Jarrad & Weatherston
[2021] FCCA 1116
•28 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Jarrad & Weatherston [2021] FCCA 1116
File number(s): NCC 2758 of 2019 Judgment of: JUDGE TERRY Date of judgment: 28 May 2021 Catchwords: FAMILY LAW – Parenting – Issue in dispute the time children aged 6 & 3 should spend with their father – where the father has perpetrated family violence – where concerns have been raised about the father’s alcohol consumption – where the mother proposes that the children spend time with the father for 6 hours on Saturday and Sunday on one weekend each month – where the father proposes that his current limited time with the children gradually increase until they are spending time with him from Friday to Monday each alternate weekend during school terms, for one evening after school each week and for half of the school holidays – where the Independent Children’s Lawyer broadly supported this proposal save for the mid-week time - where the children have a warm relationship with the father – where the court cannot be satisfied that the children would be at unacceptable risk of harm if they spent this time with the father - orders made as proposed by the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) ss 60CC Cases cited: Mazorski & Albright (2008) 37 FamLR 518 Number of paragraphs: 164 Date of last submission/s: 7 April 2021 Date of hearing: 6 & 7 April 2021 Place: Newcastle Counsel for the Applicant: Mr Rugendyke Solicitor for the Applicant: Dakin Law Counsel for the Respondent: Mr Guyder Solicitor for the Respondent: Emalene Gemmell Family Law Counsel for the Independent Children's Lawyer: Ms Carty Solicitor for the Independent Children's Lawyer: Legal Aid NSW Newcastle ORDERS
NCC 2758 of 2019 BETWEEN: MR JARRAD
Applicant
AND: MS WEATHERSTON
Respondent
ORDER MADE BY:
JUDGE TERRY
DATE OF ORDER:
28 MAY 2021
THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the children X born in 2015 and Y born in 2017 (“the children”).
2.Whenever an issue in relation to the long-term welfare of the children arises the mother shall, other than in a genuine emergency, contact the father in writing 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;
(d)Advise the father promptly of the decision she has taken.
3.The children shall live with the mother.
4.The children shall spend time with the father as follows:
(a)During the School Term:
(i)From the date of these Orders until 19 September 2021:
A.From 9.00am until 5.00pm each alternate Saturday and Sunday.
(ii)From 19 September 2021 to 19 March 2022:
A.From 9.00am on Saturday until 5.00pm on Sunday each alternate weekend.
(iii)From 19 March 2022:
A.From 9.00am on Saturday to before preschool/school on Monday each alternate weekend.
(b)From 2023 onwards the father’s time pursuant to Order 4(a) is suspended during school holiday periods and the father shall spend time with the children:
(i)for one week in each of the Term 1, 2 & 3 school holiday periods:
A.In odd-numbered years commencing at 9.00am on the first Saturday and concluding at 9.00am on the second Saturday.
B.In even-numbered years commencing at 9.00am on the second Saturday and concluding at 9.00am on the following Saturday.
(ii)During the Term 4 school holidays prior to the 2027 Term 4 school holidays:
A.Until Y turns 7 in 2024, unless otherwise agreed in writing, in a week about arrangement from 9.00am on the first Saturday to 9.00am on the next Saturday and each alternate week thereafter provided that they are returned to the mother by 9.00am on the third day before the commencement of Term 1.
B.From the Term 4 school holiday period commencing in 2024 and until Y turns 10, unless otherwise agreed in writing, for a 14 day period from 9.00am on the first Saturday of the holiday period until 9.00am on the Saturday 14 days later and for a further 7 day period commencing at 9.00am on the fifth Saturday of the holiday period and concluding at 9.00am on the following Saturday.
(iii)From the Term 4 school holiday period commencing in 2027:
A.Unless otherwise agreed in writing, in odd-numbered years for the first half of the holiday period from 9.00am on the first Saturday until 9.00am on the Saturday which is the midpoint of the holiday period.
B.Unless otherwise agreed in writing, in even-numbered years for the second half of the holiday period from 9.00am on the Saturday which is the midpoint of the holiday period until 9.00am on the last Saturday of the holiday period.
(c)If Father’s Day falls on a weekend when the children are not already spending time with the father, from 9.00am on Father’s Day until 5.00pm on Father’s Day.
(d)On the father’s birthday for a minimum of two hours if the birthday falls on a day that the children attend school and a minimum of four hours if the birthday falls on a day the children do not attend school.
(e)On each of the children’s birthdays in even numbered years from 9.00am on that day until 5.00pm on that day or if it is a school day from the conclusion of school until 5.00pm on that day.
(f)At Christmas:
(i)In odd numbered years from 5.00pm on Christmas Eve until 5.00pm on 28 December.
(g)During the Easter long weekend:
(i)During the Easter period when such does not form part of the school holidays from 3.30pm on Easter Thursday through to 9.00am on Easter Monday in even numbered years.
(h)At such additional or alternate times as may be agreed between the parties.
5.Notwithstanding any other order the father’s time with the children shall be suspended:
(a)from 9.00am on Mother’s Day until 5.00pm on Mother’s Day if Mother’s Day falls on a weekend when the children are to be spending time with the father.
(b)for a minimum of two hours if the children’s or the mother’s birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day on each of the children’s and the mothers’ birthday, when the children would be spending time with the father on those occasions pursuant to these orders.
(c)On the day of the maternal grandmother’s 70th birthday if the birthday falls on a weekend when the children are spending time with the father pursuant to these orders.
6.Unless otherwise agreed in writing changeover shall take place at McDonalds Restaurant at Town B.
7.The children shall have telephone/Facetime communication with the father between 6.00pm and 6:30pm each Wednesday with the mother to facilitate the children calling the father.
8.The father is restrained from consuming alcohol while the children are in his care or for twelve (12) hours prior.
9.Within 45 minutes prior to the children spending time with the father in accordance with Order 4, upon the request of the mother the father shall undertake a breath analysis test in the presence of the mother by using WhatsApp (or another agreed mobile app) and the father is to ensure that the breath analysis device is visible to the mother while calibrating the device and calculating breath analysis result.
10.The mother shall purchase a breathalyser device and the father shall use the device purchased by the mother for the purpose of Orders 11 & 12.
11.The mother may make a request in accordance with Order 9 on no more than six (6) occasions per calendar year unless on any occasion he records a positive reading in which case the mother is at liberty to make a further request on each occasion the children are to spend time with the father for the following three months.
12.In the event that the breath analysis test displays a recording higher than zero (0), or shows a faulty reading, or does not record a reading, the period of time pursuant to Order 4 shall be suspended.
13.Order 9 shall remain in force for a period of three years from the date of their orders or from the date of the last reading which is higher than zero (0).
14.The parties are restrained from using corporal punishment on the children.
15.Each parent keeps the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such a change.
16.These orders shall constitute sufficient authority for the school/s and or hospital or medical service providers to notify the father of any school events and medical emergencies and to provide the father with any records that he may request from time to time.
17.Each parent shall inform the other parent as soon as reasonably practicable in the event of the child while in their care being involved in an accident or medical emergency requiring attendance at hospital or being diagnosed with a serious illness.
18.Both parties are restrained from denigrating the other party or a member of the other party’s family in the presence or the hearing of the children or on social media and shall not allow a third party to do so in the presence or hearing of the children.
19.Neither the mother or the father shall discuss any Court proceedings and/or spend time with arrangements involving the other in the presence of the children nor permit any other person to do so except for the purpose of explaining the living/spend time with arrangements.
20.All communication between the parents shall be in relation to the children only and shall be via the “MyMob” mobile app (or any other mobile app agreed in writing) except in circumstances of emergency when the parents shall communicate by telephone.
21.Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
22.Pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
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 under the pseudonym Jarrad & Weatherston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TERRY
Introduction
The dispute in this matter is about the amount of time X aged 6 and Y aged 4 should spend with their father.
There is no dispute that they should live with their mother and that she should have sole parental responsibility for them.
The children are currently spending four hours per week with the father, and the father, and indeed the children, would like that to increase.
The mother is not willing to agree to any increase in time, indeed she proposes a reduction in both the amount and frequency of it. She says that the father perpetrated family violence during and after the relationship and that she remains concerned that he will “snap” if the children are in his care for more than a limited period and expose them to the same violence and dysregulated behaviour that she experienced.
She is also concerned that he may consume alcohol when the children are with him, which she says is associated with him losing control and behaving violently.
The father does not deny that he perpetrated family violence, albeit not quite to the extent the mother alleges, but he denies that he is likely to lose his temper with the children and behave in a violent and dysregulated way toward them or in their presence. He has voluntarily engaged in and completed a men’s behaviour change program and says that he has learned about his “triggers” and about controlling his reactions and that neither the mother or the children have anything to fear from him in the future.
The father does not accept that he ever had the issue with alcohol but says that he is committed to not drinking at all when the children are with him and that the court should accept that he is able to control his drinking.
The father proposes a stepped increase in his time with the children, beginning with time from 9.00am until 5.00pm each alternate Saturday and Sunday, progressing to 9.00am on Saturday until 5.00pm on Sunday each alternate week when Y turns 4, then after 6 months progressing to 3.00pm on Friday until 5.00pm on Sunday and then from the commencement of the school year in 2023 being from 3.00pm or after school on Friday until 9.00am or the commencement of school on Monday.
He proposes that from the commencement of school in 2023 he also spend time with the children each Wednesday from after school until 6.00pm and for half of the school holidays, and he proposes orders about special days.
The father agrees to a restraint on him consuming alcohol while the children are with him or for 12 hours prior to them coming into his care and he is willing to do a breathalyser test at the start of his time on six random occasions each year although he says that this should continue only for three years from either the date of the orders or the date of the reading or his last zero alcohol reading.
The mother acknowledges that the children love their father and want to spend more time with him but she struggles to accept that he has changed or has learnt anything from the men’s behaviour change program. She remains concerned that he may drink when the children are with him and she distrusts the breathalyser readings he has been providing to her.
The mother proposes that the children spend time with the father from 9.00am until 3.00pm on Saturday and Sunday on the first weekend of each month. She also proposes some time on special days and telephone or face time communication once each week.
The mother proposes that the father undergo a breath analysis both prior to and after any time occurring and prior to and after any telephone communication occurring and that unless the reading is zero at the beginning the time or communication not occur.
The Independent Children’s Lawyer supported the father’s proposal that the children spend time with him on alternate weekends increasing incrementally in duration and that school holiday time commence in 2023. She did not support midweek time, and proposed that the time on weekends always commence on Saturday morning rather than on Friday. She proposed an order requiring the father to do a breathalyser test at the commencement of time on six random occasions each year and in the minute of order handed to the court did not propose a sunset clause.
The evidence
The witnesses in the case were the mother, the father and Ms C, a Regulation 7 family consultant who prepared a family report. All of the witnesses were cross-examined.
A tender bundle was prepared and selected documents from the bundle were relied on by the parties.
Background
The mother and father commenced a relationship in 2014 when they were 46 and 36 respectively and they commenced living together in 2014 when the mother moved to father’s property at Town D, just outside Town C.
The parties have two children, X born in 2015 and Y born in 2017. Neither have any other children.
The father is a tradesman and he owns a workshop in Town C which he operated throughout the relationship. The mother commenced work in the workshop in 2015 and that continued until the parties separated after an incident on 14 July 2017.
The July 2017 incident involved family violence perpetrated by the father and he was charged with assault and an ADVO was made for the mother’s protection. Following the incident the mother took X and returned to live with the maternal grandmother on a property they own at Town E which is also just outside Town C. Y was born two months after separation.
After separation the mother facilitated X, and in due course Y, spending time with the father. Some of that time was spent by the father just with the boys but the parties both told the family consultant that they attempted to reconcile their relationship and the mother was sometimes at the father’s home with the boys, and the parties went to Town F for a few days at Christmas 2018 to spend time with members of the father’s family.
The mother alleged that there were some sporadic incidents of family violence after separation. I will make findings about those allegations later on but there was no dispute that on 28 January 2019 an incident occurred in the children’s presence when the mother was trying to leave his home. The father was charged with common assault and all hopes of a reconciliation ended.
On 12 April 2019 the father was convicted of assault and an Apprehended Domestic Violence was made for two years for the protection of the mother, the maternal grandmother and the children.
In May 2019 the parties agreed on a parenting plan which provided for the children to live with the mother and spend time with the father each week supervised by G Contact Centre in Town C. The agreement also provided for the father to have phone or FaceTime communication with the children. However they could not agree on anything more and in September 2019 the father filed an application for parenting orders.
On 28 October 2019 an order was made for the father to spend supervised time with the children at G Contact Centre from 11.00am to 1.00pm each Wednesday.
On 28 February 2020 an order was made for the children to spend unsupervised time with the father from 9.00am to 1.00pm each Wednesday with a supervised changeover at G Contact Centre.
A family report was ordered and it was released to the parties in July 2020. The family consultant made the following recommendations:
If the Court finds the father remains a serious threat to the safety and wellbeing of the children then the mother’s proposal for the children to spend day time only with the father is most consistent with the children’s best interests.
If the Court finds the father has enacted significant change and that the children will be safe in his care, then it would appear to be appropriate for them to spend time with the father each alternate weekend and one afternoon per week. This is generally consistent with the father’s current proposal.[1]
[1] Family Report paragraphs 120, 121.
The parties were unable to reach agreement after the report was released and the matter was listed for trial.
The children have continued to spend unsupervised time with the father for four hours each week, although there has been a change in the organisation supervising the changeovers and the time now takes place on a Saturday because X commenced school earlier this year.
The allegations about family violence
I am going to consider the allegations about family violence before making finds about the best interests considerations in s. 60 CC (2) & (3) of the Family Law Act because the findings about family violence are relevant to a number of those considerations.
There was no dispute that the father had perpetrated some family violence during the relationship although there was a dispute about some of the mother’s allegations.
In her trial affidavit the mother alleged that when X was about 8 to 10 weeks old she and the father were driving in the paddocks and had an argument because she wanted to go home. She said that X was sitting between them and the father tipped a can of beer over her head. She said that when she got out of the utility to open a gate the father threw a can of beer at her and revved the utility and made it jump towards her as if threatening to run her over. She said that she was half angry and half scared. She agreed that she went to shut the gate before the father had completely driven through. She said that the father later apologised for his behaviour.
I also cannot find that the father deliberately drove the utility at the mother. It could be that he was simply hastening to get through the gate. However the mother’s allegation about the father tipping beer on her is however credible given the evidence about other incidents between the parties.
The first incident that was not in dispute happened on 14 July 2017 at Town D and led to the parties’ separation.
X was 2 ½ at that time and the mother was 7 months pregnant with Y. The parties had an argument and the father took and threw the mother’s phone after she said that she was going to call the maternal grandmother. The mother said that the father dragged her by her clothing in an attempt to prevent her leaving causing bruising.
Greater detail about this incident is contained in the family report and the family consultant derived this information from the statement of facts attached to the ADVO application which was made at the time.[2]
[2] Family Report paragraph 13.
The police were called and the father was arrested and charged with assault, destroy and damage property and intimidation and he pleaded guilty to the charges.
The father made some admissions about this incident, including that he threw the mother’s phone and that he tried to prevent her from leaving, but he denied dragging her by her clothing causing bruising. However the mother repeated this claim to the hospital when she went there for a check-up the following day, making it unlikely that it is a recent invention and I accept her evidence that she was dragged by her clothing resulting in bruising.
In her trial affidavit the mother alleged that the father behaved in a controlling way after separation by giving her a phone, car and fuel card in lieu of paying child support and then taking these items from her when he was angry or telling her when and where she could use them. There is insufficient evidence to allow me to make a finding that this occurred and the situation following separation was complex because the parties considered the possibility of reconciling and while X and later Y spent some time with the father on their own the parties also spent time together as a family.
At Christmas 2017 the parties went to Town F to spend time with the father’s family and the mother said that it was a great Christmas. However she said that when they arrived back at the father’s property on 28 December 2017 they had an argument. The mother then went back to the Town E property to water the plants and she said that when she returned the father was extremely drunk. She said that they argued again and she told the father she was not staying and put the children in the car. She said that as she tried to get into the car the father tried to pull her out and that her top dug into her arm and caused bruising. She said that the children were sitting in the car screaming.
The father denied that this incident occurred. He questioned why the mother would not have called the police if it had. He told the family consultant that the parties had a disagreement but that he did not recall trying to grab her out of the car. I do not accept however that the mother invented this incident. I accept her evidence that it occurred.
The mother said that on 24 June 2018 she went to the father’s home to collect X who had slept there overnight. She said that she and the father argued about whether the mother had tried to call the father before arriving at the house. She said that the father became very angry and threw his mobile phone at her which hit her on the leg and called her a “cunt”. She also said that he threatened to harm himself.
The father made some admissions to the family consultant about this incident who said as follows:
In his interview on 3 July 2020 the father conceded a dispute between the parents on 24 June 2018. He said; “I don’t remember why I became angry.” When asked whether he threw the phone at the mother he said; “I might have thrown it, I would not have thrown it at her.” When asked if he recalled calling the mother a “cunt” he said; “I probably said something to that effect. What I would have said was; ‘stop being one’, not ‘you are one.’” When asked by the writer if he made the comments relating to self-harm, he said; “I wasn’t going to do it, I said; ‘are you trying to work me up to something?’ I said, ‘what are you trying to do, push me to a point’. Which means, are you just trying to pressure me here, I wasn’t saying I was going to do it. I’m asking her.”[3]
[3] Family Report paragraph 69.
The mother said that on 11 October 2018 she and the father had an argument in the bedroom when she was collecting X and the father rushed toward her with his arm pulled back and his fist clenched as if he was going to punch her. She said that she backed away saying “Don’t hit me” and the father started to throw a punch and then stopped.
The father said that he had no recollection of this incident and had not threatened to punch the mother at any time. However I accept the mother’s evidence that an incident occurred in which she was fearful that the father was going to hit her.
The mother said that on 20 December 2018 the parties had an argument when she arrived at the house to collect the children and the father came at her with his fists clenched and kept calling her a cunt. She alleged that he also threatened the maternal grandmother who he believed was causing him grief and finally said:
You and that cunt of a thing you live with are both going to die one way or another
She said that the father grabbed her handbag and threw it across the lawn and that X became involved and began telling her he was so sorry and trying to pick up the items from her handbag.
The father was asked about this incident by the family consultant who said as follows:
In his interview on 3 July 2020 the father said; “One of the things I have said before is ‘karma is going to get you one day the way youse are carrying on’. I believe in Karma. I have said that. But I am not going to gaol for killing someone. I am fighting to spend time with my kids. I don’t remember throwing a handbag.”[4]
[4] Family Report paragraph 71.
However when interviewed by the family consultant X remembered this incident and the family consultant said as follows:
X said the parents lived in two different houses because; “daddy was fighting with mummy” [Q. How do you know daddy was fighting with mummy?] because I was there. Daddy was throwing her bag around and having a fight. Mummy called the police.”[5]
[5] Family Report paragraph 101.
The father also said in cross-examination:
I remember one incident with a handbag.
On 28 January 2019 the mother dropped the children to the farm to spend time with the father. She left and then returned and the parties had an argument because the father had been hoping that they could go on a joint holiday and the mother said that she did not want to. The mother said that the father also called the maternal grandmother a cunt.
The mother put the children in the car to leave and said that as she did the father threw a beer can which hit her car. She phoned the police and the father was charged with assault on the basis that the can had been thrown at the mother. He was convicted of one count of assault and given a conditional release order for 9 months.
In his trial affidavit the father admitted throwing some beer cans but said that he did not intend to throw them at the mother or the car, he threw the can because he was upset about the fact that he had dinner cooking in the oven and the mother was leaving. He told the family consultant however that:
I lost my shit, I did. I never denied it.[6]
[6] Family Report paragraph 74.
The mother’s evidence about the incident on 28 January 2019 is credible and I prefer her evidence to the father’s as to what happened on that occasion.
The parties did not spend time together again after this incident.
On 18 December 2019 the mother complained to the police after the father made numerous phone calls to her number. The father was arrested and charged with breaching the ADVO.
When the charge was later dealt with no conviction was recorded and he was placed on a 6 month bond and I have some sympathy for the father in regard to this charge. The parties had been facilitating the father having telephone communication with the children because of a mutual mistaken belief that the terms of a parenting plan continued in force. He said that he rang several times to try and re-establish contact after his phone call with X dropped out. His evidence that he was simply ringing back to try to speak to the children is credible and it is clear from the COPS record that the police only charged him because there was no family law court order in place providing for him to have telephone communication with them.
Several things arise from the findings about family violence.
First, there is no doubt that the father perpetrated family violence and that while he has made a number of admissions about it his admissions are not complete.
Second, I am satisfied that the mother is genuinely fearful that the father might react violently if the children challenge or upset him and that this is deeply concerning for her because they are so young and are unable to protect themselves.
Third, the children have been exposed to some incidents of family violence and X remembers the handbag incident.
The children’s best interests
Any orders I make about the children must be determined by treating their best interests as the paramount consideration and s. 60CC (2) & (3) of the Family Law Act contain the matters to which I must have regard in order to determine their best interests.
S. 60CC (2) contains the primary considerations and s. 60CC (3) the additional considerations and as I often do I am going to start with the additional considerations in s. 60CC (3).
The first of these is the children’s views and the weight to be given to their views.
There is little independent information about the children’s views. The family report writer interviewed only X, who was then five, and he did not sustain a lengthy interview. She said as follows:
X said when he sees his Dad on Wednesday’s “it’s fine and fun. Mum thinks so too.” He said he would like to spend longer time with his dad. When asked how much longer he would like, he said; “five minutes” When asked why he said; “because it’s easy”. X was asked whether he would like to spend overnight time with his dad and he said he would. At that point, the interview was interrupted as the writer had to move the family between waiting areas to ensure they did not come into contact with each other. The mother and the children spent time in the childcare room while it was occurring. On return of the writer X said he did not wish to be further interviewed and thus no further information was able to be ascertained from him. [7]
[7] Family Report paragraph 103
The father said that the children constantly asked to spend more time with him and asked when they could have sleepovers. They enjoy their time with their father and I accept that they do say those things. They are however very young and I will have to make an independent assessment about whether increasing their time with him is in their best interests.
I must consider the nature of the children’s relationship with each of their parents and any other relevant person including a grandparent of the children.
The children have a warm, close and loving relationship with the mother who has always been their primary carer. This was not in dispute and it was observed by the family consultant at the report interviews. She also observed the children to happily engage with the maternal grandmother.
The children were observed to have a close and warm relationship with the father at the family report interviews. The family consultant said as follows:
The children separated from the mother without issue to be observed with the father. When the father entered the room a joyful reunion was observed with both boys shouting out in excitement and seeking a hug from their father. The boys continued to be settled, however their energy levels lifted somewhat and it was evident they were happy to be spending time with their father. Incidental affection between the father and the boys was observed as well as overt affection such as sitting on his lap and/or hugging him. The boys responded to any direction given by the father without issue. The father played with the children and interacted with them in a child focussed manner. There was lots of conversation about the farm and the father’s workshop with the boys very interested in talking about these topics. At the conclusion of the session X separated without issue, however Y was distressed, hugging the father and crying. The father reassured him that he would have fun with his mother and he would talk to him tonight and see him on Wednesday. Y was still crying when he returned to his mother, saying he wanted to go to the farm with his father, but he quickly settled when reassured and soothed by his mother. [8]
[8] Family Report paragraph 107
The notes made by G Contact Centre when the father was spending supervised time with the children are entirely positive about the children’s relationship him. They were always observed to be excited to see him and there were many cuddles and hugs.
The notes from H Contact Centre who have recently done supervised changeovers, also make many positive comments about the children’s relationship with the father. They have run to hug the father (6/3/2021) and Y has refused to get out of the father’s car at the end of visit (6/3/2021).
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the children, to spend time with the children and to communicate with the children.
The father has always been keen to spend time with the children. He said that he was 48 when he found out that the mother was pregnant with X. He said he did not think he would ever have children and was over the moon when he found out the mother was pregnant. His behaviour to the children during the supervised visits and the fact that he was proactive in arranging to attend a men’s behaviour change course in early 2019 speak volumes about his desire to be part of his children’s lives.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of their separation from either of their parents or any other child or person including any grandparent or other relative of the children with whom they have been living.
The father proposed a significant change, in that the children would commence spending more extensive time with him, including overnight and holiday time. I can only consider the benefits and detriments of that proposed change after making findings about all of the remaining s. 60CC (3) matters and the s. 60CC (2) matters.
I must consider the practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
The parties live 20 to 30 minutes apart and there is no practical difficulty or expense in the children spending regular time with the father.
I must consider the capacity of each parent to provide for the needs of the children including their intellectual and emotional needs.
The father
The father’s home and business
The father lives at Town D just outside Town C. He has a small farm and his home is suitable for the children. He said, and I accept, that the boys enjoyed spending time with him at the farm where they rode motorbikes and helped with the cattle. He said that the boys had some cattle of their own.
The father continues to own his business in Town C. He said that he had up to 14 employees and that he could be flexible with his hours and could pick the children up at the times he proposed and drop them to school.
The father put forward as an explanation for some of his behaviour toward the mother that he was experiencing stress in connection with the business, and he missed one of the twelve sessions of the men’s behaviour change program because he had to attend to an issue that came up at work. This was behind the Independent Children’s Lawyer’s proposal that his time with the children commence on Saturday morning rather than Friday afternoon. The father protested that this was unnecessary and I will return to this issue later in the judgment.
The mother expressed some concern in her affidavit about risks to the children of being at the workshop. Given all of the evidence about the father’s protective behaviour toward the children I do not consider that he would place them at risk of harm if they went to the workshop with him, and it was not suggested to him in cross-examination that he might park them there while he engrossed himself in his work.
The father was observed to be caring and child-focussed on every supervised visit he had with the children. X was heard to ask asked why he couldn’t go to the father’s work and the farm and the father was appropriate in how he responded to this. He was observed to be protective of the children and responsive when Y hurt himself. He was observed to set appropriate boundaries for the children around things such as crossing the street.
The father’s alcohol use
The mother said that the father consumed alcohol excessively during the relationship and that this was associated with him losing control, perpetrating family violence and sometimes being impatient with the children.
The mother did not provide any evidence in her affidavit about the father’s pattern of drinking. However she told the family report writer that he drank every night and that he would drink huge quantities (although this seemed to be only on occasions) and would always drink six or more alcoholic beverages.
The father said as follows to the family consultant:
The father denies any history of excessive and/or problematic alcohol use. He concedes the mother has always considered he consumed too much alcohol. In his interview on 3 July 2020 he said; “I have a beer right, Ms Weatherston doesn’t like alcohol at all. I have always had a beer after work with the boys and whatever. I could come home, sometimes I have had a few more beers than normal. She has tried to make me out to be an alcoholic. I don’t believe I am. I don’t drink before five of an afternoon and I don’t drink after tea, after I have eaten. Some days I might have had more than three or four beers, but I am not doing anything different now than what I used to really, and basically I have been having the CDT test and from what the doctor tells me that is alright, I have to blow in the breathalyzer before and after time with the boys and I jumping through hoops.” He also said; “I don’t drink seven days, five or six maybe. Maybe five or six days. On those days I drink Four X gold so that is mid strength. Somewhere between three and five maybe.” [9]
[9] Family Report paragraph 91.
The evidence does not support a finding that the father is an alcoholic. He did a LFT on 20 June 2019 and CDT Tests on 19 July 2019, 20 March 2020 and 21 October 2020 and these did not have problematic results. He said that an LFT test was done annually as part of monitoring his diabetes and no tests had ever showed a result suggestive of problems with alcohol consumption. There is no evidence of the father having any run-ins with the police as a result of alcohol consumption.
There is an entry in hospital notes on 19 January 2017 where the father is recorded as stating that he had been drinking more alcohol than usual, that he drank every day and had “one bottle 750mls 4x today.”[10] This is not sufficient for me to make a finding that the father was consuming alcohol problematically at that time.
[10] Tender Bundle page 14.
However there is no getting around the fact that he had been consuming alcohol on several of the occasions when family violence occurred and one incident involved him throwing beer cans. Not only is it understandable the mother would perceive a link between the father’s violence and impatience and his alcohol consumption and would be keen to ensure that he did not drink to excess while the children were with him, it is open to question whether there may not be a link which the father refuses to acknowledge.
To his credit the father said that since the matter had been in court he had not consumed alcohol when the children were with him and that he was committed to not doing so during any time they spent with him in the future. He said that he had always done the required breathalyser test at the commencement and end of his time with the children and had never failed a test.
The father was cross-examined about whether he could realistically commit to this if the children spent longer periods of time with him and was adamant that he could.
During cross-examination the mother said that she was suspicious about the breathalyser results. She said that the father held the breathalyser down when he blowing into it, and that he had told her during the relationship that there were ways to avoid a bad result. However there is nothing else to raise suspicion. Possible intoxication or even prior consumption of alcohol has never been mentioned in any of the notes by the supervisor of the father’s time or the supervisor of the changeovers.
The father’s alcohol consumption is a potential parenting capacity issue and a potential risk of harm issue, but as long as the father does not consume alcohol while the children are with him it is not an issue. I cannot find on the state of the evidence that the father will be able to refrain from drinking when the children are with him, and an order for random breathalyser tests at the commencement of time provides an additional safeguard. However I also accept that it is going to be a long time before the mother ceases to be concerned about whether the father is drinking when the children are with him if longer periods of time are ordered.
The father’s temper
The mother said that there were occasions during the relationship when the father became impatient and angry about things X had done. She said that he clenched his jaw and then his fist when X started crying when they were out in the utility looking for stock and that X started getting upset.
The mother did not suggest that X had complained about the father’s temper or impatience during the time he spent with the father between July 2018 and January 2019.
Only time will tell if this continues to be the case if the children spend longer periods with the father but there is nothing in the supervised contact notes or the notes about the supervised changeovers to suggest that the father has been impatient or short tempered with the children to date.
Mental health
The father is taking a low dose of an anti-anxiety medication. The mother expressed concern about his mental health but there is no evidence that his mental health is concerning as a discrete issue, and I place weight on the opinion of the family consultant who said as follows:
At this assessment the father presented as calm and cooperative with a well ordered narrative. There was no obvious evidence his functioning and/or parenting was likely to be significantly impacted by mental health concerns.[11]
[11] Family Report paragraph 98.
The mother
The mother lives at Town E, about 27 kilometres from Town C, in a home she owns with her mother and her mother also lives in the home. She is employed as an administrative assistant by Employer J, Town C and she works during school hours.
The mother has no drug, alcohol or mental health issues and she is a competent and caring parent. The children have attended pre-school and X is now at school. The mother has organised for the children to learn to ride and to learn to swim and X has played sports. X also competes in hobbies.
The father spoke well of the mother to the family consultant who said as follows:
The father clearly stated the mother provided well for the needs of the children, describing her as a “good mum”, “I am sure she puts the kids first” and “Ms Weatherston does a good job with the boys.” The father stated he had no concerns for the children’s development, saying; “No concerns. I am really proud of them and really happy with the way they are going.” He described the children as happy, friendly and polite.[12]
[12] Family Report paragraph 46.
The mother’s counsel submitted that there was clear evidence that the mother felt uncomfortable and anxious about the prospect of the children spending lengthier time and overnight time with the father, arising both from her fears about his alcohol consumption and the family violence. I accept that, but there was no evidence and nor was it submitted that the mother’s parenting capacity would be impacted on if the court made an order for time as proposed by the father or the Independent Children’s Lawyer.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
The children are fit and healthy children who have no developmental or behavioural issues. Their age is the only relevant matter and the family consultant said during oral evidence that the orders the father was proposing, which are similar to the orders the Independent Children’s Lawyer proposed, were appropriate from a developmental perspective.
I must consider any family violence involving the children or a member of the children’s family.
I have made findings about the family violence allegations. I have referred to the implications of those findings in considering the capacity of each parent to provide for the needs of the children and will refer to them again when making an assessment of whether the father poses an unacceptable risk of harm to the children.
I must consider if a family violence order which applies, or has applied, to the children or a member of the children’s family--any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
An ADVO was made for the protection of the mother, the children and the maternal grandmother following the incident on 28 January 2019 and on 11 April 2019 a final ADVO was made which protected the mother, the children and the maternal grandmother for two years.
The ADVO restrained the father from assaulting, threatening, stalking, harassing or intimidating them or from destroying or damaging property. He was also restrained from approaching or being in the company of the mother or the children for at least 12 hours after drinking or taking illicit drugs, approaching them or being in their company except in certain circumstances (which included an order of the court about spending time with the children) or approaching their home or workplace.
I cannot draw any inferences from the fact that these orders were made.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of their parents.
The father voluntarily completed a men’s behaviour change program in Town K which required him to do nearly eight hours return travel on each occasion he attended.
I will need to consider as a separate issue what the father has learned from this course but his willingness to do it without any court order or prompting from the court is evidence of a strong commitment to remaining a part of his children’s lives and speaks well of his attitude to the children and the responsibilities of parenthood.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
As long as the father does not perpetrate any further family violence, lose his temper with the children or breach the restraint on the consumption of alcohol, the orders proposed by the father and the Independent Children’s Lawyer are the orders least likely to lead to further proceedings. The children will continue to live with the mother but will also be able to experience all that their father has to offer in terms of the farm, exposure to his business and trade skills and some enjoyable times motor bike riding, horse riding and going on holiday.
The orders proposed by the mother are the orders most likely to lead to further proceedings. The children do not have the same memories as the mother of the father’s behaviour and unless something goes wrong in their time with him they are going to be increasingly puzzled about why they are only able to spend such restricted time with him and this could lead to further proceedings if the children become resentful about it. The father might also attempt to have the orders changed a few years down the track if nothing goes wrong during his limited time with the children and they express a wish to spend more time with him.
I must consider any other fact or circumstance which the court thinks is relevant.
There was a dispute about the changeover location. The father proposed that future changeovers take place at Town C McDonalds. The mother proposed that they take place at Town L Store.
The father said that he did not favour Town L Store because it was on the main road and was a refuelling station for trucks and motorcycles and a water refill station for the Rural Fire Service and there could be some safety issues for the children entering and exiting vehicles. He favoured changeovers at school or day care and when this could not occur at Town C McDonalds.
The mother said that Town C McDonalds was a very busy location with lots of cars coming and going. She is also keen to avoid any pressure to purchase the children food at McDonalds.
The Independent Children’s Lawyer proposed that changeovers which did not take place at school take place at McDonalds. The mother’s counsel did not make any submissions about this issue in closing submissions and as it is six of one and half a dozen of the other I will adopt the changeover location proposed by the Independent Children’s Lawyer.
The primary considerations
The first of the primary consideration is in s. 60 CC (2) (a) and is the benefit to the children of having a meaningful relationship with both of their parents.
The mother is a competent and caring parent who is providing well for the children. The children will clearly benefit from having a meaningful relationship with her and there is nothing to suggest that her relationship with the children is likely to be undermined if they spend more extensive time with the father.
The father did not run an unduly critical case about the mother. He did make some complaints about her willingness to ensure that the children spent time with and communicated with him. He mentioned that the television was often on quite loudly when he rang the boys, that it was really difficult to negotiate make up time with her when some time with the children was missed during the COVID year, that she would not agree to him attending X pre-school graduation even though X wished him to be there and that she would not allow him to take the children to City M for the funeral of his Aunty Ms N. However there was no evidence that he denigrated the mother to the children or was likely to do anything to try and undermine their relationship with her if they spent more extensive time with him.
The father is a tradesman who runs his own business. He has a small farm and the children enjoy activities on the farm and the father has a network of family and friends in the Town C area. The children will also benefit from having a meaningful relationship with him and I do not accept that the mother is likely to try and impede that happening absent concerns for the children’s safety.
The father did not suggest that the mother denigrated him to the children and the family report writer said as follows:
The mother easily identified benefits for the children in spending time with their father. She said for short periods of time the father can be engaged and manage his emotional state to provide appropriate parenting for the children. She described the father as making the whole time with the children fun. She believes the father has many skills which he is able to pass on to the children.[13]
[13] Family Report paragraph 32.
The father told the family consultant that he was concerned that the maternal grandmother may make negative comments about him to the children. The maternal grandmother and the father are antagonistic to each other[14] and it is possible that negative comments about the father might fall from the maternal grandmother’s lips which the children, being children, may repeat to the father but there was nothing to suggest that the children’s relationship with the father was likely to be undermined by anything said by the maternal grandmother.
[14] Tender Bundle page 105.
The second primary consideration is in s. 60 CC (2) (b) and is the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse neglect or family violence. It trumps s. 60CC (2) (a) and it is the central issue in this case.
It is unarguable that it would be detrimental for the children to be exposed to or subjected to family violence by the father. It would have an immediate adverse psychological impact on them and could lead to them feeling anxious, unsafe and insecure. The handbag incident upset X and stuck in his mind. It could also lead to them being physically harmed, and exposure to family violence has a number of long term negative impacts on children including them possibly becoming perpetrators of family violence themselves.
The family consultant said as follows in her report:
The Court will also need to determine whether the father has enacted genuine change in the manner in which he interacts with others or whether he remains a serious threat to the safety and wellbeing of the children. On the former it would appear to be appropriate for the children to spend extended time with him. If the latter is the case it is vitally important that the children’s physical and emotional wellbeing is safeguarded.[15]
[15] Family Report paragraph 117.
The father said that he had enacted genuine change and was not a threat to the safety and wellbeing of the children. He said that he had made an effort in the last two years to deal with the stressors in his life. He had also completed a Building Connections program and a 6 week Anger Management course with O Service in Town C.
Most importantly, after he was charged in January 2019 he accepted a card given to him by a police officer and self-referred to Engage2Change, a men’s behaviour change program which ran in Town K. The program consists of 12 three hour sessions. The father attended 11 of the sessions between 27 February 2019 and 30 May 2019. He missed one because of a work issue. His attendance involved a return drive of nearly eight hours on each occasion.
The family consultant asked the father about what he had learned from the courses he had done and said as follows:
In his interview on 3 July 2020 the father said at the time he was in a relationship with the mother and he was “disagreeing and verbally arguing with her '' he thought it was normal behaviour because of his own experience of being parented as a child. He said; “I've gone and done an anger management and domestic violence course. I found it wonderful, I see things I should not have been doing, I was out of line. People are going to have disagreement over stuff, it is accepting that you are not always right. One of the key things I learnt is the way I see stuff, the way you see stuff and the way it probably is. We may look at things and see things differently. I tried to put myself in Ms Weatherston’s shoes a lot of times through that. The other thing I have learned is a lot of times, I probably instead of trying to defend myself I should have shut my mouth and not worried about it I think. There were a few things I learned. Even towards my business and my staff it helped me a lot as well.”
When asked if he would change anything in retrospect, the father said; “Probably not have gone off, but, yeah, both those times they were definitely my fault. I got cranky and these days since doing that course I think I control my anger better. I have learnt to realise when I am getting a bit tense. I take a few deep breaths, it depends on the situation, sometimes I just walk away for a bit and go and have a drink of water.”
When asked about the impact of his behaviour on the mother and the children, the father said; “It was probably upsetting to them. Ms Weatherston was probably scared and I realise that. I am not sticking up for myself, I am not proud of it and I am not making any excuses, but I'll be honest with you, in the whole scheme of that, before she drove here that day (28 January 2018) she had intentions of something happening.”[16]
[16] Family Report paragraphs 79 to 81.
The father explained in cross-examination that during the course they explored the causes of behaviour and that he could see that there were a lot of things he was seeing differently to the mother. He said that the course was
…more about anger management and what starts to trigger me so I can realise that and back off.
The father said that what triggered him was if he was being told he was doing something he wasn’t doing. He said that he had learned strategies to deal with his reactions.
All this is positive, but the family consultant had some reservations about the extent of change in the father and about his insight. She said as follows:
Whilst the father accepted he has a proven history of family violence, throughout the interview the father tended to attribute the disruptions and changes in his time with the children to the mother, as opposed to his own behaviour. He described the mother as controlling his relationship with the children at the behest of the maternal grandmother. For example he stated; “Ms Weatherston is trying to take stuff out on me and the kids are being affected by it. Nanna is a very controlling person and has a lot of pull over Ms Weatherston.”[17]
[17] Family Report paragraph 50.
The mother refuses to accept that the father has changed. She told the family consultant that:
…there is nothing he could do to make me believe he would ever lose that ability to snap like he does and…….. he just glazes over...[18]
[18] Family Report paragraph 83.
This remained her position at trial and her counsel submitted that there were a number of indications that the father had not changed. He submitted that his answers in cross-examination when he was asked about what he had learned from the men’s behaviour change program were “calculated but unconvincing”. He asked the court to take into account the attitude to the mother which was revealed in correspondence sent by his solicitor to the mother’s solicitor, the attitude he displayed during cross-examination, his failure to make admissions about all of the family violence alleged by the mother, the fact that he had breached the ADVO in December 2019 by ringing her mobile and the fact that he had decided to attend X pre-school graduation.
Some of the criticisms of the father by the mother’s counsel are harsh. Even on the mother’s evidence the father rang her mobile in December 2019 because he was endeavouring to speak to the children, and it appears that the police charged him because it turned out that despite what both parties believed there was no court order for telephone communication. He did express an intention to attend X’s pre-school graduation in letters exchanged between solicitors but it was natural that he would wish to do so and upon the mother’s solicitor saying that this would be a breach of the ADVO he did not attend.
Some of the criticisms have merit however. The father initially displayed a resentful and defensive attitude when he was being cross-examined, and the tone of the letters his solicitor repeatedly sent to the mother’s solicitors during the course of the litigation are concerning. There is a repeated suggestion in those letters that the mother was simply gatekeeping and restricting the father’s time with the children for no good reason.
The father did not show any insight into the impact on the mother of having been subjected to family violence during cross-examination. When he was asked if he accepted that the mother was in fear of him he shrugged. When pressed he said:
Maybe she is. I don’t know.
However while there is merit in some of the mother’s counsel’s submissions, I do not accept that the father’s answers when he was asked about what he had learned from the men’s behaviour change course were “calculated and contrived.” He went to very considerable effort to do the course and he spoke knowledgeably about what he had learned to the family consultant in July 2020 and to the court in April 2021, albeit there might be things he has missed.
The father’s attitude to the mother and to his offending may not have changed as thoroughly as might be wished for, and his admissions about family violence may not be as complete as might be wished for, but I have to assess magnitude of the risk for the children if they spend time with the father as he proposes.
The risk of the children being exposed to family violence perpetrated by the father against a future domestic partner regardless of his level of insight is not high at present. He is not in a relationship with anyone and he does not seem to have a history of being in live-in relationships. He also does not have a history of coming to the notice of the police because of aggression, violence or public or private intoxication. He is 53 years old and his only criminal convictions arise from incidents between himself and the mother in 2017 and 2019.
There has been no family violence between the father and the mother since January 2019 when they ceased to come into contact with each other. The father was charged with breaching the ADVO in December 2019 but I am satisfied that it arose out of his desire to contact the children, not a desire to harass, stalk or intimidate the mother.
There is a risk of the father reacting in an impatient, resentful way toward the mother if he feels thwarted or upset by some of her decisions, and his evidence about his resentment about the outcome when he tried to arrange to see X ride at a horse riding event illustrates that risk. He will need to be extremely careful that the does not express impatience or resentment about the mother or the maternal grandmother to the mother or to children. It is likely to get back to the mother if he expresses it to the children and if he cannot keep himself in check the mother may feel that she has grounds to bring the matter back to court.
Speaking impatiently or resentfully is not necessarily family violence and I do not consider that there is an unacceptable risk of the children being exposed to family violence between the parents provided the parents come into contact with each other as little as possible.
I must also consider the risk of the children being abused or subjected to violence by the father.
The family report writer said this:
It is common ground the father has never physically assaulted the children. The history of family violence perpetrated by the father, heightens the risk of the father engaging in physical harm towards the children. This would be particularly the case in adolescence when tensions in parent/child relationships increase as children seek to individuate from their parents and in doing so they test boundaries, rebut the authority of the parent and challenge the value system of the family unit.[19]
[19] Family Report paragraph 87.
However the children are a long way off adolescence and they are not fractious children with behavioural issues and I do not consider that they would be at unacceptable risk of abuse, neglect or family violence if they spend unsupervised time with the father.
It was the mother’s case that while the father might be able to hold it together for a few hours the risk of him lashing out would be high if the children spend extensive time or overnight time with him. However it was not her case that the father was routinely cranky and intolerant. She told the family consultant that in between issues in their relationship caused by the father’s behaviour he was “the nicest guy ever. When he is nice he is ridiculously nice.” [20]
[20] Family Report paragraph 58.
This is the man who has been on display to the children at the supervised visits and at supervised changeovers, and with the added safeguards of the fact that he has done the course, that he is strongly committed to having a relationship with his children and must know that he will lose all opportunity of a relationship with them if he loses control and that the children are not fractious children with behavioural issues, I cannot find that the children would be at unacceptable risk of harm if they spent time with the father similar to the time which he or alternatively the Independent Children’s Lawyer proposes provided that a restraint is in place about his use of alcohol during this time.
Conclusion
Limiting the father’s time with the children to six hours on two consecutive days each month may enable him to have a meaningful relationship with them in that it could still be a relationship which was significant valuable and important to them.[21] However it will not allow him to do the range of caring tasks for them which overnight time, and time which begins and ends on a school day, would permit, or enable the children to enjoy a combination of bursts of activity and the simple pleasures of downtime at home, which can include helping to get an evening meal and sitting together watching a movie. It will also not enable him to take them camping or take them to see his relatives in Town F, something the family previously enjoyed.
[21] Mazorski & Albright (2008) 37 FamLR 518.
It is understandable that the mother cannot let go of her concerns about what might happen to the children if they spend overnight and holiday time with the father. However while there is always a risk that things might go wrong, I cannot find that the children would be at unacceptable risk of harm if they spent time of that sort with the father, and the children should not be deprived of the range of experiences the father can offer them without good reason.
I intend to make orders about the children’s time with the father as proposed by the Independent Children’s Lawyer, which in two respects provide for less time than the father sought.
Pursuant to those orders the time will always start on Saturday morning rather than Friday afternoon. The father said that his work was flexible and that he could pick the children up from school on Friday, but he missed one of the twelve Engage2Change programs because he had to deal with an issue at work and he blamed work stress for some of his previous inappropriate behaviour. It is better to remove a potential risk in order to limit the possibility of the orders not working and the matter returning to court.
I am also not going to make an order for time to occur on a Wednesday after school. That would require the parents to do extra changeovers. Their relationship is not the best so this increases the risk that they will come into conflict, and it will not offer a lot to the children. The proposal by the Independent Children’s Lawyer that there be telephone communication on this day is to be preferred.
The mother’s counsel asked the court, if it was considering making the orders proposed by the Independent Children’s Lawyer, not to increase time every six months but to increase it every twelve months. However I am not going to do that. The time proposed by the Independent Children’s Lawyer is age appropriate.
I intend to make an order that the children’s holiday time during the Christmas school holidays be week about until Y turns 7, then a one week block and a two week block until Y turns 10 and thereafter half/half.
I will make the order for telephone communication with the father proposed by the Independent Children’s Lawyer but I am not going to make an order that the children be able to telephone each parent if they ask to do so. Such an order can lead to conflict and difficulty and accusations of a breach of the order based on something the children say to one of their parents. I do hope however that each parent does not prevent telephone or video communication at reasonable times if the children ask for it.
I intend to make the order about the use of the breathalyser as proposed by the Independent Children’s Lawyer but I intend to accede to the proposal by the father’s counsel that this have a sunset clause of three years from either the date of the order or the last reading which is above zero. If the father gets through three years it will be time for the mother to extend some trust to him.
The current interim orders provide for the father to do a breathalyser test at the beginning and end of every visit and every telephone call and the mother sought a continuation of this, but it is far too onerous. Allowing the mother to request random tests will keep the father on his toes and I am satisfied that in the light of the evidence this is sufficiently protective.
The mother’s counsel raised a concern about the possibility of conflict arising because one parent engaged the boys in weekend sporting activities and hobbies but I am not going to make an order giving one parent the right to arrange such activities and requiring the other parent to take the children to the activities. The parents do not live that far apart and they both value those experiences for the children. They are going to have to work that out, bearing in mind that sometimes children’s time with a parent, especially the time with a parent of children as young as these, has to take priority over their involvement in organised activities.
The mother’s counsel asked the court to make an order that the children be able to spend time with the mother on a weekend in 2021 because it was the maternal grandmother’s 70th birthday. The father’s counsel consented to this order being made.
The orders I have made will allow X and Y to enjoy the benefit of having a loving and involved mother and a loving and involved father as they grow into adulthood. If the parents follow the orders as far as possible, agree to sensible variations to them if the needs of the parents or the children change or unexpected events occur, treat each other with civility and respect and are forgiving if the other parent has an occasional slip from grace then the children will be able to have that, but the future is in the parents hands, not the hands of the court.
I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry. Associate:
Dated: 28 May 2021
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