Lake and Lake

FAMILY COURT OF AUSTRALIA

LAKE & LAKE

[2018] FamCA 547

FAMILY LAW – CHILDREN – RISK OF HARM – Where there is a dispute between the mother and father as to the time the children will spend with the father – Where the children are aged eight and 12 – Where both children suffer from mental health disorders – Where the father suffers from a mental health disorder and has a history of substance abuse – Where the parties agree that the father’s time with the children should remain supervised for a period of time – Orders made for the children to spend time with the father in a graduating arrangement commencing with daytime fortnightly time and ending in unsupervised weekends and block periods during school holidays – Where the father’s time with the children is contingent on drug testing results to be conducted over a number of years – Where the mother is able to exercise some discretion as to the extension of the father’s time with the children – Where the father is ordered to attend therapy.

Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(3), 60CG, 60B, 61DA(1), 65DAA, 70NAE
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Lake

RESPONDENT:

Ms Lake

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

SYC

4478

2012

DATE DELIVERED:

14 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

14, 15, 16 and 17 August 2017 and 10, 11, 12 and 13 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O’Ryan QC

SOLICITOR FOR THE APPLICANT:

Broun Abrams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Ede Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER :

Mr Longworth

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER :

Legal Aid NSW

Orders

The mother have sole parental responsibility for the children:
(a) B, born … 2005 (“B”); and
(b) C, born … 2007 (“C”)
(collectively referred to as “the children”).
The mother is to inform the father in a timely manner about decisions she has made which effect a change in any long-term arrangements for the care of the children, including major decisions affecting the children’s health and education.
The children live with the mother.
Whenever these orders provide for the children to spend time with the father he is to be responsible for their day to day care.
From the date of these Orders until the first school term of the 2019 school year and subject to the other orders set out herein, the children spend time with the father as follows:-
(a)       During school terms:-
(i)Every fortnight on an alternating weekend regime commencing on the first weekend of each school term:
1.       On Sunday from 10.00 a.m. to 3.00 p.m. (and every four weeks thereafter);
2.A fortnight later, from 9.00 a.m. Saturday to 6.30 p.m. that day and from 10.00 a.m. until 3.00 p.m. the next day, Sunday (and every four weeks thereafter).
3.The fortnightly regime to continue until the conclusion of the fourth school term in 2018.
(b)       During school holiday time, and subject to any other orders herein:
(i)On each school holiday period, every Monday and Tuesday from 8.00 a.m. to 6.30 p.m.
From the first school term in the 2019 school year, until the commencement of the third school term in the 2019 school year and subject to the other orders set out herein, the children spend the following time with the father:
(a)During school terms, commencing on the first weekend of each school term:
(i)Each alternate weekend on Saturday from 9.00 a.m. to 6.30 p.m. AND on Sunday from 10.00 a.m. until 3.00 p.m.
(b)During school holiday time:
(i)From 9.00 a.m. to 6.30 p.m. on the first and last Saturday of the school holiday period;
(ii)From 9.00 a.m. to 6.30 p.m. on the first and last Sunday of the school holiday period; and
(iii)From 9.00 a.m. to 6.30 p.m. each Wednesday during the school holiday period.
From the third school term in the 2019 school year and until the commencement of the fourth school term in 2019, and subject to the other orders set out herein, the children spend the following time with the father:
(a)During school terms, each alternate weekend commencing on the first weekend of that term and continuing thereafter, from 9.00 a.m. Saturday until 3.00 p.m. Sunday.
(b)During school holiday time:-
(i)During the school holiday period at the end of term three of the 2019 school year:
A.For two periods of three nights (not to run consecutively and not to have less than four nights between each period). Such period of time to commence at 12 noon on the first day and conclude at 12 noon on the fourth day.
B.The two start days are to be nominated by the father to the mother in writing 14 days before the last day of the third school term.
From the fourth school term in 2019 and following, subject to the other orders set out herein, the children spend the following time with the father:
(a)During school terms, each alternate weekend commencing on the first weekend of that term and continuing thereafter, from 5.00 p.m. on Friday (or the conclusion of time if the mother so directs) until 4.00 p.m. on Sunday.
(b)The mother may extend the time stipulated in Order 9(a) to Monday morning if she considers it is in the children’s best interests at that time.
(c)During the school holiday period commencing at the conclusion of the fourth school term in 2019:
(i)For three separate periods of one week (seven consecutive days) commencing at 12 noon on the first day and concluding at 12 noon on the seventh day.
(ii)The mother is to select the start days for the three periods and notify the father in writing no later than the end of the third week of the fourth school term for the 2019 school year.
(d)Thereafter for one half of all school holiday periods as agreed and failing agreement, as selected by the mother.
In addition to the father’s time with the children pursuant to the above orders, the children shall spend time with the father on special occasions as follows (such time to be supervised until such time as the father is no longer exercising supervised time with the children in accordance with these orders):
(a) On the father’s birthday:-
(i)if it falls on a school day, from 3.00 p.m. to 6.30 p.m.;
(ii)if it falls other than on a school day from 10.00 a.m. to 3.00 p.m.;
(b)On Father’s Day from 10.00 a.m. to 3.00 p.m.;
(c)On C’s birthday:
(i)If it falls on a school day from 3.00 p.m. to 6.30 p.m.;
(ii)if it falls other than on school day from 10.00 a.m. to 3.00 p.m.;
(d)On B’s birthday from 10.00 a.m. to 3.00 p.m.;
(e)On Christmas Day or Boxing Day, for six hours to commence at a time agreed between the parents.
(f)During Easter time, for some additional time to be agreed between the parents.
Notwithstanding any other order, the children shall spend the following time with the mother, if not on a day on which the children would otherwise be spending with the mother:
(a)On the mother’s birthday:
(i)if it falls on a school day, from 3.00 p.m. to 6.30 p.m.;
(ii)if it falls other than on a school day from 10.00 a.m. to 3.00 p.m.;
(b) On Mother’s Day from 10.00 a.m. to 3.00 p.m.;
(c)On B’s birthday, C’s birthday, Christmas Day and Easter time, as agreed between the parents.
During the children’s time with the father pursuant to these orders and subject to the provision set out in Order 12 below, the father shall do all acts and things necessary to facilitate the children’s attendance on and participation in extracurricular and sporting events in which they ordinarily participate. The mother is to ensure the father has been provided with sufficient detail and notice of any such activities to enable him to make arrangements to comply with this order.
The time that the father spends with the children on Saturdays as contemplated in these Orders will be subject to the father being able to ensure each child participates in his extracurricular and/or organised sporting event as advised to the father by the mother. Where each child is required to be at a different place for a sporting commitment so that the father cannot himself be present with his supervisor to ensure compliance with the orders, he is to nominate to the mother by email, no later than the Wednesday before the subject Saturday, which of the boys he will be responsible for taking to their sporting commitment and further what arrangements he will make to collect the other child on that day.
The mother may, at her discretion, advance the timing of the father’s full weekend time or overnight time if she considers it is in the best interests of the children AND the father is restrained from enlisting the children to petition the mother to accelerate any such changes in the spend time with arrangement.
The parents may agree in writing to vary any of the orders herein contained.

Failure of the father to spend time with the children as per the orders

In the event of the father failing to spend time with the children because he was unwell or because of some other reason, not being the return of a positive drug test result, then the father’s time with the children pursuant to these orders, is to be reinstated as soon as reasonable after written evidence of repair of his health has been provided by him to the mother, or, in the event the failure to spend time with the children arose from some other circumstance, as soon thereafter as the mother is satisfied that circumstance has appropriately changed.

Changeover

The changeover site for the commencement of the father’s time for the children on each day of the weekend is to be specified by the mother so as to manage the logistics of taking each child to their particular commitment. The changeover at the end of each occasion of time is to be the mother’s residence unless she nominates another site within a 15 minute drive of her residence.
Notice of the mother’s election for the changeover site is to be provided to the father by email or text message in a timely manner.
Wherever changeover of the children is required by these orders, unless otherwise specified:
(a)the mother will deliver the children to the father, in the presence of his supervisor (when supervision is required in accordance with these orders) at the commencement of the time EITHER at a public venue nominated by her (being not more than a 15 minute drive from her residence) OR at her residence at her election, and
(b)the children are to be returned by the father, in the presence of his supervisor, to the mother’s residence at the conclusion of the time OR at a public venue nominated by her (being not more than a 15 minute drive from her residence).
If the paternal grandmother is the supervisor of the father on any occasion then the father does not need to be present at that changeover. Further, when supervision is no longer required the paternal grandmother may be the person who collects the children from the mother at the commencement of the father’s time with them and she may also return them to the mother at the conclusion of any time they have spent with the father. On such occasions it is not a requirement for the father to be present.
The changeover of the children or either of them to or from the father may be undertaken by either of the mother’s parents or another person who the mother nominates in writing to the father. Any such person is to be known to the children and introduced to the father (if the person is unknown to the father) before the first time that person undertakes a changeover of the children.

Removal of the children from the Sydney Metropolitan area

The father is restrained from taking the children to his home in DD Town or out of the Sydney Metropolitan area on the days when his time with the children is restricted to a time period on Sunday from 10.00 a.m. to 3.00 p.m.
When the father commences to exercise overnight time with the children pursuant to these orders he is restrained from housing them outside of the Sydney Metropolitan area until the children have spent six overnight periods with him in that area. Thereafter he may house the children overnight at his residence in DD Town.
Should the father propose to house the children for any overnight period other than at his Suburb Q property, the paternal grandmother’s residence or his Suburb R, DD Town property, he is to notify the mother in writing of his intent to do so no later than four days before the occasion.

Communication between the parents

Other than in the case of emergency or necessity, communication between the parents is to be by email or text message. Each is to ensure that their current mobile phone numbers are provided to the other together with an email address for communication.

Supervision of the father’s time with the children

The father’s time with the children pursuant to these orders, unless otherwise specified herein, is to be supervised at the father’s sole cost by an adult supervisor selected by the father and agreed to by the mother (which supervisor may include the paternal grandmother) (“a supervisor”) and in the absence of agreement, by a paid supervisor from S Group or such other professional supervision service as is agreed between the parties (“a paid supervisor”).
Subject to a provision to the contrary created by these orders, the father’s time with the children will no longer require supervision of overnight time following C attaining the age of 13 years.
As and from the commencement of the fourth school term in the 2019 school year, supervision of the father’s day time with the children will no longer be required PROVIDED that Dr T or the therapist engaged by the father pursuant to Order (49) hereof provides a letter addressed to the mother, which the father is to cause to be provided to her forthwith upon receipt of same, recommending that supervision is no longer necessary as the writer is satisfied the father has developed the skills necessary to ensure he does not draw the children into the parental conflict or expose the children to behaviour or words which might undermine the children’s relationship with the mother.
Whenever the father has the children stay overnight with him, as provided for in these orders, he is to engage the services of a person, skilled in matters of child development and care and who is a person subject to the mandatory reporting provisions of NSW law, to be present and available to the children should they need their assistance. The person so engaged is to be approved by the mother, following the mother meeting with the person, and is to continue to be present on such occasions until the mother provides written notice to the father that the presence of such person is no longer required. The person is to be present between the hours of 5.00 p.m. and 9.00 a.m. the next day, or such lesser time as the mother may agree to in writing.
In the event that there are occasions when the overnight supervisor is not available, the father is permitted to have the paternal grandmother fill in for that role. This is not to be other than an occasional event. There is no restraint against the father having the paternal grandmother present with himself and the children at any time.
The father is to authorise and specifically direct any person who takes on the role of overnight supervisor for the children, as provided for above, to contact the mother forthwith if he/she has any concerns about either child not coping with spending the overnight time with the father or where he/she considers the father’s capacity to care for the children at that time has diminished to a point which requires the children to be returned to the mother.

Drug testing

The father shall submit to urinalysis testing under the following conditions:-
(a)The urinalysis undertaken shall test for opiates, benzodiazepines, cannabis, cocaine, amphetamines, and methamphetamines;
(b)The drug testing shall be by way of chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration and shall be undertaken at a laboratory nominated by the mother;
(c)The drug testing shall meet the Australian/New Zealand Standard 4308/2008 procedure for collection, detection and quantification of drug abuse in urine;
(d)The results shall be provided to the mother no later than 48 hours after receipt by the father;
(e)for a period of 12 months from the date of these orders, the father shall submit to the random urinalysis testing, meeting the requirements of this order, within 24 hours of receiving a request via text message from the mother, with such requests to be made no more than twice each month and providing that if the results are not provided to the mother within 7 days of the request being made, time with the children will be suspended until the results are produced; and
(f)following the expiration of the 12 month period above, and for a further period of two years, the father shall submit to random urinalysis meeting the requirements of this order within 24 hours of receiving a request via text message from the mother, with such requests to be made no more than once every three months with the results of the test to be provided to the mother within seven days, and providing that if the results are not provided to the mother within seven days, time with the children will be suspended until the results are produced.
The father undertake hair follicle testing to test for illicit drugs on dates as follows, with results to be provided to the mother within five weeks of providing the hair sample for the test:
(a)between 1 and 8 July 2018, with a six centimetre segment of hair to be tested;
(b)between 1 and 8 January 2019, with a six centimetre segment of hair to be tested;
(c)between 1 and 8 July 2019, with a six centimetre segment of hair to be tested;
(d)between 1 and 8 January 2020, with a six centimetre segment of hair to be tested;
(e)between 1 and 8 July 2020, with a six centimetre segment of hair to be tested;
(f)between 1 and 8 January 2021, with a six centimetre segment of hair to be tested;
(g)between 1 and 8 July 2021, with a six centimetre segment of hair to be tested;
(h)between 1 and 8 January 2022, with a six centimetre segment of hair to be tested;
(i)between 1 and 8 July 2022, with a six centimetre segment of hair to be tested; and
(j)Between 1 and 8 January 2023, with a six centimetre segment of hair to be tested.

Consequence of failure of father to return clear drug test result or failure to participate in testing when required

In the event the father fails to comply with the drug testing orders set out herein (absent a reasonable excuse for failure to attend which is acceptable to the mother) or returns a result that is positive for illicit drugs for any of the drug tests taken pursuant to these orders (“the breach date”), then:
(a)The father will immediately cease spending time with the children pursuant to the above orders; and
(b)The father will forthwith recommence spending time with the children again as agreed with the mother and, absent agreement, in accordance with Order (6) hereof for such period as is agreed and, absent agreement, for three months from the time he last returned a positive drug test.
(c)The father will immediately recommence drug testing as provided for in Order (31) hereof.
(d)Provided the father requires not more than three months to establish that he is not using drugs (as established by the drug testing), he will then take up the regime of time with the children which he was exercising at the time of the breach, however, he must then continue that regime to make up for the lost time unless the mother otherwise agrees in writing to the contrary.

The father must forthwith provide any service which he engages and/or the mother nominates for the purpose of urinalysis and hair follicle testing with authority to disclose to the mother the dates on which he has undertaken testing and the results of any tests he has undertaken, and that the mother be at liberty to contact the service directly for this purpose.
In the event that the mother considers the children or either of them displays an inability to cope with time as ordered with the father, the mother is to notify the father in writing via SMS and email of her view and what consequence she propose to invoke.

Restraint on language used in presence of the children

The father is restrained from saying anything to or in the presence of the children (or either of them) or encouraging or condoning the children saying anything which is in any way abusive, belittling or demeaning of the mother or her extended family and further is restrained from allowing any other person to say anything to or in the presence of the children (or either of them) which is in anyway abusive, belittling or demeaning of the mother or her extended family.

Administration of medicine by the father to either child

The father is restrained from administering any prescribed medication to either of the children except in accordance with the exact instructions of the prescribing doctor or with the express and written consent or authority of the mother.
In the event of the mother providing medication to the father for provision to either child during the time the child is in the care of the father, then he is to follow the mother’s instructions in providing that medication.

The father’s attendance at sporting and extra-curricular activities of either child when the children are not in his care pursuant to these orders

The father is to notify the mother in writing of his intention to attend any of the children’s sporting or extra-curricular activities which may occur at a time when the children are not in his care pursuant to the orders. Such notice to be given with sufficient time for the mother to be able to inform the children of his proposed attendance.
Should the father fail to attend any such event where he has given notice of his intent to do so then, in the absence of a reasonable excuse accepted by the mother in writing (such acceptance not to be unreasonably withheld), the father is thereafter restrained from any further attendance on such occasions without first obtaining the mother’s consent to same in writing.

The mother’s attendance any sporting or extra-curricular activity of the children while in the father’s care

The mother is permitted to attend any of the children’s sporting and/or extra‑curricular activities they are participating in during any time they are otherwise in the father’s care.

The father’s attendance at school occasions when parents are invited or permitted to attend

The father is permitted to attend at each of the children’s school functions and events where parents are invited to attend or permitted by the school authorities to be present. The father is to obtain notification of any such occasions from each of the children’s schools.

The children’s passports and overseas travel

That:-
(a)pursuant to s 11 of the AustralianPassports Act2005 (Cth) the mother be permitted to do all acts and things and sign all documents necessary to apply for and maintain current Australian passports with respect to the children B born …2005 and C born … 2007; and
(b)pursuant to s 65Y of the Family Law Act 1975 (Cth) the mother be permitted to travel overseas with the children upon providing the father with 21 days’ prior written notice of:
(i)the destination;
(ii)the proposed itinerary; and
(iii)contact details for the children while they are away.
The father be and is hereby restrained from removing the children from the Commonwealth of Australia without the prior written consent of the mother.
In the event of the father seeking to have the children accompany him on any overseas holiday after C attains the age of 13 years, the mother, if she refuses to provide her consent, is to state with particularity in her written response to the father the reasons for such refusal to provide her consent.

The father’s communication with the children

Subject to any other order herein, the father is restrained from communicating directly by text or email with the children for a period of 12 months from the date hereof or such earlier time as the mother may agree in writing.
The father is permitted to send to the mother any text messages or emails he wishes to be provided to the children and the mother is to so provide same unless there is some part thereof which she considers is inappropriate for the children, including information which may put the children in conflict with the mother. Should the mother determine not to provide the email or text message for the children to read she is to forthwith return the message to the father underlining the troublesome words or providing brief explanation for why she will not provide such message or email to the children.

The father’s therapy

The father is to forthwith make an appointment to attend upon Dr T, or any other specialist medical practitioner recommended by Dr E, the father’s psychiatrist, for the purpose of receiving therapy to enable him to be able to interact with the children in a manner which does not draw them into conflict with their mother or into a dispute which the father might have with the mother. The therapy is to continue for a period of 12 months at such regularity as Dr T, or other therapist so engaged, recommends. The father is to authorise Dr T, or another therapist so engaged, to be able to meet with and/or communicate with the mother and, if he considers it necessary, the children, in order to appreciate any particular difficulty which might be addressed with the father for the benefit of the children and their relationship with both parents.

Each parent to provide notice and information to the other in relation to serious injury or illness suffered by the children

In the event of the children suffering serious injury or illness requiring medical treatment the parent in whose care the child is at the time of such occurrence is to forthwith notify the other parent by telephone of the circumstances. Should a child be hospitalised, each parent is to be permitted to visit and spend time with the child subject to the hospital authorities permitting same.
The mother is to notify the father in a timely manner of a details of any appointment any of the children have with specialist medical professionals. She is also to provide him with copies of any reports provided to her from any such specialist medical practitioner.

Each parent’s permission to show these orders and a copy of the Court’s reasons to other persons

The father is permitted to provide a copy of the Court’s orders and a copy of the reasons for judgment giving rise to the orders to Dr T, Dr E and any other therapist or psychiatrist who he engages should any of those persons request to view same.
The mother is permitted to provide a copy of these orders and reasons for judgment to each child’s school, any of the children's medical practitioners, therapists or any other person who the mother determines should know of the content of the orders or judgment for the benefit of either child.
All outstanding applications before the Court are otherwise dismissed and the proceeding are noted as being now concluded in this Court with the exception of any cost issues which may be the subject of application made pursuant to the Act and the Family Law Rules.

NOTATIONS

The Court notes the mother has informed the Court through her legal representatives that she does not intend to have the children change their surnames.

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 Lake & Jaynes 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 4478 of 2012

Mr Lake

Applicant

And

Ms Lake

Respondent

REASONS FOR JUDGMENT

Introduction

This matter sheds light on the lives of two parents who have evidenced heroic commitment to their two children (B now aged 12 and C now 10) and to living life under extraordinarily difficult challenges such that most citizens could not believe. I commence these reasons by paying tribute to them both.
The father has experienced a significant period of drug addiction. He has been fighting the battle to rid himself of that addiction and I am sure his dedication to play a real and significant role in his children’s lives has been a very important motivator in enabling him to reach the point at which he now finds himself. The battle is not over and will be ongoing, possibly for the remainder of his life. In addition, he has undertaken that battle handicapped by a significant, and at times debilitating, psychiatric disorder.
The mother has devoted herself to raising the children, predominantly on her own, where one of those children has extensive medical disorders which have had to be managed in the most trying of circumstances. How she has been able to withstand the strain imposed by the combination of the serious manifestation of those illnesses, together with dealing with the impact of the father’s drug addiction and serious mental health episodes, is beyond my comprehension. She has displayed a dedication to the welfare and development of her children the likes of which I have not seen before. Through all those confronting challenges she has been able to maintain for her children a positive image of their father which has enabled the relationship which they are now enjoying with him. She has also been able to maintain for the children a strong and positive relationship with their paternal grandmother. That relationship has been critical to the children being able to spend time with their father, when he has been well enough, and thereby develop their attachment to and relationship with him. The mother has clearly further allowed the children to live in an emotional environment in her home which has not been negative to the father. In my view, if medals were available for superb mothering, Ms Lake is deserving of one of the highest order.
Further detail of the hardships each parent and their children has faced is set out in these reasons and will inform the opening paragraphs of these reasons.
The children, who are the subject of the orders the Court will make, are indeed very fortunate to have the paternal grandmother in their lives. Having seen and heard her give her oral evidence I was left with a sense of wellbeing for those boys and concluded they were very lucky to have such a wonderful, dedicated grandmother who cared very sincerely for their welfare and happiness and who was intent upon having a relationship with them.
Before progressing further I need to record one aspect of the conduct of this case which has consequences and which is unique to this case.
The hearing commenced on 14 August 2017. The case proceeded for three days. Dr K, the single expert, gave oral evidence for most of 16 August 2017. When the Court reconvened on 17 August 2017 the father was not in attendance. His counsel tendered a letter under the hand of Dr E, the father’s treating psychiatrist. The letter stated as follows:
It is my understanding that [the father] is acutely distressed in the context of yesterday’s Court proceedings. Acute distress on the background of Bipolar Disorder has the potential to destabilise his mood. In the context of such a state of mind, it is expected that his ability to participate in legal proceedings in an optimal manner would inevitably be undermined and there is a risk of further destabilisation in the event that he is compelled to participate.
The matter was adjourned on 17 August 2017. At a later date, when the state of the father’s health was known, the further hearing dates for April 2018 were set.
When the father presented himself for cross-examination in April 2018 he informed the Court that he was uncomfortable talking about the functions of his mind with anyone other than his psychiatrist Dr E. I concluded from the evidence at that time that the father, having listened to the oral evidence of Dr K about, inter alia the state of his psychiatric health and generally her opinions about things he had said to her in conference, had a profound effect upon him such that he was unable to attend Court for the continuation of the trial on the day following Dr K’s oral evidence.
The cross-examination of the father commenced with the mother’s counsel. After a short while the father informed the Court, in words to the following effect, that having to answer questions about the content of Dr K’s evidence was likely to have an adverse impact upon his mental health (my words). Given the impact upon the father of hearing the oral evidence of Dr K in the August 2017, hearing I was very concerned for his wellbeing arising from the hearing process.
I then heard from the parties’ legal representatives and the Independent Children's Lawyer on whether they would oppose a ruling which prevented either the mother or the Independent Children's Lawyer from “incorporating into any question or proposition put to the father part of the reports provided by Dr K”. Having heard submission I made such a ruling. I did so as, in my view, it should be no part of the function of the Court to allow the conduct of a proceeding to actively cause or contribute to a rapid deterioration of a participating party’s mental health. Such a ruling does have consequences for the conduct of the father’s case.
The effect of the ruling was to spare the father having his mental health adversely affected AND, consequently, because of the denial of the right of cross-examination on a relevant and important aspect of the evidence of Dr K, to also require greater weight to be applied to such evidence. I record here, however, that I found Dr K a compelling witness and I did not doubt her conclusions and recommendations.
Dr K was cross-examined rigorously by the father’s counsel, in particular about the reason for her change of recommendation between that stated in her January 2017 report and that given in oral evidence on 16 August 2017. She was further cross-examined by the father’s counsel about the recommendation contained in a document marked as Exhibit ICL12, which set out the agreed evidence of Dr K. Notwithstanding that cross‑examination, I maintain with clear confidence that the evidence she gave was soundly based and well-reasoned. To the extent I might depart from her recommendations I will state the reason why later in the body of these reasons.
As a result of the adjournment on 17 August 2017, interim parenting orders were made on that day and further interim parenting orders were made on 7 September 2017. The orders of 17 August 2017 effectively suspended the operative parenting orders dated 16 November 2015 and made alternate orders which were to operate until 7 September 2017. On 7 September 2017 the earlier operative parenting orders were reinstated and then added to.
The parenting orders made 16 November 2015 provided, inter alia, as follows:
1.The Wife have sole parental responsibility for the Children in relation to issues pertaining to health and medical care.
2.That the children of the marriage, being [B] (“[B]”), born … 2005 and [C] (“[C]”), born … 2007 live with the Wife.
3.The Children spend time with the Father supervised by a supervisor from [S Group] or [U Group] (“the supervisor”), at the sole cost of the Father, as follows and subject to paragraphs 5 and 7:-
a.Each alternate Monday from the conclusion of school until 6.30pm;
b.Each alternate Sunday from 9.00am until 1.00pm;
c.On [B’s] birthday, being … each year from 3.30pm – 6.30pm;
d.On [C’s] birthday, being …, from the conclusion of school (or 3.30pm if it does not fall on a school day) until 6.30pm
e.On Father’s Day from 9.00am until 4.00pm

4.In addition to the time spent in paragraph 3 above, the Father be at liberty to spend time with the children by attending their team sporting activities as and when they occur (presently occurring on Saturdays and Thursdays), while the children are in the Wife’s care.
5.That during school holiday periods and upon giving the Father not less than two weeks’ notice, the Wife may notify the Father of her intention to spend block holiday time with the children for up to one half of each school holiday period and the Father’s time with the children is suspended during such period.
6.That in the event that the Wife suspends the children’s time with the Father pursuant to the preceding order, the children shall spend make-up time with the Father during the school holiday periods, at such times as are agreed between the parties.
7.In the event that the children’s time with the Father pursuant to paragraph 3(b) falls on Mother’s Day, that time is suspended and shall occur instead on the Saturday immediately prior to Mother’s Day.

8.That, in the event that the Father’s mother is available to supervise the Father’s time with the Children, the children shall spend additional time with the Father as follows:-
a.Each Monday during school term from the conclusion of school until 6.00pm;
b.Each alternate Saturday (such time to occur on the same weekend as paragraph 3(b) above) from a time agreed between the parties and failing agreement, from 9.00am until 6.00pm;
c.On Christmas Day from 9.00am until 3.00pm.

It is lamentable that with the quality of representation each parent had engaged for the hearing, there was no agreement on any of the orders which are required to be made in the parenting case. The parties were able to reach agreement about all aspects of the property and financial dispute.
The inability of parents to be able to provide a minute of consent order which identifies any common ground does not present a positive example of how they might be able to reach agreements in the future where such agreements are necessary to promote the best interests of their children. Further speculation as to why that circumstance came about is irrelevant and unhelpful in the determination of this matter. I do note that some of the orders each sought were to the same end without actually being able to put forward an acceptable form of the proposed order.
A consequence of the parties being unable to reach an agreement about the parenting orders to be made is that the Court is required to deliver reasons for the making of its orders. In so doing, in a case where a party has a history of psychiatric instability or illness, the reasons may well have a destabilising effect upon that health. It is an unfortunate aspect of litigation in this court that in order to discourage any appeal by the dissatisfied party (or parties) it is necessary to ensure that all stated reasons are clear and deliberations and conclusions leading to the outcome can be seen to be absolutely apparent.
In this hearing, the Court was made aware of the adverse impact upon the father’s health of his participation in the hearing. Regrettably, I consider that the conclusions I have to make in this decision will be upsetting for the father. I can only apologise for any distress he may suffer and recommend that he perhaps read these reasons at a time when he is otherwise scheduled to meet with Dr E, his psychiatrist.

The issues

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In this matter there is little dispute about relevant fact or history. The disputes between the parties largely revolve around the type of order which should be made. At the core of the dispute is the following:
·The duration and frequency of time the father should spend with the children and how such time should progress;
·Where the father should exercise his time (Sydney or Suburb R, DD Town);
·The nature of and duration of any form of supervision which should be in place during the time the father spends with the children;
·The type of drug testing and the frequency, duration and nomination of same;
·The consequences of the father failing to exercise his time with the children;
·The consequences of the father producing positive drug test results;
·Whether the father may take the children out of Australia.
As will be seen later in these reasons there are sub-issues within the broad descriptions above set out.
In the determination of this parenting case I will be considering the medical evidence relating to the father and the children, together with the evidence of the type of care the mother has provided to the children whilst they have exhibited manifestations of their medical conditions. I consider that such evidence, guided by the expert evidence of Dr K, will be important in determining how to frame the orders which will be in the best interests of the children. I will also be considering the relevant provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

Father’s minute of parenting orders

The father presented a minute of order during the last portion of the hearing time allocated to the case. The minute was marked as Exhibit H8. I here set out the orders he sought:
1.That the Mother have sole parental responsibility for decisions pertaining to the long term care, welfare and development of the children:-
1.1.      [B], born … 2005 ("[B]"); and
1.2.     [C], born … 2007 ("[C]")
(collectively referred to as "the children").
The Mother is to keep the Father informed in a timely manner as to all matters relating to long term decisions about the children.
2. That each party have sole responsibility for the day to day care of the children when they are in his or her care respectively.
3.        That the children live with the Mother.
4. That the children spend time with the Father as agreed between the parties and failing agreement, as follows:-
4.1.     During school terms:
4.1.1.Each alternate weekend, from 10am until 6pm on Saturday until the commencement of the third school term in July 2018.
4.1.2.From the commencement of the third school term in July 2018, each alternate weekend from the conclusion of school on Friday until 6pm on Sunday.
4.1.3.From the commencement of the first school term in 2019, each alternate weekend from after school Friday until the commencement of school on Monday, or Tuesday if a long weekend.
4.2.     During school holidays:
4.2.1.For the June/July 2018 and September/October 2018 school holidays, from 10am on the first Monday of the holiday period until 6pm on the following Wednesday and from 10am on the second Monday of the school holiday period until 6pm on the following Wednesday.
4.2.2.For the December 2018/January 2019 school holidays, for each alternate week.
4.2.3.From the commencement of the April 2019 school holidays and thereafter, for one half of each school holiday period, as agreed between the parties, and failing agreement, for the first half of each school holiday period in even numbered years and for the second half of each school holiday period in odd numbered years.
5.The children's time with the father pursuant to Order 4 be supervised by the Father’s mother or at the Father’s cost, a nanny or such other paid supervision service between the hours of 8pm until 8am on all nights that the children are in his care.
6.The supervision provided for in Order 5 shall cease as and from 1 January 2020, or other earlier time as agreed between the parties.
7.        For the purposes of these Orders, school holidays are defined:-
7.1.to commence at the conclusion of the last day on which students are required to attend school, according to the calendar published by the school at which [C] attends; and
7.2.to conclude at the commencement of the first day on which students are required to attend school, according to the calendar published by the school at which [C] attends.
8.Each party shall make the children available for telephone communication with the other party.
9.Notwithstanding any other provision contained in these Orders, the children shall spend time with the Father as follows:
9.1.On Father’s Day, if not on a day on which the children would otherwise be spending time with the Father, from 10am to 6pm.
9.2.On Christmas Eve, 24 December, from 9am to 12 noon on Christmas Day, 25 December.
9.3.On the children’s birthdays, if not a day on which the children would otherwise be spending time with the Father:
9.3.1. from after school until 7pm, if a school day; and
9.3.2. from 10am to 3pm, if not a school day.
9.4.On the Father’s birthday, if not a day on which the children would otherwise be spending time with the Father:
9.4.1. from after school until 7pm, if a school day; and
9.4.2. from 10am to 3pm, if not a school day.
9.5.In the event that Easter does not fall within the school holidays, from 5pm on Easter Thursday until 7pm on Easter Saturday.
10.Notwithstanding any other provision contained in these Orders, the children shall spend time with the Mother as follows:
10.1.On Mother's Day, if not a day on which the children would otherwise be spending time with the Mother, from 10am to 6pm.
10.2.On Christmas Day, from 12 noon until 6pm on Boxing Day.
10.3.On the children’s birthdays, if not a day on which the children would otherwise be spending time with the Mother:
10.3.1. from after school until 7pm, if a school day; and
10.3.2. from 10am to 3pm, if not a school day.
10.4.On the Mother’s birthday, if not a day on which the children would otherwise be spending time with the Mother:
10.4.1. from after school until 7pm, if a school day; and
10.4.2. from 10am to 3pm, if not a school day.
10.5.In the event that Easter does not fall within the school holidays, from 7pm on Easter Saturday.
11.That the Father be permitted to attend the children's weekly sporting events and school events to which parents are invited. The Mother is to provide the Father, in advance, with details of the time and location of all sporting, drama and extra-curricular activities of the children.
12.During the children's time with him pursuant to the these Orders, the Father shall do all acts and things necessary to facilitate the children's attendance on and participation in extracurricular and sporting events in which they ordinarily participate.
13.The children spend time with the Father as set out in all Orders above subject to:
13.1.the Father's compliance with Orders 14, 15 and 16 (absent a reasonable excuse for failure to attend for testing); and
13.2.   all drug test results being negative for illicit drugs.
14.The Father shall submit to urinalysis testing under the following conditions:-
14.1.The urinalysis undertaken shall test for opiates, cannabis, cocaine, amphetamines, and methamphetamines;
14.2.The drug testing shall be by way of chain of custody urine drug screens with samples supplied in a supervised environment;
14.3.The drug testing shall meet the Australian/New Zealand Standard 4308/2008 procedure for collection, detection and quantification of drug abuse in urine;
14.4.The results shall be provided to the Mother no later than 48 hours after receipt by the Father; and
14.5.For a period of 12 months from the date of these Orders, the Father shall submit to the random urinalysis testing, meeting the requirements of Orders 14.1 - 14.4 hereof, within 48 hours of receiving a request from [Dr E], with such requests to be made no more than once every three months.
15.In the event the Father fails to comply with Orders 14, (absent a reasonable excuse for failure to attend) or returns a result that is positive for illicit drugs other than as a result of taking medication in accordance with a prescription for any of the drug tests taken pursuant to these Orders, the children’s time with the Father pursuant to these Orders is to be supervised by the Father’s mother or, at the Father’s cost, a nanny, or other paid supervision service for a period of three months provided he returns three negative urinalysis tests.
16.That the Father and the Mother be restrained from denigrating or criticising the other parent and/or members of their respective extended family to and/or in the presence of and/or within the hearing of the children.
17.That, pursuant to s.11 of the Passports Act, the mother be permitted to do all acts and things and sign all documents necessary to apply for and maintain current Australian passports with respect to the children, [B] born … 2005 and [C] born … 2007.
18.That the Mother do all acts and things and sign all documents necessary to ensure that a current passport (being a passport which will not expire within 6 months) is maintained for each of the children.
19.That the Mother have leave to travel with the children outside of the Commonwealth of Australia during any period the children would otherwise be living/spending time with her or as otherwise agreed between the parties in writing provided such travel does not require the children to be absent from school.
20.As and from 1 January 2019, that the Father have leave to travel with the children outside of the Commonwealth of Australia during any period the children would otherwise be living/spending time with him or as otherwise agreed between the parties in writing provided such travel does not require the children to be absent from school.
21.That in the event either party proposes to travel outside the Commonwealth of Australia with the children, then not later than 42 days prior to the proposed departure from the Commonwealth of Australia, they provide to the other party:
21.1.an itinerary disclosing all means of transport and all places of accommodation of the children during the period of their travel;
21.2.   copies of any air flight tickets; and
21.3.details of an appropriate telephone number on which the children can be contacted at all times.
22.That 21 days prior to any travel pursuant to Order 23, the Mother provide to the Father the children’s passports and the Father will return the children’s passports to the Mother within 7 days of their return to Australia.
23.That the Father and the Mother shall keep each other informed of their residential address, email address and contact telephone numbers, including landline telephone numbers and mobile telephone numbers and changes to the same, within 48 hours and these telephone numbers are only to be used for telephone communication with the children or otherwise in relation to matters concerning the children.
24.That the Father and the Mother notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the children when the children are in their respective care as soon as practicable and in any event within 12 hours, and together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that has provided any medical treatment for the children.
25.That the Father will undertake therapy with Dr T or such other professional as recommended by [Dr E].
26.That each party will provide the contact details of the other party as the parents and the primary contacts when completing any enrolments and/or providing contact details to school, sporting groups or other organisations in respect of the children’s activities.
27.That each party provide to the other party the names, addresses and telephone numbers of all medical or other allied health professionals who may treat the children and will provide such medical or other allied health professionals with the name and contact details of the other parent.
28.That each party advise the other party in advance in writing of any appointments made by either of them for the children to see any medical or other allied health professionals other than a General Practitioner.
29.That if one party takes the children or either of them to any health professionals including a GP that he or she provide a copy of any written report, treatment plans and prescriptions to the other party.

Mother’s minute of parenting orders sought

The mother provided her minute of order as amended on 9 April 2018. The document was marked as Exhibit W4. She sought the following order:
1.        That the Wife have sole parental responsibility for the children:-
1.1.     [B], born … 2005 (“B”); and
1.2.     [C], born … 2007 (“[C]”)
(collectively referred to as “the children”).
2.        That the children live with the Wife.
3.For the first 12 months following the date of these orders, the children spend time with the Husband as agreed and in the absence of agreement as follows:-
3.1.     During school terms:-
3.1.1.commencing on the first weekend of each school term and every third weekend thereafter, as follows:-
3.1.1.1.         From 9.00am to 6.30pm on Saturday; and
3.1.1.2.         From 9.00am to 1.00pm on Sunday; and
3.2.Subject to order 11, during each school holiday period each Monday and Tuesday from 8.00am to 6.30pm.
4.The children’s time with the Husband pursuant to Orders 3 and 6 (and, in the event it arises, Order 16) be supervised at the Husband’s sole cost by an adult supervisor agreed between the parties (which supervisor may include the paternal grandmother) (“a supervisor”) and in the absence of agreement, by a paid supervisor from [S Group] or such other paid supervision service as is agreed between the parties (“a paid supervisor”).
5.Subject always to the Husband utilising not less than 75% of the time available for the children to spend time with him pursuant to these Orders, (such calculation to be made over the first year after these Orders are made, and each year thereafter), then from the first anniversary of the date of these Orders (“the anniversary”), the children spend time with the Husband as agreed between the parties and absent agreement as follows:-
5.1.For a period of at least one complete school term following the anniversary on the first weekend of school term and every third weekend thereafter, as follows:-
5.1.1. From 9.00am to 6.30pm on Saturday, unsupervised; and
5.1.2. From 9.00am to 1.00pm on Sunday, unsupervised;
5.2.     Subject to order 8 and, where applicable, Order 11:-
5.2.1.For the first school holiday period following the anniversary, each Monday from 8.00am to 6.30pm the following day (Tuesday), unsupervised;
5.2.2.For the second school holiday period following the anniversary, each Monday from 8.00am to 6.30pm the following Wednesday, unsupervised;
5.2.3.For the third school holiday period following the anniversary, during the first week, and, if applicable, the third week of the school holiday period, from 8.00am on Monday to 6.30pm the following Friday, unsupervised;
5.2.4.From the fourth school holiday period following the anniversary, and each school holiday period thereafter, during the first week and, if applicable, the third week of the school holiday period from 8.00am on Monday to 6.30pm the following Saturday, unsupervised.
5.3.Subject to order 8, commencing from the first weekend of the new school term following the school holidays referred to in Order 5.2.1, and thereafter during school terms, every third weekend from 9.00am on Saturday to 1.00pm on Sunday, unsupervised.
6.That in addition to the children’s time with the Husband pursuant to orders 3 and 5, the children shall spend time with the Husband on special occasions as follows:-
6.1.     On the Father’s birthday:-
6.1.1.if it falls on a school day from 3.00pm to 6.30pm, such time to be supervised until the occurrence of the anniversary, and thereafter to be unsupervised;
6.1.2.if it falls other than on a school day from 10.00am to 3.00pm, such time to be supervised until the occurrence of the anniversary, and thereafter to be unsupervised;
6.2.on Father’s Day from 10.00am to 3.00pm, such time to be supervised until the occurrence of the anniversary, and thereafter to be unsupervised;
6.3.     On C’s birthday:-
6.3.1.If it falls on a school day from 3.00pm to 6.30pm, such time to be supervised until the occurrence of the anniversary, and thereafter to be unsupervised;
6.3.2.if it falls other than on school day from 10.00am to 3.00pm, such time to be supervised until the occurrence of the anniversary, and thereafter to be unsupervised;
6.4.On [B’s] birthday from 10.00am to 3.00pm, such time to be supervised until the occurrence of the anniversary, and thereafter to be unsupervised;
6.5.On Christmas Day from 10.00am to 3.00pm, such time to be supervised until the occurrence of the anniversary, and thereafter to be unsupervised;
6.6.     At such other times as may be agreed between the parties.
7.        For the purposes of Orders 3 and 5 school holidays are defined:-
7.1.To commence at the conclusion of the last day on which students are required to attend school, according to the calendar published by the school at which [C] attends;
7.2.To conclude at the commencement of the first day on which students are required to attend school, according to the calendar published by the school at which [C] attends; and
7.3.     Are defined by the year in which they commence.
8.For the purposes of all overnight periods pursuant to Orders 5.2 and 5.3 (as well as Order 18, if it arises), the Husband:-
8.1.will, at his sole cost, have a paid nanny (who, prior to the Husband hiring, the Wife has met and approved for that role, which approval has not subsequently been withdrawn) in attendance with the children at all times from 8.00pm until 8.00am; and
8.2.will not have the children outside the Sydney Metropolitan Area overnight without the prior written consent of the Wife;
8.3.will only hire a nanny for the role after having done all things reasonably necessary to arrange for the Wife to have met the candidate/s he considers appropriate and having obtained the Wife’s consent, not to be unreasonably withheld, prior to hiring that candidate;
8.4.     will and does hereby irrevocably authorise the nanny to:-
8.4.1.provide and maintain as current his/her contact details to the Wife; and
8.4.2.receive and maintain as current the Wife’s contact details; and
8.4.3.communicate with the Wife about any concerns the nanny may have about:-
8.4.3.1.the children’s capacity to cope while in the Husband’s care; and
8.4.3.2.the Husband’s capacity to care for the children and meet their needs, including for overnight periods.
9.For not more than two nominated periods each calendar year, the children’s time with the Husband during school holiday periods pursuant to Orders 3 and 5 shall be suspended upon the Wife giving the Husband one week’s notice of her intention to holiday outside of Sydney with the children. In that event, at the time of giving notice to the Husband, the Wife shall nominate other day/s for the children to spend time with the Husband during that holiday period, equivalent to the time missed.
10.During the children’s time with him pursuant to the above orders, the Husband shall do all acts and things necessary to facilitate the children’s attendance on and participation in extra curricular and sporting events in which they ordinarily participate.
11.Notwithstanding anything to the contrary in these orders, the children shall live with the Wife during the following times:-
11.1.For the final 3 weeks of the Christmas school holidays each year; and
11.2.   From 10.00am to 3.00pm on Mother’s Day.
12.For the purposes of all time between the Husband and the children, and unless otherwise agreed between the parties, the Husband or his nominee shall collect the children from and return the children to the Wife’s residence (which at the time of these Orders being made is [V Street, Suburb W], and which will otherwise be advised by the Wife in writing) at the commencement and conclusion of the children’s time with him.
13.The children’s time spent with the Husband as set out in all orders above is subject at all times to:
13.1.the Husband’s compliance with orders 14 and 15 (absent a reasonable excuse for failure to attend for testing as agreed to by the Wife); and
13.2.   all drug test results being negative for illicit drugs.
14.The Husband shall submit to urinalysis testing under the following conditions:-
14.1.The urinalysis undertaken shall test for opiates, benzodiazepines, cannabis, cocaine, amphetamines, and methamphetamines;
14.2.The drug testing shall be by way of chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration and shall be undertaken at a laboratory nominated by the Wife;
14.3.The drug testing shall meet the Australian/New Zealand Standard 4308/2008 procedure for collection, detection and quantification of drug abuse in urine;
14.4.The results shall be provided to the Wife no later than 48 hours after receipt by the Husband;
14.5.for a period of 12 months from the date of these orders, the Husband shall submit to the random urinalysis testing, meeting the requirements of Orders 14.1 – 14.4 hereof, within 24 hours of receiving a request via text message from the Wife, with such requests to be made no more than twice a month and providing that if the results are not provided to the Wife within 7 days of the request being made, time with the children will be suspended until the results are produced; and
14.6.following the expiration of the 12 month period above, and for a further period of two years, the Husband shall submit to random urinalysis meeting the requirements of Orders 14.1-14.4 hereof, within 24 hours of receiving a request via text message from the Wife, with such requests to be made no more than once every three months with the results of the test to be provided to the Wife within 7 days, and providing that if the results are not provided to the Wife within 7 days, time with the children will be suspended until the results are produced.
15.The Husband undertake hair follicle testing to test for illicit drugs on dates as follows, with results to be provided to the Wife within five weeks of providing the hair sample for the test:
15.1.between 1 and 8 July 2018, with a 6 cm segment of hair to be tested;
15.2.between 1 and 8 January 2019, with a 6 cm segment of hair to be tested;
15.3.between 1 and 8 July 2019, with a 6 cm segment of hair to be tested;
15.4.between 1 and 8 January 2020, with a 6 cm segment of hair to be tested;
15.5.between 1 and 8 July 2020, with a 6 cm segment of hair to be tested;
15.6.between 1 and 8 January 2021, with a 6 cm segment of hair to be tested;
15.7.between 1 and 8 July 2021, with a 6 cm segment of hair to be tested;
15.8.between 1 and 8 January 2022, with a 6 cm segment of hair to be tested;
15.9.between 1 and 8 July 2022, with a 6 cm segment of hair to be tested; and
15.10.Between 1 and 8 January 2023, with a 6cm segment of hair to be tested.
16.In the event the Husband fails to comply with Orders 13 and 14 (absent a reasonable excuse for failure to attend as agreed to by the Wife) or returns a result that is positive for illicit drugs for any of the drug tests taken pursuant to these Orders (“the breach date”), the Husband will immediately cease spending time with the children pursuant to the above orders and will spend time with the children as agreed with the Wife and absent agreement in accordance with Orders 3 and 4, for such period as is agreed and absent agreement for 12 months following the breach date.
17.On and from 6 months after the breach date, and with a view to re-establishing unsupervised time with the children, the Husband shall:-
17.1. Again submit to urinalysis testing under the following conditions:-
17.1.1.The urinalysis undertaken shall test for opiates, benzodiazepines, cannabis, cocaine, amphetamines, and methamphetamines;
17.1.2.The drug testing shall be by way of chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration and shall be undertaken at a laboratory nominated by the Wife;
17.1.3.The drug testing shall meet the Australian/New Zealand Standard 4308/2008 procedure for collection, detection and quantification of drug abuse in urine;
17.1.4.The results shall be provided to the Wife no later than 48 hours after receipt by the Husband;
17.1.4.1.for a period of 12 months, the Husband shall submit to the random urinalysis testing meeting the requirements of Orders 17.1.1 – 17.1.4 hereof within 24 hours of receiving a request via text message from the Wife, with such requests to be made no more than twice a month and providing that if the results are not provided to the Wife within 7 days of the request being made, time with the children will be suspended until the results are produced; and
17.1.4.2.thereafter and for a further period of 2 years, the Husband shall submit to random urinalysis meeting the requirements of Orders 17.1.1-17.1.4 hereof, within 24 hours of receiving a request via text message from the Wife, with such requests to be made no more than once every three months with the results of the test to be provided to the Wife within 7 days, and providing that if the results are not provided to the Wife within 7 days, time with the children will be suspended until the results are produced;
17.2.again undertake hair follicle testing to test for illicit drugs on dates as follows, with results to be provided to the Wife within five weeks of providing the hair sample for the test:
17.2.1.between the first and the eighth day of the calendar month six months after the breach date, with a 6 cm segment of hair to be tested;
17.2.2.between the first and the eighth day of the calendar month twelve months after the breach date, with a 6 cm segment of hair to be tested;
17.2.3.between the first and the eighth day of the calendar month 18 months after the breach date, with a 6 cm segment of hair to be tested;
17.2.4.between the first and the eighth day of the calendar month 24 months after the breach date, with a 6 cm segment of hair to be tested;
17.2.5.between the first and the eighth day of the calendar month 30 months after the breach date, with a 6 cm segment of hair to be tested;
17.2.6.between the first and the eighth day of the calendar month 36 months after the breach date, with a 6 cm segment of hair to be tested;
17.2.7.between the first and the eighth day of the calendar month 42 months after the breach date, with a 6 cm segment of hair to be tested;
17.2.8.between the first and the eighth day of the calendar month 48 months after the breach date, with a 6 cm segment of hair to be tested;
17.2.9.between the first and the eighth day of the calendar month 54 months after the breach date, with a 6 cm segment of hair to be tested;
17.2.10. between the first and the eighth day of the calendar month 60 months after the breach date, with a 6 cm segment of hair to be tested;
18.      Subject to:-
18.1.   the Husband’s compliance with orders 17 hereof; and
18.2.the Husband utilising not less than 75% of the time available for the children to spend time with him pursuant to these Orders (such calculation to be made over the first year after the breach date, and each year thereafter) then from the first anniversary of the breach date (“the breach anniversary”), the children shall spend time with the Husband as agreed between the parties and in the absence of agreement as follows:-
18.2.1. During school terms:-
18.2.1.1.commencing on the first weekend of the new school term that commences after the breach anniversary (“the next term”), and every third weekend thereafter, as follows:-
18.2.1.1.1.From 9.00am to 6.30pm on Saturday, unsupervised; and
18.2.1.1.2.From 9.00am to 1.00pm on Sunday, unsupervised;
18.2.2.Subject to Order 8, commencing on the first weekend of the term following the next term and every third weekend thereafter from 9.00am on Saturday to 1.00pm on Sunday;
18.2.3.subject to Orders 8 and 11, during each school holiday period commencing from the holidays following the next term from 9.00am each Monday to 6.30pm on the following Tuesday.
19.The Husband is hereby restrained from consuming illicit substances at all times.
20.The Husband must forthwith provide any service that he engages and/or the Wife nominates for the purpose of urinalysis and hair follicle testing with authority to disclose to the Wife the dates on which he has undertaken testing and the results of any tests he has undertaken, and that the Wife be at liberty to contact the service directly for this purpose.
21.In the event that the Wife considers the children or either of them displays an inability to cope with time as ordered with the Husband, the Wife may notify the Husband in writing and suspend all or part of the children’s time with the Husband. The Wife is permitted to provide written notice to the Husband including via sms and email.
22.The Husband is restrained from saying anything to or in the presence of the children (or either of them) or encouraging or condoning the children saying anything which is in any way abusive, belittling or demeaning of the Wife or her extended family and further is restrained from allowing any other person to say anything to or in the presence of the children (or either of them) which is in anyway abusive, belittling or demeaning of the Wife or her extended family.
23.The Husband is restrained from administering any prescribed medication to either of the children except in accordance with the exact instructions of the prescribing doctor or with the express and written consent of the mother.
24.      That:-
24.1.pursuant to s.11 of the Passports Act the mother be permitted to do all acts and things and sign all documents necessary to apply for and maintain current Australian passports with respect to the children, [B] born … 2005 and [C], born … 2007; and
24.2.pursuant to s65Y of the Family Law Act the mother be permitted to travel overseas with the children upon providing the Husband with 21 days’ prior written notice of:-
24.2.1. the destination;
24.2.2. the proposed itinerary; and
24.2.3. contact details for the children while they are away, and
24.3.The Father be and is hereby restrained from removing the children from the Commonwealth of Australia without the prior written consent of the Wife.

Minute of Order proposed by the Independent Children's Lawyer

The Independent Children's Lawyer set out the minute of order that they sought, which became Exhibit ICL14:
1.        The following definitions apply:
(a)      “father” means [Mr Lake] born … 1977
(b)      “mother” means [Mr Lake] born … 1977
(c)      “[B]” means [B] born … 2005
(d)      “[C]” means [C] born … 2007
(e)      “children” means [B] and [C].
2.        The mother have sole parental responsibility for the children subject to:
a)The mother shall keep the father informed of major decisions affecting the children’s health and education.
b)The mother undertaking to not change the children’s names which the Court notes the mother has given.
3.        The children live with the mother.
4.That the children shall spend time with the father in a regular pattern in 3 distinct phases as set out in Orders 5, 6 and 7 herein.
Phase 1
5.Subject to paragraphs [11-13] and for a period of 6 months from the date of these Orders, the children shall spend time with the father as follows:
a.        on both days of alternate weekends:
i.         Saturdays from 9AM to 6PM.
ii.        Sundays from 9AM to 3PM.
b.on Father’s Day (should it not be a day pursuant to (a)) from 9AM to 3PM.
c.in the event either child has a sporting commitment or other activity in Sydney then the father shall facilitate the child participating in that activity.
d.        the time on the Sundays shall take place in Sydney.
e.the time events are to be supervised by either the paternal grandmother or a professional supervisor (for which a report is produced and provided to the mother) provided there is at least 1 time event each month professionally supervised.
Phase 2
6.Subject to paragraphs [11-13] and until the conclusion of the school holidays preceding the 4th school term in 2020 (which the Court notes is expected to be about 24 months after the conclusion of Phase 1), the children shall spend time with the father as follows:
a)        On alternate weekends from Saturday 9AM to Sunday 3PM.
b)In the event either child has a sporting commitment or other activity in Sydney then the father shall facilitate the child participating in that activity.
c)        That:
i.Until 5PM on the Saturday and after 9AM on the Sunday, the time event be supervised by either the paternal grandmother or a professional supervisor.
ii.There be a professional and appropriately qualified ‘nanny’ in residence from 5PM to 9AM (ie the overnight component). In this respect the paternal grandmother may also stay overnight but not in place of the ‘nanny’.
d)       In relation to the ‘nanny’:
i.The ‘nanny’ shall have the following minimum qualifications:
A.       they have a current Working with Children Check.
B.they have a form of ‘child care’ qualification enabling them to ‘coach’ the father in necessary skills and be aware of the children’s developmental needs.
C.they are willing and able to administer medication to the children.
ii.Before hiring a ‘nanny’, the father shall do all things reasonably necessary to arrange for the mother to have met any candidate he considers appropriate and to obtain the mother’s consent, not to be unreasonably withheld, prior to hiring that candidate;
iii.The father shall irrevocably authorise the ‘nanny’ to communicate with the mother after each time event he or she is present for and in particular to report to the mother as to:
A.how the children managed and experienced the time event;
B.how the father managed and experienced the time event;
C.if he or she has any concerns or recommendations regarding the time event(s).
Phase 3
7.Subject to paragraphs [11-13] and from the commencement of the 4th school term in 2020 (which the Court Notes follows on from the end of Phase 2), the children shall spend time with the father during school term as follows:
a.On alternate weekends from Saturday 9AM to Sunday 3PM, unsupervised.
b.In the event either child has a sporting commitment or other activity in Sydney then the father shall facilitate the child participating in that activity.
c.That on the Saturday evening, the father shall assist and facilitate the children speaking to the mother by telephone.
8.That for not more than 2 nominated periods each calendar year, the children’s time with the father during school holiday periods pursuant to Orders [5-7] shall be suspended upon the mother giving the father 2 week’s notice of her intention to holiday outside of Sydney with the children. In that event, at the time of giving notice to the father, the mother shall nominate other day/s for the children to spend time with the father during that holiday period, equivalent to the time missed.
Drug testing
9.The father shall submit to urinalysis testing under the following conditions:-
a.The urinalysis undertaken shall test for opiates, benzodiazepines, cannabis, cocaine, amphetamines, and methamphetamines;
b.The urinalysis testing shall be by way of chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration;
c.The urinalysis testing shall meet the Australian/New Zealand Standard 4308/2008 procedure for collection, detection and quantification of drug abuse in urine;
d.for a period of 12 months from the date of these orders, the father shall submit to the random urinalysis testing, meeting the requirements of (a)-(c) hereof, within 24 hours of receiving a request via text message from Dr E, with such requests to be made no more than once a month; and
e.following the expiration of the 12 month period above, and until the end of the 4th school term in 2021, the father shall submit to random urinalysis meeting the requirements of (a)-(c) hereof, within 24 hours of receiving a request via text message from Dr E, with such requests to be made no more than once every 3 months.
f.         the father shall irrevocably authorise and instruct Dr E to:
i.undertake the role of requesting he submit to random urinalysis tests;
ii.advise the mother immediately upon he requesting the father undergo a random urinalysis test; and
iii.provide to the mother immediately upon receipt, a copy of any urinalysis test results received pursuant to this Order.
10.The father undertake hair follicle testing to test for illicit drugs (including at least opiates, benzodiazepines, cannabis, cocaine, amphetamines, and methamphetamines) on dates as follows, with results to be provided to the mother and to Dr E within 5 weeks of providing the hair sample for the test:
a.between 1 and 8 July 2018, with a 6 cm segment of head hair to be tested;
b.between 1 and 8 January 2019, with a 6 cm segment of head hair to be tested;
c.between 1 and 8 July 2019, with a 6 cm segment of head hair to be tested;
d.between 1 and 8 January 2020, with a 6 cm segment of head hair to be tested;
e.between 1 and 8 July 2020, with a 6 cm segment of head hair to be tested;
f.between 1 and 8 January 2021, with a 6 cm segment of head hair to be tested;
g.between 1 and 8 July 2021, with a 6 cm segment of head hair to be tested;
h.between 1 and 8 January 2022, with a 6 cm segment of head hair to be tested;
11.That in the event the mother has not received a copy of any test results pursuant to Orders [9] or [10] herein within 7 days of a urinalysis test or within 5 weeks of a hair follicle test, then the mother shall be at liberty to suspend any time events between the children and the father pending receipt of the said results.
12.That the father will be deemed to have failed a urinalysis test or a hair follicle test (collectively referred to as a “drug test”) if any of the following circumstances apply:
a.In the event that the father does not attend for the relevant drug test within the timeframe required herein.
b.In the event a urinalysis drug test results indicates that a sample was diluted meaning the test result lacked integrity.
c.        In the event a drug test result is positive for an illicit substance.
d.In the event a drug test results is positive for a substance for which the father does not have a prescription current at the time the sample was collected.
13.      That in the event the father either:
a.        fails a drug test as defined herein; or
b.fails to avail himself of no less than 75% of the available time events with the children in any given 12 month period;
then:
c.in the event the ‘failure’ occurs during Phase 1, Phase 1 shall recommence from the date of the failure and the times for the commencement or conclusion of all phases shall be extended accordingly.
d.in the event the ‘failure’ occurs during Phase 2, Phase 2 shall recommence from the date of the failure and the times for the commencement and conclusion of phases 2 & 3 shall be extended accordingly.
e.in the event the ‘failure’ occurs during Phase 3, the time arrangements shall revert to those set out for Phase 2 commencing on the date of the failure and progressing accordingly.
14.      That in the event that:
a.between the date of these Orders and the school holiday periods commencing at the end of 4th term in 2020 the father has availed himself of no less than 75% of the available time events with the children; AND
b.        the father has not failed in relation to any drug test; AND
c.each of the children’s treating psychologists (should they still have one) has produced a letter to the effect the respective child could manage block periods with the father; AND
d.the father’s treating psychiatrist (whom the Court notes is currently [Dr E]) has produced a letter to the effect that the father could manage changing his medication for a 4 day block period with the children with no detrimental effect to his mood or stability;
then for the school holiday periods commencing at the end of 4th term in 2020:
e.the children shall spend time with the father during school holiday periods for 3 consecutive nights in each full week of that period commencing at 9AM on the 1st day and concluding at 6PM on the 4th day.
f.In the event the parties are unable to agree on the days then the 1st day shall be a Monday and the 4th day shall be a Thursday.
g.any other time events pursuant to these orders shall be suspended for the period of the school holidays
h.the father shall assist and facilitate the children speaking to the mother by telephone on each evening.
15.The father shall continue to attend upon his psychiatrist, [Dr E].
16.The father is to engage with a Clinical Psychologist (“the clinician”) as recommended by the Independent Children’s Lawyer. In this respect:
a.The clinician shall be one who specialises in child and family, adolescent mental health in the southern suburbs of Sydney or the Illawarra area.
b.The purpose of the engagement shall be to provide the father with a skilled resource to discuss the children’s various needs and to improve his parenting skills.
c.The Independent Children’s Lawyer shall provide to the clinician a copy of the following:
i.         The Report of [Dr K] dated 24 May 2016.
ii.        The Report of [Dr K] dated 6 January 2017.
iii.      The letter of instructions to [Dr K] dated 4 April 2017.
iv.       The letter from [Dr K] dated 13 April 2017.
v.        Exhibit ICL12.
vi.       These Orders.
17.      The father:
a.is restrained from administering any prescribed medication to either of the children except in express accordance with exact instructions of the respective child’s prescribing doctor or with the express written consent of the mother; and
b.shall administer any prescribed medication to either of the children in express accordance with exact instructions of the respective child’s prescribing doctor or with the express written consent of the mother.
18.The father be and is hereby restrained from removing the children from the Commonwealth of Australia without the prior written consent of the mother.
19.Unless otherwise stated herein or otherwise agreed, the father &/or the supervisor shall collect and return the children at the commencement and conclusion of each period of time from and to the residence of the mother.
20.That the mother and father shall not speak in a rude, nasty or unpleasant manner about the other parent or their partner in the presence or hearing of the children.
21.That the parties have liberty to provide a copy of the parenting aspects of these Orders to the children’s school(s).
22.That the Independent Children’s Lawyer shall provide a copy of these Orders to:
a.        [Dr E] being the treating psychiatrist for the father;
b.[Dr F] being the treating psychologist for the child C;
c.[Ms I] being the treating psychologist for the child B;
d.        [Dr G], psychiatrist.

Credit

The father

The father gave his evidence in a straightforward and apparently honest manner. He made statements which he must clearly have understood were against his interests. He said as much in answer to questions from the Independent Children's Lawyer and from the mother’s counsel.
There was nothing about the way in which he presented in the witness box which made me doubt he was being truthful.

The mother

The mother gave her evidence in a considered and honest manner. She made concessions when it was appropriate. She clearly attempted to assist the Court with her evidence. She made admissions about the children’s relationship with the father which very much supported his case.
The mother became distressed at times. I concluded from my observations of her that her distress was genuine.
The mother was a very impressive witness. I had no reason to doubt her honesty.

The paternal grandmother

The father’s mother presented as a delightful, dedicated grandmother to the subject children and a very supportive mother of her son.
Whilst clearly supporting her son she was able to concede aspects of his interaction with her which led them into conflict.
I am satisfied she was absolutely honest in the evidence she gave.

Oral evidence of the experts and treating medical practitioners

There was nothing about the presentation of any of the experts or medical professionals which led me to question their credit in relation to their evidence.

Background facts

The following facts set out under this heading are not in contention.
The father was born in 1977 and is now aged 41.
The mother was born in 1977 and is now aged 40.
Cohabitation commenced in about May 2001. The parties married in 2005 and separated in July 2011.
The father commenced these proceeding in August 2012.
There are two children of the marriage, B born in 2005 and C (referred to as C) born in 2007.
The father is currently in receipt of a payment from an insurance company as he is unable to work due to his illness as described by his psychiatrist, Dr E. The mother is employed part-time.
In about March 2007 the father was diagnosed with Bipolar Disorder and acute anxiety. In that year he was hospitalised because of his mental ill health. The husband has been receiving income protection payment since about that time.
The father lives on his own. He now lives at DD Town and his mother is a frequent visitor.
Since June 2009 the father has been under the care of Dr E who is a consultant psychiatrist. The father has medicine prescribed for him by his medical practitioners.
The father was previously addicted to cocaine.
Between February 2017 and May 2017 the father used marijuana.
The operative parenting orders at the time that the hearing commenced on 14 August 2017 were those made on 16 November 2015. Those orders provided for the children to live with the mother and spend time with the father supervised by a professional agency each alternate Sunday from 9.00 a.m. to 1.00 p.m.; each alternate Monday from after school until 6.30 p.m.; and on the children’s birthdays and Father’s Day. The orders permitted the father to spend additional time with the children, if the paternal grandmother was available to supervise, on alternate Saturdays from 9.00 a.m. to 6.00 p.m.; every Monday after school until 6.00 p.m.; and on Christmas Day from 9.00 a.m. to 3.00 p.m.
Until 2015 the mother supervised the children’s time with the father when the paternal grandmother was unavailable.
The father is the owner of a two bedroom unit at Suburb Q, a Sydney suburb. That unit was being renovated/repaired at the time of the hearing, although the father did concede that he could stay there if he needed to do so.
In about early 2018 the father purchased a property at Suburb R which is located in the DD Town area.
In 2018 B commenced Year 7 at X School in Sydney. C attends school at Y School where he is in Year 5.
B attends upon Ms I, psychologist.
In the football season C plays rugby league. He trains on weekdays and plays a match on Sundays.
B has a real interest in drama and acting.

Affidavit and oral evidence

Father’s Affidavit Evidence

The father relied on his affidavit sworn 30 June 2017.
The father attests that he has not used cocaine since September 2015.
In his affidavit the father raised his concern as to the number of medical professionals the children attend upon. The father acknowledges that the mother asserts C has a phobia of germs and also has contamination anxiety. The father denies he has seen the symptoms attributed to C by the mother. The father says he has not witnessed C show signs of fear when near B.
The father would like to take the children overseas. He would like to take them to the USA.

Father’s Oral evidence

In cross-examination the father was asked if he had been truthful with Dr E in informing him about drug use. He asserted he had been truthful because he has confidence in Dr E.
The father had no recollection if he had read any of the reports of Dr K. He was aware Dr E has read the reports, however, the father has not discussed the content of those report with Dr E.
The father has read the reports of Dr F which have been provided in respect of C’s conditions. He was sure he had read the mother’s affidavit. He did read her affidavit of 7 March 2018.
The father said that when he was in Court in August 2017 he left on the day Dr K gave her oral evidence and went to his mother’s house. She medicated him. He has a very poor recollection of what happened on that occasion.
The father was asked if he was seeking alternate weekend time with the children. He said, “I would like His Honour to work out what is appropriate”. When asked whether his answer would be the same if it involved professional supervision, he responded to the effect, “I will be happy to exercise any order His Honour provides.”
The father was asked a question about some evidence which Dr K gave. He told the Court that he was uncomfortable talking about the functions of his mind with anyone other than his psychiatrist Dr E. His words made clear that if pressed about that topic it may cause him to become unwell. Having heard from the parties I made the following ruling:
I rule that neither the mother’s legal representative nor the legal representative for the Independent Children's Lawyer is to cross‑examine the father so as to incorporate into the questioning part of a report provided by [Dr K].
The father was taken to a statement he had made in an affidavit he filed on 30 June 2017. There his attention was drawn to a criticism he had made of the mother that she was taking the children to an “unnecessary amount of professionals”. When asked, he said he does not still hold that view, and he described the mother as an “excellent mother”.

In relation to overnight time Dr K was asked if supervision was recommended only for the night time hours of 5.00 p.m. to 9.00 a.m. She said that her recommendation was that supervision continue at all times until 2020.
In response to the proposition put that either the paternal grandmother or a paid nanny could be the overnight supervisor of the father’s time with the children, Dr K said she was opposed to the paternal grandmother being required to fill that role for a number of reasons not the least of which was a history of breakdown of relationship between the paternal grandmother and the father from time to time which has left the father unable to maintain consistency of time with the children.
She said further that the “nanny” person ought not be some young girl in need of pocket money. That person would need to have qualification which would show some knowledge or experience in child development who could assist the father in thinking about what children need in a routine. That person ought have access to the mother for instruction about aspects of the children’s usual routines and particular needs. If from time to time such a person was not available, then it would be appropriate for the paternal grandmother to “fill in”.
I propose to adopt some of the orders provided by the mother. I consider that the person engaged by the father to be present overnight when the children stay with him needs to have skills in child care and also needs to be a mandatory reporter. The person should be approved by the mother, who should be allowed by the father to meet with them. The person should be required to notify the mother if either child is not coping with overnight time or if the father’s health destabilises.
The provision of supervision for the time the children spend with the father until they do commence to spend overnight time with him ought to be as sought by the mother. I propose to order that the children’s time with the father pursuant to these orders is to be supervised at the father’s sole cost by an adult supervisor selected by the father and agreed to by the mother (which supervisor may include the paternal grandmother), and in the absence of agreement, by a paid supervisor from S Group or such other paid supervision service as is agreed between the parties.
I propose to order that the requirement for supervision will automatically cease when C turn 13. At that time B will be two years older, and I am satisfied the children will have reached a stage of development where they will be able to cope with any changes in the mood or presentation of the father. The manner of coping may extend, I accept, to them asking to return to their mother or alternatively becoming resistant to spending time with the father.
The necessity for formal supervision would seem to fall away, on the evidence of the single expert, at a time when the children commence spending overnight time with the father. However, Dr K opines that there is a necessity for an adult person known to the father and the children to be present with the father until C is 13. That adult’s role would be to monitor the father’s state of health and, should the father’s mental health destabilise, that person could take action to remove the children from the father’s care and cause them to be delivered to the mother.
However, I do propose to make provision for dispensing with adult supervision of the father’s time with the children at the commencement of the fourth term of the 2019 school year, provided Dr T or the father’s therapist provide a letter to the mother which opines that supervision of the father’s time is no longer necessary as the writer is satisfied the father has developed the skills necessary to ensure the father does not draw the children into the parental conflict or expose the children to behaviour or words which might undermine the children’s relationship with the mother. At that point in time, C will be aged 12.

The impact of supervision of the father’s time with the children upon the children and upon the father

The purpose of supervision in this case is to ensure that the children are not subjected to behaviours or words from their father which adversely impact of the children’s minds, development and, most importantly, their relationship with their mother. It is further necessary to guard against either the children’s health or the father’s health destabilising.
There is no doubt, based upon aspects of common sense, that the presence of a third person in a home where that person is not a member of the family can create a different type of atmosphere and impact upon the way in which members of the household interact. In general terms it must be seen as being ordered to occur only where necessary and for only the length of time necessary.
In this case, I consider that supervision is required to safeguard the children from their own inability to cope with the situation, or, the breakdown/destabilising of the mental health of the father or either child. As such, it is very necessary.

What holiday time should the children spend with the father and where can that time be exercised?

The issue with holiday time for the father is principally about whether that time is overnight time and when it might change from daytime to overnight time. There are other issues about the type of supervision which might be required, if any, and whether the father might be able to take the children away from either his residence at Suburb R or his unit at Suburb Q. The father does seek to take the children overseas to visit relatives in New Zealand and to visit the US.
The mother is opposed to the father being able to take the children out of Australia, certainly in the short term. She also wishes to develop a slow introduction to overnight time for the children particularly because of her concern about how C will react. She would appear to want to see regular weekend time working successfully with overnight time with the father before the holiday time moves to substantial blocks of time such as weeks.
The mother seeks that the children spend each of Monday and Tuesday from 8.00 a.m. to 6.30 p.m. with the father during school holiday periods as part of the first progression. The father seeks that the school holiday time progress immediately to overnight time. The Independent Children's Lawyer submits that school holiday time be the same as that provided for in school term time until the father’s time progresses to include overnight time.
I consider the time proposed by the mother is satisfactory and in the children's best interests until certain events specified in her proposed orders are fulfilled. I will make the order proposed by the mother for school holidays and I will provide that operate until the beginning of the first term in the 2019 school year.
Commencing in the school holidays at the conclusion of the first term of 2019 school year I propose to increase the father’s school holiday time in line with the increases which will occur during school term time.

Holiday time for the mother and the children

There is a need for the orders to make provision for the mother to be able to take the children on a holiday with her. The evidence causes me to conclude that the mother will need some respite time with the children in a holiday type environment to enable her to persist with the level of parenting she has been able to provide for these children during the development stages these children have experienced. The mother seeks that provision and I propose to make an order enabling that to occur as I consider it very important for the children's welfare.

Should the father be permitted to spend time with the children during school term time at his home in DD Town?

The issue here is about the time and impact of travel for the boys to and from the father’s residence in DD Town. The father, naturally would like to have the children visit him at his residence. The residence is a very attractive house with a swimming pool and no doubt many other facilities which the children would enjoy. It is located in a beachside location.
If the father spends time with the children at DD Town there is also an issue about who will be responsible for the travel. The mother has agreed to share in travel to and from the father’s property at Suburb Q but not in relation to DD Town.
The children have been to DD Town to visit the father’s property. On those occasions they have always travelled with their grandmother. Some of those trips have been by train.
When the time the children spend with their father progresses to overnight time different considerations will arise. The travel time to and from DD Town will be spread over two days.
The father gave evidence that the travel time from the mother’s residence to his residence at DD Town is one and a half hours. When the paternal grandmother gave evidence she said the trip by train for her from her residence in the Eastern suburbs of Sydney to DD Town, with a stop to collect the children from a railway station near their mother’s residence, took much longer.
Until the father’s time progresses to overnight time it is reasonable that he be permitted to take the children to DD Town on the days he has them in his care from 9.00 a.m. to 6.30 p.m. However, when they spend time with him on Sundays from 10.00 a.m. to 3.00 p.m. they should spend that time in Sydney. The father has the facility of the Suburb Q property and the paternal grandmother’s property in the Eastern suburbs of Sydney. I propose to so order.
The mother seeks an order that the father not have the children outside the Sydney Metropolitan area during the time the children spend overnight with him. Her concern about such a prospect is understandable, at least in the initial stages. I propose to limit the father only for a limited period during the early part of the children becoming accustomed to overnight time with him.
In the event of the father proposing to house the children for any overnight period at an address other than his property at Suburb Q, DD Town or his mother’s residence he is to notify the mother before any such occasion. Should something occur where the mother was required to collect the children it is important she knows where they are staying.

What should the consequence be for the father should he fail to take up time with the children as provided in the orders?

The first point to consider here is the reason for the father’s failure to take up time provided for in the orders. The next consideration would be where, in the graduating “spend time with” regime, the failure occurred.
The evidence in this case suggests that the father is likely to undertake overseas travel on a fairly frequent basis. He might be away overseas on four or five occasions a year. He has family in New Zealand and given the proximity of New Zealand to Australia it is not unreasonable to assume he may visit that country frequently and for possibly short periods of time.
If he were to miss time with the children because he returned a positive drug test result, then different considerations about the resumption of his time with the children ought come into play.
It is in the children's best interests that there is regularity in the time they spend with the father and that regularity should not be disrupted if possible. It is also reasonably predictable that the father will have times when he either fails a drug test, becomes seriously ill or alternatively is travelling away for the Sydney Metropolitan area.
I propose to provide in the orders for the father’s time with the children to be suspended only for the amount of time which it is reasonable to have the father repair his health or otherwise should the cause of the failure to take up time with the children be other than a positive drug test result.

What provision should be made for future drug testing to be undertaken by the father?

The father seeks the Court make an order for him to undertake urinalysis testing for opiates, cannabis, cocaine, amphetamines and methamphetamines. He proposes that the results are to be provided to the mother within 48 hours of receipt of same by the father. The testing is to be conducted over a period of 12 months only and at the times required by Dr E. The requests for testing are not to be made at a greater frequency than once every three months.
The mother seeks a far more controlled type of drug testing. Although she proposes the drug testing should be in the nature of urinalysis she also proposes hair follicle testing. The mother proposes she be the person to determine when the testing is to take place. She proposes the testing take place over a period of 12 months at a frequency of twice per month when she sends the father a text requiring the testing to be carried out. At the end of that time the mother requires testing for the following two years at frequency of once every three months when she sends him a text requiring same to be carried out.
The mother also proposes that the father undertake hair follicle testing six monthly. In his submission the father’s counsel told the Court the father opposed hair follicle testing. No specific reason was provided, however, the process is invasive in that it requires the provision by the father of a certain length of hair.
The mother presses for the hair follicle testing because she sees it as far more reliable and harder to defeat should the father endeavour to do so. Clearly the mother will receive an assurance from the negative result of hair follicle testing which she does not see as available for the urinalysis testing. The mother being assured about the father being abstinent from drug use must be seen (and is seen by me) as very import for the children because they are so dependent upon her for their care.
The Independent Children's Lawyer submits a testing regime which is more in line with the mother’s proposal.
The evidence establishes that the father has had a serious addiction to non‑prescribed drugs in the past. That addiction has been subjected to significant periods of abstinence in the period prior to the hearing. The father has acknowledged that the use of marijuana by him would expose him to risk of suffering ill-health due to his psychiatric condition. Notwithstanding that knowledge and the clear intent of the father to remain abstinent of illegal drug use, he has succumb as recently as January 2018. This was at a time when he must have known the detection of the use of marijuana at that time would have a significant impact upon the hearing in this Court which was part-heard.
The evidence of drug use in January 2018 by the father cautions against cessation of drug testing earlier in the future than the mother is seeking. The outcome of drug use for the father is a predictable destabilising of his mental health. Should the father’s mental health destabilise at a time when the children are present it would expose them to risk which was identified by the single expert.
Although the children’s time with the father will be supervised for some time and therefore it can be said that any indication of the father’s mental health destabilising would be observed by the supervisor who would then remove the children, the probabilities are that in those circumstances the children will have witnessed the behaviour which led to the supervisor removing them.
Along with the children’s safety being a concern of the highest order, so is the ability for them to maintain a meaningful relationship with their father. They clearly enjoy their time with him. If the children were to observe some manic presentation in the father it may erode their good opinion or fondness of him and thereby put at risk their ability to maintain their relationship with him at a meaningful level.
Finally it is very important for the children that the mother can be assured that the father is well and not using illicit drugs which may impair his ability to care for the children and not put them at risk in any manner.
The father sought an order that he subject himself to drug testing at times nominated by Dr E his psychiatrist. The inference arising from that proposal is that Dr E would be receiving a copy of the results.
I heard the evidence of Dr E about his involvement in the drug testing process of the father for the purpose of these orders and I consider there is too much of a prospect of interfering in the trusting relationship which exists between the father and Dr E to warrant an order requiring Dr E’ involvement.
I propose to make the orders for drug testing as sought by the mother subject to a different regime to apply if the father returns a positive drug test.
It is probable, based upon the evidence in this hearing that the father will at some time return a positive drug test. What should then be the focus of the orders is restoring the time the children are spending with the father as soon as it is safe to do so. The orders ought not be designed to be punitive but rather be designed to operate as a safety shield for the children and their relationship with both parents.

What should the orders provide in the event that the father has a positive drug test result?

In such circumstances, where the father fails to spend time with the children due to a drug relapse, the father’s proposal is that he should then be required to revert to having properly supervised time with the children for three months during which time he should be required to provide three clear drug testing results. Although not stated, it is presumed that under the father’s proposal, Dr E would determine when the tests are to be conducted. Once the tests are clear for three months the earlier orders are to be reinstated.
On the other hand, the mother proposes that should the father return a positive test, then he will revert to strictly supervised time with the children for an agreed period or for 12 months if no agreement can be reached. He would also thereafter be required to continue drug testing as she has specified in her proposed orders.
I propose that there would not be a lengthy period of time to be undertaken should the father produce a positive drug test on any occasion. I propose to provide a period of time for him to show that he has been able to re-establish his abstinence and then continue the time with the children which he was experiencing when the drug test result was provided. Absent agreement between the parties, this will be set at three months from the date of having produced a positive test result.

Special occasion orders

The mother seeks orders which would provide the father with time with the children on the father’s birthday, on Father’s Day, on C’s birthday, on B’s Birthday and on Christmas Day. The father seeks time with the children on each of those occasions and adds Easter and Christmas Eve. The time which the parents each seek for the children to spend with the father on his birthday and the children’s birthdays is largely similar. The father seeks overnight for the Christmas time and he also seeks time at Easter if it does not fall in school holidays.
I propose to make orders which will permit the father to spend time with the children on his birthday, on the children’s birthdays and at Christmas largely as the mother seeks. I consider her proposals to be in the children’s best interests and also the proposals, with the exception of Christmas, are not significantly dissimilar to those of the father. I propose to make provision for the father to spend time with the children at Christmas and Easter time, should they not already be spending such time with the father under the orders, as agreed between the parents.
It will be necessary to provide for the children to spend time with the mother on their birthdays and on her birthday at Christmas time, at Easter time, on Mother’s Day.

Where will changeover of care take place when the children spend time with the father?

The mother seeks an order that all changeovers take place at her residence unless the order specifies otherwise. Perhaps that is because the arrangements for the father to spend time with the children have usually involved the paternal grandmother being the supervisor. In those circumstances, and also where the father has used a paid supervisor, the changeover has occurred at the mother’s residence.

In her oral evidence the mother was asked if she would share the travel for changeover if it were to take place at the Suburb Q residence of the father and she responded “Yes”.
In the proposed orders submitted by the Independent Children's Lawyer an order is specified which provides that unless otherwise agreed the father and/or the supervisor is to collect and return the children from and to the mother’s residence.
The orders sought by the father are silent about the arrangements for the changeover of the children on occasions they spend time with the father.
For so long as strict supervision is required by the orders I consider there are advantages to be had for the children if the changeover takes place at the mother’s residence with the supervisor, hopefully the paternal grandmother, collecting and returning the children. However, changeover times can on occasions be stressful and as the mother now resides in her parents’ residence there seems no reason to expose them to unnecessary stress.
I propose to give the mother the option to select a public changeover venue within a 15 minute drive of her residence or have the changeover at her residence should she consider that beneficial for the children and/or herself.
I do hold a fear that unless the father is able to gain insight into how his actions and words spoken to the children may cause them to be conflicted between their parents and experience torn loyalties, there may come a time when the boys, or one of them, resists a return to their mother at the conclusion of spending time with the father. If that were to occur the probable result would be a cessation of the children’s time with the father altogether or a return to strict supervision.
The consequence of the above stated fear is that such circumstance should be avoided and that then compels the Court making the order the father agrees to, namely that he attend upon Dr T for therapy to help him avoid placing the children in a position of conflict with their mother. I propose to make such an order.

What provision should be made for the father to attend the children’s sporting commitments and other extra-curricular activities when the children are not otherwise scheduled to be spending time with him?

In Exhibit ICL12 Dr K said:
In relation to the father attending at sporting events of the boys or similar ‘ad hoc’ events when not on his allocated weekend, [Dr K] expresses significant concern at the father doing so. The primary concern is at the potential for disappointment in the boys which is a stressor in their mental health.
The evidence suggests that the children would benefit from the father attending such activities if he is able to do so. The children would seem to desire that to occur. The harm which might flow to the children will arise if he tells them he will attend and then does not. I propose to construct an order which will encourage the father to attend and yet enable the mother to shield the children from disappointment to the extent that is able to be achieved.

Should there be an order requiring the father to ensure the children attend their extra-curricular activities, and school based activities, during the time they are otherwise scheduled to spend time with him?

The mother seeks an order that the father facilitate the children’s attendance on and participation in extra-curricular and sporting events in which they ordinarily participate.
The father seeks an order in identical terms.
However, the following should be said. The Court has heard evidence from both parents about the importance to each child of participation in sporting and extra-curricular activities. In relation to C, evidence was given about his love of participating in rugby league and how that participation has had an encouraging impact upon the symptoms he has suffered from his medical conditions.
In relation to B, the Court has heard from both parents about B’s love of involvement in acting and participation in drama production. That participation also appears to have been helpful for B on the mother’s evidence.
The consequence of the above is that there are good reasons based upon the children’s best interests to make an order providing for the father to ensure attendance on those activities by the children whilst they are in his care.

What provision should be made for the father to attend school based functions which involve parents being invited to attend same?

There really is not any great opposition by the mother to the father attending functions at the children’s schools on occasions when parents are invited to attend. I propose to order that he be permitted to attend school based functions which involve the attendance of parents.

Non-denigration orders

Both the parents and the Independent Children's Lawyer suggest there should be such orders made. I propose to make such an order.

Overseas travel for the children with either parent. The issue of passports for the children.

Both parents are seeking an order which permits them to take the children on an overseas holiday. Any such order made will also require the Court to make an order about the application for and the safe keeping of the children’s passports.
The orders the mother seeks about overseas travel specifies removal of the children from Australia by her upon providing the father with 21 days’ notice of the proposed destination, itinerary and contact details for the children whilst away.
The mother seeks an order in relation to the children’s passports. She seeks that pursuant to s 11 of the Australian Passports Act 2005 (Cth) the mother be permitted to apply for passports for the children. The father seeks an order in identical terms. It is appropriate for the Court to make that order. The order removes the necessity for co-operation between the parents in any application for a passport for the children thus removing potential conflict in to which the children may be drawn.
The father seeks a further order which would require the mother to keep the children’s passports current. There is nothing to suggest the mother would not do so or does not intend to do so while the children are her responsibility. I consider it is unnecessary to make such an order.
The father also seeks an order which permits the mother to remove the children from Australia, clearly for the purpose of holidays, during the time they would be in her care pursuant to the orders, or alternatively during such extended period as the father may agree to.
Like the mother, the father seeks notice (although he seeks 42 days) of intent to remove the children from Australia where such notice is to include an itinerary, and contact details while the children are away.
In the event that the father does, with the consent of the mother, travel with the children outside Australia, then, upon return he will deliver the children’s passports to her and she will be the custodian of the passports.
Dr K was questioned about her opposition to the children travelling overseas with the father to visit the paternal family, even if the paternal grandmother was present, in the short to medium term. She confirmed her recommendation that such travel not be permitted saying the reason was that she considered the boys were sensitive to change. She considered the potential for the boys to experience stress on such a trip was significant and could lead to adverse consequences for their mental health. She recommended that an order be made that the father not be permitted to take the children on an overseas holiday for at least three years.
In the circumstances I will make orders broadly as sought by the mother with some other provisions in relation to the father taking the children overseas should the mother give her written consent.
I do not propose to place a time restriction on the father being able to travel overseas with the children as recommended by Dr K, however, I will order that the mother must provide her consent in order for any overseas travel to occur.
Once C attains the age of 13 years the mother should be required to state with particularity any reasons for her refusing to permit the father to take the children on an overseas holiday.

Notification provisions

The provision of contact details for each parent is a common order sought by the mother and the father. The father seeks notification about the children’s medical appointments and copies of any reports provided by a medical professional attend to the children. The father has been provided with this information in the past and it is in the best interests of the children that he is fully acquainted with the medical conditions they may suffer from and how those conditions are to be treated. I propose to make such an order.
I also propose to order that the parent with whom the children are with forthwith notify the other parent in the event of the children or either of them suffering any serious injury or illness.

The father to undertake therapy with Dr T or some other professional

As stated earlier, Dr E considered the father did have the capacity to learn skills from professions which might allow him to be careful about the way in which he addresses the children about their mother. Further he thought there would be benefit in providing the father with assistance to improve the manner in which he communicates with the mother.
As stated above, I consider the father undertaking therapy with Dr T or some other skilled family therapist, is essential to the continuation of the father being able to spend time with the children. In the absence of such therapy it is, in my opinion, likely the father will repeat the type of actions which took place in the lead up to the final portion of the hearing. I refer to the action of the father in aiding C to make a video which expressed his view, for the judge to see, of the time he would like to spend with his father. Further, the father permitting/encouraging C to ring his mother to ask could he stay overnight with his father was another example of poor parenting on the father’s part which had the potential to set back the progress that C has been making in relation to controlling his anxiety and the more severe symptoms of his OCD. The worst aspect of the incident where the father allowed or encouraged C to ring his mother and ask if he could stay overnight with his father is that the father’s evidence is that he knew the mother would not permit it. Thus, he knowingly placed C in conflict with his mother and also set C up for disappointment and distress. That circumstance evidences severe lack of parenting capacity and requires urgent rectification in order to avoid further potential damage to the children.
The predictable outcome of the father not learning to control his interaction with the children so as to avoid there being conflict with their mother is that the time for the children to spend with the father will revert to strict supervision.
Dr K said that she would be recommending the father undertake family therapy in a manner which enables the therapist to be able to involve the mother and the children should that be seen as desirable by the subject therapist. When asked by me whether there was a concern the children would be exposed to too many therapists Dr K said that in this case she did not think that would be a concern.
I propose to make an order providing for the father to attend upon therapy as recommended by the single expert.

Whether the mother should have the capacity to suspend any of the children’s time with the father if she determines it is having an adverse impact upon them

So long as the action of a parent who fails to comply with a parenting order falls within the definition of a “reasonable excuse” as defined in the Act then there will be no sanction by the Court.
The meaning of “reasonable excuse” is found in s 70NAE of the Act. The words “necessary to protect the health or safety of a person (including the respondent or the child)” contained in s 70NAE(4) would, in my view, be sufficient to justify the cessation of the father’s time with the children should the father take some action or create a circumstance which places the children in significant conflict with the mother.
For the time being, the full time care of these children is so dependent upon the mother being able to parent and nurture their development, that any action which puts that in danger or significantly increases the burden of the mother’s parenting ought lead to the immediate suspension of the father’s time with the children.
I consider it is unnecessary to make a specific order empowering the mother to suspend the father’s time with the children other than I have already provided for herein. I have considered that there is the probability of further proceedings in the Court if the father’s time with the children is suspended, however, that is unlikely to be different if the order the mother seeks is made.

Should the father be permitted to administer any prescribed medication to the children without the consent of the mother?

The short answer to this issue is “NO”. Should there be some emergency in relation to either child’s medical conditions then the mother will be informed and she can then give her consent where that is required.
Should either child be admitted to hospital then the administration of medicine to the child will be under the supervision of medical staff.
The father should, however, be required to provide the children with medication, as directed by the mother should she so request the father during the time the children are in his care.
I propose to make the order sought by the mother.

Whether the father should be required to administer medication to the children at the direction of the mother

The mother seeks an order which would prevent the father from administering any prescribed medicine to either child except “with the exact instructions of the prescribing doctor or with the express consent of the mother”.
In relation to C and the prescribed medication which C takes, the father will have a great deal of knowledge and experience in the use of at least some of those medications. One medication which has the subject of evidence and which the father and C both take is Seroquel. The evidence discloses that the father does have a different view about the manner in which the mother has sought to wean C of the frequent use of the drug and change it from a maintenance dose to a reactive dose. The father expressed in writing to the mother that he considered that action inappropriate.
The mother’s evidence is that C has reacted well to the change in regime for the use of Seroquel.
I consider it is in C’s best interests not to be subjected to different regimes of use of Seroquel in each of his parent’s homes and so the order sought by the mother should be made.

Whether the father should be permitted to communicate directly with the children by electronic means

The mother seeks an order which would forbid the father having direct communication with the children by electronic means for a period of 12 months. This order is clearly motivated by the content of text messages or emails sent by the father directly to one, or both, of the children in the 12 month period before the completion of the hearing. The contents of those communication are set out in these reasons.
The email which the father sent to B at his school email address was the subject of criticism by me in these reasons because of its content. It was also very calculated by the father to avoid any scrutiny by the mother before B saw it. The only conclusion must be that the father knew the content would be seen as objectionable by the mother. The content had the ability to draw B into conflict with the mother and therefore was potentially very damaging to him.
Unfortunately, the father cannot be trusted at this time to communicate with the children in a manner which is not potentially hazardous to their relationship with their mother and therefore has to be prevented. I will so order.
The restriction of 12 months will permit the father to gain some additional parenting skills and insight through the services of Dr T or another treating therapist.

I certify that the preceding five hundred and sixty-one (561) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 14 June 2018.

Associate:

Date: 14 June 2018

[2018] FamCA 547

14 June 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness