Fells and Fells - [2019] FamCA 308

FAMILY COURT OF AUSTRALIA

FELLS & FELLS

[2019] FamCA 308

FAMILY LAW – CHILDREN – Parenting – Where the proceedings concern four children aged 12, 10, 9 and 5 – Where the three elder children have special needs – Where the father has an alcohol abuse problem of mild severity – Where the mother proposes that the children spend five nights a fortnight with the father but that the youngest child not do so until term 1 2020 - Where the father proposes equal time on a week about basis immediately for the three older children and for the youngest child after six months – Where the Independent Children’s Lawyer supported the father’s application which was consistent with the recommendation of the Chapter 15 Single Expert – Discussion of the meaning of “consider” in s 65DAA(1) of the Act - Where it is found that it is in the children’s best interests and reasonably practicable for the children to initially increase the time that they spend with their father and from term 1 2020 to spend equal time with the parties on a week about basis.

Family Law Act 1975 (Cth)

Aboriginal & Torres Strait Islander Affairs, Minister for & Norvill v Chapman (1995) 133 ALR 226;
Bondelmonte v Bondelmonte (2016) 259 CLR 662
Egan & Egan [2017] FamCA 170
Goode & Goode (2006) FLC 93-286
Gallimore & Gallimore [2018] FamCA 249
Nguyen v Nguyen (1990) 169 CLR 245
Tibb & Sheean (2018) 58 Fam LR 351.

APPLICANT:

Ms Fells

RESPONDENT:

Mr Fells

INDEPENDENT CHILDREN’S LAWYER:

Mr Blumberg

FILE NUMBER:

SYC

7172

2016

DATE DELIVERED:

15 May 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

4 - 5 September 2018; 7 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

SOLICITOR FOR THE APPLICANT:

Doolan Callaghan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Blumberg Family Lawyers

Orders

The parties have equal shared parental responsibility for the children B, born … 2007, C, born … 2008, D, born … 2010 and E, born … 2014 (“the children”).
Until the end of term 4 2019, during school term the children:
2.1.Live with the mother;
2.2.Spend time with their father during the school term as agreed between the parties and failing agreement as follows:
2.2.1.From after school Friday until before school the following Tuesday in each alternate week;
2.2.2.From after school Monday until before school Tuesday in each other alternate week; and
2.2.3.The arrangements for when each party will have alternate weeks is to be coordinated so as to accommodate any requirement the mother has to work on alternate Saturdays so that the effect is the children are with their father on those weekends when the mother has to work.
During school term from the commencement of term 1, 2020 the children live in a shared care arrangement as follows:
3.1.With the mother from after school Friday to before school Friday, 7 nights later and each alternate 7 day block period thereafter;
3.2.With the father from after school Friday until before school Friday, 7 nights later and each alternate 7 day block period thereafter; and
3.3.The arrangements for when each party will have alternate weeks is to be coordinated so as to accommodate any requirement the mother has to work on alternate Saturdays so that the effect is the children are with their father on those weekends when the mother has to work.

School holidays

B, C and D shall spend time with each party during school holiday periods following term 1, 2 and 3 as agreed between the parties and failing agreement as follows:
4.1.With the father:
4.1.1.In odd numbered years for the first half of the school holidays; and
4.1.2.In even numbered years for the second half of the school holidays;
4.2.With the mother:
4.2.1.In even numbered years for the first half of the school holidays; and
4.2.2.In odd numbered years for the second half of the school holidays.
For the purposes of school holiday periods:
5.1.School holidays are taken to commence immediately after the conclusion of school on the last day of the school term and to conclude immediately before the commencement of school on the first day of the next school term (being the first day that the child is required to attend school);
5.2.Public holidays and pupil free days that fall immediately before or after a school holiday period will be taken to form part of the school holidays; and
5.3.For the purposes of changeover during the school holiday periods following terms 1, 2 and 3, changeover will take place at 6pm on the day that is the middle day of the holidays and in the event of an even number of days, changeover will take place on the earlier of the two middle days of the holidays.
For the child E:
6.1.The father will have her care for the terms 2 and 3 school holidays in 2019 for the last five nights of the period the other children are with him; and
6.2.Thereafter, otherwise in accordance with orders 4.1 and 4.2.

Christmas school holidays

The children spend time with the parties during the school holiday period following term 4 in each year as agreed between the parties and failing agreement, the children will spend time with the parties as follows:
7.1.For a period equal to one half of the period between the end of school term commencing after school on the last day of term and concluding at 9am on Christmas Eve, with the mother to have the first half in even numbered years and the second half in odd numbered years and the father to have the second half in even numbered years and the first half in odd numbered years;
7.2.Notwithstanding any other order, the children will spend time with each parent during the Christmas period as agreed between the parties and failing agreement as follows:
7.2.1.With the father in odd numbered years from 9am on Christmas Eve until 12 noon on Christmas Day and in even numbered years from 12 noon on Christmas Day until 5pm on Boxing Day; and
7.2.2.With the mother in even numbered years from 9am on Christmas Eve until 12 noon on Christmas Day and in odd numbered years from 12 noon Christmas Day until 5pm on Boxing Day.
7.3.With the father:
7.3.1.In even numbered years for 7 nights from the conclusion of the father’s care period pursuant to order 7.2.1 until 12 noon on the same day 7 days thereafter and each alternate week thereafter until the commencement of school; and
7.3.2.In odd numbered years from the conclusion of the mother’s care period pursuant to order 7.4.2 and each alternate week thereafter until the commencement of school.
7.4.With the mother:
7.4.1.In even numbered years for 7 nights from the conclusion of the father’s care period pursuant to order 7.3.1 and each alternate week thereafter until the commencement of school; and
7.4.2.In odd numbered years for 7 nights from the conclusion of the mother’s care period pursuant to order 7.2.2 until 12 noon on the same day 7 days thereafter and each alternate week thereafter until the commencement of school.
The intent being that the parent who has the care of the children on Boxing Day shall remain with them for a period of 7 days thereafter.
In the event that changeover does not take place at school, the parent who is then to have the children will collect the children from the other parent, and failing agreement, from that parent’s residence.
Notwithstanding any of the provisions of these orders, the children shall spend time with each parent during the Easter religious holidays as agreed between the parties and failing agreement as follows:
9.1.In each odd numbered year the children shall spend time with the father from after school on the day before Good Friday until 4pm on Easter Saturday and in each even numbered year from 4pm Easter Sunday until before school on the day after Easter Monday; and
9.2.In each even numbered year the children shall spend time with the mother from after school on the day before Good Friday until 4pm on Easter Saturday and in each odd numbered year from 4pm Easter Sunday until before school on the day after Easter Monday.
Notwithstanding any other provision of these orders, the children shall spend time with each parent on special occasions as agreed between the parties and failing agreement as follows:
10.1.On Mother’s Day in each year with the mother from 9am to 5pm;
10.2.On Father’s Day in each year with the father from 9am to 5pm;
10.3.On each child’s birthday, the child shall spend 3 hours with the parent whom they are not ordinarily residing pursuant to these orders from 3pm to 6pm if it is a school day and from 12pm to 3pm if it is not a school day;
10.4.On the Mother’s birthday in each year, the children will spend 3 hours with the mother in the event they are not ordinarily residing with her pursuant to these orders on that date, as agreed between the parties and failing agreement from 3pm until 6pm if the birthday falls on a school day and from 12pm to 3pm if it is not a school day; and
10.5.On the Father’s birthday in each year, the children will spend 3 hours with the father in the event they are not ordinarily residing with him pursuant to these orders on that date, as agreed between the parties and failing agreement from 3pm until 6pm if the birthday falls on a school day and from 12pm to 3pm if it is not a school day.
In the event that the children are not away from Sydney on holidays and a parent is unable to care for the children for a period in excess of 24 hours, the other parent shall have first option for caring for the children in that period.
While the children are in the care of a parent, that party shall:
12.1.Notify the other parent immediately of any serious illness or injury suffered by either child whilst in their respective care;
12.2.Notify the other parent and keep the other parent notified of a telephone number where he/she may be contacted in the event of an emergency;
12.3.Provide the contact details of either child’s treating doctor and sign any authority the other parent may provide to authorise that doctor in writing to release to the other parent particulars of that child’s health or treatment at any time requested by him or her; and
12.4.Notify the other parent if either child is going to be absent from school or after school activities.
Each parent shall provide to the other the current details of:
13.1.Their residential address;
13.2.Their mobile telephone number and that of the children; and
13.3.Their email address and that of the children.
Each parent notify the other within 48 hours if possible, but otherwise no later than 7 days, of any change to the details referred to in the immediately preceding order.
Neither parent shall denigrate the other in the presence of the children or allow any other third party or family member to do so.
The parents be restrained from physically disciplining the children.
The father be and is hereby restrained from consuming alcohol whilst the children are in his care and for 24 hours beforehand to the extent that he would exceed the legal limit in relation to the driving of a motor vehicle.
Both the father and mother, by consent, within three months each pay the Independent Children's Lawyer’s costs in the sum of $4,390.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Fells & Fells 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 7172 of 2016

Ms Fells

Applicant

And

Mr Fells

Respondent

REASONS FOR JUDGMENT

introduction

The parties have resolved issues in relation to the alteration of property. What remains are issues about parenting arrangements. The parties have four children aged 12, 10, nine and five. Both the first and third child have Autism Spectrum Disorder (“ASD”) and Attention Deficient-Hyperactivity Disorder (“ADHD”). The second child has a Generalised Anxiety Disorder. The father has a mild alcohol dependence disorder.
Pursuant to interim orders made 2 March 2017, the three elder children spend four nights a fortnight with their father and the youngest child spends two nights a fortnight with her father. In addition, they see their father one afternoon after school each week.
The mother seeks that that arrangement be reconfigured so that the afternoon times are eliminated and the three elder children spend five nights a fortnight with their father. The mother seeks that the youngest child’s time with her father be graduated so as to not spend the same amount of time with her father as her siblings until she starts school in 2020.
The father’s primary application is for the three elder children to immediately spend time with him on a week about basis and for the youngest child to gradually increase to a week about basis over a period of six months and then to thereafter spend the same time with her father as her siblings.
The Independent Children’s Lawyer supported the father’s application in relation to the children spending time with each of their parents during school term on a week about basis.

documents relied upon

Each party relies upon the documents set out in Schedule 1.
The Single Expert Report of Dr J dated 1 November 2017 (which I mark Exhibit 27) and the Child Responsive Memorandum of Ms L dated 26 April 2017 were also evidence before the court.

short history

In 1976, the father was born and is currently 43 years of age.
In 1980, the mother was born and is currently 39 years of age.
In 2006 the parties commenced cohabitation.
On in 2007, the parties’ first child, B, was born and is currently 12 years of age.
In 2007, the parties were married.
In 2008, the parties’ second child, C, was born and is currently 10 years of age.
In 2010, the parties’ third child, D, was born and is currently nine years of age.
In 2014, the parties’ fourth child, E, was born and is currently five years of age.
In April 2016, the parties separated on a final basis under one roof and the parties lived in the same residence until April 2017, when the father moved out of the matrimonial home.

credit

In written submissions, counsel for the mother invited a general credit finding against the father. It is not necessary to do so in order to make the findings required to determine the issues between the parties.
The father proved to be an unreliable historian and an unreliable witness in respect of certain matters. He did not tell the single expert the truth when the single expert asked him whether or not he had a criminal record. When he gave evidence initially, he asserted that the single expert had not even asked him that question. I am satisfied that the single expert had asked him that question and that his answer was not accurate. Confronted with the statement in Dr J’s report, the father changed his answer, saying that he didn’t think that the things that he did had created a criminal record and he thought what happened in his early adulthood got wiped.
I also find the father’s explanation as to the events that led to him being charged in his youth improbable. The offences included some serious physical violence inflicted upon innocent people and abusive behaviour towards police. It is likely that that behaviour was fuelled by alcohol. The father underplayed those incidents in respect to which he was charged and convicted. The relevance of those historical events goes to the mother’s perception of the father’s aggression in their arguments when they were together and the father’s lack of insight as to the effect of his behaviours on the mother more recently.
The father’s recollection of events that happened in the late 1990s which centred around criminal convictions seemed to be far sharper than his recollection of visits to his GPs in more recent years. The father struggled to give evidence relating to his delivery of the blood and liver function report of Dr K, being unable to explain why there had been about a 7 day delay from when the report was dated and when it was delivered to his solicitors.
Also, had the medical records from the father’s GP and psychiatrist not been subpoenaed, then there would have also been a less than fulsome picture provided by the father as to his historical abuse of alcohol and cannabis.
The father’s evidence about his involvement with the children’s school was shown to be wanting. The father asserted that he had attended all parent/teacher events and spoke to the teachers at school assemblies every week or nearly every week to ask how the eldest child was going. The father named the school teacher with whom he said he shared a common interest in football. However, when confronted with the school reports that demonstrated that the teacher to whom the father referred had in fact taught his eldest son at an earlier time (in year 2, 2015), he was unable to explain the mistake. The most likely explanation is that he was embellishing his involvement with the school, given that at the time, the eldest child had two female teachers rather than one male teacher.
As discussed below, Dr J’s change in diagnosis of the father came about as a result of Dr J being made aware of the abusive and violent conduct of the father in the 1990s, the fact that he had concealed his criminal record from Dr J and the surveillance that had shown the father had understated his current level of alcohol consumption. I accept the submission by counsel for the mother that had it not been for the surveillance of the father, the court would have had a different impression as to the current level of the father’s use of alcohol.
The mother gave her evidence in a balanced and straight forward way and on the whole made concessions. Some of the mother’s evidence is coloured by her perception of events and as discussed below, I find the arguments which the parties had were not as one sided as she presents them.

detailed chronology

In 1976, the father was born and is currently 43 years of age.
In 1980, the mother was born and is currently 39 years of age.
In 2006 the parties commenced cohabitation.
In 2007, the parties’ first child, B, was born and is currently 12 years of age.
In 2007, the parties were married.
In 2008, the parties’ second child, C, was born and is currently 10 years of age.
In July 2009, the parties’ first child was diagnosed with Delayed Expressive Language Development and was subsequently diagnosed with ASD. The child attended weekly Speech Therapy sessions and began Occupational Therapy sessions from 2011.
In 2010, the parties’ third child, D, was born and is currently 9 years of age.
From 2012, the father drank most days. He was referred to Drug and Alcohol Services by his doctor but did not attend. The father failed to recognise that he had a problem with alcohol.

In July 2012, the father was prescribed medication which the mother believed was a treatment for depression or bipolar disorder.
In March 2013, the parties’ third child was initially diagnosed with ASD (with a definitive diagnosis being made in 2016). The child attended weekly Speech Therapy and Occupational Therapy sessions.
In December 2013, the mother observed the father heavily intoxicated and smoking marijuana during their holiday to Town P.
In February 2014, the father began hiding his drinking from the mother and the parties started having fights about the father’s alcohol abuse.
In April 2014, the father attended Alcoholics Anonymous in Suburb M but did not maintain his attendance.
In 2014, the parties’ fourth child, E, was born and is currently 5 years of age. The mother says that from this point the father’s drinking and behaviour deteriorated and the father began smoking marijuana and drinking in front of the children.
Between August and October 2014, the parties attended marriage counselling with N Group. The father was referred to drug and alcohol counselling but did not attend.
In September 2014, the mother saw the father take marijuana from his car and light up a joint in the presence of the children.
In December 2014, the mother told the father that she wanted to separate and the father removed the mother’s access to cash at the matrimonial home.
Throughout 2015, the parties are separated under one roof but attend marriage counselling in an attempt to reconcile the marriage. In July 2015, the mother agreed to resume the marriage on the condition that the father stopped drinking. The father initially stopped drinking but then recommenced after two weeks.
Between 6 and 8 September 2016, the mother transferred $50,000 from the O Business (“the family business”) account to her personal account, leaving $42,000 in the business.
On 9 September 2016, the father and his father removed the mother as Director and Secretary from the family business and removed all business and personal papers from the family home.
On 9 September 2016, the father informed the mother that he would put the mortgage on hold unless the parties would agree to pay half. The mother says that from that point the father withdrew financial support from her and children and that the father only met one half of the mortgage repayments.
On 5 October 2016, the mother received correspondence from lawyers instructed by the family business accusing the mother of fraud, stealing and of committing a criminal act in regards to the withdrawal of funds in September 2016.
In November 2016, the mother commenced part time employment, working 4 hours a day, 3 days a week, plus alternate Saturdays for 4 hours.
In December 2016, the father took the three older children to Town P for a camping trip for four nights.
On 30 December 2016, the mother registered for child support and the father was assessed for $100 per month. The father refused to pay.
On 3 January 2017, the father attended a CDT test and the results were negative.
From March to September 2017, the father refused to contribute to the mortgage.
On 2 March 2017, Rees J made interim orders that the three elder children spend four nights a fortnight with their father and the youngest child spend two nights a fortnight with her father. In addition, the orders provided for the children to spend one afternoon after school each week with their father.
In March/April 2017, the father vacated the former matrimonial home and the interim parenting orders were implemented. The mother formed the belief that the youngest child struggled with overnight time with the father.
In 2017, the former matrimonial home was sold.
In April 2017, the youngest child spent three night block time with the father in school holidays. The mother described the child as being constipated, with hair full of dreadlocks, hungry, tired, emotional, swearing, moody and abusive to the mother.
In early September 2017, the mother and children vacated the former matrimonial home.
On 25 October 2017, the father attended upon a pathologist for a random urinalysis test at the request of the Independent Children’s Lawyer. The results were negative.
In December 2017, the father and children spend a block of 7 nights for a camping trip at Town P.
In January 2018, the father refused to buy the second child an iPad for school and said to the mother, “You are the primary carer, you do it”. The youngest child commenced preschool every Wednesday and Friday.
In March 2018, the father paid his first child support payment of $452.24.
In the April 2018 school holidays, the youngest child spent a five night block with the father. The youngest child returned constipated, with a head full of dreadlocks and the mother described her as being in pain, distressed, clingy and out of sorts.
On 8 May 2018, the father attended upon a pathologist for a further random urinalysis test. The results were negative.
On 27 May 2018, the father paid child support and the mother received an amount of $559.19.
On 31 May 2018, the mother received $126.33 by way of child support from the father.
On 31 July 2018, the father attended a positive parenting course.
On 28 August 2018, an incident occurred involving the second child, the parties and the maternal grandmother, the details of which are set out below.
On 25 October 2018, the father enrolled in an anger management course, he says, to help alleviate the concerns of the mother.

The nature and special needs of each of the three eldest children

The Child B

The eldest child, B, is intelligent and engaging. He has an established diagnosis of ASD of mild severity and ADHD (combined type of moderate severity).
Dr J opined that B also met the criteria for a diagnosis of Oppositional Defiance Disorder of mild severity which is categorised by a pattern of anger/irritable mood, argumentative/defiant behaviour and verbal and physical aggression which has been directed predominately towards the mother. Dr J warned that B’s anger, mood, feelings of sadness and his increasingly isolative behaviour when in his mother’s care may develop into an adjustment disorder or major depressive disorder.
B receives psychotherapy and medication and is subject to regular paediatric reviews. He historically had trouble making friends and at times had difficulty concentrating (although he was able to concentrate for the duration of the interview with Dr J). B previously had difficulties with rushing at his homework and has certain sensory sensitivities. He has some limitations on his ability to empathise. During the interviews for Dr J’s report, whilst mostly happy, B was often quick to anger and became frustrated with his mother.
Dr J opined that B’s affect was mood-congruent with a full range and this was especially evident when he interacted with his father.

The Child C

The second child, C, presents symptoms suggestive of a Generalised Anxiety Disorder. Her mood when seeing Dr J was “very sad and worried”. Dr J reported C as saying that she worries all the time. She has a high startle response. C described her physical symptoms of anxiety as present at all times at her mother’s home, sometimes present at school but never present at her father’s home. She reported being scared at her mother’s house because her mother seemed “sad and angry”. She worried about her mother. C also described fears associated with her siblings, school and in not being able to see her father.

The Child D

The third child, D, has established diagnoses of ASD of mild severity and ADHD (predominantly inattentive presentation) of moderate severity. At the time of the interviews with Dr J, he had significant speech and language deficits. He is being regularly reviewed by a paediatrician, takes stimulant medication and receives regular speech and language therapy.
D presented as agitated and anxious at the commencement of both of the interviews on the respective days that each of his parents took him to see Dr J. His father was able to settle D. Dr J observed that the mother was not able to distract him effectively nor acknowledge or attend to his distress. The mother’s attempts to engage D in conversation were unsuccessful and he gradually curled himself into a ball and did not talk further.

The father’s criminal record

As mentioned above, the father initially said that there was nothing in Dr J’s report about his criminal record because she had not asked him about it. That was untrue. She had asked him and he had told her he did not have one. When pressed, he unconvincingly asserted that he did not think that things like offensive language offences constituted a criminal record and he thought that those things got wiped. That evidence was disingenuous. The father did not think that the record was significant enough to disclose.
The father’s offences included some serious physical violence inflicted upon innocent people and abusive behaviour towards the police. Counsel for the mother put to the father that a number of the incidences involving violence and alcohol were relevant to a pattern of behaviour. The father explained that in the 1990s he was a “young person who did a couple of silly things” but now that type of behaviour was “ancient history”. The father described a number of the charges, including that he had once “flashed his bottom” at a friend on a bus, got caught by police swearing across the street “at a mate” and was involved in a “scuffle” which broke out when he was trying to restrain his friends.
Counsel for the mother took the father to the NSW Police Records which described various incidences as being significantly more serious. These included in March 1997, the father reportedly abusing police before calling out “these cock sucking cunts fucking shit me” and in August 1997 being involved in a fight which resulted in him hitting a person with a closed fist in the face. The father further described these incidences as him being “young and dumb”.
Dr J agreed that the criminal record and the fact that this was not disclosed to her was concerning. Counsel for the mother put to Dr J that the father’s behaviour detailed in the criminal record was “seriously dysfunctional”. Dr J disagreed, opining that given his age and development at that time, she would describe the behaviour as more “anti-social” or “socially dysfunctional”.

Family Violence

The history of family violence did not receive any focus or attention during the oral evidence or oral submissions (except by reference to the mother’s case outline document and written submissions).
The mother asserts that there is a history of the father being unable to manage his anger and behaving in a verbally aggressive manner which included threats and controlling behaviour directed at her.
Some of what the mother says happened was:
a)From October 2007, she started to become concerned about the father’s aggression whilst under the influence of alcohol and that he appeared to be relying on alcohol to cope with stresses at work and home;
b)Between June to August 2014, the father had become increasingly aggressive and on at least four occasions drove off with the children in the car whilst heavily affected by alcohol;
c)In April 2016, when the parties had separated on a final basis under one roof, the father’s behaviour became increasingly more aggressive. He would threaten, yell and swear at her in the presence of the children and this resulted in the children’s behaviour deteriorating. On an occasion in this month the father said “You won’t make it to Mother’s Day”;
d)In August 2016, the father said “I am going to kill you. I will do anything for my kids” and removed all of the cash at the home and threatened not to support her;
e)In September 2016, the father told the parties’ second child, C, to “fuck off” whilst drunk. The father continually abused the children whilst under the influence of alcohol and consistently undermined the mother’s parenting;
f)In September 2016 the father pushed her on one occasion in the presence of the children, slamming a door and yelling “You just wait, you have it coming”;
g)From October 2016, the father began behaving in a frightening and angry manner towards the children and mother including taking the children in his motor vehicle whilst drunk, not telling the mother where they were and then returning them late at night; and
h)On 14 March 2017, the father said to her “One day you might get a knock on the door, so watch out”.
The mother also reports controlling behaviour by the father and describes occasions when he took her mobile phone, changed her passwords and limited her access to money. The mother describes the father standing over her and shouting “I hate you” and “I wish you were dead” in the children’s presence.
Clearly, a number of the allegations by the mother, particularly that the father explicitly or implicitly threatened her life, are very serious. There is only one allegation of family violence that involved a physical altercation.
The father denies ever threatening the mother or having an anger management problem. The father told the family consultant and Dr J that both he and the mother would argue and during those times he alleged that the mother was verbally abusive and denigrating towards him.
I generally accept that, on balance, the mother is reporting accurately words that the father said. I accept that the mother felt that she and the children were unsafe at the date of separation.
Despite the serious verbal threats the father has made to the mother in the past, she is not currently fearful that the father is a threat to her physical safety. The current relevance of the threats made by the father need to be assessed through the prism of the mother proposing, in March 2017, interim orders for the three elder children to spend five nights a fortnight with their father and her current application for final orders.
The mother is also consenting to an order for equal shared parental responsibility. I find that the mother anticipates that she will be able to, as she has in the past, enter into genuine discussions with the father about major long term issues in respect of the children and reach a joint decision with him.
I also accept the mother played her part in many of the verbal altercations. Dr Singh reported that:
Both parents agree that the children have heard them arguing. Interviews with the children confirm that [B] and [C] have both heard their parents arguing. This appears to have had a detrimental effect on both children. [C] experienced hearing her parents fight frightening and this may have exacerbated her level of anxiety and sadness. [B] appears to have found this distressing and this may have contributed to his level of aggression and oppositional behaviour towards his mother.
Both parents are aware of the deleterious effect that their arguing has had on the children. However, it is my opinion, based on my assessment of [the mother and father] that both parents are committed to shielding their children from exposure to witnessing future verbal aggression between them.
It is likely that some of the words said by the father during arguments helped form the mother’s current attitude that the children should not have an equal time arrangement with their father.

The father’s mental health, alcohol and drugs

The mother points to problems with the father’s mental health, claiming that the father has “a long history of mental health problems from early adulthood namely depression and/or bipolar disorder and/or adult ADHD”.
Dr J discussed the father’s past mental health history at part 6.5 of her report. Dr J opined that the father:
… offered a detailed and thoughtful narrative of his life experiences. He had concerns that he had ADHD, but was able to attend and concentrate adequately for the more than 90-minute individual interview. There was no evidence of depressive cognitions, pre-occupations or delusional beliefs. He did not endorse any abnormal perceptual experiences. [The father]’s insight in regard to his mental health and alcohol use was good.
I accept Dr J’s opinion in relation to the father’s mental status. During the hearing, Dr J altered her opinion in relation to the father’s alcohol use.
In the father’s affidavit, he absolutely denied that he had a problem with alcohol. That position was reinforced during his oral evidence and final submission.
The surveillance reports which are in evidence and past medical records of the father would indicate that the father has either deliberately understated his level of alcohol consumption in the past and has sought to conceal it and/or has little insight as to his level of alcohol use.
The father said in his written evidence that between 1994 and 2007 he smoked cannabis approximately once a week. The father’s GP’s notes, dated 14 November 2012, recorded that the father had quit alcohol and cannabis 10 days earlier. The father agreed that he still consumes alcohol, but said in his oral evidence that he has not consumed cannabis since 2012. The father told his GP, as recorded in notes dated 9 November 2016, that the mother had filed for separation and that she felt that she and the children were unsafe with the father. I accept that the father gave his GP this information at that time and that the mother did feel that she and the children were unsafe at the date of separation. The father did not agree that it was reasonable for the mother to feel unsafe at that time. He said that everyone has a different opinion on alcohol, and whilst he thinks one or two beers are okay, the mother does not think so.
The father has been referred to drug and alcohol services on two occasions. The father disputed that he has a drinking problem but agreed that he had not followed through with either of these drug and alcohol referrals. He said he didn’t feel that he needed it but had attended doctors’ appointments in an attempt to keep his marriage together as the mother had concerns about the father’s drinking. Counsel for the mother asked Dr J whether the father’s non-compliance with referrals to attend drug and alcohol counselling was a “serious thing”. Dr J agreed that it was but stated that people are complex and go through different stages when taking steps to deal with substance misuse.
The father said that he attended Dr Q but that this was for his mental health and not for any substance abuse therapy. Dr Q prescribed a number of drugs which the father said were ineffective or ineffective after a period of time and caused side effects.
Dr J initially opined that, in relation to the father, “there is no evidence to support a diagnosis of alcohol use disorder or that his alcohol use has impaired his ability to parent the children”. The father had described to Dr J that his level of alcohol use was that “he no longer drinks to excess… his current use as two to three cans of beer daily”.
The father has had three liver function tests in 2014, 2016 and 2018 and an abdomen ultrasound in August 2018.
As mentioned above, there were issues surrounding the father’s latest pathology result and how long it had taken to be provided to the mother’s lawyers. The order had been made on 9 October 2018, the father had drawn blood on 10 October 2018, and the report was dated 22 October 2018. The father said that he was “flustered” about the dates but thought that it was around 26 October 2018 that he had picked up the report from his GP and said he immediately hand delivered it to his lawyers. The report was received by the mother’s lawyers on 29/30 October 2018.
The court admitted the report of Dr S, forensic toxicologist, dated 30 August 2018 (subject to part of it being excluded) which was tendered by the mother. Dr S has qualifications in the field of analysis of liver function tests and was provided with the father’s 2014, 2016 and 2018 liver function tests as well as an abdomen ultrasound performed on the father in August 2018. Dr S found that the father’s results were “broadly consistent across all three tests” and that “most results are elevated and for GGT, all results were elevated”. Dr S opined that:
In the absence of evidence of an alternate cause, the most likely cause of these elevated results is alcohol misuse in the weeks prior to the sample collection, particularly if corroborated by other evidence of alcohol misuse.

In terms of the father’s ultrasound results, Dr S noted that the father had been found to have a “fatty liver” and that whilst it was possible that the father could have non-alcohol fatty liver disease and that this might have elevated the liver function test results in the absence of alcohol misuse, he opined that fatty liver was also caused by excessive alcohol consumption.
After being asked to consider various pieces of additional information, Dr J did not disagree with anything she read in Dr S’s report.
Dr J revised her initial opinion and expressed the view that the father came within three of the eleven categories of the DSM-5 diagnosis for alcohol use disorder and fell within the “mild” category of that disorder.
Counsel for the father complained that some of the material upon which Dr J made that assessment was historical criminal records and surveillance of the father which reported that he “appeared intoxicated” whilst on a push bike on 26 July 2018. Counsel for the father submitted that this opinion was expressed without proper evidentiary foundation and the court could not make a reliable finding that the father was intoxicated on the bike given the absence of any foundation for it contained in the report. There are two answers to that submission. Firstly, the opinion was from a professional observer. Secondly, the observations were in the context of the father departing a club at 8.08pm with a male friend, who also appeared to be intoxicated and later arriving at the father’s home where they “were heard singing a song loudly as they entered the residence”. These observations add to the weight which can be given to the opinion. In addition, the opinion is expressed in the context of all the other observations the private inquiry agent made of the father’s drinking. I accept the father was intoxicated on 26 July 2018.
Dr J considered that the father had slightly under-reported his use of alcohol. Although not all of the surveillance reports referred to in the affidavits filed by the mother from R Group were annexed, counsel for the mother put to Dr J (without objection) that the father’s level of drinking amounted to 24 schooners over nine days, that those days were on one or two days each week and that the maximum number of drinks he consumed on one evening was seven.
There is no surveillance report of the father drinking whilst he had the children in his care. This observation is consistent with what Dr J said at lines 1826-1829 of her report that:
….All four children are securely attached to both parents with no observed evidence of fear demonstrated towards the mother or the father. When the two older children were asked specifically, both denied that either of they [sic] had observed their parents intoxicated or drinking alcohol to excess….
Dr J also recorded at line 1253 that, “When asked [B] said that he had never seen his mother or father drinking a lot of alcohol, and that neither parent did anything bad such as physically hurt each other or the children”.
To the date of the hearing, the father showed absolutely no inclination to seek professional assistance for his disorder, notwithstanding, several opportunities to do so. During the hearing, the father said he would now seek professional assistance for his disorder.
I accept Dr J’s evidence that the father currently has an alcohol use disorder (mild severity) and her opinion that (whilst cautioning that she was not a haematologist) if the condition deteriorated it would likely be very debilitating for the father and potentially life threatening.
Dr J agreed with counsel for the father’s suggestion that the most likely trigger for a deterioration in the father’s disorder would be in a period of stress. It was put to Dr J and Dr J accepted, that the period leading up to the final phase of this litigation was a period of stress, yet there was no evidence that the father’s disorder had deteriorated. Whilst Dr J accepted that that was so, it is beside the point. There inherently is a risk that the father will suffer periods of stress in the future and that that may well trigger a deterioration in his disorder. The father could ameliorate the risk if he makes good on his now expressed intention to seek treatment. The mother is sceptical about the father following through on that expressed intention. I accept that there is a risk, given the father’s past record, that he will not seek any professional assistance and in those circumstances, his disorder could deteriorate. If the father’s condition deteriorated it would affect his ability to function as a parent and would constitute a significant change from the circumstances that presented themselves at trial.

Incident on 28 August 2018

On 28 August 2018, shortly prior to the hearing, an incident occurred when the father was dropping C back at the mother’s home at changeover. Exhibits 6, 7 and 11 are statements made by the mother, the maternal grandmother and the father about this incident, respectively. Initially, the mother was at a strata meeting and the other children were in the care of the maternal grandmother at the mother’s home.
There are different versions as to what happened.
A summary of the father’s version is as follows:
When he attempted to drop C at the mother’s home, C became distressed and told him that she did not want to be left in the maternal grandmother’s care. She refused to leave his car. Upon the mother’s return, C still refused to leave his car and the father then got into the car and proceeded to reverse down the mother’s driveway. He stopped there so that he could speak to C in an attempt to persuade her to go inside but then received a text message from the mother saying “Please bring C back in 2 minutes or I am calling the police. Your care finished at 5:30 pm”. He became concerned that the mother would call the police so he drove C to Suburb F police station. After the father and C spoke with a police officer there, the father drove C back to the mother’s home. Upon their return, the mother and C had a conversation in the car. The father does not doubt that C said to her mother “Dad said you’re trying to take us away from him and he will only have 10% care”. However, the father said at no stage did he discuss the court case with C. Eventually, the father said he coaxed C to return to the mother’s home.
A summary of the mother’s version is as follows:
She returned home after receiving a text message from the maternal grandmother that C had not yet arrived home with the father. She called the father and asked him to bring C back but when the father did return, he drove into her driveway and refused to open the car doors. The father said nothing to her but simply reversed and drove off with C still in the car. She then tried to call and text the father a number of times with no response and then called a non-emergency police line for advice. She then received a call from a police officer from Suburb F Police Station who informed her that she was currently with C and the father. The police officer said that the father “didn’t want to break the orders but he couldn’t return C to you because she was so upset”. The father subsequently called and told her that he would return C. Upon their arrival, C would still not leave the car and that when she asked C why she was so upset she replied that “Dad told me that you are taking him to Court next week to take us away from him and that he only has a 10 per cent chance of seeing us”. The mother says the father denied saying that to C and C, in the mother’s presence, reassured him that he did.
A summary of the maternal grandmother’s version is as follows:
When the father and C first arrived, she walked out to the garage to find C outside the car “cowering” behind the father upset and crying. The father told her that C would not come inside unless the mother was home. She was surprised by the father’s explanation as she has always had a very good relationship with C and could not understand why she reacted in this way. After a quick exchange, the father then said to her that he and C would sit in the car and talk until the mother returned home but then after a few minutes she looked and found them and the car gone. Subsequently, the father and C returned and she overheard C tell the mother words to the effect “Dad said you’re trying to take us away from him and he will only have 10% care”.
I accept that the father drove off without explaining to the mother what he thought the problem was and that he did not immediately respond to her calls or message. I accept that this must have caused the mother distress and that she was justified in seeking assistance from police. The father did not accept that his decision to take the child to the police station was unreasonable. I find that the father’s primary motivation for doing so was a concern that he might be the subject of proceedings for breaching the current orders and at a time when the final hearing was imminent.
Whilst there is some difference in the versions of the mother and the maternal grandmother as to whether or not C reported that her father had told her that he had only a 10 per cent chance of seeing them or that the mother was seeking that he sees them only 10 per cent of the time, I accept that C said to both of them words to the effect that her father had told her that her mother was trying to significantly reduce the amount of time she and her siblings spent with their father. Whatever information C had obtained about what the mother was seeking in the imminent final parenting hearing, it had greatly alarmed C who, as set out above, has a Generalised Anxiety Disorder which includes a fear of not being able to see her father. It is likely that at least, in part, what made C anxious (having time restricted to her father) came from something the father had said to her. Counsel for the mother asserts, and I accept, that the father tried to shift the blame onto a police officer. I find that the father did not acknowledge the inappropriateness of his decision to take the child to the police station in the first place, although, I do accept that the father did show some insights as to how his behaviour during the incident had impacted upon the mother and the child.
I am of the view that this was a one-off incident which was not well handled primarily by the father, but which both parents ultimately managed to resolve in a child focused way.

The approach in children’s cases

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

Statutory considerations

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))

The children currently have a meaningful attachment with both their parents and will benefit from having a meaningful relationship with both their parents. A meaningful relationship between the children and both their parents would be sustained on either of the parties’ proposals.

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

I find that the mother does not, in fact, currently fear that the father might perpetrate family violence upon her.
Whilst the mother does not assert a need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, under her parenting proposal, she believes there is a risk to the children if they move to their father on a week about basis. The mother’s case is that that is not in the children’s best interests.
I find that a change that would increase the time the children spend with their father would not expose the children to a risk of abuse, neglect or family violence.

The additional considerations

Children’s views (s 60CC(3)(a))

Dr J reported that the two elder children who were then 10 and 8, expressed a genuine wish to spend equal time with both their parents. B had told Dr J that he would like to have equal time with both his parents, that it would be less confusing than the current arrangements and that “He advised that he missed his dad and that he felt that he should be allowed to spend more time with him. He also said he would like it if his parents stopped talking rudely about each other”.
Dr J reported that C stated, “that she would like to spend equal time with both parents”. In addition, she told Dr J, when seen with her mother, that it “was not fair we don’t see Dad enough”. Further, it was reported that C wanted E to be allowed to spend the same amount of time as her siblings with the father and that she believed “that being separated from her siblings and father made E feel very sad”.
In response to the Independent Children's Lawyer question about how much weight should be attached to C’s views, Dr J said that she felt C “genuinely gave consideration” to her views and gave quite an “articulate description” as to why she thought the current care arrangements were unfair and confusing.
Dr J did not see any evidence that the father had coached the children prior to the interviews with her. The mother, in fact, did not assert that the children had been “coached” and I accept the genuineness of the expression of the children’s views and their responsiveness to their father as described by Dr J.
Dr J reported that D struggled to articulate his views and that is understandable given his age and diagnosis.
I consider that the expressed views of the two elder children should be given some weight, particularly, when viewed in the context of the special needs of the children (discussed above) and the observations made by Dr J regarding the relationship between the children and each of their parents (discussed below).

Relationships of the children with the parents and other persons (s 60CC(3)(b))

Dr J observed the children with their father over about six hours. Her observations are set out at part 7.1 of her report. The interactions between all the children and their father were filled with warmth and respect and they felt safe and emotionally connected to him. He demonstrated an ability to appropriately soothe their distress and provided guidance and limit setting individually and to all four together.
Dr J observed the children with their mother over a period of approximately three hours and her observations are set out in part 9.1 of her report. Dr J observed that all four children presented as more subdued and less playful with their mother than with their father despite being more familiar with the surroundings and the process. The mother had a more directive style than the father and she encountered significantly more resistance than the father when she asked the children to meet with Dr J.
As indicated, the children have a secure attachment with both their parents.
The relationship between the children and each of their parents has some demonstratively different characteristics which are a function of the parents’ different parenting styles as discussed.
The children have a close relationship with each other. They also have close relationships with their grandparents and extended family.
The children spend regular and meaningful time with their paternal cousins who live near the father’s residence and are of similar ages.
Neither of the paternal grandparents believes that the father has any problem with alcohol and they do not hold the mother in high regard. That potentially could lead to difficulties in meaningful communication between the mother and the paternal grandparents in the future should they be involved in any significant care of the children if the father became unavailable. That difficulty is ameliorated to some degree as a result of the parties’ agreement to an order that if one was not available the other should be given first option to look after the children.

The extent to which each of the child’s parents has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))

I deal below in more detail with the complaints the mother has made about the father’s involvement in dealing with the professionals who assist the children with their special needs and the overall ability of the parents to communicate and cooperate in respect of their issues.

Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))

Counsel for the father submitted that the evidence does not support a finding that the father is currently financially abusive to the mother as she alleges. Contained in Exhibit 15 are a number of text messages exchanged between the parties which include one example of the father agreeing to pay for half of C’s birthday party.
On 30 December 2016, the mother registered for child support after she says the father refused to pay or contribute to the children’s expenses. The father was assessed to pay her an amount of $100 per calendar month. The father refused to pay that amount saying words to the effect of “I am not going to pay you any child support. You will have to take me to court”.
From September 2016 until the date of her affidavit on 12 June 2018, the mother has only received an amount of $2,333.51 for the four children from the father. At paragraph 166 of her affidavit, the mother says that the father has not been paying child support due to his declared income only being $20,000, with the exception of one-off payments in March 2018 of $452.24 and two payments in May 2018 of $559.19 and $126.33.
In addition, despite having paid her no child support, the father refused to buy C an iPad for school saying “You’re the primary carer, you do it” and also “refuses to help pay for cost of school shoes.” The mother says she feels intimidated approaching the father about these issues and that the father has “continued to bully me financially”.
This history does not reflect well upon the father.
The mother has seemingly not sought to test the father’s income or earning capacity in the context of an application for departure from the administrative assessment.

Likely effect of any change in the children’s circumstances (s 60CC(3)(d))

The father accepted that the children are doing well under their current regime of time with each parent.
It is an important part of the mother’s case, given the history of her primary caregiving and the concerns arising from the father’s disorder, that the unknown effect of the changes proposed by the father should be a weighty consideration.
I accept there are some inherent risks in changing to the arrangement as proposed by the father and the Independent Children's Lawyer but they need to be weighed against the positive advantages of doing so.
All agree that as a minimum, the increase to five nights a fortnight as proposed by the mother is a logical and sensible change to prevent excessive changeovers produced by the current orders where the children spend afternoons after school with their father.

Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))

The issue about whether the father’s proposal is reasonably practicable is discussed below.

The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))

The children are currently well cared for primarily by their mother.
The mother has been the person who has been the children’s primary carer and has been more available to them during their lives. She has attended to their physical, emotional and practical needs more than the father. The mother says that whilst the father would assist in the care of the children in his spare time, this was “always with a drink in his hand”.
In many respects, the needs of the three older children are much greater than average. The mother is particularly attuned to the special needs of the two boys who have an increased need for professional intervention. The mother has been always the person attending to and facilitating that intervention. The father has only played a minor role to date in that specialised professional treatment but I have no doubt he fully supports them having that treatment.
Apart from the incident on 28 August 2018, neither party alleges non-compliance with the current orders and there have been smooth transitions between the parents.
I accept that the mother has demonstrated that she is committed to maintaining a meaningful relationship between the children and their father, notwithstanding, the reservations she has about his ability to co-parent with her in a week about arrangement. Whilst the father has asserted that the mother’s alleged resentment of him could potentially result in conduct that might diminish the relationship between him and the children, I find that the mother’s inclusive involvement of the father has been exemplary and the mother has demonstrated that she has included the father in the children’s activities including special events of significance to them.
The mother’s experience during the marriage has left her with a fear that the father’s disorder and behaviour could deteriorate and this has caused a consequent distrust of the father’s parenting capacity. I find that the mother’s attitude is genuine and is founded on her perception of the father’s difficulties with alcohol and her experience of the father’s behaviour whilst under the influence of alcohol when the parties were together and since separation. The mother’s attitudes have a realistic foundation.
During final submissions, counsel for the father characterised the mother’s attitude to the father as “unwaveringly critical”. Reference was made to paragraphs such as 181 of the mother’s affidavit which is in the following terms:
[The father] does not have the basic parenting skills required to look after the children for any lengthy period of time. He simply does not have the basic knowledge of what is required to care for them as this is something that has always been my sole responsibility. By way of example [the father] still not [sic] do homework with the children. When I ask [the father] to attend to the children’s homework, he refuses saying to me words to the effect of “No, you are the primary carer, you do it.”
It was submitted that the mother’s attitude represented a significant factor weighing in favour of the father’s week about proposals. Counsel for the father asked Dr J whether there was any risk to the children if the mother continued to hold negative views about the father’s parenting capacity. Dr J opined that it could potentially pose a risk if communicated either directly or indirectly by the mother as it would undermine the safety the children feel in their father’s care. However, she did add that even though the mother currently holds negative views of the father that has yet to impact the children’s wellbeing during the current arrangement which has been in place for 18 months.
It is obvious that there is a level of conflict between the parents. The two older children are aware of it. At line 1205 of her report, Dr J records that “B said that it is very difficult because his mother talks about his father and it feels like they are fighting. When asked if his father talks about his mother, B agreed that his father did sometimes as well.” B is also recorded as saying “mum becomes very angry and calls dad stupid and an idiot” and at line 1210, Dr J says that B “explained that his mother often tells him things and said that, “she tells me not to tell dad, but I want to tell dad and then she gets very angry with me”.” Finally, at line 1374, Dr J reported that C, “like B, described feeling trapped between both parents at times when they said unkind things about each other.”
Counsel for the father submitted that the mother had not displayed a capacity to understand how her “discussions” with the children about their time in their father’s care might impact upon them but that submission must also apply to the father.
Overall, each of the parties is a good parent. Dr J reported at lines 1535-1552 that:
Both [the mother and father] were able to demonstrate that they nurture and protect their children appropriately; that they are appropriately emotionally involved with each child, though [the mother]’s relationship was less overtly warm and affectionate; that they provide their children access to developmentally appropriate cognitive and social stimulation and that are able to provide guidance and limit setting. Though [the mother]’s approach to limit setting was less successful and [the father]’s less rigid approach more successful. In regard to the latter, they appeared to have somewhat different approaches to limit setting and differing parenting styles, which are discussed in more detail in Q1.2.3 below.
The children had a different response to each of their parents. Overall, all the children presented as less exuberant and less calm and happy during the assessment with their mother as compared to with their father. I note that this opinion is limited by the artificial nature of the assessments overall, which occurred over single sessions.
I also note that each child, with the exception of B provided a positive narrative of their relationship with [the mother], and that despite their less compliant demeanour none of the children presented as unhappy or fearful in the presence of their mother.
In relation to the different parenting styles, Dr J opined at lines 1671-1685 that:
[The father] appears to have an authoritative parenting style, which allows him to create and maintain an appropriate level of discipline, guidance and nurturing to all the children. His occasional permissiveness for example, when he allows the children to sleep in his bed at night, appears to be a consequence of the current context, and care arrangement rather than his dominant parenting style. Specifically, as the children are with him over the weekends, the need for a more rigid structure is perhaps decreased and he is inclined to indulge them, because they miss each other and wish to maximise the time spent in each other’s company. He presents as being nurturing, supportive and present for all four of the children.
[The mother] also appeared to have an authoritative parenting style, although the iteration of this style is individualised to accommodate her more structured and action orientated personality. While [the mother] at times appears to adopt a more authoritarian approach when B or D is externalising their distress in an oppositional manner, this also appears to be contextual rather than her dominant parenting style. [The mother] presents as being nurturing, supportive and present for all four of the children.
There is an assertion by the mother that the father has involved himself in irresponsible parenting behaviour including him undermining the mother’s authority and involving the children in parental disputes.
The mother, in her evidence, gave examples of incidents which she says illustrate the father’s inability or unwillingness to cooperate with her about the parenting of the children and included that:
a)The father has not been involved in school meetings where the boys’ programs and learning are reviewed twice per annum and assistance and support from the school are assessed;
b)In May 2017, the father went to car racing with the three elder children and excluded E from that activity;
c)Between May 2017 and July 2017, the father failed to turn up to B’s first appointment with the psychologist nor to the next one and arrived late at one subsequent appointment;
d)In September 2017, the father went overseas and did not spend time with the children;
e)When B was in hospital with suspected appendicitis in September 2017, the father did not inform the mother for about four hours;
f)In November 2017, for three weeks in a row one or other of the children did not go to school when in the father’s care on a Monday (but that that ceased after the mother confronted him about it);
g)In November 2017, the father failed to come to D’s paediatric appointment;
h)In January 2018, the father refused to buy C an iPad for school and initially refused to take C to dancing on days when C was with him, only subsequently agreeing to do so;
i)In April 2018, the mother raised with the father her concerns about the father’s lack of involvement in the children’s homework;
j)There was some confusion in relation to which parent had the responsibility for the boys’ speech and occupational therapy appointments with the father not turning up to B’s appointment with the paediatrician and failing to take C to an orthodontic appointment which the mother had organised the previous month;
k)In April 2018, the father attended his first learning support meeting at school. In that month, the father also incorrectly complained that he hadn’t been given details of a holiday involving the mother and the children;
l)In May 2018, the father did not show up to D’s appointment with his paediatrician;
m)In May 2018, the father retained C’s homework books resulting in her becoming stressed and worried about handing homework in late because she was at her mother’s home; and
n)In June 2018, the father administered D’s new medication two hours late.
The father denied failing to involve himself in the care of the children and said that he involves himself in the children’s school, medical appointments and extra-curricular activities. He gave an explanation for the two missed appointments.
As mentioned elsewhere, the mother’s complaints have to be looked at in the context of a number of text message exchanges between her and the father which demonstrate their ability to cooperate. This includes a message sent from the father to the mother which reads, “thanks for the call, it was nice to have a constructive conversation. tell the kids I said [love heart emoji]”.
The mother also acknowledged that the father, in August 2016, started to take over the children’s morning routines in preparing breakfast and taking the children to school.
All these assertions by the mother cumulatively emphasise the part she has played (and I have no doubt will continue to play) in matters relating to the health and education of the children. Both parties are consenting to an order for equal shared parental responsibility. That means the mother has an expectation in the future that the father will be actively involved in decision making about the children’s health and education. I find the father has the capacity for a greater involvement in the minutiae of these matters which are important for the children.
The mother raised the issue of the father’s possible unavailability to look after the children before school (including supervising homework) or to take them to their various medical/other commitments in circumstances where he works full time six days a week and must attend to emergency work at short notice. The father said that whilst this use to be the case, he now employs subcontractors who have been trained to be able to handle emergency situations which he use to have to attend himself in person.
I discuss below whether the father has the capacity to implement his proposal for equal time and whether that proposal is reasonably practicable.
As mentioned above, the father exaggerated his involvement with the older children’s school. Mr T was not B’s 2017 teacher, but in fact, was taught in that year by Ms U and Ms V. The father agreed that he had incorrectly identified the teacher, saying that he got mixed up. Mr T taught B in year 2 and taught another of the parties’ children in 2017.
The father’s Response, filed on 9 July 2018, sought in the alternative to equal time that the children be with him nine nights a fortnight. The alternate application was not a bona fide application; was nothing more than a forensic tactic and was not an alternate proposal at the time of his interview with Dr J. It did nothing to help his parenting relationship with the mother.

The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))

The nature, diagnosis and special needs of the three elder children have been outlined in detail above. Both the boys suffer from ASD and ADHD and Dr J opined that C meets the criteria for Generalised Anxiety Disorder. Dr J also opined that the eldest child also meets the criteria for oppositional defiance disorder. The mother has had the primary role of ensuring the children access appropriate professional services but I find that the father fully supports the children accessing those services.
C has displayed certain vulnerabilities, particularly arising from the burden she feels from attempting to be even handed when dealing with both of her parents.
There is little indication that the children have been adversely affected by their experience of parental conflict during the time the parties were living together except that part of C’s anxiety that arises from her memories of her parents fighting.
Both parties agree that E is of an age where she becomes anxious and unsettled at being separated from her mother for extended periods.
The mother proposed that E spend time with the father in steps progressing from two nights per fortnight (at present) to five nights (to match the time she proposed the father spend with the three elder children) by the time E commenced school in 2020.
Because of her age, E has been parented differently from the other children. Dr J did not accept that E’s behaviours, as described by the mother, warranted anything other than a structured introduction so that E’s time with her father eventually built up to the same time as her siblings. Dr J opined that it was likely that E’s anger and other behavioural reactions could have, in part, been caused by a feeling that her siblings were being treated differently to the way she was being treated.
The mother disagrees with Dr J’s opinion that that transition could be accomplished within a period of six months.
If the father’s proposal was accepted, Dr J was satisfied that E was mature enough to manage an equal time arrangement provided that the introduction of that arrangement was staggered.

If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))

Not applicable.

Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))

The issue of family violence has been discussed above.
Whilst Dr J, at Q1.2.6 of her report, referred to the mother’s account of family violence, she did not indicate whether she brought it to account when formulating her recommendations. Dr J, having referred to the mother’s assertions of family violence, commented that it was no longer an issue between the parties as they had limited face to face contact. The mother submitted that it would not be realistic to expect her to be able to negotiate with the father in an equal shared care arrangement in circumstances where the father has subjected her to verbal abuse.
Counsel for the mother submitted that Dr J had not considered how the mother, as a past victim of violence at the hands of the father, would be unable to deal with him and would feel powerless when in an equal or primary care giving role. Counsel for the mother did not, however, ask Dr J any questions about that asserted lack of consideration.
I have found the mother does not currently have a fear for her physical safety and will have the capacity to co-parent with the father.
Nonetheless, as earlier indicated, I accept that the mother’s previous experience of the father leaves her with a justifiable fear and distrust of the father’s ability to implement an equal time arrangement that would be in the best interests of the children.

Likelihood of order leading to further proceedings (s 60CC(3)(l))

The mother submitted that implementing the father’s proposal would, in all probability, lead to further parenting litigation between the parties given the inevitable deterioration in the father’s health. I am unable to find that that deterioration would be inevitable. I accept, however, it is a risk.

Any other relevant fact or circumstance (s 60CC(3)(m))

Not applicable.

Equal shared parental responsibility (s 65DAA(1) of the act)

On 2 March 2017, an interim order was made that each party have equal shared parental responsibility for the children. At the hearing, both parties sought a final order for equal shared parental responsibility.
Given that I propose to make an order for equal shared parental responsibility by consent, s 65DAA(1) of the Act is enlivened. Section 65DAA(1) provides that I must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Accordingly, I must “consider” whether the children spending equal time with their parents, as proposed by the father, would be in their best interests and reasonably practicable and if not, whether spending substantial and significant time with their father, as proposed by the mother, is in their best interests and reasonably practicable.
In this case, counsel for the father submitted that the court must give “proper realistic and genuine consideration” to the alternatives put by the parties, relying on the meaning given to the word “consider” in Bondelmonte v Bondelmonte (2016) 259 CLR 662 (“Bondelmonte”).
The meaning of the word “consider” has attracted discussion since the High Court’s decision in Bondelmonte (see Egan & Egan [2017] FamCA 170; Gallimore & Gallimore [2018] FamCA 249; Tibb & Sheean (2018) 58 Fam LR 351 (“Tibb & Sheean”). In Tibb & Sheean, the plurality made the observation that the High Court’s statement in Bondelmonte about the meaning of the word “consider” was “not there in issue” and were then seemingly critical of the meaning given by the High Court because “A definition or interpretation of the meaning of “consider” could not reasonably include a derivation of the very word sought to be defined or interpreted”. The plurality goes on to make the same criticism of the statement made at [64] of the Full Court’s decision in Goode & Goode (2006) FLC 93-286 (“Goode”), in that the word “consider” means “a consideration tending to a result, or the need to consider positively the making of an order”. The plurality in Tibb& Sheean found at [82] that the obligation of a trial judge to “consider” in s 65DAA is the obligation created by the ordinary meaning of the word “consider”, namely, “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take notice of” (see Aboriginal & Torres Strait Islander Affairs, Minister for & Norvill v Chapman (1995) 133 ALR 226 at 462 (Black CJ) quoted (but rejected) in Goode at [60]). It seems that the Full Court in Tibb & Sheean have, without explicitly saying so (see Nguyen v Nguyen (1990) 169 CLR 245 at 268-270), decided that the Full Court was plainly wrong in Goode in giving the word “consider” the meaning that it did.

For more abundant caution, I shall both “consider” and also adopt the submission by counsel for the father and give “proper, realistic and genuine consideration” to whether or not an equal time order should be made on the father’s proposal.
I shall first consider whether the father’s equal time proposal is reasonably practicable.

Reasonable practicality

How far apart the parties live from one another

The parties live in very close proximity to one another (being 5 – 10 minutes apart). They both live close to the children’s school. There is no issue that the distance between the parents would mean that the father’s proposal was not reasonably practicable.

The parents’ current and future capacity to implement an arrangement for the children spending equal time with each of the parents

The current orders have been in existence since 2 March 2017. During school term, those orders require six changeovers (in relation to the older children, three out of the six do not require the parents to interact, whereas, in respect of E, there are five interactions out of six). The children have, by and large, moved successfully between the households since the order was made.
Most of the changeovers happen at school and the parties have now agreed to an order being made that for any changeover that cannot take place at the school, then the parent who is to have the children will travel to the residence of the other parent to pick them up. There is no suggestion that a neutral changeover location is required.
Exhibit 15 contains examples of post-separation text messages between the parties. Those text messages include making arrangements as to joint birthday parties for some of the children and demonstrate the current capacity of the parents to implement ordinary day to day parenting arrangements.
The children’s possessions have successfully moved between the households since 2 March 2017. The bag system, containing the children’s medication, invitations and other information which the parties have implemented seems to work well. The parties have shown flexibility in changing pick up and drop off points depending on what is necessary or convenient from time to time.
The difficulty with C’s return to her mother’s care on 28 August 2018, is dealt with in some detail above. As indicated, I am of the view that this was a one-off incident which was not well handled primarily by the father, but which both parents ultimately managed to resolve in a child focused way.

The father’s work commitments

The father’s evidence is that his work commitments are largely during school hours (8am – 3 or 4pm) and he, therefore, has sufficient flexibility to enable him to be able to care for the children on a week about basis.
The father gave evidence about the availability and use by him of subcontractors. He asserted that he now has a number of people available to him who are trained to attend to emergency callouts that he has previously had to attend. Specifically, he said at paragraph 180 of his affidavit that “I have now consulted with another tradesman who operates his own practice who advised that he would step in for any of those urgent contracts in the event that I was called away to be with the children or required to be with them”.
Counsel for the mother pointed out that at paragraph 55 of the paternal grandfather’s affidavit, when describing his understanding of the way the father would organise his work, there was no mention of subcontractors. However, I do accept the father’s evidence.
Since March 2017, the father has demonstrated the ability to be available for the children each Tuesday afternoon, alternate Fridays and Monday mornings. The mother’s proposal implicitly concedes that the father is available on every Tuesday and every alternate Friday afternoon, Saturday, Sunday and Monday morning.
The surveillance reports establish that even when the father does not have the care of the children he is often still at home (or at Suburb G club) between approximately 3 to 4pm.
The father has the support of the paternal grandfather with whom he lives and his mother who is available and willing to assist whenever required. The father did not set out a clear plan as to how he was going to involve his parents in assisting him in caring for the children.
The mother submitted that based on the father’s financial statements (filed in the context of the property application), he would be unable to properly support the children if they were with him on a week about basis. The difficulty with that submission is that the mother’s financial statement (also filed in the context of the property proceedings) would, on its face, lead to a similar conclusion. The mother’s explanation is that she is frugal and cuts her cloth consistently with her income.
Neither party was significantly tested in relation to their current financial circumstances.
The father is currently living in the home of the paternal grandfather. I do not have the financial statements of the father’s business. I am unable to make any assessment as to what benefits the father draws from that business or what profit the father is otherwise making from the business. The father has indicated that if he has a week about arrangement he will load his work into the weeks that the children are not with him.
The mother, with the monies that she has received from the property settlement, has been able to obtain new accommodation for herself with borrowings from a financial institution. It is likely the mother is getting by on an income that is probably less than the father’s real income.
I conclude, on balance, that neither party’s financial statements properly reflect their ability to get by on a week to week basis on the income that they are generating.
I do not accept the mother’s submission that the father would not be able to financially support the children if they were to live with him on a week about basis.
In the current five night a fortnight arrangement, there has been a demonstrated capacity since 2 March 2017 for the parents to work cooperatively together to provide for the children’s needs and to assure that the children attend their various activities. On balance, it can be predicted that that capacity will continue.
The mother submitted that there is a significant difference between looking after the children five nights spread out over a fortnight and an equal shared care arrangement. The mother’s fear and distrust of the father and her lack of confidence that he will handle a week about arrangement is genuine and has a reasonable basis caused by the mother’s lived experience of the father’s past behaviour and his continuing medical condition.
Overall, I conclude that the father has the current and future ability to implement the week about arrangement proposed by him.

Current and future capacity to communicate with each other and resolve difficulties that might arise

There is no evidence that the parties have had difficulty in communicating with one another since March 2017. Exhibit 15 demonstrates that both parents have the capacity for child-focused communication. The mother submitted that communicating in a week about arrangement will be more difficult for her and that it will need the parties to be able to negotiate at a different level in order for it to work for the children. She does not have confidence that she can do so. Overall, I do not share her pessimism.

Impact of an equal time arrangement on each of the children

Moving to an equal time arrangement will be a change for the children. As discussed above, it is the mother’s case that she believes this change involves risks for the children and I accept that that is so. This, however, has to be balanced against the advantages to the children of doing so.

Other relevant matters

There are no other relevant matters to which I should have regard in considering whether or not the father’s proposal for equal time is reasonably practicable.

Is an order for equal time in the children’s best interests?

Dr J, in her report, recommended an equal time arrangement for all four children. She maintained that recommendation at the end of her oral evidence with the proviso that the proposal in relation to E should be introduced on a graduated basis over a period of three to six months. She warned that the mother’s proposal for E to commence spending the same amount of time as the other children with the father in 2020 would be detrimental for her. Dr J opined that it would potentially result in long term separation between siblings and perpetuate the differences in their relationship with the father. Dr J confirmed that she had taken into account the context in which the interviews took place. She opined that the week about arrangement would help the mother’s relationship with the children as she will no longer be the parent undertaking the “mundane activities”.
As indicated, there is no issue that the current interim arrangements needs to be reconfigured. Each of the older children reported that the number of changeovers under the current orders were “confusing” (even with the assistance of a whiteboard which the father uses to emphasise the routine of long and short weeks). That is particularly so given the acknowledged difficulties arising from the conditions with which the three elder children suffer. Both of the parties’ proposals simplify the current arrangements. Counsel for the father submits that a week about proposal would enable the children to have a simple, predictable regime which could link in with their school weekly roster and enable the children to start and finish their homework with the one parent. Given the nature of the disorders suffered by the three older children, any increase in routine and predictability will be advantageous for the children.
I have accepted that the mother has a genuine and reasonable concern that the father will not be able to implement a proposal for equal time given the problems that he has had with his behaviour and alcohol. It is the mother’s case that the father’s capacity to implement an equal time arrangement in the future is compromised by the disorder from which he suffers and which is currently untreated. It is the mother’s case that it is a risk to significantly increase the father’s responsibility for the children at a time when the progress of his disease is uncertain.
The father gave evidence that it is his current intention to seek immediate help for his diagnosed alcohol dependence disorder. However, the father has had a previous history of seeking referrals for help with his alcohol consumption and then not following through with attending those to whom he had been referred. His assertion on this occasion is that this time he believes that he needs this help whereas he previously only went to obtain referrals for assistance because the mother pressured him to go. Whilst it is hoped for the father’s own health he has heeded the expert evidence, given the father’s past history, I am cautious about accepting the father’s assurances that he will now genuinely seek assistance for his problem with alcohol.
Counsel for the father asked Dr J whether her new diagnosis of the father’s disorder changed her opinion on the father’s capacity to parent. Dr J opined that it was still her view that the father’s alcohol disorder had not affected and currently did not affect, his ability to parent or work. Whilst she caveated this statement with the fact that it was mostly based on self-reporting, she also said she had found no evidence in her interviews and observations that the father’s alcohol disorder was affecting the children’s relationship with him.
As mentioned above, when asked about the potential risks of a mild alcohol disorder, Dr J opined that it could potentially become more severe (such in the case of stressful life events and pressure that resulted in increasing his consumption) and this could impact on his health and ability to work and care for the children.

Conclusion about the arrangements which are in the children’s best interests

The mother’s proposal is for the three elder children to commence five nights a fortnight with their father immediately and that E should graduate to five nights a fortnight over the seven month period. The father proposes week about time for the three older children and that E graduates to week about.
There are different parenting styles in each household and somewhat different approaches to limit setting. Dr J assessed the father’s less rigid approach as being more successful. As earlier indicated, each parent is described to have an authoritative parenting style although the mother at times can adopt a more authoritarian approach. The three older children all have special problems. Whilst the parents have differing parenting styles, the father’s approach to parenting offers advantages to the children that will be beneficial in managing those problems in the future and particularly, those of the boys.
I find that commencing term 1 2020, it is in the children’s best interests to spend equal time with each of their parents.
I find that it is in E’s best interests to immediately commence five nights a fortnight with her father in the configuration suggested by the mother in relation to the elder children.
I find that it is in E’s best interests and the interests of the other three children, that they not be separated during school term and move as a unit. For that purpose, I am going to agree to the mother’s proposal of five nights a fortnight but only until the end of 2019, after which time, E will be at school and all children can progress together to an equal time arrangement.
E should graduate to half school holidays by spending only five nights not seven with her father during terms 2 and 3 of the 2019 school holidays.

other proposed orders

In relation to changeovers, they will ordinarily take place at school. In circumstances where that does not happen (primarily during school holidays), the parties have agreed that the parent who is to have the children is to collect them from the other parent and failing agreement, at that parties’ residence.
The parties seem to have mutually agreed on a somewhat fragmented arrangement in relation to term 4 school holidays. I will make orders in accordance with the structure that both parties are suggesting. They can, of course, agree on each of them having larger block times if that facilitates a more extended holiday away with the children during the longer school holiday period.
The Independent Children's Lawyer suggested an order that in the event that one party is unable to care for the children when the children are due to be in that party’s care, then the other party shall be given first opportunity to care for the children. Both parties agree that an order in those terms should be made.
I note that there was some disagreement between the parties as to which alternate weeks each party would have during school term. The mother currently has employment which requires her to be at her place of employment each alternate Saturday. The father, on the other hand, says that might clash with the time the children play with their cousins with whom are only available on each alternate Saturday. Balancing those two competing interests, it is more important that the mother be able to maintain her employment than the children be able to regularly play with cousins whom they will be able to see at other times. In the event that there is actually a conflict in the scheduling of time, the children should be with the father on the weekends that the mother is working on alternate Saturdays.

Order sought about the father’s use of alcohol

The mother seeks a final order to restrain the father from consuming alcohol at any time the children are in his care as well as for the 24 hour period immediately prior to that time.
A middle course is suggested by the Independent Children's Lawyer and that is for the father, 24 hours before he has the children and during the time that he has the children, not consume alcohol to a level that would mean that he would be unable to legally drive a motor vehicle. The father opposes that order, notwithstanding his evidence that:
a)He would have no difficulty in complying with it;
b)He doesn’t drink when he has the children; and
c)His motor vehicle is his “tool box” (by which he means the way he is able to earn an income).
It is the mother’s case that the possibility of the father consuming alcohol presents as an unacceptable risk to the children whilst they are in his care.
The father disputes that there is an unacceptable risk or that such an order is in the children’s best interests.
Counsel for the father highlighted the fact that the mother’s application for this order comes with a confidence on the mother’s part that the father would not be able to adhere to it. The issue then arises as to how the mother would become aware that the father had breached the order. That could take place obviously through the personal observations of the mother or other objective evidence. However, counsel for the father argued that the order will only be an invitation for the mother to interrogate the children in relation to the father’s alcohol use. Counsel for the father pointed to C’s vulnerabilities/personality and submitted that to make that order would place C at particular risk.
Counsel for the father asked Dr J about whether the injunction would pose a risk of the mother asking the children to report to her if the father was consuming alcohol in their presence. Dr J said that there was a potential risk, however, that the risk of an alcohol disorder was also concerning.
I accept that it is clearly likely that the father would not share with the mother any details if his alcohol use disorder deteriorated.
The current orders that have been operating since 2 March 2017 do not contain the injunction against the father which the mother now seeks. Counsel for the father emphasised the fact that the children have not come to any harm as a consequence of the father’s alcohol misuse and submitted that the father has demonstrated a capacity to moderate his drinking whilst the children are in his care.
The father has not been charged with any drink driving offences in the past and one of the mother’s private inquiry agents established that the father took the precaution of riding a push bike from a drinking establishment. I accept the father has a keen awareness of the need not to drink and drive. I accept that he would be able to moderate his drinking during the period of time that the children are with him and 24 hours immediately before they were.
Having considered all the arguments against making an order and particularly, the risk that the mother might interrogate the children, I find they are outweighed by the risks associated with the father’ use of alcohol.
Counsel for the father also objected to the proposal of the Independent Children's Lawyer on the basis that there was no sunset provision in that order. Given the father’s condition, it is not appropriate to place a sunset clause in the order. It should be an order that has a continuing effect over the long term during the periods of time when the children are with their father.
I shall make an order about alcohol in the terms sought by the Independent Children's Lawyer.

I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 15 May 2019.

Associate:

Date: 15 May 2019

SCHEDULE 1

Mother

a)The mother’s Second Amended Initiating Application filed 12 June 2018;
b)Affidavit of the mother filed 12 June 2018;
c)Affidavit of the maternal grandmother filed 12 June 2018;
d)Three affidavits sworn by employees of R Group (who conducted surveillance on the father); and
e)Report from Dr S (toxicologist) dated 30 August 2018.

Father

a)The father’s Amended Response filed 9 July 2018;
b)Affidavit of the father filed 9 July 2018;
c)Affidavit of the paternal grandfather filed 9 July 2018;
d)Affidavit of the paternal grandmother filed 9 July 2018;
e)Affidavit of the father filed 22 February 2017; and
f)Affidavit of the father filed 21 November 2016.