Fielding & Mason (No. 2)

FAMILY COURT OF AUSTRALIA
Fielding & Mason (No. 2) [2021] FamCA 350

File number(s): SYC 5298 of 2009

Judgment of: ALTOBELLI J

Date of judgment: 28 May 2021

Catchwords: FAMILY LAW – PARENTING – extensive history of protracted litigation – entrenched conflict between parents – historical alcohol and drug use by both parents – where both parents seek sole parental responsibility and live with orders – where the parental capacity of both parents is impacted – views of teenage children – historical involvement of NSW police and child welfare authorities – significant geographical distance between parents – extensive risk assessment undertaken – orders in the best interests of the children.

Legislation: Family Law Act 1975 ss 60B, 60CA, 60CC(2)(a), 60CC(2)(b), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 61DA, 65DAA

Cases cited:
B & B (1993) FLC 92-357

Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5

Giunta & Giunta (No. 3) [2021] FamCA 272

In the Marriage of Archbold (1984) 9 Fam LR 798

In the Marriage of K and Z (1997) 22 Fam LR 382

In the Marriage of Kress (1976) 13 ALR 309

In the Marriage of Smythe (1983) 48 ALR 677

Karamalis & Karamalis [2018] FamCA 312

M and M (1988) FLC 91-979

Mitchell v Mitchell (1983) 9 Fam LR 267

MRR v GR [2010] HCA 4

Mulvaney & Lane [2009] FamCAFC 76

Sigley v Evor (2011) 44 Fam LR 439

Slater & Light (2011) 45 Fam LR 41

Number of paragraphs: 162

Date of last submission/s: 14 April 2021

Date of hearing: 14 April 2021

Place: Sydney

Counsel for the Applicant: Mr Cairns

Solicitor for the Applicant: Swifte Law

Counsel for the Respondent: Ms Jowett

Solicitor for the Respondent: LN Legal

Counsel for the Independent Children's Lawyer: Mr Moore

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 5298 of 2009

BETWEEN:
MS FIELDING

Applicant

AND:
MR MASON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

28 MAY 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for X born … 2007 and Y born … 2008 (“the Children”) in relation to decisions concerning their long term care, welfare and development, including but not limited to:
(a)The Children's education and schooling;
(b)The Children's religion and cultural upbringing;
(c)The Children's health and medical treatment;
(d)The Children's place of residence; and
(e)The issuing of an Australian Passport to the Children, without the need for the mother’s permission or signed consent.

3.The father, prior to making a long term decision, shall:
(a)advise the mother in writing, via email, as to the decision intended to be made by the father;
(b)seek the mother’s written response in respect to the decision;
(c)consider taking into account the Children’s best interests and any response received from the mother prior to making a final decision; and
(d)advise the mother in writing, via email, as soon as reasonably practicable of the ultimate decision made by the father.

4.The Children live with the father.
5.The Children spend time with the mother as agreed between the parties, or in the absence of agreement at the following times:
(a)Commencing on the first weekend in June 2021, on every fifth weekend during the school term from the conclusion of school on Friday until 12pm on Sunday, with the mother, or her nominee, to collect the Children from and deliver the Children to the Suburb E train station at the commencement and conclusion of the time, and provided that the mother first communicates her intention to schedule said time with the father on not less than 14 days’ notice.
(b)In 2021 for the first half of the Winter school holiday period, commencing at 12pm on the Saturday immediately following the last day of school on which pupils are required to attend school to 12pm on the following Saturday with the mother, or her nominee, to collect the Children from and deliver the Children to the Suburb E train station at the commencement and conclusion of the time.
(c)Commencing in the 2021 Spring mid-year school holiday period and every mid-year school holiday period thereafter (including Autumn and Winter mid-year holidays) commencing at 12pm on the Saturday immediately following the last day of school on which pupils are required to attend school, to 12pm on the day preceding the commencement of the next school term.
(d)Commencing in 2021 and every odd year thereafter for the first half of the Christmas school holiday period with the mother, or her nominee, to collect the Children from the Suburb E train station at 12pm on the Saturday immediately following the last day of school and returning the Children to Suburb E train station at 12pm on the day that falls at the midpoint of the school holiday period.
(e)Commencing in 2022 and every even year thereafter for the second half of the Christmas school holiday period, with the mother, or her nominee, to collect the Children from Suburb E train station at 12pm on the Saturday falling at the midpoint of the holiday period and returning the Children to Suburb E train station at 12pm on the day preceding the commencement of the school year.
(f)For the purpose of calculating the midpoint of the school holiday period, the school holiday period shall be deemed to commence on the first Saturday after school concludes and conclude on the last Saturday before pupils are required to attend school. If there are two days that fall at the midpoint of the school holiday period then the midpoint shall be deemed to be 12pm on the latter of those two days.
(g)By phone and otherwise as agreed on the Children’s birthdays if the Children’s birthdays do not otherwise fall on the times the mother is to spend with the Children.
(h)By phone and otherwise as agreed on the mother’s birthday if the mother’s birthday does not otherwise fall on the times the mother is to spend with the Children.

Father’s Day:
6.If Father’s Day falls on a weekend, the Children shall remain with the father on both days of the Father's Day weekend.

Mother’s Day:
7.Commencing in 2022 and every year thereafter, at 12pm on the Saturday immediately preceding Mother’s Day to 5pm on Mother’s Day, and in the event that they are otherwise due to be with the father, then the mother will collect the Children from and deliver the Children to the Suburb E train station at the commencement and conclusion of the time.

Other Orders:
8.To facilitate the parties’ compliance with these orders, and unless it is the case of an emergency, the parties shall communicate with each other about the Children’s care and the implementation of these orders via the “My Mob” app and for that purpose each of them will download the My Mob app within 14 days of the date of these orders.
9.The parties shall advise each other as soon as reasonably practicable of any major medical issues including serious injuries and illnesses (not just a common cold and like minor ailments) involving the Children and each party shall keep the other party informed of any required treatment or medication required in relation to the Children and the parties shall ensure the proper administration of such medication and treatments is performed by them.
10.The parties shall keep each other advised of their current telephone numbers and email addresses and shall provide the other party with details of any changes to these contact details within seven days of such change.
11.On a without admissions basis the parties be restrained from consuming illicit substances or drinking more than the legal limit for driving at least 48 hours prior to, or in the presence of, the Children.
12.Neither party shall denigrate the other party, their family or any other person with whom they live in the presence or hearing of the Children or allow any third party to denigrate the other parent or any family member in the presence or hearing of the Children.
13.The father shall continue to engage and follow all directions from F Services in relation to the referral for him and the Children to the Reconnecting Adolescent and Parent Team.
14.The father shall authorise any school attended by the Children to provide the mother with information pertaining to the Children including school reports, details of school events and extracurricular activities such as sports and concerts and school photographs at her own cost.
15.The mother be at liberty to attend school events such as sporting events, extracurricular activities and concerts to which parents are invited.
16.The Independent Children’s Lawyer remain appointed for a period of six months from the date of this order, so as to oversee and assist with the implementation of the orders herein.
17.Leave is granted to the Independent Children’s Lawyer to apply to relist the proceedings on 14 days' notice in the event that further orders or directions are required with respect to the implementation of the orders herein, provided that, in the event that such liberty is exercised, the Independent Children’s Lawyer shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought.

18.All extant interim applications be and are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fielding & Mason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION

This case concerns two children, X, who is 14 years old, and his sister, Y, who will be nearly 13 years old by the time these reasons for judgment are published. The Court has had to decide with which parent the children will live and how much time they spend with their other parent. This was a very difficult decision to make. The Court has concerns about the welfare of the children whether they remain living with their father, as they do now, or whether they live with their mother, as they have in the past. In many respects this is a decision that is based on where there is the least risk for the children. The other significant complicating factor is the ages of the children and the need to take into account their views.
BACKGROUND
The litigation about X and Y commenced in 2009 when the children were only two and one, respectively. Whilst that litigation was determined at a final hearing conducted by myself, as a then Federal Magistrate sitting in Wollongong, on 16 December 2011, the present proceedings recommenced in 2017. There are many regrettable facts about this case. It is most regrettable that these children have lived under the shadow of litigation for most of their lives. It is regrettable that the present case has taken so long to be allocated a hearing date. It is regrettable that the Family Report in this matter, dated 28 February 2019, could not be updated, though the Court acknowledges the possibility that it probably would not have made a difference to the final outcome of this case. It is regrettable that the parental relationship is dysfunctional and toxic. It is regrettable that these children have been exposed to this toxic conflict, both directly and indirectly, by both of their parents. It is regrettable that both parents have had the very difficult lives that they have.
This is a case where both parents allege that there are very significant concerns about the other’s capacity to parent, and that there are risks of harm to the children in the other parent’s household. When looking at the history of this matter, each has raised concerns about the other’s mental health and that the other coaches the children to say things. There are mutual family violence and drug and alcohol allegations.
On 16 December 2011 I made final orders after a five day hearing providing for the children to live with the father, and for the parents to have equal shared parental responsibility. Orders were made for the mother to spend time with the children and, importantly, for the children to live with their father at the home of the paternal grandparents. A number of other orders were made, and for ease of reference the orders in question are reproduced in the first schedule to these reasons for judgment.
The living circumstances of the parents changed. In February 2018 the father moved with the children to Suburb B in the New South Wales D Region. By late 2019 the mother had moved to C Town in the north coast of New South Wales. The father is no longer living in his parents’ home but is living in rented accommodation with the children.
The New South Wales Department of Family and Community Services (as it was then known) has been involved in the family on and off for most of the children’s lives.
Each parent alleges that the other has not complied with orders for the children to spend time with the mother. The mother alleges that the father has not made the children available. The father alleges that the mother has not made herself available to spend time with the children.
It seems that the current operative order for the children was made by Judge Kemp in the Federal Circuit of Australia in Sydney on 29 October 2019. Judge Kemp ordered that the children live with their father and spend time with their mother from 11am to 4pm on alternate Sundays. Orders were made for the children to attend counselling, for the father to do drug testing, and a number of ancillary orders. These orders are reproduced in the second schedule to these reasons.
The father is 52 years old, the mother 47. They commenced their cohabitation in 2003 and separated in 2009. As noted above, the children were very young when their parents separated.
It seems common ground that the distance between C Town and Suburb B is approximately 250 road kilometres and that it would take two hours and 45 minutes to travel that distance by road, and possibly as much as four hours by public transport. Neither parent currently drives and the circumstances of this will be explored in the evidence.
The children have been spending irregular time with their mother. The irregularity of their time seems to be explained by a number of factors, including the children’s alleged wishes not to see or spend time with their mother, the mother’s failure to attend scheduled contact visits, the father’s alleged failure to facilitate the children attending those visits, as well as practical issues relating to public transport between the mother’s home and the agreed meeting place for contact purposes.
THE COMPETING PROPOSALS
At the final hearing the mother proposed that she have sole parental responsibility, that the children live with her, and spend no time and have no communication with the father for a period of six months. Thereafter the children would spend time with their father each weekend and during school holidays. The precise orders sought by the mother are those reproduced in the third schedule to these reasons. In the mother’s Trial Affidavit, dated 1 April 2021, she makes it clear, however, that if the Court is against her application for the children to live with her, then she asks the Court to make an order for the children to spend time with her every second weekend and for half of school holidays.
The father’s proposal is set out in his Case Outline document, filed 7 April 2021. He proposed, in the first instance, equal shared parental responsibility, but if there should be no agreement on any issue that pertains to the children’s health or education, the father have the ability to make the decision, provided he advise the same to the mother. Alternatively, the father sought an order for sole parental responsibility. The father proposed that the children continue to live with him and spend time with their mother each alternate weekend from 11am Saturday until 4pm Saturday supervised, and then on special occasions. The father’s minute is reproduced in the fourth schedule to these reasons.
At the commencement of the hearing the Independent Children’s Lawyer expressed the preliminary view that the children should remain living with their father, despite concerns held as to his parenting capacity. By the time of final submissions, this continued to be the case. The Independent Children’s Lawyer’s Minute of Order is reproduced in the fifth schedule to these reasons.
THE EVIDENCE BEFORE THE COURT
In support of her case, the mother relied on the following documents:
(a)Her Initiating Application filed 24 October 2017;
(b)Her Affidavit filed 1 April 2021 and corresponding exhibits, marked as exhibit A1; and
(c)Her minute of orders sought, marked by the Court as exhibit A2.
In support of his case, the father relied on the following documents:
(a)His Response to Initiating Application filed 15 February 2018;
(b)His Affidavit filed 26 March 2021;
(c)Affidavit of Ms G filed 29 March 2021; and
(d)Various documents tendered and marked as exhibits R1 to R6.
In support of her case, the Independent Children’s Lawyer relied on the following documents:
(a)Family Report prepared by Ms H, dated 28 February 2019, marked as exhibit ICL8;
(b)Child Inclusive Conference Memorandum prepared by family consultant J dated 22 February 2018, marked as exhibit ICL9; and
(c)Various documents tendered and marked as exhibits ICL1 to ICL7.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part 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.
(2)      The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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).
(3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)       to maintain a connection with that culture; and
(b)       to have the support, opportunity and encouragement necessary:
(i)        to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)       to develop a positive appreciation of that culture.

At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)      When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)       abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)       family violence.
(3)      When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)      The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)      Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(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.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)       a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)       the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the Court must:
(c)       consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)       consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)       if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)       the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)       occasions and events that are of particular significance to the child; and
(c)       the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)      Subsection (3) does not limit the other matters to which a Court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)      In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the Court must have regard to:
(a)       how far apart the parents live from each other; and
(b)       the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)       the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)       the impact that an arrangement of that kind would have on the child; and
(e)       such other matters as the Court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the Court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the Court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s 65DAA(1) and said
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the Court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
OUTLINE OF REASONS FOR JUDGMENT
The Court will firstly consider the independent and expert evidence, namely the Child Inclusive Conference Memorandum prepared by family consultant J on 22 February 2018, and then the family report prepared by family consultant H on 28 February 2019. This evidence is the only independent, expert evidence available to the Court, and hence it is convenient to discuss this evidence before the other evidence, though it has no primacy of its own. In discussing the expert evidence, however, the Court will occasionally make observations by reference to the other evidence before the Court. Thus the non-expert evidence presented before the Court, in its totality, becomes a lens for better understanding the expert evidence. The expert evidence then becomes a lens for understanding the non-expert evidence in this case.
The Child Inclusive Conference Memorandum
This document was admitted into evidence without objection, and no one sought to cross-examine the author, family consultant J. The family consultant identified as risk factors family violence, child safety and wellbeing, drugs and alcohol and mental health problems. The Court notes that whilst the father denied that he was ever physically violent towards the mother he acknowledged (seemingly without remorse) calling the mother names in text messages. More will be said about this in due course. The father’s allegations about the mother’s longstanding and significant problems with alcohol consumption are recorded. The mother’s concession that she previously drank problematically is noted, though she attributed the reason for this to the father’s abuse of her. The mother conceded that she still drank occasionally, but asserted that she did not have an alcohol problem. The mother’s allegations about the father’s cannabis and ice use was noted. The father denied the use of any amphetamines, denied having a drinking problem, but admitted that he used cannabis occasionally.
For present purposes, the focus will be on the views that were recorded as being attributable to X and Y. This section will be reproduced in full, and is found on the third and fourth pages of the memorandum.
X (aged 10 years 9 months)
•X is aware that his parents do not communicate with each other “properly”. He seemed to minimise his parents’ negative feelings toward each other but said that his mother talks negatively about his father and his father calls his mother names.
•X described his father in positive terms. He seems to perceive his father as being calm with him, funny and active – engaging with him in enjoyable activities. X did not identify anything related to his father that makes him feel upset or scared. He seems to be slightly worried about his father’s physical health, having noticed that his father has been less active recently.
•X described his mother in terms that indicate he may not feel safe or comfortable with her. X reported having had some problems in his relationship with his mother but he was not derogatory or completely negative. X said that his mother has hit him. He perceives that his mother behaves in a demanding and aggressive manner, seemingly creating drama. He said that she has been “drunk”, and reported that he sees her drinking and perceives changes in the way she talks. He said that she does not talk to him very much, yells at him and tells him that he is lying and that his father tells him what to say and that, if he says bad things about her, he will never see her again. He said that she talks negatively about his father. He said that she tells him that he is badly behaved and needs counselling. X identified that he has also had positive experiences with his mother, going to the beach and having fun. X said that Mr K is “okay” and minds his own business.
•X said that he and Y were going to stay with their mother for an extra few days in December 2017. He said that there was conflict between him and his mother during that time regarding his and Y’s cat. He said that his mother told them that their father would be in hospital for months and that his father was in “rehab” (which X thinks means a place for “crazy” people). He said that their mother would not let them leave when their father came to collect them. X said that his mother called the police and told them that his father was hitting her but X does not think that his father hit his mother. He said that his mother also said that his father is an “ice addict” (X thinks ice is a drug), but he does not think that his father is. X said that his mother hit their car with something, possibly a bottle, as they were leaving.
•X is concerned about his cat, as his mother has told him she got rid of it, but no one has called his father in order to collect it (the cat is microchipped).
•X said that he wants to continue living with his father.
•X indicated that he is not keen to go back to spend time with his mother. He said that he needs to build trust and feel safe with her again. He suggested that he could do this if someone else were to “watch me” (a supervisor), perhaps in a park, which he said he and his father had discussed.
Y (aged 9 years 8 months)
•Y seems to be aware that her parents argue via text message. Y perceives that her mother does not like her father and thinks that he does not look after her and X. She thinks that her mother does not want her to live or spend time with her father. Y thinks that her father wants her and X to spend time with their mother so that he can have a break but also that her father thinks that their spending time with their mother is somehow disruptive.
•Y described her father in positive terms. She said that he is nice and funny and that he looks after her and X, buys them treats, and takes them bike riding. Y said that she does not like her father smoking cigarettes. She also seems to be worried that something might happen to her father, such as him having a car accident.
•Y seems to have mixed feelings about her mother. She described her mother as being nice and taking them to the beach. Y also perceives her mother as being angry and described her mother getting red in the face, calling X names and lying about her father, saying that he makes himself out to be “good” and makes her (Ms Fielding) out to be “bad”. Y perceives that Mr K can be nice but also that he does not interact with her much other than getting annoyed at her and X. Y said that, in December 2017, Mr K dragged her out of the room by her feet.
•Y said that she and X were going to stay with their mother for an extra few days in December 2017. She said that there was conflict between her and her mother during that time regarding her and X’s cat and she said that both she and X were very upset. Y said that her mother told her that her father would be in hospital for months and was going to die and that she and her mother argued about this. Y said that, when her father came to collect her, she ran out the door to him and her mother would not let X come out. She said that her mother thinks that her father hit her (Ms Fielding), but Y does not think that he did. Y said that her mother tried to hit their car as they left.
•Y said that she wants to continue living with her father.
•Y said that, prior to December 2017, she thought things were working quite well with regard to her living with her father and spending alternate weekends with her mother. In some ways, Y seems to be content to recommence spending time with her mother, but she also said that she now does not want to spend time with her mother because she is worried that her mother will lock her up.
•Y is very concerned about her cat. Y said that, if her mother got rid of her cat or left her cat outside her unit, she does not want to spend time with her mother again.
It is noted that X was nearly 11, and Y nearly 10, at the time of the Child Inclusive Conference. They articulate their views quite clearly and firmly. Both children refer to concerns about the mother’s behaviour, principally associated with excessive use of alcohol.
In the family consultant’s discussion of future directions she observed that the conflict between the parents and the children appeared to be longstanding, and the children have been exposed to this, which has likely had a negative impact on their development. The children presented as having a closer relationship with their father than with their mother, and as aligning with their father on some issues. Somewhat disconcertingly, from the Court’s perspective, the family consultant’s prognosis about the children’s ability to change their views was very pessimistic.
The Court accepts this evidence.
THE FAMILY REPORT, DATED 28 FEBRUARY 2019
Ms H prepared the report on the basis of interviews held on 29 January 2019 and

7 February 2019, and telephone conversations held on 5, 14 and 18 February 2019. She appeared to have before her at the time all the relevant affidavit material, as well as the Child Inclusive Conference Memorandum and the documents produced on subpoena, at that time, by Suburb B Primary School, New South Wales Police Service and New South Wales Department of Family and Community Services. She sets out the relevant family background and history of the dispute, which is broadly consistent with the evidence before the Court. At paragraphs 15 and 16, under the heading Current Arrangements, the report states:
15. The children last spent time with their mother on 23 December 2018. When the children were interviewed for this Family Report, they said that had not seen or spoken with their mother since New Year’s Eve, when she allegedly called them and asked X “if your father has sucked your cock yet.” The father said that he has not stopped the children from spending time with their mother, but after this incident, they have made it clear they do not wish to spend time with her in the future.
16. The mother emphatically denies making any such statement and said that the father “has put words in their mouths.” She told the report writer that she had spoken with the children on the phone “a few times” since the beginning of January 2019. She said that when she asked Y why they were not coming to see her Y said, “I don’t want to. You know why.”

The allegation about what the mother allegedly said to the children on New Year’s Eve 2018 is a very serious one. The mother was extensively cross-examined on this issue by counsel for the father. When the allegation was put to the mother she initially said words to the effect, “I can’t recall saying anything like that.” Shortly afterwards, however, she said words to the effect, “I didn’t say that to them.” The mother was then cross-examined about conversations she had with Y about this, shortly following New Year’s Eve. She was most unclear about whether the conversation happened the next day or a few days thereafter. She agreed that there was a conversation with Y about what was allegedly said on New Year’s Eve. She agreed that she had been drinking beer on New Year’s Eve. The Court finds that it is more likely than not that the mother in fact did make this statement. It is also more likely than not that the mother made this statement whilst under the influence of alcohol. This finding is made on a number of different bases. Firstly, there is no doubt that whatever was said on New Year’s Eve 2018 caused a significant interruption to the children’s time with their mother. It was a significant event for the children. Secondly, the statement attributed to the mother raises issues of sexual abuse which did not feature in the present litigation at all, but heavily featured in the mother’s case against the father in 2011. At paragraph 82 of my reasons for judgment, dated 16 December 2011, I refer to the mother’s sworn evidence about the children’s disclosures of abuse. The statement is consistent with the mother’s trenchant belief held in the 2011 hearing. Thirdly, however, the Court has pervasive concerns about the mother’s credibility based on a number of aspects of her evidence that will be discussed below. For present purposes, the Court confirms that it finds that it is more likely than not that the mother did in fact ask X “if your father has sucked your cock yet”[1]. Moreover, it was more than likely that the mother said this whilst intoxicated.
[1] Family Report of Consultant H at paragraph 15.
Returning to the report of Ms H, the family consultant identifies the concerns about substance abuse, for both parents. The relevant paragraphs are found at 21-26:
21.      When this matter was originally before the Court in 2011, concerns were raised about both parties substance use. Mr L subsequently completed an expert report and he concluded that although both parties used substances to excess on occasion, and had done so for many years, this did not reach the threshold of problematic usage.
22.      The father is alleging that the mother has continued to drink alcohol to excess since the final orders were made and in particular, that she consumes alcohol to excess on each occasion when she is caring for the children. He said that the children tell him that their mother “is always drinking or drunk” and she also sounds intoxicated (slurring her words) when she speaks to the children on the phone. The mother denies that she drinks to excess. She has variously reported herself as either being abstinent or a very moderate social drinker, and only when the children are not with her. When she filed this application in October 2017, she produced a series of blood tests and a report from her GP that said that she has no liver function issues or kidney damage that would indicate she is drinking at problematic levels.
23.      The mother has counter-alleged that the father has continued to use illegal substances, such as cannabis and methamphetamine and that this was the reason why FACS were involved with him and the children. The father said that on one occasion when FACS was drug testing him he had had a line of cocaine on the weekend before. He said that he “passed over 30 urinalysis tests.” The father told the report writer that he occasionally uses cannabis, apparently to help relieve his physical pain. In relation to alcohol use he said, variously, that he doesn’t drink at all; or only rarely; or “sometimes” when he is stressed (which included the day before report interviews were held and also when the children were seeing their counsellor at the DD program).
24.      The subpoenaed material in relation to the father’s drug use indicates a far different picture to the one he painted to the report writer. After FACS became involved with the father in June 2016 (which wasn’t about drug use but which concerned the alleged state of the father’s home) they did a random drug test, which returned positive for methamphetamines (‘ice’). The father denied that he had used ice, but said that he had had a line of cocaine. He then returned another two positive tests for ice in July 2016 and a further positive test in August 2016. On three further occasions up until the end of the year, he did not present for urines as requested by FACS (which leads to the assumption that they would have been ‘dirty’). In meetings with his caseworker, the father continued to deny that he was using ice.
25.      The FACS records appear to indicate that either drug testing ceased in 2017 or that the father’s drug use was no longer an issue; it is not clear. However, in April 2017, the father presented at a meeting with FACS in what they assessed as being a clearly drug affected state. He told caseworkers that his drink had been “spiked” the weekend before and he once again denied any intentional drug use. It is not clear from the records if any further random urines were conducted after this.
26.      In October 2018, several reports were made to FACS about the father’s presentation to various professionals, including inter alia, that he appeared to be under the influence of substances, in that he was observed to be having difficulties making eye contact, he was shaking and unsteady, he walked into a wall, and he could not sustain a train of thought. He was also reported to smell of alcohol in the middle of the day. The father believes these reports either came from the mother or from a particular professional whom he believes does not like him.
(As per the original)
Much more will need to be said about this issue in the context of discussing the evidence of both parents. Suffice it to say, for present purposes, that the Court finds there to be substance to the concerns that each party expresses about the other’s use of alcohol and/or drugs. The Court will find that the father is a regular user of cannabis, and an occasional user of the drug known as ice. The mother is a regular consumer of alcohol. Both have minimised the nature and extent of their usage.
Under the heading Risk of Abuse to Children, the family consultant states, at paragraph 28:
28. A risk of serious harm (ROSH) report was made in October 2018 alleging that X had disclosed to a teacher that his father was physically and verbally abusive towards him and allegedly told him that, “he deserves the abuse he gets”. The father was witnessed calling X “a fucking cunt.” During report interviews, X initially denied that his father was abusive. When he was reminded about what he had told his teacher, X sought to minimise and downplay the extent of his father’s abuse and also his own distress at the time, in what appeared to be a concerted effort to protect his father. X said that his father is now “much less angry” than he used to be. He also justified his father’s behaviour on the basis that it was his mother who “made” his father angry “because she is such a liar and she never does anything for us.”
The father was cross-examined about the 2018 report. His denials were unconvincing. Of real concern to the Court is X’s behaviour as reported by the family consultant which seemingly was, in effect, an effort to protect his father.
After identifying the issues raised by the parties, the family consultant identified issues raised by herself at paragraphs 33-38:
33.      While Mr Mason did not appear affected by substances on the day of report interviews, there were nonetheless a number of significant concerns about his presentation. He and the children were late by almost one hour and Mr Mason was unable to explain why, other than to say that they had to travel from the D Region and it was school holidays and no one was used to getting up early.
34.       Mr Mason presented in a flustered manner. He spoke very quickly and at times, his thoughts were tangential. He had trouble remembering key dates and events from the last two years and even from several months ago. Mr Mason struggled to contain his emotions, in particular his anger, and when he became angry he would go red in the face, lean forward in his chair and virtually spit the words out. He was aggressive and intimidating at these times. He expressed no remorse for sending highly abusive and derogatory text messages to Ms Fielding as he considers this to be justified in relation to how she allegedly behaves towards him and the children.
35.      Mr Mason made no effort to disguise his feelings about Ms Fielding, and in fact, he spent probably 80% of his total interview time impugning her, repetitively. He resisted focusing on anything to do with him or the children’s needs and significantly downplayed the reasons why FACS had been involved with him and the children, blaming Ms Fielding for this.   When he did acknowledge any poor or problematic behaviour, rather than taking responsibility for these, he ascribed blame to Ms Fielding, even in absentia and even for things that she could not possibly have had any involvement in. He appeared obsessed with the fact that Ms Fielding has never paid child support and he was righteous about his decision to tell the children this and other things about why their mother is “such a loser.”
36.      Mr Mason was observed with the paternal grandparents over the course of the day. He interacted with them in a brusque and dismissive manner, at times raising his voice to them when they were only mildly conversing. The grandparents presented as cowed and exhausted, although they put this down to the fact that Mr Mason senior has been unwell lately. When they engaged with the report writer, the paternal grandmother became angry at what she perceived as the report writer’s focus on Mr Mason rather than Ms Fielding. This anger appeared highly defensive and used for the purpose of deflection.
37.      The children’s presentation on the day of the report interviews was also highly concerning. While they are otherwise sweet, engaging and clearly intelligent and emotionally attuned children, they were both acutely anxious, with their body language at complete odds with their words. Y, for example, drank almost a whole litre jug of water, compulsively filling, gulping and re-filling her glass (at least 10 times in 40 minutes). She was physically agitated; folding and unfolding her legs, twisting in her seat constantly, pulling at her hair and at times it was clear that she was avoiding making eye contact. Her laughter sounded high-pitched and very nervous. X was not quite as physically agitated as Y but he spent the majority of the interview sitting sideways in his chair and kicking his legs in the air. He was observed to lick his lips in a compulsive fashion and to blink rapidly when talking about either of his parents. The children were observed to be accommodating and conciliatory around their father, with Y in particular fussing over him in an overtly anxious manner.
38.      In contrast to Mr Mason, Ms Fielding presented in a calm and composed manner and she related her concerns in a thoughtful and measured manner. While at times she tended to focus on what she perceives are the assorted failings of the professionals involved in this matter, she was relatively easily redirected and she accepted being challenged about these views without becoming defensive.
Based on the Court’s observations of both the father and mother during cross-examination, the father’s presentation was much more controlled and subdued as compared to the Family Report interviews. He was better able to disguise his very negative feelings about the mother, but those feelings were perfectly clear to the Court. The Court was not, of course, able to observe the children’s presentation, but is certainly concerned about paragraph 37 of the report. The mother continued to present in a calm and composed manner.
At paragraph 64 of the report the mother discusses her relationship with her partner, Mr K:
64. Ms Fielding reported that she formed a relationship with Mr K in 2013. She admitted that the relationship “has its ups and downs, because we’re opposites. I am clean and tidy and he’s messy and a hoarder. So we have quite a few arguments about that!” The report writer asked if there had ever been police involvement? Ms Fielding said that in November 2018, she and Mr K had “a petty argument that escalated because I said something about his Mum. I was very stressed at the time and I shouldn’t have said anything because he’s very sensitive about her.” Ms Fielding described Mr K “tapping” her on the cheek in anger “but that was it, and it was really my fault. The police lied to me and they took out an AVO so now we’re about to get it dropped.” Ms Fielding recalled that they were arguing near the balcony and someone who was passing by called the police. She said that she does not consider herself to be a victim of domestic violence because it was a one-off and it was her who provoked Mr K. Ms Fielding said that she spent enough time at the EE Service having counselling to know what domestic violence is. She said that she and Mr K have a very solid relationship and she believes it has made a significant difference to her emotional stability and wellbeing, “just being loved and valued as a person in my own right, because I had never had that before.”
(emphasis in original)
This particular part of the report becomes more important when the cross-examination of the mother is discussed.
The mother’s alcohol use is discussed at paragraphs 79-81 of the report:
79.      Ms Fielding was asked about the children reporting that she is “always drunk.” She said that this is because “[Mr Mason] has brainwashed them. He is always telling me that I’m an alcoholic and he tells the children that and so then X says to me, ‘Oh Mum, you’re an alcoholic!’ But I do not drink around my children. Yes, I did do that years ago, when I was in a really bad place (before the 2011 orders) but not now.”
80.      In regards to her alcohol use, Ms Fielding described herself as a moderate social drinker. She said that she sticks to vodka and soda when she is out, because she has been diagnosed with type 2-diabetes so she has to be careful with sugar and carbohydrates. She said that she rarely drinks at home but her and her partner have a couple of drinks when they go out. Ms Fielding said that it is important to her that she maintains a healthy lifestyle.
81.      Ms Fielding said that she understands the concerns the report writer had about her drinking, in 2010. She said that, “When we last met, I was drinking so much because I felt so isolated and alone because of how [Mr Mason] treated me. I was depressed and I don’t think that I was focusing on (building a relationship with) X. I can acknowledge that now.”
The mother continued to steadfastly deny that she had a problem with alcohol, and remained firmly of the belief that the father was brainwashing the children in this regard.
The child Y was interviewed. For present purposes the relevant paragraphs are 95-99:
95.      Y was asked to describe her father. She said that, “He’s funny. He’s a storyteller. He’s very active. He kicks the ball around with us and goes for walks with us to the park. He’s happy and kind.” The report writer asked Y if there were any times when her father was not happy? She looked away and became physically agitated and clearly anxious. This was the point at which she began compulsively drinking water. She said, “Oh everyone is sometimes not happy or kind!” Y was asked if her father and X have ever been unhappy with each other. She said that, “Well he might have hit X a little while ago.” The report writer asked if Y saw this. She said, “Maybe. Yes. No. Not really. We don’t worry about it! X said he didn’t really feel it. Dad would NEVER hit X intentionally. He said that he only did it because my Mum made him angry. And anyway, I never get into trouble because I am a good kid.”
96.      Y was asked if her father ever says things to her and X about her mother. She said that he does call her mother names but “he can’t help it because she is crazy! She says stuff like your Dad is sexually abusing you. She says we are brainwashed and that Dad hits X all the time. But Mum hits us all the time!” The report writer asked Y if she could recollect when this last occurred. She looked blank for a minute and then said, “Oh she hit me with a stick a while ago.”
97.      Y recalled that when she and X were spending time with their mother, they would do things like go to the beach and the shops. “But she would never take us out anywhere for dinner, even though I would always ask.” Y described her mother as “someone who drinks a LOT. (I know) because you can smell it on her breath. She puts it in a metal cup. And she always goes to the bottle shop. She goes to bed really early and gets up really late. If we wake her up she yells at us.”
98.      Y was asked if she has any good memories of spending time with her mother. She said, “How can we have any good memories when she’s always drunk? She tells us that we have to stick up for ourselves but she’s always asking questions about our Dad. I sometimes have enough and I tell her to stop.” Y said that it made her feel sad when her mother called her “spoiled and bratty” when Y asked her to buy her some clothes once.
99.      Y said that she would consider spending time with her mother in the future “if she would stop the drinking” but she doubts if this is possible. She said that she doesn’t want to spend time with her mother anymore because of how she behaves towards her and X “and I know that Dad doesn’t like Mum and he thinks we don’t have to see her but it’s what I want too.” To illustrate one of the reasons why she doesn’t want to spend time with her mother, Y related in great detail the incident that occurred in December 2017. Y appeared aghast that her mother “tried to block X from getting out the door and then she said that Dad had hit her!” Y said that she is afraid that her mother will do something like this again in the future and she and X will be unable to get away. Y agreed that nothing like this had happened since but insisted that it could happen at any time in the future and each time she saw her mother she was scared. Y said that she was also still sad that her mother had let Y’s cat run away (it was later retrieved by Mr Mason).
In relation to X, the relevant paragraphs are 102-103 as regards the father, and 106-111:
102.     X was asked to describe his father. He said that, “He can be funny sometimes. He tells me jokes, some are funny and some aren’t! He’s pretty cool. He’s smart at maths. Sometimes he can be lazy like me; he puts things off like I do. He can be friendly.” The report writer asked if there was anything X didn’t like about his father, or anything that made him feel anxious or sad. He looked away and kicked his feet frantically. X eventually said, “Well I don’t like him smoking. But I don’t really know any other bad things. Except that he does get upset at my Mum. And he’s been sick.”
103.     The report writer commented that she was aware X had told some people that his father had hit him and he was scared of him. X looked very alarmed at this. The report writer emphasised that it was important for X to tell the truth and he wasn’t in trouble. X said, “Well he was swearing a little bit but not directly at me. And he’s gotten better with his anger. He’s nowhere near as angry as he was.” X initially strongly denied that he had ever been hit by his father but then said (as if he had just remembered) “Oh yeah. It was when he was talking to my Mum. He came into my room and he was yelling at me and he was pushing me and being really aggressive. I was a bit heartbroken to be honest. But he said sorry the next day. It was ages ago, maybe three or four months? That was the worst time.” X said that he hardly ever gets into trouble usually “because I am a good kid.”
…
106.     X was asked to describe his mother. He said that, “She’s pretty normal and loving when she’s not drunk. I like her then. Mostly she’s OK for the first few hours when we get (to her place) but she’s all over the place when she’s drunk. She gets very emotional when she’s drunk. Then she goes to sleep. And we will watch TV with her boyfriend.” The report writer asked X how his mother and Mr K get on. He said, “They fight a fair bit. Screaming and swearing at each other. So Y and I try to distance ourselves.”
107.     X said that he believes his mother is an alcoholic “because I can smell her breath and it always smells like apple wine (cider). She has a drink bottle that’s not clear. And she steals from Woolworths all the time – I think she’s addicted to it? But I have never said anything to her about it because I’m too scared about what she might do.”
108.     X said that he used to phone his mother every day “and she would say to me, ‘are you ok’ in that tone of voice that is SO annoying.” He recalled that when he spoke to her on NYE, “she said to me, ‘you’re being abused’ and then she said, ‘oh have you sucked cock?’ And then the next day she denied everything! She was messaging me saying I was a liar. And now I don’t want to see her because of what she said. Why would she say that?”
109.     The report writer asked X if his parents say things about each other to him and Y. He nodded emphatically and said, “Mum says LOTS of bad things about Dad. Anything she can think of. Dad calls Mum a lowlife but only because she makes him really mad. He hates people who make up lies. It upsets me but I understand why he does it. He’s done NOTHING to my Mum but she’s done everything to him.”
110.     X said that, “It’s pretty sad to say that I don’t want to see Mum again but it’s true. She needs to stop drinking and calm down. I don’t want to see her because I’m worried that the next time we see her, she will take us home and not let us go.”
111.     X was asked what he would change about his family situation if he had a magic wand. He thought carefully and said, “I would use it to make my Mum better and to make Dad a bit calmer.”

(b)Within 14 days of the date of these Orders, the Respondent Father is required to make an appointment with CC Drug Testing Clinic by telephoning … for the purposes of arranging to provide a hair sample for hair drug testing purposes.
(c)Each party or their legal representative is at liberty to provide CC Drug Testing Clinic with a copy of these Orders.
(d)The Respondent Father is to attend at a CC Drug Testing Clinic and submit to supervised collection of a hair sample from the Respondent Father at the earliest available appointment time to undertake hair collection for hair drug testing purposes from the Respondent.
(e)Written notice to undertake hair collection for hair drug testing purposes may be sent to the Respondent care of the mobile phone numbers set out in Notation A below (or any other number that is advised as current) and shall be deemed to have been received by the Respondent Father at the date and time it was sent via text message.
(f)The Respondent Father is to provide the collector with photographic identification to be recorded before each hair collection, with this Order also hereby authorising CC Drug Testing Clinic to provide the results of each test to all parties upon receipt of such test results.
(g)The hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and prescription drugs including opiates.
(h)CC Drug Testing Clinic is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body; CC Drug Testing Clinic’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with International Society of Hair Testing (SoHT) guidelines, cost, and time required for the results to be made available; and
(i)The cost of the hair drug testing is to be met by the Respondent Father.

6.   That unless the Children have a medical illness supported by a medical certificate the Respondent Father is to ensure the Children attend school every day at the commencement of school.
7.   The Father is to deliver the Children to Child Dispute Services at the Federal Circuit Court, Sydney at a date to be advised, for the purposes of the Children being assessed by a family consultant generally and including exposure to drugs and drug use.
8.   That if the Father fails to comply with Order 7, the ICL is to notify the Associate of Judge Kemp immediately, and the matter will be dealt with in chambers, and allocated another date for the assessment with the Consultant.
9.   If the Father fails to deliver the Children to Child Dispute Services in accordance with Order 8, a warrant to issue authorising and directing all officers of the Australian Federal Police and all officers of police forces of the States and territories of the Commonwealth of Australia to take possession of the Children and to deliver the Children to the Federal Circuit Court of Australia, Child Dispute Services, Sydney registry, Goulburn Street, Sydney.
10. The Father to file a Response and Affidavit within 7 days.
NOTATION:
Mobile phone numbers for the purposes of notification from drug testing are … and …:
SCHEDULE C
FAMILY LAW ACT 1975
IN THE FAMILY COURT
AT SYDNEY
No. SYC 5298 of 2009
BETWEEN
MS FIELDING
(Applicant)
and
MR MASON
(Respondent)
and
INDEPENDENT CHLDREN’S LAWYER
MINUTE OF PROPOSED ORDERS
BY CONSENT IT IS ORDERED:
1.That all previous parenting orders be discharged.
2. That the Mother have sole parental responsibility for the children of the relationship namely X born … 2007 and Y born … 2008 (“the children”).
3. That the children live with the Mother.
4. That the children spend time no time with and have no communication with the Father for a period of six months.
5. That thereafter the children spend time with the Father as follows:
(a) From 12:00pm on Saturday to 3:00pm on Sunday with the Father to collect the child from and deliver the children to the Suburb E train station at the commencement and conclusion of the time.
(b) From the commencement of Order 5(a) for the first week of the Autumn, Winter and Spring school holiday periods from 12:00pm on the Saturday immediately following the last day of school on which pupils are required to attend school to 12:00pm on the following Saturday with the Father to collect the children from and deliver the children to the Suburb E train station at the commencement and conclusion of the time..
(c) From the commencement of Order 5(a) for the first half of the Christmas school holiday period in even-numbered years with the Father to collect the children from the Suburb E train station at 12:00pm on the Saturday immediately following the last day of school and return the children to Suburb E train station at 12:00pm on the day that falls at the midpoint of the school holiday period.
(d) From the commencement of Order 5(a) for the second half of the Christmas school holiday period in odd-numbered years with the Father to collect the children from the Suburb E train station at 12:00pm on the day that falls at the midpoint of the school holiday period and return the children to Suburb E train station at 12:00pm on the Saturday immediately preceding the commencement of Term 1.
(e) For the purpose of calculating the midpoint of the school holiday period the school holiday period shall be deemed to commence on the first Saturday after school concludes and conclude on the last Saturday before pupils are required to attend school. If there are two days that fall at the midpoint of the school holiday period then the midpoint shall be deemed to be 12:00pm on the latter of those two days.
(f) On the children’s birthdays if the children’s birthdays do not otherwise fall on the Father’s time from after school to 8:00pm provided that the Father collects the children from school at the commencement of the time and returns them to the school gates of their school at the conclusion of the time.
(g) At all other times as agreed between the parties.

Father’s Day:
6. Notwithstanding any other Order and from the commencement of Order 5(a) from 12:00pm on the Saturday immediately preceding Father’s Day to 3:00pm on Father’s Day each year with the Father to collect the children from and deliver the children to the Suburb E train station at the commencement and conclusion of the time.

Christmas:
7. That notwithstanding any other Order in 2021 and every odd-numbered year thereafter from 12:00pm on Christmas Eve to 3:00pm on Christmas Day with the Father to collect the children from and deliver the children to the Suburb E train station at the commencement and conclusion of the time.
8. That notwithstanding any other Order in 2022 and every even-numbered year thereafter from 3:00pm on Christmas Day to 7:00pm on Boxing Day with the Father to collect the children from and deliver the children to the Suburb E train station at the commencement and conclusion of the time..

Easter:
9.From 6:00pm on Easter Saturday to 6:00pm on Easter Monday in 2023 and each odd-numbered year thereafter and from after school on the Thursday immediately preceding Good Friday until 6:00pm on Easter Saturday in 2022 and each even-numbered year thereafter with the Father to collect the children from and deliver the children to the Suburb E train station at the commencement and conclusion of the time.

Other Orders:
10. The parties shall use a Parenting App such as “2 Houses” or “We Parent” for the purposes of exchanging non-urgent information pertaining the children including details of medical treatment and activities which concern the children and shall contact each other via SMS text message in the event of an emergency.
11. That on a without admissions basis the parties be restrained from consuming illicit substances or drinking more than the legal limit for driving after consuming alcohol in the presence of the children.
12. The parties shall advise each other as soon as reasonably practicable of any major medical issues including serious injuries and illnesses (not just a common cold and like minor ailments) involving the children and each party shall keep the other party informed of any required treatment or medication required in relation to the children and the parties shall ensure the proper administration of such medication and treatments is performed by them.
13. The parties shall keep each other advised of their current telephone numbers and email addresses and shall provide the other party with details of any changes to these contact details within 7 days of such change.
14. Neither party shall denigrate the other party, their family or any other person with whom they live in the presence or hearing of the children or allow any third party to denigrate the other parent or any family member in the presence or hearing of the children.
15. The Mother shall authorise any school attended by the children to provide the Father with information pertaining to the children including school reports, details of school events and extracurricular activities such as sports and concerts and school photographs at his own cost.
16. That the Father be at liberty to attend school events such as sporting events, extracurricular activities and concerts to which parents are invited.
17. The Mother shall be authorised to solely obtain Australian passports for the children at her own cost.
18. The Mother shall retain the children’s Australian passports.
19. The Mother shall be permitted to travel overseas with the children during school holiday periods when the children are in her care.
20. The Mother shall authorise any professional providers seen by the children to speak to the Father about her ongoing treatments, progress and interventions.

SCHEDULE D
1. That the mother and father shall have equal shared parental responsibility for making decisions about the long-term care, welfare and development of the children from the relationship. The children being
1.1.X born on… 2007; and
1.2.Y born on … 2008.
(Collectively, "the Children")

Further, should there be no agreement on any issue that pertains to the children's health or education, the Father shall make the decision and shall advise the Mother of the decision made.
OR ALTERNATIVELY
1. That the Father have sole parental responsibility for the children X born on … 2007; and Y born on … 2008 (Collectively, "the Children") in relation to decisions concerning the long term care, welfare and development of the children, including but not limited to:-
1.3.The children's education and schooling;
1.4.The children's religion and cultural upbringing;
1.5.The children's health and medical treatment;
1.6.The children's place of residence; and
1.7.The issuing of an Australian Passport to the children, without the need for the Mother's permission or signed consent.

2. That the children shall live with the father and spend time with the mother.
3. That the children shall spend time with the mother, unless otherwise agreed to in writing as follows:
3.1.Every alternate weekend from 11am Saturday until 4pm Saturday supervised, unless otherwise agreed
3.2.During the Christmas and New Year' s holiday, the mother shall spend time with the children from:
3.2.1.In every odd year commencing (2019) from 3:00PM on Christmas Eve to 3:00PM Christmas Day.
3.2.2.in every even year commencing (2020) from 3:00PM on Christmas Day to 3:00PM Boxing Day.

3.3.On Mother's Day the children shall spend time with the mother from 11:00AM to 4:00PM.
3.4.On Father's Day the children shall spend time with the father from 11:00AM to 4:00PM.
3.5.As otherwise agreed to by the parties.

4.   Unless otherwise agreed to, changeover shall take place at the shopping centre, Suburb T.
5.   That each party be restrained from attending changeover with any other person.
6.   The Mother be and is hereby restrained from using alcohol or illicit substance for 24 hours prior to and during the time the children are to spend time with her in accordance with Order 3.
7.   That each party restrained from denigrating or insulting the other parent or any member of the other parent's family or the person with whom the parent is in a domestic relationship, in the presence or hearing of the children.
SCHEDULE E
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
No. SYC 5298 of 2009
BETWEEN
MS FIELDING
(Applicant)
and
MR MASON
(Respondent)
and
INDEPENDENT CHLDREN’S LAWYER
MINUTE OF PROPOSED ORDERS OF THE INDEPENDENT CHILDREN’S LAWYER
1.That all previous parenting orders be discharged.
2.That the Father is to have sole parental responsibility for X born … 2007 and Y born … 2008 (“the Children”) in relation to decisions concerning the long term care, welfare and development of the children, including but not limited to:-
(a)The children's education and schooling;
(b)The children's religion and cultural upbringing;
(c)The children's health and medical treatment;
(d)The children's place of residence; and
(e)The issuing of an Australian Passport to the children, without the need for the Mother’s permission or signed consent.

3.That the Father prior to making a long term decision, shall:
(a)advise the Mother in writing, via email, as to the decision intended to be made by the Father.
(b)seek the Mother’s written response in respect to the decision.
(c)consider taking into account the Children’s best interests, any response received from the Mother prior to making a final decision; and
(d)advise the Mother in writing, via email, as soon as reasonably practicable of the ultimate decision made by the Father.

4.That the children live with the Father.
5.That the children spend time with the Mother at times agreed between the parties, or in the absence of agreement at the following times:
(a)In 2021 for the first half of the Winter school holiday period, commencing at 12:00pm on the Saturday immediately following the last day of school on which pupils are required to attend school to 12:00pm on the following Saturday with the Mother, or her nominee, to collect the children from and deliver the children to the Suburb E train station at the commencement and conclusion of the time.
(b)Commencing in the 2021 Spring mid year school holiday period and every mid year school holiday period thereafter (including Autumn and Winter mid year holidays) commencing at 12:00pm on the Saturday immediately following the last day of school on which pupils are required to attend school to 12:00pm on the day preceding the commencement of the next school term.
(c)Commencing in 2021 and every odd year thereafter for the first half of the Christmas school holiday period with the Mother, or her nominee, to collect the children from the Suburb E train station at 12:00pm on the Saturday immediately following the last day of school and returning the children to Suburb E train station at 12:00pm on the day that falls at the midpoint of the school holiday period.
(d)Commencing in 2022 and every even year thereafter for the second half of the Christmas school holiday period with the Mother, or her nominee, to collect the children from Suburb E train station at 12.00pm on the Saturday falling at the midpoint of holiday period and returning the Children to Suburb E train station at 12.00pm on the day preceding the commencement of the school year.
(e)For the purpose of calculating the midpoint of the school holiday period the school holiday period shall be deemed to commence on the first Saturday after school concludes and conclude on the last Saturday before pupils are required to attend school. If there are two days that fall at the midpoint of the school holiday period then the midpoint shall be deemed to be 12:00pm on the latter of those two days.
(f)On the children’s birthdays if the children’s birthdays do not otherwise fall on the times the Mother is to spend with the children, by phone and otherwise as agreed.
(g)On the Mother’s birthday if the children’s birthdays do not otherwise fall on the times the Mother is to spend with the children, by phone and otherwise as agreed.

Father’s Day:
6.That the children remain with the Father on both days of the Father's Day weekend.

Mother’s Day
7.Commencing in 2022 and every year thereafter, at 12.00pm on the Saturday immediately preceding Mother’s Day to 5:00pm on Mother’s Day each year the children are to be with the Mother, and in the event that they are otherwise due to be with the Father then with the Mother to collect the children from and deliver the children to the Suburb E train station at the commencement and conclusion of the time.

Other Orders:
8.To facilitate the parties compliance with these orders, and unless it is an emergency, the parties shall communicate with each other about the Children’s care and the implementation of these orders via the “My Mob” app and for that purpose each of them will download the My Mob app within 14 days of the date of these orders.
9.The parties shall advise each other as soon as reasonably practicable of any major medical issues including serious injuries and illnesses (not just a common cold and like minor ailments) involving the children and each party shall keep the other party informed of any required treatment or medication required in relation to the children and the parties shall ensure the proper administration of such medication and treatments is performed by them.
10.The parties shall keep each other advised of their current telephone numbers and email addresses and shall provide the other party with details of any changes to these contact details within 7 days of such change.
11.Neither party shall denigrate the other party, their family or any other person with whom they live in the presence or hearing of the children or allow any third party to denigrate the other parent or any family member in the presence or hearing of the children.
12.That the Father shall continue to engage and following all directions from F Services in relation to the referral for he and the Children to the Reconnecting Adolescent and Parent Team.
13.The Father shall authorise any school attended by the children to provide the Mother with information pertaining to the children including school reports, details of school events and extracurricular activities such as sports and concerts and school photographs at her own cost.
14.That the Mother be at liberty to attend school events such as sporting events, extracurricular activities and concerts to which parents are invited.

[2021] FamCA 350

28 May 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Procedural Fairness

File number(s):	SYC 5298 of 2009
Judgment of:	ALTOBELLI J
Date of judgment:	28 May 2021
Catchwords:	FAMILY LAW – PARENTING – extensive history of protracted litigation – entrenched conflict between parents – historical alcohol and drug use by both parents – where both parents seek sole parental responsibility and live with orders – where the parental capacity of both parents is impacted – views of teenage children – historical involvement of NSW police and child welfare authorities – significant geographical distance between parents – extensive risk assessment undertaken – orders in the best interests of the children.
Legislation:	Family Law Act 1975 ss 60B, 60CA, 60CC(2)(a), 60CC(2)(b), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 61DA, 65DAA
Cases cited:	B & B (1993) FLC 92-357 Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 Giunta & Giunta (No. 3) [2021] FamCA 272 In the Marriage of Archbold (1984) 9 Fam LR 798 In the Marriage of K and Z (1997) 22 Fam LR 382 In the Marriage of Kress (1976) 13 ALR 309 In the Marriage of Smythe (1983) 48 ALR 677 Karamalis & Karamalis [2018] FamCA 312 M and M (1988) FLC 91-979 Mitchell v Mitchell (1983) 9 Fam LR 267 MRR v GR [2010] HCA 4 Mulvaney & Lane [2009] FamCAFC 76 Sigley v Evor (2011) 44 Fam LR 439 Slater & Light (2011) 45 Fam LR 41
Number of paragraphs:	162
Date of last submission/s:	14 April 2021
Date of hearing:	14 April 2021
Place:	Sydney
Counsel for the Applicant:	Mr Cairns
Solicitor for the Applicant:	Swifte Law
Counsel for the Respondent:	Ms Jowett
Solicitor for the Respondent:	LN Legal
Counsel for the Independent Children's Lawyer:	Mr Moore
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 5298 of 2009
BETWEEN:	MS FIELDING Applicant
AND:	MR MASON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	28 MAY 2021