ELDRIDGE & ELDRIDGE

[2017] FCCA 822

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELDRIDGE & ELDRIDGE [2017] FCCA 822

Catchwords:
FAMILY LAW – Parenting – interim – relocation – allegations of family violence – reasonable practicability.

Legislation:

Family Law Act 1975, Pt.VII

Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66

Applicant: MR ELDRIDGE

Respondent: MS ELDRIDGE

File Number: TVC 229 of 2017

Judgment of: Judge Demack

Hearing date: 20 March 2017

Date of Last Submission: 20 March 2017

Delivered at: Mackay

Delivered on: 21 March 2017

REPRESENTATION

Solicitors for the Applicant: S R Wallace and Wallace Lawyers

Solicitors for the Respondent: Marriott Oliver Solicitors

ORDERS

1. That pursuant to Rule 8.01 of the Federal Circuit Court Rules 2001, these proceedings be transferred to the Federal Circuit Court of Australia at Wollongong.

2. That the children X born in 2013 and Y born in 2016 (“the children”) live with the mother in the Region H area of New South Wales.

3. That the children spend supervised time with the father as agreed between the parties but failing agreement then for a period of two (2) consecutive nights once each calendar month provided such time is spent in Sydney and is supervised at all times by a member of the father’s immediate family namely the paternal grandmother Ms AA, the paternal uncle Mr BB or the paternal aunts Ms CC and Ms DD.

4. That the father shall be restrained from:

   (a)Consuming alcohol during his time with the children and for a period of twenty-four (24) hours beforehand; and

   (b)Smoking or rolling cigarettes in the presence of the children.

5. That the father undergo Liver Function and Carbohydrate Deficient Transferrin (CDT) testing.

6. That in Order to facilitate Order 5 above:

   (a)The mother’s solicitor will send a request by no later than 12pm by email to the father’s solicitor;

   (b)Such request will be sent no more frequently than once per calendar month for two consecutive months only;

   (c)By no later than 6pm on the third business day following the request, the father will attend on a medical practitioner to facilitate the testing, with the Liver Function test to specifically measure Gamma Glutamyl Transpeptidase (GGT), Mean Cell Volume (MCV), Aspartate Transaminase (AST), Alanine Transaminase (ALT) and Alkaline Phosphatase (ALP) levels;

   (d)The father will be responsible for the cost of such testing;

   (e)At the end of attending for the purpose of facilitating the testing, the father shall:

   (f)Provide the pathology centre and/or the medical practitioner with photographic identification confirming his identity as Mr Eldridge born in 1980; and

   (g)Obtain a receipt from the medical practitioner and/or pathology centre confirming receipt of a sealed copy of this Order and sighting of photographic identification of the father confirming his identity;

   (h)Once the results are released to the father, he will ensure that a copy is forwarded to the mother’s solicitor no later than 4pm on the next business day.

7. That this matter be adjourned for mention at 09.30am on 18 May 2017 in the Federal Circuit Court of Australia at Wollongong.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWN G

TVC 229 of 2017

MR ELDRIDGE

Applicant

And

MS ELDRIDGE

Respondent

REASONS FOR JUDGMENT

1. This is an interim decision with respect to parenting arrangements for X and Y, who turned three and two respectively last year.  They are the children of the applicant father and respondent mother, who commenced their relationship in, it would seem, some time in 2009, commenced cohabitation some time after that, got married at one point in time, had an earlier separation in December last year for a period of some weeks, and then a final separation on maybe 6 or 8 January this year.

2. As a family, they had all lived in Town G together.  And at final separation, when the mother left, she went down to where her family live in Town EE, New South Wales, with the intention of only going for a holiday or for some time out, however you want to describe it.  But then upon realising that her life was calmer there formed the view that she would not return.

3. So the father brings his application, filed on 3 March 2017, seeking orders that the children return to live in Town G.  There is no delay between when he learned that the mother had left and when he brought his application.  He was not completely aware of where the mother was until he received notice some time later in January. 

4. The father reads and relies upon the documents that he has filed.  The affidavits that he has filed are from himself.  He filed one in reply after he received the mother’s material.

5. The mother is legally represented.  She was not at court; she was down in the Town EE area.  She reads and relies upon her documents which have been filed.  Apart from herself as deponent to an affidavit, she also has an affidavit from her father. 

6. The other documents that I have before me, there are written submissions prepared on behalf of the father by his solicitor; there is a letter from a clinical psychologist who the mother has been seeing at Region H or Town EE, I should say.  The Region H River is what runs through Town EE, as I would understand it. 

7. And I also have the orders which were made on a final basis between the father and the mother of the father’s older child, a boy J, who was born in 2008.  There are final parenting orders in place there from July 2011. 

8. I also have before me an email which a police officer has sent to the mother, upon her request, seeking to learn whether particular charges were going to proffered against the father for something which happened in recent months between the mother and the father, where the father turned up at the mother’s workplace, and the mother understands that the children were left unattended at home sleeping.  The police officer tells the mother through that email that charges are to be proffered for leaving a child unattended.

9. The mother opposes the application.  She says that she and the children should live where she presently lives down in the Town EE area, if I may call it that.  She seeks that the father undergo carbohydrate deficient transferrin testing; that when the children are spending time with him that he not consume alcohol for a period of 24 hours beforehand; that he not smoke cigarettes in their presence; and that his time be supervised for a period of two consecutive nights once each calendar month, such time to be spent in Sydney and to be supervised by a member of the father’s immediate family.  And the mother then names people within that, the paternal grandmother, paternal uncle or paternal aunts. 

10. The father, through his initiating application, seeks interim orders that would have the children living with both parents effectively on an equal time basis, though to be fair the father, through his solicitor, said that in the event I ordered that the children live in the Town G area on an interim basis, that she would welcome the opportunity for the matter to be stood down, so that there could then be negotiations as to what time the children should spend with each parent.  So although in his initiating application the father seeks orders which would suggest an equal time arrangement, I am not sure whether that remains that father’s position and I suspect it may not.

11. This, then, is an interim parenting decision. I am mindful of the objects and principles of part VII of the Family Law Act. The difficulty with interim matters is, of course, I cannot make findings of fact where there are matters in dispute. It is still a parenting application and the Family Law Act tells me what I need to be doing to be attending to parenting matters. The starting point is the issue of parental responsibility. Parental responsibility is a presumption, which is rebuttable on the basis of family violence or child abuse.

12. Here the mother’s orders are silent with respect to an interim order with respect to parental responsibility; the father, though, seeks an interim order that the parents have equal shared responsibility.  If I form the view that there should be equal shared responsibility, I then need to turn my mind to whether it is in the children’s best interests and reasonably practicable for them to be spending equal time with each of their parents.  If I am so satisfied, I need to consider that. It remains a matter for my discretion.

13. If I am not so satisfied, I need to then turn my mind to whether it is in the children’s best interests and reasonably practicable for them to spend substantial and significant time with the parent with whom they are not living.  If I am then so satisfied, I must consider making such an order.  Again, it remains a matter for my discretion.

14. The law has consistently said for a period of time now that there should not be recent developments in the children’s lives at a time of an interim order, and that as so far as it can be managed, things should be put back in place such as what they were prior to the recent development, so that the court can then properly consider what is the best outcome for the children.  That has been, for example, included in Morgan & Miles, the 2007 decision of the Appeal Court.  Boland J there cited Warnick J in C & S, the 1998 decision, where Warnick J said:

    In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.

15. So immediately beforehand where were we at?  The parents were living together in a home in Town G, with the two children living with them.  There had been a recent domestic violence order made, with the mother being the aggrieved and the father being the respondent.  There was police involvement in their lives.  The father had, as I would understand it, in December been arrested by the police.  He had been so intoxicated that he damaged the police cell. 

16. The father had recently been charged with having unlicensed firearms in the house.  The father’s version of events was that he found a firearm in the ceiling cavity in their house and did not know how they got there and so put those found weapons into his own gun cabinet.  The mother points out in her material that the house had been reroofed in recent years and so the notion the father had not been up into the roof was one which the mother disputes. 

17. Also recently in time there had been a number of incidents between the parents.  The mother was the one who left the former matrimonial home.  The father pays the mortgage on that, apparently.  The father is self-employed.  His shed, which is attached to his working life, is at that property and he says he cannot leave that property.  The mother did what many people do when a relationship ends; she went to take the comfort from her family.  Her family lives in the Town EE, New South Wales area, which is, understandably, a long way from Town G.

18. So to put back in place something which was in existence prior to the recent steps is not possible.  The parents have separated on a final basis.  The father says he cannot leave the house and has no intention of leaving the house.  He says that he would pay $150 per week to the mother’s rent, if the mother as living back in Town G.  The mother disputes the father has that capacity, because based on what she understands his stated earnings to be, he would not have the capacity to be contributing $150 a week to her rent, she having been the higher breadwinner during their relationship.

19. So despite what the Full Court implores us to do, which is to put back into place something which happened before the recent development, of course, when the recent development is in fact the final separation that cannot practically be done.  So it seems to me what I need to do is simply go through the factors which are the reality of the parties’ present situations, and determine whether it is in the children’s best interests and reasonably practicable for them to be living in Town G. 

20. The mother says that she would come back to Town G if the order was for the children to live there. 

21. Starting then with equal shared parental responsibility, as I have said; it is a presumption which is capable of being rebutted on the basis of child abuse or family violence.  Here there is a domestic violence order, which was a police application, which was made on behalf of the mother as the aggrieved spouse.  And the father has, as I would understand it, already breached that on one occasion. 

22. The mother alleges domestic violence; the father denies that he was the perpetrator of family violence, or at least to the extent that the mother says.  The father alleges that the mother has mental health difficulties.  The father in his material acknowledges that he has offended.  He acknowledges the unlicensed firearms and gives his version of events, which, as I have said, the mother disputes the veracity of. 

23. The father acknowledges the wilful damage in the police cell.  He does not tell me what it was that he did for the wilful damage.  From the mother’s material, she says that he spread his faeces on a pillow, which he then smeared over a wall, which would seem to be a particularly offensive act, considering somebody needs to clean that up.  The father’s only explanation is that he was intoxicated.  It is a particular kind of intoxication which leads to that style of behaviour, it seems to me.  And that is certainly not a style of intoxication which anyone might call a happy or pleasant drunk, but rather an offensive and vile drunk.

24. So on the material before me there are sufficient allegations of family violence, supported by the police bringing an application and the father subsequently breaching a domestic violence order, for me to be satisfied that the presumption is rebutted. 

25. Moving then to the primary considerations, the benefit to the children in having a meaningful relationship with both of their parents and the need to protect children from the physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and the Family Law Act is clear; it is the second of those which is to be given the greater weight.

26. Here, of course, between Town G and Town EE it is difficult to see how children who are aged a little over three and a little over two could have a meaningful relationship with both of their parents, when there is such a distance involved.  It is trite to say that the court is frequently told by experts in parenting matters that the style of time that is most useful for children of that age is for them to have short, regular periods of time with the parent with whom they are not living. 

27. That, of course, is contrary to the orders that the father sought through his initiating application, that the children would spend equal time with both parents, being a series of no less than three blocks with each parent in every single week.  Certainly that would be short periods of time, but with a myriad of changeovers.  But, as I say, that may not have been what the father’s position was by the time the matter came on for hearing.

28. So it is difficult to see how the children would have a meaningful relationship with both parents with the distance which is imposed by the mother’s move to Town EE.  All things being equal, plainly the children would benefit by having a meaningful relationship with both of the parents.  The mother has some views herself about the children’s relationship with the father or the father’s parenting capacity, rather; and the father has a view about the mother’s mental health and whether the mother is always, I guess, emotionally available, arising from what he would consider to be, as I would understand it, some emotional arousal that he considers the mother has at times, which she then is unable to contain.

29. In terms then of the second of the primary considerations, the need to protect children from the physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, on behalf of the father it was submitted that as the parents have now separated on a final basis, that in and of itself reduces the risk of exposure of family violence.  I cannot accept that submission.  There is no evidence to support that that is the case.  And the research, as I would understand it, tells us that in fact the time that somebody how has been subjected to family violence is most at risk is after final separation.  So I cannot accept that submission without some evidence in this particular case.

30. The family violence that the mother speaks of includes but is not limited to the father on more than one occasion disabling her motor vehicle, so she wasn’t able to drive it; the father disabling the baby monitoring system, so that the mother was not able to see what was happening with the babies remotely; the father turning up at the mother’s workplace whilst intoxicated and, the mother alleges, leaving the children unattended at that time.  

31. That is not the only family violence that she deposes to, but they are matters of more recent events, as I would understand the chronology in the mother’s material.  The mother also speaks of what she would understand to be the father’s attitude towards the children.  She considers that the father would blame the children for leaving their toys in the way.  He has thrown the children’s toys, she says, off the deck.  He has been fixated with money.  He has been controlling of her and who she is spending time with.  The mother’s affidavit is replete with her allegations of family violence, and given time no doubt the father will respond to them in greater detail. 

32. The father says that the mother has mental health difficulties and that she has difficulty with her anger at times.  And he gives discrete incidents where he says the mother’s violent outbursts occurred.  The mother has responded to each of those.  And the mother’s responses do not, it seems to me, indicate any particular insight into what was happening for her at that time.  She seems to be embarrassed or apologetic for her outbursts of anger, but that does not help with understanding what it was that was happening at the time for her. 

33. She speaks about the father’s 30^th birthday.  She threw plates and cups off a balcony.  The father says she was angry and yelling.  The mother says she threw cups and plates off the balcony, but was doing it out of silliness.  The mother says that she was upset because one of the father’s friends had hired topless waitresses for that event.

34. The father talks about a time that they were camping, when the mother had been speaking to some people and she came back and she was angry.  The mother says who it was that she was speaking with and what she was angry with them about.

35. The father talks about a time when they were all at an AFL grand final day and the mother had an argument with somebody, which then turned into a physical fight with another woman.  The mother speaks of that as well and acknowledges that she did that. 

36. They both talk about a time when the father and the mother went out and a babysitter stayed at home looking after the children.  And the father came back from the evening out first, the mother came back second.  There was an argument when the mother came back and the police were called.  For reasons which I do not understand, the father’s material says that when the police attended, the father says, “They got Ms Eldridge to leave with the kids and she went to her friend’s house”.  So it would seem that on the police’s assessment of the situation, the children needed to go with the mother and not be left with the father.  So I struggle with what the father thought he was telling me there.

1. And the father also tells me about the mother on her hen’s night and how she had an argument with one of her friends.  The mother acknowledges that as well and says that she does not know what that argument was about, but she did lose a good friend as a result. 

2. So it seems to me the mother really does not help me understand how it comes to pass that there are so many incidents in her life where she has arguments with people, such that she ends longstanding friendships with people through these arguments.  That does not seem to me to fit within psycho-typical adult behaviour.

3. Having said that though, none of those incidents that the father refers to had anything to do with the children.  All of the incidents were incidents where the mother was arguing with other adults, and there is no reference to the children having been involved in those circumstances, save for the one time when the police were called and the police had the children leave with the mother and not remain with the father, even though the father says the mother was the protagonist at the time.

4. Contrary to that, the mother’s evidence is that the children have been exposed to family violence perpetrated upon her by the father, and the children have been exposed to abuse from the father by his attitude towards them, his angry outbursts towards them, damaging of their property, also by them being exposed to his violence towards their mother and his abuse of their mother.  Further, the mother alleges that the father left the children unattended, the father denies that, on the time that the father turned up at the mother’s workplace intoxicated, when he was meant to be at home looking after the children.

5. So I am satisfied, doing the best that I can on the material that is before me, that there is a need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

6. In saying that, I am cognisant of the fact that the mother has been to see a clinical psychologist in the Town EE area.  The clinical psychologist, it seems to me, is only working upon what the mother has told her.  I do not take that document any higher, then, in those circumstances.  And I accept the submission made by the father that there are psychologists in Town G who would be in a position to assist the mother if she sought psychological assistance in Town G.

7. The additional considerations:  the children are too young to have expressed a view. 

8. The children’s relationship with both of their parents:  well, until January this year, they were living with both of their parents and one would expect that their relationships with their parents, all things being equal, would be proper and appropriate. 

9. The mother and father both seek to make some allegations about each other, in terms of their parenting capacities.  There is little that I can do in trying to assess that on an interim basis, but of course a family report will be of assistance later on down the track.

10. In terms of the extent to which the parents have sought to be involved in the children’s lives, the father has promptly brought these proceedings and has brought proceedings seeking to have time properly with the children and for the children to be spending time with both of their parents.  Again, there is no criticism of the mother with respect to this.  She has demonstrated an intention to be a proper part of the children’s lives herself.

11. In terms of their obligations to maintain the children, that is financially, the father says he has now been assessed and understands that the assessment amount will be very low, and he intends to pay what is assessed.  That is not a particularly grand contribution, one would not have thought, if he acknowledges the amount will be low and he intends to pay that low amount.  But it may be reflective of his financial circumstances, which is part of the mother’s concern that, in fact, the father does not have the capacity to contribute $150 each and every week to her rent if she was living in Town G.

12. In terms of the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, this is an important issue in this case.  The children are presently separated from their father.  Since final separation the father travelled down to Town EE for a couple of weeks, but only managed to see the children for two very short periods of time, not from want of trying but from the lack of there being an outcome in the negotiations between the parents.  The likely effect for the children will be, it seems to me, the real risk of a diminution in their relationship with their father.  They are still only young and their relationship with their father would benefit from them being able to spend short, regular periods of time with him.

13. The mother says that I if order that the children live in Town G, she will be returning to Town G.  The practical difficulty and expense of the children spending time with both of their parents, the distance between Town G and Town EE is extraordinary.  There would be no direct flights.  The capacity for the father to get down there is hampered by financial constraints and also by just the time that it takes.  The father has some family in New South Wales, but apparently they are probably about three hours away from the Town EE area and so that is not of any great assistance.

14. In terms of the practical difficulty and expense of the children living in Town G, where the mother says that she would return, the mother deposes in her material to the difficulty that that creates for her.  She says that she does not have anywhere to live in Town G.  She does not have the economic means to support herself and the children.  She says at paragraph 105 if she was to return to Town G, she would have to start completely afresh.  She has no home in Town G, no furnishings, furniture or household utensils.  She says:

    I would have no car and therefore no means of transport.  I certainly do not have the funds to pay bond to rent privately.

15. At paragraph 106 she says:

    In response to paragraph 61 of Mr Eldridge’s affidavit, Mr Eldridge indicated he was willing to pay $150 per week towards rent.  During the period that I lived with Mr Eldridge, my taxable earnings were on average approximately Mr Eldridge’s taxable earnings.  All Mr Eldridge’s taxable earnings were used to pay the mortgage, amounting to $350 per week.  I do not believe Mr Eldridge’s income would be enough to cover mortgage payments, let alone a contribution of $150 per week towards a rental property.  On his declared earnings, I cannot see how he could even make a contribution towards rent.

16. So the practical difficulty and expense of the children spending regular time with both parents living in Town G appears to be a significant difficulty for the mother, and has real difficulties of feasibility. 

17. In terms of the capacities of each of the parents to provide for the needs of the children, including their emotional and intellectual needs, again both parents make remarks about each other’s respective parenting capacities and have negative remarks.  I am not in a position to be able to assess that on an interim basis and a family report will no doubt be of assistance. 

18. In terms of characteristics of the children which are relevant, these children are young.  They were born close in age.  They are now aged three and two, nearly three and a half and two and a half but not quite.  So they are still very young and have long lives, one would hope, in front of them. 

19. These are not Aboriginal or Torres Strait Islander children. 

20. In terms of the attitude to the child and to the responsibilities of parenthood, my remarks with respect to capacity and the children’s relationships with their parents equally apply here. 

21. In terms of matters of family violence and family violence orders, the mother’s material is replete with allegations of family violence.  The father denies those.  The father says that the mother has problems with anger herself.  The father, though, is the person who has been charged with unlicensed firearms, wilful damage, as it would seem on his own evidence, whilst grossly intoxicated, and he is the one who is the respondent to a domestic violence order, even if it is by consent, the magistrate still needs to be satisfied that the order should be made.  And, as I would understand it, has breached that at least once.

22. In terms of then the reasonable practicability factors, the impact that the arrangement would have on the children, if the children were living in Town G, they would be able to spend regular time with both parents.  Their father would consent to an order that he not consume alcohol whilst the children are in his care, or for a period of time beforehand.  The father consents to carbohydrate deficient transferrin testing, but says the mother should pay for it in the first instance.  I am not sure why that should be the case, when he is the one who plainly was grossly intoxicated at the time that he committed at least one of his offences.  That would prima facie establish to me that the father has a level of alcohol consumption which has been problematic for him in his life.

23. The mother also says that she needs at this point in time the support of her own family, both emotionally and financially.  She also says in her affidavit at paragraph 108 that she has serious concerns about returning to Town G for the safety of herself and the children.  She is aware that the Town G Police recently confiscated unlicensed firearms from the house.  She is unsure whether the father retains any others. 

24. She goes on to say that she is aware that as a result of various police charges, Mr Eldridge also transferred registration of licensed guns to his very good friend Mr FF.  She says that she is aware, from earlier discussions with Mr Eldridge that he gave these guns to Mr FF and as far as she knows they are still in Mr FF’s possession.  Mr Eldridge also helped move his gun safe to Mr FF’s house.  Mr Eldridge knows where the spare key is to Mr FF’s property and thus has full access to the guns. 

25. She says that she is concerned for her safety, as well as health, education and wellbeing of the children, should they have return to Town G.  It is particularly so given a recent escalation in Mr Eldridge’s alcohol consumption and aggression.  And she understood then that the police were still investigating possible charges of child abandonment, which of course the email from the police officer has confirmed are going to be proffered.

26. So the impact that the arrangement would have on the children, from the mother’s perspective, if the mother was living in Town G because the children were ordered to Town G, the mother deposes to and I can do no more than acknowledge that she deposes to it, because I cannot make findings of fact on an interim basis, but she deposes to concerns for her own and the children’s safety.  And her concerns relate to the father’s alcohol use, his recent charges, the fact that she understands he still has access to firearms, and the level of aggression that she has perceived from him towards her.

27. The other impact would be that the children would be able to have regular time with both their mother and their father.

28. In terms of how far apart the children’s parents live from each other, the distance between Town EE and Town G spreads for over half of Queensland and over half of New South Wales.  They are a long way apart. 

29. In terms of the parents’ capacities to implement an arrangement for the children spending equal time or substantial and significant time, again I say the father’s application speaks of equal time but I am not sure that that was actually his position during argument.  The mother’s capacity, that is the feasibility of her being able to provide for the children in Town G, as she says, she has no home, no furnishings, no furniture or household utensils, and she has no economic means to support herself and the children. 

30. The mother is a health care worker and was employed during the relationship.  I understand she is on leave from her employment.  And I understand that that would mean that she would be employable, if not employed in her substantive position, but the mother says that she does not have the capacity to accommodate herself in Town G, and there is no evidence to suggest that she does.  I am satisfied that she would be employable, but there is no present basis for me to be considering that that would be what she would be able to do without the support of family, which she says she needs at this point in time. 

31. In terms of the parents’ current and future capacities to communicate with each other and resolve difficulties, that seems to be a particular difficulty in this case, not unsurprisingly, given the recent separation, the allegations at recent separation, the father’s allegations about the mother’s anger and violent outbursts, the mother’s allegations about the father’s behaviour towards her.  It would be contrary to all of the evidence for me to find that the parents have any capacity to communicate with each other and resolve difficulties.  They were not able to even negotiate how X and Y could spend time with their father when he was in Town EE during the time since final separation.

32. Turning my mind to all of those things, then, it seems to me it would be in the children’s best interests for them to be able to have a meaningful relationship with both parents.  But in the circumstances of this case, all of the other considerations point against the children spending regular time with the father.  It really comes down to the fact that I cannot be satisfied that it is feasible for the children to be living in Town G.  I am not satisfied that the mother has the capacity to implement an arrangement for the children spending time with the father.  I am not satisfied the parents have the capacity to communicate with each other.  I am not satisfied that the children would be protected from physical or psychological harm if they were living in Town G and their mother was living in Town G.  All of those matters override what would otherwise be in their best interests, that they spend regular time with both of their parents. 

33. To be clear, the orders that the father sought in his initiating application are not in the children’s best interests.  There is no evidence to suggest that these children, aged three and two, would have their best interests served by spending equal time with both of their parents, where they would be moving between homes no less than three times each and every week.  There is no evidence to suggest that that was going to be either in their best interests or reasonably practicable, not least of which because of the difficulties with the parents’ capacities to communicate. 

ORDERS DELIVERED

1. Turning then to what needs to be done from here, I make an order that the children live with the mother.  The Wollongong registry of the Federal Circuit Court is the closest court to where the mother lives.  It seems to me this matter will need to have a family report.  And it seems to me that the judge who is best placed to be able to progress the matter is the judge who attends to the Wollongong Court.  So I will be transferring the matter to the Wollongong Registry of the Federal Circuit Court. 

ORDERS DELIVERED

1. The mother speaks to the children’s time with the father being supervised for a period of two consecutive nights once each calendar month, provided such time is spent in Sydney.  And the mother names people in the father’s family who she would be satisfied should be attending to the supervision.  I would understand the supervision to be effectively with respect to the father’s alcohol intake.  And it seems to me I should have every reason to be concerned about the father’s alcohol intake.  His offending whilst intoxicated is a very poor example of problem drinking.

ORDERS DELIVERED

1. I do not intend to order the father to have a drug and alcohol assessment, because such assessments rely on self-report, and there is nothing about the father’s affidavit material which would cause me to form the view that he is going to be honest with any assessor, and so there is no point me compelling him to attend for assessment, because he will simply tell them what he wants to.  Such an assessment is only going to be usefully done if the father attends upon that of his own accord and chooses to actually tell them the truth.

ORDERS DELIVERED

1. The mother also speaks to the father undergoing urinalysis on a random basis for the detection of drugs in his urine.  I decline to make that order.  I perceive the mother’s concerns about the father were predominantly to do with his alcohol use, as opposed to illicit drug use, so I decline to make the order for random urine analysis.  If that remains a concern, the judge in Wollongong can turn their mind to it. 

2. I will not make an order for a family report.  The judge in Wollongong can do that. 

ORDERS DELIVERED

1. The parties can attend to subpoenas in the usual course to get documents from the department and Queensland Police.  It seems to me that where parties are represented, they should be attending to those matters.  We will issue a date for the mention before the judge in Wollongong on the order, when the order comes out. 

2. I thank their lawyers for their submissions.  It seems to me it is a particularly difficult matter and finely balanced, but those are my reasons and they are my orders. 

I certify that the preceding seventy six (‎76) paragraphs are a true copy of the reasons for judgment of Judge Demack

Associate: 

Date:  2 May 2017