Kolbe and Schroeter
[2019] FamCA 208
•9 April 2019
FAMILY COURT OF AUSTRALIA
| KOLBE & SCHROETER | [2019] FamCA 208 |
| FAMILY LAW – CHILDREN – Interim application – Where the father seeks orders for the children to spend time with him in Country K in the forthcoming school holiday period – Where the children have previously spent time with the father overseas – Where the mother asserts that the father has an alcohol abuse problem which poses an unacceptable risk to the children while they are in his care – Where the evidence is insufficient to establish whether the father does or does not have an alcohol abuse problem – Where the Court takes a cautious approach – Orders made for the father to spend day time with the children in Australia – Orders made for the appointment of an Independent Children’s Lawyer – Orders made for the appointment of a Single Expert. |
| Family Law Act 1975 (Cth), ss. 4AB, 60CC, 61DA, 68L |
| Acton & Burton [2015] FamCA Banks & Banks [2015] FamCAFC 36 Goode & Goode (2006) FLC 93-286 Iphostrou & Iphostrou and Ors [2011] FamCA 20 Marvel & Marvel (No. 2) [2010] FamCAFC 101 SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Mr Kolbe |
| RESPONDENT: | Ms Schroeter |
| FILE NUMBER: | SYC | 1240 | of | 2019 |
| DATE DELIVERED: | 9 April 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 15 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPLICANT: | Pearson Emerson Meyer Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | The Norton Law Group |
Orders
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
The parties are restrained from removing the children from the Commonwealth of Australia without the written consent of the other party or further order of the Court.
In the event of the father travelling to Australia, the children spend time with the father in Sydney during the period 12 April 2019 to 26 April 2019 between 9.00 am and 5.00 pm each day.
The father be restrained from consuming alcohol in the period 24 hours prior to and during any time he is to spend with the children, pursuant to these orders.
Appointment of Independent Children’s Lawyer
Pursuant to s 68L(2) of the Family Law Act 1975 (Cth) (“the Act”), an Independent Children’s Lawyer be appointed for the children, X, born … 2005, Y, born … 2007 and Z, born … 2009 (collectively “the children”), and the Legal Aid Commission of NSW is requested to provide such representation.
Forthwith upon notification of appointment, the Independent Children’s Lawyer file and serve a Notice of Address for Service.
Within 48 hours of notification of the Independent Children’s Lawyer’s address for service, the parties provide to the Legal Aid Commission of NSW all documents thus far filed in these proceedings by that party, together with all existing orders and copies of any relevant reports.
Appointment of Single Expert
Subject to order 8 below, a Single Expert be appointed pursuant to Chapter 15 of the Family Law Rules 2004 (Cth) to prepare a report on matters pertaining to s 60CC of the Act, including but not limited to the issue of the father’s alcohol use and any other matters that the Single Expert considers important to the best interests of the children.
The Single Expert appointed pursuant to order 7 above shall be an appropriately qualified person, as agreed by the parties, and in the absence of agreement, selected by the following process:
(a)Within seven (7) days of the date of these orders, the Applicant father is to provide a list of three (3) appropriately qualified persons for consideration by the Respondent mother; and
(b)Within seven (7) days of receipt of the list of appropriately qualified persons referred to in order (8)(a) above, the Respondent mother is to choose from that list the person to be appointed as the Single Expert.
The parties are to equally share the costs of the Single Expert Report.
For the purpose of completing the Report, the Single Expert is granted leave to inspect the Court file and all documents produced pursuant to subpoenas (once leave to inspect has been granted to at least one other party in the matter).
The parties comply with all reasonable directions as to attendance upon the Single Expert.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kolbe & Schroeter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1240 of 2019
| Mr Kolbe |
Applicant
And
| Ms Schroeter |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an urgent application by the father for parenting orders in circumstances where he is desirous of the children travelling to Country K to spend time with him during the forthcoming April 2019 school holidays. The application has been made in circumstances where, since the parties separated in 2010, their children, X, born in 2005, Y, born in 2007 and Z, born in 2009 (collectively “the children”), have spent regular time with the father including, since 2014, travelling extensively outside Australia to spend time with him during school holidays. The mother now objects to that occurring during the forthcoming April school holidays.
The father’s application was filed on 28 February 2019, in response to assertions by the mother that she would not allow the children to travel overseas to spend time with the father during the April 2019 school holidays, pursuant to a prior informal agreement of the parties. The mother states that she seeks to prevent the children spending time with the father overseas as they are inappropriately exposed to the father’s alcohol consumption in his household. She contends that this impacts upon the father’s awareness of the children’s needs and his parenting skills. The father denies that he has any issue with alcohol abuse and contends that there is no valid reason to deprive the children of the opportunity to travel overseas to spend time with him and their step-siblings, as they have done previously.
At the hearing on 15 March 2019, both parties agreed that, in circumstances where the children have been living with the mother since the parties separated in 2010, it was appropriate for an interim order to be made confirming that place of residence.
Evidence
At the hearing, the father relied upon the following documents:
a)His Affidavit filed on 28 February 2019;
b)His Affidavit filed on 14 March 2019;
c)Affidavit of Ms B filed on 11 March 2019; and
d)Affidavit of Mr C filed on 14 March 2019.
The mother relied upon her Affidavit filed on 11 March 2019.
Approach of the Court
In considering the father’s application for interim parenting orders, the Court is guided by the principles set out by the Full Court in Goode & Goode (2006) FLC 93-286. Relevantly, at 80,903 – 80,904, under the subheading "How should interim proceedings be conducted?", the Full Court said:
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place)”
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Applications
By Initiating Application filed on 28 February 2019, the father sought the following orders:
…
THE COURT ORDERS PENDING FURTHER ORDER:
2. The parties be permitted to take the children out of Australia to a place outside Australia in accordance with these orders and section 65Y(2)(b) of the Family Law Act 1975.
3. The father undertakes, without admissions, that he will not consume alcohol in excessive amounts while the children are in his care.
4. The children live with the mother.
5. The children spend time with the father as follows:
5.1 For the April 2019 school holidays:
5.1.1 All children from 12 April 2019 to 26 April 2019;
5.2 For the June/July 2019 school holidays:
5.2.1 For [Z] from 5 July 2019 to 20 July 2019;
5.2.2 For [X] and [Y] from 28 June 2019 to 20 July 2019.
5.3 For the September/October 2019 school holidays:
5.3.1 For [X] from 20 September 2019 to 12 October 2019;
5.3.2 For [Y] and [Z] from 27 September 2019 to 12 October 2019.
5.4 For December/ January school holidays commencing in 2019:
5.4.1 For [Y] from 3 December 2019 to 5 January 2020;
5.4.2 For [X] from 7 December 2019 to 5 January 2020;
5.4.3 For [Z] from 18 December 2019 to 5 January 2020.
5.5 thereafter for the entirety of the short school holiday periods and for half of the Christmas school holiday period.
6. For the purposes of Order 5, the parties are to do all things and sign all documents as are necessary to facilitate the children’s travel, either domestically or internationally to allow for the children to spend time with the father in accordance with these Orders, including but not limited to renewing the children’s passports.
7. The mother pay the father’s costs.
By a Response filed on 11 March 2019, the mother sought the following orders:
1. The mother have sole parental responsibility for the children:
(a) [X] born … 2005, (“[X]”);
(b) [Y] born … 2007, (“[Y]”); and
(c) [Z] born … 2009, (“[Z]”).
(“the children”).
2. The children live with the mother.
3. The children be restrained from being removed from the Commonwealth of Australia.
4. The children spend time with the father in Sydney, Australia, during the period 12 April 2019 to 26 April 2019, between 9:00am and 5:00pm each day.
5. That an Independent Children’s Lawyer be appointed.
6. That a single joint expert be appointed pursuant to Chapter 15 of the Family Law Rules to prepare a family report on matters pertaining to s60CC of the Family Law Act 1975 (Cth), including but not limited to issues as to the father’s alcohol use.
7. The father be restrained from consuming alcohol 24 hours prior to and during any time he is to spend time with the children pursuant to these orders.
8. During the period 12 April 2019 and 26 April 2019, the father undergo random medical testing on no more than two occasions, with the mother’s solicitors to forward the father’s solicitors notification of the requirement to undergo such testing within 24 hours of that notification.
9. The father pay the mother’s costs of and incidental to this Application.
As stated above, on 11 March 2019, an order was made in the following terms:
By consent, pending further order, the children live with the mother.
Limited ability to resolve issues of fact in interim proceedings
As noted in Goode (supra), the Court has a limited ability to resolve controversial factual issues in interim proceedings. In that respect, in Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [44], Cronin J said:
In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction.
Similarly, in Acton & Burton [2015] FamCA 469 at [26], Hogan J said:
The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them…
Agreed or non-controversial facts
Save to the extent that I have indicated otherwise, the agreed or non-controversial facts relevant to this matter are set out below.
The father was born in 1969. He is currently aged 49 years.
The mother was born in 1970. She is currently aged 48 years.
The parties were married in 2003 and, subsequent to their marriage, lived in Country K.
In 2005, the parties’ child X was born. He is currently aged 13 years.
In 2007, the parties’ child Y was born. She is currently aged 12 years.
In 2009, the parties’ child Z was born. She is currently aged 9 years.
In May 2010, the parties separated. In the period subsequent to the parties’ separation, pursuant to an informal parenting agreement reached between the parties, the children have lived primarily with the mother and spent significant time with the father.
In late-2010, the father was offered a job in Country G.
In December 2010, the parties and the children relocated from Country K to Country G. The mother, the children and the children’s nanny moved into accommodation nearby to the residence of the father in Country G.
In 2011, the father commenced a relationship with his current wife, Ms B.
In March 2011, the parties lodged a Statement of Arrangements for Children with the relevant Country K Court, which, relevantly, included the following information:
a)That the mother primarily looks after the children “from day-to-day” but that the children generally see their father “daily” and that he “helps out on an ad hoc basis”;
b)That a “nanny” looks about the children when the parents are not present;
c)In response to the question: “Who looks after the children during school holidays?” it is recorded: “Mother primarily with nanny help”;
d)“[The children] see [the father] most days, either at their home or he may collect them from school or take them out. It is a very relaxed, amicable arrangement”; and
e)If the parties did not agree about arrangements for the children, they agreed “to discuss the matter with the Conciliator” and the other party.
In December 2011, the parties agreed that the children would spend time with the father on alternate weekends. This arrangement continued until the mother relocated with the children to Australia in December 2014. The parties also agreed that the children were to spend equal time with each parent during school holidays.
In 2013, the parties were divorced.
In May 2014, the mother married her current husband, Mr Schroeter, and informed the father that she would like to relocate to Australia. The father contends that he only agreed to that arrangement on the condition that the children spend the majority of their school holiday time with him. The mother acknowledges that the time the children have spent with the father in Country K is as result of an “informal agreement” between the parties “whereby the children would spend all of the short school holidays with [the father], and half the longer Christmas school holidays with him.”
In December 2014, the mother relocated with the children to Australia. Shortly thereafter, the father relocated to Country K. Since that time, the children have spent all three short school holiday periods with the father in Country K, as well as half of the long Christmas school holidays.
On 8 April 2016, prior to the children spending time with the father in Country K later that month, the mother sent an email to the father reminding him to patch Z’s eye every day and requesting that he cut the children’s nails and toenails, but otherwise stated: “Have a great holiday. They are very excited to be seeing you.”
In 2015, the father married Ms B. Ms B has three children from a previous marriage, Mr D, aged 18 years, E, aged 16 years and F, aged 12 years.
In April 2017, the children travelled to Country K to spend time with the father during the school holidays. On 26 April 2017 the mother sent an email to the father in which she stated: “Thanks for giving the kids such a fun holiday. There’ve come home with lots of good stories as usual and they’re missing you already.”
In July 2017, the children travelled to Country K to spend school holidays with the father.
In September 2017, the children travelled to Country K to spend school holiday time with the father. After the children returned to the care of the mother, the mother emailed the father, stating:
… On another note, all 3 kids came back from their last holiday with you telling me that they’d drunk alcohol. They are all way too young for drinking alcohol, and I want to ask you to please ensure this doesn’t happen again.
The father’s response to that email included the following:
Noted re-the alcohol policy, I’m fine with enforcing that.
In December 2017, the children travelled to Country K to spend school holiday time with the father.
In April 2018, the children travelled to Country K to spend school holiday time with the father. After the children returned to the care of the mother, the mother sent an email to the father on 1 May 2018, thanking him for “giving the kids a fun holiday” and stating “they really enjoyed seeing you.”
In July 2018, the children travelled to the Country K to spend school holiday time with the father.
On 8 September 2018, the mother sent an email to the father in which she stated:
… The kids spend more time with you than with us this Christmas holiday, but understandably they miss you and want to spend that time with you and we get that… X and Y both want time on their own with you.
In September 2018, the children travelled to spend the school holidays with the father in Country K. After the children returned to the care of the mother, the mother sent an email to the father on 14 October 2018, in which she raised the issue of some missing personal items but otherwise she advised the father that “the kids had a great time with you, thanks”.
In December 2018, the children travelled to Country K to spend school holiday time with the father. After the children returned to the care of the mother in January 2019, she called the father and informed him that, in the future, the children would not be travelling to Country K to spend time with him. The father contends that, in late-January 2019, he also received a telephone call from his travel agent informing him that the mother had arranged to travel to Country N in April 2019, during the time that the father had previously understood that the children would be spending time with him in Country K.
On 12 February 2019, the father received a letter from the mother’s solicitors confirming that the mother did not agree to the children travelling to Country K in April 2019 and advising that the mother would only permit the children to spend time with the father:
a)in Australia, during the day;
b)at times agreed by the mother; and
c)subject to the father undergoing Carbohydrate-deficient Transferrin (“CDT”) testing.
At paragraph 31 of her Affidavit, the mother states that she is a “recovered alcoholic” who has been sober for over 11 years. The mother also states that her current husband has been in recovery from alcoholism for over 11 years. Both the mother and her current husband are members of Program O and abstain completely from drinking alcohol.
Relevant issues
In determining what is in the children’s best interests, it is necessary for the Court to consider the matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). In Banks & Banks [2015] FamCAFC 36 at [49] to [50], the Full Court outlined a common sense approach to applying the s 60CC considerations, in the following terms:
…there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the Forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
The primary issue in this matter is whether the children are at physical and/or psychological risk if they spend time with the father in Country K during the forthcoming April 2019 school holidays. The mother contends that the children are at such a risk for the following three reasons:
a)The Country H police have frozen a bank account in the mother’s name, pending an investigation relating to past business transactions involving the father;
b)In circumstances where there is the potential for the father to face a criminal investigation, he may travel to a country outside Country K, including possibly a non-Hague Convention country, with the children. This, the mother contends, would make it extremely difficult for her to seek recovery of the children under the provisions of that Convention. This is particularly so in circumstances where her access to financial resources has been frozen by the action of the Country H police; and
c)As a result of the nature of the father’s alcohol consumption, he is incapable of properly caring for the children and they have become distressed in his care. In that respect, the mother refers to several incidents, as set out below.
There is no clear evidence that the father is currently subject to a criminal investigation by the Country H police. Further, there is no clear evidence that any such action taken against the father has or will adversely impact upon his parenting ability, such that it would place the children at an unacceptable risk of physical and/or psychological harm in his care. Similarly, there is no evidence that, if the children travelled to Country K to spend the forthcoming April school holidays with the father, he would travel with them to a non-Hague Convention country or that he would withhold the children from the mother’s care at the conclusion of the school holidays. Accordingly, I do not further examine those first two concerns outlined by the mother.
The primary issue to be determined in these proceedings, therefore, is whether, as a result of the father’s alcohol consumption, the children would be exposed to an unacceptable risk of physical and/or psychological harm if they travel to Country K in the forthcoming April school holidays to spend time with him. In addition to assessing that issue of risk, the Court has given consideration to the matters set out in s 60CC of the Act generally, but will concentrate on those considerations which are of most relevance to this matter.
Primary considerations
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations to be taken into account are set out in s 60CC(2), as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing those considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
Meaningful relationship
In this matter, both parties acknowledge the importance of the children having a meaningful relationship with the other parent.
The father contends that it is important for the children to continue to spend the majority of school holidays with him, if they are to maintain a meaningful relationship.
The mother contends that, shortly after the children arrived home from spending time with the father during the December 2018/January 2019 school holidays, she telephoned the father to advise him that the children would not be travelling to Country K to spend time with him during the April 2019 school holidays but that “at no point did [she] say to [the father] that [she] would be preventing him from seeing the children”. The mother contends that she has always facilitated a close and meaningful relationship between the children and the father. This includes facilitating the children travelling overseas and maintaining regular electronic communication. The mother acknowledges that it is in the children’s best interest to continue to have a relationship with the father and that she encourages the children to communicate with their father on a daily basis to maintain “their strong relationship”.
Unacceptable risk
In this matter, the mother asserts that the father consumes alcohol to excess, which impacts upon his ability to care for the children when they are spending time with him. The father denies the mother’s allegations, in that regard.
The mother contends that, throughout her relationship with the father, between 1995 and 2010, she observed him to drink “several glasses of wine daily, before and after lunch/dinner, to the point where he would become ‘drunk’”. The mother contends that, on several occasions, the father would become “so drunk that he would spend the night face down on the floor of the bathroom”. The mother further contends that the father would slur his words and appear intoxicated. The mother states that she recalled that, on one occasion, the father stated to her “I’ve drunk all the bottles of alcohol in the house”. The mother asserts that the father previously informed her that on one occasion, he had been so intoxicated that he “blacked out and defecated on the living room floor of [his] flat”.
The mother further contends that on 16 December 2010, shortly prior to the parties’ relocation to Country G, the father became “so intoxicated that he blacked out” and “failed to come home to relieve [the children’s] nanny and care for the children who at that time were to be in his care”. The mother contends that at that time, the father told her that “he became so drunk that he fell asleep on the City P Underground and could not get home”.
The mother contends that the Statement of Arrangements for Children entered into by the parties at or about the time of their divorce made no provision for the children to spend overnight time with the father “due to his alcoholism and pattern of unreliability”. That contention is, with respect, inconsistent with the tone of the Statement of Arrangements for Children to which I have referred, which states that the parties having a “very relaxed, amicable arrangement”.
The mother contends that she “ultimately” gave in to the father’s demands to let the children spend time with him overnight. She states that she “ensured the children’s protection by insisting the children’s nanny who lived with [her] also attend with [the children] overnight at [the father’s] home”.
The mother further contends that, during a holiday to Country J in 2012, the father “sent the nanny away so he could be alone with the children”. The mother contends that she was later informed by one of the children that the father had been “intoxicated and fell asleep” while the children were in his care. The mother contends that, as a result of the children not being supervised at that time, X fell over and cut his head, requiring him to have stitches. The mother states that she was “later informed by [her nanny] of the events involving [the father’s] intoxication”, however, the mother does not give any account of what those “events” were.
The mother further contends that, in 2012, the father “again failed to adequately supervise the children” and “Y fell over, hitting her head”, causing her to have a concussion. The mother contends that the father downplayed the injury and did not explain how it had occurred to her.
The mother further contends that, in or about 2012, Z was diagnosed as being “virtually blind in her left eye” and was required to wear glasses and a patch over her right eye for several hours each day, to encourage her brain to develop peripheral vision in her left eye. When Z would spend time with the father, the mother would ensure that the correct number of eye patches had been packed for her. The mother asserts that Z would often return home from spending time with the father with unused eye patches, as the father “would fail to carry out the required patching”.
The mother further contends that the children have historically made the following statements to her:
a)“Daddy drinks alcohol every day at lunch time and in the evening”;
b)“We always have to stay in restaurants and wait for Dad to finish a bottle of wine”;
c)“Daddy will order a second glass of wine before he has finished his first”;
d)“Daddy had wine at breakfast”;
e)“Daddy got drunk and fell in the swimming pool after drinking at lunchtime during our holiday”;
f)“Daddy drives after drinking. He has been caught speeding lots of times”;
g)“Mr D [the children’s stepbrother] has been drinking since we first met him”;
h)“E [the children’s stepsister] had cocktails on our holiday”; and
i)“F [the children’s stepsister] drank several glasses of champagne on New Year’s Eve”.
The mother further contends that, more recently, the children have reported incidences of the father’s “drunkenness” to her and have referred to the father “carrying on” and “talking nonsense” at times. The mother states that, following a trip that the children took with the father to Country Q in September 2018, the children told her that the father “became ‘drunk’” often and spoke “nonsensically”.
The mother further asserts that, during the children’s most recent trip to Country K during the December 2018/January 2019 school holidays, she was informed by the children that they had been left in the care of the father’s housekeepers and that the father and his wife travelled away “for several days for a party”. During another school holiday period, the father “left the children in the care of his sister in City P for several days” as he and his wife travelled to Country R for a friend’s wedding.
The mother further asserts that, following their return to her care, the children have complained about the father failing to maintain appropriate hygiene standards for them, stating that they had not showered “for several days” and Z advising the mother that “X didn’t brush his teeth for six days”. The mother states that receiving that information distressed her because X has braces and requires specific oral hygiene. Further, Z has expressed concern to the mother to her that she feels ““ignored” or “neglected” “because nobody assists her in washing and brushing her hair, washing her teeth and the like”. The mother further asserts that she has been advised by Y that she is required to care for Z and assist her with brushing her hair and the like.
The mother further contends that, when the children returned to her care in January 2019, Y became tearful and said words to the effect of: “I am worried that Daddy will become ill from drinking” and “I am stressed when I am around Daddy and he is drinking”, “I am worried Daddy will do something to harm himself or drink drive with us in the car” and “I know Dad has been drinking too much because his nose goes red”. The mother has also expressed concern that, despite the fact that she has raised these matters with the father, he has not offered to refrain from consuming alcohol whilst the children are in his care.
The mother further contends that the children advised her that the following had occurred during the December 2018/January 2019 school holidays:
a)The father had left them alone in their hotel room, while he and his wife went to the gym. The father’s stepson, Mr D, was left to supervise the children, but that he was asleep in his bedroom;
b)X and Y were permitted to go to the beach unsupervised;
c)On New Year’s Eve 2018/2019, the father, his wife and Mr D were “all very drunk”, while the father’s younger stepchildren, E and F, were “also drinking alcohol”. The hotel guests were drunk and jumping into the pool, while fully dressed. The hotel staff put a barrier near the pool to stop people jumping in, however the father’s wife ignored the barrier and got the children and the father to jump in the pool; and
d)X consumed alcohol on one evening and Y and Z were offered “sips” from their step-sister’s cocktail.
The mother contends that, as result of those disclosures made by the children and her resultant concerns regarding the father’s care of them, the father should be required to travel to Australia during the April 2019 if he wishes to spend time with the children, rather than the children travelling to Country K, as previously agreed. This is because the mother feels “that the children need to spend time with [the father] in a supported environment where they do not feel vulnerable and helpless”. The mother further contends that the father should be “restrained from consuming alcohol 24 hours prior to and during any time he is to spend time with the children”.
The mother further contends that this matter “would benefit from an expert report in relation to the issues of alcoholism and the children’s views”. The mother states that she would be guided by that expert opinion as to appropriate parenting arrangements. The mother further contends that it is appropriate for the father to undergo medical testing.
In his Affidavit, filed on 28 February 2019, the father denies that he has a problem with alcohol consumption, but contends that “alcoholism has been an issue for [the mother] in the past”. Indeed, the father states that the mother “has had alcohol and other addictions (drugs, self-harming, binge eating)”. The father, however, denies that he has had an issue with alcohol consumption. In that respect, the father states that, in comparison to the mother’s history of alcoholism, he drinks alcohol “moderately”. However, in his Affidavit filed on 28 February 2019, the father states:
My alcohol consumption has always been a source of contention with [the mother]. I ceased drinking following [Y’s] birth in 2007 to help support [the mother] with her recovery. I also attended a 12 step “recovery” program for some time, at [the mother’s] request, to help understand and support [the mother] with her recovery, not because I have a problem with alcohol myself. Upon our separation in 2010, I recommenced drinking at similar levels to those I enjoyed previously. My alcohol consumption has remained constant since then. I drink in front of my children, but I deny that I drink to excess, or to a point where I am unable to properly care for the children. Alcohol is not viewed as a problem in my household. I freely discuss the issues of alcohol with the children. I have also discussed the differences between our approach and [the mother] and [her husband’s] way of life, to abstain from alcohol entirely. I have informed the children “no one approach is “right”, they are just different”. I deny that the awareness of alcohol in my household is even remotely inappropriate. I deny that I fell into a pool because I was intoxicated. I deny that I consume alcohol every lunch time and evening, or that the children have stayed in restaurants after finishing meals so that I may finish a bottle of wine. I deny that the children have ever expressed concern to me as to my levels of alcohol intake and behaviour when drinking.
The father states that, while, to the best of his recollection, some but not all of the children have had a few “sips” of alcohol on about two occasions, he denies that the children have engaged in underage drinking.
The father further denies that either himself or his wife were “very drunk” at the New Year’s Eve Party on 31 December 2018. The father states that hotel guests were jumping into the hotel pool at midnight, simply to celebrate New Year’s Eve. He states that he initially rejected the children’s request for them to be allowed to jump into the pool, but eventually the children simply did so. The father states that the children had a wonderful time, “so much so that we all jumped in again”. The father denies that the children were exposed to any risk in his care.
At paragraph 40 of his Affidavit filed on 14 March 2019, the father denies that he is an alcoholic and states that, while he does drink alcohol, he denies that he drank “several glasses of wine daily before and after lunch and dinner during my marriage to [the mother]”. The father further denies that he “would become drunk daily”. The father also denied that he has ever “spent a whole night face down on the bathroom floor” and that he has ever advised the mother that he had “drunk all the bottles of wine in the house”.
The father acknowledges, however, that it is true that on one occasion he was “so drunk” that he “blacked out and defecated on the living room floor”, but states that this was in around 1994 or 1995 and that he has not “done anything remotely like that since”. The father denies that he found that incident amusing or that he boasted to the mother in respect to the incident.
The father admits that he drank too much at an office Christmas party in 2010 and, as a result, did not get home in time to relieve the nanny. The father states that “Nothing like this has happened since that event”.
In respect to the mother’s allegations that X suffered an injury while in the care of the father as result of the father being intoxicated, the father denies that X suffered the injury due to his supervision being impeded by alcohol consumption. Specifically, the father denies that he was intoxicated and fell asleep. The father does, however, acknowledge that X had an accident while in his care and that he took X to hospital, where he had stitches and that X recovered quickly after the treatment.
In respect to the mother’s allegations that Y sustained an injury to her head as result of the father inadequately supervising the children, the father denies that Y suffered an injury due to his supervision being impeded by alcohol consumption. At paragraph 45 of his Affidavit filed on 14 March 2019, the father states:
I recall the incident [the mother] refers to occurred in 2015. The accident [the mother] refers to had nothing to do with me failing to adequately supervise the children. I recall [Y] was running along a boardwalk and she slipped over as it was wet. I took her to the hospital as I was concerned she may have suffered a concussion. At the hospital, the doctor gave me a checklist of symptoms to watch out for. Later that day [Y] appeared to be well and did not need to return to the hospital or doctor for treatment.
In terms of issues relating to the mother’s allegations that the father fails to properly care for the children, the father denies that he does not maintain appropriate hygiene standards. He further denies that he provides inadequate supervision of the children and states that, on one occasion when he and his wife were away from the children for a period of 24 hours, the children were supervised by housekeepers, who the children had known for two years. The father further states that, on other occasions, for short periods of time, the children have been supervised by his step-children, Mr D and E.
The father did not specifically address the mother’s allegation that he failed to change Z’s eyepatch, but states that: “[Z] no longer wears an eyepatch”. Presumably, that statement is made with a view to indicating that the issue of Z wearing an eyepatch is no longer of concern.
In terms of the father’s step-children drinking alcohol, the father states: “It is true that both [Mr D] and [E], the children’s stepsiblings, occasionally drink alcohol in front of the children. This is legal in [Country K]”. In that respect, it is noted that [Mr D] is 18 years of age and E is 16 years of age. The father contends that, in Country K, it is permissible for 16 year old children to drink alcohol, while under supervision.
More generally, at paragraph 53 of his Affidavit filed on 14 March 2019, the father denies that he hides his drinking from the children or that he encourages the children to hide his drinking from the mother. The father further denies that he drives while intoxicated. He asserts that any anxiety the children may have regarding the amount of alcohol he consumes may be ameliorated if the mother “stops telling the children [he is] an alcoholic”.
In respect to the mother’s concerns regarding his level of alcohol consumption, the father sets out an offer in his Affidavit filed on 14 March 2019 “to reduce my drinking to a maximum of two standard drinks at lunch and dinner when the children are in my care”. As stated, the mother has sought that the father abstain from drinking alcohol entirely while the children are in his care, as well as 24 hours prior to that occurring.
The father further denies that he left the children in the care of Mr D, who was asleep, while he and his wife went to the gym. He states that the children were left in the care of E, who is 16 years of age, for short periods of time. The father further denies that he allowed X and Y go to the beach unsupervised.
By way of summary, at paragraph 79 of his Affidavit filed on 14 March 2019, the father states that:
I consider that I am more than capable of providing a supportive and safe environment for the children in [Country K], and have consistently done so since they started travelling to see me in 2015. The children have not expressed feelings of vulnerability or helplessness to me as [the mother] suggests.
Also of relevance to the consideration of whether the children are potentially at risk of physical and/or psychological harm in the care of the father is a text message sent by Y to her step-sister, F, on 25 January 2019, which included the following:
I can’t deal with this. My mum and step dad have stopped all of us from visiting I (sic) guys in [Country K] or even anywhere else because where (sic) not getting “the proper care needed” Screw my step dad because he doesn’t have any right to come in and try to stop me seeing you guys and daddy and screw my mum. I understand she misses us but she needs to bloody get over herself. I’m in such a shit hole.
We are not coming in April and we’re not coming in June and until we’re 18 or daddy stops being an alcoholic we’re not coming again
He is 100% an alcoholic. Do you know what the average amount to drink every week is? A couple of glasses on the weekend maybe 1 or 2 during the week. Daddy however drinks a bottle of wine for lunch and a bottle of wine for dinner, EVERY DAY…
During the course of that text message exchange, Y responded to a message from her step-sister, E, in which E expressed the view that the father “takes care of you guys”. Y’s response was:
It’s true I swear
And I think he takes great care of us
I love being holiday (sic) with him and u guys. Sometimes it’s the happiest times I have
Additional considerations
Any views expressed by the children
Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
The children in this matter have not been interviewed for the purpose of preparing a Family Report. However, there are several emails, which I have referred to above, where the mother states that the children have enjoyed spending time with the father. The text message communication between Y and F, to which I have also referred, confirms that Y has enjoyed her time in Country K with the father and her step-siblings and, indeed, states “sometimes it’s the happiest times I have”.
The children’s relationships
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
Both parties acknowledge that the children have a close relationship with each of them. The children also appear to have a close relationship with their step-siblings. The mother acknowledges that Y, in particular, “enjoys regularly electronic communication with her stepsister [F] in [Country K]”. That is confirmed by the text message communication between the two girls, who are close in age, which suggests that they have a close and confiding relationship.
The father also refers to the fact that the children’s paternal grandfather, who resides in Country K, is not in good health and that he would like the children to spend some time with him. The father also states that the children have a close relationship with their paternal aunt and cousins, who also reside in Country K. The mother did not appear to challenge those contentions.
Decision making, spending time and communicating with the children
Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
There is limited evidence, at this stage of the proceedings, regarding this consideration. It is clear, however, that the mother is the children’s primary carer. Further, the evidence presented suggests that the father was involved in the children’s daily lives, including driving them to and from school, following the parties’ separation and prior to the mother relocating with them to Australia. Following that relocation, it is clear that the father has taken up the opportunity to spend time with the children, including block time of up to five weeks. Further, the father takes the opportunity to regularly communicate with the children and email communication between the parties suggests that he is supportive of decisions that have been made in respect to the children’s education. This application, in itself, confirms the desire of the father to spend time with the children.
Obligation to maintain the child
Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
There did not appear to be any challenge to the father’s contention that he pays child support in accordance with a private agreement reached between the parties.
Effect of change
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.
Since the end of 2014, the children have been spending regular holiday time with the father. From text message and email exchanges between the parties, it appears that the children have enjoyed spending time with him. That is also confirmed in the text message exchange between Y and F, to which I have earlier referred.
The orders proposed by the mother relate to the forthcoming April 2019 school holidays and will have the effect of depriving the children of the opportunity to travel to Country K to spend time with the father and step-siblings. As such, the effect of those proposed orders would be a change to the children’s routine. I accept that the children may experience a sense of loss, in that regard, if the orders sought by the mother are implemented on an ongoing basis.
The impact of that change could be ameliorated to some extent by orders facilitating the father spending time with the children in Australia. However, in that respect, the mother proposes that the children do not spend overnight time with the father. This would also represent a change in the nature of the relationship that they have had with the father and may adversely impact upon the meaningful relationship that they have with him.
Practical difficulty of implementation
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The father has met the expenses associated with the children travelling from Australia to spend time with him in Country K and proposes to do so on an ongoing basis. Accordingly, the expense of travel is not an impediment to the children spending time with him. The father contends that it would, however, be difficult for him to travel to Australia to spend time with the children in Australia, as proposed by the mother, as result of business commitments that he has in the months of April and May 2019.
The capacity of each of the child's parents
Section 60CC(3)(f) requires the Court to consider 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.
This consideration raises a matter of considerable controversy between the parties. It is not disputed that the mother has been the children’s primary carer since their births and that she is a capable parent, in that regard. The father has also assisted in respect to the children’s care, including during the period that the mother and children lived in Country G, for instance, by taking the children to and from school and caring for them on a daily basis.
However, the mother contends that the father’s parenting capacity has historically been adversely impacted by the extent of his alcohol consumption. That is denied by the father. In these interim proceedings, I am unable to make a determination in respect to the parties’ competing factual contentions.
The maturity, sex, lifestyle and background of the child and either of the child’s parents
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
The children have spent significant time in Country K, Country L and Australia. They are used to international travel and have been unaccompanied in travelling from Australia to Country K to spend time with the father on a number of occasions since early-2015.
As the youngest child, Z has expressed some anxiety to the mother regarding the time she has spent with the father in Country K. The mother contends that this is as a result the father not paying appropriate attention to Z’s emotional needs. The father acknowledges that Z has experienced periods of homesickness and, specifically, has missed the mother while she was spending time with him overseas. The father states that he told Z that this was entirely understandable and provided appropriate comfort to her, including by facilitating her communicating with the mother and offering for her to return home to the mother early if she continued to feel distressed.
In the absence of a Family Report, save to the extent that I have referred to Z’s young age, it is not possible to make findings as to whether there are any particular characteristics of the children that are relevant to these proceedings.
Any family violence involving a child or a member of the child’s family
Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
In her Affidavit, the mother contends that during the period of the parties’ relationship, the father engaged in conduct that, if proven, may potentially fall within the broader definition of family violence, as set out in s 4AB of the Act. However, even if proven, those allegations are not relevant to the decision that the Court is required to make in these proceedings.
Evaluation
Leaving aside the issue of risk, the evidence to which I have referred, as framed by the relevant s 60CC considerations, favours the children being permitted to travel to Country K to spend time with the father during the forthcoming April 2019 school holidays. Most relevantly, such an arrangement is conducive to the children maintaining a meaningful relationship with the father, extended paternal family and step-siblings. However, the Court faces difficulty in determining whether those benefits are outweighed by any risks that the children may be exposed to in travelling to Country K during the April 2019 school holidays.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility to determine the issue of risk. In SS & AH [2010] FamCAFC 13 at [100], Boland and Thackray JJ said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible, when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
It is to be observed that the reference to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect children from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”: Bant & Clayton [2015] FamCAFC 222 at [99]. In that way, where risk is alleged in interim parenting proceedings, a conservative approach is warranted that is “likely to avoid harm to a child”: Marvel & Marvel (No.2) [2010] FamCAFC 101.
In this matter, while the evidence is not such that I am in a position to determine, as a matter of probability, that the father abuses alcohol, I consider that there is a distinct possibility that that is the case. In that respect, the father attests that, upon the parties’ separation in 2010, he “recommenced drinking at similar levels” to those he enjoyed previously. That appears to be a reference to the nature of the father’s alcohol consumption prior to Y’s birth in 2007, during which period the husband says he “drank alcohol moderately”. However, the husband’s account of an event that occurred on the evening of his office Christmas party in 2010, as set out at paragraph 41 of his Affidavit filed on 14 March 2019, wherein he failed to return home to relieve the nanny who was taking care of the children, is inconsistent with moderate alcohol consumption. In that context, the father’s assertion that he has continued to drink alcohol at that same level since the parties’ separation requires further exploration, potentially by way of cross-examination, which did not occur in these interim proceedings.
I also have concerns regarding the father’s preparedness to assert that the mother’s past difficulty with alcohol consumption and other addictions has caused her to perceive him to have problems with alcohol abuse, while potentially downplaying his own challenges, in that regard. In that respect, at paragraph 30 of his Affidavit filed on 28 February 2019, the father acknowledges that, in the period following Y’s birth in 2007 and prior to the parties’ separation in May 2010, he and the mother “attended a 12-step “recovery” program for some time”. The father asserts, however, that he attended the program at the mother’s request “to help understand and support [the mother] with her recovery, not because [he had] a problem with alcohol”.
While it is perhaps not entirely implausible that a person would abstain from alcohol for two and a half years and attend an alcoholics’ recovery program if they did not have problems with alcohol consumption, it is an assertion that requires further exploration. It was not possible to do so in these interim proceedings.
Further, in these interim proceedings, it has not been possible to explore an apparent inconsistency in the father’s evidence where, at paragraph 30 of his Affidavit filed on 28 February 2019, he asserts that “my alcohol consumption has always been a source of contention with [the mother]” as compared to paragraph 17(9) of his Affidavit filed on 14 March 2019, where he asserts that “until [the mother] called me in January 2019, I was unaware of any concern [the mother] had about my “lack of care” for the children while they are in [Country K] and the extent of my alcohol use”. Senior Counsel for the father contended that the second of those quotes needs to be seen in the context of the totality of the sentence. That is, the father was unaware of the mother’s concerns regarding his “alcohol use” resulting in a “lack of care” for the children while they are in his care, as opposed to the mother having concerns about those issues separately. That may well be the case, however, that inconsistency is again an issue that warrants further exploration, which has not been possible in these interim proceedings.
As against that evidence, it is to be noted that the father has filed Affidavits on behalf of his wife, Ms B, and his business partner, Mr C. With respect to both of those persons, I have given little weight to their evidence, insofar as it cannot be said to be objective, as they clearly have a relationship with the father, and it is not clear that either of them have any expertise with regards to detecting alcohol abuse.
Having determined that the father potentially has an issue with alcohol abuse, the next question to determine is whether that has the potential to adversely impact upon the children and, specifically, represent an unacceptable risk of psychological and/or physical harm to them. In that respect, I respectfully agree with Senior Counsel for the father that there is a lack of specificity or record of historical complaint by the mother in respect to her assertions of inattention or inappropriate care of the children. As against those complaints there are, as I have set out above, several instances where the mother has sent text messages and emails to the father complimenting him on the fact that the children have had a pleasant time in his care and that they miss him. It is significant that Y, in her text message to her step-sister, states that the children have been properly cared for by the father.
On the other hand, it is possible that at final hearing, the mother’s evidence might be accepted, including her evidence to the effect that there have been occasions when the children have contacted her when they were overseas to express their concern regarding the father’s lack of attention to, and care for, them. It is also possible that the mother’s evidence to the effect that the children have been concerned by the father’s behaviour and manner of speech at times they contend he has been under the influence of alcohol may be proved at a final hearing.
Again, in these interim proceedings, without the assistance of evidence from an expert who has had the opportunity to interview the children and to provide evidence in respect to these matters, it is not possible to determine whether the children have been distressed by the father’s conduct or the extent of any such distress. I respectfully agree with and accept the submission of Senior Counsel for the mother that his client’s concerns, in that regard, are enhanced in circumstances where the children would be in an overseas country, away from her.
Having regard to those considerations, that is, on the one hand, the benefit of the children having a meaningful relationship with the father, as against the potential risk to which I have referred, s 60CC(2A) of the Act requires me to “give greater weight” to the issues of risk as set out in s 60CC(2)(b). In assessing the competing weight of the considerations, I note that, as a result of the orders that I make in these proceedings, it is intended that the potentially detrimental impact on the children’s relationship with the father will be limited to the forthcoming April 2019 school holidays. After that time, the parties will have the benefit of further expert advice, with regards to the best interests of the children, after which further consideration can be given to the matters which are the subject of these proceedings.
Parental responsibility
In this matter, the mother is seeking an order for sole parental responsibility for the children. The father, on the other hand, is seeking an order for equal shared parental responsibility. Section 61DA of the Act provides that, in 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 responsibility”. Sub-section 61DA(3), however, provides that:
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
In this matter, given the uncertainty in respect to the nature of the evidence concerning the parties’ competing contentions of risk, I consider that it is not appropriate to make an order in respect to parental responsibility, at this time. That is a matter that can be further considered when additional evidence, including expert evidence, is to hand.
In circumstances where I do not make an order for parental responsibility, it is unnecessary to consider whether it is appropriate to make orders for the children to spend equal time or substantial and significant time with each parent. I note, however, in that respect, that the father is not seeking an order that the children spend equal time with him. He is, however, seeking an order that the children spend substantial time with him during their school holidays. The orders I make are relevant only to the forthcoming April 2019 school holidays and, once again, it is appropriate that further consideration be given to the amount of time that the children spend with the father in the school holidays when additional evidence is to hand.
Orders
The inability to make findings of fact in the context of these interim proceedings and the limited evidence that is available has resulted in a situation where I am unable to determine the extent of the risk of the children suffering physical and/or psychological harm in the care of the father, should they spend time with him in Country K during the forthcoming April 2019 school holidays. I am, however, satisfied that there is a real possibility that the father’s capacity to care for the children may be adversely impacted by his potentially excessive alcohol consumption.
Taking a cautious approach, as I must do in these interim proceedings, I am not satisfied that it would be in the children’s best interests to make the orders sought by the father. Instead, further steps must be taken to obtain evidence regarding the children’s views and the opinion of an expert. In that context, I propose to make orders 5 and 6, as proposed by the mother.
Pending that additional information becoming available to the parties and the Court, it is my view that the parties should be restrained from removing the children from the Commonwealth of Australia, pending further order or agreement of the parties. In those circumstances, to facilitate the children having a meaningful relationship with the father during that period, it is appropriate for orders to be made providing for the children to spend time with the father, should he travel to Australia. Only the mother has proposed orders providing for that possibility and, in those circumstances, I will make an order in accordance with order 4 as proposed by the mother. In circumstances where I have not been able to determine the extent to which the father may or may not have a problem with alcohol abuse, it is appropriate that, in the event of the father electing to spend time with the children in Australia, he be restrained from consuming alcohol, as proposed in order 7 of the mother’s Response.
Noting the objection by Senior Counsel for the father, I have not made an order compelling the father to undergo random CDT testing. Whether or not that is necessary is a matter that should be subject to the recommendation of the Single Expert who will be engaged to advise the parties and the Court.
Accordingly, having regard to the matters to which I have referred in this decision, I make the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 9 April 2019.
Associate:
Date: 9 April 2019
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