Harpie and Harpie

[2008] FamCA 608

FAMILY COURT OF AUSTRALIA

HARPIE & HARPIE [2008] FamCA 608

FAMILY LAW – CHILDREN - With whom a child lives - Best interests of child
FAMILY LAW – CHILDREN - With whom a child spends time - Best interests of child

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-277

APPLICANT: Mr Harpie

RESPONDENT: Ms Harpie

INDEPENDENT CHILDREN’S LAWYER: Robertsons Solicitors

FILE NUMBER: SYF 4088 of 2006

DATE DELIVERED: 5 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: O'Ryan J

HEARING DATE: 22 March, 18 July & 15 August 2007, 5 March, 2 June, 28 July & 4 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Price, solicitor

SOLICITOR FOR THE APPLICANT: Price & Company Solicitors

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Moore of counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertsons Solicitors

Orders

1. The Orders of 14 February 2007 and order 14 of the Orders of 15 August 2007 be and are hereby discharged.

2. The children of the marriage T born on … March 2002 and L born on … February 2004 spend time with the Mother as follows:

   2.1Each alternate weekend on Saturday from 9:00 am until 5:00 pm and on Sunday from 9:00 am until 5:00 pm;

   2.2On the Mother’s birthday from 5:00 pm until 7:30 pm, with the Mother to collect the children at the commencement of such period and the Father to collect the children from the Mother’s residence at the conclusion of such period;

   2.3On each of the children’s respective birthdays, where such birthday occurs on weekdays then from 5:00 pm until 7:30 pm with the Mother to collect the children at the commencement of that period and the Father to collect the children from the Mother’s residence at the conclusion of that period provided that where such birthday falls on a weekend then for a period of four hours from 9:00 am until 1:00 pm;

   2.4On Christmas Day each year, from 9:00 am until 1:00 pm;

   2.5On Good Friday each alternate year from 9:00 am to 5:00 pm, the first Good Friday commencing with Good Friday 2009 and thereafter the Good Friday occurring in each alternate year;

   2.6Where Mother’s Day falls on a Sunday which the Mother is not scheduled to spend with the children then on Mother’s Day from 9:00 am to 5:00 pm;

   2.7At such other times and for such other periods as the parties may previously agree to in writing.

3. It be noted that the above orders are made on the basis that it is expected that some arrangement will be put in place whereby in the intervening week the Mother will be able to spend some time with the children from after school for a few hours.

4. The time the Mother spends with the children is to be under the supervision of an adult that the parties may mutually agree upon including the Mother’s father the maternal grandfather or such other adult person provided that such supervisory adult has read a copy of these orders and will comply with the obligations set out in Order 5 below.

5. The Mother be and is hereby restrained from consuming any alcohol or illegal drug or substance at least 24 hours prior to, and at any time during, any period that the children are to spend with the Mother.

6. For the purposes of Order 2 herein, where the Mother consumes any alcohol or illegal drug or appears to the supervisor or the Father to have consumed alcohol or an illegal drug within 24 hours prior to and/or during any period when the Mother is spending time with the children, then the Father shall not be required to deliver the children and the Mother’s time with the children for that day shall be suspended without any additional time.

7. Where it appears to the supervisor during time the children spend with the Mother that the Mother has been consuming alcohol or an illegal drug then the supervisor shall contact the Father forthwith and the Father shall collect or cause to be collected the children from the Mother forthwith and thereafter the Mother’s time with the children for that day shall be suspended without any additional time.

8. The Children otherwise live with the Father at all other times.

9. Order 2 herein is to commence from Saturday 16 August 2008.

10. Unless otherwise agreed between the parties, they shall do all things necessary to facilitate the Mother being able to communicate with the children by telephone between 6:00 pm and 7:00 pm on each day when the children are not otherwise with the Mother pursuant to these orders.

11. The telephone communication referred to in Order 10 is to be initiated by the Mother texting the Father between 6:00 pm and 7:00 pm and the Father, upon receiving such text message, shall cause the children to telephone the Mother.

12. Where Father’s Day falls on a Sunday which the Mother is scheduled to spend time with the children, then the Mother shall spend time with the children on that day from 9:00 am to 1:00 pm whereupon the Father shall be entitled to collect the children from the Mother’s residence to spend the remainder of Father’s Day with the Father.

13. The parties be at liberty to provide a copy of these Orders to any agreed supervisory adult, the children’s school(s), or such other third party as either party believes it is appropriate to do so.

14. Pursuant to Section 65DA(2) and Section 62(B) 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4088  of 2006

MR HARPIE

Applicant

And

MS HARPIE

Respondent

REASONS FOR JUDGMENT

1. Before me for hearing are applications for final parenting orders.  The applicant I shall refer to as the Father.  The respondent is I shall refer to as the Mother.  The proceedings were commenced by application filed by the Father on 19 October 2006.

2. The Father was born in March 1971.  The Mother was born in September 1972.  The parties were married in September 2002.  The Father claims that the relationship began in October 2000.  The parties separated on 23 June 2005. 

3. There are two children of the marriage, T born in March 2002, and L born in February 2004.

4. I had the benefit of the Father’s and Mother’s Client Questionnaire (Exhibits A and B respectively).

5. The Father now seeks the following:

   1.That the Orders of 14 February 2007 and Order 14 of the Orders dated 15 August 2007 be and are hereby discharged.

   2.That the children of the marriage namely [T] born […] March 2002 and [L] born […] February 2004 (the “Children”) spend time with the mother as follows:

   (i)     Each alternate weekend from Saturday 9.00 am until 5.00 pm that same day and from Sunday 9.00 am until 5.00 pm that same day.

   (ii)    On the mother’s birthday from 5.00 pm until 7.30 pm that evening, with the mother to collect the Children at the commencement of such period and the father to collect the Children from the mother’s residence at the conclusion of such period; and

   (ii)    On each of the Children’s respective birthdays, where such birthday occurs on weekdays then from 5.00pm until 7.30pm that day with the mother to collect the Children at the commencement of that period and the father to collect the Children from the mother’s residence at the conclusion of that period provided that where such birthday falls on a weekend then for a period of 4 hours from 9.00 am until 1.00 pm on that weekend.

   (iv)   On Christmas Day each year, from 9.00 am until 1.00 pm on Christmas Day;

   (v)     On Good Friday each alternate year from 9.00 am to 5.00 pm that Good Friday, the first Good Friday commencing with Good Friday 2009 and thereafter the Good Friday occurring in each alternate year;

   (vi)   On Mother’s Day from 9.00 am to 5.00 pm each year;

   (vi)   At such other times and for such other periods as the parties may previously agree to in writing.

   Provided that whenever the mother spends time with the Children such time is to be, at all times, under the supervision of an adult that the parties may mutually agree upon including the mother’s father [the maternal grandfather] or such other adult person whom the parties may previously agree to in writing, provide that such supervisory adult has previously provide to the father or the father’s solicitors a written undertaking that such supervisory adult has read a copy of these orders and will comply with the obligations set out in Order 4 herein below.

   3.That the mother be and is hereby restrained from consuming any alcohol or illegal drug or substance at least 24 hours prior to, and at any time during, any period that the children are to spend time with the mother.

   4.That, for the purposes of Order 2 herein, where the mother consumes any alcohol or illegal drug or appears to the supervisor or the father to have consumed alcohol or an illegal drug within 24 hours prior to and/or during any period when the mother is spending time with the Children, then the father is entitled to:-

   (i)     Whereupon delivery of the Children the mother appears to the father to be under the influence of either alcohol or an illegal drug, the father shall not be required to deliver the Children and the mother’s time with the Children for that day shall be suspended without any additional time;

   (ii)    Where it appears to the supervisor during such time with the Children that the mother has been consuming alcohol or an illegal drug then the supervisor shall contact the father forthwith and the father shall collect or cause to be collected the Children from the mother forthwith and the thereafter the mother’s time with the children pursuant to these orders shall be suspended until the mother has satisfactorily attended and completed a drug and alcohol rehabilitation program.

   5.That the Children otherwise live with the father at all other times.

   6.That Order 2 herein is to commence from Saturday 16 August 2008.

   7.That unless otherwise agreed between the parties, the parties shall do all things necessary to facilitate the mother being able to communicate with the Children by telephone between 6.00pm and 7.00pm on each day when the Children are not otherwise with the mother pursuant to these orders.

   8.That the telephone communication referred to in Order 7 hereinabove is to be initiated by the mother texting the father between 6.00pm and 7.00pm on the relevant nights and the father, upon receiving such text message, shall cause the Children to telephone the mother.

   9.That where Father’s Day falls on a Sunday which the mother is scheduled to spend time with the Children, then the mother shall spend time with the Children on that day only from 9.00am to 1.00pm whereupon the father shall be entitled to collect the Children from the mother’s residence to spend the remainder of Father’s Day with the father.

   10.That the parties be at liberty to provide a copy of these Orders to any agreed supervisory adult, the Children’s school(s), or such other third party as either party believes it is appropriate to do so.

   11.That the father is entitled to apply for a passport in the name or names of the Children of the marriage and the mother shall, upon a request to do so by the father, execute any passport application forms for passports to be issued in the name or names of the Children or either of them and that the father be permitted to take the Children out of the Commonwealth of Australia for holidays only (but not to permanently re-locate the Children) from time to time.

   12.NOTES that pursuant to Section 65DA(2) and Section 62(B) of the Act, 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.

   13.That pursuant to Section 106A of the Family Law Act, in the event that either party refuses or neglects to comply with any of the Orders herein, the Family Court of Australia shall appoint an officer of the Family Court or other person to execute any Deed or instrument in the name of the person to whom the direction is given, and shall do all acts and things necessary to give validity or operation to the Deed or Instrument pursuant to Orders made herein.

   14.That any exhibits be returned to the party producing same.

6. On 9 February 2007 a response to an application for final orders was filed on behalf of the Mother.  The Mother sought that the children live with her from 6:00 pm on Saturday to 6:00 pm on the following Thursday of each week and live with the Father at all other times.

7. An Independent Children’s Lawyer was appointed on behalf of the children.  On the last day of the hearing counsel for the Independent Children’s Lawyer informed me that the Independent Children’s Lawyer supported the orders sought by the Father.

8. On 4 August 2008 being the last day of the hearing, there was no appearance by or on behalf of the Mother.  However, notwithstanding the absence of the Mother, the hearing proceeded for reasons which I will hereafter give.

9. An application in a case was listed before Judicial Registrar Johnston on 12 December 2006 and orders were made; and then again on 22 December 2006 orders were made wherein there was a change in the living arrangements for the children with the children to spend more time with the Mother.  In addition orders were put into place for the Mother to be restrained from using alcohol when she exercised care of the children.  A further order was made on 22 December 2006 requiring the Father to undertake a breath analysis of the Mother prior to the commencement of time with the children.  The December 2006 orders were made on an undefended basis.  On 14 March 2007 orders were made by Judicial Registrar Loughnan that effectively provided that the time the Mother was to spend with the children was during the day and that there was to be a nominated person supervising that time.  Those arrangements for the children to spend time with the Mother have continued in place to date.

10. During the course of the proceedings the nature of the application has changed and the Father is now seeking orders for the children to reside with him and specific orders for the children to spend time with their Mother.

11. The Mother has not complied with previous directions made, however she has continued to spend time with the children.  Although the Mother may have disengaged from the court process she continues to spend time with the children.

12. I had the benefit of two reports from a court expert, Dr G.  Dr G is a clinical psychologist. 

BACKGROUND

1. On 19 October 2006 an application for final orders was filed on behalf of the Father.  Among other orders he sought equal shared parental responsibility and that “the Wife be restrained from consuming alcohol 24 hours prior to, and during, the periods the Children shall reside with her”.

2. On 19 October 2006 the Father also filed an application in a case.

3. On 11 December 2006 an affidavit was sworn by Ms F, who is employed as a secretary with Price & Company, Solicitors.

4. On 12 December 2006 an affidavit was sworn by the Father.

5. On 12 December 2006 the matter was listed before Judicial Registrar Johnston.  There was no appearance by the Mother and the Judicial Registrar made the following orders:

   1.That the father is given leave for his Application in a Case filed on 19 October 2006 to be heard as an undefended proceedings.

   2.That orders are made in accordance with the Application in a Case filed on 19 October 2006 as set out hereunder:-

   “That pending further order:-

   1.The Husband and Wife have equal shared parental responsibility, in consultation with each other, for the children, [T] born […] March 2002 and [L] born […] February 2004 (hereinafter referred to as “the Children”).

   2.The Children live with the Wife except as otherwise set out hereafter.

   3.The Children live with the Husband during the following periods:-

   (i)In each alternate week, from 4.30pm Friday until 7.30am the following Friday;

   (ii) In each other week, from 4.30pm Monday until the commencement of daycare the following Wednesday, or 7.30am if the children do not attend daycare on the day.

   4.On Father’s Day, if it falls on a day when the Children are living with the Wife, they shall spend time with the Husband from 11.00am on the Sunday until 9.00am on the following Monday.

   5.On Mother’s Day, if it falls on a day when the Children are living with the Husband, they shall spend time with the Wife from 11.00am on the Sunday until the commencement of daycare on the following Monday.

   6.That in the event that the Children are not living with or spending time with the Husband:-

   a.on one of their birthdays, the Children shall spend time with the Husband for at least three hours on that day, namely from 3.30pm until 6.30pm;

   b.on the Husband’s birthday, the Children shall spend time with the Husband from 5.00pm and overnight until 9.00am the following morning;

   7.During the 2006 Christmas period, from 7.30am on 24 December 2006 until 11.00am 25 December 2006, and during the 2007 Christmas period, from 11.00am 25 December 2007 until 4.30pm 26 December 2007, and alternating each year thereafter, and in this regard, the time the children shall reside with both parents as referred to herein is suspended.

   8.During each Easter period, from 7.30am on Good Friday until 4.30pm Easter Monday in each year.

   9.That each party shall:-

   a.notify the other party immediately by telephone if practicable and, in any event, within 2 hours, of any serious injury or illness suffered by the Children whilst in the care of that party;

   b.notify and keep the other party informed of a telephone number where he or she may be contacted in the event of an emergency;

   c.notify the other party of the name, address and telephone number of the Children’s treating doctors and authorise those doctors in writing to release to the other party particulars of the Children’s health and treatment at any time requested by the other party;

   d.inform the other party in writing of the address and telephone contact details if the Children are to be taken overnight out of this metropolitan region of Sydney;

   e.be restrained from denigrating the other party to or in the presence of the Children. 

   10.That the Husband shall collect and return the Children at the commencement and cessation of all changeover periods when it does not occur at the children’s day care.

   11.That whilst the Children are living with or spending time with each parent, the Husband and Wife respectively shall ensure the Children can communicate with the other parent by telephone at any reasonable time and, for the purposes of facilitating same, the following provisions apply:-

   a.Each parent shall be at liberty to telephone the Children at the other party’s mobile telephone at all reasonable times and the other parent shall ensure the Children speak with the first parent, on a mobile telephone number provided by the other party;

   b.The parties shall allow the Children to speak with the other party without interruption or distraction;

   c.That on any occasion that the Children request to speak to one parent whilst living with or spending time with the other, that parent will facilitate such telephone call where appropriate.

   12.That the Wife be restrained from consuming alcohol 24 hours prior to, and during, the periods the Children shall reside with her.

   13.That each party pay their own costs.”.

   3.That a sealed copy of these orders be served on the mother as soon as possible.

   4.That the substantive proceedings are listed in the Registrar’s Directions List at 11:00 am on 15 March 2007.

   5.That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.

1. On 21 December 2006 an application in a case was filed on behalf of the Father.

2. On 22 December 2006 the matter was listed before Judicial Registrar Johnston and he made the following orders:

   1.That orders 2.2, 2.3 and 7 of the orders made on 12 December 2006 are discharged and are replaced by the following:

   “That the children live with their mother each Thursday, Friday, Saturday, Sunday and Monday first occurring each fortnight commencing on 23 December 2006 from 9:00 am to 5:00 pm and that at all other times the children live with their father.”.

   2.That on Christmas Day 2006 the husband shall deliver the children to their mother at 8:00 am and collect them at 2:00 pm.

   3.That the husband shall deliver the children to the wife’s residence at the commencement of each day that they are to live with her and the wife will use a breath alcohol analysis device in the presence of the husband at the commencement and collection of each such day and in the event that the device registers any alcohol breath content the husband is permitted not to leave the children with the wife.

   4.That an Independent Children's Lawyer be appointed for the children [T] born on […] March 2002 and [L] born on […] February 2004 AND THE COURT REQUESTS the Director of the Legal Aid Commission of New South Wales to make the appropriate arrangements.

   5.That the husband’s solicitor forward forthwith to the said Director a copy of all documents filed in these proceedings.

   6.That the wife file and serve a Response and all affidavits in response not later than 2 February 2007.

   7.That these proceedings are otherwise adjourned to the call-over of the Judicial Registrar's Duty List at 9:30 am on 5 February 2007.

3. On 5 February 2007 an amended application in a case was filed on behalf of the Father.

4. On 8 February 2007 an affidavit was sworn by the Mother.

5. On 9 February 2007 a response to an application for final orders was filed on behalf of the Mother.  Among other things, the Mother was seeking that the children live with her from 6:00 pm Saturday to 6:00 pm Thursday each week and that “the Father be restrained from using marijuana in the 24 hours prior to the children living with him and whilst the children are living with him”.

6. On 10 February 2007 an affidavit was sworn by Ms H. Ms H is a friend of the Mother.

7. On 11 February 2007 an affidavit was sworn by the maternal grandmother

8. On 12 February 2007 an affidavit was sworn by the Father.

9. On 12 February 2007 the matter was listed before Judicial Registrar Loughnan and adjourned to 14 February 2007.

10. On 14 February 2007 an affidavit was sworn by the Mother.

11. On 14 February 2007 the matter was listed before Judicial Registrar Loughnan and the following consent orders were made:

    1.Orders and notations are made in accordance with the document titled “Orders” marked Exhibit 1 and attached hereto.

    2.Unless the parties otherwise agree the parties are to do all things to facilitate the mother communicating with the children by telephone between 6:00 pm and 7:00 pm on each day when the children are not otherwise with her pursuant to these orders.

    3.That communication is to be initiated by the mother texting the father between 6:00 pm and 7:00 pm on the relevant nights and by the father forthwith returning the call to the mother for the purposes of that communication.

    4.Pursuant to s.65DA(2) and s.62B, 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.

    EXHIBIT 1

    Upon hearing the legal representatives of the parties, the Court:-

    1.      ORDERS that, pending further order, the children of the marriage namely [T] born […] March 2002 and [L] born […] February 2004 (the “children”) spend time with the wife as follows:-

    (i)Each alternate weekend from Saturday 9.00am until 5.00pm that same day and from Sunday 9.00am until 5.00pm that same day; and

    (ii)  Each Monday from 9.00am until 5.00pm that same day.

    2.     ORDERS that, pending further order, the children otherwise live with the husband at all other times.

    3.     ORDERS that, whenever the wife spends time with the children, such time is to be, at all times, under the supervision of an adult whom the parties mutually agree upon; being Ms [SP] or such other adult person whom the parties may agree to in writing.

    4.     ORDERS that, for the purpose of Order 1 herein, where the wife consumes any alcohol or illegal drug or appears to the supervisor to have consumed alcohol or an illegal drug prior to and during any period when the wife is spending time with the children, then the supervising adult (being the supervisor referred to in Order 3 above) shall contact the husband forthwith to enable the husband to collect the children from the wife forthwith.

    5.     ORDERS that, pending further order, the wife be and is hereby restrained from consuming any alcohol or illicit substance 24 hours prior to, and during, any period that the children are to spend time with the wife.

    6.     ORDERS that, pending further order, the husband be and is hereby restrained from consuming or using marijuana.

    7.     ORDERS that Order 1 herein is to commence from this Saturday 17 February 2007.

    8.     NOTES that for avoidance of ambiguity the wife is to spend time with the children from 9.00am to 5.00pm four (4) days per fortnight.

    9.     NOTES that for the purposes of Order 3 herein, the parties agree that Mrs […] (the wife’s next door neighbour) is a suitable adult person to be the supervising adult when the children spend time with the wife.

12. On 22 March 2007 the matter came before me and I made the following orders:

    1.     The hearing is adjourned.

    2. Pursuant to Part 15.5 of the Family Law Rules 2004, Dr [G], Child and Family Psychologist be appointed as the Court Expert to enquire into and report upon matters pertaining to the welfare of the children [T] born […] March 2002 and [L] born […] February 2002

    3.     The Court Expert interviews the parties, the children and any other relevant persons for the preparation of the report.

    4.     The parties do all things necessary to facilitate the preparation of the report including attending upon the Court Expert as requested.

    5.     In preparing the report to the Court, the Court Expert be requested to consider the following matters:-

    5.1An assessment of the benefit to the each of the children of having and maintaining a meaningful relationship with each of the child’s parents and other significant others.

    5.2The need to protect the children from being exposed or subjected to physical, sexual or psychological harm or exposed to neglect or family violence.

    5.3The nature of each of the children’s relationships with each of the parents and recommendations as to how best to ensure a meaningful parent/child relationship.

    5.4The nature of the relationship between each of the children and significant other’s.

    5.5The willingness and ability of each of the child’s parents facilitate and encourage a close and continuing relationship between the child and the other parent.

    5.6The likely effect of any changes in the child’s circumstances including the likely effect in the child of any separation from:-

    5.6.1 Either parent.

    5.6.2 Any other child or other persons (including grandparent of other relative of the child) with whom the child has been living.

    5.7The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense would substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis.

    5.8The capacity of:

    5.8.1 Each of the child’s parents.

    5.8.2 Any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional psychological, educational and developmental needs.

    5.8.3 Whether there are any mental health or other issues that may impact upon the capacity of the parent.

    5.8.4 Whether there are any issues as to alcohol use and abuse that impacts upon the capacity of the parent.

    5.8.5 Whether there are any issues of illicit substance abuse that impacts upon the capacity of the parent.

    5.9The attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.

    5.10Any family violence issues involving the child or member of the child’s family.

    5.11Any family violence order that applies to the child or a member of the children’s family if:-

    5.11.1  the order is a final order; or

    5.11.2  the making of the order was contested by a person.

    5.12Whether 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.

    5.13Any views expressed by the child in relation to the arrangements for them to spend time with, and communicate with the other parent and the weight to be accorded to those views.

    5.14Any other issues identified by the Court Expert.

    6.     Each of the parties who is not in possession of a grant of legal aid and for whom the Legal Aid Commission of New South Wales has not waived the cost for the preparation of the Court Expert Report undertake to the Court to pay one half share of the cost of that party’s liability for the preparation of Dr [G’s] Report and such payment shall be made within seven (7) days of receiving Dr [G’s] account.

    7.     The parties solicitors provide written confirmation to the Independent Children’s Lawyer that their clients hold such funds to pay one half share of their liability for the preparation of the Court Expert Report, a sum of $1,500 or copy of correspondence from the Legal Aid Commission of New South Wales that the cost for the preparation of the report has been waived.

    8.     Leave is granted to the Independent Children’s Lawyer to photocopy without charge all material produced under subpoena to the Family Court of Australia, Sydney Registry.

    9.     Leave is granted to the Independent Children’s Lawyer to issue the following subpoena:-

    9.1Commissioner of Police

    9.2Department of Community Services

    9.3Dr [Q]

    9.4[K] Kindergarten

    9.5Ms [S] – psychologist

    10.    The mother and father shall forthwith attend upon a medical practitioner to arrange for a weekly urinalysis to commence with copies of urinalysis results to be provided to the other party and the Independent Children’s Lawyer and to Dr [G].

    11.    The mother within seven (7) days of the date of date of this order arrange for a liver function test to be conducted with the results being provided to the father and the Independent Children’s Lawyer and Dr [G].

    12.    Three (3) days prior to the attendance with Dr [G] the mother shall attend for a further liver function test with such results to be provided to the father, the Independent Children’s Lawyer and Dr [G].

    13.    Leave is granted for Ms [A], Family Consultant and Dr [G] to communicate with each other.

    14.    Liberty to apply on 72 hours notice in respect of the implementation and compliance with these orders.

    15.    It be NOTED that the Independent Children’s Lawyer is under no obligation to brief the Court Expert to commence the report until such time that the Independent Children’s Lawyer has received a copy of each party’s written authority referred to in paragraphs 6 and 7 above.

13. On 20 April 2007 subpoenas were issued on behalf of the Independent Children’s Lawyer to the K Kindergarten, Dr Q, the Department of Community Services and the New South Wales Police Service.

14. On 14 May 2007 a subpoena was issued on behalf of the Independent Children’s Lawyer to Ms S, Psychologist.

15. Dr G conducted interviews on 14 June 2007.  I am concerned about the amount of time he spent face to face with the Mother and the children and the manner in which he completed his assessment of the Mother.

16. Dr G prepared a report dated 27 June 2007.  In his report Dr G said:

    80In considering the parenting issues, it seems that it is in the children’s best interests to remain living with their father.  There is much less uncertainty about the quality of care and the predictability of care for the children in that environment.  I am particularly concerned that [T] is a sensitive child who is showing the impacts of the difficult life she has had to date and her need for stability, predicability and security will be high.  At the moment the big issue is the extent of contact between the children and their mother.  Whilst [the mother] seeks a shared care arrangement and essentially equal time with the children I feel this is not in the interests of the children given what I think is sufficient doubt about [the mother’s] stability and capacity for insight into her own behaviour.  There is no doubt the children love and want to spend time with their mother.  Contact should be regular.  However, until such time as [the mother] can demonstrate greater behavioural stability then I think she has to date, it seems unwise to consider overnight stays, or periods of contact in which the children are unsupervised.

    81In my mind [the mother] does require treatment for her psychological disturbance and alcohol use.  Since the key issue in considering the needs of the children is gaining insight into the difficulties and volatility of ones own behaviour (without such recognition there can be no effective change), I believe that [the mother] has substantial potential to maintain a sense of conflict and disharmony through her anger and resentment, and at times may be disinhibited by her use of alcohol.  I think the children respond to this conflict, especially [T].  It is therefore recommended that [the mother] not have unsupervised contact until she is able to deal frankly with the issues that currently disrupt her behaviour, and until she can demonstrate substantial control of her alcohol use.  This can be best done through a process of treatment and monitoring.  Such treatment can be effectively undertaken by a community based treatment service.  [The mother] has I think a problem alcohol use and not an alcohol dependency as such, hospitalisation is not necessary.  If her alcohol use is heavy and I assess it to be, she may need some home detox support, and it is more likely that the psychological rather than the physiological effects of abstinence will be more of a problem.  It is not the case that [the mother] has to consider abstinence in the long term, control drinking programs are as successful or more so than abstinence based ones, but for a period abstinence will be necessary so she can deal with the other psychological and emotional issues that clearly have been a problem for her, chief among them her relationship with her family and her expression of anger.

    82I believe that once such a treatment course is completed there should be increased contact and unsupervised contact with the children including overnight stays, but until such time as there is confidence about her openness to discuss, and control of, alcohol, the status quo should remain.

17. On 18 July 2007 Moore J released the report of Dr G and re-listed the matter for mention on 15 August 2007.

18. On 14 August 2007 an affidavit was sworn by the Father.

19. On 14 August 2007 a statutory declaration was sworn by a cousin of the Mother.

20. On 15 August 2007 an amended application for final orders was filed on behalf of the Father.

21. On 15 August 2007 I made the following orders:

    1.The mother shall forthwith attend upon and participate in a community based treatment programme such as but not limited to [H Clinic] or other such service, such attendance shall initially occur on a weekly basis.

    2.The mother shall forthwith attend for urinalysis three times per week for a period of six (6) consecutive weeks and thereafter on a random basis.

    3.The mother shall provide copies of the urinalysis results to the solicitor for the father and the ICL within 7 days of attendance for urinalysis.

    4.The mother shall provide a waiver to the community based treatment programme to provide a report to and hold discussions with Dr [G].

    5.Leave be granted for Dr [G] to provide a referral letter to the community based treatment programme.

    6.Dr [G] shall provide an updated Part 15.5 Expert Report in 6 months from the date of commencement of the mother’s participation in the community treatment programme.

    7.Each of the parties who is not in possession of a grant of legal aid and for whom the Legal Aid Commission of New South Wales has not waived the cost for the preparation of the Court Expert Report undertake to the Court to pay one half share of the cost of that party’s liability for the preparation of Dr [G’s] report and such payments shall be made within seven (7) days of receiving Dr [G’s] account.

    8.The parties’ solicitors provide written confirmation to the ICL that their clients hold such funds to pay one half share of their liability for the preparation of the Court Report a sum of $1,000.00 or copy of correspondence from Legal Aid Commission of New South Wales that the cost for the preparation of the report has been waived.

    9.Leave is granted to the ICL to photocopy without charge all material produced under Subpoena to the Family Court of Australia, Sydney Registry.

    10.The mother shall within seven (7) days prior to the attendance upon Dr [G] for the update report shall attend for a liver function test, such results to be provided to the ICL and father and Dr [G].

    11.The mother shall attend upon random urinalysis no more than once per week within 24 hours of a request by the ICL, at the completion of urinalysis as prescribed at paragraph 2.

    12.The mother shall advise the ICL and husband’s solicitors as soon as practicable of any missed appointments with the community treatment programmes and reasons thereof, if such cancellation takes place at the mother’s request.

    13.Liberty to apply on 72 hours’ notice in respect of the implementation and compliance with these orders.

    14.The orders made until further order on 14 February 2007 continue save for paragraph 9 which should be amended to include [the mother’s cousin].

    15.The mother shall attend such other counselling and therapy including psychological treatment which the community based treatment programme may so advise or require, and the mother shall so attend as directed.

    16.Grant leave to the husband to file in Court today the husband’s Amended Application dated 14 August 2007 and husband’s Affidavit sworn 14 August 2007 and Affidavit of [Ms GK] sworn 12 March 2007.

    17.It is NOTED that it is anticipated that the mother’s attendance at the community treatment programme will be weekly however the frequency and duration of such appointment will be at the discretion of the community treatment programme.

22. On 6 September 2007 Dr G provided a referral letter for the Mother to attend a treatment programme for alcohol abuse.

23. There was put into evidence (exhibit E) documents produced to the Court in response to subpoena by the H Clinic.  The Mother attended the clinic on 21 September 2007.  The Mother also attended on 27 September 2007.  The Mother cancelled an appointment at the clinic for 17 October 2007.  The Mother attended the clinic on 25 October 2007.  The Mother cancelled an appointment at the clinic for 1 November 2007.  The Mother had a telephone session with a senior psychologist from the clinic on 8 November 2007 and also 15 November 2007.  The Mother attended an appointment at the clinic on 23 November 2007 and 27 November 2007.  The Mother failed to attend an appointment on 4 December 2007. 

1. In February 2008 the child T commenced to attend school.

2. On 5 March 2008 the matter was re-listed before me and I made the following orders:

   1.The Mother serve within 14 days an affidavit in which she provides evidence in relation to her participation in a community base treatment program at the [H Clinic].

   2.I note that the parties will forthwith put in train arrangements to obtain an up to date report from Dr [G].

   3.I note the parties will as soon as practicable advise the Independent Children’s Lawyer as to the current arrangements with respect to time spent by the children with the Mother.

   4.I note that the Mother is having time with the children and that the current arrangements in respect of that appears to be working.

   5.The hearing be adjourned for a date to be fixed.

   6.The parties be granted liberty to have the matter restored as soon as practicable after receipt of the completed report of Dr [G].

   7.I note that it will in all probability be necessary for Dr [G] to confer with [Ms …], formerly of the [H Clinic].

   8.I grant to the Independent Children’s Lawyer leave to issue a subpoena direct to the [H Clinic] and the school to which the children are attending, such subpoena to be made returnable before a Registrar.

3. On 19 May 2008 correspondence was received from the Independent Children’s Lawyer seeking to re-list the matter because of the Mother’s refusal to answer correspondence.

4. On 2 June 2008 the matter was re-listed before me and I made the following orders:

   1.The matter be listed for further hearing on 4 and 5 August 2008.

   2.It be noted that it is intended on those adjourned dates to conclude the hearing.

   3.Each of the Mother and the Father are to file and serve by 4.00 pm on 18 July 2008 an amended application in which it sets out with precision what final orders they each seek.

   4.The Father file and serve by 4.00 pm on 18 July 2008 an affidavit setting out the evidence he relies upon to support his contentions as to why the regime he proposes is in the best interest of each child.

   5.The Mother file and serve by 4.00 pm on 18 July 2008 an affidavit in compliance with Order 1 made on 5 March 2008.

   6.The Mother file and serve by 4.00 pm on 18 July 2008 an affidavit setting out the arrangements for the supervision of the children in accordance with the orders made on 14 February 2007.

   7.The Mother file and serve by 4.00 pm on 18 July 2008 an affidavit setting out why she contends the orders that she proposes are in the best interests of the each child.

   8.Dr [G] is to provide an up-to-date report for the purposes of the adjourned hearing.

   9.It be noted that the mother must understand that if she wishes to have an input into the up-to-date report of Dr [G], then she should attend any consultations that Dr [G] may request with her and further comply with any directions or requests made by Dr [G] of her such as undertaking a liver function test.

   10.The solicitor for the Husband will cause to be served on the Mother within seven days of today’s date a sealed copy of these orders.

   11.It be noted that the Father is concerned about Order 1(2) made on 14 February 2007 and that although I do not propose to make any order amending those orders, I accept that there should be no reason why the child [T] should spend time with the Mother each Monday prior to commencing school on that day.

   12.The Independent Children’s Lawyer will cause to be served upon Dr [G] within seven days a sealed copy of today’s orders.

5. By letter dated 2 June 2008 the Independent Children’s Lawyer wrote to the Mother referring to correspondence of 16 April 2008 and 19 and 29 May 2008 and stated that the Independent Children’s Lawyer had no communication with the Mother in relation to issues raised in earlier communications and awaited the Mother’s response as a matter or urgency.  The Independent Children’s Lawyer also advised the Mother of the orders I made on 2 June 2008 and further the Independent Children’s Lawyer encouraged the Mother to reengage in the process to participate in the preparation of a report by Dr G.

6. By letter dated 3 June 2008 the solicitor for the Father sent to the Mother a sealed copy of the Orders I made on 2 June 2008.

7. Dr G prepared a second report dated 13 July 2008.  Dr G saw the Father and the children on 2 July 2008.  In his report Dr G said “despite several telephone calls and sending two letters I was unable to make contact with [the mother].  No interview therefore took place”.

8. In relation to the records of the H Clinic, Dr G said that the notes and urine screens suggest that for the last half of 2007 compliance with the treatment program was occurring.  However treatment and screens ended in early November although no discharge plan was apparent and it seemed to just end abruptly with a missed appointment.

9. In his report Dr G said.

   16Conclusion.   It is somewhat difficult to make such in the way of recommendations given the inability of [the mother] to attend the interview.  I think what seems to be the case is that a stable routine has developed of the children living with their father, and having contact with their mother.  The obvious issue is the probability that overnight contact could occur.  The main issues involved in the contact regime is the role of supervision and the possibility of relapse in [the mother’s] drinking.  I assume if I had seen [the mother] she would have declared that there was no concern about her alcohol use, but as she was quite defensive about it to start with (see para 57 of my original report), I am not sure what to make of her sudden cessation from the treatment (and with it the abrupt end to the alcohol testing).  The file notes do not reveal in any sense the treatment is coming to an end.  I think the absence in the file notes are any reference to alcohol specific treatment may reflect the belief the service provider has in the claims of [the mother] that she had no problem with alcohol to start with.

   17It does seem that [T] at least is experiencing some difficulty in maintaining a strong connection to her mother.  When her self report was influenced by her loyalty to her father, or whether it represents a genuine attenuation of her bonding with her mother I am not able to say.  Ideally the contact regime should be able to progress to overnight weekend contact.  I do not believe there should be any reduction in the contact unless there is clear evidence that there is both and ersatz supervision process and an increase in drinking. I think there is reasonable grounds to indicate the former, but not unambiguously the latter.  However, there remain too many unknowns in this situation for me to make a recommendation for an increase in contact.

   I regret my report is unable to be more useful.

10. The Father swore a further affidavit on 15 July 2008.

11. By letter dated 29 July 2008 the Independent Children’s Lawyer wrote to the Mother referring to previous correspondence and confirmed that the Independent Children’s Lawyer had no communication from the Mother and advised her that if there was no appearance by her on 4 August 2008 that the matter may proceed in her absence.  The Independent Children’s Lawyer also advised the Mother that the Independent Children’s Lawyer would oppose any application by the Mother for an adjournment of the hearing on 4 August 2008.

12. By letter dated 31 July 2008 the solicitor for the Father sent to the Mother a copy of a letter dated 30 July 2008 together with a summary of argument.

13. By letter date 31 July 2008 the Mother wrote to the Court referring to the hearing on 4 August 2008 and stated that she needed to have the case adjourned.  She stated she currently had no legal representation and was seeking a new solicitor to act on her behalf.  Notwithstanding this request for an adjournment, given the history and among other things, the failure by the Mother to attend at Court on 4 August 2008 I did not adjourn the hearing and the matter proceeded to a conclusion. 

14. The Father gave further oral evidence before me on 4 August 2008.  He informed me that he is presently residing in rented accommodation at N however he has recently purchased a home at D Street in N and he anticipates the purchase will be settled in August. 

15. The Father informed me that the Mother is presently residing in a rented unit in W and she shares this accommodation with a female person.  The Father also informed me that he understands that the Mother is employed in a shop.

PARENTING-RELEVANT PRINCIPLES

1. For a discussion of the relevant provisions of Pt VII of the Family Law Act 1975 (Cth) see Goode and Goode (2006) FLC 93-277.

BEST INTERESTS

1. I propose to deal with each of the primary considerations in s 60CC and then the additional considerations in that section, having regard to the objects of Pt VII and the principles underlying the objects.  I will then consider whether the presumption of equal shared parental responsibility does not apply or if it would not be appropriate in the circumstances for the presumption to be applied or if it is rebutted.  If the presumption does apply and it is appropriate that it be applied and it has not been rebutted then pursuant to s 65DAA I will consider whether each child is to spend equal time or substantial and significant time with each parent. 

Primary considerations

1. I am required to consider the benefits to each child of having a meaningful relationship with both of the parents.  This is an important matter.  It is important that the children have a meaningful relationship with both parents and this is agreed.

2. The nature and the quality of the relationship between the child and each of the parents has not been recently assessed in the updated report prepared by Dr G dated 13 July 2008, as the Mother did not participate in that assessment.  However Dr G in that report suggested that the relationship with the child T was forming “in the way it might be expected, and this may be due to poor opportunity (to progress a relationship) or other factors that I am not aware of because I have not had the opportunity to talk with [the mother]”. 

3. The Father accepts that the Mother loves the children and they love her and he is supportive of a meaningful relationship of the children with both parents.

4. I am required to consider the need to protect each child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.  This matter is relevant in this case.

5. On behalf of the Independent Children’s Lawyer it was submitted that the Mother’s use/misuse of alcohol is a significant factor in this matter and the potential of neglect and risk should the children who are six and four years of age be exposed to an environment where alcohol is used/misused.

6. Dr G in his report of June 2007 identified that the Mother minimised her alcohol use and there is no evidence before me that the Mother has completed a treatment programme as envisaged by Dr G in his report in June 2007 and the referral letter for treatment in September 2007.  Accordingly I accept that there must be some doubt as to whether these matters have been addressed.

Secondary considerations

1. I am required to consider any views expressed by each child and any factors, such as the maturity or level of understanding of each child, that I think are relevant to the weight I should give to the views of each child.  Section 60CD sets out how I may inform myself of views expressed by a child.  However, I am not permitted to require a child to express views in relation to any matter: see s 60CE.  No submissions were made in relation to this matter.

2. I am required to consider the nature of the relationship of each child with each of the parents and other persons including any grandparent or other relative of each child. 

3. On behalf of the Independent Children’s Lawyer it was submitted that the quality of the relationship between the children and the Father was again assessed for the July 2008 report prepared by Dr G. 

4. However there is no recent information available as to the quality of the relationship between the Mother and children, nor as to the quality of the time or the circumstances of arrangements that have been put into place for the children to spend time with and communicate with the Mother.

5. Having regard to what I was told by the Father I am going to proceed on the basis that there is a good relationship between the children and both parents.  I also have regard to what Dr G said in his first report about his brief observation of the Mother and the children.

6. I am required to consider the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between each child and the other parent.  In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to each child and to spend time with each child and to communicate with each child.  I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to each child and spending time with each child and communicating with each child.  I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain each child.  If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated. 

7. On behalf of the Independent Children’s Lawyer it was submitted, and I agree, that the Father has demonstrated a preparedness to facilitate arrangements whereby the children spend time with the Mother.

8. The Mother has continued to spend time with the children in accordance with the orders made by Judicial Registrar Loughnan in February 2007.  On behalf of the Independent Children’s Lawyer it was submitted, and I agree, that there is no evidence that the children have not been presented for that time with the Mother and the Mother has not been available to spend time with the children.

9. I am required to consider the likely effect of any changes in the circumstances of each child including the likely effect on each child of any separation from either parent or any other child or other person including any grandparent or other relative of each child, with whom each child has been living.

10. I am also required to consider the practical difficulty and expense of each child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the right of each child to maintain personal relations and direct contact with both parents on a regular basis.  This is an important matter.

11. There is no evidence before me as to the process of consultation and decision making in relation to the children between the Mother and the Father.

12. Dr G was of the view that there should not be a reduction in the time that the children spend and communicate with the Mother.  However the Father contends that there are practical difficulties in facilitating Monday arrangements for the children to spend time with the Mother given that the child T is now undertaking formal education and the child L shall commence formal education in 2009 and also given work commitments and responsibilities.

13. On behalf of the Independent Children’s Lawyer it was submitted, and I agree, that save for the issues raised above and issue of supervision there is no evidence that there are any financial impediments to the facilitation of time between the children and the Mother on a regular basis.

14. I am however concerned that if I made the orders sought by the Father and the Independent Children’s Lawyer the Mother would only spend time with the children every fortnight.

15. I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of each child, including emotional and intellectual needs. 

16. The capacity of the Mother to spend time with and communicate with the children other than for day contact and with a person present had not been able to be assessed given the Mother’s lack of engagement in the assessment by Dr G and the Court process since September 2007.

17. I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of each child and of either of the parents and any other characteristics of each child that I think are relevant. 

18. The children are four and six years of age and there are no issues identified by the Mother or the Father as to these matters.

19. I am required to consider the attitude to each child and to the responsibilities of parenthood demonstrated by each of the parents.  In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to each child and to spend time with each child and to communicate with each child.  I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to each child and spending time with each child and communicating with each child.  I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain each child.  If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.  This matter is relevant.

20. I am required to consider any family violence involving each child or a member of each child's family.  I am also required to consider any family violence order that applies to each child or a member of each child's family if the order is a final order or the making of the order was contested by a person.  The term "family violence order" is defined in s 4 of the Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence.  The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to the child or a member of the child's family.  In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of each child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1).  I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2).  .

21. There have been allegations made that during the relationship that there were issues of domestic violence.  However having regard to the manner in which the hearing proceeded I am unable to determine such issues.  There are however no current allegations of violence or any violence orders in place

22. I am required to consider 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 each child. 

23. I am of the opinion that final orders are required to be made to provide some certainty for the children and the parties.  This matter has been before the Court since December 2006.

1. I am required to consider any other fact or circumstance that I think is relevant.  There is nothing further I wish to say at this point.

PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY

1. In all the circumstances of this case, the evidence does not enable me to conclude that there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence and thus the presumption of equal shared parental responsibility does apply. 

2. However, I am satisfied that the presumption has been rebutted as it has been established that it would not be in the best interests of each child for the parents to have equal shared parental responsibility. 

TIME SPENT WITH EACH PARENT

1. As I am satisfied that the presumption of equal shared parental responsibility does not apply I do not have to consider whether it would be in the best interests of each child to spend equal time with each parent.  Further, I do not have to consider whether it would be in the best interests of each child to spend substantial and significant time with each parent.

CONCLUSION

1. On behalf of the Father it is submitted that the existing regime of the children spending time with the Mother, inter alia, every Monday from 9:00 am to 5:00 pm is not providing any meaningful benefit to the children for the purposes of having a meaningful relationship with the Mother.  The elder of the two children currently attends school five days a week, and the younger of the two children will be commencing school in January 2009.  The current regime provides little to no benefit for either of the elder child or the Mother given that the elder child is dropped off at the Mother’s house to be immediately turned around and driven to her school thereby resulting in the Mother spending, on average, only approximately 90 minutes that day with the elder of the two children.

2. On behalf of the Father it is submitted that the granting of the application will result in the children having greater stability and routine during the week days Monday to Friday inclusive.  That routine is currently disjointed by the current arrangements each Monday.

3. On behalf of the Father it is submitted that the Mother has failed to comply with orders and the requirement for supervision to occur throughout the entirety of the period in which the children spend with her on Mondays.  The evidence of the Father and the comments of the children indicate there is a higher degree of non-compliance on Mondays.  It is submitted that it is more likely than not that there would be less people available, due to work or other commitments on weekdays, to act as the supervisory adult than would otherwise be the case on a weekend.  Both parties have already expressed, throughout these proceedings, the difficulty that the Mother faces in obtaining a supervisory adult on weekends let alone during working hours on weekdays.

4. On behalf of the Father it is submitted that the granting of the Application will also reduce the possibility of ongoing risk to the children due to the Mother’s ongoing alcohol consumption, notwithstanding the orders restraining her from undertaking same.  In this regard, it is submitted I would accept the evidence of the Father as to his own observations and the comments of the children as to the Mother’s ongoing consumption of alcohol and hence her ongoing breach of the existing injunctions. 

5. On behalf of the Father it is submitted that I would grant the application given the Mother’s refusal to comply with previous orders as to completing the drug and alcohol course at the H Clinic; the failure of the Mother to comply with orders regarding the attendance upon Dr G for further assessment; the Mother having failed urinalysis tests and the Mother’s failure to comply with various other orders of this Court.

6. On behalf of the Father it is submitted that the application, if granted, would reduce the time that the children are exposed to the Mother’s drinking, and particularly on weekdays on an unsupervised basis.  Furthermore, should the Father need to attend upon the children urgently, it is more difficult to do so on Mondays due to his work commitments which can have him geographically further away from the Mother’s premises or such place as the Mother may have taken the children.  Additionally, other family members of the Father similarly are less available on weekdays due to work commitments.

7. On behalf of the Father it is submitted that there is a practical difficulty and expense of the children spending time with the Mother each Monday, resulting in a disruption to the Father’s normal work routine resulting in less work and hence less income flowing into the children’s household, particularly in circumstances where the Mother has failed to comply with or make any attempt to contribute towards outstanding child support liabilities for which she has been formally assessed.

8. Subject to some matters I accept a number of the submissions made on behalf of the Father.  In particular I agree that the children spending time with the Mother on a Monday is now problematic given that the child T is attending school.

9. I also accept that on the evidence presently available it would not be in the best interests of the children for them to spend overnight in the care of the Mother.

10. The issue is then what the regime should be.  It is unfortunate that the Mother did not participate in the hearing.  Dr G in his second report made clear that there should not be any reduction in the time unless there is clear evidence that there is both an “ersatz” supervision process and an increase in drinking.  Further Dr G was of the opinion that ideally the regime should be able to progress to overnight weekend contact.  I agree with both these matters.

11. Both of the children are progressing well.  In his second report Dr G said the Father told him that the children are developing well and that the child T recently won an award at school.  The Father told Dr G that the child T has developed in “leaps and bounds” in her manner and personality and gets good feedback about her behaviour.  The Father also reported that the children seemed quite healthy and that he has no concerns about their behaviour and psychology state.

12. Dr G did say that a concern is that the relationship between the Mother and the children is not forming with the Mother in a way it might be expected and that this may be due to poor opportunity to progress a relationship or other factors Dr G was unaware of because he had no opportunity to talk to the Mother.

13. The Father proposes that the Mother will see the children for two days in each fortnight.  However I am concerned that the Mother will not see the children in the intervening week.  I will make the orders sought by the Father however I make quite clear that I expect that some arrangement be put in place whereby even for a few hours after school the Mother sees the children in the intervening week.  I expect that steps will be taken to progress the relationship of the Mother and the children.

14. As to the proposed supervision I will subject to some change, make the orders sought by the Father.  However I accept that this may also be problematic.  In his second report Dr G recorded that he was told by the Father that currently the children stay with him and the Mother has every second weekend, usually supervised by the Mother’s friend.  Dr G said that the Father has some doubts about the consistency of the supervision.  Dr G also said that the Father is unable to be clear about whether supervision is required.  The Father reported that he would like to think that the Mother has got to the stage where she does not need supervision and that his dilemma is his experience that the supervision is lax and that the issue of drinking is practically impossible to assess.  Further the Father said he thinks that it is probably too onerous for supervision to be required full time and that it is in any event probably only an issue during the day.

15. I will make an order for supervision however it will not be as onerous as proposed by the Father.

16. On one view the hearing of this matter proceeded to a conclusion on an undefended basis.  It is a great pity the Mother failed to do what she was required to do and did not participate in the hearing.  It may be that the Mother will seek to bring a further application and if she does then she may have to confront some of the issues that on one view remain unresolved.  On the other hand it may be that the parties can resolve any issue without the need for litigation.  Notwithstanding the issues the parties have been able to reach some accommodations.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate: 

Date:  5 August 2008