Harries and Canon

[2011] FMCAfam 26

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARRIES & CANON [2011] FMCAfam 26

FAMILY LAW – Parenting – the time the children should spend with their father – the children’s relationship with each of their parents – issues relating to the father’s abuse of alcohol and emotional health – the mother’s willingness for the children to have a meaningful relationship with their father.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR & GR [2010] HCA 4
Oscar & Traynor [2008] FamCAFC 158
Runcorn & Raine [2008] FamCA1021
Slater & Light [2011] FamCAFC 1

Applicant: MS HARRIES

Respondent: MR CANON

File Number: BRC 670 of 2009

Judgment of: Walker FM

Hearing dates: 16 & 17 August 2010 & 8 November 2010

Date of Last Submission: 8 November 2010

Delivered at: Sydney

Delivered on: 24 February 2011

REPRESENTATION

Counsel for the Applicant: Ms Messner

Solicitors for the Applicant: John R Quinn & Co

Counsel for the Respondent: Self represented

Solicitors for the Respondent: Self represented

THE COURT ORDERS THAT:

1. The children [X] born [in] 2003 and [Y] born [in] 2005 are to live with their mother.

2. The parents are to have equal shared parental responsibility for the children subject to Order 3 below.

3. The mother is to consult the father in writing in relation to any long term decision affecting the children, or either of them, and in the event that the father does not respond to the mother within twenty-eight (28) days, she is entitled to solely make that decision. If the father does respond to the mother within twenty-eight (28) days and the parents are unable to agree, they are to:

   (a)Make arrangements to attend mediation about the issue; and

   (b)If mediation cannot take place because of a decision of a particular agency, or if mediation is unsuccessful, the mother is to make the final decision.

4. The father is to spend time with the children as follows, unless otherwise agreed:

   (a)Each alternate weekend from 9.00 am Saturday to 6.00 pm Saturday and from 9.00 am Sunday to 6.00 pm Sunday commencing on the first Saturday following the making of these orders.

   (b)Provided that the father has spent time with the children on four weekends, as provided for in Order 4(a) above, over a period of two months, the father’s time with the children is to be extended so that it commences at 9.00 am on Saturday and concludes at 6.00 pm on Sunday, upon the father providing the following information to the mother:

   (i)details of the psychologist or psychiatrist with whom he is consulting in relation to the issues of alcohol abuse and mental health referred to by Dr M in his two reports; and

   (ii)written confirmation from the psychologist or psychiatrist that the father is engaged in a program of counselling, or therapy with him/her, and that the father’s alcohol intake is being monitored.

   (iii)any such extension of the father’s time as provided for in this order, is to commence on the next weekend when the children will be spending time with their father pursuant to Order 4(a) above.`

   (c)The father’s time with the children pursuant to Orders 4(a) and 4(b) is to be suspended on up to three (3) occasions each year should the mother give the father four (4) weeks written notice that she intends to be away from [C] to spend a period of holiday time with the children.

   (d)The mother is to make the children available to spend time with the father equivalent to that which they would have spent except for the operation of Order 4(c) above, if the father within a week of receiving notice pursuant to Order 4(c), provides the mother with written notice of days and times on which he would be able to spend equivalent time with the children on another occasion.

   (e)No later than two (2) years following the date of these orders, provided the father has been spending regular time with the children in accordance with these orders, the parents are each to take the steps necessary to engage in mediation relating particularly to an extension of the father’s time with the children and any proposal of either of the parents to travel overseas with the children.

5. On Special days, unless otherwise agreed:

   (a)The children are to spend time with their father on each Father’s Day from 9.00 am to 6.00 pm if they would not otherwise be spending time with him on that day.

   (b)The children are to spend time with their mother on Mother’s Day from 9.00 am to 6.00pm if they would not otherwise be with her on that day.

   (c)The children are to spend at least two (2) hours on each of their birthdays with the parent with whom they would not otherwise be living, or spending time with, on such days.

   (d)If the children have commenced spending overnight time with their father, they are to spend time with him each year from 12.00 noon on Christmas Day to 12.00 noon on Boxing Day. In the event the children have not commenced spending overnight time with their father they are to spend time with him each year on Christmas Day from 2.00 pm to 7.00 pm.

6. For a period of two (2) years from the date of these orders the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the children [X] born [in] 2003 (male) and [Y] born [in] 2005 (male) from the Commonwealth of Australia for a period of two years from the date of these orders. The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said children from the Commonwealth of Australia.

7. For a period of two (2) years from the date of these orders the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s, [X] born [in] 2003 (male) and [Y] born [in] 2005 (male), names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

8. If the father proposes to travel overseas he is to provide the mother with notice of his intention prior to his departure, and is to advise the mother of his proposed return date.

9. While the father continues to spend time with the children in accordance with these orders, excluding his inability to spend time with the children for a period when he is travelling overseas and has given the mother notice in accordance with Order 8 above, the mother is restrained from moving the residence of the children from [C] without the written consent of the father or an order of the Court.

10. Each of the parents is to keep the other advised of details of their residential address, and landline and mobile telephone numbers.

11. Each of the parents is to give the other twenty-eight (28) days notice of any proposed change of residential address.

12. That pursuant to s.65DA(2) 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 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 Harries & Canon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

BRC 670 of 2009

MS HARRIES

Applicant

And

MR CANON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The father wants to spend more time with his two sons aged seven and almost six. The mother expresses concern about the father’s history of problematic drinking and his mental stability. The father is from Belgium. After separation, the mother moved with the children from Sydney where the family had been living, to [C] where her family lives. The father later moved to [C] to be close to his sons but says that he has found the move difficult because he has felt isolated there and has experienced difficulty finding employment which matches his qualifications and skills. His future plans are uncertain.

Background

1. The mother was born in Sydney [in] 1967. The father was born in Belgium [in] 1968.

2. The parents met in 2002 while the mother was working in Belgium. They commenced living together in about April 2003.

3. Their older son, [X], was born [in] 2003. Their second son, [Y], was born [in] 2005. Both children were born in Brussels. The parents and children moved from Brussels to Australia on 8 February 2005. They initially resided in [C] where the mother’s parents live.

4. The father, who has university qualifications in [omitted] in Belgium, found it difficult to obtain employment in [C]. He moved to Sydney in about August 2006 when he obtained employment there. The mother moved to Sydney with the boys at the end of October 2006. The family purchased a home at [R].

5. In early February 2007 the father was advised that his sister, who lived in Belgium, had been diagnosed with cancer. In August 2007 her cancer was confirmed to be terminal. The father was very close to his sister and was very upset by the diagnosis

6. The family visited Belgium during the year. The father, who lost his job in late October after the firm in which he was employed experienced financial difficulties, went to Belgium alone from 5 to 17 November 2008.

7. Shortly after the father returned from the visit to Belgium, he and the mother attended a wedding in Melbourne. The mother says that the father was intoxicated at the wedding and assaulted her, that he threatened her in a car on the way to the home of a friend who collected them from the wedding, and that he assaulted her again when they arrived at their friend’s home.  The father agrees that he was intoxicated and behaved aggressively towards the mother but disputes the degree of violence alleged by the mother.

8. The parents separated following this incident. The mother and children went to stay for a few days with the maternal grandparents in [C].

9. The father sent an email to the mother on 24 November 2008[1] in apologetic terms acknowledging his excessive drinking, that he had assaulted her verbally and “now physically”, and telling her that the house was hers. The mother replied on 25 November 2008 saying that she was grateful that the father had made an offer for her to stay in the house with the boys.

   [1] There was no dispute at hearing as to the content of these emails referred to in the judgment.

10. The father consulted his general practitioner, Dr P, on 25 November 2008 seeking assistance with his drinking problem. He was referred to psychologist Ms F.

11. The mother, who was working in Sydney at the time, told the father that she expected to return from [C] shortly and asked him if he could find somewhere else to stay by the time she returned. She said that her parents would accompany her to Sydney in the light of recent events. The mother planned to return to [C] to spend time there over the Christmas holiday period.

12. The mother returned to Sydney on 27 November 2008 and told the father that she had changed the locks on the family home. The father, it seems, did not complain about this. He told the mother that he had consulted his general practitioner and would be seeing a psychologist.

13. The father began counselling with Ms F on 3 December 2008. Ms F’s records show that she saw both parents together on 4 December 2008 to speak to them about what to tell the children about their separation.

14. The father emailed the mother on 7 December 2008 saying he would look for somewhere to live but would do work on improvements around the house while the mother was away over Christmas. The mother agreed to this. She said in an email of 8 December 2008 that she had advised her employer that she would not be back until 12 January 2009.

15. The father says that at counselling with Ms F it was revealed he had a repressed memory of being sexually abused at the age of 14. The father said that the revelation was liberating for him and that he wanted to discuss it with the mother.

16. The father met the mother on 17 December 2008. She said that he told her that he had discovered things from his past and that he had been sexually violated when he was picked up as a hitch hiker when he was fourteen. She said that he told her that he had researched the internet and found that he had post traumatic stress disorder. The mother says that the father expressed concern about the effect on his sister about finding out about the separation and suggested that they move back in together until after his sister died.

17. The father sent the mother an email on 22 December 2008 saying that he was the victim of something that had been done to him a long time ago and that it had made him increasingly unwell. He suggested that the maternal grandparents meet with Ms F and that she would explain that he was not dangerous, that he well on his way to being cured and that damage to his sister needed to be avoided.

18. The father visited the children in [C] on Christmas Day and again for [Y]’s birthday on [date omitted] 2009. He says that, following his return, he attended the [omitted] police station to report his concern that the mother, whom he thought had appeared pale, irrational and depressed, might have an accident while driving the boys in her car.[2] He says he also then discovered that the mother had withdrawn $90,000.00 from the joint bank account. He contacted Victorian police because he says he was hoping to obtain information that would show that there had not been the level of violence asserted by the mother during the events of 22 November 2008.

    [2] Fathers affidavit sworn 9 August 2010, Paragraph 108.

19. On 9 January 2009 the father, while looking through documents at the matrimonial home, found a letter dated 28 September 2007 to the mother from a firm of solicitors. The mother said in her evidence that the father’s drinking had been causing difficulties in their relationship and that she sought legal advice about her entitlements. She had, at the time, referred to a move to [C] being one option. The father says that on seeing this correspondence he formed the view that the mother was following a course of action which she had plotted for some time.[3]

    [3] Fathers affidavit sworn 9 August 2010, Paragraph 114.

20. At the same time, [Y] was due to have surgery. The father emailed the mother on 10 January 2009 requesting that the operation be postponed by a week. He said that he was very distressed and thought that he was going into a depression and that a week would help as he would be able to see Dr P for some medication. He suggested that the mother stay another week in [C] and commented that he was exhausted.

21. The mother responded on 10 January 2009 that she wanted to know what he was thinking in terms of the house as she did not want to bring the boys back if he was not intending to vacate it.

22. On 12 January 2009 the father asked the mother to elaborate on why he should be the one to vacate the house. He suggested that they live together under the one roof. The mother responded on the same day saying to the father that if he did not vacate the house she would not be returning there with the boys.

23. On 14 January 2009 the father sent an email to the mother proposing a time share arrangement for the home so that the children lived there while the parents moved in and out.

24. On 20 January 2009 the father attended [omitted] Police Station expressing concern for the children in the mother’s care. The police visited the mother’s home in [C] and advised that the children had been sighted and were fine.

25. In an email dated 22 January 2009 the father offered the mother exclusive use of the matrimonial home. The mother responded that she had now decided to make an application to change the children’s residence to [C] and had made an application for an Apprehended Violence Order for her protection against the father.

26. The father says he was served with the application for the Apprehended Violence Order on 25 January 2009.

27. The mother filed a Notice of Child Abuse or Family Violence, on

    
    

    28 January 2009.

28. The application for the Apprehended Violence Order was before the Court in [C] on 2 February 2009 when an interim order was made which included the mother and the children as protected persons.

29. The father attended the Emergency Department of [omitted] Hospital on 21 March 2009 and again on 25 March 2009 when he was kept overnight to see a psychiatrist the following morning. The father referred to his two major stressors being his family situation and his sister’s terminal illness. He told staff that he thought it would be better if he arranged to return to Belgium to see his sister.

30. The father left for Belgium on 27 March 2009. He returned to Australian when the matter was before the Court on 4 April 2009 and left again for Belgium on 14 April 2009, returning to Australia on

    
    

    7 May 2009.

31. Interim orders were made in the Federal Magistrates’ Court on 5 May 2009. These orders provided for the children to live in the [C] area and for a report to be prepared by a psychiatrist relating to the father’s mental stability, his parenting capacities and any effect of his mental stability on the welfare of the children. Pending receipt of the report, the father was to spend supervised time with the children at Interrelate [C]. The orders provided that if the psychiatrist’s report stated that the father was able to care for the children, the children were to spend alternate weekends with their father which also alternated between [C] and Sydney.

32. The orders provided for a graduated increase in the children’s time with their father. Initially they were to spend time with him during the day on the Saturdays and Sundays of the alternate weekends, and then for a further period, from Saturday at 10.00 am until Sunday at 4.00 pm, increasing from 16 October 2009, to be from Friday at 4.00 pm to Sunday at 4.00 pm on the weekends spent in [C], and from Saturday at 10.00 am to Sunday at 4.00 pm, on the weekends in Sydney. Order 6 of these orders provided that, subject to the psychiatrist’s report stating the father was fit and able to care for the children, the father was at liberty to spend time with them on one extra weekend each month in [C] if he gave the mother seven days notice. The orders also provided that the father was not to consume alcohol within 12 hours of spending time with the children and that he was to attend regular counselling with a psychologist and provide an authority to the psychologist to correspond with the mother regarding his ability to care for the children.

33. The father left for Belgium on 8 June 2009. His sister died on 29 July 2009. The father returned to Australia on about 23 August 2009 for the appointment which had been organised with psychiatrist, Dr M on 25 August 2009.

34. The father left again for Belgium on 8 September 2009.

35. Dr M’s report dated 16 October 2009 was released on 20 October 2009.

36. The father says having read Dr M’s report, which indicated that he was not a risk to the children, he decided to return to Australia and settle in [C]. He arrived in [C] on 22 November 2009. He saw the children on that date for the first time since [Y]’s birthday on [date omitted] 2009 and from the end of November commenced spending time with the children on alternate weekends.

37. The father attended the Emergency Department of [C] Hospital on

    
    

    7 December 2009 complaining of depression, and referring to his family circumstances and concern about being isolated.

1. The father presented again to [C] Hospital on 22 June 2010 where he was admitted. The records also refer to subsequent home visits, in particular, a home visit on 27 June 2010 when the police were called because the father was not answering. He was found in his home intoxicated.

2. The father was admitted to [B] Hospital from 29 June 2010 to 3 July 2010 to take part in a detoxification program.

3. On 21 July 2010, the father was found intoxicated and was sent by ambulance to [C] Hospital. The hospital notes described him as being in a heavily intoxicated state and recorded that he was admitted on

   
   

   22 July 2010 and discharged on 4 August 2010.

4. Report of family consultant, Dr V, was released on 4 August 2010.

5. The matter came before the Court for hearing on 16 and 17 August 2010. The proceedings were part heard and adjourned for further hearing to 8 November 2010. Given the father’s hospital admissions in June and July, an order was made for Dr M to prepare an updated report. An appointment for this purpose was scheduled for

   
   

   27 September 2010.

6. The mother subsequently filed an Application in a Case seeking a suspension of the father’s time with the children until the matter was next before the Court. She expressed a concern that the father did not intend to attend the appointment with Dr M. The father did not appear when the matter was before the Court on 22 September 2010. The Court listed the matter again on 30 September 2010 and suspended the time the children were to spend with their father until that date. The father kept his appointment with Dr M and the matter was stood over until a report was received from Dr M.

7. The father did not appear on the next Court date, 8 October 2010. The order suspending the father’s time with the children was continued. The father appeared on 13 October 2010 when the orders were varied to provide for him to spend time with the children from 9.00 am to 5.00 pm on each of Saturday and Sunday on alternate weekend and also for a further day on the intervening weekend of 23 October 2010.

The evidence

1. The Court had the benefit of the two reports prepared by Dr M, dated 16 October 2009 and 5 October 2010 respectively and the Family Report, dated 3 August 2010, prepared by family consultant, Dr V.

2. The father relied on his affidavit affirmed on 13 April 2010 and filed on 19 April 2010, his affidavit affirmed on 26 October 2010 and filed on 1 November 2010, his affidavit affirmed on 19 March 2009 and filed on 21 March 2009 and his affidavit affirmed on 9 August 2010 and filed on 10 August 2010.     

3. The mother relied on her affidavits sworn and filed on 8 November 2010, her affidavit sworn on 25 May 2010 and filed on 7 June 2010 and the affidavit of Mr S sworn on 5 March 2009 and filed on

   
   

   13 March 2009.

4. The father indicated that he wished to rely on the affidavit of the maternal grandmother which had been filed by the mother. It was suggested to him that he obtain legal advice about this. The father did not pursue this later in the hearing.

The proposals

1. The mother in her minute of orders[4] sought an order that she have sole parental responsibility for the children. She proposed that the father spend time with the children each alternate weekend from 9.00 am to 4.00 pm on both Saturday and Sunday and that during school holidays the father’s time with the children should be suspended if she gave the father 28 days notice of her intention to holiday outside the [C] area. She proposed that the father spend time with the children on special days.

   [4] Exhibit 9.

2. The mother further proposed that the father be restrained from removing the children overseas but that she be able to travel overseas on holiday with the children provided she gave the father notice and provided an itinerary and contact phone numbers. The mother proposed a notation to the orders that she would not oppose the father having leave to make an application to the Court to extend his time with the children in the event he obtained appropriate medical treatment to address “his alcohol dependence” and “any other personality or psychological issues that he has that impact upon his parenting capacity including any depressive illness”. She specified documents which should be provided to any proposed medial practitioner/ therapist and proposed that the father would also provide an updated report from Dr M.

3. The father in his minute[5] proposed that there be an order for equal shared parenting responsibility for the children. He proposed that the children live with their mother and that if he lived in the [C] area or in a locality near the mother and children, he spend time with the children each alternate weekend from after school on Friday to before school Monday, and on every other week from the conclusion of school on Wednesday until the commencement of school the following Friday, and one half of the school holidays.

   [5] Father’s Proposed Final Parenting Orders, Exhibit 10.

4. The father proposed that if he lived in Brisbane or any other place less than two hours from the residence of the mother and children by air, or other means of transport, that he spend time with the children every alternate weekend from 5.00 pm on Friday until 6.00 pm on Sunday, one additional weekend each calendar month upon seven days notice by him and half of the school holidays.

5. Should the father live at a more distant location in Australia, he proposed that he should spend time with the children at similar times, with the mother to deliver the children to a location designated by him which was to be less than two hours away from the mother’s residence by air or other forms of transport.

6. In the event that the father lived outside Australia, and in a country that was a signatory to the Hague Convention on the Civil Aspects on International Child Abduction, he proposed that he spend a block period of four weeks each year with the children and that the mother deliver the children to the airport nearest to his home. In such circumstances, the father also sought to spend half of all the school holidays in Australia with the children. The father also proposed that he be able to take the children to Belgium for at least three weeks in each even numbered year.

7. The father proposed an order that the mother not be able to move the residence of the children from the [C] area unless she moved to a city where the father lived. He sought an order restraining the mother from removing the children from the Commonwealth of Australia. The father also sought an order that the mother attend a psychiatrist for psychiatric assessment and that the children be assessed by a child clinical psychologist. The father proposed that this person report on the impact of the behaviour of both parents on the children, on any disorders from which the children might be suffering, and suggest amendments to the arrangements for the children to spend time with their parents.

8. A further proposal of the father’s was that each parent, every second month, attend a joint conference with a mediator or counsellor to review the children’s progress, share important information regarding the children, work towards resolving issues and provide an opinion about each parent’s behaviour.

9. The father also sought an order that the Court “pronounce sentence in relation to the mother’s contravention” of the interim orders. The father had filed a Contravention Application. After the matter was transferred to the Sydney Registry and when it was listed on one occasion prior to the hearing, the father had expressed uncertainly as to whether he would continue his proceedings. The Contravention Application had not been listed for hearing. During the final hearing, the father made it clear that he wished to proceed with the Contravention Application. The Court was unable to deal with the Contravention Application in the context of the final hearing. Accordingly it remains to be heard.

The issues  

• Whether the father’s consumption of alcohol and history of depression pose a risk to the children.

• Whether the children should spend overnight time with their father and if so what, if any, preconditions should apply.

• The mother’s willingness for the children to have a relationship with their father.

• Whether there should be an order for equal shared parental responsibility for the children.

The relevant law

1. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.

2. Section 60CC sets out the matters which the Court must take into account in determining what is in a child’s best interests.

Primary Considerations

Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child's parents

1. The family consultant saw the children and observed them with their father. She reported positive comments by each child about their parents. She described the children’s interaction with their father as “remarkably warm and joyful”, and expressed the opinion that the comments of the children and “the observations of them interacting with their father strongly suggest that he is a significant attachment figure for them.”[6] She commented that this was “in spite of the allegations that have been made by Ms Harries (the mother) that the children had a poor attachment to their father prior to the separation”, and in spite of the extended period in 2009 when the children did not spend time with their father.

   [6] Family Report dated 3 August 2010 prepared by family consultant, Dr V Paragraph 44.

2. Dr V referred to long term research which suggested that for boys “the denigration or absence of a significant male figure, may impact on their own sense of being male.” She commented further that, “children in families where the relationship with one parent is denied run a high risk of suffering from anxiety, depression and self destructive acting out behaviour.”[7]

   [7] Family Report dated 3 August 2010 prepared by family consultant, Dr V Paragraph 44.

3. The conclusion of the family consultant was that provided the children are safe, “it would be a significant loss for them if their relationship with their father was not nurtured by them continuing to spend substantial time with him on a regular basis.”

4. Dr V in her report, however, observed that it would be essential for the Court to be convinced that the status of the father’s mental health was no longer a concern. She commented in her report that, at the father’s request, no documents had been read by her. The report of Dr M dated 16 October 2009, notes from Dr P and Ms F, together with notes from [C] Hospital and [B] Hospital, were made available to her before she was cross examined at hearing. Dr V was more cautious in her recommendations at hearing than she was in her report.

5. This is a matter where the Court finds that the benefit to the boys of a meaningful relationship with their father needs to be balanced against the issues raised concerning the father’s mental health and abuse of alcohol.

Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The issues raised by the mother relate to her concern about the father’s use of alcohol and his history of depression. The Full Court in Slater & Light [2011] FamCAFC 1 has discussed the wording of s.60CC(2)(b) and emphasised that the subsection relates to physical and psychological harm relating to abuse, neglect and family violence. The Court referred to the definition of “abuse” in the Family Law Act 1975 (Cth) which is quite a circumscribed definition. It is not alleged in this matter that the children are at risk of the type of abuse set out in that definition. It has not alleged that they at risk of neglect. The mother did not seek that the father’s time with the children be supervised. It was submitted by the mother’s counsel that she did not want the father to spend overnight time with the children because, given the father’s medical history, she was concerned that the children would be at risk. The submissions of the mother’s counsel at hearing largely adopted the risk to the children which was identified by Dr M, whose evidence was not significantly challenged by the mother. It was contended that the longer the time the children spent with their father, the greater the likelihood that the father may drink alcohol, inappropriately involved the children in his own depressive responses and inappropriately discuss the mother with them.

2. The mother’s counsel referred to the decision of the Full Court in Oscar & Traynor [2008] FamCAFC 158 where the decision of the trial judge to restrict the father’s time with the children was upheld. In that matter, the trial judge had identified issues of risk arising from the father’s abuse of alcohol which had been such as to require in-patient treatment and where the father was found to have limited insight into his problems with alcohol. The father in that matter had failed to take steps to convince the mother that his apparent problem with alcohol was under control or being contained.

3. In this matter the father asserts that there is no evidence at all that points to any risk to the children if they were with him overnight or for longer periods of time.

4. It may be that the risks identified in this matter are those which should more be appropriately considered in the context of s.60CC(3) which refers to the capacity of the children’s parents to provide for the needs of the children, including their emotional and intellectual needs. At the same time considerable evidence in the proceedings related to the mother’s allegations of family violence arising from the incident on

   
   

   22 November 2008.

5. This is a matter where the issues can be better understood if the evidence relating to risk, whether it relates to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, or whether it relates to issues of parental capacity, are considered before the Court deals the more specific additional considerations set out in s.60CC(3).

6. Dr M first saw the father on 25 August 2009. He interviewed the mother the following afternoon. This consultation followed the interim orders made on 6 May 2009 which provided for the father to spend supervised time with the children pending report by a psychiatrist.

   
   

   Dr M, in his first report[8], noted that it was evident that the father had a previous history of Major Depression which had been treated and an Adjustment Disorder with depressed and anxious mood. His opinion was that at the time of assessment the father had a reactive mental state. He noted that the father referred to a family history of mental illness and thought it was likely that the father had substantive personality vulnerabilities. He did not, however, find evidence of a significant psychiatric disorder. He stated that he did not find any indication that the father was a risk to the children.

   [8] 16 October 2009.

7. Dr M did note that the father had a preoccupation with the behaviour of the mother. In his evidence at hearing Dr M described this as an “obsessional preoccupation”. He described the father’s references to the mother at interview and commented that, at the time, the father’s primary focus had related to his concerns regarding the mother’s mental stability and behaviour. He said that despite his clear instructions to the father, on more than one occasion, that this was not a purpose of the assessment, the father repeatedly referred to such concerns. Dr M described the father as having a somewhat paranoid view that he had been set up by the mother. Otherwise, his opinion was that there was no evidence that the father had overvalued ideas, paranoid delusions or abnormal perceptions.

8. The opinion expressed by Dr M in his second report of 5 October 2010 was that the father had a history consistent with a Major Depressive Disorder precipitated by recurrent experiences of separation and loss, which had been exacerbated by his excessive use of alcohol. His evidence was that the father had an alcohol dependence problem. In his view the father’s underlying personal vulnerabilities had been amplified by his social isolation, unemployment, financial circumstances and lack of social support.

The father’s alcohol consumption

1. In her affidavit, the mother complained about the father’s drinking during their relationship. She acknowledged that prior to the birth of the children she and the father shared a “party lifestyle”, which involved considerable drinking of alcohol.[9] She acknowledged that there were times when she was drunk. She said that this behaviour ceased when she became pregnant. Her evidence was that the father’s drinking continued and that it was a problem in their relationship. The father appeared to accept, following the incident on 22 November 2008, that he had a problem with alcohol consumption. He attended his general practitioner, Dr P, who recorded in his notes on 25 November 2008 that the father said he was an alcoholic and had been arguing with his wife who complained about his drinking. Dr P recorded that the father told him that he usually drinks five to six days a week and has ten standard drinks on a day on which he drinks alcohol.

   [9] Family Report of Dr V dated 3 August 2010 , paragraph 12.

2. Dr P referred the father to Ms F with a mental heath plan which referred to alcohol use disorders as the relevant problem. The Court can only infer that the father accepted at the time that this was the basis of the referral. The father did not dispute that he told Dr P that he was an alcoholic although at hearing he asserted that the level of drinking recorded by Dr P was not accurate and he said that what he told Dr P reflected his mental state at the time and his tendency to blame himself.

3. There is reference to the father’s problems with alcohol in the hospital records in evidence in the proceedings. The [C] Hospital notes recorded that on 22 June 2010, the father presented complaining of depressive symptoms, and drinking heavily. He was referred to Acute Care Services. Subsequently, phone calls and home visits were made to ensure that he was safe. On a home visit on 27 June 2010 the notes recorded that the police needed to be called because the father was not answering. The father was found intoxicated inside his home. He said that he was going to detox shortly. The father was admitted for a detoxification program at [B] Hospital on 29 June 2010. He is recorded to have said on admission that he usually drinks ten or more standard drinks a day. An assessment summary prepared prior to admission, recorded that the father had been drinking one case of beer daily over the last week, although less prior to that. He was reported to have nine standard drinks four out of five days over the last six weeks but none every second weekend when he saw his children. The assessment summary also noted that the father’s description of his drinking was changeable so that it was difficult to get a clear pattern of use. The father acknowledged the entry which recorded that he had drunk a six pack on the day of his admission. He said he drank the alcohol while he had a cigarette waiting in the car park prior to his admission.

4. On 21 July 2010 the hospital notes recorded that the family was concerned that the father could not be contacted at home and that the landlord found the father on a couch heavily intoxicated. The ambulance was called. The notes recorded that on 22 July 2010 the father was brought into the Emergency Department at [C] Hospital by ambulance in an intoxicated state on a background of depressed mood associated with situational stressors. The father was admitted into the Mental Health Unit as a voluntary patient. On discharge on 4 August 2010, it was noted that care was being provided by his general practitioner, psychologist and drug and alcohol counsellor.

1. The updated medical records, including those related to the father’s admissions in June and July 2010, were available to Dr M when he saw the father on 27 September 2010 before he prepared his second report. Dr M referred to these admissions and noted that they resulted from the father’s excessive intake of alcohol and unstable metal state. He commented that the father had been diagnosed with a Major Depressive Disorder in the context of his suicidal ideation, pervasive anhedonia and excessive alcohol use. In his opinion it was particularly concerning that the father had presented again within a month of discharge in an agitated state expressing suicidal ideation in the context of persistent excessive use of alcohol. He referred to the presentation of the father in December 2009 with similar symptoms.

2. Dr M, in his first report, noted that the father acknowledged that abnormal blood tests relating to his alcohol consumption had been identified by his general practitioner in November 2008. He reported that the father readily agreed to a further blood test which was conducted on 25 August 2009 and which did not identify a problem with alcohol at that time. Dr M observed that blood tests had returned normal on 22 January 2009. In Dr M’s opinion the father’s medical records from his admission for the five day detoxification in June 2010 identified a more significant alcohol problem than acknowledged by the father. The father’s liver function tests at this time showed the effect of excessive alcohol use, although there was no evidence of more significant liver damage.

3. The father disputed the suggestion put to him that alcohol had caused a lot of problems in his life. He disputed that he was alcohol dependant. He agreed that he has “abused alcohol copiously on occasions” but not that he consistently abused alcohol.

4. The father questioned Dr M about his conclusion that he suffered from alcohol dependence. Dr M said that he used that term in the context of a history of recurrent, excessive amounts of drinking. He referred to the medical records of the hospital which identified a daily intake of ten standard drinks per day over ten years which he said would be consistent with alcohol abuse. He accepted that, as the father noted, there were inconsistencies in the various records and that it may be the case that if the records were incorrect, the father did not suffer from sustained alcohol dependence.

5. In cross examination, Dr M said that the history obtained from the father was more typical of alcohol abuse and binge drinking rather than alcohol dependence and agreed that that appeared to be confirmed by the blood test results which were available. The father questioned Dr M about the effects on him had he consumed the level of alcohol over time reported by the mother. Dr M agreed that the moderate GGT elevation in the blood tests reflected a mild to moderate elevation and that the absence of liver damage was not consistent with very high, consistent, constant alcohol intake. He agreed that this was consistent with the father’s blood test results and that the absence of liver damage made it doubtful that the level of drinking had been consistently at a high level over a long period of time but said that it did not exclude binge drinking.

6. In summary, Dr M’s evidence at hearing appeared to be that the clinical records provided evidence of alcohol dependency, while the father’s account and the blood rests obtained were more typical of alcohol abuse and binge drinking. 

7. Dr M’s concession was made in the context of inconsistency in the hospital records and taking into account the blood test results which were available. The hospital records indicate that there had been a difficulty in obtaining a reliable history of alcohol consumption from the father when he was admitted to the detoxification program at [B] Hospital. The father is insistent that he not be described as having an alcohol dependency. However, on the evidence, at the very least, the Court finds that he has a serious problem of abuse of alcohol.

8. The father reportedly told Dr M, when he saw him on 25 August 2009, that the issue of the influence of alcohol on his life was “largely irrelevant.”[10] Effectively, the father is saying that he can control his alcohol consumption. He insists that he does not drink alcohol when the children are with him and that his alcohol problem has no detrimental effect on them. However, the father was required to cancel his time with the children in the middle of the year because of at least one, and possibly two, hospital admissions where alcohol abuse was one of the presenting symptoms. He denied that he was drunk when the critical incident occurred on 22 November 2008 although he did agree that he was under the influence of alcohol. He himself presented police evidence which include a description of him as intoxicated on that occasion.[11] This is also the mother’s evidence. The Court has little difficulty finding that the father was significantly affected by alcohol on that occasion. The events which took place precipitated the separation which has caused the father the loss which he describes. There were, of course, problems in the relationship prior to that, but the mother says that one of her main complaints was the father’s drinking. It was not disputed that this was referred in the solicitor’s letter which the father found. The father himself acknowledged to Dr P in the history he gave him that he had been arguing with his wife who complained about his drinking, and that while he had stopped, he then started again. The Court finds that the father has a serious problem with alcohol abuse and that he minimises the impact which this problem has upon him. The evidence is that the father’s drinking exacerbates his depressive symptoms.

   [10] Dr M Report dated 16 October 2009, paragraph 7.

   [11] Father’s affidavit sworn 7 March 2009, paragraph 56.

The Family violence

1. Following the events of 22 November 2008, the father initially apologised to the mother for his actions and sought the assistance of

   
   

   Dr P, particularly in relation to his drinking.

2. The mother says that she observed the father drinking heavily at the wedding celebration. She says that by about 10.00 pm he had passed out at the table and that she telephoned friends to come and collect them. She says that she attempted to wake the father in order to leave. She says that as the father was not communicating with her, she asked him as they left what he had been thinking about, and that he replied that it was obvious. The Court infers that this is a reference to the illness of the father’s sister. The mother says that she responded by saying to the father that he would never have been thinking about his own family and children. She said that the father then grabbed her by the throat and slammed her up against the wall saying, “I could fucking kill you.” She says that another guest pulled the father off her.

3. The father set out his version of events in his affidavit sworn on

   
   

   19 March 2009. He asserts that the mother woke him and said, “just let your fucking sister die”, and pushed him. The mother denies that she used these words. This was also a denial she made shortly after the events.[12]

   [12] The father in his affidavit sworn 19 March 2009 at paragraph 78 refers to a telephone conversation he had with the mother not long after the events when the mother denied to him that she had used these words.

4. The mother says that when they left the wedding venue, she sat in the front seat of the car, next to Mr S who came to collect them, while the father sat in the back. She says that the father again yelled at her that he could kill her and launched towards her. She says that Mr S stopped the car and had an altercation with the father.  She says that when they entered the house of Mr S where they were staying, the father started yelling at her again, and threw her against a wall lifting her off the ground by her throat, and threw her back through a bedroom door and onto a bed where she says the father started hitting her to her head while she shielded her face. She says that Mr S ran into the room and pulled the father off her and that [Y], then aged three, who was in the bedroom, woke up and was taken out of the room. The mother called the police who took the father away. The father was released by the police the next morning and returned to Mr S’s house. The family left for Sydney later in the day.

5. Mr S, in his affidavit, says that on arrival at the wedding venue, he observed the father outside in a heated discussion with another man. He says that he observed red marks around the mother’s neck. He said that on the way home he heard the father say to the mother, “I am going to fucking kill you”, and that he observed the father leaning forward in the car trying to hit the mother. He says that he stopped the car and took the father out, that the father calmed down and that they then drove on to the house. Mr S says that the father started to yell at the mother again inside the house and then launched into the bedroom at her. He says that he heard the mother scream and heard a thump. In the affidavit Mr S says that the father “had thrown [Ms Harries] up against the wall lifting her by her throat with both hands around her neck.” It is not clear in Mr S’s affidavit whether he is asserting that he saw this. He said that he grabbed the father as he was attempting to punch the mother and restrained him on the floor.

6. Mr S, in cross examination, said that the events at his home had occurred within five to ten seconds, that he launched off the couch he was sitting on and saw the father when he “had the mother by the throat” near the bedroom door and saw the father punch the mother. He said that the punch glanced off the side of her face and that he grabbed the father by the arm as he attempted to punch the mother again. He said that his wife, Ms S, ran into the room screaming and picked up [Y] who had been asleep in the bedroom and was crying. When this occurred he said that he was restraining the father on the ground. The father he said, was remorseful the following morning. He said that he had advised the mother to call the police.

7. The father says that the mother’s version of events has become more exaggerated in each of her accounts. He denied that he grabbed the mother’s throat at the wedding venue, but rather that he grabbed her by the chin to hold her mouth shut. He says that he did no more than this and denies that his actions constituted an assault. He said this was because the mother had assaulted him in the first place. The father says that the mother was also under the influence of alcohol. His evidence in support of this is that the mother must have planned to drink because arrangements were made to have a friend collect them after the wedding celebrations.

8. The father recalled that at the wedding venue, a man called out to him and put his hand on his shoulder and that he then let go of the mother and went outside. He denied that he threatened the mother in the car on the way to Mr S’s home or that he got out of the car before it arrived at the house. He denied that he yelled at the mother inside the house, that he put his hands around her throat, or that he lifted her off the ground by the throat saying that he does not have the strength to do this. He says that he recalls Ms S taking [Y] out of the room but that he was not crying but rather half asleep. The father asserts that the mother provoked the incident to create grounds to support her application to relocate the residence of the children to [C].

9. The police in Victoria did not take any steps against the father by way of an Intervention Order or by charging him. The family was to return to Sydney the following day. The mother said that it was suggested to her by the police that she take out an Apprehended Violence Order when she returned to New South Wales. While the mother referred to injuries she sustained, she agreed the police took no photographs of injuries and that she did not see a doctor. The father points to the fact that the mother did not make a report to the police in New South Wales until 28 November 2008, when she had returned to Sydney from [C], and that the police narrative referred only to two drunken incidents of verbal abuse. The mother’s statement in support of an Apprehended Violence Order was not given until 21 January 2009. An application for an Apprehended Violence Order was taken out on 22 January 2009. Certainly the mother by then had decided to remain in [C] and instituted proceedings seeking orders that the children be permitted to live there. The father sees this as evidence that the mother was using the incident as part of a plot against him and that a deliberate provocation by her was part of a plan by her. An Interim Apprehended Violence Order was made on 2 February 2009. However, the Application for a Final Apprehended Violence Order was withdrawn on 19 May 2009.

10. The father questioned the mother about her allegations of violence by him towards her earlier in the relationship. Her evidence was that on a couple of occasions when he father was drunk she tried to wake him and that he lashed out and “wacked” her. In her complaints to the police she referred to threats that the father had made to her by email. In cross examination, she referred to one particular threat, although the full text of the email made it appear less concerning than the abbreviated version referred to initially.

11. This is not a matter where there is evidence that the father has engaged in a pattern of family violence during the relationship. However, the Court finds that the father was violent to the mother at the wedding venue and at the home of Mr S on 22 November 2008 and that on that night it is most likely that he used the threatening words to which the mother has referred. The father not long after the events acknowledged that he had been physically violent towards the mother in the apologetic email he sent to her. Mr S recalls that the father was remorseful on the day following the events. The father saw Dr P within days and acknowledged his problem with alcohol. Shortly after the events, on 4 December 2009, the mother told Ms F, in the presence of the father, of his threat to kill her.[13]  

    [13] The mother gave this evidence in response to questions by the father about the advice given by Ms F. The mother’s evidence is consistent with the records in Ms F’s notes of 4 December 2009 when she reports that she saw both of the parents to discuss what to tell the children and that the mother said to her that the father had threatened to kill her.

12. It is not necessary for the Court in making this finding to determine the very specific details of what occurred. However, the Court generally accepts the evidence given by Mr S at hearing. His evidence about the father’s intoxication and later remorse cannot be doubted. He acknowledged in cross examination that the events unfolded very quickly. While there was no doubt that he was hostile to the father, the Court formed the impression that he did his best to recall the events of 22 November 2008. There was no evidence that he had been drinking on the evening, indeed he volunteered to be the driver. There must be doubt about the father’s recall of events given his intoxication. It is not surprising that Dr M questioned the father’s insistence to him that he had a clear memory of events on 22 November 2008, identifying his own version as correct despite the father’s acknowledgment that he was intoxicated, jetlagged and being half asleep at the time.[14]

    [14] Dr M Report dated 16 October 2009, paragraph 7.

13. Other than the Interim Apprehended Violence Order, there is no evidence of an Apprehended Violence Order being made for the protection of the mother before this incident or since. There was no final Apprehended Violence Order made in this matter because of the withdrawal of the Application in circumstances not well explained by the mother. In cross examination Dr M expressed the opinion that the fact that there has been no further violent behaviour by the father was strongly supportive of the view that there would not be further violent behaviour, although his opinion was that it was of concern that the father had acted in an acknowledged violent manner towards the mother in a particular incident when he was intoxicated. For this reason he could not exclude the risk of a further violent behaviour by the father if the father was very frustrated, intoxicated, and was in close proximity to the mother. His opinion was that there was no risk to the mother beyond that and that he did not identify that the father, for example, was planning or likely to plan physical injury to the mother. This evidence, which was not challenged, again raises the issue of the father’s abuse of alcohol and the potential impact of that on the mother and the children.

Risk to the children

1. Dr M’s evidence was that he had no concerns that the children were directly at risk in the care of their father. His opinion was that the children were likely to be sensitive to fluctuations in the father’s mental state and likely to be impacted by his vulnerable mood and behaviour. His evidence was that as the father had a history of drinking to excess, and having impulse control problems while under the influence of alcohol, it was very important that he did not drink to excess while the children were in his care. For these reasons he thought that it was concerning that the father continued to experience recurrent depressive symptoms exacerbated by his use of alcohol.[15] An important concern expressed by Dr M was that if the father was experiencing significant depression and feeling distressed about his family circumstances, particularly in response to continued drinking behaviour, he may express his degree of distress and concerns about the mother’s behaviour to the children.

   [15] Dr M Report dated 5 October 2010, paragraph 30.

2. The father expressed very negative views of the mother to both Dr M and Dr V. Dr M reported the father saying in August 2009 that the mother was a “dangerous person” and that the children should be removed from her. Dr M reported that the father said he did not denigrate the mother to the children, however, he also reported that the father told him that he believed the children had a right to know what occurred within the family, that he did not wish to bring them up in a “fake world”. He described the mother as “sick in the head”, expressed concern that she would “destroy” the children and told Dr M that the mother was “motivated to seek his destruction.”[16] During the hearing the father said that the children had been abducted by a “mentally disordered person who has been lying forever.” He said that what “that woman has done to these children is atrocious, disgraceful.” When he spoke to Dr V, he questioned the mother’s ability to look after the children.

   [16] Dr M Report dated 16 October 2009, paragraph 21.

3. Dr M described the father as having an obsessional preoccupation with the mother. In his opinion, the longer the proceedings have gone on and the longer the father has had limited contact with the children, the greater his concerns have become that the mother has a mental problem and needs a psychiatric assessment. Dr M referred to the apology which the father had sent the mother following the events of

   
   

   22 November 2008 and his subsequent change in the way he interpreted events. Dr M reported that the father told him that he regretted the apology because he felt that he always ended up taking the blame for everything. That was also the evidence the father gave at hearing. In Dr M’s opinion, the father’s preoccupation with the mother is a function of his personality and his mental state which has been exacerbated by his depression and by his drinking.

4. The father denies that he has spoken negatively about the mother to the children. The father gave evidence of appropriate behaviour with the boys and gave evidence, for example, of an occasion on Boxing Day, 2009, when he was prepared to return [X] to his mother because the child said that he was feeling sick. He referred also to an occasion in June 2010 when [Y] was unsettled on a Saturday night and said that he would like to go back to his mother’s and when the father reassured him and assisted [Y] to contact his mother so that she could collect him. The Court accepts that the father acted as he described on these occasions. The concern, however, is that on another occasion he may behave differently.

1. The mother’s evidence is that [Y] has been waking with bad dreams and that he has been having nightmares about her going to gaol.  These concerns of the mother’s are also recorded in the notes of a psychologist, consulted by the mother, which the father put to Dr M at hearing. These reported comments by [Y] must be seen in the context of the father’s insistence that the mother has committed perjury. The father’s evidence in his affidavit was that he had been in touch with authorities and “will keep escalating the matter relentlessly” until he “obtains justice through her prosecution.” [17] There is evidence too that the father has spoken about the mother going to prison in circumstances where it was likely that the children would have heard his words.[18] It is evident that the father’s preoccupation with the mother’s behaviour is such that he has difficulty controlling what he says. These various factors lead the Court to conclude that it is likely that the boys have heard the father speak about the mother going to gaol. The Court accepts the mother’s evidence that [Y] has been having nightmares about her going to gaol.

   [17] Father’s affidavit sworn 13 April 2010, paragraph 10.

   [18] See paragraph 141 in the judgment.

2. Dr M’s opinion was that the father had minimised his psychiatric symptoms during assessment in the interview. In his view this was reflected in the inconsistency between the father’s report of his experience and the hospital records. It was also, he thought, reflected in the father’s refusal when seen on 27 September 2010, to give consent to contact with his treating psychologist to assess the treatment, or to disclose his current psychological treatment. It is reflected further in the father’s comments that medical notes which referred to him have suicidal ideations are inaccurate.

3. At hearing, the father tendered a letter dated 30 July 2010 from Ms Y, Drug and Alcohol counsellor of Drug and Alcohol Services, North Coast Area Health Service. The letter referred to the father’s admission to [B] Hospital for an in-patient alcohol detoxification.  It noted that the father expressed the desire to cease alcohol use and was able to see that he was at increased risk of alcohol use when he was depressed. The letter stated that the father expressed great insight into his issue with alcohol and referred to “his excellent plans for the future” in relation to his mental health which, it noted, included seeing a psychologist for Cognitive Behavioural Therapy for his depression. It was noted that the father planned to continue to attend Drug and Alcohol for follow up. The medical records relating to the father’s discharge from [B] Hospital on 4 August 2010 noted that care was being provided by the father’s general practitioner, psychologist and drug and alcohol counsellor.

4. The position the father took subsequently was quite at odds with the letter and the hospital discharge record. During the hearing on

   
   

   17 August 2010, the father said that he had seen his general practitioner, and that his general practitioner had sent a fax to a psychologist whom she had recommended him to see. He said that he had not heard back from his general practitioner about the arrangements for him to see the psychologist. The father told the Court that it was definite that he would be consulting the psychologist.  The father’s evidence when the hearing resumed in November 2010 was that he went to see his general practitioner, Dr N, and that when he saw her on a second occasion she said that he had no reason to see a psychologist. Dr N’s records were not before the Court. The father said that she was no longer his general practitioner. The father’s account of Dr N’s advice is not consistent with the letter he tendered from Ms Y. The father was asked whether he had been to see a psychologist. He responded that he had relied on other types of services. He said these were naturopaths, friends, family, and support groups. He did not remember the name of the naturopath. The father at the hearing in November was definite he did not need treatment for anything.

5. The evidence of Dr M, which the Court accepts, is that the risk to the children is a risk of psychological harm which could occur if there was a fluctuation in the father’s mental state if he consumes alcohol. Dr M’s opinion at hearing was that the father’s history of binge drinking and depressive symptoms of itself did not necessarily mean that the children would be at risk in the father’s care, provided that the father’s mental state was stable when the children were with him and provided that he did not drink. He said it was difficult to predict whether there might be a deterioration in the father’s mental state when the children were in his care. Given that the father had experienced significant emotional problems in the context of binge drinking, Dr M was of the view that the father needed to receive ongoing psychological treatment. He said that if there was no counselling or ongoing treatment, there would be no monitoring of the father’s mental state, and no support provided in the event of a fluctuation or deterioration of the father’s mental state. At such times it would be likely, in Dr M’s opinion, that the father will become more emotional and disinhibited in his comments about the mother. The Court has accepted the mother’s evidence of [Y]’s distress given comments which are likely to have been made by the father. 

6. In Dr M’s opinion, while ideally overnight time between the father and the children should be “fine”, it was more likely that difficulties for the children in their father’s care would arise at night. He thought that if the father was drinking at night, there would be a question about whether he would be able to maintain clear boundaries around his communication with the children. He considered that at those times the father might be more likely to communicate with the children in disinhibited and inappropriate ways. Dr M observed that children were more likely to become distressed at night when it was common for children to experience symptoms of separation or nightmares and said that such distress by a child might trigger a response in the father, especially if he was distressed, when he might say inappropriate things to the children about their mother.

7. Dr M’s evidence was that an order that the father not drink while the children were in his care would not sufficiently address the risk he had identified because the father, if stressed, could breach such an order. His evidence was also that he would be far more comfortable supporting the introduction, or re-introduction, of overnight time between the children and their father, if the father was abstinent from alcohol, or had at least very significantly reduced his drinking behaviour and if the father’s mental state was being monitored and supported by either a psychologist or psychiatrist in the context of maintaining the father’s anti-depressant medication.

8. Dr M’s opinion was that it was very appropriate for the father to spend the whole of Saturday and Sunday on alternate weekends with the boys and observed that the father enjoyed activities such as tennis with them. He thought participating in such activities was a very good opportunity to establish regular time between the father and the children, and that the time could progress to overnight if it proceeded well. His opinion was that, given that the father had not spent time with the children since September 2010, the day only contact should be

   
   

   re-established for a period of at least four visits over two months prior to overnight time being introduced.

9. The father objected to the assertion that he had previously ceased medication without medical advice. However, Dr M had recorded in his first report the history given to him by the father of his medication and the father’s description of a significant response to the antidepressant which he said he discontinued against medical advice when his condition stabilised.[19] The father did not suggest to Dr M that his account of what he had said was wrong. Dr V in her evidence expressed the opinion that it was important that the father had a commitment to therapy and to any prescribed medication to enhance his health and the quality of his lifestyle because that would also enhance his relationship with his children.

   [19] Dr M Report dated 16 October 2009, paragraph 10.

10. The evidence of both experts then is that on-going therapy with oversight of the father’s continuation with medication as prescribed is required. Dr M sees this as part of the progression to overnight time between the father and the children.

11. The difficulty is the father’s rejection, at least at the hearing, of this need for therapy and monitoring by a psychologist or psychiatrist. The father saw his depressive symptoms in the context of the stressors he had suffered over the last two or three years including his difficulties with employment, financial stress, his sister’s illness and death, and the family separation, together with the mother’s relocation and his loss of time with his children. His belief is that his difficulties are essentially situational and will be addressed if his situation changes and if in particular he can spend the time with the children which he proposes.  He appears to not accept a diagnosis which suggests that he has underlying personality vulnerabilities.  

12. Dr M accepted that the father had been exposed to a whole series of loss events which had been overwhelming for him and had led to depressive symptoms. However, his evidence was that the father was more vulnerable in his response to such cumulative stressors which had contributed to his experience of depression which had been worsened by his drinking behaviour. He emphasised that alcohol had the potential to increase the father’s obsessional preoccupations.

13. The father suggested to Dr M that counselling or therapy, which he described as “seeing a nice lady or man to have a chat every week or second week”, was “very cosmetic.” Dr M rejected that perception and said that he envisaged that therapeutic intervention would look at thought processes, the management and regulation of behaviour, the monitoring of alcohol, and the way the father responded to the stressors in his life taking into account the children’s best interests. He thought that the father needed to acknowledge that there had been a significant problem with regard to his mental state and obtain appropriate treatment. He stressed that the father needed assistance about ways to manage his circumstances other than by binge drinking.

14. Dr M is a clinical psychiatrist of very considerable experience. He had seen the father on two occasions and had been briefed with the father’s medical records. At hearing he gave very considered responses and it was evident that he was not unsympathetic to the father’s situation. The Court accepts his evidence and finds that while the evidence does not indicate that there is a need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence, there is a need to protect the children from a risk of psychological harm which is likely to arise from the father’s disinhibited behaviour should there be a fluctuation of his mental state, especially in circumstances where he has been drinking. On the evidence of Dr M this is a risk which can be addressed if the father participates in ongoing therapy which is recommended by both himself and Dr V.

15. The father understandably may well have privacy concerns about his communications with any therapist he consults. However, the most significant issue relates to the children and the steps which can reasonably be taken to ensure that they are not exposed to the risk of psychological harm which has been identified. It should be possible for the mother to receive assurances that the father is involved in some program of therapy or counselling in a way that does not involve her taking on the role of a monitor of the father’s treatment. It is reasonable for the mother to be assured that the father is in fact receiving the recommended assistance, so that overnight time with the children can be recommenced, and assuming a regular pattern can be re-established, that the father’s time with the children can be increased. It needs to be borne in mind that Dr M’s evidence was that the father did not pose a direct or physical threat to the children. It is important that the response to the risk identified is proportionate and that it takes into account the need for the children to be able to maintain their relationship with their father. 

Section 60CC(3)(a) requires the Court to consider 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

1. The children are quite young. The children clearly enjoy spending time with their father. Dr V gave evidence that the children said that they have a good time with him and that he does activities with them that are exciting to them. She referred at hearing to [X]’s sadness about the period of separation from his father. While the Court finds that the children clearly want to maintain a close relationship with their father, they are quite young, too young to express views about the way the time they spend with their father is structured, especially given the complex issues involved in this matter.

Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons including any grandparent or other relative of the child

1. The mother has been the children’s primary carer. The family consultant reported a warm interaction between the children and their mother.

2. The father did not see the boys after 4 January 2009 until 22 November 2009. He then spent time with them on alternating weekends from the end of November 2009 until December to July 2010. Around the time the father was hospitalised in the middle of the year, he missed seeing the children on a weekend in June and on another weekend in July. He spent time with the boys in August and on Father’s Day in September. However, he did not spend time with them after the Court varied his time to day time only, although he attended [X]’s basketball on a number of occasions in October 2010.

3. Despite the separation between the father and the children during 2009, Dr V’s evidence arising from her observations, was that that father was a significant attachment figure for the boys. Her opinion was that the children enjoy the periods of time with their father when he is available for them and is able to give them “a good time.”

4. The Court accepts the evidence of Dr V and finds that the children have a close relationship with their mother who has been their primary carer, and also have a significant attachment to the father. The father says he has decided not to spend time with them if such time can only be during the day. There must be a concern that any such decision by the father will inevitably impact on the relationship he has with the boys.

5. Dr V interviewed the maternal grandparents. While it is not evident that she observed the children with them, both children spoke positively of their maternal grandparents. At the same time she commented on the grandparents’ hostility towards the father. The comments which she reported that the grandparents made to her about the father do not reflect a child focus on their part.

6. The children came to Australia when they were very young. They have since visited the father’s relatives in Belgium and the paternal grandmother has visited the family in Australia. However, she has not seen the children for some time now and the father expressed distress at the children’s present inability to maintain a relationship with paternal family members and particularly with their paternal grandmother. Ideally, the children should be able to maintain a relationship with the father’s extended family.

Section 60CC(3)(c) requires the Court to consider the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. The father contends that the mother planned to take the children to [C] and that as a result of her actions his time with them has been limited.

2. The mother says that when she went to [C] following separation she did not plan to stay. She was employed in Sydney at the time. [Y] was enrolled to commence school in Kindergarten in Sydney. There is no doubt that the parents’ relationship had been in difficulties for some time, well prior to separation. The mother agreed that in 2007 she sought legal advice and at the time referred to the father’s drinking as a problem. She agreed that she also mentioned the option of moving to [C]. Her evidence at hearing was that it has been her long term goal to move to [C]. It does not appear, however, that this was her specific plan when she left for [C] the Christmas holidays at the end of 2008. This is supported by material in the father’s affidavit of March 2009.[20] Annexure “N” to that affidavit is an email from the mother to a firm of lawyers in which she seeks advice and indicates that her plan had been to return to [R] but that her partner was refusing to vacate the home to allow her to move back in with the children.

   [20] Father’s affidavit sworn 19 March 2009.

3. The father was initially apologetic for his actions on 22 November 2008 and sought medical assistance for his drinking. The Court accepts that a significant issue for the mother was the father’s withdrawal of his offer that he would vacate the house for the mother and the children.  The evidence is that the father’s responses to the mother changed quite drastically within a few weeks following separation, even before he found the letter from the mother’s lawyers. It is not surprising that she found his behaviour, referred to earlier in the judgement, as erratic and concerning. The father in blaming the mother for the “abduction” of the children does not acknowledge his own behaviour on the 22 November 2008 and in the following weeks.

4. The chronology is strongly suggestive of the mother pursuing the Apprehended Violence Order when she decided she wanted to stay in [C] and wanted orders allowing her to relocate the residence of the children. Certainly the Apprehended Violence Order seems to have impacted on the father’s communication with the children. The father says that following the making of the Apprehended Violence Order, he was reluctant to visit the children because he feared entrapment by the mother.[21] The mother says that the father’s communication with the children was erratic following the making of the Interim Apprehended Violence Order.  The father was admitted to [omitted] Hospital in March 2009 and shortly after left for Belgium where he spent most of the year apart from visits back to Australia at times which were significant in the ongoing proceedings. The mother says that initially she was not aware of the father’s whereabouts. The father says that it was difficult to speak with the children on the phone when he telephoned and that it was not for some time before the mother had Skype communication working. It is likely that there is a basis for the complaints by each of the parents.

   [21] Father’s affidavit sworn 9 August 2010, paragraph 146.

5. The mother in her affidavit and in her discussions, as reported by Dr V, tended to minimise the father’s involvement with the children.  This seems inconsistent with their evident attachment to him. The family consultant commented that at interview the mother seemed to find it difficult to identify any positive aspects to the father’s parenting of the children. Her opinion was that the mother was unable to acknowledge that the father played a parenting role of any significance whist they were together and was suspicious of his current motives[22].  

   [22] Family Report of Dr V dated 3 August 2010 , paragraph 35.

1. The Court finds that it is likely that the mother’s perception of the father and her high degree of protectiveness towards the boys, has made her somewhat less than willing, following separation, to take positive steps to facilitate the boys’ relationship with their father. While the father’s behaviour as discussed would reasonably have been a cause of concern to the mother, her decision to remain in [C] was not supportive of the relationship between the boys and their father.

2. The Court finds that the father in his behaviour has not supported the children’s relationship with their mother. He has said that the children need to be removed from her care. He has attempted to have her charged with perjury and complained about police inaction in regard to this. He has acknowledged that he has made complaints to the Department of Immigration about what he says are false statements made by the mother.

Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living)

1. The evidence is that the father found the move to Australia difficult. Initially he experienced difficulties finding work and was then very much affected by the illness of his sister in Belgium.

2. When the father returned from Belgium in November 2009, following the release of Dr M’s first report, and moved back to [C] to be closer to the boys, he found it difficult to settle there. Within a couple of weeks of moving to [C], he attended [C] Hospital where it was recorded that he described little or no social supports, as his family lived in Belgium and his friends lived in Sydney. The father’s evidence is that one of the factors behind the circumstances which caused his admission to hospital in June 2010 was his thoughts about the possibility of needing to move away from the children.

3. The father’s proposed orders attempt to provide for arrangements should he be living outside [C] and indeed, outside Australia. The father gave evidence that he has recently found employment in [C]. However, his evidence at hearing was that if he was only to spend occasional time with the children, which did not involve holiday time, he would strongly consider leaving [C] and possibly leaving the country as well. He said the discomfort for him trying to be close to the children, as he has done, has been enormous. He said it must be seen as a sacrifice which is of a very high magnitude for him.

4. The father gave evidence at hearing that he would not take advantage of orders which only provided that he see the children during the day. The consequence of such a decision by the father may well mean that he would not see the children other than, as has recently been the case, at their sporting activities. It can be inferred from the evidence of Dr V that this would be detrimental for the children. This was certainly the evidence of Dr M who further expressed the opinion that the father would be likely to see himself as a victim and blame the Court for making such orders rather than reflect and see that he himself had been in any way self-defeating or inappropriate in his actions.  

5. The Court finds that it would not be in the interests of the children to be separated from their father.  This is a factor which needs to be taken into account in considering the proposal of each of the parents.

Section 60CC(3)(e) requires the Court to consider 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;

1. If the father moves from [C], it likely that there will be considerable practical difficulties in organising arrangements for the children to spend time with him. This will be the case if he moves back to Sydney and particularly if he decides to live interstate or overseas.

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and 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.

1. The family consultant was critical of both parents and expressed the opinion that neither of them was assuming any responsibility for the role they have played in the dispute. She thought that both displayed limited insight into how their behaviour may be impacting on the circumstances they currently face and that neither has perhaps been emotionally available to the other in times of need.

2. The mother in her affidavit is critical of the father for not attending the boys’ sporting activities. She says that the father will not take the children to sporting events when the children are with him unless she confirms in writing that she will not attend.[23] The father’s evidence is that he found it difficult to attend [X]’s basketball if the whole Harries family was there. He said the maternal grandparents will not talk to him, and call [Y] away. This perception of hostility from the maternal grandparents is consistent with the family consultant’s assessment of the maternal grandparents’ feelings of anger towards the father. She reported them saying that the father was “not good for the boys.” This does not reflect well on their capacity to appreciate the importance of the father for the boys.

   [23] Mother’s affidavit sworn 27 May 2010(? CHECK) paragraph 100.

3. It seems evident that both parents have involved the children in the parental dispute. The mother in her affidavit[24] gave evidence that she said to [X] in March 2010 that she would not be coming to watch his play basketball. She said he became teary that when he asked “why not?” she responded, “your papa doesn’t want me to go for some reason.” She said that during this conversation [Y] said that he was going to tell his father that he was a “big meany”, for not letting his mother come and watch the game.  The mother acknowledged that she had not handled this situation well.

   [24] Mother’s affidavit sworn 27 May 2010.

4. The mother in her affidavit refers to a conversation which she had with the father on Skype which occurred when the father contacted the boys to speak with them.[25] The mother’s evidence is that she interrupted the conversation and raised an issue of a video the father had allowed the boys to watch. She said that both boys were on either side of her when she discussed the appropriateness of the video with the father. She then raised the issue of what the father had said about attendances at basketball. No doubt the mother had included this conversation in her affidavit because of the father’s angry response which followed, and which the father does not deny.[26] The mother says that the father responded “Well, you need psychiatric help. You have been lying to them ever since you abducted them last year. I have been trying to pick up the pieces of their shattered lives. They cry every night they are with me. You have caused damage to the children. You have been destroying them ever since you abducted them last year and your time is coming to an end very soon. You are going to jail [sic] [Ms Harries]. You are going to jail [sic]. You are the most miserable person in the whole world. You are not even a person, you are not even human, you are sick and you going to be in prison.”

   [25] Mother’s affidavit, worn 27 May 2010, paragraph 121.

   [26] Father’s affidavit sworn 9 August 2010, paragraph 218.

5. The father himself described the words he used as “harsh.” The whole communication reflects badly on both parents. The mother showed little insight in raising these issues in front of the boys. However, the father responded in a manner which can only be described as threatening. His words would have been alarming for the children. In the circumstances it is most likely that the children would have heard what the father said. His response illustrates the difficulties he has in containing himself.

6. Dr V in her report noted that the emotional health and well being of a parent including any unresolved issues about a separation, is a very important consideration in a parent’s capacity to be child focussed.

   
   

   Dr M’s evidence was that the father’s insight into his circumstances was limited and that the father’s persistent focus on the mother’s behaviour and the limitations on his contact with the children were problematic. He considered that this limited the father’s ability to address his own contribution to his present predicament. He described a vicious cycle in which the father’s behaviour contributed to the circumstances which precipitated his distress. The father minimised the level of his consumption of alcohol. He asserted to Dr M, and in his evidence at Court, that his drinking had no effect on the children in that he did not drink when they were with him. As discussed this cannot be the case. Such assertions by the father underline the difficulties he has in addressing the issues so central to his ability to develop his relationship with his children and understand their needs. Dr M’s evidence was that if the father continued to abuse alcohol it could have an effect on his personality which was counter-indicative to good parenting.

7. The father’s explanation for not taking up the opportunity to spend time with the boys in accordance with the orders of 13 October 2010 was that the boys would be “confused”. The reality is that the children’s response will depend on the explanation which the father chooses to give them. The father readily outlined a narrative which he said the mother could have used in explaining to the boys why both parents were not at basketball.

8. It is evident that the father had other reasons for not taking up the opportunities to spend time with the boys available pursuant to Court orders. He is very sensitive to what he considered could be a humiliation for him. He would not, for example, participate in arrangements for supervised time pending a psychiatric assessment. The father said that supervised time with the children was a profound insult and that he would not spend such time with the children. He said that the same considerations applied to day only time with the children and that he did not want to be an occasional observer of his children. 

9. The father at hearing said the children would not have understood the sudden change from overnight, which he said had been joyful and without issue or accident for over a year. He said that a further reason for not spending day only time was that he wanted to send a “strong signal” about what has happened. He added that if it was confusing or difficult for the children, “the way it probably has been”, he could not “make an omelette without breaking eggs”. This comment demonstrated the extreme difficulty the father has at the present time in being child focussed.

10. Dr M’s opinion was that the father’s behaviour in not taking opportunities to see the children during the day and his reasoning about this reflected the father’s narcissistic preoccupation and his focus on himself as a victim. He considered that the father had a real difficulty in actually prioritising the children’s needs and rather prioritised what he passionately emphasised was his role as the children’s father. He though that part of the father’s reasoning for not spending supervised time, as provided for in the earlier orders, or day time only as provided for in interim orders, was that in some way accepting such an arrangement validated the need for it. Dr M’s view was that the father’s stance was a further indication of the need for psychological support or counselling because the father’s own issues were getting in the way of his maintaining some role in the children’s lives and recognising that he had the capacity to play a greater role.

11. The father’s evidence at hearing was that he would not take advantage of orders the Court made for him to spend time with the children if the orders provided only for time during the day. Dr M said that it would be very detrimental for the children not to see their father at all. He thought that such a decision by the father would also be likely to be detrimental to the father’s mental state in that it would confirm in his mind his status as a victim and the family being failed by the Court.

12. The Court finds that both parents have demonstrated, at times, a difficulty prioritising the needs of the children in their focus on the dispute between them. At this time, the father’s own preoccupations are making it extremely difficult for him to recognise, and act upon the needs of the children.

Section 60CC(3)(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;

1. The children’s paternal family are Belgian. The father in his submissions says that the children need to spend time with him to develop their French and to be able to communicate with their extended family in Belgium. Dr V in her report said that in the longer term the option of the children travelling to Belgium may be an important part of their identity formation. She thought that it may be advisable to postpone the option of the father taking the children overseas until they are older. Dr M’s evidence was that he thought that the first step for the father would be to establish stable and regular time between himself and the children in Australia. He thought that if there were secure extended periods where the children were separated from their mother and things were proceeding well, he would envisage that it would then be suitable for them to travel to Belgium.

2. Whether the children in the future have the opportunity to develop their relationship with their extended family in Belgium depends very much on the father taking the steps recommended by Dr M so that he can develop his role in the lives of the children.

Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. There is little that can be added here which has not already been discussed in the judgment especially in relation to the ability of the parents to prioritise the needs of the children.

2. The father raised issues about the mother’s mental health. He said that the children should be removed from her care. At the same time he agreed that she looked after the children well on a daily basis and provided well for their education, their nutrition and health. Dr M met with the mother when he prepared his first report. His evidence was that her presentation was not indicative of any disorder. There is no reason not to accept his opinion about this. The father’s evidence about the mother is contradictory and reflects his very unfortunate preoccupation with her behaviour.

3. The father also wanted the children to be assessed by a child psychiatrist. There is evidence that the dispute between the parents is becoming stressful for the children and that both parents have not shown sufficient insight into the effect of their behaviour on the children. This does not reflect well on their attitudes towards parental responsibility. Again it was Dr M’s evidence that such an assessment was not needed at this time.

4. Dr M’s evidence, however, was that the children might need some assistance if the father decided to absent himself from their lives entirely. The father’s stance about the conditions upon which he would spend time with the children reflects very much his view of his entitlements rather than an ability to place the children and their concerns and needs first. His own evidence stresses the enjoyment which they have in sharing activities with him, especially for example playing tennis and golf. The father’s stance does not reflect well on his attitude towards the responsibilities of parenthood.

Section 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child's family

1. As has been discussed, this is not a matter where there is evidence that the father has engaged in a pattern of family violence in the relationship. However, the Court finds that the father was violent towards the mother at the wedding venue and at the home of Mr S on 22 November 2008 and that on that night he used threatening words to the mother. The Court accordingly finds that the father has engaged in family violence as defined in the Family Law Act section 1975 (Cth). There is no doubt that the mother would have reasonably feared for her safety and wellbeing on that occasion.

Section 60CC(3)(k) requires the Court to consider any family violence order that applies to the child or a member of the child's family, if the order is a final order; or the making of the order was contested by a person;

1. There have never been any final Apprehended Violence Orders made for the protection of either parent against the other.

Section 60CC(3)(l) requires the Court 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 the child;

1. The Court considers that the evidence supports the recommendation of Dr M at hearing, that after a short period of time, when the father can regularise his day time contact with the boys, overnight time should be re-established but that at the same time the father needs to be under the care of a therapist.  The difficulty is moving forward from this, given the father’s stated reluctance to see the need to consult a therapist, or to provide the mother with assurance that he is consulting with a service as recommended.

2. Ideally if the father is consulting a therapist as recommended by

   
   

   Dr M’s he would place himself in the position where his time with the boys could be extended and where he could spend significant and substantial time with them which would include holiday time. The father’s evidence makes it difficult for the Court to make orders at this time covering all these eventualities. At the same time it also seems clear that limited benefit would be obtained by further interim orders. Such orders would mean that the parents would remain focused on litigious dispute. This cannot be in the interests of the boys. It was

   
   

   Dr M’s evidence that it was very important that there be some finality and a resolution for all the parties and particularly for the children.

Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the Court thinks is relevant.

1. Relevant considerations have been considered.

Section 60CC(4) requires consideration of the extent to which the child’s parents have taken the opportunity to participate in decisions about the major long term issues in relation to the child, the extent to which the parent has facilitated or failed to facilitate the other parent’s participation in making such decisions or in being able to spend time with the child or communicating with the child and the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

1. The mother made a unilateral decision to stay in [C] with boys and enrol them in school there. Her decision made it difficult for the father to sustain his relationship with the boys. The decision of the father to move to [C] and try to establish a life there has not been easy. Indeed, it is likely to have added to the stress which he has experienced.

2. The mother has not facilitated the father’s participation in making decisions about major long term matters relative to the children. At the same time the father’s behaviour and attitude towards mother has not made cooperation between them easy.

1. The father for some periods of time has not been in employment and this has affected his contribution towards maintaining the children by way of child support. The evidence is that the father has also found it difficult to obtain more paid employment in [C]. He indicated in his evidence at hearing that he was recently employed and would be contributing to the financial support of the children.

Parental responsibility

1. Section 61DA(1) states that 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. Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted if there is evidence which satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them.

3. The mother seeks an order for sole parental responsibility. The father opposes the making of such an order. The Court has found that while the father has not engaged in a pattern of violence his behaviour towards the mother on the 22 November 2008 constituting family violence as defined in the Family Law Act.

4. For these reasons the Court finds that the presumption of equal parental responsibility does not apply. However, the Court still needs to consider whether it would be in the best interests of the children for there to be an order for equal shared parental responsibility. Murphy J in Runcorn & Raine [2008] FamCA1021 noted that an order for sole parental responsibility in favour of a party means that the other party has no “duties, powers responsibilities and authority” in respect of “major long term issues” for the children, save as expressly ordered. He expressed the opinion that the exercise of an discretion in favour of completely excluding one parent from consultation and decision-making in respect of major long term issues for their children seemed a very significant step in that it was a very serious interference with the fundamental rights of a person.

5. The mother’s counsel argued that an order for sole parental responsibility was sought because the parents could not communicate and because the father had a complete lack of respect for the mother as a person. It was also contended that the father has gone overseas without notice to the mother and been out of the children’s lives for long periods of time and that it would be difficult if the mother was required to consult with the father in these circumstances. Certainly, the father’s evidence suggests some uncertainty as to where he might decide to live in the future.

6. The father pointed to the unilateral actions which the mother had taken. He said that he respected that mother but that his esteem for her was very low. The evidence shows that the father has threatened the mother with gaol, has asserted that she is damaging the children and that she is a very dangerous person. The father could not restrain himself from using this language in a Skype communication which had initially involved the children. The Court accepts that at this time there is little likelihood that the parents, and particularly the father, until he can benefit from therapy, will be able to engage in the consultations necessary to try to reach joint decisions as required if an order for equal shared parental responsibility is made.

7. At the same time the Court is reluctant to make an order that would remove the father from a role in long term decisions about the welfare of the boys when it is evident that he would have a lot to offer them if he could acknowledge and address his present problems.

8. The Court proposes to make an order for equal shared parental responsibility and to provide that the mother will consult the father in writing in relation to any major long term decision affecting the children and that in the event that the father does not respond to the mother within twenty-eight days she is entitled to solely make that decision. Should that father respond to the mother, and the parents are unable to agree, there should be some effort to mediate the disagreement. If such mediation cannot take place because of a decision of the particular agency, or if mediation is unsuccessful, the mother is to make the final decision.

9. As explained in Goode & Goode [2006] FamCA 1346, the Court, if it makes on order for equal shared parental responsibility is required to consider the provisions of section 65DAA(1). It may be argued that given the order which is proposed to be made, the court is not required to follow the legislative pathway. However, it is clearly prudent to do so. Section 65DAA(1) provides as follows:

   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.

10. Section 65DAA(2) provides that if an order is made for equal shared parental responsibility and the Court does not make an order for the children to spend equal time with each of the parties, the Court must consider whether the children spending significant and substantial time with each of their parents would be in their best interests and if that would be reasonably practicable.

11. Section 65DAA(3) provides that 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.

12. Section 65DAA(5) which sets out what the Court must have regard to in considering what is reasonably practicable, is as follows:

    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.

13. The High Court in MRR & GR [2010] HCA 4 has confirmed that the Court must consider each of these questions, that is, is it in the children’s best interests and is it reasonably practicable, before an order can be made for equal time or before an order can be made for the children to spend substantial and significant with each of their parents.

14. This is a matter where the evidence is that it would not be in the best interests of the boys for there to be an order that they spend equal time with each of their parents. The Court has found that the father has little insight at this time into the needs of the children because he is very preoccupied with his own needs and is not able to recognise the adverse impact which his depression and alcohol abuse have had on his life. The father has developed what Dr M has described as an obsessional preoccupation with the mother’s behaviour. The Court has found it is likely, for the reasons set out, that there is a risk that if the father does not have assistance with his problems he will find it difficult to restrain himself from saying things about the mother which will be very worrying for the children and would be likely to cause distress and possible psychological harm to them. The mother’s evidence is that [Y] already has nightmares about her going to gaol. While the father denies that he speaks negatively to the children about their mother, he does not dispute the Skype communication referred to in the judgment. There was no suggestion that he had been drinking on this occasion. Dr M’s evidence is that the father’s ability to control his impulses would be less if he was drinking.

15. The father says in his submissions that there has been no significant impact of drinking on his life. It is difficult to see how the father can sensibly maintain this position. There can be little doubt that it contributed to difficulties in the relationship. It was the cause of his behaviour during the events which precipitated the separation and the loss of family which has caused him such distress. It was linked with his recent hospital admissions which affected his ability to spend time with the children and which reasonably have caused the mother to be more cautious in the orders which she seeks.  

16. Further, an order for equal time would not be reasonably practicable. The evidence is that the parents do not have the capacity to communicate in a way which would be required to implement such an arrangement.

17. The mother’s position in relation to the orders she sought changed at the commencement of the hearing on the 16 August 2010 and again when the hearing recommenced in November 2010. She proposed that final order be made that the father’s time with the children be daytime only on alternate weekends. She proposed that the onus be on the father to make a further application to the Court to increase his time with the children should he obtain medical treatment to address his alcohol dependence and his “personal psychological issues” and on the provision of an updated report by Dr M.

18. The father proposes time with the children which would amount to significant and substantial time if he remained in the [C] area. Ideally, it would be in the boys’ best interests to spend significant and substantial time with their father. They love him and were saddened by his absence from their lives. They enjoy the activities that he arranges for them and the Court has accepted the evidence of Dr V that the father is a significant attachment figure for the boys. However, there are significant questions about the father’s parental capacity at this time. There is a risk that the father will not be able to contain himself from saying things to the boys which would be likely to cause them significant distress. The father’s evidence at hearing indicated that he was very focussed on his own needs at this time, to the extent that he had difficulty in recognising the needs of the children. He considered, for example, that it is preferable that he made a point about his own circumstances rather than spend the time with the boys during the day which they are likely to enjoy.

19. The Court in this matter finds that it would be in the best interests of the boys to be able to maintain and develop their relationship with their father. This is consistent with the evidence of both Dr V and Dr M. However, the father must take some steps to facilitate the development of his role with the boys so that they are able to benefit from a meaningful relationship with him. The clear evidence of Dr M, for the reasons explained, and of course which the Court has accepted is that the father at this time needs to participate in therapy. Unless the father takes such steps, the Court cannot find that it is in the best interests of the boys for orders to be made for them to spend significant and substantial time with their father. It would also not be reasonably practicable at this time because of the parents’ lack of capacity to communicate about difficulties which would be likely to arise in implementing an arrangement for substantial and significant time.  

20. Dr M’s opinion is clearly supportive of a regular pattern of time between the children and their father being established during the day with a move to overnight time before long if the father gains assistance.

21. Given the evidence of both Dr V and Dr M that it would be detrimental for the children if they were not able to maintain their relationship with their father, the Court is of the view that there would be a real risk that this would be the case if the orders sought by the mother were made. Further, the orders proposed by the mother appear to foreshadow continuing litigation which is not in the interests of the children. The Court has accepted the opinion of Dr M and proposes to make orders reflecting his recommendations.

22. The father proposed that the parents attend mediation within two years of the making of these orders to review the orders and the arrangements for the children. The Court considers that this is appropriate in circumstances where, if the father’s time with the children has progressed in accordance with the orders the Court proposes to make, further matters such as extended holidays time and overseas travel by each of the parents can then be addressed.[27] Each of the parents sought orders restraining the other from removing the children from the Commonwealth of Australia. Each sought orders that the children’s names be placed on the Airport Watch List. The mother also sought an order that she be permitted to travel overseas with the children for holidays provided that she notify the father of the itinerary. There was little evidence produced at the hearing relating to these matters and little reference to these orders sought, by either of the parties in their submissions. While there is no evidence that the mother could be seen as a flight risk, she gave no evidence about any proposal she had for overseas travel within the next two years. There was no specific submission by the mother that the father was a flight risk. Certainly, he wants to be able to take the children overseas to see his family. The Court is reluctant to make an order at this time which could aggravate the conflict between the parties. It is important that there is an opportunity for the father to follow the recommendations of Dr M and to use that as a basis for extending his role in the lives of the boys. The orders which need to be made in this matter should be consistent with that significant need. The Court proposes to make an order that each be restrained from taking the children out of the Commonwealth of Australia for the next two years and make an order placing the children’s names on the airport watch list for that period of time.

    [27] Exhibit 9.

23. If the mother proposes to spend school holiday time outside the [C] area she should give the father four weeks notice of such intention, in which case any weekend time within the period of proposed travel is to be suspended. However the mother should ensure that the children spend equivalent time with their father should he provide her with notice of when he would like to spend “make up time” with the children. The father should also, except in the case of an emergency, give the mother four weeks notice of his intention to travel overseas should such travel be proposed at time when he would otherwise be spending time with the children

24. The father proposes that the mother be restrained from moving the children’s residence outside the [C] Shire unless she moves the children to a city where the he lives or unless she obtains his written consent to such a move of the children’s residence. The mother’s counsel did not make submissions about this proposed order. In the circumstances the Court considers that some provision about the relocation of the residence of the children is in the best interests of the children given that the Court has found that the children have a positive relationship with their father and that it would be detrimental to them if this relationship could not be sustained. The Court takes into account that the mother has previously relocated the residence of the children without the father’s consent and initially, at least without an order of the Court. Any restraint on the mother moving the children’s residence however, should be made on the basis that the father is living in Australia and spending time with the children in accordance with the orders.

I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of Walker FM

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