days the father undergo a hair follicle test, the cost of which is to be borne by father.
13. The father be restrained and an injunction is hereby granted restraining him from cutting his hair shorter than 3 centimetres and/or colouring his hair prior to the hair follicle test referred to in order 7.
14. The test is to be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse.
15. The father provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the other party’s lawyer and the Independent Children’s Lawyer(if appointed) immediately upon its completion.
16. In the event of a positive test or any breach of this order by the father, children's time with the father under these orders is suspended until further order, each party in that event having liberty to apply at short notice.
Counselling
17. The parties forthwith arrange for the children to attend therapeutic counselling with as agreed counsellor ("the counsellor") to assist the children with transitioning between the parties houses and dealing with the separation of the parties, and will ensure the children's attendance at such times and frequency requested by the counsellor.
18. The costs of the counselling referred to in order 15 are to be borne equally by the parties as and when same fall due and do all acts and things possible to apply for a Medicare rebate in respect of the costs of the counselling, should a rebate be available.
Post-Separation Parenting Course
19. The parties enrol and participate in a "Triple P Parenting Program" or such other similar parenting program and "ADHD Parenting Support Group" at the next available session through Learning Links and provide the mother with a certificate of completion within 7 days of completing each course.
Part 15 Expert
20. That pursuant to Rule 15.45 of the Family Law Rules 2004 [Dr S] (“the expert”) is appointed as a single expert witness to prepare a report in relation to the following issues:
20.1. the nature of the relationship between the children and each of the parties (and any other relevant family members);
20.2. the likely effect of any change in circumstances including the likely effect on the children of any separation from whether parent, grandparents, or other relative of the children;
20.3. the capacity of the parties or any other person to provide for the needs of the children including physical, emotional and intellectual needs;
20.4. the maturity, sex, cultural background and any other characteristics of the children or either party that the expert thinks are relevant to the welfare of the children;
20.5. any risk of physical or psychological abuse which has occurred or is likely to occur;
20.6. any family violence or other abusive behaviour that is directed towards the children, a member of his family, extended family or significant person and the likely impact of that on the children;
20.7. the attitude of the parties to the responsibility and duties of parenthood;
20.8. what, if any, parenting or relationship education and/or training and/or counselling would be of benefit to any of the parties in order to improve their parenting capacity and relationship with the children and other parties;
20.9. any views expressed by the children and the weight to be placed on those views;
20.10. the mental health and/or special needs of the children;
20.11. the mental health of the parties in so far as it relates to parenting issues;
20.12. the parties previous or current drug use;
20.13. whether the parties’ parenting capacity is presently compromised by matters affecting that parties mental health and/or alleged drug use;
20.14. whether there is an unacceptable risk that the either parties parenting capacity will become compromised in the future by matters affecting his/her mental health and/or alleged drug use;
20.15. such other issues as the expert considers relevant.
21. The parties shall do all acts and things necessary to facilitate the preparation of the single expert report including:
21.1. attending on the single expert;
21.2. paying one half of the costs of the single expert.
22. The parties are to provide the expert with:
22.1. a copy of these orders;
22.2. a copy of any Child Inclusive Conference memorandum;
22.3. material produced under subpoena by
22.3.1. [R School],
22.3.2. [C Clinic];
22.3.3. NSW Police;
22.3.4. The Department of Family and Community Services; and
22.3.5. [Suburb D] Medical Centre.
23. For the purposes of order 21, the mother's solicitor have leave to photocopy all material produced under subpoena and provide such material to the expert.
Provision of Orders to the School
24. The mother have leave to provide a copy of these orders to [R School, Suburb E].
The mother indicated that she was prepared to agree to proposed orders 10 to 14 and 16 contained in the father’s Initiating Application filed on 29 November 2018, as follows:
Change of phone numbers, email addresses and residential addresses
10. That each parent shall notify the other not more than twenty-four (24) hours after any change to their landline and/or mobile phone telephone numbers and/or their email addresses, of his or her new landline and/or mobile telephone number and/or email address.
11. That each parent shall notify the other, no less than 21 days prior to moving to a new residence, of their new address.
Communication
12. That each of the Mother and the Father facilitate the children speaking with the parent with whom they are not spending time between [ ] and [ ] [sic] and at any other time when the children or either of them request to speak with that parent.
Medical issues
13. That each of the Mother and Father shall:
13.1 Inform the other party as soon as reasonably practicable and in any event not more than three (3) hours after any medical issue, significant health issue or significant illness or injury is suffered by the children or either of them.
13.2 Keep the other party informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other party with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children.
School, extra-curricular and social events
14. That each of the Mother and the Father do all acts and things and sign all documents necessary to ensure that the children's school from time to time, provides each parent with a copy of the children's school reports as well as any other written material relating to their school, academic, sporting, social or other extra curricular activities, including school newsletters and notices.
…
Non-Denigration
16. That both parties are restrained from denigrating the other party, the other party's family and friends, to, or in the presence or hearing of the children and shall use their best endeavours to ensure no other person does so.
I will make those orders by consent of the parties.
The mother’s application
The orders sought by the mother at the hearing are set out in her Response filed on 6 December 2018, as follows:
Live with
1. The children live with the mother.
Spend time with
2. The children spend time with the father as follows:
2.1 each Thursday from 3:30pm to 5:30pm, such time to be supervised by Ms B; and
2.2 each alternate Friday from 5:30pm to 7:45pm, such time to be supervised by Ms B; and
2.3 each Sunday from midday to 4:00pm, such time to be supervised by [Mr Drysdale].
3. For the purposes of changeover the mother shall deliver the children to the father at the commencement of the time and collect the children from the father at the conclusion of the time.
4. In the event [Ms B] or [Mr Drysdale] are unable or unwilling to supervise the children's time with the father in accordance with order 3, the parties forthwith do all things and sign all documents necessary to sign and submit a Service Agreement Form with [H Group] and make arrangements for H Group to supervise the children's time with the father.
5. In the event [Ms B], [Mr Drysdale] and/or [H Group] are unavailable or unwilling to supervise the children's time with the father on the days and times specified in order 3, then order 2 be suspended until an alternate supervisor has been agreed or appointed by the Court.
6. If for any reason the father is not available to spend time with the children pursuant to these orders, the father shall notify the mother by SMS text message as early as reasonably practical prior to the commencement of the scheduled time with the children.
Injunctions
7. Until further order, and save as provided for in these orders, the father, his servants and agents be restrained by injunction from:
7.1 assaulting and threatening the children;
7.2 using physical force upon the children whilst disciplining them;
7.3 discussing these proceedings or any parenting disputes or issues in the presence or hearing of the children, and from allowing the children to remain in the presence or hearing of any third party who is engaging in such conduct;
7.4 allowing or facilitating the children to engage in activities which are inappropriate for their respective ages, including but not limited to exposing the children to computer games, films or video clips with classification ratings in excess of those recommended for children of their age by the Australian Classifications Board;
7.5 consuming
7.5.1 any prohibited drugs including but not limited to amphetamines, methamphetamines, cannabis, benzodiazepines and opiates (provided however that this shall not prevent any party consuming opiates and benzodiazepines in strict accordance with a prescription issued by a treating medical practitioner);
7.5.2 prescription medication including opiates and benzodiazepines except in strict accordance with the prescription issued by the treating medical practitioner; or
7.5.3 alcohol in an amount in excess of the prescribed legal limit for driving a motor vehicle in the State of New South Wales;
both during periods when the children are spending time with the father and for 12 hours prior to such periods.
8. Each party is restrained by injunction from:
8.1 denigrating the other in the presence of or within hearing of the children and from permitting the children to remain in the presence or hearing of a third party denigrating the other party; and
8.2 discussing these proceedings with the children.
Hair Follicle Test
9. Within 7 days the father undergo a hair follicle test, and every 3 calendar months thereafter, the cost of which is to be borne by father.
10. The father be restrained and an injunction is hereby granted restraining him from cutting his hair shorter than 3 centimetres and/or colouring his hair prior to the hair follicle test referred to in order 9.
11. The test is to be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse.
12. The father provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the other party's lawyer and the Independent Children's Lawyer immediately upon its completion.
14. In the event of a positive test or any breach of this order by the father, children's time with the father under these order is suspended until further order, each party in that event having liberty to apply at short notice.
Counselling
15. The parties forthwith arrange for the children to attend therapeutic counselling with [Ms J] of [K Group] ("the counsellor") to assist the children with transitioning between the parties houses and dealing with the separation of the parties, and will ensure the children's attendance at such times and frequency requested by the counsellor.
16. The costs of the counselling referred to in order 15 are to be borne equally by the parties as and when same fall due and do all acts and things possible to apply for a Medicare rebate in respect of the costs of the counselling, should a rebate be available.
17. The father forthwith arrange counselling with [Ms L] of [M Group] to obtain assistance to gain insight into the impact of his behaviour on the children and age appropriate parenting strategies and the father shall attend such sessions at such times and frequencies as requested by [Ms L].
Post-Separation Parenting Course
18. The father enrol and participate in a "Triple P Parenting Program" and "ADHD Parenting Support Group" at the next available session through Learning Links and provide the mother with a certificate of completion within 7 days of completing each course.
Part 15 Expert
19. That pursuant to Rule 15.45 of the Family Law Rules 2004 [Dr N] ("the expert") is appointed as a single expert witness to prepare a report in relation to the following issues [noting that at the hearing, the mother consented to [Dr S] being appointed as the Single Expert in this matter]:
19.1 the nature of the relationship between the children and each of the parties (and any other relevant family members);
19.2 the likely effect of any change in circumstances including the likely effect on the children of any separation from whether [sic] parent, grandparents, or other relative of the children;
19.3 the capacity of the parties or any other person to provide for the needs of the children including physical, emotional and intellectual needs;
19.4 the maturity, sex, cultural background and any other characteristics of the children or either party that the expert thinks are relevant to the welfare of the children;
19.5 any risk of physical or psychological abuse which has occurred or is likely to occur;
19.6 any family violence or other abusive behaviour that is directed towards the children, a member of his [sic] family, extended family or significant person and the likely impact of that on the children;
19. 7 the attitude of the parties to the responsibility and duties of parenthood;
19.8 what, if any, parenting or relationship education and/or training and/or counselling would be of benefit to any of the parties in order to improve their parenting capacity and relationship with the children and other parties;
19.9 any views expressed by the children and the weight to be placed on those views;
19.10 the mental health and/or special needs of the children;
19.11 the mental health of the parties in so far as it relates to parenting issues;
19.12 the father's alleged drug use;
19.13 the father's alleged sexual addiction;
19.14 whether the father's parenting capacity is presently compromised by matters affecting his mental health and/or alleged drug use;
19.15 whether there is an unacceptable risk that the father's parenting capacity will become compromised in the future by matters affecting his mental health and/or alleged drug use;
19.16 such other issues as the expert considers relevant.
20. The parties shall do all acts and things necessary to facilitate the preparation of the single expert report including:
20.1 attending on the single expert;
20.2 paying one half of the costs of the single expert.
21. The parties are to provide the expert with:
21.1 a copy of these orders;
21.2 a copy of any Child Inclusive Conference memorandum;
21.3 material produced under subpoena by
21.3.1 [B Schoo]l,
21.3.2 [C Clinic];
21.3.3 NSW Police;
21.3.4 The Department of Family and Community Services; and
21.3.5 [Suburb D] Medical Centre.
22. For the purposes of order 21, the mother's solicitor have leave to photocopy all material produced under subpoena and provide such material to the expert.
Provision of Orders to the School
23. The mother have leave to provide a copy of these orders to [R School, Suburb E].
Expedition
24. The hearing of the Application for parenting orders filed by the father on 29 November 2018 be expedited.
Costs
25. The father pay the mother's costs of, and incidental to, these proceedings.
During the course of the proceedings, the mother indicated that she also agreed to orders providing for the children’s time with the father to be supervised by the father’s mother, Ms Eldridge.
Evidence
At the hearing, the father relied upon the following documents:
a)His Affidavit filed on 29 November 2018;
b)His Affidavit filed on 10 December 2018;
c)Affidavit of Mr P filed on 11 December 2018;
d)Affidavit of Mr O filed on 11 December 2018; and
e)Affidavit of Ms Eldridge filed on 11 December 2018.
The mother relied upon the following documents:
a)Her Affidavit filed on 6 December 2018;
b)Affidavit of Ms B filed on 10 December 2018; and
c)Affidavit of Mr Drysdale filed on 10 December 2018.
Issues
The following issues require determination:
a)Should there be an order for parental responsibility?
b)Is there an unacceptable risk of the children suffering physical and/or psychological harm in the care of the father?
c)If so, can that risk be mitigated by supervision?
Parental responsibility
Section 61DA(1) of the Act provides that 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”. Relevantly, s 61DA(3) provides that:
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
The inability of the Court, in these interim proceedings, to make a determination in respect to the parties’ respective allegations against the other are such that it would not be appropriate, in the circumstances, for the presumption of equal shared parental responsibility to be applied.
In those circumstances, the pathway set out in s 65DAA of the Act does not apply and the Court is not obliged to consider whether the children should spend equal or substantial and significant time with each of the parties. The Court is, therefore, “at large” to consider what arrangements will promote the best interests of the children, having regard to s 60CC of the Act and the considerations contained therein.
Appropriate parenting orders
While there are a range of factors set out in s 60CC of the Act, adopting a common sense approach, in Banks & Banks (2015) FLC 93-637 at 80,111, the Full Court said:
It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the [children], require determination prior to a proper determination at a trial.
I have considered all of the matters set out in s 60CC of the Act, however, in accordance with Banks & Banks (supra), I propose to primarily focus on the two primary considerations, which are set out in s 60CC(2) of the Act. That is, I am required to consider the benefit of the children having a meaningful relationship with both of their parents as against any risk of them being subject to physical or psychological harm, neglect or abuse in doing so.
In undertaking that process, where appropriate, I will refer to any other additional consideration that are included among those matters listed in s 60CC(3) of the Act.
Meaningful relationship
In Fitton & Kimble [2017] FCWA 106 at [36], Walters J said:
The Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
His Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) FLC 93-598 at 79,420, where it was stated:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In terms of s 60CC(3)(b) of the Act, that is the nature of the relationship between the children and each of their parents and any other persons, in her Affidavit, the mother acknowledges that:
… the boys love their father and it is important for them to maintain a relationship with him. [The father] arranges fun and exciting activities for the boys when they spend time with him which they enjoy.
I am satisfied that the children have a meaningful relationship with both of the parties and that it is desirable for that to be maintained, consistent with the children not being exposed to an unacceptable risk in doing so. The question, therefore, becomes how that can be achieved in respect to the relatively short period prior to the release the Single Expert report.
Protection from unacceptable risk
In terms of the second issue to which I have referred, that is the need to protect the children from physical or psychological harm, I note that, in B & B (1993) FLC 92-357 at 79,778, the Full Court, quoting the High Court in M & M (1988) 166 CLR 69, said that the task before the Court is essentially “to achieve a balance between the risk of detriment to the child from … abuse and the possibility of benefit to the child from parental access”.
However, it is clear from s 60CC(2A) of the Act that greater weight is to be given to this primary consideration, over the benefit of maintaining meaningful relationships. Specifically, it is necessary to determine whether the risk of harm to the children, in having access to a parent, outweighs the possible benefits to them from having that access.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility to determine risk. In SS & AH [2010] FamCAFC 13 at [100], Boland and Thackray JJ said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
It is to be observed that that reference to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect children from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”: Bant & Clayton [2015] FamCAFC 222 at [99].
In this matter, the mother contends that, in the period subsequent to the parties’ separation, the father has behaved inappropriately towards the children. Those concerns are set out in paragraphs 66 to 97 of the mother’s Affidavit. The father denies the mother’s allegations of inappropriate conduct. As stated, in these interim proceedings, I am unable to make a determination as to the accuracy of the parties’ respective contentions.
In terms of s 60CC(3)(j), as set out above, the mother contends that on 23 November 2018, she was informed by the Principal of R School that an incident had occurred when the children were in the care of the father.
The mother further asserts that, on 26 November 2018, she had a conversation with Y about that incident, which included the following:
The mother: I'd like to hear from you about what you and [Ms G] talked about Friday. I just want you to tell me the truth and try and tell me what you can remember.
[Y]: It was after school when we were doing our violin practise, Daddy was hitting us and stuff. He was hitting us so much I decided to call you. Daddy told me I wasn't allowed to. I told him that was the one thing he wasn't in control of and I said that he was making matters worse because I was going to tell you.
The mother: What happened next?
[Y]: When [X] started playing the violin I decided to call you but I couldn't put the code into the phone - I know it's '[Eldridge]' but it didn't work. So I put the phone back. I felt really angry because Daddy wouldn't let me have the phone to call you. …Daddy was hitting me on my back so I decided to go downstairs and write a note to myself to remind me to tell Miss [G] about it.
Records produced by the Department of Family and Community Services (“DFACS”) reference a report of that incident made on 23 November 2018, as follows:
[Redacted] there has been a history of violence with the father in the past, and that they have made previous reports in relation to this.
The mother is away (Wednesday – Sunday), and both children are currently staying with the father. [Redacted] the school check on the boys quite regularly due to previous concerns. [Redacted] asked [Y] how he was going, and he said “not good” and that he had to “race off to go home”.
[Redacted] [Y] this morning and asked if he was okay. [Y] said “no” and that his father is taking his toys away and open threatening them”. [Redacted] asked [Y] what the father was threatening, and he stated that he was hiding in his room in a box, and that his father “ripped the box off his head” and would not let him call his mother. The father began to push [Y], and this hurt his knee as he was being pushed into the doorframe and his “foot was dragging” – NFI. [X] was said to be crying at the time because he was scared.
[Redacted] asked [Y] about [X], and [Y] said that his father had pushed him into a wall “a few days ago” – NFI, and that his father hit [X] with a “plank of wood which had nails on it”. [Redacted] asked if [Y] saw this, and he said that he did not, but that he heard [X] screaming and that he “knew what happened”. [Y] he also said that [X] told him that this had happened. It is unknown where [X] was hit with this plank of wood, or if the nails struck him. [Y] stated there were no injuries as result of the father’s actions, [redacted].
[Redacted] [X] didn’t want to say anything. [X] did not appear distressed, though he “did not want to be there having the conversation at all”. No further details are known as [Y] did not witness the incident and [X] did not disclose any details. Neither child indicated that they felt unsafe to return home [redacted].
[Redacted] the father is intending on taking the boys away this weekend – NFI other than that it is 2.5 hours away. [Redacted] the boys would be leaving with the father this afternoon (unknown time). It is currently unconfirmed to the children will be staying with.
[Redacted] the father may be using drugs again, as he has been “pulling out his eyebrows”. The father has used cocaine historically, though it is unconfirmed if this is current. [Redacted] the father is currently “refusing drug test” – NFI.
[Redacted] concerns for the safety of the boys the father is alerted that they may be staying with the aunt and not him. [Redacted] encouraged to call the local police station to alert them of these concerns and a welfare check may also be requested.
Substance abuse: historical cocaine use for the father as stated above.
Mental health: not sure.
Domestic violence: historical domestic violence between the mother and father. [Redacted] the father is now residing with a 25 year old …woman – unknown if there are current DV concerns in the home.
Support services: none know. It is unknown in family law are involved with the family.
At paragraph 52 of his Affidavit filed on 10 December 2018, the father denies those events “as allegedly reported by [Y]”. The father states that he spoke to the school after Y’s alleged disclosures and that those that he spoke to “made no reference to the allegations of hitting”.
The documents produced by DFACS also record the following:
One prior record dated 31/July/2018 …
Screen in for excessive discipline. [X] (11) was punched in the back by the father. He is often physical with [X] and [Y] (8), pushing and pulling on them and he has elbowed them in the head previously. He is often quick to snap at them and often lashes out physically. This behaviour bears no resemblance to reasonable punishment and is likely to cause physical injury.
The records produced by DFCAS set out the following in respect to that incident reported on 31 July 2018:
CSO BRIEF DETAILS:
[Redacted] concerns for children due to physical abuse from father [redacted].
No AVO in place and no parenting orders.
REPORTED INFORMATION:
[Redacted] the children spent the weekend with the father. When they came home, [X] has pushed his mother [redacted]. [X] stated that he did it because that’s what he knows, that’s all he has ever known.
[Redacted] They usually spend the weekend, [redacted] unsure if this is every weekend or every second weekend. They also spent every Tuesday the father.
There are no family law court orders in place and this arrangement has been made between the parents. [Redacted] the father to take the children with him that he is drug tested.
[Redacted] the father had another life where he was seeing other women and was significantly involved with drugs. [Redacted] unsure what drug the father was taking or how often. [Redacted] unaware of if the father has ever tested positive to [redacted] drug tests [redacted] not let the children go with the father.
[Redacted] [X] was punched in the back by the father when the children were with the father over the weekend. This is a common behaviour by the father. [Redacted] the father will often push and pull on the children, and has previously elbowed the children in the head.
The children stated [redacted] father is the “fun” parent and does exciting things with them but is unpredictable. It is often quick to snap at them and often lashes out physically. He then makes it sound as if he didn’t do anything wrong and it wasn’t as bad as it sounded. The father told [X] that he didn’t punch him on the back on the weekend but he shoved him a bit.
The mother took [X] to a doctor who looked at him didn’t find any injuries on him. [Redacted] unaware of any injuries that have occurred. The doctor is compiling a record for [X] [redacted] unaware of the doctor is making a report to Helpline or not.
The father’s version of the incident that occurred on 28 July 2018 is set out in paragraphs 49 and 50 of his Affidavit filed on 29 November 2018, as follows:
49. The children spent time with me on the weekend of 28 and 29 July 2018. On 29 July 2018, [X] was vigorously attempting to open the sliding drawer on my coffee table to get hold of an Apple packaging box to see if it had a SIM release key in it. I did not want [X] to do so as we were about to leave to go on a bike ride. I said to [X] words to the following effect: "Please don't do that, we are going to go now."
50. [X] started throwing his head back and headbutting me in the sternum. [X] did this three times and I asked him after each occasion to stop, but he refused to do so. I then proceeded to calmly push [X] away by his right shoulder blade to stop him from headbutting me. [X] and I then had a conversation in which words to the following effect to me:
[X]: "Hey! You punched me in the back!"
[Y] was sitting across the room and I do not believe he could not see what was happening as [X's] body was blocking his view, but nevertheless he said: "Yes you did Daddy!"
Me: "Now that you are bigger and older it really hurts when you use physical force like that, whether it's a child or an adult. I'm sorry if I hurt you in any way but you were actually hurting me. I would never punch you."
[X]: "Sorry that I hurt you Daddy."
[X] and I then shook hands and proceeded to get ready to go on our bike ride. [X] seemed fine after the incident.
The evidence presented by the mother, including the records produced by DFACS in relation to allegations that the father engaged in acts of violence against the children on 31 July 2018 and 22 November 2018, is unsatisfactory in certain respects. It is essentially hearsay accounts of the children’s reports. If the father’s account of the incident that occurred on 31 July 2018 is correct, then he was likely exercising reasonable force in response to X acting aggressively towards him. In that regard, one report from DFACS states that X admitted to having pushed the mother on other occasions. The father has also given uncontested evidence that X has previously fractured the mother’s nose when he accidentally head-butted her. Similar conduct may have occurred in respect to the father. The report to DFACS that the father had struck X with a piece of wood that had nails in it is implausible in circumstances where there is no report of any observable injury to X and neither child reported feeling unsafe about returning to the father’s home.
The report regarding the father’s alleged conduct on 22 November 2018 is more concerning, in that Y also reported the event to a teacher at his school. However, it is to be noted that Y’s report was in the context of that teacher enquiring of him how he was. Further, the mother’s account of Y’s report to her, as set out above, suggests that, according to Y’s version of events, he had sufficient composure after the father had allegedly been violent towards him and X “to go downstairs and write a note to myself to tell [Ms G] [his teacher] about it”. It is reasonable to infer, from that account, that Y was not overly distressed about the event, to the extent that he was able to put in place some forward planning with regards to reporting.
As I have indicated, in interim proceedings, I am not in a position to make findings of fact. This is particularly the case in circumstances where allegations of serious misconduct are made. However, I find that there is a real possibility that the father did engage in inappropriate conduct on 22 November 2018.
The additional concerns I have in this matter are that the father acknowledges a history of substance abuse on his part, although he contends that he has taken, and continues to take, steps to address that challenge and monitor his abstinence from illicit substances. In that regard, annexed to the father’s Affidavit filed on 29 November 2018 is a report from a counsellor at C Clinic dated 30 November 2018. That report states that the father is “committed” to the therapy that he is receiving and is not a “danger to his children, or any other person.”
One reservation that I do have, however, is the father’s refusal to accede to the mother’s request for him to undertake a hair follicle test in October 2018. Such a test had the potential to detect whether the father had consumed illicit substances during a period of several months prior to the test being undertaken.
The Court would have been somewhat reassured if the father had agreed to undertake a hair follicle test in October 2018. This is particularly so in circumstances where, in terms of s 60CC(3)(g) of the Act, it is acknowledged that X suffers from ADHD and, in that context, can engage in challenging behaviour. Coping with that challenging behaviour, in circumstances where the father’s ability to self-regulate may be impeded by substance abuse, is a cause for concern. This is particularly so, given that the children have reported inappropriate and potentially violent conduct on the part of the father towards them.
In Blinko & Blinko [2015] FamCAFC 146 at [83], the Full Court confirmed that, in circumstances where the Court is satisfied that a parent represents an unacceptable risk of harm to a child, the Court is required to consider steps that can be taken to ameliorate this risk, including, for instance, “supervision of any time or communication between the parent and the child”.
In the context of these interim proceedings, and in light of the concerns that the father has engaged in inappropriate and potentially violent conduct towards the children, I consider that a cautious approach should be taken with regards to the time that the children spend with him. Counsel for the father submitted that such an approach was indeed appropriate and that his client agreed to the children’s time with him being supervised, for a limited period. For that reason, I find that, in the short term, pending receipt of Dr S’s report, it is in the best interests of the children for the time they spend with the father to be supervised.
The parties are, fortunately, in agreement that potential supervisors include the maternal uncle Mr Drysdale, the paternal aunt Ms B and the paternal grandmother Ms Eldridge.
Ms B and Mr Drysdale are only available to provide such supervision during daylight hours. Ms Eldridge is in a position to supervise overnight time for the children at the father’s residence.
However, the mother indicated that her consent to Ms Eldridge supervising the children’s time with the father is conditional upon that time being during daylight hours only. The mother’s concerns regarding Ms Eldridge being an appropriate supervisor relate to, what she alleges are, previous failures to appropriately regulate the father’s behaviour towards the children and to report certain incidents to her. The mother sets out her concerns, in that regard, at paragraphs 70 to 72, 77, 82 to 83, 86, 110 to 112, 122 to 125 and 129 of her Affidavit. Once again, in these interim proceedings I am not in a position to determine whether the factual underpinning of the mother’s concerns are accurate and, accordingly, whether the mother’s concerns are justified.
As stated, I am satisfied that there is a real possibility that the father has conducted himself in an inappropriate manner when the children have been in his care. Further, I consider that it is appropriate to take a cautious approach in relation to the mother’s concerns regarding the capacity of Ms Eldridge to supervise any overnight time between the children and the father. In terms of that issue, I specifically note the mother’s evidence that, as result of his ADHD, it is necessary for X to take regular medication and have a consistent routine, including sleeping approximately 10 hours each night. In those circumstances, it is my view that, pending receipt of Dr S’s report, the children should not spend overnight time with the father.
In taking that course of action, I acknowledge that, in the context of s 60CC(3)(d) of the Act, that suspension of the children spending overnight time with their father is a change to the parenting arrangements that have been in place since approximately September 2017. That change has the potential to adversely impact upon the children’s relationship with the father. However, I note that s 60CC(2A) requires me to give “greater weight” to the need “to protect the children from physical and/or psychological harm from being subjected to, or exposed to abuse, neglect or family violence”.
Orders
I will make an order that, pending further order, the children live with the mother, as sought by both parties.
For the reasons I have set out, I will make orders that the children spend time with the father on five days each fortnight. That time will be day time only and will be supervised by either Mr Drysdale, Ms B or Ms Eldridge.
Further, at this stage of the proceedings, pending the release of Dr S’s report, I am not satisfied that it is appropriate to make provision for the children’s care on “special days”, including Mother’s Day, Father’s Day and the children’s birthdays, as sought by the father. I note, however, that the orders will enable the parties to reach agreement about that issue.
As set out above, the mother has consented to certain ancillary parenting orders pertaining to communication and contact information contained in the father’s Initiating Application, which will be made by consent.
Both parties have sought certain injunctions. The father’s proposed orders, in that regard, effectively mirror those sought by the mother in her Response, but require that the relevant restrictions apply to both parties. At this stage of the proceedings, I find that to be appropriate and will make orders in that context.
Both parties have sought orders requiring the father to undergo hair follicle testing. The father’s orders, again, mirror those of the mother, but do not include that such testing should occur every three months from the first test. The more frequent testing proposed by the mother will give greater confidence to the Court at the time of final hearing and accordingly, I will make those orders.
Both parties proposed orders that the children attend counselling. The mother proposed that the counselling be provided by Ms J of K Group. The father proposed that such counselling be provided by a counsellor “as agreed” between the parties. I am of the view that such counselling should be undertaken by a therapist who is acceptable to both parties and will make an order in the form sought by the father. The parties agreed that they should share in the costs of that counselling.
Further, the mother proposed a specific order that the father engage in counselling with Ms L of M Group “to gain insight into the impact of his behaviour on the children and age-appropriate parenting strategies”. The father did not propose to engage in such counselling and I find that compelling him to do so against his will would be of limited benefit. As such, I will not make that order.
The parents propose similar orders in respect to attending a post-separation parenting course, although, the mother proposes that only the father attend such a course. Again, unless both parties are willing to participate, it would be of little utility to require them to attend. I will not make such an order, but will note that I would regard attendance at such a course to be of benefit to them both, and more importantly, the children.
As earlier indicated, both parties are in agreement for Dr S to be appointed as the single expert in these parenting proceedings. Regrettably, however, the parties were unable to agree on the terms of the instruction to be provided to Dr S. In circumstances where I also intend to appoint an Independent Children’s Lawyer, I propose making an order to facilitate the parties again attempting to agree to common instructions, with the assistance of the Independent Children’s Lawyer. I will grant the parties liberty to apply in the event that they are unable to reach such agreement.
At the hearing, Counsel for both parties submitted that their clients agreed to the appointment of an Independent Children’s Lawyer. I will make an order for that appointment. This is because there are allegations of abuse of the children, there is intractable conflict between the parties and the children are at an age where their views should be given a voice.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 21 December 2018.
Associate:
Date: 21 December 2018
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