Hirst and Simms (No.2)

[2016] FCCA 1627

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIRST & SIMMS (No.2) [2016] FCCA 1627

Catchwords:
FAMILY LAW – Parenting – where each parent may pose risks to the children – whether the wishes of a 15 year old and a 12 year old should be followed.

Legislation:

Family Law Act 1975, s.60CC

Bondelmonte & Bondelmonte [2016] FamCAFC 48

Applicant: MR HIRST

Respondent: MS SIMMS

File Number: DGC 1397 of 2010

Judgment of: Judge Small

Hearing date: 26 May 2016

Date of Last Submission: 26 May 2016

Delivered at: Melbourne

Delivered on: 26 May 2016

REPRESENTATION

Counsel for the Applicant: Ms Teicher

Solicitors for the Applicant: Meier Denison Guymer Pty Ltd

Counsel for the Respondent: Ms Stanley

Solicitors for the Respondent: Altavilla Vessali

Counsel for the Independent Children’s Lawyer: Ms Stavrakakis

Solicitors for the Independent Children’s Lawyer: McCormack & Co

ORDERS

1. The matter be adjourned to Federal Circuit Court of Australia on 2 August 2017 at 10:00am for Final Hearing, with an estimated hearing time of 3 days (“the Final Hearing”).

2. In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with and within the time specified in the Family Law (Fees) Regulation 2012.

3. Both the Applicant and the Respondent make, file and serve on each party by no later than 4.00 pm, fourteen (14) days prior to the Final Hearing:

   (a)one affidavit setting out any further evidence in chief; and

   (b)one affidavit of each witness intended to be relied upon at the Final Hearing.

4. The Independent Children’s Lawyer make, file and serve on each other party by no later than 4.00 pm, seven (7) days prior to the Final Hearing:

   (a)one affidavit setting out any further evidence in chief; and

   (b)one affidavit of each witness intended to be relied upon at the Final Hearing.

5. Each party and the Independent Children’s Lawyer must make, file and serve an Outline of Case document by no later than 4.00 pm, two (2) days prior to the Final Hearing, including the following:

   (a)a list of the documents to be relied upon;

   (b)a brief chronology;

   (c)an outline of contentions with respect to:

   (i)whether the presumption of equal shared parental responsibility applies (s.61DA),

   (ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);

   (iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

   (iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

   (v)any other matters  relevant to the decision; and

   (vi)a statement of the precise orders sought.

6. No party shall be entitled to rely on any affidavit material filed after the above deadlines without leave of the Court.

7. If either party is to have legal aid funding withdrawn for the Final Hearing:

   (a)The solicitors shall confer no later than 7 days before trial as to which witnesses are required for cross examination at the Final Hearing; and

   (b)The solicitors are to ensure all witnesses to be relied upon are on Affidavit and are available to give evidence at Final Hearing, including the Family Consultant if any, and any other expert witness.

8. No later than 7 days before the Final Hearing each party advise the Court of the affidavit material he/she seeks to rely on at Trial.

9. No later than 2 days prior to the Final Hearing the parties shall provide to the Court an agreed list of factual issues in dispute.

10. Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children X born (omitted) 2001 and Y born (omitted) 2004 (“the children”) attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and at time/s to be advised for the purposes of the preparation of a Family Report, with such Family Report to be released by 30 June 2017.

11. The Family Report to deal with the following matters:

    (a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in ss. 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)the likely effect on the children if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

    (d)any other matters that the Family Consultant considers important to the welfare or best interests of the children.

12. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.

13. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

    (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

    (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

    (c)any family violence intervention or restraining orders currently in force.

14. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

15. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

16. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

17. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

18. Unless a party objects in writing within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

19. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

20. Both parties shall have liberty to apply.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The children X born (omitted) 2001 and Y born (omitted) 2004 (“the children”) live with the mother.

2. The children shall spend time and communicate with the father in a four week cycle:

   (e)In week one from after school on Thursday to before school on Monday commencing 2 June 2016; and

   (f)In week three from after school Friday to before school on Monday.

3. Otherwise the Orders made 4 December 2015 remain in full force and effect.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 Annexure A and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Hirst & Simms (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1397 of 2010

MR HIRST

Applicant

And

MS SIMMS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The matter of Hirst and Simms comes before me today having been listed for interim hearing.  I will not go into the long history of the matter, save to say that it covers three files in the court's records and that in December 2015 - on 4 December 2015, I delivered judgment in a previous interim hearing after the parties had been to section 11F counselling.  I will come back to that in a moment.

3. The parties have now had the benefit of a full family report from Ms A, and the two reports can I say, are very different in emphasis.  The first report - that of Ms C who saw the parties in section 11F counselling, concentrated very much on the issue of family violence and the relationship between the parties in those terms and the children's experience of family violence.

4. Ms C proposed a very drastic change in the children's circumstances and said that the children should live with their mother and that there were concerns about how the father would behave towards the boys and their mother if they were to live with her and spend unsupervised time with him every second weekend.  But that is the mother's case today:  that they live with her and they spend unsupervised time with their father every second weekend.

5. It was Ms C's view back in December that time with the father should be reserved and suspended unless a suitable supervisor could be agreed on.  And it was also her view that the parties should undertake liver function tests which they have taken.  We have a one-sentence letter from the mother's GP saying that the meaning of the liver function test is that there is no abnormality;  that the liver function of the wife is normal.  And Ms C also recommended at that time that both parties be restrained by injunction from drinking alcohol to excess when the children were in their care.

6. On 2 December, I gave an extempore judgment which was later reduced to writing and released to the parties at their request.  And those reasons for judgment set out why I made orders ultimately at the end of that day that the children should live with their mother and spend time with their father every third weekend, from after school or 3.30 pm on Friday to 5 pm on Sunday;  and that he should spend time and communicate with the children each Tuesday at 7.30 pm;  and I made a specific order that the father was not to spend time or communicate with the children other than in accordance with that order.

7. I then ordered the appointment of an independent children's lawyer and the preparation of a full family report.  And that family report, although it was not technically due to be released I think at that time until July, has been released and is available to me today.

8. Ms C concentrated on the family violence and the alcohol consumption of the parties and said clearly what the children's wishes were but her view was very plainly that the children's wishes were not to be given very much weight, simply because she believed that they had been influenced by the father;  even if that were unconsciously and she used words like "dangerous", I think at the time, to describe the risk to the children in the care of their father.

9. Ms A takes a very different tack, if I can put it that way.  Of course, Ms A apparently did not have - did not read Ms C's memorandum.  And Ms A had access to different evidence, including information from the Department of Health and Human Services in relation to child protection; information from Victoria Police particularly about Mr Hirst's history of charges and convictions in relation to violence and driving whilst disqualified and failing to comply with a community based order and breaches of an intervention order.

10. Ms A takes quite an amount of time talking about the records from an organisation called (omitted) Psychology who Y had been seeing from the end of November 2013 throughout 2014.  And Y was taken to (omitted) Psychology by the father.  The mother did not even know that Y was going, apparently - that is the evidence so far - and Y had given the psychologist no doubt as to his ideas. The notes of the counsellor state that Y was - at least at the first session - expressing fears of being home alone.  He was also expressing significant concerns in relation to his mother's alcohol consumption, saying also that she yelled and screamed at him at home and the counsellor records - and this is how Ms A records it, and I will quote from her report:

    Y's counsellor recorded statements such as "I hate it at mum's.  She does not give a stuff about us" and "Mum gets drunk every night.  A cask of red wine every night.  We stay up until 1 am on school nights.  Mum's smashed."

11. The counselling notes as described by Ms A, reflect a consistent theme of Y being unhappy and stressed in his mother's home throughout 2014 and Ms A states that that unhappiness is primarily as a consequence of his mother's daily alcohol consumption.  She says that there is a note in the records of that organisation that describe the mother as falling over and wetting herself when she was under the influence of alcohol and that he definitely did not like living with his mother.

12. He also reported abuse - verbal abuse - from his grandfather.  Now, Ms A says it is the paternal grandfather but I suspect she means the maternal grandfather who had apparently abused Y and called him rather offensive names. 

13. There is also before the court the psychiatric report prepared by Dr M in relation to both parties.  He diagnosed the mother with mixed anxiety disorder with symptoms of generalised anxiety disorder and with some mild obsessive-compulsive traits.  And he also found that Ms Simms suffers from an adjustment disorder with depressed mood in relation to the loss of her mother, her marriage and her most recent relationship.  Dr M suggested that there was some suppressed anger in the mother as well as part of her adjustment disorder.

14. In relation to the father, the psychiatrist said that he suffered from a mild anxiety disorder but with obsessional and narcissistic personality traits.  And I will quote again from the family report:

    According to Dr M, Mr Hirst displays some obsessional traits which, while making him at times determined and persevering, can contribute to his oppositional behaviour.  It was assessed that Mr Hirst appeared reluctant to admit his own and at -

15. There is a word missing there.  It says:

    …to admit his own that in situations focussing more on the behaviours of others.

16. And Mr Hirst told Dr M that he had, over at least one occasion, drunk the best part of a bottle of bourbon and that that had not affected him.  It seems incredible to me that if even once a person had drunk a bottle of bourbon, or the best part of a bottle of bourbon without affect, they would have to be fairly habituated to alcohol for that to occur.  And I just mention that as we go on but I will come to that in a moment.

17. Ms A's assessment was that the children who were then aged 14 and 11, who are now aged 15 and 12, had stated very clearly that they wanted to live with their father.  She describes them as being surprised that they had been sent to live with their mother after the December hearing and that they wanted to spend more time with their father.  In her recommendations Ms A notes that X had told her that once he turned 18 - in other words in three years time - he would go to live with his father anyway and that she thought that the idea of splitting siblings then would be a bad idea.  She says:

    It remains in Y's best interest to remain in the same parenting arrangement as his sibling.

18. Well, there is nothing the court can do about that once X turns 18.  If he chooses to go and live with his father that is entirely a matter for him.  But I think the most salient thing that Ms A says is in paragraph 47 of her report, where she says this:

    The summary of this assessment has no clear best outcome for the children due to the children's exposure to psychological harm in both households. 

19. She says:

    Unless there is further evidence provided to the court which suggests that the children are at significant risk of harm in the care of the father, it is suggested that the children return to live in some form of shared care arrangement living primarily with their father and spending significant time with their mother.

20. She notes that that would allow the children to spend time with each of their parents, and she makes the note that:

    Children raised within highly conflictual environments frequently begin to align with one parent and reject the other to remove themselves from the centre of this conflict.

    What she means by that is going to be I am sure a matter of cross-examination at trial and I note at this stage that trial is set down for 2, 3 and 4 August 2017, some 15 months away, such is the state of the court lists where I think most judges have dockets of between five and six hundred cases and some even more than that.

21. The family consultant clearly says of the children it is likely that they may elect to live primarily with their father and reject their mother and maternal extended family in the future.  Well as I said, I think that will be the subject of some cross-examination at trial.

22. Today I heard submissions from the father's counsel, the mother's counsel and the independent children's lawyer.  And the arguments put on behalf of the mother and the father, I must say were well put and cogent.  The mother's counsel provided the parties and the court with the case of Bondelmonte & Bondelmonte[1], which is a Full Court case decided this year - just last month, in fact - in April 2016. 

    [1] Bondelmonte & Bondelmonte [2016] FamCAFC 48

23. It is a majority decision of the Full Court, Ryan and Aldridge JJ being in the majority, and Le Poer Trench J being in the minority.  And while it was said that there was a similarity between this and that case because in that case there were two boys aged 15 and almost 17 who were clearly expressing their wishes, the court had said the wishes of the children are not determinative, even when they are teenagers and that the judge had not erred in not making orders in accordance with the children's wishes; that that was a matter for the judge.

24. In fact, I must say that while I respectfully agree with the majority decision in that case, there is a minority decision which sets out quite a few interesting and relevant factors.  And I will not really go into that too much now, except to say that what Le Poer Trench J said in that case clearly illuminated the doctrine of “the least detrimental outcome” and set out the history of that; that this has been a part of the court's determinations for years.  This is a case that could have been the catalyst for the doctrine of the least detrimental outcome doctrine.

25. What is clear is that these children are at risk and Mr Stanley, quite rightly - supported indeed by the independent children's lawyer, although they have different views on what the risk is - said that this is a risk case.  This case is about where the children are most at risk effectively.  This too - like the hearing on 2 December - is an interim hearing and of course I cannot make findings of fact in an interim hearing. 

1. Ms Teicher, for the father asked me to distinguish the decision in Bondelmonte on its facts and I do distinguish it on its facts.  It is not the same.  That was an international relocation case where two boys in their mid teens had been taken to New York by their father and then he had decided to keep them there and to live there with them.  There is no suggestion of any such ideas here but the boys in that case had said they wanted to stay in New York.  Well, show me a 15 and 17 year old who would not in that situation.

2. Ms Teicher sought to emphasize that when Y was at counselling, he said that the mother had been intoxicated.  It was said by counsel for the mother that that is the only evidence we have of the mother having an alcohol problem.  That effectively, what Y told (omitted) Psychology in 2013/14 is all we have.  And I do not think that is quite right but I think the predominance of the evidence about that is found in the records of (omitted) Psychology and what Y told that counsellor.

3. Ms A says that the children said that they felt safer in the father's care.  And that may be says Ms A because he does not drink as often, although he may drink more when he does drink.  He says that he drinks two or three nights a week and he drinks a couple of cans, although he told the doctor - and he says through counsel today - that there has been at least one time when he has been at a barbeque and he has suddenly realised that he has drunk the best part of a bottle of bourbon.  So it is clear that Mr Hirst does have some issue with alcohol and I will get back to that.

4. The other thing that Y told the counsellor was about the abuse from the maternal grandfather and that he had felt scared about that and he reported feeling scared in his mother's care.  The father reports that the mother has assaulted X but still X wants to live with his father.  Ms A says the report from Y's counsellor points a bleak picture of his life with his mother and his exposure to verbal abuse from his maternal grandfather.  That is what Y says and, as I said, I can not find facts any more today than I could in December. 

5. Ms Teicher tells me that the father's proposal today is that the children live with the father and spend time with the mother from Monday to Friday in alternate weeks.  That is a situation where the children would live 10 nights in a fortnight with their father and all weekends and four nights a fortnight with their mother, all of them school nights. 

6. Y also told Ms A that one of the reasons he wanted to live with his father was that his father was more involved in his life and took him to his activities and that there was more school involvement.  And what is clear and unequivocal in this case is that the children are saying they want to spend more time with their father or to live with their father.  And what Ms A says at the end - and I have already stated it - is that unless the court were to find that there is a significant risk of harm with the father, the children should spend time - should live with him and spend time with the mother up to four nights a fortnight. 

7. Ms Teicher points out that the children changed their living arrangements in 2010 and that after that the children's living arrangements had changed such that they spent more time that was provided for in those orders with their father.  There was then a change in the child support assessment and the father says, "Well, that is only when the mother started acting up and she started complaining about me.  It was only when the child support assessment was made that gave her less money” and Ms Teicher says that it may be that child support is a factor in this case.  And it might have even been the tipping point in bringing these proceedings before the court. 

8. Ms Teicher points out that Ms C in making her particularly drastic recommendation to the court in December, had not had the benefit of the subpoenaed material nor of the psychiatrist's reports.  And she says that her recommendations fly in the face of what the children told her.  Well, certainly Ms C was somewhat diminishing of what the children's views were at the time, for the reasons that I have given:  that she thought the father's violence may have influenced them or the father's domineering personality had influenced them. 

9. Ms Teicher says that Ms C also put great store by the evidence of Mr B, who is the son of the mother in these proceedings but Mr B, as I said in the last proceeding, Mr B is not a child subject to these proceedings.  He is an adult and there is no evidence from him before the court and he is estranged from the father and at this stage anyway - what he says to the counsellor I think is not evidence, I will put it that way.

10. What Ms Teicher says is that given that we are 15 months away from trial, it is not in the children's best interests to remain in a situation against their clear wishes for that long and that I ought make orders that the children go to live with their father.  Mr Stanley, for the mother, says that the mother's proposal is that the children live with her and spend time with the father each alternate weekend.  He points out that wishes and best interests are not necessarily the same thing.  And he is right about that, of course. 

11. Children's wishes are not determinative in family law proceedings.  If they were we would not need courts.  All we would need is to find out what the children think and give it to them.  Children do not always get to do what they want.  However, it is true that the older the child, the more relevant that child's wishes will be.  X will be 16 and a half and Y will be 13 and a half I think by the time we come to trial.  Their wishes at that stage certainly would - and if after cross-examination of the family consultant those wishes remain clear, then I think they would be taken into account with more weight than they were in December or than they are now.  But I certainly hear what the boys are saying in that they were surprised that they were sent back to their mother.  They were confused about that it would seem and did not understand why.

12. Mr Stanley points out that Ms A's recommendations that the children go back to live with the father are prefaced by the caveat if I can put it like that, that says unless the court finds that there is a significant risk of harm to the children in the father's care, they should go back to the father.  And that is exactly what Ms A says.  Her recommendations are I think predicated on there being no significant risk of harm to the children in their father's care.

13. Mr Stanley says that it is for me to consider whether there is a risk and of course, the wife says there is.  Mr Stanley then set out the uncontested facts in this case.  And those are these:  The father has four convictions for breaching an Intervention Order.  He has a conviction for recklessly causing injury.  He has a conviction for not completing a community corrections order.  He is currently required to drive with an interlock system on his car.  In other words, he is not allowed to drink at all when he drives.

14. Mr Stanley points out that on the occasion when the father was convicted of drink driving, the children were in the car and that a report was made to the Department.  The Department has been involved in this case might I say for quite some time mostly about neglect of the children by the mother it would seem.  But there has been some departmental involvement.

15. Mr Stanley says that another significant risk factor is the father's alcohol consumption and he refers to what Mr Hirst told Dr M about the bottle of bourbon.  He also asks me to consider that it was the police who took out the intervention order at separation for the protection of the wife and her son Mr B.  He pointed out, giving evidence from the bar table but nevertheless, that yesterday the parties were in the County Court on the appeal application of the father against the intervention order and that that matter was resolved by consent where the wife was named as the affected family member and the order was made for five years until Y is 18.  I certainly can take that into account and will.

16. He points out that the psychiatrist has said that Mr Hirst has obsessive and narcissistic personality traits and I do take that into account.  And he says that the father denied all allegations that were made - when, in fact, what he had said in the list of uncontested facts is uncontested - that they are all matters of fact and most of them matters of public record that the husband has behaved in that way.

17. He then came to the contested facts.  And of course, the contested facts are about the family violence and the issue of family violence is front and centre of the wife and mother's material in these proceedings.  He said that I should take note of the father's drinking more than the mother's.  That, in fact, in the reports the children do not reference the mother's drinking at all.  That all the reference to the mother's drinking in the reports comes from (omitted) Psychology and what Y said to the counsellor between 2013 and 2014.

18. He says that Ms C noticed that when she interviewed Mr Hirst, that he had a slight tremor and she says that he was emanating an odour when he spoke that smelt like stale alcohol.  Mr Stanley says that the only objective basis - or the basis for any objective evidence about the wife's alcohol consumption is from the psychologist at (omitted) Psychology and that was from 2013 and 2014 and that it is one of the major bases on which Ms A says there should be a change of residence. 

19. Her second basis is the children's views.  I have talked about those.  They are hotly contested in this case.  The fact of what the children say is their view is a contested fact and will be of course interrogated at trial. 

20. Mr Stanley went into more of Ms C' report which of course I would have expected him to do.  That report is more favourable to his client's position but I cannot ignore that report.  Ms C was absolutely clear and firm can I say in her recommendations.  Mr Stanley's case was that what the boys learn in their father's care is that violence is a normal part of life and that men exercise it or use it when they do not get what they want.  Ms C described both boys and their father as "blokey blokes" and I think that was a quote from the father at the time, that he said they were “blokey blokes”.

21. Mr Stanley says, “Well, that is an enlightening comment on the father's view”.  I do not take any inference from that but it is a fairly clear description.  I do not think there is any doubt of what Mr Hirst might have meant when he said that the boys and he were blokey blokes.  Mr Stanley submits that the children are at risk of emotional harm from the father's violent personality and the role model he provides for them.  Mr McCormack, the independent children's lawyer says that if there is a risk from the father's violent personality, then that is going to be a risk whether they stay with him for two nights in every 21 or whether they live with him full time and there is some truth to that, although it is a question of I think degree in that regard.

22. Mr McCormack, the independent children's lawyer says quite rightly that this is a case that does not have a best outcome;  that there are risks in both parties' homes of the children being exposed to psychological harm and I think that is true.  I think that on all the evidence that appears to be true.  However, Mr McCormack thinks that the children should go to their father because that is their wish and he says he thinks they are more at risk if their wishes are not reflected in orders.  He says that their complaints to Ms A are all about their mother;  that there are not really any particular complaints about their father.  That might indicate an alignment with their father.  It might indicate the truth.  I do not know.  I cannot tell at this stage.  But he is quite right that this is a question about risk and that it is a question about wishes.

23. Can I say that when I asked the independent children's lawyer how the children might be more at risk in the care of their mother than their father, he said "Because that's what they want; because that's their wishes."  I do not follow that argument.  I think it is a bit circular but nevertheless it is the independent children's lawyer's view that perhaps a nine/five fortnight with the children living with their father would be – I think the word he used was "sufficient" for the children.

24. There were further submissions by Ms Teicher in relation to alcohol.  She says there is no risk of the children being carried in a car while Mr Hirst is drinking because he has an interlock device on his car following a Magistrates' Court order, so there is no risk that he will drive drunk with the children in his car.  She clarified what Mr Hirst had said to Dr M, that it was the best part of a bottle rather than a whole bottle and that it was once not on a regular basis.  She also said from the bar table that the husband says that the wife was supposed to go and see (omitted) Psychology and she did not and that I should take inferences from that.  She did not say those words but just that the mother did not take the opportunity to see them and therefore the fact that only the father spoke to (omitted) Psychology should not be a strong reason not to take their records into proper consideration.

25. Mr Stanley in reply, said simply that there is no basis in evidence for the proposition that the children would be at emotional harm if their views were not taken into consideration and indeed not complied with.  There is no evidence before the Court for that and I tend to agree with that. 

26. I think Ms A's report, given that she did not see the report of Ms C;  given that this is what I would call a least detrimental outcome case, I take into account what Ms A said.  I take into account what the boys told Ms A, that they wanted to spend more time with their father and I also take into account the same evidence I took into account last time about the father's violence, his criminal record, his drinking.  Even at the father's highest case, the mother has an alcohol problem.  I will make orders that restrain both parties from drinking to excess when the children are in their care.  I think I made those orders last time. Complete prohibition on drinking alcohol while the children are in their care. 

27. When I have been going through the evidence, I have had in my mind the matters set out in section 60CC of the Family Law Act. The factors set out in that section that tell me what I need to consider when I am looking at what is in a child's best interest and I need to consider the children's best interests as my paramount consideration.

28. As Mr Stanley says, the children's views are not the same as their best interests and what I am really looking at here is how can we make sure that these children have a positive relationship with both parents.  Well, who knows?  That is up to the parents at this stage I think.  The children have grown up in a highly conflictual situation where both parents I think probably have had an alcohol problem.  That is not a positive milieu for children to grow up in at all.

29. Nevertheless, I have taken all those things into account:  the benefit to a child of having a meaningful relationship with both parents;  the need to protect a child from psychological or physical harm as the result of abuse or neglect or being exposed to family violence;  the views of the children.  I have taken those into account.  I have taken the nature of the relationship with both parents into account.  I have taken the family violence issues into account and the evidence of yesterday's resolution of an appeal against a family violence order by the father that the resolution was that there be by consent, a five‑year family violence order.  I do take that into account and subsection 60CC(k), I think is the paragraph that says that I must take the circumstances under which a family violence order is made into account.

30. So I take all of those things into account.  I take into account the capacity of both parents to meet these children's emotional needs.  The Court has very strong concerns about both parents' capacity to meet these boys' emotional needs and as I said, I am looking at the least detrimental outcome because I cannot make findings of fact. 

31. When I look at all of those instances, when I look at all of the evidence before me:  Ms A's report as opposed to – and I think I can say "as opposed to" – Ms C's report; when I look at the evidence of the psychiatrist who says both parties suffer from some psychiatric disorders and when I look at the law, I am going to make the following orders.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 30 June 2016