Janzen & Janzen - [2022] FedCFamC2F 775

Federal Circuit and Family Court of Australia

(DIVISION 2)

Janzen & Janzen [2022] FedCFamC2F 775

File number(s):	NCC 3971 of 2018
Judgment of:	JUDGE CARTY
Date of judgment:	8 June 2022
Catchwords:	FAMILY LAW – PARENTING – final parenting orders – allocation of parental responsibility – spend time with arrangements for children with father – assessment of risk of harm in the father’s household due to mental health conditions and alcohol abuse disorder– high conflict and poor co-parenting relationship.
Legislation:	Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 61DA, 65DAA, Pt VII Crimes (Sentencing and Procedure) Act 1999 s.10A
Cases cited:	N & S & The Separate Representative (1996) FLC 92-655 M v M (1988) 166 CLR 69
Division:	Division 2 Family Law
Number of paragraphs:	210
Date of last submission/s:	16 February 2022
Date of hearing:	14 – 16 February 2022
Place:	Newcastle
Counsel for the Applicant:	Mr Mueller
Solicitor for the Applicant:	Hepmac Lawyers
Counsel for the Respondent:	Mr Bates
Solicitor for the Respondent:	Resolve Family Law
Counsel for the Independent Children's Lawyer:	Mr Mooney
Solicitor for the Independent Children's Lawyer:	Jennifer Blundell & Associates

ORDERS

NCC 3971 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR JANZEN Applicant
AND:	MS JANZEN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE CARTY
DATE OF ORDER:	8 june 2022

THE COURT ORDERS ON A FINAL BASIS THAT:

All previous parenting orders are discharged.
The mother have sole parental responsibility for the children X born in 2012 and Y born in 2014 (“the children”).
Whenever the mother intends to make a decision about a major long term issue affecting the children or either child the mother shall, other than in a genuine emergency, contact the father by email and:
(a)Identify the issue;
(b)Set out her proposal;
(c)Invite the father to respond with any alternate proposal within a stated and reasonable period of time; and
(d)Advise the father promptly of the decision that she has made.
The children live with mother.
Pursuant to s. 68B of the Family Law Act 1975 (Cth.) the father shall be and is hereby restrained from:
(a)Consuming alcohol, or being under the influence of alcohol, during any period of time that the children or either of them are spending time with him or communicating with him by face time or telephone;
(b)Consuming any alcohol during the period 12 hours prior to the children coming into his care;
(c)Approaching the mother at any extracurricular, sporting, educational or medical event to which both parents are invited and attending, without the written consent of the mother;
(d)Approaching within 50 metres of the mother’s residential address or workplace, without the written consent of the mother; and
(e)Bringing the children into contact with Ms C, unless with the written consent of the mother.
The children spend time with the father as follows:
(a)Until 14 August 2022, each alternate weekend for not less than two (2) hours supervised by D Contact Centre, or such other private supervision service as agreed between the parents, with the parents to each pay one half of the fees for the provision of the supervision;
(b)Commencing from Sunday 14 August 2022 and each Sunday thereafter from 2.00pm until 4.00pm, with changeover to occur inside McDonalds Restaurant at Suburb E New South Wales (“McDonalds at Suburb E”);
(c)Commencing from Sunday 11 September 2022 and each Sunday thereafter from the commencement of the children’s swimming lessons or 9.00am until 4.00pm with changeover to occur at the Region F Leisure Centre, Suburb E, New South Wales;
(d)Commencing from Saturday 8 October 2022 each alternate weekend from 2.00pm Saturday until 4.00pm Sunday, with changeover to occur inside McDonalds at Suburb E, New South Wales;
(e)Commencing from Saturday 3 December 2022 each alternate weekend from 2.00pm Saturday until 9.00am (or commencement of school) on Monday with changeover to occur inside McDonalds Suburb E on the Saturday and at school on the Monday, and if Monday is not a school day then inside McDonalds Suburb E;
(f)On Christmas Day 2022 from 11.00am until 4.00pm with changeover to occur at McDonalds at Suburb E;
(g)Commencing from the second weekend of Term 1 2023 and continuing thereafter:
(i)During school terms each alternate week from 2.00pm Saturday until commencement of school or 9.00am on Tuesday, with time to resume following school holiday periods on the second weekend of each school term;
(ii)On Father’s Day each year if the children are not already spending time with the father from 9.00am until 4.00pm;
(iii)During the school holiday periods at the end of Terms 1, 2 and 3 from 2.00pm on the second Saturday until 4.00pm on the following Thursday;
(iv)During the school holiday periods at the end of Term 4:
i.In even numbered years from 2.00pm on the second Saturday of the holidays until 4.00pm on the following Thursday and each alternate week thereafter; and
ii.In odd numbered years from 2.00pm on the first Saturday of the holidays until 4.00pm on the following Thursday and each alternate week thereafter; and
(h)At all such other times as may be agreed in writing between the parents.
Notwithstanding any other order hereto:
(i)The children will spend time with the Mother on Mother’s Day each year from 9.00am until 4.00pm;
(ii)The children will spend time with the mother in odd numbered years from 4.00pm on Christmas Eve until 9.00am on Boxing Day; and
(iii)The children will spend time with the father in even numbered years commencing 2024 from 4.00pm on Christmas Eve until 9.00am on Boxing Day.
Except as otherwise provided in these orders or agreed in writing changeover will occur, when on a school day, at the children’s school or schools, and if not a school day then at McDonalds at Suburb E.
The children will communicate with the father by telephone, Face time, or other video conferencing platform as agreed, and failing agreement, each Wednesday between 5.00pm and 7.00pm, and when the children are spending time with the father the mother will be at liberty to communicate with the children on the mobile number provided by the father at least each alternate day, if not otherwise agreed, between 5.00pm and 7.00pm.
Each parent will keep the other informed of their current residential address, email address and mobile telephone contact details at all times, and will inform the other parent of any change to such details within 24 hours of a change occurring.
The parents will communicate with each other about the children using the Our Family Wizard app, or such other technology agreed in writing.
The parents shall be and are each hereby restrained from denigrating the other parent or any member of their family in the presence of or within the hearing of the children and from permitting the children to remain in the presence of any other person denigrating the other parent or any member of their family.
Each parent will inform the other parent immediately in the event that either of the children is:
(a)Ill or injured, and will provide relevant contact details for any treating medical practitioner;
(b)Prescribed any medication, and will provide the medication to the other parent at changeover with written instructions for use; or
(c)Admitted to hospital, and will provide relevant contact details for any treating medical practitioner.
The mother will inform the father by text message of the name and contact details for any school at which either child is enrolled.
These orders are sufficient authority for each parent to obtain information concerning the health of each child, from any medical practitioner or allied health professional providing treatment for the children or either of them.
These orders are sufficient authority for each parent to obtain information concerning the education of each child, from any school at which the children or either of them are enrolled.
The parents are each at liberty to attend any school function to which parents are invited, including but not limited to concerts, award ceremonies, assemblies, sports days, and parent-teacher meetings.
The parents are each at liberty to attend any sporting or extracurricular activity in which the children participate.
The mother will keep the father informed of the name and contact details for any counsellor or therapist providing treatment to the children or either of them and these orders are sufficient authority for the father to obtain information from any such counsellor or therapist and for the father to provide such counsellor or therapist with information concerning the children.

NOTATION:
A.The expression “in writing” or “written consent” includes by text message and email.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Janzen & Janzen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE CARTY

INTRODUCTION

The parents are in dispute about the parenting arrangements for their two children X, 9 years old and Y, 7 years old.
The parents agree that the children will continue to live with the respondent mother (“the mother”).
The applicant father (“the father’) proposes an order for equal shared parental responsibility and that the children spend significant and substantial time with him, building to equal time.
The mother proposes an order that she have sole parental responsibility for the children, and that the children spend no time and have no communication with the father.
The Independent Children’s Lawyer (“the ICL”) seeks an order that sole parental responsibility for the children be allocated to the mother, and that the children spend supervised time with the father.
The key issue for determination is whether the children are at risk of harm in the household of the father from being exposed to or subjected to neglect or family violence and whether an order for the children to spend time with the father will expose the children, or either child, to an unacceptable risk of harm.

DOCUMENTARY EVIDENCE

The father relied on:
(a)Outline of Case document filed 11 February 2022 – Exhibit A;
(b)Amended application filed 11 February 2022;
(c)His affidavit sworn 1 February 2022;
(d)Letter from Dr G, Consultant Psychiatrist, to the father’s solicitors dated 31 January 2022 – Exhibit B;
(e)Commendations and a Certificate of Merit attesting to good work by father – Exhibit C;
(f)The Family Report prepared by Ms H dated 7 February 2020 – Exhibit E; and
(g)Bundle of documents including NSW Police event entries, school notes and contact supervision notes – Exhibit F.
The mother relied on:
(a)Outline of Case document dated 10 February 2022 – Exhibit D;
(b)Amended response filed 5 March 2021;
(c)Her affidavit sworn 10 January 2022;
(d)Affidavit of Ms J affirmed 10 January 2022;
(e)Family Report – Exhibit E;
(f)Bundle of documents including NSW Police event entries, the Mother’s private ADVO application and related documents, police internal investigation records for the father, Final ADVO against Ms C for protection of mother and related documents, and reports and records relating to the children’s educational and medical issues – Exhibit G; and
(g)Alcohol Screen Audit – Exhibit H.
The Independent Children’s Lawyer relied on:
(a)Outline of Case document dated 11 February 2022;
(b)Family Report dated 7 February 2020; and
(c)Minute of Order Proposed by Independent Children’s Lawyer – Exhibit I.

BACKGROUND

The father was born in 1980 and is 42 years old. He is in receipt of worker’s compensation payments and is unlikely to return to his former work as a public servant. He plans to seek work in retail sales. He lives alone in a one bedroom townhouse he rents at Suburb K on the Region L of New South Wales. He plans that when the children stay overnight with him he will let them sleep in the bedroom, or in the lounge room on a pull out bed, and he intends to look for a two bedroom home to rent on the Region L.
The mother was born in 1980 and is 41 years old. The mother and the children live on the Region L of New South Wales in a three bedroom home at an undisclosed address. The mother wishes to keep her address private from the father. The children attend M School at Suburb E. The mother works full time as a professional for a company, working from home two days each week and in Sydney three days each week. On the days that the mother works from home she delivers and collects the children to and from school. On the three days that she works in Sydney the mother delivers the children to before school care at 7.00am and collects them from after school care at 5.30pm.
The parents met in about 2002 and commenced cohabitation around 2003, when the mother moved in with the father at the home of the late paternal grandmother at Suburb E. The parents were married in Country N in 2007.
There are two children of the marriage, X born in 2012 and Y born in 2014.
In 2008 the father commenced employment with Employer O, where he remained working until January 2021, although on leave from October 2020. The father’s work involved shift work, including throughout 2013 and 2014 when the mother took maternity leave.
The mother worked full time, taking 12 months off work on maternity leave following the birth of each child. In 2015 the mother’s three cousins arrived in Australia to assist the parents to care for the children. The father was on call throughout mid-2015 until late 2016 with the Employer O, and concedes that his work “..made it hard for me to commit to a specific time at home…when I was at home I participated in the children’s care and welfare.”[1]
[1] Father’s affidavit paragraph 13
In 2016 the father suffered an injury at work and took 12 months sick leave. The mother continued to work fulltime and the father says that he took on more of the primary role in caring for the children.
Final separation occurred either under the one roof on 29 August 2017 according to the father, or when the father moved out of the former matrimonial home on 18 December 2017 according to the mother. The parents are not divorced.
The father took long service leave from his employment during 2017, returning to work in March 2018. The mother continued to work full time. Both parents provided care for the children during the marriage and following separation. During the marriage, and up until April 2018, the mother dropped the children to child care and the father picked them up and after separation he took the children to the family home and cared for them until the mother arrived home at about 7.00pm.
In early 2018 the parents’ conflict escalated and both parents engaged in vile abuse of the other in text messages and by email. They argued and had altercations in front of the children. The mother was distressed and angry to find that the father had commenced a relationship with Ms P, a mother of a child in X’s class at school. The mother struggled to contain her strong emotions and shared her feelings of distress and anger with the father, including verbally abusing and vilifying him. She confronted and verbally abused Ms P at school in the presence of Y. The father was also upset and angry and he verbally abused the mother.
On 20 April 2018 the mother made an application for a private Apprehended Domestic Violence Order (“ADVO”) against the father for the protection of herself and the children. Thereafter she ceased to facilitate the children’s time with the father. The children did not spend time with the father between mid-April 2018 and 18 May 2019.
Regrettably the father’s sister Ms C involved herself in the parental conflict. In early April 2018 Ms C left voicemail messages for the mother in which she verbally abused and threatened the mother[2] and she later attended at the home of Ms J, while the mother and the children were present, and verbally abused the mother in the presence of the children[3]. The mother reported the incident to police. Ms C was charged and an ADVO was made against her for the protection of the mother and the children for a period of twelve months.[4] The mother says that after the incident the children were hyper vigilant and in 2020 they were found to be the victims of an act of violence and were awarded victim’s compensation.[5]
[2] Mother’s affidavit paragraphs 98, 104
[3] Mother’s affidavit paragraph 104
[4] Mother’s affidavit paragraph 105
[5] Mother’s affidavit paragraph 107
The father filed an Initiating Application on 18 December 2018 in which he sought parenting and property orders, including that he have sole parental responsibility for the children, that the children live with him, that the children spend time with the mother during day time periods only, and that the mother enrol in anger management counselling and attend a psychologist.
The mother filed a Response on 7 February 2019 in which she sought parenting and property orders, including that the mother have sole parental responsibility for the children, that the children live with the mother and that if the court found no unacceptable risk of harm to the children in the care of the father then the children spend time with the father each alternate weekend from after school on Thursday until school time on Monday and for one half of each school holiday period.
Interim parenting orders were made by consent on 13 February 2019 which remain current and provide for the children to spend time with the father for not less than two hours each week supervised by either Q Counsellors or R Counsellors, or another nominated entity. Due to the wait list, supervised time did not start until May 2019. COVID-19 restrictions in 2020 and 2021 impacted on the spend time arrangements. The supervised time did not occur during the father’s hospital admission for mental health and alcohol abuse issues between 7 July 2021 and 13 August 2021.
The father was ordered to undertake Hair Follicle Testing (“HFT”) to detect “...all drugs…including (if possible) anabolic steroids and human growth hormone” The father provided a sample of hair 3.8cm in length on 19 February 2019. The HFT results were negative for all illicit substances.[6]
[6] Father’s affidavit Annexure A
Both parents were ordered to enrol in and complete the Parents not Partners course. The father completed the course on 27 March 2019[7] and the mother completed the course on 6 June 2019.
[7] Father’s affidavit Annexure D
On 29 January 2020 the parents reached an agreement to settle their property dispute and final property orders were made on 29 January 2020.
The mother contended at trial that there is a benefit to the children having a relationship with the father, but that the children are at risk of harm by reason of the father’s alcohol use disorder, post-traumatic stress disorder (“PTSD”) and major depression[8].
[8] Exhibit D

When the mother was interviewed by the family consultant in early 2020 she identified that the risk posed by the father was abuse of illicit drugs[9]. At trial she reiterated her allegation that the children are at risk in the household of the father from illicit drug use[10].
[9] Exhibit E paragraph 15
[10] Exhibit D
There are mutual allegations of family violence and each parent contends that the other parent was the main aggressor. There is no dispute that the relationship experienced tumult and unhappiness, and that the parents’ conflict escalated immediately prior to and after their separation. The parents argued frequently, and there were verbal and physical altercations in front of the children.[11] There is no evidence of family violence occurring after April 2018.
[11] Exhibit E paragraph 11
The children have special needs. There is no dispute that both parents have exposed the children to conflict, and it is likely that such exposure has had a negative impact on the psychological and emotional wellbeing of both children.

LEGAL PRINCIPLES

Parenting orders are made under the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects of Part VII of the Act, and the principles underlying the objects, are set out in s.60B of the Act.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
In determining what order is in the child’s best interests the court must consider the matters that are set out in s.60CC(2) and (3) of the Act, taking into account the particular circumstances of each case.
Section 61DA of the Act requires that when making a parenting order 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 responsibly for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child (or another child who was a member of the parent’s, or that other person’s, family) or family violence.
The presumption can be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child.
If the court makes an order for the parents to have equal shared parental responsibility for a child, then the provisions of s.65DAA of the Act apply and the court must consider whether it is reasonably practicable and in the best interests of the child for the child to spend equal time with each parent.
Where equal time is not reasonably practicable or not in the best interests of the child then the court must consider whether it is reasonably practicable and in the child’s best interest to spend substantial and significant time with each parent.
In the present case the mother and the Independent Children’s Lawyer urge the court to find that the children are at unacceptable risk of harm in the household of the father due to his mental health conditions and alcohol abuse disorder. When considering the issue of risk the court is assisted by the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, including where, at 82,713-4, Fogarty J said:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.”
In M v M (1988) 166 CLR 69 the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. Thankfully the present case does not involve allegations of that nature, but the remarks made by the High Court are relevant in a case such as this where it is contended that a child is at unacceptable risk of harm. At [25] the Court said:
“25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from …abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of… abuse.”

COMPETING PROPOSALS OF THE PARTIES

The father proposes that the parents have equal shared parental responsibility for the children, that the children live with the mother and spend time with the father on an unsupervised basis, initially each alternate Sunday from 9.00am to 5.00pm and thereafter overnight on weekends eventually moving to an equal time arrangement with changeover on Wednesday, and time on special occasions. The father seeks an order for telephone/electronic communication with the children each Wednesday between 4.00pm and 6.00pm, unless otherwise agreed.
The mother proposes that she have sole parental responsibility for the children, that the children live with her, and that the children spend no time and have no communication with the father, with an order restraining the father from removing the children from any school or other person or organisation with whom the mother has placed them.
In her trial affidavit the mother deposes that:[12]
“If the court were to find that [Mr Janzen] should be meaningfully involved in the children’s lives and that he is not an unacceptable risk to the children, I seek a graduated time arrangement of, say, an initial 2 hours each Sunday after lunch for 4 visits, with changeover inside the McDonalds… at [Suburb E]…thereafter each Sunday morning at the start of their swimming lessons at the [Region F] Leisure Centre at [Suburb E] or at 9am if swimming are not being held until 4pm…for 4 visits and thereafter every second weekend from 2.00pm on Saturday… until Sunday at 4.pm for a period of 3 months. Thereafter each alternate week from 2.00pm on Saturday until the start of school on Tuesday. This would fit much more easily into their normal pattern, including their football games in case we have to travel and get back in time for changeover, without placing them under too much stress or exposing them to too much conflict between [Mr Janzen] and me”
[12] Mother’s affidavit paragraph 289
During cross examination by Learned Counsel for the ICL the mother indicated that she would be comfortable with an order that the children spend supervised time with the father, and she reluctantly agreed that she could contribute to the cost of supervision, although she said that she will need to cancel one of the children’s current extracurricular activities to afford the contribution.
The ICL tendered a Minute of Order[13] at the close of the evidence which proposes that all previous parenting orders are discharged, and that the mother have sole responsibility for the children, with an obligation to identify to the father any decision that she intends to make and set out her proposal, invite the father’s response and advise him of her decision. The ICL proposes that the children will spend supervised time with the father for six hours on one occasion each fortnight and on special occasions, and that the parents share equally the cost of the supervision. The ICL seeks orders which authorise each parent to be provided with information concerning the children’s education and medical treatment, and restraining each parent from denigrating the other. The ICL proposes that the father be restrained from consuming alcohol 24 hours prior to or during the time the children are with him and from approaching the mother at any extracurricular activities, sporting, educational or medical event. The ICL proposes that the father be restrained from causing or permitting the children to be exposed the paternal Aunt, Ms C. The ICL seeks the following notation to the orders:
“The father is undergoing a course of treatment, including residential treatment in respect of issues relating to his mental health and/or alcohol use. The father advises the court that he seeks to increase his time with the children upon there being a substantial and significant change in those circumstances”.

evidence

[13] Exhibit I

The father

The father is diagnosed with post-traumatic stress disorder (“PTSD”) and major depressive disorder[14]. His depression is secondary to PTSD.[15] His mental health condition is related to trauma experienced in his employment as a public servant between 2008 and 2021. He has a claim pending for compensation for his work related injury.
[14] Exhibit B
[15] Father’s affidavit Annexure E
Between June 2020 and June 2021 the father resorted to alcohol to alleviate the stress and anxiety he was experiencing as a result of his work history complicated by the conflict in the breakdown of the marriage and missing his children.[16] He deposes, and the court accepts, that his last drink was on 7 July 2021 and that his present intention is to abstain from alcohol permanently.
[16] Father’s affidavit paragraph 115 and his oral evidence
On 28 June 2021 the father’s sister Ms C accompanied him to the emergency department of Region S Hospital due to her concerns for his welfare arising from his heavy drinking. The hospital notes record that the father was heavily intoxicated on his arrival at 21.28 AEST. The father admitted in cross examination that he was drinking heavily on most days of the week, but he denied that he was vomiting or had passed out. Prior to his attendance at Region S Hospital the father had booked in to undergo detoxification for alcohol in two weeks’ time. The father admitted that he was in a serious state as a result of alcohol abuse in mid-2021.
Between 9 July 2021 and 13 August 2021 the father was an inpatient at T Hospital at Suburb U, were he underwent detoxification for alcohol and treatment for his major depression, PTSD and alcohol abuse disorder.
The father was cross examined by Learned Counsel for the mother about the admission notes from the Hospital dated 9 July 2021[17] which record that the father was drinking up to twenty standard drinks each day, last drank day before yesterday 15 full-strength beers. In his oral evidence the father said that he was not drinking every day but close to it, and that he drank stubbies of beer at home. In his affidavit the father deposed that from the 2020 to 2021 he was consuming as much as up to ten beers per day. In dealing with the discrepancy between the evidence in his affidavit and the hospital records the father said that on most days he was consuming up to ten beers and that twenty beers on any one day would be “exuberant”. He conceded that he could have been more forthright in his affidavit and when it was suggested to him that he had tried to make his position look better to the court he replied “I disagree, but yep” and went on to admit that his alcohol intake had increased to up to twenty standard drinks daily at times, and that he was drinking to dangerous levels shortly prior to his admission to hospital in July 2021.
[17] Exhibit G page 548
The father said that while an inpatient he learned strategies to manage his PTSD symptoms and upon discharge he had follow-up appointments which included discussions around relapse prevention strategies with Dr V at the hospital, and with his treating psychiatrist Dr G, and his clinical psychologist Dr Z, and with his general practitioner.
In December 2021 the father completed an outpatient treatment course over one week and he was scheduled to attend a four week long inpatient trauma recovery program from 18 March 2022.
The father’s current treatment regime consists of monthly appointments with his treating psychiatrist Dr G, and regular attendances on his clinical psychologist. He is prescribed CBD oil, THC/CBD oil and THC vaporiser.
The father’s evidence is that he feels no need to drink, that he is taking his prescribed medication, and is doing everything he needs to do without alcohol. He said that he does not miss drinking. The court considers that the father gave convincing evidence of his strong commitment to rehabilitation.
The father’s mood is described by his treating Psychiatrist in a letter dated 31 January 2022 as “stable” and the doctor says that the father has improved significantly and presents as a lot more settled than last year.
The father remains chronically depressed and requires ongoing follow up. His psychiatrist is seeking funding for transcranial magnetic stimulation which is a treatment for depression. Dr G was not on affidavit and was unavailable for cross examination. His opinion is expressed in the foregoing letter addressed to the father’s solicitors and tendered on behalf of the father.[18]
[18] Exhibit B
The court takes into account the opinion of the father’s treating psychiatrist while noting that the opinion was not able to be tested and is likely based on self-reports of the father. However there is no evidence before the court to suggest that the father has consumed alcohol or suffered a deterioration in his mental health, or required admission to hospital, since his one and only admission in July 2021.
The father’s presentation during the course of his evidence over the whole of the first day of the hearing, and his observable conduct during the trial, raised no concerns for the court as to his current level of functioning, noting the supports and strategies for him currently in place.
I consider that the father was an honest witness, notwithstanding that he minimised in his affidavit the extent of his drinking in 2021. He demonstrated a lack of insight in relation to the risk of him relapsing into alcohol abuse. He agreed that he had a problem with alcohol abuse last year, but he did not consider that there is a risk of relapse. In view of the evidence of the family consultant, discussed further, the father is naïve to the risk of him relapsing.
The father displayed a lack of insight into his role in the parental conflict. He deflected blame onto the mother, rather than accept full responsibility for the impact of his conduct. He expressed remorse for his conduct towards the mother, in his affidavit[19] and during his oral evidence. Under cross examination the father became distressed and expressed deep sadness and regret for the impacts on the children of their exposure to the parental conflict.
[19] Father’s affidavit paragraphs 27, 34
The father impressed as a loving and committed parent who has a strong desire to spend time with the children and to play an important role in their lives.

The mother

The mother has cared for the children, with no practical assistance from the father, since April 2018. She has continued to work fulltime and maintain the children while being solely responsible for their day to day care and supervision. The children have presented, since the parents’ separation, with dysregulated behaviour at school and have struggled academically. Without input from the father into the assessments, the children currently have diagnoses of Dysregulated behaviour, PTSD, Attention Deficit Hyperactivity Disorder and Generalised Anxiety Disorder[20].
[20] Exhibit G pp 514, 541
The mother has been proactive in obtaining assistance for the children, including counselling and paediatric assessments, and her commitment to the children is commendable.
The mother displayed a lack of insight into her role in the parental conflict and demonstrated her willingness to shift the whole of the responsibility for the children’s trauma onto the father, rather than take responsibility for her part in it. She admitted in cross examination that she has been selective in the information that she provided to Dr AB, the childrens’ Paediatrician. She did not tell Dr AB about the altercation she had with Ms P in front of Y at X’s school on 12 March 2018, and she has not yet told Dr AB that she “…did yell, swear, call Mr Janzen names and did throw and break items”.[21] Dr AB’s report notes that
“Both boys have similar issues with dysregulated behaviours and poor focus at school. This comes of a complicated background including alleged exposure to significant domestic violence from their father”[22]
[21] Exhibit E paragraph 17
[22] Exhibit G page 514
It is abundantly clear on the evidence that both parents engaged in verbal abuse of each other and had heated arguments while the children were present, during which the children became very upset.
The family consultant Ms H reported that both parents may pose a risk of harm to the children from family violence. When she was asked in cross examination about the impact on the children of a selective narrative, provided only by one parent, Ms H identified a danger that the children are not able to build a level of trust if the narrative of their counselling is contrary to their lived experience. When the children have been exposed to violence by both parents, but the ongoing narrative is that the violence was perpetrated by one parent and not by both, then that is very confusing for the children, and the denial of their lived experience is unhealthy for them. Additionally the children’s therapists are providing assessments and treatments for the children without the benefit of the complete history.
A concerning feature of the mother’s evidence is her willingness to make serious false allegations about the father, and her unwillingness to acknowledge any positive attribute of the father.
The mother’s trial affidavit includes the following statement
“Throughout 2017 and 2018, I witnessed [Mr Janzen] using cocaine. On one occasion he and his friend snorted cocaine worth $2,000.00”[23]
[23] Mother’s affidavit paragraph 123
That allegation is very serious, particularly in the circumstance that the father was a public servant at the relevant time.
During cross examination by Learned Counsel for the father, the mother said that she did not see the father use cocaine, and that she has never seen him use cocaine. The mother agreed that it was a big accusation to get wrong and that her evidence was incorrect. Indeed it was revealed to be a lie.
The mother told the contact supervisors at Q Counsellors on 2 November 2019 that the father had failed a hair follicle drug test. She admitted that it was a serious allegation to make. She said that at the time she thought it was true, although she did not explain why she had that belief. The mother’s preparedness to make a serious allegation about the father to the contact supervisors without checking the accuracy of it reflects poorly on her, and raises a concern about her capacity to meet the emotional needs of the children through supporting their relationships with the father.
On 11 January 2020 the contact supervisor’s records note that Y smiled, leaned into the father’s hug and said: “you had sex with Ms P”. X asked “is it true”. Both boys said “Mum told us”. [24]
[24] Exhibit F page 341

The mother agreed in cross examination that she had a conversation with the children about the father and Ms P, but denied that she told the children that the father and Ms P had sex.
On 7 August 2020 the contact supervisor’s notes record that Y said to the father that “..he had punched kids and hurt teenager kids because you were getting angry”.[25] That can only have been a reference to the circumstances of the father’s conviction in 2017 for intimidation in the course of his work as a public servant. While the mother accepted the proposition that the knowledge that the child had about this incident came from her, she denied under cross examination that she had told the child that the father had punched kids and hurt teenage kids.
[25] Exhibit F page 367
I reject the mother’s denials. Realistically she was the only person who could have imparted the level of detail that the child disclosed in relation to the second incident, and the children themselves told the contact supervisor that the mother had told them that the father had sex with Ms P.
The mother’s preparedness to give false evidence against the father, to withhold significant information about the children’s experiences from their treating Paediatrician, and her false denials lead the court to conclude that the mother is prepared to prioritise her own needs over the needs of the children.
The court will approach the mother’s evidence with caution, particularly where her evidence conflicts with the father’s in relation to allegations of family violence during the parents’ relationship and post separation.

Evidence of Ms J

Ms J affirmed her affidavit on 10 January 2022, in support of the mother’s case. Ms J lives at Suburb AC and is the father’s third cousin.
It is evident that Ms J is aligned with the mother. She has accepted what the mother has told her, and what she has been told by other people, to inform her attitude toward the father. She has also believed things that the father has told her and she provided him with a personal reference when he faced the Local Court on the intimidation charge in 2017.
Ms J is undoubtedly a well-meaning person, and she has provided the mother and the children with much needed practical assistance and support. The court considers however that she is not someone who is independent or qualified to comment on the nature of the children’s relationships with the father.
Ms J says that she has observed the children at her home not wanting to speak with the father on the phone. She is of the opinion that father asks the children lots of questions and that they feel under fire from him. The court considers that there are alternative explanations for why the children may appear reluctant to engage with the father on the phone when they are in the Ms J household, including that they may be in a loyalty bind created by an atmosphere of negativity towards, or judgment of, the father in that household. Ms J’s observations of the children’s attitudes to the father are inconsistent with the observations of the family consultant and the contact supervisors. The court considers that Ms J is not an appropriate supervisor of time between the children and the father because she is unlikely to bring an impartial mind to the task.
I accept Ms J’s evidence that Ms C’s attendance at her home in early April 2018 was a frightening experience for the children and the mother.

Evidence of the Family Consultant

The family consultant prepared a Family Report dated 7 February 2020. Ms H gave evidence on the third day of the hearing.
In her report Ms H acknowledged that there may be further information for the court to consider. She recommended that the mother have sole parental responsibility for the children and that the children live with her. If the father is found not to pose an unacceptable risk to the children then she recommended that the children gradually increase their time with the father until they are spending time with him from after school on Thursday to before school on Monday in week one and from after school on Thursday until before school on Friday in week two, effectively a five night per fortnight arrangement during school term.
During her oral evidence Ms H was updated with the information concerning the father’s abuse of alcohol during the period from June 2020 until July 2021 and his hospitalisation between 9 July 2021 and 13 August 2021. In summary the evidence of Ms H is that:
(a)There is always a risk of relapse. During the twelve month period following residential treatment a person is most at risk of relapsing. Abstinence from alcohol for twelve months post residential treatment is a good indicator that a person has addressed their alcohol abuse issue and is able to maintain abstinence.
(b)There is a lower risk of relapse if a person engages in relapse prevention therapy such as drug and alcohol counselling or attendance at Alcoholics Anonymous.
(c)She is hesitant to recommend block periods for the children with the father currently having heard the additional information in relation to his alcohol abuse last year.
(d)She expressed surprise and concern that the children are still engaged in trauma counselling due to their exposure to Ms C’s behaviour in April 2018. She noted that the incident was a one-off, and she said that years of trauma counselling for children of this age is probably re-confirming or cementing the trauma and she is sceptical as to the need for ongoing counselling. The goal of trauma therapy for children is to work towards a resolution, to manage anxiety and the triggers, and to manage the children’s behaviours. The aim of trauma counselling is to help the children to manage and to emotionally cope with life.
(e)She understood the mother’s concern that spending time with the father in an unsupervised situation may trigger the children, and she suggested that any current therapy for the children could run alongside any arrangement for the children to spend time with the father, and that it would be helpful for the therapist to work with the father and provide him with feedback.
(f)Ms H expressed concern as to which therapist has made a diagnosis of the children suffering from PTSD, noting that there has been no input from the father into any assessments of the children.
(g)Ms H is supportive of the father receiving information from the children’s schools and supports a continuation of his involvement in the children’s schooling. She agreed that it would be helpful if the father is able to speak to the children’s teachers and attend parent teacher meetings. She supports the father’s involvement in the children’s extracurricular activities, subject to the proviso that the court finds it less likely that there will be conflict between the parents.
(h)Ms H agreed with the proposition that in this matter it is not a case of there being no risk, and that the appropriate questions to ask are whether any risks are unacceptable or whether such risks can be managed.
(i)Ms H is uncomfortable with the father’s proposal for automatic progression of the children’s time with him from daytime to overnight time. She is of the opinion that the father needs to focus on his own health particularly alcohol abuse and depression, and taking into account whether there is evidence that that the father has self-harmed in the past.

Section 60CC(2)(a) Benefit to the child of having a meaningful relationship with both of the child’s parents

The mother says that there is a benefit to the children of having the father involved in their lives.
The children spent no time with the father at all between April 2018 and May 2019, and they have spent only supervised time with the father since May 2019.
The notes produced on subpoena by Q Counsellors indicate that the children and the father “have a mutual love and affection for each other”.[26] The father is observed to initiate physical affection with the children and the children are observed to initiate physical affection with the father. The children are observed to enjoy physical contact with the father and there is a lot of eye contact. During one observation X
“… asked [the father] to kneel down and took his face in his hands feeling his shaved head and beard. He placed his forehead on [father’s] and lovingly rubbed his face on [father’s] as he looked into his eyes.”[27]
[26] Exhibit F page 379, 390
[27] Exhibit F page 379
The observations of the parent child interactions documented in the Family Report, and in the notes of the contact supervisors at Q Counsellors leave the court in no doubt that each child has a meaningful relationship with the father and will benefit from their relationships with him continuing.
The children have lived in the sole care of the mother since April 2018 and there is no dispute that they each have a meaningful relationship with her, from which they derive benefit.

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

The primary issue for determination in this matter is whether the children are at risk of harm in the household of the father from being exposed or subjected to neglect due to the impact of the father’s mental health conditions and alcohol abuse disorder and, whether any such risk is unacceptable and warrants elimination of the father from the lives of the children, or supervision of any time that the children spend with the father.

The father’s mental health and alcohol abuse disorder

On behalf of the mother it was submitted that the father has not established that he has ameliorated the risk of alcohol abuse because there remains a risk of relapse. The mother pointed to evidence that the father has previously abstained from alcohol for two months in 2017, following an earlier period when he had been drinking to cope with work and relationship stressors.[28]
[28] Exhibit G pp 452-453
The father’s decision to abstain from alcohol in 2017 was motivated by his parenting responsibilities, and because he wants to be a role model for others. His situation had been complicated by him facing criminal charges arising out of his work as a public servant. His decision to abstain in 2017 did not follow a serious deterioration in his level of functioning such as that which lead to his admission to hospital in 2021. I consider the fact that the father re-commenced to drink alcohol following his decision to abstain for a period in 2017, has no bearing on his risk of relapse currently.
The court accepts the evidence of Ms H that there is a risk that the father will relapse and abuse alcohol again, and that such risk is highest during the twelve month period following his inpatient treatment which ended on 13 August 2021. I do not consider that the father’s participation in the trauma recovery program, which was scheduled to commence in March 2022, resets the twelve month period post residential rehabilitation to which Ms H referred in her evidence.
Ms H’s evidence is that there is a preventative aspect to the current supports the father is accessing, and that his diagnoses may change over time.
Complying with prescribed treatments to improve his mental health and following his treatment plan, including completion of the trauma recovery program, along with continuing abstinence from alcohol are crucial requirements for the father to be able to adequately manage his mental health. The court considers that the father’s mental health condition is currently well managed, and that he is fully committed to his treatment, including abstinence from alcohol, and recovery from trauma, and that he is well motivated to seek assistance and treatment in the event of a relapse.
The court is satisfied that an order which provides for the children to spend time with the father, including unsupervised time from mid-August 2022, will not expose the children to unacceptable risk of harm from abuse, neglect or family violence due to the father’s mental health conditions and alcohol abuse disorder.

Alleged illicit drug and steroid use

During the interviews for the family report in January 2020 the mother proposed that if the court finds that the father is taking illegal drugs, then the children spend daytime periods only with the father[29]. The mother alleged that the father has used cocaine, acid, steroids and Viagra and overdosed on pills and alcohol in September 2019.[30]
[29] Exhibit E paragraph 15
[30] Exhibit E paragraph 21
The father deposes that at no stage during the parties’ marriage has he ever used any drug that the mother has accused him of using[31]. He deposes to his membership of the Employer O for around 13 years and says that he was tested routinely throughout his career and that all tests were negative.[32] He deposes that human growth hormones and steroids are prohibited use items in the Employer O and that, if detected during the random testing, the father would have been subject to an investigation and removed from the force if found proven to have used prohibited substances. The father’s employment records from Employer O were before the court and the father was cross examined at length in relation to a number of investigations relating to his conduct at work, none of which involved illegal drugs, steroids or growth hormones, and no investigation of the father resulted in suspension or removal from NSW Police.
[31] Father’s affidavit paragraph 29
[32] Ibid paragraph 30
The father admits that in his late teens/early twenties, he took LSD, ecstasy and cannabis and he denies ever taking anabolic steroids[33].
[33] Exhibit E paragraph 20
The mother’s allegation that she observed the father use cocaine during the marriage is false, for reasons already discussed. The court does not accept the mother’s evidence that the father used illegal drugs or steroids. The court is satisfied that the children are not at risk of harm in the household of the father from being exposed to illegal drug use or steroid use.

Alleged suicide/self-harm attempts

The mother alleges in the Family Report that the father has attempted suicide twice[34] and has been prescribed anti-depressants.
[34] Exhibit E paragraph 23
She said that in early 2000 the father tried to hang himself in the shed, in response to her telling him that she wanted to end their relationship. She says that he had bruising around his neck for weeks after and that he did not seek medical attention and the matter was not reported to police.[35] The father was not cross examined about this allegation and the court is not satisfied that the incident that the mother alleges occurred.
[35] Mother’s affidavit paragraph 121
The father was cross examined about the mother’s allegation that he had made “deep cuts to his wrist” in December, although she could not recall the year[36]. The mother says that she met the father at a hotel for dinner, after work. The father had been drinking. She says he told her that he was going to get some cocaine. She went home. He came home in a rage and trashed the house. She ran outside and waited an hour for him to calm down and when she came back inside she saw him sitting at a bench holding a large carving knife and that “He had made some deep cuts to his wrist.”
[36] Mother’s affidavit paragraph 122
The father’s oral evidence is that the mother accused him of dealing drugs and that her friend asked him to obtain drugs. He says that he and the mother argued, that she went home and trashed the house, and when he arrived home she lunged at him with a knife and he was injured after he disarmed her and cut himself.
Records produced by Region L Health are handwritten and difficult to decipher. It is clear that the father presented to hospital at 0250 on 24 December 2005 for treatment for a ten centimetre laceration to his forearm, which required three stitches[37].
[37] Exhibit G page 238
Having found already that the mother is prepared to give false evidence against the father in support of her case, I approach her evidence of the above alleged incident with caution and cannot prefer the accuracy of her account over the father’s account. I am unable to find that the injury to the father’s forearm was due to self–harm. If the court is wrong and the father did self-harm on that occasion, then there is no evidence of a serious injury or attempt to end his life. The incident occurred more than sixteen years ago and almost seven years prior to the birth of the first child, and there is no evidence of any such incident occurring since 2005.
The father experienced depression in 2018. He says it was after the mother pushed him off a balcony, causing him to reinjure his back, and he said that he was prescribed medication for insomnia at that time.[38]
[38] Exhibit e
The father certainly had a serious alcohol abuse problem, underlying issues of PTSD and depression in July 2021, for which he has sought treatment. The notes at the time of his admission to T Hospital on 9 July 2021 record “Denies thoughts of self-harm, denies suicidal thoughts”[39] The discharge summary on 13 August 2021 reports “Not suicidal...”
[39] Exhibit G page 547
The court is not satisfied that the father has attempted suicide or experienced suicidal ideation. It follows that the court is satisfied that the children are not at risk of harm in the household of the father from being subjected or exposed to abuse, neglect or family violence due to the father self-harming or experiencing suicidal ideation.
When assessing overall the risk of harm to the children in the household of the father, the court takes into account the evidence as a whole, and in particular:
(a)The father’s strong and consistent work history up until January 2021, including as a public servant for 13 years;
(b)The history of the father’s care for the children throughout the marriage and post separation until April 2018, which demonstrates his capacity to attend adequately to their needs;
(c)That there is no evidence that the father has physically abused or deliberately harmed either child;
(d)The father’s criminal history, including that he has one conviction only for intimidation in 2017 arising from his work as a public servant, and that he continued in his role as a public servant after the conviction, following an internal police investigation;
(e)The father’s hospital admission for his mental health and alcohol abuse disorder in 2021, his total abstinence from alcohol since July 2021, and his continuing commitment to treatment and rehabilitation, with no evidence of any issue of concern in relation to his day to day functioning since his discharge from hospital on 13 August 2021;
(f)The records of the interactions between the children and the father during supervised visits, which demonstrate a close and loving relationship between the children and the father as well as the father’s capacity to attend adequately to the children’s emotional and physical needs during supervised sessions;
(g)The observations made by the family consultant of the children with the father which demonstrate that the father was gentle in his approach, patient with the children and that the children appeared comfortable with him. There was a lot of physical contact and the children appeared sad to say goodbye to the father at the end of the observation;
(h)The children’s views expressed to the family consultant, discussed below, which evidence the children’s love for both the parents and their desire for both parents to be involved in their lives.
The court finds that an order which provides for the children to spend time with the father unsupervised from 14 August 2022, and increasing gradually will not expose the children to an unacceptable risk of harm.

S.60CC (3)(a) any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views

X described seeing both parents physically assault each other[40]. He reported information that the mother told him about adult issues[41] X told the family consultant that it would be okay to stay overnight at his father’s house if his mother let him.[42] He described both parents being involved in caring for him in the past.[43]
[40] Exhibit E paragraph 87
[41] Exhibit E paragraph 90
[42] Exhibit E paragraph 91
[43] Exhibit E paragraph 92
Y said that he loves his mother and his father, and he identified the special people in his life as his mother and his father. He said he feels closest to his mother.[44] Y reported that the mother had told him that the interview with the family consultant was about whether he wanted to live with his mother or his father.[45] His report about the father trying to snatch him off his mother and his mother taking a photo and putting it on video and other comments he made are strongly suggestive of the mother providing Y with information about adult issues, and involving him in the dispute. Y said that he thought his mother was sad and said that made him feel sad.
[44] Exhibit E paragraph 76
[45] Exhibit E paragraph 75
The impression gained is of two children who yearn for a relationship with both parents and who wish that the parents would stop fighting.

S.60CC(3)(b) the nature of the relationship of the child to:

(i) each of the child’s parents; and

(ii) relatives (or other relevant persons)

X was observed to be anxious upon his arrival for the observation with the father and appeared to feel more comfortable when his father came into the room and began to play with him.[46] When he saw the father he smiled broadly.
[46] Exhibit E paragraph 85
Y was observed to be anxious upon his arrival for the observation with the father but soon settled once he began playing with the father.[47]
[47] Exhibit E paragraph 73
Y was observed to behave in a more aggressive way with his mother than when observed with the father[48].
[48] Exhibit E paragraph 110
The children were observed to appear comfortable with the father and there was a lot of physical contact and affection on display. The children appeared sad to say goodbye to the father at the end of the observation. The father was observed to be gentle in his approach, smiled and was patient.
The mother was observed to be calm and gentle with the children, and she calmly managed and was able to de-escalate Y’s aggressive behaviour during the observation with her.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child

It appears that during the marriage the parents took every opportunity to participate in making decisions about major long term issues affecting the children and to spend time and communicate with the children.
Immediately following separation the parents continued to participate jointly in caring for the children until the co-parenting relationship broke down completely in April 2018, following which the mother has been solely responsible for the children. Due to the breakdown in communication and the fact that the children have lived with the mother since that time, the father has had limited opportunity to be involved in making decisions for the children and to spend time and communicate with them.
The interim orders provide that the father is solely liable for the costs of supervision of the children’s time with him. The father says that financial constraints in 2021 meant that he could not always afford to spend time with the children at a cost of $300.00 each supervised visit. COVID-19 restrictions also impacted on the children’s time with the father in 2020 and 2021. The father was unavailable to spend time with the children during the period of his hospitalisation in July and August 2021. Otherwise it appears that the father has taken every opportunity to spend time with the children.
The current interim orders provide for the children to communicate with the father by telephone each Tuesday and Thursday between 7.00pm and 7.30pm. The father says that on many occasions his calls have not been answered but that when the calls do take place the children enjoy speaking with him. It appears that the father has taken every opportunity to communicate with the children.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled or failed to fulfil, the parent’s obligations to maintain the child

During the marriage both parents worked and fulfilled their obligation to maintain the children.
The mother has clearly fulfilled her obligation to maintain the children since separation, as evidenced by her working fulltime and providing for all of their day to day needs.
The evidence is silent as to the extent to which the father has fulfilled his obligation to maintain the children since April 2018.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of the parents; or

(ii) any other child, or other person, with whom he or she has been living

The court is satisfied that the children will benefit from spending time with the father which is not supervised. Unsupervised time will assist the children to have more natural, regular and consistent time with the father. They will no longer have their interactions with the father observed by a third party, and the parents will not incur the fees for supervision. This will alleviate the problem of the children’s time with the father being limited due to the financial constraints of both parents, and will likely free up funds which may be reallocated to meeting the needs of the children. The children will be able to have a more natural relationship with the father, and enjoy activities with him that are not available within the confines and time limits imposed by supervision.
The court takes into account the proposal the mother makes in her affidavit about arrangements which she believes are best for the children, in the event that the court makes findings that the father is not an unacceptable risk to the children. The mother proposes a graduated time arrangement, which will assist the children to adjust to their changed circumstances. The configuration of the children’s unsupervised time with the father in the mother’s proposal, she says, will fit within the children’s current weekly pattern, including their sporting commitments.
The mother says, and the court accepts, that extracurricular sporting activities are beneficial for both children and that Y is more resilient since he started football training.[49]
[49] Mother’s affidavit paragraph 288
The children are attending weekly trauma sessions, which the family consultant fears could re-cement or trigger the children. Ms H suggested that any current therapy for the children could run alongside any arrangement for the children to spend time with the father, and that it would be helpful for the therapist to work with the father and provide him with feedback.
The court is confident that the children have a close and loving relationship with the father and that they enjoy spending time with him. The court finds that it is likely that the children will adapt and cope with arrangements which make provision for them to spend unsupervised time with the father and which will allow him to have a meaningful involvement each child’s life.
Noting the father’s loving and positive attitude to the children, and the children’s obvious enjoyment of and desire for time with the father, coupled with the history of the parents’ care for each child up until April 2018, the court foresees no major challenges for the children in adjusting to being in the presence of the father unsupervised. The court will however take a cautious approach to the children’s time with the father. The children’s comfort and routine must be prioritised the arrangements must cause the minimal disruption to their routines possible in the circumstances. A gradual approach to implementation of the spend time arrangements is appropriate to give the children adequate time to adjust to the changes.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time 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.

The parents agreed back in February 2019 that the father would be responsible for the costs associated with the children spending supervised time with him. At that time he was working full time as a public servant earning about $95,000.00 per annum gross. The mother was working full time as a public servant.
The father is now unemployed and in receipt of worker’s compensation payments in the sum of $2,000.00 per month. He says that when his worker’s compensation claim is finalised, and the dispute about the arrangements for the children is resolved, then he intends to seek work in retail sales. In the meantime it is not surprising that he has found it difficult to meet the costs involved in the supervision of the children’s time with him.
In order for the children to be able to maintain direct contact with the father during the remaining period of supervised time, and to have the benefit of maintaining their meaningful relationships with him, the court considers that it is appropriate for both parents to contribute equally to the costs of the supervision. The court considers that the children’s time with the father is of greater priority than missing out on one of their extracurricular activities over the next few months until the requirement for supervision is lifted and there is no longer a need for the parents to pay for such supervision.

Section 60CC(3)(f) the capacity of each of the child’s parents, and any other person, to provide for the needs of the child including emotional and intellectual needs

There is no doubt that the mother has the capacity to provide adequately for the children’s physical and day to day needs. She has provided for the children’s needs without substantial involvement of the father since April 2018.
The mother says that she accepts “the benefit to the children of having their father meaningfully involved in their lives”, although she struggled when asked to identify any positive attribute of the father and his parenting when she was cross examined. The court is concerned about the mother’s capacity to prioritise the children’s emotional needs, in particular each child’s need for a meaningful relationship with the father. The children will be assisted if the mother is able to separate the children’s needs from her own and to prioritise the benefit for the children of having a meaningful relationship with the father.
The supervision notes produced by Q Counsellors[50] demonstrate that on several occasions in 2019 the mother has been five to twenty minutes late to deliver the children to the supervision service to spend time with the father, which took time away from the children’s visits with the father.[51]
[50] Exhibit F pp 334
[51] Exhibit F page 332
The court is satisfied that both parents genuinely love and care for the children. Both parents must commit to redressing the trauma the children have experienced as a result of their exposure to adult conflict and the sudden separation from the father.
The father engaged in abuse of the mother via email and threatened her that the boys would no longer be in her care, which was very distressing for the mother. The mother engaged in abuse and vilification of the father which was very distressing for the father. Both the parents behaved in an immature and self-focussed way and neither parent shielded or protected the children from the adult conflict. It is not only the mother who has exposed the children to adult issues. The father was directed by the contact supervisors to refrain from comments which could involve the children in adult issues and create loyalty binds for them.
The children have displayed symptoms of the negative impact on them of the parental acrimony and conflict, and the parents must each accept responsibility for the impact of their own behaviours.
On 3 May 2018 there was a Risk of Serious Harm (“ROSH”) report of significant psychological harm for Y.[52] The concerns related to domestic violence and noted “a messy-divorce”. It was reported that the two year old child was more emotional than usual and that, while usually outgoing and loud, he was distressed when other children raised their voices towards him, was showing signs of social exclusion and had been violent towards other children, he was noted to scream in frustration. The notes record an altercation between the parents at the pre-school on 28 March 2018 when Y had diarrhoea, and the notes record that the father was the aggressor in that incident in front of the child. The notes record that the child has been observed to have regressed in terms of his emotional resilience, has become “shut off” and appears “emotionally unstable”.
[52] Exhibit G page 122
In May 2018 X’s class teacher reported to the parents that she had concerns about X’s ability to cope at school, both academically and emotionally[53].
[53] Exhibit G page 110
The court considers that both parents have much to offer the children.
The father is devoted to and displays empathy for the children. He became distressed in the witness box and cried when asked about the children’s emotional distress and their acting out behaviours, reported in educational and medical records. The court considers that it is no coincidence that the children’s presentation at school was unremarkable until May 2018 when it deteriorated. The deterioration coincides with their exposure to the intense parental conflict leading up to and following the parents’ separation, and with the sudden and complete separation of the children from the father who until April 2018, alongside the mother, had provided the children with significant and substantial care.

Section 60CC(3)(g) the maturity, sex, lifestyle and background of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant

The family consultant was provided with information concerning the children’s violent and aggressive behaviour at school and suggested that the children may be mimicking how the parents have managed stress in their presence.
The family consultant was concerned that the overarching diagnosis of the children was based on the reports of only one of the parents and that there could be a number of reasons for their behaviour including exposure to trauma, adjustment to the parents separation and separation from the father.
The children have Country N heritage from their mother and are able to enjoy their culture with the mother while living predominantly with her.
The father was the subject of a number of complaints arising from his work as a public servant in 2009 and 2016, and the subject of disciplinary action in 2020. The father volunteered some information about these matters when he was interviewed for the preparation of the family report in January 2020.[54]
[54] Exhibit E paragraph 37
Documents outlining the allegations and the result of investigations are contained within Exhibit G. It was alleged that on 31 January 2009 the father, in the course of his work as a public servant, used undue force and was aggressive during the course of his employment in dealing with the public[55]. The allegation included that the father had placed his hands around the throat of one of the male persons. The passenger in the vehicle was described by a police witness as “highly intoxicated and aggressive” and the driver of the vehicle returned a positive breath test on an alcolizer. The matter was investigated internally by police and it appears that no formal action was taken against the father arising out of that incident.
[55] Exhibit G pages 017-02
It was alleged that on 5 February 2016 the father, while working for Employer O as a public servant stopped a vehicle containing 5 young males, after they almost collided with his vehicle. The documents reveal inconsistencies in the allegations[56] however the Employer O investigation report suggests that it was alleged that the father leant into the vehicle and punched one of the rear seat passengers to the right side of his face and dragged him out of the vehicle by the throat. One record indicates that police could not see any swelling to the alleged victim’s face when he attended at the station to report the incident[57].
[56] Exhibit G pages 002-004, 025
[57] Exhibit G page 002
A police investigation of the incident lead to a charge of common assault and a charge of intimidation being laid against the father.[58] Subsequently at court the charge of common assault was withdrawn and the father pleaded guilty to the charge of intimidation. A personal letter from the father apologising to the victim for his actions was tendered to the court on 5 July 2017 when the father was sentenced. The father was convicted and the matter was disposed of without any other penalty by way of s.10A Crimes (Sentencing and Procedure) Act 1999. A police internal investigation in relation to a complaint, by the driver’s mother, that the father had issued a traffic infringement notice to her son out of retaliation, found that the complaint of retaliation was not sustained.
[58] Exhibit G page 026
The 2016 complaint and the court proceedings which followed in 2017 caused financial and emotional strain in the parents’ marriage. The court is not satisfied that the father’s conduct while working on call as a public servant in 2016 has any bearing on his parenting capacity and does not lead the court to find that the father poses an unacceptable risk to the children from exposure to family violence.
The evidence establishes that there were four sustained complaints of sexual harassment/misconduct against the father after the separation of the parents. Counsel for the mother cross-examined the father in relation to records concerning his conduct while a public servant in 2020. The complaints arise from his behaviour on four occasions between July 2020 and 9 October 2020 including that while on duty at Suburb AD he removed his genitals from his pants, covering his penis, and exposed his scrotum, and displayed his scrotum to some colleagues and on one occasion took a photo of his testicles using his mobile phone and sent the photograph to a male colleague[59].
[59] Exhibit G pages 54-
It is recorded that the father participated in a Directive interview on 26 November 2020 in respect of all four matters. He admitted to exposing his testicles once on 9 October 2020 and said that on the other 2 occasions he did not have his testicles out but did expose a portion of his skin of his testicles. At the time he believed he was engaging in jovial banter and having a laugh with fellow workers. He conceded that the behaviour constituted misconduct.
He made frank admissions about the photograph incident and regarded it “as a bit of banter between blokes”. He acknowledged that the behaviour constituted misconduct and that it was not professional.
In between the first complaint in 2009 and the second complaint in 2016 the father received the following accolades for his service with the Employer O: a letter dated 30 October 2009 penned by his supervisor at Suburb AE, speaking to his capabilities including hard work and high level communication skills and recommending the father as a valued employee; a Certificate of Merit in 2016 for his role in performing his duties in an exceptional manner; a Commendation for his outstanding service and devotion to duty during his role with AF Department; and a Letter dated 24 January 2012 from the Senior Executive at Suburb AE commending the father for the letter of appreciation for his efforts which was received from Magistrate AG from the AH Department. Magistrate AG had expressed appreciation,
“…for the commendable speed and genuine concern for the welfare…He commends your efforts in dealing with a potentially dangerous situation [during the course of his employment]” [60]
[60] Exhibit C

Having regard to the length of time that the father served in Employer O and the evidence overall the court is not satisfied that the father’s behaviour while working as a public servant impacts relevantly on his capacity to provide safe and appropriate parenting for the children. Whilst his conduct at the employer in 2020 is immature and unprofessional, the children were not exposed to it. The father was disciplined by his employer and the conduct has not been repeated. The evidence of the father’s conduct on occasions while at work does not lead the court to find that he poses a risk of sexual harm, or any other harm, to the children, to the mother or to any other person.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal culture or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact of any parenting order made under Part VII on that right

Not relevant in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The father has demonstrated an appropriate attitude to the responsibilities of parenting apart from his failure to shield the children from the parents’ conflict and his conduct in perpetrating family violence against the mother. He exhibits a strong desire for the children to have a relationship with him and to be responsible for caring for them on a day to day basis and be involved in their education and in any medical or therapeutic treatment for the children.
The father presents as genuinely concerned for the children, and in particular for the difficulties they have experienced since the parents separation, including their dysregulated behaviours at school.
The mother has demonstrated an appropriate attitude to the responsibilities of parenting, apart from her failure to shield the children from the parents’ conflict and her conduct in perpetrating family violence against the father.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

The family consultant was taken during cross examination to paragraph 132 of her report, where she commented that both parents may pose an unacceptable risk of harm to the children in relation to violence. She was asked what information caused her to form that view. She said that the information both parents provided about violence with the other, the information that the father had used undue force in a work situation, that the mother had physical altercations with her own mother and altercations with Mr Janzen’s partner, indicated that violence was not occurring just in one scenario, and led her to consider that there may be an unacceptable level of risk in both households from exposure to family violence.
The family consultant observed[61] that both parents raise serious concerns about violence. She reports that the father:
“…. described a volatile relationship both before and after the children were born. He said [Ms Janzen] fought [physically] with her own mother in the past. [Mr Janzen] described [Ms Janzen] having been physically violent toward him in 2002 and “trashing” their home when he was out in 2004. He said that she hit, slapped, pushed, shoved, yelled and swore at him in front of the children during their marriage”[62]
[61] Exhibit E paragraphs 128
[62] Ibid paragraph 129
She reports that the mother said:
“…that [Mr Janzen] was physically violent toward her before they had children but could not remember what happened. She said that the worst incident of violence was in 2016 prior to their separation, when [Mr Janzen] grabbed her by the neck and pushed her out of their front door after she had asked him to move his car. This was reported to police in 2016”
The father’s evidence is that there were a number of incidents of domestic violence during the marriage which “….on most occasions involved heated verbal argument and the exchange of bad language by both of us.”[63] During her interview with the family consultant in January 2020 the mother admitted that she did “yell, swear, call Mr Janzen names and did throw and break items”[64]
[63] Father’s affidavit paragraph 27
[64] Exhibit E paragraph 17
The father denied that he has ever physically assaulted the mother or the children, and said that he has not been violent and intimidating toward the mother or the children. He said that he has pushed her away or restrained her during arguments.[65] He said that he recognises that some things he said on occasions were inappropriate and he regrets saying those.[66]
[65] Exhibit E paragraph 16
[66] Ibid paragraph 27
The father alleges that the mother has lied and exaggerated issues to hurt the father and restrict him from meaningful contact and relationships with the children.[67]
[67] Ibid paragraph 28
The mother alleges in her trial affidavit that over the 18 years of the marriage the father behaved in a violent and intimidating manner, specifically alleging that he spoke abusively towards her[68] ; assaulted her one Christmas holiday period prior to X’s birth[69]; assaulted her in the presence of the children after their birth;[70] used his status as a serving public servant to bully and intimidate her into not reporting the domestic violence and abuse that he perpetrated against her;[71] frequently told the mother that the mental health team were coming over to assess her;[72] and that the children became rude and aggressive towards her, copying the father.[73]
[68] Mother’s trial affidavit paragraph 24
[69] Mother’s trail affidavit paragraph 24
[70] Mother’s trial affidavit paragraph 24
[71] Mother’s trial affidavit paragraph 25
[72] Mother’s affidavit paragraph 26
[73] Mother’s affidavit paragraph 32
Both parents annexed to their affidavit emails between them which demonstrate the acrimony and verbal abuse they directed toward each other, and also a mutual lack of respect for the other after their separation. Both parents abused each other in written communications.
In cross examination the mother admitted that she was angry when she confronted the father upon discovering that he and Ms P were involved with each other.[74] The co-parenting relationship deteriorated markedly around this time. The mother was particularly upset that Ms P had a child in the same class as X.
[74] Exhibit E paragraph 56
The mother wrote a message to the father sent on 10 February 2018 the subject line of which reads “YOUR WHORE KID. You have two choices.”[75] She demanded that unless X changed class the parents would be pulling him out of M School and sending him to Suburb AC School. The mother appears to accept that the father’s consent was required, which infers that she considered that the parents had joint parental responsibility for the children at that time. Her messages are evidence that she used a verbally abusive, coercive and controlling tone in her written interactions with the father during the period February to March 2018. The messages are emotionally charged, abusive and offensive.
[75] Father’s affidavit Annexure C
The father reported to police on 10 February 2018 that the mother had punched him numerous times to the back when he was walking away from her, with the children, during a heated verbal altercation[76]. He reported that the mother had kicked a wall and thrown paint. The mother denied the allegations when spoken to by police on 16 February 2018. Police were satisfied that there was insufficient evidence to prove a prima facie case against her and no action was taken[77].
[76] Exhibit F page 010-011
[77] Mother’s affidavit paragraph 269-272
In cross examination the mother agreed that 10 February 2018 was the day that she found out about the father’s relationship with Ms P and that she was angry and did yell at the father while the children were present at the home. She agreed that both boys heard the parents’ altercation and both were crying and screaming. The father took the children and went to the home of his sister.
On 29 February 2018 the mother attended at the father’s sister’s home, where he was staying with the children. The father says after he asked her why she told X that she did not want him to play football the mother told him that ‘We had a family meeting, and we decided to. You’re not part of this family, and the boys know it” and that when he asked when the training was she said to him “Find out yourself, sister fucker.”[78]
[78] Father’s affidavit paragraph 49
In her affidavit the mother states:
“I deny [Mr Janzen’s] allegation that on 29 February 2018 I told him he was ‘not part of the family and the boys know it” or that I called him a sister fucker.”[79]
[79] Mother’s affidavit paragraph 273
Under cross examination the mother agreed that she did say to the father that he was not a part of this family and the boys know it. Her denial in her affidavit is false. The mother denied that she called the father a sister fucker, but the court rejects that denial as false given the evidence that on 7 February 2018 the mother wrote to the father and included statements such as “SISTER FUCKER GO AND GET OFF WITH YOUR SISTER YOU FUCKIN LOSER” and “Failed SISTERFUCKER” and “Again SISTERFUCKER…I will not be doing the days you say…nothing will ever go your way again.”[80]
[80] Father’s affidavit Annexure C
The mother vented her anger and distress to Ms P directly, in front of Y, on 16 March 2018 at X’s school. She admitted that she twice called Ms P an “old whore[81] and she says that Y was confused and upset by what was happening. It was clearly a disturbing incident for Y to witness.
[81] Ibid paragraph
Later on 16 March at 10:28:55pm the mother sent the father an email in which she told him that she had shown the school principal a screen grab of the court case in 2017 where he had been found guilty of intimidation while on duty as a public servant. In the same message the mother refers to Ms P and the father having no idea about family unity. There was no need for the mother to show such material to the school principal. Under cross examination by Counsel for the father, the mother said that she had not actually show the screen grab to the school principal, she just told the father she had done so. The mother agreed that she lied to the father when she told him that she had shown the document to the school principal and admitted that she was trying to be as hurtful toward the father as she could.
The father alleges that on 3 April 2018[82] he attended at the former matrimonial home to collect the children, and the mother pushed him backwards off a one metre high balcony, which she denies doing, and that he jarred his back. The mother agreed in cross examination that she took the father’s mobile phone and that she refused to give it back to him when he asked. On any version of events the children were present and exposed to an altercation between the parents which would have been frightening for the children.
[82] Exhibit F pages007-008
The mother was clear to say in her oral evidence that the father has never choked her, and that he did not choke her during an incident which she alleges occurred in the colder months of 2016.
I find that both parents engaged in family violence and that both are responsible for the negative impacts of their behaviours on the children
Since April 2018 there is no evidence of family violence perpetrated by either of the parents toward the other. The parents have not come into contact with one another since then.
The court considers that the risk of harm to the children from being exposed to family violence is moderate. The risk can best be ameliorated by each parent taking responsibility for how they chose to behave in the presence of each child.
The mother proposes that changeovers occur in a public place, such as inside McDonalds Restaurant at Suburb E where there are cameras, and at the Region F Leisure Centre or at the children’s schools, so as to reduce the risk that the children will be exposed to conflict.
The risk can be ameliorated by changeovers always occurring at a public place such as McDonalds Restaurant where there are CCTV cameras and where other people, including children, are present. The parents clearly have the capacity to conduct themselves appropriately when they chose to do so, evidenced at least in part by the fact that they have both been able to hold down responsible fulltime jobs. There is no evidence that the children were displaying signs of emotional disturbance or otherwise not meeting normal developmental milestones while the parents were managing the care of the children together.
The father submits, and the court accepts, that the courses and therapies with which he has engaged over the course of the current proceedings have provided him with strategies which will assist in diminishing the risk that the children will be exposed to conflict between the parents in the future.
The parents must each take responsibility to ensure that their own words and actions do not create an atmosphere where their conflict will be revisited on the children. The children need a reparative environment free of parental conflict in order to grow into healthy happy young men, which undoubtedly both parents wish for the children.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter

There is no current family violence order between or affecting either of the parents. As discussed previously there was an interim order in place protecting the mother and the children from the father between 18 July 2018 and 19 March 2019, following which the father gave an Undertaking without admissions with which he complied.
There was a Final ADVO in place against the father’s sister Ms C for the protection of the mother and the children until 30 April 2019.[83]
[83] Exhibit G page 096
There is no evidence of any breach of the order by Ms C.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The court considers that orders which provide for the father to commence spending unsupervised time with the children are the orders which are least likely to lead to further proceedings and are preferable to an order providing for no time or for supervised time only, which orders are likely to lead to further proceedings. The notation proposed by the ICL confirms the likelihood of further proceedings if only supervised time is ordered.

PARENTAL RESPONSIBILITY

The court is comfortably satisfied that each parent has perpetrated family violence and that the presumption in s. 61DA (1) of the Act does not apply in this case.
Sadly for the children their parents currently have a poor co-parenting relationship. The parents have not spoken to each other since 2018.
The father said in his oral evidence that he would like to communicate with the mother. He says he fears the mother because “she flies off the handle.” The mother maintains that she is fearful of the father. The father appears genuine in his desire to be involved in making decisions about major long term issues for the children but his hope of communicating with the mother is aspirational on the current state of the evidence.
The family consultant in her oral evidence was of the opinion that equal shared parental responsibility is not appropriate in this case and she affirmed her opinion that equal time for a child with their parents is contra indicated where there is poor parental communication, because it is unlikely that there can be consistency for the children between the parental homes[84] in such circumstances. The court accepts the evidence of the family consultant.
The court intends to make an order that the mother have sole parental responsibility for the children. As the court will not make an order for the parents to have equal shared parental responsibility for the children, s. 65DAA of the Act is not triggered.

CONCLUSION

The court is satisfied that orders which provide for the children to shortly commence to spend time with the father unsupervised will not expose either child to an unacceptable risk of harm from abuse, neglect or family violence in the household of the father. The children will, from 14 August 2022, begin to spend short regular periods of unsupervised time with him, gradually building to longer but still relatively short block periods.
The court has found that the father is actively engaged, compliant with, and fully committed to the treatment for his mental health conditions and that the risk of him relapsing is low once twelve months has elapsed following his discharge from inpatient treatment on 13 August 2021. Until then, supervised time for the children with the father will continue.
The court is satisfied that the children will benefit from having a meaningful relationship with the father. The risk to a child’s short and long term wellbeing if deprived of having a meaningful relationship with one or both parents is significant, and in circumstances where the court finds that it is safe for the children to spend time with the father unsupervised it is not in their best interests to be further deprived of their right to have a meaningful relationship with him.
A gradual reintroduction of unsupervised time for the children with the father will give the children time to adjust to being with the father in an unsupervised environment and takes account of the children’s vulnerabilities and the routines that the mother has put in place to assist them, including their extra-curricular activities.
The court considers that the mother’s proposal that changeover occur at a public place (or at school) will alleviate the risk of exposure of the children to family violence, and the parents will not be required to come into contact with each other at all when changeover occurs at school. The parents are urged to reflect on the impact on the children of being exposed to their arguments or tension and to personally commit to ensuring that changeover is as comfortable for each child as possible in the circumstances. It is encouraging that both parents have completed the Parenting after Separation course and that they will have been presented with material which will assist them to communicate civilly with each other and avoid exposing the children to conflict and adult issues.
The gradual reintroduction of supervised time, and the limited amount of time that the children will spend with the father in block periods, will help ensure that the father is not placed under mental strain or stress while caring for the children and will mitigate the risk that his mental health may suffer, although it is equally possible on the evidence that spending time with the children will alleviate one of the triggers the father nominated as the source of his distress, namely not spending time with the children.
A restraint on the father consuming alcohol 12 hours prior to and during any period of time that the children are with him will assist to protect the children from being exposed to the father if he chooses to drink in the future. The father’s evidence is clear that he intends to abstain from alcohol altogether. The evidence points strongly to complete abstinence being one of the fundamental requirements for the father in managing his mental health conditions. There is no suggestion that the father has not been compliant with court orders or injunctions in the past.
The court will restrain the father from approaching the mother during school, sporting or extracurricular activities. It is beneficial for the children that both parents are able to observe them in such settings, but the children must be protected from exposure to parental conflict. There is ample evidence of the negative impact that exposure to parental conflict in the past has had on their psychological well-being and behaviour. The court considers that such risk is ameliorated by an injunction which will prevent the father from approaching the mother, unless with her consent and that it is appropriate for the welfare of the children that the father be so restrained.

The court considers that it is in the best interests of the children that the parents exchange contact details including their residential details. There is no evidence that either parent has engaged in threatening or abusive conduct towards the other since at least April 2018, or that the father has attended at the home of the mother and the children since then, or in breach of the interim ADVO or the Undertakings that he gave to the Local Court in March 2019. The parents each have a legitimate interest in knowing where the children are, including when they spend time in the household of the other parent. Where a parent keeps their residential address private that parent may be hesitant to allow the child to know their address, in case the child divulges it to the other parent. A child may be placed at risk if they do not know their own address, for example in a situation where they become separated from a parent. If the child is aware of their address and told to keep it a secret from their other parent then that places an onerous psychological burden on the child
The mother has flagged, in seeking to keep her address private from the father, that she does not want him to attend at her home, and there is no need for the father to do so. The court will restrain the father from approaching the mother’s residence and workplace. While there is no evidence that the father has approached the mother’s home or her workplace in the past four years, it is appropriate for the welfare of the children that the parents are kept apart from each other unless they each consent to being in each other’s company and that the mother feels safe in the knowledge that the father is restrained from attending at her home or workplace.
Ms C involved herself in the parental dispute and showed no regard for the children when she behaved aggressively toward the mother in front of them. The children are well aware of the conflict between the mother and Ms C and it may heighten the children’s anxiety if they are exposed to Ms C when spending time with the father. Over time the fractured relationships may be able to be restored, or at least managed, but on the current state of the evidence it is appropriate for the children’s welfare to restrain the father from bringing them into contact or communication with Ms C without the written consent of the mother.
For the reasons provided herein the orders that appear at the forefront of these reasons are the orders that are in the best interests of the children.

I certify that the preceding two hundred and ten (210) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty.

Associate:

Dated: 8 June 2022