Langs and Ashley

[2014] FCCA 2558

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANGS & ASHLEY [2014] FCCA 2558

Catchwords:
FAMILY LAW – Parenting – where mother has substance abuse issues – where family violence allegations not established.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Briginshaw v Briginshaw [1938] HCA 34
MRR v GR [2010] HCA 4

Applicant: MR LANGS

Respondent: MS ASHLEY

File Number: WOC 278 of 2013

Judgment of: Judge Altobelli

Hearing dates: 25-27 August 2014

Date of Last Submission: 27 August 2014

Delivered at: Wollongong

Delivered on: 13 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Alexander

Solicitors for the Applicant: Hilton King Lawyers

Counsel for the Respondent: Ms Humphreys

Solicitors for the Respondent: Bailey Mullard Lawyers

Counsel for the Independent Children's Lawyer: Mr Maurice

Solicitors for the Independent Children's Lawyer: Helen Volk Lawyers

ORDERS

Parental Responsibility

1. That, subject to the provisions of Orders 2 and 3, the parents have equal shared parental responsibility for the Children of the relationship, namely W, born (omitted) 2000, X, born (omitted) 2005, Y, born (omitted) 2006, and Z, born (omitted) 2008.

2. In relation to major issues such as long-term decision-making, the following communication plan is to be implemented:

   (a)the parent who wishes to raise the issue must do so in writing, preferably by email;

   (b)the other parent must respond within seven (7) days;

   (c)the instigating parent must reply to that response within seven (7) days;

   (d)further direct negotiations are to occur within the following seven (7) days;

   (e)in the event no agreement is reached within the 21 day period (unless it is otherwise mutually agreed to in writing between the parents to extend this time) both parents must make contact with Relationships Australia and thereafter do all acts and things as are necessary to arrange for an urgent family dispute resolution (mediation) session with a view to resolving the issue in dispute.

3. If the parents are unable to reach agreement about any matter pertaining to the long term care, welfare or development of the children, that the decision of the Father shall prevail, and the Father provide notice to the Mother of steps taken in exercise of this order.

4. That each parent shall have the responsibility for making decisions pertaining to the day to day care of the Children, and in this respect, each parent shall be at liberty to enrol the Children in, and facilitate their attendance at such extra-curricular activities as they determine, which take place during the time the Children are in their respective care.

5. In the exercise of day to day responsibility for the Children, each parent shall notify the other of any extra-curricular activities the Children are enrolled in, and provide notice to the other parent of all information required to permit the other parent to be able to attend or participate in such activities in the manner in which parents are ordinarily invited to do so.

Living Arrangements

1. That until 12 January 2015, the Children live with the Mother.

2. That, commencing from 13 January 2015, the Children live with the Father.

Spending time arrangements

1. That commencing from the date of these Orders and continuing until 12:00pm on 12 January 2015, the Children spend time with the Father as follows:

   (a)Commencing on 14 November 2014 and continuing until 28 November 2014, each alternate weekend from after school Friday until the commencement of school Monday;

   (b)Commencing on 28 November 2014 and continuing until 19 December 2014, each alternate week from after school Friday (or 3:00pm) until the commencement of school the following Friday (or 9:00am);

   (c)For a period of four (4) hours as agreed, on the Child, W’s birthday (being (omitted) 2014), and in lieu of agreement, from 10:00am until 2:00pm;

   (d)From 3:00pm on Christmas Day until 6:00pm on Boxing Day;

   (e)At such other times as the parties agree.

2. That commencing from 13 January 2015, the Children spend time with the Mother as follows:

   (a)During the NSW Public School term, each alternate week from after school Wednesday (or 3:00pm) until the commencement of school Monday (or 9:00am);

   (b)From 9:00am until 5:00pm on Mother’s Day if the Children are not already spending time with the Mother that weekend;

   (c)If the Children are in the care of the Father, for four (4) hours as agreed, which shall reduce to two (2) hours on a school day, on the each of the Mother’s and the Children’s birthdays, including the birthday of the Children’s brother, V, and in lieu of agreement:

   (i)From 10:00am until 2:00pm on non-school days; and

   (ii)From after school until 5:00pm on school days;

   (d)From 3:00pm on Christmas Day until 6:00pm on Boxing Day each alternate year, commencing 2015;

   (e)From 3:00pm on Christmas Eve until 3:00pm on Christmas Day each alternate year, commencing 2014;

   (f)With the exception of the January 2015 school holiday period, for one half of each NSW Public school holiday period, and in lieu of agreement, the second half in odd numbered years, and the first half in even numbered years;

   (g)At such other times as the parties agree.

3. That commencing from 13 January 2015, if the Children are not otherwise living with the Father, the Children spend time with the Father on the following special occasions:

   (a)From 9:00am until 5:00pm on Father’s Day;

   (b)For four (4) hours as agreed, which shall reduce to two (2) hours on a school day, on each of the Father’s and the Children’s birthdays, and in lieu of agreement:

   (i)From 10:00am until 2:00pm on non-school days; and

   (ii)From after school until 5:00pm on school days.

Communication

1. That the Children communicate with each parent by telephone:

   (a)At any reasonable time, and in lieu of agreement, not less than two (2) occasions in each week when the Children are in the care of the other parent, with the parent who wishes to speak with the Children, to telephone the other parent’s mobile telephone number.

   (b)At any time any of the Children express a wish to do so, with the parent with the care of the Children to facilitate the Children contacting the other parent by telephone.

2. That the parents communicate matters pertaining to the care, welfare or development of the Children:

   (a)by telephone in the case of emergency;

   (b)for pressing but non-emergency issues, by short factual text message;

   (c)for minor day to day issues, by email or letter.

3. That the parents are each to ensure that the other parent is kept informed of:

   (a)any serious medical problems or illnesses suffered by any of the Children and/or any invasive medical procedure performed on any of the Children, with the other parent to be notified as soon as is reasonably practicable;

   (b)any medical emergencies involving any of the Children, with the other parent to be notified immediately;

   (c)any medication that has been prescribed for the any of the Children that needs to be taken during the time any of the Children are in the care of the other parent, with the other parent to be notified at the time of changeover;

   (d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding any of the Children, with the other parent to be notified no later than 14 days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);

   (e)any social or religious functions which any of the Children are to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;

   (f)the telephone contact number of the parent, with any changes to be advised within 24 hours;

   (g)the email address for the parent, with any changes to be advised within 24 hours;

   (h)any other matter relevant to the welfare of any of the Children, with the other parent to be notified as soon as is reasonably practicable.

Changeover

1. That the parties do all things necessary and sign all necessary documents to enrol to use the CatholicCare Supervised Contact and Changeover Centre (CSCCC) for the purposes of changeover to be effected pursuant to Order 8(a).

2. That, unless otherwise agreed, where changeover cannot be effected at the Children’s schools, that changeover be effected at CSCCC, with each parent to bear their own costs for the use of such service.

3. If CSCCC is unavailable to effect changeover pursuant to these Orders, and where changeover cannot occur at school, then changeover will be effected, unless otherwise agreed, at (omitted) Police Station with the parent who has the care of the Children to deliver the Children to the care of the other at (omitted) Police Station.

Restraints

1. Each parent is restrained from making critical or derogatory remarks about the other parent or members of the other parent’s family or household in the presence or hearing of any of the Children and each parent must immediately remove the Children from the presence of any other person who does so.

2. Each parent is restrained from:

   (a)assaulting, molesting, harassing, interfering, stalking, intimidating the other parent or any member of the other parent’s family or household; and

   (b)using abusive and/or aggressive language in any of the forms of communication set out in these orders (or any other form of communication that they use) and shall immediately remove the Children from the presence of any other person who does so.

3. Each parent is restrained from taking, consuming and/or being affected by any illicit substance during any time any of the Children are in their respective care or for the period of 24 hours preceding the commencement of such time and shall immediately remove the Children from the presence of any other person who appears to be so effected.

4. Each parent is restrained from consuming alcohol in excess of the legal driving limit during any time the Children are in their respective care.

5. That the Mother be restrained from leaving the Children in the care of Ms M, Mr C or Ms S, unless she is also present.

Specific Issues

1. If either parent refuses or neglects to do any act or thing, or sign any document necessary to give effect to these Orders, that the Registrar be empowered to execute such document on behalf of the defaulting parent pursuant to section 106A of the Family Law Act 1975.

2. That each parent within 21 days, notify the Independent Children’s Lawyer of the identity and contact details of their treating therapist who is to provide the therapy pursuant to these Orders.

3. That leave be granted to the Independent Children’s Lawyer to provide a copy of the Report of Dr K dated 17 August 2014 to:

   (a)Any therapist providing therapeutic care to either parent, or any of the children;

   (b)The (omitted) drug rehabilitation centre or any other drug rehabilitation centre to be attended by the mother.

4. That, pending the Father securing independent accommodation, the Children will spend time with the Father at the home of Ms D and Mr E.

5. That, prior to the Children commencing living with the Father pursuant to Order 7, the Father provide to the Mother, evidence of his changed hours of employment which facilitates him being substantially present during the time the Children are to be in his care.

6. Liberty is granted to the parties to relist the matter on 72 hours’ notice if, following the Children coming into the Father’s care as of 13 January 2015, the Father has not secured independent accommodation or changed his hours of employment to facilitate him being substantially present during the time the Children are to be in his care.

7. That, once the Father secures alternate accommodation for himself and the Children, the Father use his best endeavours to ensure that, if it is necessary for the Children to change schools, that such school has appropriate supports in place to accommodate the special needs of the Children, and ensure that the change of school is effected at the commencement of a school term.

8. That, despite any other Order, the Children shall not commence living with the Father pursuant to Order 7, unless the father has secured appropriate bedding for the Children. 

9. That the Father, forthwith, use his best endeavours to obtain his drivers’ licence and a motor vehicle appropriate to transport the Children.

10. That each parent bear their own costs, and the costs of the Children making use of CSCCC drug testing and therapy required pursuant to these Orders.

11. That the Mother submit to supervised, chain of custody urinalysis testing in accordance with the provisions of AS4308:2008, within 24 hours of a request by the Father, which shall be limited to no more than 6 times per year, and the Mother shall provide a copy of the test results to the Father within 7 days of the test being undertaken.

12. That the time the Children spend with the Mother pursuant to these Orders shall be suspended if:

    (a)The Mother fails to submit to urinalysis within 24 hours of a request to do so;

    (b)The Mother fails to provide a copy of the results of the testing to the Father within 7 days of the request made;

    (c)The Mother returns a positive test result for any illicit drug;

    (d)The creatinine level on the test result is less than 1.76mmol/L;

    and the time shall not recommence until the Mother has provided two consecutive tests, taken 7 days apart, which show a creatinine level above 1.76mmol/L and negative for all illicit substances.

Authorities

1. That these Orders constitute authority of the Mother and Father to each receive copies of school reports, newsletters, notices and school photograph order forms and to attend any school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of the Children's teachers.

2. That these Orders constitute authority of the Mother and Father to each liaise with the Children's treating medical practitioners and obtain information about any medical treatment and any other medical issues.

3. That both parents are permitted to liaise directly with the Children’s schools, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the Children’s progress.

Therapeutic Intervention

1. That the Mother do all things necessary:

   (a)to forthwith engage in therapy with a therapist skilled in working with adults with addictive disorders, including cannabis use disorder, and personality vulnerabilities and depression/anxiety and trauma attending as regularly as recommended, and  continue for so long as is recommended by the therapist;

   (b)to attend all scheduled sessions with the (omitted) drug and alcohol rehabilitation programme and use her best endeavours to engage her partner, Mr S in such rehabilitation programme.

2. That both parents, within 21 days, engage with a therapist skilled in providing parenting advice and family and individual child therapy, to assist each of the parents in acquiring skills to assist and support themselves and the Children adjust to their changed living circumstances and facilitate the attendance of the Children upon such therapist for at least 12 months after the making of these Orders, and attend for such duration, and at such frequency recommended that therapist.

3. For the purpose of facilitating the preceding Order, that each parent propose to the other the names of 3 such therapists, and use their best endeavours to reach agreement as to the proposed therapist within 21 days of the making of these Orders.

4. If the parents cannot reach agreement about the proposed therapist to be engaged pursuant to Order 36, the parents attend upon such therapist recommended by the Independent Children’s Lawyer, and in this respect, each shall contact the nominated therapist within 7 days of the nomination by the Independent Children’s Lawyer.

5. That the Father, forthwith, engage in therapy with a therapist skilled in treating adults with emotional and relational difficulties and with some knowledge of gambling, to assist the Father to address his vulnerabilities outlined in the report of Dr K dated 17 August 2014, and the Father shall attend upon that therapist for not less than two years, at such times, and frequency as is nominated by that therapist.

IT IS NOTED that publication of this judgment under the pseudonym Langs & Ashley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 278 of 2013

MR LANGS

Applicant

And

MS ASHLEY

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. These reasons for judgment explain the orders that the Court has made about four children, W, born (omitted) 2000, aged 13, but soon to be 14, X, born (omitted) 2005, nine years old, Y, born (omitted) 2006, eight years old, and Z, born (omitted) 2008, six years old. 

2. The Applicant in this case is their father.  He is 32 years old and is an (occupation omitted).  The Respondent is the children’s mother.  She is 34 years old and describes herself as undertaking home duties.

3. The parents commenced their relationship in 1999 and separated on a final basis in March 2013.  The children presently live with their mother in (omitted), a suburb of (omitted).  Prior to the final day of the hearing of this matter, the children had been spending time with their father on a supervised basis at Catholic Care, (omitted).  After hearing all of the evidence and submissions, the Court made interim orders pending delivery of these reasons and the making of final orders that the children continue to live with their mother, but spend time with their father on an unsupervised basis, initially day-only on weekends, but within two months and subject to a number of conditions, progressing to each alternate weekend as well as in school holidays period.

4. This is a case where the proposals advanced by the parents evolved considerably following the release of the Expert Report prepared by Dr K dated 17 August 2014.  When the Father commenced these proceedings in April 2013, initially by way of recovery order, his proposal was for the children to live with him, and to spend time with their mother each alternate weekend, as well as half the school holidays.  He sought interim orders for the children to have unsupervised time with him.  It was clear at that time that his concern was about the Mother’s consumption of drugs and alcohol and bringing the children into contact with other persons involved in the drug culture.  The Mother’s response, filed in May 2013, sought orders that she have sole parental responsibility, that the children live with her, and that the Father spend time with the children on a supervised basis. 

5. By consent, on 2 April 2014, the parents agreed that the children should spend time with their father, supervised by Catholic Care contact centre in (omitted). 

6. By the time of the Final Hearing, the Father’s proposal had changed.  He proposed equal shared parental responsibility, that the children live with the Mother for a period of six months and spend increasing amounts of time with him and, thereafter, live with him and spend time with their mother each alternate weekend and during school holiday periods.  The precise order sought by the Father is reproduced in the first schedule to the reasons.

7. The orders sought by the Mother are set out in the amended case outline filed on her behalf, dated 21 August 2014.  She proposed equal shard parental responsibility, that the children live with her and spend time with the Father each alternate weekend as well as during school holidays and on special days, and subject to a number of conditions.  The order proposed by the Mother is also reproduced in the first schedule to these reasons.

1. By the time of closing submissions on day 3 of the hearing, the Independent Children’s Lawyer proposed detailed orders that are also reproduced in the first schedule to these reasons.  The Independent Children’s Lawyer proposed equal shared parental responsibility with a provision for resolving deadlocks in agreement and consultation, that the children live with their mother for a period of six months with gradually increasing time with their father, and, thereafter, that they live with their father and spend time with their mother each alternate weekend from Friday to Monday, and each alternate Wednesday to Friday, as well as during school holidays and special days.  As an alternative proposal, however, the Independent Children’s Lawyer suggested that the Mother spends time with the children in one block each fortnight from after school Wednesday to before school on Monday. 

2. This case is characterised by each parent making very serious allegations against the other.  For example, the Mother alleged that the Father had been a perpetrator of family violence, that he suffered from ADHD, was addicted to gambling, had sexually assaulted her at least twice during their relationship, and had accessed child pornography on the internet.  The Father alleged that the Mother has mental health issues, deals in illicit drugs, struggles with addiction to marijuana and is neglectful of the children, particular in terms of school attendance. 

3. Because the proposals of both parents changed so markedly after the release of Dr K's Report, it is helpful to deal with his evidence first, both in terms of the Report and his subsequent thorough cross-examination.  The evidence of each parent, and their witnesses, will then be discussed.  The Court will then consider the evidence in the context of the relevant provisions of the Family Law Act 1975. 

The Evidence

1. The Father relied upon the following documents:

   ·Affidavit of Mr Langs, filed 15 August 2014;

   ·Affidavit of Mr Langs, filed 20 August 2014;

   ·Affidavit of Ms D, filed 6 June 2013;

   ·Affidavit of Ms D, filed 24 August 2014;

   ·Affidavit of Ms C, filed 23 August 2014; and

   ·Affidavit of Mr D, filed 23 August 2014.

2. The Mother relied upon the following documents:

   ·Affidavit of Ms Ashley, filed 10 May 2013;

   ·Affidavit of Ms Ashley, filed 2 September 2013; and

   ·Affidavit of Ms Ashley, filed 21 August 2014.            

   As with the Father, she was extensively cross-examined.  No other witnesses were called in her case

3. The evidence in the Independent Children’s Lawyer’s case consisted of:

   ·Family Consultant Memorandum, dated 19 August 2013;

   ·Family Consultant Memorandum, dated 16 September 2013;

   ·Report of Dr K dated 17 August 2014. 

   Dr K was extensively cross-examined.

4. Each of the parties was very capably represented by solicitor and Counsel.  Mr Alexander appeared for the Father, Ms Humphreys for the Mother, and Mr Maurice for the Independent Children’s Lawyer.

5. A substantial quantity of documents was tendered in evidence and, where relevant, reference will be made to these documents.

The Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

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

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

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

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

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

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

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

   (v)  any other relevant matter;

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

   (m)  any other fact or circumstance that the court thinks is relevant.

6. In MRR v GR [2010] HCA 4 the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

7. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

Evidence from the Family Consultants

1. The parents attended a Child Dispute Conference on 19 August 2013 with Family Consultant O.  What emerged from that Conference was the need to obtain an Expert’s Report, to appoint an Independent Children’s Lawyer, and to have a Child Inclusive Conference.  The Child Inclusive Conference took place on 16 December 2013 and was conducted by Family Consultant Ms S.  The parents attended with the four children.  The Family Consultant’s observation and impressions provide some useful background in this case, particularly having regard to the evidence as it later emerged.  The memorandum will be reproduced here as to the headings Risk Factors, Co-Parenting Relationship and the Children:

   RISK FACTORS

   Family Violence

   There are allegations and counter allegations about family violence.  See Family Consultant’s Child Dispute Conference Memorandum and affidavit material for further information. 

   Mr Langs has been charged for sexual intercourse without consent and assault with an act of indecency.  Mr Langs said that the trial for the matter is to be heard in February 2014.   Ms Ashley is the alleged victim.

   Ms Ashley suspects that Mr Langs continues to make phone calls to her and that the person making the call remains silent on the end of the line.  She alleges that he, when he saw her cousin in the shops, expressed his belief that Ms Ashley has taken the children from him.  She took from this that he would take the children from her were he given access to them. 

   Mr Langs said that he is frightened of Ms Ashley and is concerned about the multiple alleged false claims that she has made against him.

   Mental Health

   There are allegations and counter allegations about each parent’s mental health.  Refer to the previous Child Dispute Conference memorandum.

   Drug Abuse

   Ms Ashley said she ceased smoking marijuana about three months ago.  Her reported use (prior to three months ago) was difficult to ascertain with her reporting occasional weekend use, smoking marijuana to cope with “stress” and that she smoked daily for “a couple of months”.  She does not consider that she has ever experienced marijuana addiction or that her use has impacted on her capacity to parent.

   COPARENTING RELALTIONSHIP

   The parents do not communicate.  There is an AVO protecting the mother from the father.  Ms Ashley does not want to have anything to do with Mr Langs.  Mr Langs prefers to have no contact with Ms Ashley.

   There are possible learning difficulties with one or both parents that might impact on their ability to make progress in the parental relationship.   

   THE CHILDREN

   W (aged 13 years in 7 days), X (aged 8 years 11 months), Y (aged 7 years 7 months) and Z (aged 5 years 5 months) were seen together and then separately.  W recently finished Year 7 at (omitted) High School while X, Y and Z attend (omitted) Public School (Years 2,1 and Kindergarten respectively).

   Z and X each have learning problems with Z due to undergo a learning assessment next year (through her school) while X has been assessed as having a moderate developmental delay.  X is being considered for a IM class in 2014, although this presents difficulties for Ms Ashley, as it means that X will experience a change in schools to a school that is more than 20 minutes away (and he will be required to catch a bus to school - something he does not enjoy).

   W feels pressure to choose between his mother and father.  He was teary when he spoke about the changes in his family and about his ambivalence about seeing his father.  He wanted to see his father at Catholic Care although he did not want to see him on the day of this interview.  He said that his ambivalence about wanting to see his father has arisen from the allegations made about his father’s behaviour, which W believes are true.

   W was aware of the allegations made against his father including the allegation involving the “torch”.  He was aware of his father having allegedly masturbated in front of his mother and Y.  He said that he knows about these accounts because his mother told him about them.

   Y presented as teary and confused when he was talking about the changes in his family and his feelings about these changes.  He said that he has not seen his father since his mother and father separated.  He said that part of him wants to see his father and that part of him does not want to see him.  He was confused as to whether he felt safe or unsafe while with his father and he thought that his mother did not want him to see his father.  He said that he loves his mother and his mother’s partner (Mr S surname unknown) who he said lives with them.

   Y said that when his mother and father were together, his father used to take him to the park, take him to school, played “hide and seek” and “snakes and ladders” with him.

   X presented as vulnerable and very teary.  He had been hit in the nose by Y and suffered a bleeding nose about 30 minutes prior to speaking with this author (in the waiting room) and he remained upset from this incident in his interview with this author.  When asked about his relationship with Y, X curled up in his chair in a ball and sobbed.  He said that his relationship with his brother is no good, that his brother hurts him and that his mother is unable to stop these incidences. 

   X said that he finds it difficult to make friends and that he finds school work hard.  He described himself as generally happy, but sad today.  He is a scared of his mother when his mother smacks him when he is “naughty” and he is sad when he thinks about his mother and father.  X thought that his father felt sad and that his mother felt angry.

   Z presented as confused.  She said that she misses her father and would like to see him, that she did not love her father because he is “naughty” and that she enjoyed spending time with her father because of activities they did together.  She said that she feels safe while with her mother and her mother’s partner (who appears to live with them).  She said that she does not feel safe while with her father, however this author was unclear as to why or when she had felt unsafe. 

   The children each present as vulnerable.  Despite the recent significant changes in their lives, the complicated nature of these changes (and the children’s awareness of the allegations from the mother’s perspective) and the issues that the children face they appear to have limited supports in place for them.  None of the children have been to counselling.  W, X and Y do not want to attend counselling. There appear to be minimal supports in place for the children’s learning problems.

1. As will be seen from the reasons below, a number of matters become relevant.  For example, the Mother’s assertion that she ceased smoking marijuana “about three months ago”, that she smoked marijuana when under “stress”, and that she smoked daily for “a couple of months”.  Another matter of relevance is the level of W’s knowledge about the proceedings, and his mother’s allegations against the Father.  The Family Consultant’s observation that each child presented as vulnerable was also of significance.

2. Ms S was not required for cross-examination.

Dr K's Report

1. Dr K's Report dated 17 August 2014 is extensive.  As will be seen, it clearly influenced the parents to change their proposal between the time that it was released shortly before the Final Hearing, and the Final Hearing itself.  A clear understanding of Dr K's Report is therefore necessary.

2. At paragraph 83 of his report, he notes the significant neglect to which the children have been exposed to:

   The information from the documents and my interviews with the children themselves, alone and with the parties, is strongly suggestive of the children having experienced significant neglect during the period of the parental relationship; that is neglect of their emotional, intellectual and developmental needs.

3. At paragraph 84, Dr K notes that each parent blames the other for this past neglect.  He notes that the Father blamed the Mother particularly for W’s poor school attendance because of her cannabis use, but the Mother blamed him for this problem because he would take W out to lunch on school days.

4. At paragraph 85, and drawing on various sources to which he had access, he provides examples about the neglect that the children had experienced:

   85.1The children missing significant days of school, for example the (omitted) Public School documents include information about W missing significant time, particularly either side of the weekend, in 2007, and 38 days in 2012.  The father’s affidavit of June 2013 suggests that Y also missed significant days in 2012 and 2013, and Z in 2013, but I have not seen such direct evidence.

   85.2 Language, social, learning and cognitive difficulties in W and Z not being picked up, assessed or addressed until they commenced school, and the school became concerned and initiated assertive action. Such concerns being assessed and addressed relatively late in X (age 4) considering their severity, and only with assertive action from concerned professionals. This action was initiated for W in 2007, X in 2009/10, and Z in 2013.

   85.3 Police description in November 2008 that the home was “filthy”, with “rubbish and food all over the floor”.

   85.4Passivity in the parenting system and a failure to follow through on appropriate professional assessment and intervention regarding developmental or medical concerns in the children. This is reflected in the report from the Allied Health Multidisciplinary Mobile Service (undated, but appears to have been produced late 2009), which lists the following concerns raised with but not effectively addressed by the adult system: developmental review forms provided to parents but not completed, lumps in X’s neck where doctor had recommended tests not addressed, need for speech therapy not followed through with, recommendations for playgroup and preschool not followed through with.

   85.5In that same report, the mother’s description of X’s sleeping habits in 2009, i.e. that he watches DVD’s until late, then sleeps in. Parental passivity and lack of agency about changing this, despite this process disrupting X being able to attend recommended development-enhancing activities.

   85.6In that same report, a note that X (age 4 ½) and Y (age 3 ½ ) are wearing “pull-ups day and night”, and not yet toilet trained. Their not being toilet-trained will also have inhibited the children’s attendance at developmentally beneficial activities.

   85.7A concern expressed to and by Community Services in May 2010 that the parents were not following through with appointments and treatment for the children, leading to a referral to Brighter Futures that did not proceed as the mother moved home [it proceeded in 2011].

   85.8Reports from the 2011 Brighter Futures intervention are also suggestive of passivity and lack of effectiveness in the parenting system.

   85.9The school counsellor at (omitted) Public School notes an interaction with the mother on the morning of Monday 13^th March 2013 (two weeks prior to parental separation), where the mother and children arrive at school  having driven up from a weekend in (omitted) [a 46 minute drive on Apple Maps App] that morning, with mother and children “very stressed”. She tries to make recommendations about readying the children for school.

5. It should be noted that all of the documents to which Dr K had reference were tendered in evidence.  His observations about this material are entirely consistent with what the documents say.

6. At paragraph 86, however, he gives his own professional impressions about neglect issues:

   86.The children’s presentation at interview with me was consistent with their having experienced relative neglect of their emotional, intellectual, developmental and practical day-to-day needs.

   86.1The children overall presented with an anxious-avoidant attachment style, which is a pattern that typically develops when a child learns that expression of desire or need will be ineffective either because there will be no adult response, no effective adult response, or an aggressive/ aversive adult response. The child thus learns to suppress their own needs and desires and to accept what life has on offer, to suppress negative emotion and to replace it with “false positive” or restricted emotion, and to become pragmatically self-reliant.

   86.2On interview with both parents and alone, all four children presented as a little flat and self-contained in emotional state.

   86.3The children described events involving lack (for example that they couldn’t think of something they liked doing with mum, or that dad used to be at work all the time) or loss (for example, that they do miss seeing dad) with pragmatic recognition of the same, but without any aggrieved stance or agitation for change, or any agent intention. There was a sense of a passive “shrug of the shoulders” [my term].

   86.4The children described positive events with some positive energy, but in present tense not in future tense, and with a restraint and moderate “take it or leave it” [my words] disconnection that suggested to me that they have learnt protectively not to come to rely upon the longevity of such experiences. An example was their appreciation of the mother’s partner and his current active, interested role in their lives. An example for W of the wisdom of such an approach was seen in his being rather philosophical and “take it or leave it” about not having proceeded with his soccer in 2013.

   86.5The children described their past and current experiences in terms of their own pragmatic adaptation to circumstances. For example, they preferred the parents separated rather than together, because there was less arguing, and mum was happier. Y told me that if he had to choose, he would probably stick with living mostly with mum, because he was “used to it”.

   86.6When I asked the children for their wishes with regard to the matters before the court, all four presented as rather disconnected and lacking energy in their responses. My impression was that they were not used to being consulted, and did not have an expectation of the adult world that their view would be material. 

   86.7More than that, the children were perhaps rather bemused and uncertain about my question, as if “taken off guard” [my words]. My impression was that they were not used to thinking in terms of their own wishes. Rather, they were protectively in the habit of going with what life offered them. In some ways, I was asking them to go somewhere dangerous, that might evoke intense desires and emotions for which there would be no effective expression or outworking. 

   86.8I note that all 3 older children when asked whether they wished they could decide the matters before the court themselves, or were glad that the adults decide, chose the latter. In my experience, this degree of passivity and willing stepping back from an agent role is unusual in older children and adolescents in our culture. The one who wanted to have her own say was the youngest, and perhaps the most naïve about family processes. This is the opposite of what is usually seen in non-neglectful families in our culture, where young children have a learnt appreciation of and are willing to defer to adult wise omniscience, and older children have come to expect through experience that their perspective will be valued and taken into account.

7. Having regard to the very serious allegations made about family violence and abuse, Dr K makes a number of observations about this at paragraphs 89-94 inclusive. 

   The children’s past exposure to abuse or family violence

   89. Whilst the children’s presentation was suggestive of their having experienced parental neglect, it was not suggestive of their having experienced parental abuse, or of their having experienced family violence which they perceived as dangerous to themselves or to either parent.

   90. This presentation does not preclude the possibility that the children may have experienced abuse or dangerous family violence, so information to that effect from other sources should not be discounted on the basis of the children’s presentation alone. This is particularly the case where children take an anxious-avoidant attachment style, as such children can present as composed and functional, even in the context of danger and as an adaptation to danger.

   91. That said, I feel that it is notable that none of the 4 children expressed to me a fear of either parent, or a fear for either parent at the hands of the other.

   92. In my view, the family consultant interviews with the children have a similar tone, in that the children’s concerns about the father are ambivalent and appear to arise from maternal report not lived experience, and the only concern expressed about the mother is by X, who describes being  scared when she smacks him, when he is naughty. 

   93. The children’s description to me of their experience of the parental relationship was consistently one of frequent “arguing” and “yelling”, which they perceived as mutual between the parents, aversive and wearying (in that they much prefer now being free of it), impacting on the mother’s wellbeing (in that they now observe that she is much happier), but not as dangerous to either parent or to themselves.

   94. In talking about experiences in the family during the parental relationship, the children did not present as vigilant or as inhibited. They did not give intense, detailed or fragmented accounts consistent with traumatic memory. They did not pause, freeze, leave gaps or refuse to visit aspects of the history [with the exception of W when asked about mother’s and maternal grandmother’s cannabis use]. Rather, they gave a rather weary and almost pedestrian account of “the fighting”, which was consistent with their experience being primarily of neglect associated with parental distraction, demoralisation and disorganisation, rather than abuse, or perceived danger.

8. Having reviewed the material before him, as well has having interviewed the parents, Dr K formed an impression about the nature of family violence and dysfunction that had occurred within the parental relationships, at paragraphs 95-104 inclusive. 

   The nature of the family violence and dysfunction that occurred within the parental relationship

   95. I think it likely that a pattern of family violence developed early in the parental relationship, and persisted throughout the relationship.  I formed the view that rather than one parent being the perpetrator of such a pattern upon the other, the two parents became caught up in a pattern where each was both a perpetrator and a victim, and each was fuelled by hurt to continue their pattern of coercive behaviour towards the other.

   96. I am cautious in coming to such a conclusion, as I note that in many circumstances where a perpetrator has been very asymmetrically holding the power and wielding it against the victim, the perpetrator will point to the victim’s distress and intermittent struggle in order to paint a picture of symmetry.

   97. But, my impression remains that this was a circumstance of an immature, mutually coercive and mutually destructive “arm-wrestle” [my words] for control and to have one’s needs met in the relationship and in the family, which brought out the worst in each parent, rather than one parent holding a dominant clenched fist of power, and the other being submissive.

   98. It is important to note that in using the term “family violence” I am not suggesting that each parent has necessarily been physically violent to the other. I am using this term as it is commonly used in clinical practice and in the clinical and social sciences literature (interchangeably with the term “domestic violence”) to denote a pattern of behaviour within a family relationship that is coercive, intimidating, disrespectful, and harmful to the other.

   99. The mother said in her statement to police of March 2013 at Annex E to her affidavit of May 2013, that she was “never really assaulted, it was more emotional and psychological harassment”. In the same statement, she makes reference to the father holding her by the throat in 2002 in the context of the parental argument that led to a 12 month AVO against the father, later extended a further 2 years.

   100. The father in his affidavit and at interview described the mother having attacked him physically and scratched him on a number of occasions. The mother at interview agreed that she had scratched him, but only when he was tickling her in a cruel way, continuing beyond when she signalled him to stop.

   101. I think it likely that the above assertions of each parent are at least in part true, but I note that both parents agreed that the conflict in the relationship was not primarily physical.

   102. An example of mutual coercion and its detrimental impact on both parents was the issue of sexual relations within the relationship. At interview, both parents described a pattern developing relatively early in the relationship, that the mother would mostly decline sexual intercourse with the father, but would agree to the same from time to time in exchange for the father providing something that she needed, in a non-sexual domain of life. Both also agreed that the mother had slept on the lounge from about 2009, perhaps from soon after Z’s birth in 2008.

   103. What struck me was how each perceived the other as cruel and disrespectful in this process, and each experienced the process as distressing and demeaning.

   104. The mother described the father being coercive in refusing for example to hand over money or not to contest the AVO in 2003 if she did not have sex with him. The mother spoke of these processes in an awkward and ashamed tone that suggested to me that she experienced intercourse in this context as intrusive, disrespectful and dehumanising. My impression is that the mother’s living arrangements have often been reactive and disorganised and have been complicated by the demands of cannabis addiction, and thus she will often have experienced a pressing and contingent need for example for funds or for the father to agree to an AVO or to be out of the house during a period of scrutiny by a government agency. In this context, she did not perceive the transaction of sex-for-compliance as a choice.

9. The torch in the vagina allegation made by the Mother becomes quite significant in her case.  Dr K refers to this at paragraphs 105-106. 

   105. The mother described in similar awkward and ashamed tone the incident where she found the torch in her underpants when pregnant with Z. This incident appears to have been experienced by the mother as particularly intrusive and demeaning, amplified by the broader context of her sexual relations with the father that she experienced similarly. The father confirmed at interview that over the years since that time, the mother has intermittently raised the issue with distress and accusatory tone, though he denies carrying out the act.

   106. If the father did insert the torch into the mother’s vagina without consent then deny the same, this act is a marker of him having come to a very disconnected and depersonalising stance towards the mother with regards to their sexual relationship. If he did not, then it would appear to me that the mother has become connected to this narrative as symbolic of her broader experience of her sexual relationship with the father. Her presentation was not consistent with it being merely a utilitarian or vexatious deliberate mistruth.

10. As it turns out, the Mother’s allegation about this incident resulted in charges being laid against the Father many years later and of him being acquitted at a trial with a judge and jury.  Significantly, the Mother’s own proposal to the Court about the Father spending time with the children seems strikingly inconsistent with the nature of the allegation made. The totality of the evidence before the Court will lead it to conclude that the event did not take place as the Mother alleged.  What in fact happened is not known.  The Court does not rule out the possibility of fabrication, but obviously notes Dr K’s opinion on the matter, that is, that her presentation was not consistent with a utilitarian or vexatious deliberate mistruth. 

11. One of the contested issues in this case is about finances, and control of finances, prior to separation.  In this regard, Dr K observes at paragraphs 117-119:

    117.With regard to money, the father’s account was more in keeping with my impressions of the mental health of each party and the relational dynamics of the couple, than was the mother’s.

    118.The father told me that early in the relationship, there was mutual need, waste and coercion, with the mother spending money on cannabis and the father on gambling. As time went on, the father described controlling his gambling and working hard, but becoming increasingly frustrated about funding the mother’s and at times the maternal grandmother’s cannabis use. This issue then came to a head when he took his (occupation omitted) apprenticeship, and a resulting decrease in pay despite still increased work hours. This shifted the cost-benefit analysis for the mother, and contributed to increased conflict.  The father said of this “last year or two”, “she’d go off over every little thing… I was working a lot… she was angry because I was never home, and I was angry because she smoked a lot of pot”.

    119.I hypothesise that these work hours, financial and cannabis-supply factors contributed to the mother spending more time in the locale of the maternal grandmother and her current partner during those last few years of the parental relationship.

    Dr K’s opinion is consistent with the evidence.

12. The circumstances of the separation were highly contentious as between the parents.  In this regard, at paragraph 121, Dr K notes:

    The father’s description of the chain of events leading up to parental separation is more in line with the police reports and my overall impressions of the situation, than that of the mother. I think it likely that the separation was not precipitated by maternal concerns about paternal sexually intrusive behaviour or about concerns for her own or the children’s welfare in that regard, but by her desire to be in the (omitted) at that time. The mother’s hand may then have been pushed towards an absolute separation and towards her disclosures to police, by the paternal threat to himself call DoCS, the police and other government agencies about the mother.

1. Turning to the future, Dr K considered the risk of emotional or physical abuse or of neglect in the mother’s care at paragraphs 122-128:

   Risk of emotional or physical abuse or of neglect in the mother’s care.

   122.In my view, there is a significant risk of neglect of the children’s basic needs for food, shelter and protection from harm, and their more complex emotional, intellectual, relational and developmental needs in the mother’s sole care.

   123.Associated with neglect, there is some risk of harm to the children through misadventure, or harm to each other through inadequate boundaries as occurred when one child punched the other in the nose in the family consultant’s waiting room in December 2013.

   124.In my view, the risk of physical abuse is low. If the father’s descriptions are correct, there is some risk of emotional and verbal abuse of the children by the mother when she is overwhelmed, powerless and fed up, but my observations of the children with the mother and alone talking about the mother suggest to me that overall they experience the mother as loving and non-abusive.

   125.This is particularly the case if the mother continues to use cannabis, and to fail to address her significant cannabis use disorder.

   126.In my view, this risk is mitigated by the mother’s cohabiting relationship with her current partner, who is active and agent both in supporting the mother and in the parenting of and responsiveness to the children. The mother’s partner expresses a commitment to her, and has now had a child with her.

   127.But, the mother’s partner also uses some cannabis, and minimises the significance of maternal cannabis use.  He separated from the mothers of his two older children when the children were pre-schoolers.

   128.In my view, the risk of exposure to ongoing family violence is low in the mother’s current partner relationship, which appears to be less volatile and more containing than the parental relationship, and experienced by the mother as more affirming and less demeaning/ demoralising.

2. Turning to risks in the Father’s household, at paragraphs 129-139 he states:

   Risk of emotional or physical abuse or of neglect in the father’s care.

   129. I will address first the risk associated with sexually inappropriate behaviour in the father. The mother expresses concern that the father may have accessed or sought to access child pornography. The father denies the same. If this was the case, then this would create significant risk to the children both of accidental or reckless exposure of the children to such material, sexual intrusion upon the children, and/or recruitment of the children as they grow older into this behaviour either of observing such material on the internet, or acting out child sexual abuse.

   130.This risk would vary with the nature and amount of material viewed and the manner in which it was stored and used, and I would be happy to comment further if such matters came to light.

   131.I am not aware of any evidence that the father has sought to view or has viewed such material, and the father denied having done so. He also denied any sexual interest, desires, fantasies or behaviour towards children or adolescents. 

   132.If the father does not address his insecurity, idealism and emotional reactivity in intimate relationships, then there is a risk to the children of recurrent partner conflict, possibly extending to family violence, in future paternal intimate relationships.

   133.If the court finds it likely on the balance of probabilities that the father has sexually intruded upon the mother by inserting a torch into her vagina, or has been otherwise sexually cruel or intrusive or disrespectful to her, then this is of added concern, and raises the risk of such behaviour recurring in future paternal intimate relationships.

   134.To the degree that family violence (with or without sexual violence) has occurred, there is a risk of recurrent such behaviour in future paternal intimate relationships, creating disruption of the children’s wellbeing because of distress in the father’s partner, possible loss of that relationship, and as the children get older, the risk that they will absorb problematic attitudes and model of problematic behaviours in the father.

   135.At interview with the father, he appeared to have already gained some thoughtful and ironic insight into his “needy” and insecure behaviour within the parental relationship, and its link to his sensitivities as a child in foster care. It would benefit him to extend that insight and consider its pragmatic implications in more depth, in therapy.

   136.If the father does not address his vulnerabilities to problem gambling, then there remains a risk of neglect of the children’s basic needs because of disruption of the father’s resources such as home or car or food or electricity, and emotional and interpersonal needs because of the time spent gambling or dealing with gambling-related issues.

   137.If the history given by the father is accurate, then he has already broken his gambling habits, in part through using control methods such as making sure he does not have easy access to significant funds. It would add an additional layer of protection if he sought some counselling to strengthen his management of this issue, so that he was less likely to recommence gambling, even if by chance he did have access to funds.

   138.In my view, beyond the risk factors above, the risk of future paternal abuse or neglect of the children is low.

   139.If the mother’s descriptions are accurate, there is some risk of neglect of the children’s practical and emotional needs associated with paternal sloth and disinterest in the children, but this maternal description with my observations of the father with the children and the children alone when speaking of the father. These observations would suggest that the father was an engaged and interactive parent.

3. As it turns out, and as will be discussed below, the evidence at the hearing clarifies the risk issues to the children in the care of both parents.  As it turns out, if anything, the risk to the children in their Mother’s care has been understated, whilst the risk in the Father’s care is not nearly as great as Dr K may have considered.

4. In relation to the Mother’s mental state, he found that the Mother has probably had a chronic, moderately severe depressive disorder from early adulthood and social anxiety dating back to childhood.  He felt that the Mother’s depression was now in partial remission.  He thought it likely that the Mother suffers DSM V cannabis use disorder, but moderate severity, and on an ongoing basis.  The issue of the Mother’s cannabis use is a significant one in this case.  It is important to record Dr K’s observations about this, as well as the information before him.  This is found at paragraphs 151-169. 

   151.The mother was rather disorganised and minimising in providing her cannabis use history. The mother put forward a minimising history regarding past and current use, which I think was in line with what has been her longstanding intention to cut back or stop. The mother then described in practice an ongoing need to use, and ongoing associated use.

   152.The mother told me that she first used cannabis at age 16. She had “just a few and nearly died… or maybe one and nearly died” from asthma and coughing, and did not progress to regular use at that time. Her period of most regular use was after W was born (age about 20), when “I was getting depressed… I was sick… it was usually at night time… it helped me to sleep, and with Mr Langs, and with the eczema pain”.

   153.The mother then described using cannabis “off and on for the next 4 or 5 years.. I don’t… I tried to stop doing it for quite a while… maybe 2 years… I mighta got started again…”.

   154.In the later years of her relationship with the father, the mother’s pattern had been to use cannabis “maybe on the weekends… no… it was probably him… he was probably using mine”.

   155.The mother explained that her current partner doesn’t use cannabis, and “cant… because of his job on the roads”. So, now when she uses, she will try to hide it from him. I think it unlikely that she does try to hide her use, at the mother’s partner appeared aware of her use, and told me that he had been a regular user himself until recently.

   156.The mother said, “it’s all this stress… it’s not something I wanna do… I just buy it when I need it”.

   157.The mother said, “I tried to quit 6 or 7 months ago… it was a struggle, when I started to think about my life”. The last time she had used was “maybe a month ago… on my own”. She had used “6 or 7 cones”.

   158.I note that when interviewed by the family consultant in December 2013, the mother reported that she “ceased cannabis use 3 months ago”, spoke of “occasional weekend use” to cope with stress, then referred to a period when she had been using daily for “a couple of months”.

   159.In her affidavit of September 2013, the mother refers to having last smoked “6 joints in one night” in July 2013.

   160.In her affidavit of May 2013, the mother reports her cannabis use having been “never regular”, having used ten times in her 13 year relationship with the father, and having last used in December 2012.

   161.The father describes the maternal grandmother smoking cannabis regularly in the house when she lived or stayed with them, including in the children’s bedrooms and when the children wre present. The mother claims that the maternal grandmother was a past cannabis smoker, but had quit some years ago because of severe chronic lung disease. I think it probably and perhaps likely that either the mother or the maternal grandmother or both were smoking cannabis in the home quite regularly over time.

   162.The father told me that the mother’s cannabis use was costing $80 per day, and that this was a large source of tension when he took a large pay cut to become an apprentice (occupation omitted). During that period, at one stage the mother and her current partner had stolen cannabis from the maternal grandmother.

   163.The mother considered that the cannabis might have been a problem sometimes, because it would take money that she might otherwise had spent on the kids, and “was bad for my health… probably”. She felt that overall the cannabis helped rather than hindered her mental health and her parenting. She said, “my nerves weren’t… I didn’t feel so sick… I was relaxed, happier”. With the children, “it gave me more patience… I never passed out”.

   164.The mother became irritable with my questioning on the subject, and commented that I appeared to be “making more fuss about marijuana than about Mr Langs’s sexual problems”.

   165.My impression is that the mother’s habits of cannabis use are being perpetuated by the role that cannabis plays in modulation of negative mood states, particularly anxiety and associated nausea and insomnia, and the mother’s lack of insight into the actual and potential detrimental effects of her cannabis use.

   166.Although cannabis is likely effective in modulating the mother’s immediate symptoms, this use will be exacerbating the mother’s depressive symptoms, amplifying her symptoms of anxiety and insomnia during cannabis withdrawal, and disrupting recovery by reducing engagement with current roles and relationships and dulling motivation to initiate new ventures.

   167.Cannabis can disrupt cognitive functioning, thus disrupting communication, reasoning and problem-solving.

   168.For the mother to cease use, she would need to find other ways to modulate her negative mood states, and would need to grow in insight of the current and potential future detrimental effects of her cannabis use on her own physical and mental health, and on her parenting.

   169.The mother denied other illicit drug use. She had tried heroin once, before she met the father. The father in his affidavit material makes reference to the mother using heroin in an ongoing way. In February 2007, there was a report to CS that the mother had needle marks on both arms, and was drug-effected.

5. Partly because of these matters, Dr K had formed the view that she had significant immaturity in personality functioning including a lack of reflective functioning, that is an ability to step back and think about her own thoughts, feelings, motivations and behaviour, and the thoughts, feelings, motivations and behaviour of others.  He expressed a view at paragraph 173 that the Mother was predominantly “externalising and blaming”, such that problems were shifted away from herself.

6. Some of the Mother’s behaviour arguably goes to issues of credit, another matter for the Court to decide in this case.  In this regard, Dr K makes a number of interesting observations at paragraphs 177-179:

   177.The mother was defensive about and gave externalising explanations for challenging history such as that from CS and the school about the mother sometimes reporting that the children were being disobedient, and she felt overwhelmed. The difficulty with such responses is that it does not give me an opportunity to understand the nature of the maternal struggles or concerns, and how she might have sought to address them.

   178.I was concerned that in addition to her unconscious externalising attribution of responsibility, the mother appeared to be consciously distorting the narrative to be consistent with her need to present herself as the good parent and the father as the bad.

   179.Examples of what appeared to be distortions in the maternal narrative were:

   179.1I have commented above on the mother minimising her history of cannabis use, and tending to report at each interview that she has just recently ceased use after a period of having cut down. When I asked the mother whether her previous pattern of use had been to use every weekend, , she said, “No… it was probably him… he was probably using mine… once… he was gunna sell it.

   179.2The mother in her affidavit material and at interview put forward on the one hand a picture of the father as slothful, sleeping in until lunchtime in a dirty, unkempt room, and on the other hand as always at work.

   179.3The mother was talking of the frustrations of the father wanting his brother to come over. She said, “he’d watch Mr Langs mow the lawn… “She then appeared to catch herself describing the father contributing to the household, and said, “Oh… I mowed the lawn… he never did”.

   179.4The mother put forth to me a narrative about the father doing almost nothing with the children, because he was either at work or not interested. She then initiated a challenge to the list of things that he used to do with dad that Y had told the family consultant in December 2013. She said, “I think he made it up… he thought he had to tell the lady something”. The mother said this in front of the children, twice.

   179.5When I asked the mother about heroin use, she diverted onto, “he told his family when we broke up I was a druggy… so they’d come around and beat me up or something”. When I then pushed for specifics about this concern, the mother did not appear to be able to provide any specifics, or to give any substance to the fear.

7. Notwithstanding the above, Dr K felt she certainly cared for the children, was capable of meeting their basic needs for food, shelter and protection from harm, though not necessarily consistently.  She had some capacity to meet the children’s more complex emotional, intellectual, relational and developmental needs, and certainly had positive intentions.  However, in this regard at 192 Dr K noted:

   
   
   But, the mother’s capacity to meet these more complex needs has been compromised over time, in my view by personality immaturity, by cannabis misuse, by the distraction of chronic conflict with the father, and by depressive symptoms. The above has been confounded by a lack of skills, for example in parent management techniques, and her personality immaturity disrupting her signalling of need, and uptake and application of skills.

8. Dr K noted from the subpoenaed documents a theme of the Mother’s inability to manage the children’s behaviour, something which he observed in interview.  He observed at paragraphs 194-197:

   194. When I saw the mother with the children, she engaged with them and with me about them when she was directly invited to do so, but did not appear to have in mind an agent monitoring parent role. On a number of occasions, something began to eventuate or escalate between the children (particularly the two younger two) that required some pre-emptive parental containment, but the mother did not notice or step in. On another occasion, one of the children was reaching right up behind the mother to try to get a box of toys down, but she just lent over slightly as she continued to listen to the conversation in the room, without registering that the child needed some help with the box.

   195. When I saw the mother with the children, each had a positive inclination towards the other, but there was a lack of energy in their connection, or substance in their description of shared experience. The children were quite self-contained, and appeared to manage the circumstance well, in terms of giving affirmation to the mother, but not over-stressing their mother.

   196. An example of the good intention but lack of depth/ agency was the mother responding to the question about what she enjoys about her job of raising the children, with “things… doing things with them… seeing them have fun…” I asked for any particular examples. “Not that I can think of…[her voice trailed off, and she looked a little expectantly to the children, who suggested the beach and the movies, at which time she added “walking the dog, with the kids”.

   197. The mother at times presented like one of the children in the room. An example of the same was her not pre-emptively stepping in, as above. Another was her response to W’s comment that he doesn’t like his mathematics teacher. The mother cut across W’s narrative with a silly giggle and the coy statement, “she got him in trouble… he had a detention at lunchtime”. The mother appeared to be focussed on joining with W and lightening the moment, rather than on the adult role of reinforcing values and expectations.

9. Dr K concluded at paragraph 198 that his overall impression of the Mother’s capacity is that it would continue to be compromised for as long as she used cannabis and that her likelihood of achieving sustained recovery based on long term abstinence was particularly low and that in any event it would be very difficult to monitor because of the Mother’s long standing habit of minimising or denying her use.

10. In relation to the Father’s parenting capacity and mental state, Dr K found that he does not have a current or ongoing mental disorder.  He has Attention Deficit Hyperactivity Disorder and has experienced DSM V gambling disorder, but probably does not have a current problem nor does he have a current substance misuse disorder.

11. At paragraph 223 he found that the Father had reasonable reflexive functioning and a capacity for empathic attunement.  He observed at paragraph 224 that, in contrast to the Mother who presented an externalising other-blaming narrative, the Father presented as a man who was willing to own his own failings and was quite frank in describing his past deceptive behaviour and irresponsible behaviour when gambling.  The Father acknowledged to Dr K that he had personality vulnerability in the area of intimate and family relationships.  The Father’s history did not suggest paedophilia or any other paraphilia.  Dr K formed the impression that the Father has remained committed to the children and to the responsibilities of parenthood.  His impression was that the Father probably would be able to organise his life around, and prioritise meeting the needs of the children.  He had the capacity to meet the children’s basic needs for food, shelter and protection from harm, and their more complex emotional, intellectual, relational and developmental needs.

1. A second sub issue arises, however, and this whether the transition period will proceed as smoothly as hoped in circumstances where there is a risk that the Mother will decompensate as a result of this decision.  Dr K referred to this in evidence.  This discussion is triggered directly by what seemed to be the Mother’s ambivalence about attending rehabilitation for her cannabis use if the Court were to order the children to live with their father.  From the Mother’s perspective, it was apparent she felt that she did not need rehabilitation because she had stopped smoking.  The fact that this epiphany came in the circumstances that it did, that is, a damning Expert’s Report, in the shadow of final hearing, and the fact that the Mother agreed that she had tried to stop before without success, hardly creates confidence in her ability to sustain abstinence.  Dr K correctly pointed out that the Mother’s use of cannabis was directly related to stress situations.  Making orders for the children to eventually live with their father will be very stressful for her, a trigger for relapse into cannabis use.  One would have thought the need for rehabilitation was obvious, but that did not appear to be how the Mother saw the situation.  Accordingly, the risk is that during the transition period, the Mother will relapse into cannabis use, that a crisis will be precipitated requiring the Court’s intervention, and that the transition into the Father’s care will need to be accelerated.  Another risk is that the Mother will not be able to contain herself, despite Court orders, and continue to speak with the children about these proceedings, thus making the transition far more difficult for them.  The Court acknowledges these risks.  Dr K encouraged the Mother to undertake rehabilitation irrespective of the outcome of the case, because of the obvious long-term benefits not just to her, but to the children as well.  From the Court’s perspective, the Mother needs to understand that during this transitionary period, this Court will have no hesitation in intervening if so asked to reduce the transitionary period, if the children are put in a situation of risk or neglect. 

2. The Court is required to take into account issues of practical difficulty and expense of the children spending time and communicating with a parent.  Even if the Father lives with the children in the northern suburbs of (omitted), there is no evidence to suggest there will be impediments to the children spending time with their mother, such that it will affect their relationship with her. 

3. The Court is required to consider issues of parental capacity.  Based on all the evidence, the Court has concluded that both parents have the capacity to provide for the children’s physical needs but that, on balance, there were real deficits in terms of providing the for children’s emotional needs.  The inability of the parents to contain their conflict during the relationship reflects poorly on them.  The circumstances after separation again raised concerns.  The Mother’s cannabis use, and her use of false allegations as a way of excluding the Father from her life and the children’s lives, all reflect an inability to meet their emotional needs to have their father in their life, and indeed to have their mother in their life unaffected by cannabis.  The Mother’s systematic involvement of the children in the litigation, seemingly oblivious to the potential adverse consequences on them, and the pressure that it placed on them, again demonstrates an inability to meet their emotional needs.  In a case where there are deficits in parental capacity with both parents, a close examination of the evidence suggests the Father is the least problematic in this regard.  The Mother’s inability to provide appropriate boundaries for the children, for example about getting to school on time, or at all, again is indicative of her inability to meet their needs.  There is also some uncertainty about the extent to which the Mother fully appreciates the special needs that X has, and has been prepared to attempt to address those needs. 

4. The Court is required to take into account the maturity, sex, lifestyle and background of the children, and their parents.  Of particular concern in this regard is the Mother’s failure to appreciate the extent to which she is involved, and she has involved her children, in a subculture where cannabis use is normalised.  The evidence is that the Mother, her sister, her sister’s partner, and the maternal grandmother are, or were at some stage, cannabis users.  There is a suggestion of criminal activity related to cannabis use in the Mother’s sister’s household, despite the presence of children, and in circumstances where the Mother agreed that her sister and partner were involved in the care of the children.  The Mother’s evidence was, as she was growing up, she was aware that her mother was a cannabis user, but that it was a hidden issue in their family.  She agreed that despite the fact that it was a hidden issue, she herself became a cannabis user.  The Mother herself could not rule out the possibility that her own mother’s mental health and physical issues were related to sustained cannabis use.  The Mother’s partner is a cannabis user, albeit occasional.  With this family background, the picture emerges of a subculture where the use of cannabis was normalised.  Indeed, at times the impression formed from the Mother’s evidence is that criminal activity associated with cannabis used was also normalised.  For example, the Court formed the distinct impression that she knew far more about her sister’s brother’s criminal charges than she let on.  If this was an issue for the Mother, she certainly did not convey it to the Court in terms of what she said, or how she said it.  The risks to the children are obvious if they continue to remain part of a lifestyle and subculture where cannabis use is normalised.  There is every indication on the evidence as to why the children need to be removed from this. 

5. The Court is required to consider parental attitudes to the children, and to the responsibilities of parenthood.  Many of the matters that have been discussed earlier in these reasons also reflect on parental attitudes.  Both parents were irresponsible during the period of their relationship, having regard to conflict from the Father’s gambling, the Mother’s cannabis use, and the way that these things distracted them from what should have been the core task and responsibility of parenting their children.  To a certain extent, both parents continued to lapse in the post-separation period, but the problem is exacerbated with the children in the Mother’s care.

6. The Mother agreed in cross-examination, for example, that the children sometimes did not get to school because she slept in.  Dr K certainly inferred that this in itself was attributable to her cannabis use, a sensible inference otherwise available to be drawn from the evidence anyway.  The Mother agreed that she sometimes simply could not get W to school. 

7. The Mother agreed that she involved the children in discussions about the proceedings, and particularly their views, right throughout the Court case, including during the hearing itself.  All of this is irresponsible parenthood.  All of this suggests a poor attitude to the children, and perhaps one that prioritises the parents’ need over that of the children.

8. The Father is by no means perfect in this regard.  There is more he could have done, particularly in the post-separation period, but his plan for the future, the Court accepts, is a responsible and child-focused one. 

9. The Court is required to take into account family violence, and any family violence order made.  The Court is satisfied that the issues of family violence were extensively canvassed in the evidence.  Dr K’s characterisation of the family violence as mutual is consistent with what evidence that there is.  The Mother’s allegations were inconsistent.  The serious allegations she made against the Father about sexual matters had an element of opportunism to them, in terms of timing, and he was in any event acquitted in what would appear to be unequivocal circumstances.  There are no matters of family violence or family violence orders that would contraindicate the making of an order consistent with the Father and Independent Children’s Lawyer’s proposal, provided that is otherwise in the best interests of the children.

10. The Court is required to consider making an order that is least likely to lead to the institution of further proceedings.  At one stage, the making of an interim order was contemplated, particularly one that would have enabled the Mother to complete her rehabilitation whilst the children progressively spent more time with their father, but did not go into his full-time care.  Ultimately, it was not a proposal pressed with much enthusiasm by the Mother, and, in any event, Dr K was firmly against it.  He thought it was much better for the children for a decision to be made, incorporating a period of transition, and for risk to them to be assessed in the context of the present hearing, rather than prolonging the process.  The Court accepts Dr K’s evidence in this regard.  Certainty is needed in the lives of these children, and that is best provided by a final order that does the best it can to anticipate the future, based on a study of the past.  

11. The totality of the evidence, as examined through the lens of the primary and additional considerations under section 60CC of the Act leads to a conclusion that it is in the best interests of these children that they transition into their father’s full-time care. The Mother’s proposal simply does not address the issues that were raised in the evidence, whereas the Father and Independent Children’s Lawyer’s proposals achieved this.

12. There is an issue about parental responsibility.  The Mother proposes equal shared parental responsibility, the Father does likewise, but the Independent Children’s Lawyer proposes equal shared parental responsibility with a system in place that would enable the Father to make decisions if a deadlock cannot otherwise be resolved.  The evidence suggested that the Father was committed to the principle of equal shared parental responsibility and would do what he could to make it work. 

13. Curiously, the Mother’s evidence was that she did not believe equal shared parental responsibility would work, even though she was proposing it.  The Independent Children’s Lawyer’s proposal reflects Dr K’s assessment of the situation.  In effect, Dr K suggested there were strong benefits to the children of equal shared parental responsibility, but there needed to be a provision to break the inevitable impasses in decision making that would arise as between two parents who have such intense communication and trust issues. 

14. The Court prefers the Independent Children’s Lawyer’s proposal, reflecting as it does Dr K’s recommendations. To the extent that it is necessary to do so, the Court would have found that the statutory presumption in section 61DA would have been rebutted, because it was not in the best interests of the children for the parents to have equal shared parental responsibility.

15. The Court is required to consider equal time, or substantial and significant time.  Equal time was not proposed by any party and was, in any event, something which on the evidence would have not been in the best interests of these children and not reasonably practicable.  All proposals were for substantial and significant time.  Dr K thought the Mother’s proposal for the Father to spend time with the children was minimalist, and the Court agrees.  In any event, for reasons articulated above, the Mother’s proposal is not in the best interests of the children.  The focus then turns to the Father and Independent Children’s Lawyer’s proposal.

16. Specifically, the focus is on the most appropriate parenting arrangement after the transitionary period, which the Court concludes, for reasons set out above, should be immediately before the commencement of term 1 in 2015.  The differences between the Father and Independent Children’s Lawyer’s proposal is whether the children should spend two blocks of time with their mother each fortnight, or one block of time.  Also, the Father proposes a total of four nights per fortnight during the school term, whereas the Independent Children’s Lawyer proposes five nights each fortnight. 

17. The Court’s preference, and, it would seem, Dr K’s preference, was for there to be a single block of time each fortnight, rather than two blocks, with a view to reducing the number of transitions for the children.  Avoiding the parents coming into contact with each other was clearly preferable, on the evidence.  This is best achieved by changeovers before and after school.  The Court believes that reducing these transitions from one household to another to two each fortnight reduces the pressure on the children.  Dr K is probably right in saying that the transition from the Father to the Mother’s household will probably be less stressful than the reverse. 

18. As to whether the children should be spending five nights a fortnight with their mother, or four nights, the Court accepts Dr K’s opinion that five is better for the children in the circumstances where they have spent so much time with their mother, and clearly have a good relationship with her.  They are old enough to sustain the gaps between one visit and another.  For the reasons explained by Dr K, a shared care arrangement like this is, in itself, a safety net for the children. 

19. There are no significant differences between the Father and Independent Children’s Lawyer’s proposals on other matters such as school holidays, special days, communication, changeover and restraints.

20. The Court had before it more than ample evidence to justify the making of Order 20 of the Independent Children’s Lawyer’s Minute, that is,  restraining the Mother from leaving the children in the care of her sister, her sister’s partner, or her mother, unless she is also present. 

21. The need for the Mother to continue supervised chain of custody urine analysis testing is self-evident.

22. Some amendments will need to be made to the transitionary regime proposed by the Independent Children’s Lawyer so that it dovetails more effectively into the interim order that the Court will make, which in itself adopted the Mother’s proposal.  These changes will be reflected in the orders made.  The necessity to complete the transition of the children into their father’s care before the commencement of the 2015 school year has meant that the transition is more abbreviated than is ideal, but the Court believes the benefits outweighs the disadvantages.

I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  13 November 2014

Schedule One

Minute of Order as proposed by the Applicant Father

1. That the mother and father have the shared parental responsibility for the children W born (omitted) 2000, X born (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008.

2. That the children live with the mother for a period of six months from the date of these Orders during which time the father spend time with the children as follows:

   2.1Every weekend on Saturday from 9.00 a.m. to 5.00 p.m. and Sunday from 9.00 a.m. to 5.00 p.m. for a period of one month.

   2.2Thereafter each alternate weekend from 6.00 p.m. Friday to 6.00 p.m. Sunday for a period of one month.

   2.3Thereafter each alternate weekend from 6.00 p.m. Friday to the commencement of school Monday for a period of two months.

   2.4Thereafter each alternate week from 6.00 p.m. Friday to 6.00 p.m. the following Friday for a period of two months.

3. Thereafter the children live with the father and spend time with the mother as follows:

   3.1Each alternate weekend from Friday after school until the commencement of school Monday morning.

   3.2Each week from Wednesday after school until the commencement of school Thursday morning.

   3.3For one half of the April, June/July and September/October school holidays each year as agreed between the parents and where there is no agreement, the first half of those school holidays commencing on the Friday at 6.00 p.m. at the conclusion of the school term, and continuing until the middle Saturday of those school holidays at 6.00 p.m.

   3.4For one half of the December/January school holidays each year alternating between the first half in even numbered years and the second half in odd numbered years.

   3.5In the event the children are living with the father during the first half of the school holidays, the mother spend time with the children from Christmas Day at 2.00 p.m. until Boxing Day 6.00 p.m.

   3.6In the event the children are living with the mother during the first half of the Christmas school holidays, the children spend time with the father from 2.00 p.m. Christmas Day until 6.00 p.m. Boxing Day.

   3.7On Mother’s Day each year when the mother is not otherwise spending time with the children, from 9.00 a.m. to 5.00 p.m.

   3.8That the mother’s time with the children be suspended on Father’s Day each year.

4. That for the purposes of Orders 2.1 to 2.4 the father’s time with the children continue during school holiday periods.

5. That for the purposes of changeover pursuant to Orders 2.1 to 2.4 where the children are not delivered to or collected from school the mother deliver the children to the father at (omitted) Police Station at the commencement of his time with the children and the father return the children to the mother at (omitted) Police Station at the conclusion of his time with the children.

6. That for the purposes of changeover pursuant to Order 3 where the children are not delivered to or collected from school the father deliver the children to the mother at (omitted) Police Station at the commencement of her time with the children and the mother return the children to the father at the (omitted) Police Station at the conclusion of her time with the children.

7. That the mother and father be restrained from using or being under the influence of marijuana or other illicit substances whilst the children are in their care.

8. That the mother and father be restrained from using or being under the influence of alcohol while the children are in their care.

9. That the mother and father be restrained from bringing the children into contact with any person who is using or who is under the influence of alcohol or illicit substances whilst the children are in their care.

10.That the mother submit to urinalysis (under supervision and chain of custody) upon request by the father’s solicitor within 48 hours of such request and such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001 Procedure for the Collection, Detection and Quantitation of Drugs of Abuse in Urine.  The father’s solicitor to communicate such request for urinalysis to the mother’s solicitor directly in writing.  The mother’s solicitor to forward the urine test results to the father’s solicitor immediately upon receipt.

11.That the mother and the father consult a therapist skilled in providing parenting advice and family and individual child therapy for a period of at least 12 months following the date of these orders with such consultations to occur as often as recommended by the therapist.

12.That each parent be restrained from criticising or denigrating the other in the presence of or within the hearing of the children.

Minute of Order as proposed by the Respondent Mother

1. That the parties have equal shared parental responsibility for the children W born (omitted) 2000, X born (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008.

2. That the children live with the Mother

3. That the children spend time with the Father as follows:

   a.Each alternate weekend from 10.00am until 6.00pm Saturday and from 10.00am until 6.00pm Sunday.

   b.On each of the children's birthdays for a minimum of two (2) hours on a school day and for a minimum of four (4) hours on a non-school day

   c.On the Father's birthday for a minimum of two (2) hours on a school day and for a minimum of four (4) hours on a non-school day

   d.On Father's Day from 10.00am until 5.00pm

   Once the Father has obtained suitable accommodation with the usual amenities and furnishings and can demonstrate that he has appropriate beds and bedding for each of the children:

   e.Each alternate weekend from after school (or 3pm) Friday until the commencement of school (or 9am) the following Monday

   f.For one week in each school holiday period.

   g.In odd numbered years, on Christmas Day from 10.00am until 2.00pm

   h.In even numbered years, on Boxing Day from 10.00am until 2.00pm

   i.At other times as agreed between the parties

1. That the Father's time with the children shall be suspended on the following occasions:

   a.On each of the children's birthdays for a minimum of two (2) hours on a school day and for a minimum of four (4) hours on a non-school day

   b.On the Mother's birthday for a minimum of two (2) hours on a school day and for a minimum of four (4) hours on a non-school day

   c.On Mother's Day from 10.00am until 5.00pm

   d.On the 11^th of June each year.

   e.In odd numbered years, from 4.00pm Christmas Eve until 10.00am Christmas Day

   f.At other times as agreed between the parties

Minute of Order as Proposed by the Independent Children’s Lawyer

Parental Responsibility

1. That, subject to the provisions of Orders 2 and 3, the parents have equal shared parental responsibility for the children of the relationship, namely W, born (omitted) 2000, X born, (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008.

2. In relation to major issues such as long-term decision-making, the following communication plan is to be implemented:-

   1. the parent who wishes to raise the issue must do so in writing, preferably by email;
   2. the other parent must respond within seven (7) days;
   3. the instigating parent must reply to that response within seven (7) days;
   4. further direct negotiations are to occur within the following seven (7) days;
   5. in the event no agreement is reached within the twenty-one (21) day period (unless it is otherwise mutually agreed to in writing between the parents to extend this time) both parents must make contact with Relationships Australia and thereafter do all acts and things as are necessary to arrange for an urgent family dispute resolution (mediation) session with a view to resolving the issue in dispute.

3. If the parents are unable to reach agreement about any matter pertaining to the long term care, welfare or development of the children, that the decision of the father shall apply, and the father provide notice to the mother of steps taken in exercise of this order.

4. That each parent shall have the responsibility for making decisions pertaining to the day to day care of the children, and in this respect, each parent shall be at liberty to enrol the children in, and facilitate their attendance at such extra curricular activities as they determine, which take place during the time the children are in their respective care.

5. In the exercise of day to day responsibility for the children, each parent shall notify the other of any extra curricular activities the children are enrolled in, and provide notice to the other parent of all information required to permit the other parent to be able to attend or participate in such activities in the manner in which parents are ordinarily invited to do so.

Living Arrangements

1. That, for the period of six months, commencing from the making of these Orders the child live with the mother.

2. That, subject to the provisions of Orders 24 and 25, at the conclusion of six months from the making of these Orders, the children live with the father.

Spending time arrangements

1. That the children spend time with the father:

   1. for the period of six months from the making of these Orders, as follows,:

   i.during NSW Public School terms:

   (A)each Wednesday from after school until 7pm;

   (B)each Saturday from 9am until 5pm for a period of one month commencing from the making of these Orders; and

   (C)each alternate Sunday from 9am until 5pm for a period of one month commencing from the making of these Orders;

   (D)each alternate weekend from after school Friday until 6pm Sunday commencing one month after the making of these Orders for a period of one month;

   (E)each alternate weekend from after school Friday until the commencement of school Monday for a period of two months, commencing at the conclusion of the time spent pursuant to Order 8a(i)(D);

   (F)each alternate week from after school Friday until the commencement of school the following Friday, for a period of two months, commencing at the conclusion of the time spent pursuant to Order 8(a)(i)(E);

   ii.For one half of each NSW Public School holiday period, and in lieu of agreement, the second half.

   2. From 9am until 5pm on Father’s Day;
   3. If the children are in the care of the mother, for 4 hours, which shall reduce to two hours on a school day, on the each of the father’s and the children’s birthdays, and in lieu of agreement, from 10am until 2pm on non school days, and from after school until 5pm on school days;
   4. From 3pm Christmas Day until 6pm Boxing Day each alternate year, commencing 2014;
   5. From 3pm Christmas Eve until 3pm Christmas Day each alternate year, commencing 2015;
   6. For one half of each NSW Public School holiday period, and in lieu of agreement, the first half in odd numbered years, and the second half in even numbered years;
   7. At such other times as the parties agree.

2. That the children spend time with the mother:

   1. From 9am until 5pm on Mother’s day;
   2. if the children are in the care of the father, for 4 hours, which shall reduce to two hours on a school day, on the each of the mother’s and the children’s birthdays, including the birthday of the children’s brother V, and in lieu of agreement, from 10am until 2pm on non school days, and from after school until 5pm on school days;
   3. From 3pm Christmas Day until 6pm Boxing Day each alternate year, commencing 2015;
   4. From 3pm Christmas Eve until 3pm Christmas Day each alternate year, commencing 2014;
   5. For one half of each NSW Public school holiday period, and in lieu of agreement, the second half in odd numbered years, and the first half in even numbered years;
   6. Once the children commencing living with the father pursuant to Order 7, during NSW Public School terms:

   i.ALTERNATE 1

   1.Each alternate weekend from the conclusion of school Friday until the commencement of school Monday commencing the first weekend after the children commencing living with the father pursuant to Order 7; and

   2.Each alternate Wednesday until the commencement of school Friday, commencing the second Wednesday after the children commence living with the father pursuant to Order 7;

   ii.ALTERNATE 2

   1.Each alternate week from after school Wednesday until the commencement of school Monday, commencing the first Wednesday after the children commencing living with the father pursuant to Order 7;

   g.At such other times as the parties agree.

Communication

1. That the children communicate with each parent by telephone:

   1. At any reasonable time, and in lieu of agreement, not less than two occasions in each week when the children are in the care of the other parent, with the parent who wishes to speak with the children, telephone the other parent’s mobile telephone number;
   2. At any time any of the children express a wish to do so, with the parent with the care of the children to facilitate the children contacting the other parent by telephone.

11.That the parents communicate matters pertaining to the care, welfare or development of the children:

a.by telephone in the case of emergency;

b.for pressing but non emergency issues, by short factual text message;

c.for minor day to day issues, by email or letter.

1. That the parents are each to ensure that the other parent is kept informed of:-

   a.any serious medical problems or illnesses suffered by any of the children and/or any invasive medical procedure performed on any of the children, with the other parent to be notified as soon as is reasonably practicable;

   b.any medical emergencies involving any of the children, with the other parent to be notified immediately;

   c.any medication that has been prescribed for the any of the children that needs to be taken during the time any of the children are in the care of the other parent, with the other parent to be notified at the time of changeover;

   d.any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding any of the children, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);

   e.any social or religious functions which any of the children are to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;

   f.the telephone contact number of the parent, with any changes to be advised within twenty-four (24) hours;

   g.the email address for the parent, with any changes to be advised within twenty-four (24) hours;

   h.any other matter relevant to the welfare of any of the children, with the other parent to be notified as soon as is reasonably practicable.

Changeover

1. That the parties do all things necessary and sign all necessary documents to enrol to use the CatholicCare Supervised Contact and Changeover Centre (CSCCC) for the purposes of changeover to be effected pursuant to Order 8(a).

2. That, unless otherwise agreed, where changeover cannot be effected at the children’s schools, that changeover be effected at CSCCC, with each parent to bear their own costs for the use of such service.

3. If CSCCC is unavailable to effect changeover pursuant to these Orders, and where changeover cannot occur at school, then changeover will be effected, unless otherwise agreed, at (omitted) Police Station with the parent who has the care of the children to deliver the children to the care of the other at (omitted) Police Station.

Restraints

1. Each parent is restrained from making critical or derogatory remarks about the other parent or members of the other parent’s family or household in the presence or hearing of any of the children and each parent must immediately remove the children from the presence of any other person who does so.

2. Each parent is restrained from:

   1. Assaulting, molesting, harassing, interfering, stalking, intimidating the other parent or any member of the other parent’s family or household; and
   2. using  abusive and/or aggressive language in any of the forms of communication set out in these orders (or any other form of communication that they use) and shall immediately remove the children from the presence of any other person who does so.

3. Each parent is restrained from taking, consuming and/or being affected by any illicit substance during any time any of the children are in their respective care or for the period of 24 hours preceding the commencement of such time and shall immediately remove the children from the presence of any other person who appears to be so effected.

4. Each parent is restrained from consuming alcohol in excess of the legal driving limit during any time the children are in their respective care.

5. That the mother be restrained from leaving the children in the care of Ms M, Mr C or Ms S, unless she is also present.

Specific Issues

21. If either parent refuses or neglects to do any act or thing, or sign any document necessary to give effect to these Orders, that the Registrar be empowered to execute such document on behalf of the defaulting parent pursuant to section 106A of the Family Law Act, 1975.
22. That each parent within 21 days, notify the Independent Children’s lawyer of the identity and contact details of their treating therapist who is to provide the therapy pursuant to these Orders.
23. That leave be granted to the Independent Children’s Lawyer to provide a copy of the Report of Dr K dated 17 August 2014 to:
1. Any therapist providing therapeutic care to either parent, or any of the children;
2. The (omitted) drug rehabilitation centre or any other drug rehabilitation centre to be attended by the mother.
24. That, pending the father securing independent accommodation, the children will spend time with the father at the home of Ms D and  Mr E.
25. That, prior to the children commencing living with the father pursuant to Order 7, the father provide to the mother, evidence of his changed hours of employment which facilitates him being substantially present during the time the children are to be in his care.
26. That, once the father secures alternate accommodation for himself and the children, the father use his best endeavours to ensure that, if it is necessary for the children to change schools, that such school has appropriate supports in place to accommodate the special needs of the children, and ensure that the change of school is affected at the commencement of a school term.
27. That, despite any other Order, the children shall not commence living with the father pursuant to Order 7, unless the father has secured independent accommodation and appropriate bedding for the children.  For the purposes of this Order, the Court acknowledges that appropriate accommodation will include the residence of Ms D and Mr E.
28. That the father, forthwith, use his best endeavours to obtain his drivers’ licence and a motor vehicle appropriate to transport the children.
29. That each parent bear their own costs, and the costs of the children making use of CSCCC drug testing and therapy required pursuant to these Orders.
30. That the mother submit to supervised, chain of custody urinalysis testing in accordance with the provisions of AS4308:2008, within 24 hours of a request by the father, which shall be limited to no more than 6 times per year, and the mother shall provide a copy of the test results to the father within 7 days of the test being undertaken.
31. That the time the children spend with the mother pursuant to these Orders shall be suspended if:
1. The mother fails to submit to urinalysis within 24 hours of a request to do so;
2. The mother fails to provide a copy of the results of the testing to the father within 7 days of the request made;
3. The mother returns a positive test result for any illicit drug;
4. The creatinine level on the test result is less than 1.76mmol/L;

and the time shall not recommence until the mother has provided two consecutive tests, taken 7 days apart, which show a creatinine level above 1.76mmol/L and negative for all illicit substances.

Authorities

1. That these Orders constitute authority of the mother and father to each receive copies of school reports, newsletters, notices and school photograph order forms and to attend any school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of the children's teachers. That these Orders constitute authority of the mother and father to each liaise with the children's treating medical practitioners and obtain information about any medical treatment and any other medical issues.

2. That both parents are permitted to liaise directly with the children’s schools, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the children’s progress.

Therapeutic Intervention

1. That the mother do all things necessary:

   1. to forthwith engage in therapy with a therapist skilled in working with adults with addictive disorders, including cannabis use disorder, and personality vulnerabilities and depression/anxiety and trauma attending as regularly as recommended, and  continue for so long as is recommended by the therapist;
   2. to attend all scheduled sessions with the (omitted) drug and alcohol rehabilitation programme and use her best endeavours to engage her partner, Mr S in such rehabilitation programme.
   34. That both parents, within 21 days, engage with a therapist skilled in providing parenting advice and family and individual child therapy, to assist each of the parents in acquiring skills to assist and support themselves and the children adjust to their changed living circumstances and facilitate the attendance of the children upon such therapist for at least 12 months after the making of these Orders, and attend for such duration, and at such frequency recommended that therapist.
   35. For the purpose of facilitating the preceding Order, that each parent propose to the other the names of 3 such therapists, and use their best endeavours to reach agreement as to the proposed therapist within 21 days of the making of these Orders.
   36. If the parents cannot reach agreement about the proposed therapist to be engaged pursuant to Order 36, the parents attend upon such therapist recommended by the Independent Children’s Lawyer, and in this respect, each shall contact the nominated therapist within 7 days of the nomination by the Independent Children’s Lawyer.
   37. That the father, forthwith, engage in therapy:
   1. With a therapist skilled in treating adults with emotional and relational difficulties and with some knowledge of gambling, to assist the father to address his vulnerabilities outlined in the report of Dr K dated 17 August 2014, and the father shall attend upon that therapist for not less than two years, at such times, and frequency as is nominated by that therapist.