Marbow and Marbow

FAMILY COURT OF AUSTRALIA

MARBOW & MARBOW

[2012] FamCA 24

FAMILY LAW – CHILDREN – Where both parties agree the children live with the father – During what periods and in what circumstances should the children spend time with the mother – Where the mother has significant issues with alcohol and co-morbid mental health difficulties – Where the mother’s issues create an unacceptable risk – the best interests of the children are to have their time with the mother supervised

Family Law Act 1975 (Cth)

APPLICANT:

Mr Marbow

RESPONDENT:

Ms Marbow

INDEPENDENT CHILDREN’S LAWYER:

Mary Alex

FILE NUMBER:

SYC

4123

2008

DATE DELIVERED:

31 January 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

29 November - 1 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE APPLICANT:

Guardian Lawyers

SOLICITOR FOR THE RESPONDENT:

Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All prior parenting Orders and injunctions in relation to the children R Marbow born … October 1999 and Y Marbow born … October 2003 ("the children") are discharged.
The children live with the Father.
The Father have sole parental responsibility for the children.
Except in the event of an emergency, the Father shall:
4.1.notify the Mother of any proposed decision relating to the long term care and welfare of the children and the reasons for the proposal, such notification to be given at least six weeks prior to a final decision being made, both by way of email and confirmatory prepaid ordinary mail to the mother’s residential address as advised from time to time pursuant to order 18; and
4.2.take into consideration any views expressed by the Mother about the proposed decision.
The Mother spend time with the children as follows:
5.1.For a period of four hours on one day each alternate weekend to be implemented as follows:
5.1.1.Time will take place every four weeks in Town 1 (or wherever the Mother is then living provided that it is not further away from the Father's home than Town 1); and
5.1.2.Time will take place every four weeks in Sydney with the Mother spending the first two hours with one child (alternating each Sydney visit) and the subsequent two hours with both children; and
5.2.As may otherwise be agreed between the parents in writing.
The time that the Mother spends with the children is subject to the following:
6.1.It shall be supervised by Ms C or, if she is unavailable, by a third party nominated by the Father provided that the supervisor has qualifications or experience relevant to the care of the children; and
6.2.The Father shall be responsible for the costs of supervision.
Pursuant to order 6, supervision shall cease when:
7.1.for R, when he reaches the age of 15;
7.2.for Y, when R reaches the age of 15 and is present with her or when Y herself reaches the age of 15; or
7.3.the parents agree in writing and the Father’s consent shall not be unreasonably withheld in the event that the Mother provides evidence of a substantial change in her behaviour including evidence from a rehabilitation clinic that she has satisfactorily undergone treatment for drug and alcohol abuse and is in a fit and stable condition to spend time with the children unsupervised.
For the purposes of communicating about matters relating to the children, the Mother and the Father shall communicate by:
8.1.telephone where the matter is of an urgent nature;
8.2.by letter, email and/or text messages where the matter is not urgent; or
8.3.such other method to which the Mother and the Father may agree.
The Mother communicate with the children by telephone at any reasonable time, with the Father to ensure that the children are able to speak to the Mother in privacy at times when either express to him a wish to do so.
The Father shall:
10.1.within 14 days of the date of these orders; and
10.2.within 14 days of the any subsequent enrolment of the children at any school, do all acts and sign all documents necessary to authorise the children’s school(s) to provide the Mother with copies of all reports, circulars, notices and documents in relation to each of the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and activities to which parents are invited as well as to provide to the Mother any and all information which may be sought from time to time by the Mother in relation to the children.
Both the Mother and the Father shall be entitled to attend all school functions, parent teacher nights and activities that parents are ordinarily invited to attend, however such attendance(s) shall be at the discretion of the children’s school(s).
The Father shall inform the Mother in writing as soon as practicable of any extra-curricular activities that the children are involved in and the details (including date and location) of any events associated with such extra-curricular activities that parents are ordinarily invited to attend.
Both the Mother and the Father shall be entitled to attend all events associated with the children’s extra-curricular activities that parents are ordinarily invited to attend, however such attendance(s) shall be at the discretion of the organisation or body responsible for holding the event.
The Father shall inform the Mother in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("medical consultant") in relation to the children.
The Father shall ensure that the Mother is provided with a copy of any report by any such medical consultant in relation to the children, within 14 days of the Father’s receipt of the report.
Both the Father and Mother shall be entitled, subject to the discretion of the medical consultant:
16.1.to attend any appointments with any medical consultant relating to the children; and
16.2.to discuss the children’s condition with such medical consultant,
The father shall ensure that the Mother is notified as soon as practicable if:
17.1.either child is admitted to hospital;
17.2.either child is involved in a medical emergency; or
17.3.either child will be required to take medication when he or she spends time with the Mother, in which case the Father shall advise the Mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the period that the child is to spend with the Mother.
The Mother and the Father shall advise each other in writing of:
18.1.any change to their residential address, such notification to be given no later than 28 days prior to the proposed change and include the details of their new residential address;
18.2.any change to their email address, such notification to be given no later than 7 days prior to the proposed change and include the details of their new email address; and
18.3.any change to their telephone contact number(s), such notification to be given no later than 7 days prior to the proposed change and include the details of their new telephone contact number(s).
The Mother and the Father:
19.1.shall not make critical or derogatory remarks about the other parent, the other parent’s family members and members of the other parent’s household in the children’s presence or hearing; and
19.2.shall do all things necessary to ensure that no other person makes critical or derogatory remarks about the other parent, the other parent’s family members and members of the other parent’s household in the children’s presence or hearing.
The Father is restrained from consuming alcohol to excess at anytime when the children are in his care.
The Mother is restrained from consuming alcohol:
21.1.For a period of 8 hours prior to any period of time that she spends with the children; and
21.2.During any period that she spends time with the children.
The Father be at liberty to remove a child or the children from the Commonwealth of Australia without the mother's consent in the following circumstances:
22.1.For the purposes of a holiday provided that:
22.1.1.Such holiday is for no longer than one month;
22.1.2.There are no more than two such holidays each year;
22.1.3.Not less than four weeks prior to departure he provides the Mother with a copy of the proposed itinerary for the travel including flight details, where the children will be staying and emergency contact numbers; and
22.1.4.The Father ensures that the children are able to telephone the Mother at least once a week while they are overseas.
The father be at liberty to allow a child or the children to leave Australia with a teacher or a coach for the purposes of school or sporting trips provided that:
23.1.Not less than four weeks prior to departure he provides the Mother with a copy of the proposed itinerary for the travel including flight details, where the children will be staying and emergency contact numbers.
The names of the children, R Marbow born … October 1999 and Y Marbow born … October 2003 be removed from the Airport Watch List and the father request the Australian Federal Police to do so.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marbow & Marbow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4123 of 2008

Mr Marbow

Applicant

And

Ms Marbow

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The main issue in this matter is the use of drugs and alcohol by the mother and her mental health. There are serious allegations about alcohol abuse in relation to the mother.
The children of the parties, now aged 12 and 9, have been exposed to a high level of conflict between the parents and to the mother’s abuse of alcohol. The children are now living with the father and spending supervised time with the mother.
On 18 July 2011 a document was tendered (exhibit 5) listing the issues to be determined in the final proceedings. They are the following:
3.1.whether the presumption of equal shared parental responsibility applies;
3.2.the nature of each parent’s relationship with the children;
3.3.the ability of each parent to facilitate a relationship between the children and the other parent;
3.4.considering that the children are to remain living with the father:
3.4.1.what time should the children spend with the mother and where;
3.4.2.the need for flexibility considering the children’s commitments;
3.4.3.whether time with the mother should be supervised;
3.4.4.who should supervise the children’s time with the mother;
3.4.5.who should pay for the provision of supervision;
3.4.6.where should the supervisor collect and return the children;
3.4.7.what communication should the children have with the mother;
3.5.whether the mother has an addiction to drugs and alcohol and the effect this has on her parenting;
3.6.whether the father drinks to excess and the effect this has on his parenting;
3.7.the mother’s mental health and its effect on her parenting;
3.8.whether there has been domestic violence perpetrated against the mother or father; and
3.9.whether the father is permitted to take the children on overseas holidays.
By the time the final proceedings began, both parties had agreed that the children should live with the father and spend time with the mother. Necessarily, the case proceeded on the premise that the father’s parenting capacity was not in issue, and that it was issues around the children spending time with the mother and the mother’s circumstances which were to be the focus of the hearing.

APPLICATIONS

The father altered the orders he was seeking a number of times throughout the trial in response to evidence given during the hearing and at times to accommodate the mother’s preferences. In final submissions, the father supported the proposed orders of the Independent Children’s Lawyer (Schedule 1). The only change the father wished to make was to remove the requirement for supervision of R or Y upon reaching the age of 15, and if Y is in R’s presence, when R is 15.
The Independent Children’s Lawyer sought sole parental responsibility for the father and orders that the children live with the father and spend supervised time with the mother for four hours every alternate weekend. Half the weekends are proposed to be in Sydney and half in Town 1. A suite of further orders are proposed that will keep the mother informed about the children. The Independent Children’s Lawyer also seeks that the mother be restrained from drinking alcohol during the time she spends with the children or 8 hours beforehand. Supervision is said to cease when the parties agree. As I understood the Independent Children's Lawyer’s application, the father’s consent should not be unreasonably withheld if the mother demonstrates to the father that substantial changes have occurred in her use of alcohol.
The mother sought equal shared parental responsibility but agreed that the children should live with the father. She seeks that she spend unsupervised time with the children for 10 hours each week as well as significant holiday time. The mother had difficulty defining how this time would proceed but made some suggestion that she would see the children from Friday after school until Sunday evening. The mother indicated she now agrees to the father taking the children on overseas trips if she was made fully aware of the details and the itinerary. The mother’s paraphrased orders she sought, which are set out in her Response filed 15 July 2011 and her affidavit of 4 November 2011, are attached at Schedule 2.
The mother was asked whether, if supervision were required and she was to travel from Town 1 to Sydney to see the children, she would prefer a seven hour visit rather than a four hour visit, given that the children did not have to travel for three hours. The mother said this would be too difficult to manage without having a residence in which they could spend time, and would create resentment from R who would want to be other places in Sydney seeing his friends. She said that dividing the time with the children so that there was one-on-one time with each child and then time with both children together would be unmanageable if it was a seven hour period.

DOCUMENTS RELIED UPON

The applicant father relies on the following:
9.1.Father’s affidavit filed 23 November 2011;
9.2.Father’s affidavit filed 8 February 2011;
9.3.Father’s affidavit filed 7 August 2009;
9.4.Father’s affidavit filed 30 March 2009;
9.5.Father’s affidavit filed 23 February 2009;
9.6.Father’s affidavit filed 27 January 2009;
9.7.Father’s financial statement 16 March 2011; and
9.8.Father’s affidavit regarding financial statement filed 16 March 2011.
The respondent mother relies on the following:
10.1.Response filed 15 July 2011;
10.2.Mother’s affidavit filed 14 November 2011;
10.3.Mother’s affidavit filed 10 November 2011;
10.4.Mother’s affidavit filed 4 November 2011;
10.5.Mother’s affidavit filed 13 April 2011;
10.6.Mother’s affidavit filed 3 August 2009;
10.7.Mother’s affidavit filed 1 April 2009;
10.8.Mother’s affidavit filed 18 February 2009; and
10.9.Mother’s Financial Statement filed 13 April 2011.
The Independent Children’s Lawyer relies on the following:
11.1.Expert Report dated 4 June 2011;
11.2.Expert Report dated 2 June 2009;
11.3.Two bundles of supervision reports under cover of letters dated 5 August 2011 and 12 August 2011; and
11.4.Tendered documents from subpoena material.

SHORT HISTORY

The father was born in 1967 and is now aged 44 years.
The mother was born in 1969 and is now aged 42 years.
The parties commenced their relationship in December 1996 and married on 3 January 1998.
The child R was born in October 1999 and is now aged 12 years.
The child Y was born in October 2002 and is now aged 9 years.
The parties separated on 2 July 2008.
The father married Ms N in October 2011.

CREDIT

Mother

The mother had difficulty focusing on the fact that the hearing was about the conditions under which the children would spend time with her. She often strayed into what she perceived to be inadequacies in the father’s parenting capacity, despite having agreed the children would live with him.
During the hearing, the mother frequently denied the vast majority of her reported behaviours whilst heavily under the influence of alcohol. Her level of denial of alcohol use was quite worrying. She regularly deflected responsibility by accusing multiple professional note takers of inaccurate observations or bias. On many of the occasions when matters in official records were put to the mother she had little memory of what had happened but was not prepared to acknowledge that it was possible that some of the things that were recorded did in fact occur.
There were a number of inconsistencies in the mother’s evidence that led me to question the truth of her evidence. When she was late on the first day of the hearing she said she had come from Town 1. Later in the proceedings she said that on the first day of the hearing she was staying in the Sydney CBD and woke at 6am each morning.
When the mother was asked when she had her last drink she said she had consumed 3 glasses of punch the previous week, but later in the trial said she had drunk 2 glasses of wine on the Monday night before the hearing.
Before lunch on the first day of the hearing the mother said that before December 2010 she was drinking 4 or 5 days a week and she was self medicating during the period with 5 or 6 standard drinks on each occasion she drank. After lunch she sought to amend her evidence, and said she did not mean that average was her level of drinking up to December 2010, but that by ‘before December 2010’ she meant long before December 2010. I do not accept that that correction was tenable.
During the proceedings the mother made a comment that she had to pay money to have access to all the reports from Dial-An-Angel and had only seen them recently. The mother, however, had seen some prior reports. For example, I note that the supervision report of 7 February 2010 said the mother became angry about the supervisor’s previous report.

Father

The father did say in oral evidence that he never said the mother’s time with the children would be suspended if she did not pay for supervision. Exhibit 7 is an Amended Application in a Case dated 8 February 2011 and an Amended Initiating Application of 5 July 2011 which, in fact, request orders to that effect, as does a letter from the father’s lawyers of 1 October 2009 annexed to the mother’s affidavit material. There was nothing else that went to the father’s credit.
Overall, there is nothing in my observations of the father’s evidence that would give me any reason to disbelieve him.

Conclusion

Where there is any difference in versions given by the mother and father, I prefer the father. Where there is a difference between the mother and the notes of a person exercising a professional function, I prefer the version of the latter.

DETAILED CHRONOLOGY

Given that this hearing focuses upon the circumstances in which the children see their mother, this chronology does not deal with any claims by the mother going to the father’s parenting capacity.
The father was born in England in November 1967.
The mother was born in 1969.
In August 1992 the father’s child from a previous relationship, D, was born. She is currently 19 years old and has come to live in Australia recently.
The parties commenced their relationship in December 1996 and married in New Zealand in January 1998.
The male child R was born in October 1999.
The female child Y was born in October 2002.
On 1 February 2008 the mother attended upon Y’s preschool to pick her up after drinking over lunch. She arrived in a taxi. A report (exhibit 10) said she was found ‘paralytic’ in the bathroom of the preschool by a teacher. The teachers called the father to tell him to return home and then followed the mother’s taxi home, remaining at the house until the father arrived.
In February 2008 the mother admitted herself to the H Drug and Alcohol Clinic and was an inpatient for two and a half weeks. The children were cared for by the father, friends and a nanny. The father said the mother abstained from alcohol until March 2008.
During the week of 31 March 2008 the father received a telephone call from the school, who were concerned that the mother was not “100%” when she came to pick up the children. Kindergarten staff stayed with the mother and children at the mother’s home until the father arrived. There is a report from the preschool (exhibit 12) that appears to be dated in March, reporting that ‘[Ms A]’ offered to pick up the children but could not remain with them, and so the teachers went to the mother’s home and stayed until the father could attend. It was noted there were two young people in the house who made the teachers uncomfortable.
On 7 April 2008 the mother voluntarily admitted herself to the N Clinic until 1 May 2008. During that time the maternal grandfather assisted with the children, and when he returned to New Zealand, a family friend, Ms Z, cared for the children. The father said the mother abstained from alcohol for a week after discharge.
On 15 May 2008 the kindergarten contacted the father to inform him the mother was intoxicated and they would not release Y to her. Ms Z collected the children. Ms Z again observed the mother’s intoxicated state on another occasion in May 2008. A report (exhibit 11) says the mother told the staff she had been with her counsellor and had been diagnosed with bi-polar disorder, and smelled of alcohol.
After a confrontation with the father, the mother left the home from 27 May 2008 to 30 May 2008. The father lodged a police report during this time to indicate her disappearance. She disappeared for days at a time on a number of occasions throughout the next year or more.
From 4 until 9 June 2008 the wife was again voluntarily admitted to the N Clinic. She presented drunk with a blood alcohol level of 0.24, and admitted to taking cocaine within the prior two weeks. It was noted in the report (exhibit 8) that she did not want to stay for the program and had not improved when she left the facility.
From 9 June 2008 to 18 August 2008 the father was on compassionate leave from work to respond to the worsening situation with the mother’s alcoholism.
The father said that on 22 July 2008 the mother allegedly drank heavily and attempted to overdose on pills. An ambulance took her to hospital where an altercation occurred and the wife was placed in the mental health unit overnight.
On 30 July 2008 DoCS workers responded to the father’s notification and spoke with the mother. She allegedly continued drinking after they had left.
On 31 July 2008 the mother and father argued and the mother allegedly declared “You can have the kids. I’ll move out”. She returned on 6 August 2008. From 6 August 2008 the mother promised him that she would not commence drinking until she had collected the children from school and to the best of the father’s knowledge, the mother kept that promise.
From 1 to 10 September 2008 the father moved into a hotel.
On 7 November 2008 the father and mother had a disagreement after the father sent the mother’s visitors away. The mother spat at the father, punching and kicking him. The father locked her on the balcony and called the police who removed the mother. An interim AVO was applied for and was granted on 14 November 2008. The mother only stayed away from the home from 20 to 24 November and 3 to 13 December 2008.
On 9 November 2008 the mother was due to collect Y from a birthday party at 4pm and at 3:45 the mother texted the father to say “By the time you read this I’ll be dead”. The father collected Y.
On 10 November 2008 the mother came to the house with an unknown man to collect the children. The mother appeared intoxicated and the father refused to hand the children over to her. The mother allegedly tried to grab Y. The father put his arm around Y and pushed the mother away. The mother fell. She applied for an AVO that day and it was served on the father the next day.
On 11 November 2008 the mother presented at Hospital 1 and was examined for an hour. She had a blood alcohol level of 0.19, amphetamines in her urine, made threats of suicide without ideation or plans, and admitted to hitting the father the previous Friday (7 November 2011). The report (exhibit 9) indicates the mother was brought in after the father raised concerns for her welfare after threatening suicide. The mother agrees she may have threatened suicide.
On 3 and 6 January 2009 the mother was irate at the father. The police were called and the father left the home.
On 9 January 2009 the father moved into a furnished apartment.
The mother filed a Notice of Child Abuse or Family Violence on 8 February 2009.
On 23 February 2009 orders were made by Loughnan JR (as he then was) that from 1 April 2009 the children live with the father and spend time with the mother overnight each Wednesday, every alternate Saturday and every intervening Sunday. On that day the parties were also prohibited from consuming alcohol, illegal drugs or prescription drugs (without prescription) when the children were in their care and for the 8 hours beforehand. The mother moved into the father’s Sydney Suburb 1 apartment.
On 24 February 2009 the father said the mother made threats of harm against the father and herself, then called the police alleging the father was abusing the children. She was later taken by the police to Hospital 2 mental health unit and released the next day. The police report (exhibit 13) says there were threats of self harm, the mother was arrested under the mental health act and attempted to burn herself with a cigarette lighter while in the police van. The mother denies this.
On 27 February 2009 the mother was breathalysed and arrested. The father gained access to the mother’s residence where he found items smashed, and ziplock bags of a crystal substance. He called the police. The mother’s criminal record (exhibit 15) indicates she was charged with High Range PCA on 28 February 2009 and was ordered to pay $473, placed on a good behaviour bond and disqualified from driving for 18 months. I have no police report in relation to the crystal substance.
On 11 March 2009 while trying to collect Y, the mother allegedly encouraged Y to swear at the father and then the mother snatched Y, saying the father was a paedophile. The police were called to retrieve Y. The mother admits this, but says the reference to ‘paedophile’ was not to the father but to a member of the father’s family.
On 1 April 2009 orders were made by consent that the mother’s time with the children be limited to three hours on each Saturday, and supervised by Dial-An-Angel. The mother and father were ordered to both undertake fortnightly CDT testing, and the mother to undergo weekly urinalysis testing.
On 12 April 2009 the mother was charged (and later convicted) with bringing alcohol into a place of detention. She was visiting her friend Mr P in prison and had half a bladder of wine and some vodka in her bag after drinking with a friend in a hotel the night before.
On 23 May 2009 the mother’s supervised visit (the first for which reports were produced) was aborted when she was acting erratically and was under the influence of drugs and/or alcohol. The mother said she was trying to self medicate the pain from a skin graft over a severe burn and an abortion. R asked the mother if she was drunk.
In May 2009 Family Report Interviews were conducted by Dr L for the first expert report.
On 2 June 2009 Dr L’s first report was finalised.
On 13 June 2009 the mother had a supervised visit with the children. The visit ran smoothly, however the supervisor heard R ask the mother to stop telling him about the issues between his parents.
On 20 June 2009 the mother had a supervised visit with the children. The supervisor noted R was becoming more hostile.
In mid-July 2009 the mother was residing in a boarding house. On 13 July 2009 police were called to the boarding house the mother was living in, in an incident both the mother and the police considered a ‘set-up’ (by the owners of the house who were attempting to get her removed from their premises). They found the mother ‘well affected by alcohol’.
On 12 August 2009 I ordered that the parties have equal shared parental responsibility, that the children live with the father and that the children spend time with the mother for three hours each week, supervised by Dial-An-Angel. I also discharged the orders requiring CDT testing.
On 18 October 2009 the mother had a supervised visit with the children that ran smoothly albeit with the children misbehaving. The supervisor did note that the mother’s speech slowed despite having not consumed alcohol and that the mother encouraged Y not to leave at the end of the visit.
On 25 October 2009 the mother had a supervised visit with the children that ran smoothly albeit with the children misbehaving. The mother cried during the farewells.
On 1 November 2009 the mother had a supervised visit with the children that ran smoothly albeit with the children misbehaving.
On 8 November 2009 the mother had a supervised visit with the children that ran smoothly, despite the mother’s co-tenant being intoxicated.
On 14 November 2009 the mother had a supervised visit with the children that ran smoothly, despite the supervisor mentioning the mother’s speech was slow, possibly due to drinking the previous evening, evidenced by empty bottles in the bin. The mother said that date was the anniversary of a friend’s murder and she was probably emotional, or perhaps her slow speech was as a result of anti-anxiety medication she was taking which slowed her down.
On 29 November 2009 the mother had a supervised visit with the children that ran smoothly albeit with the children misbehaving.
On 6 December 2009 the mother had supervised visits with the children that ran smoothly, and the mother told the supervisor that she had not had a drink for three days.
On 7 February 2010 the mother had a supervised visit with the children where she became angry about the supervisor’s previous report and spoke about other adult issues in front of the children, even mentioning to Y that she wanted her ring back (engagement ring). Otherwise, the visit ran as normal.
On 10 April 2010 and 17 April 2010 the mother had supervised visits with the children that ran smoothly.
On 25 April 2010 the mother had a supervised visit with the children that ran smoothly, albeit with the supervisor declaring she was unsure if the mother had been drinking that day but she did not appear the same as previous visits. The mother said this was the anniversary of the week she got burnt and had an abortion and had probably taken anti-anxiety medication.
On 9 May 2010 the mother had a supervised visit. The mother told the children that they should be living with her and the children were uneasy. R told the supervisor that the mother said he was a ‘freak’ for living with the father. Both children were happy to return to the father.
On 22 May, the mother had a supervised visit with the children that ran smoothly, except that the supervisor could smell stale alcohol on the mother and she was dishevelled and ‘filthy’ which the children noticed. The mother said her unkempt state was due to oversleeping her alarm.
On 10 July 2010 the mother had a supervised visit with the children that ran smoothly.
In his affidavit of 8 February 2011 the father said the mother’s 21 August 2010 supervised visit was aborted when the mother appeared drunk and seemed to be drinking from a glass containing vodka. She apparently also told the children they were “pigs” and said “I am going to kill myself”. The children reportedly told the father they did not want to see the mother again. This account does not appear in the supervision report, which says although the mother appeared drunk, there was no risk to the children and the visit proceeded. It may be that the father was mixing up this account with that of 14 August 2010 where R took a sip from the mother’s glass and found that she was drinking vodka and made a comment about the mother killing herself when he was being driven home. This visit was truncated at the request of R, one hour early. There was also a disturbance where the mother said she could not afford to feed the children so much, but the mother said her words were misconstrued. The 14 August 2010 visit was not covered by the father in his affidavit material and so I assume the father’s recollection of the 21 August visit related to the 14 August visit.
On 18 September 2010 the supervisor to the mother’s visit with the children noted that she could smell alcohol on the mother from 2 to 3 metres away but did not appear to be intoxicated. As time passed the mother slurred her words, repeated questions and was unsteady on her feet. At the end of the visit there was a heated disagreement about the time the children were to be returned. The mother had ‘[Mr P]’ come to visit. Mr P had been released from prison in November 2009. The mother’s live-in relationship had ended in April 2010. The father was not happy about Mr P being there.
On 23 October 2010 the supervised visit went smoothly, but the supervisor noted the mother was particularly dishevelled with ripped clothes and large bruises on her arms. The supervisor overheard Y say “Mum I don’t want you to come to my birthday party” and R say “But mum you always call [D] a fat pig”.
On 31 October 2010 the mother had a supervised visit with the children that ran smoothly.
On 27 November 2010 the mother was charged and subsequently found guilty of using a carriage service to menace/harass/offend. The mother said she had texted an ex-boyfriend multiple times after he deleted the photos of her children off her phone.
The mother moved to Sydney Suburb 2 in December 2010 for six months.
On 18 December 2010 the mother’s supervised visit was aborted when the mother appeared to be under the influence of alcohol, due to her slurring. R noted that the mother was ‘drunk’.
On 5 February 2011 there was a supervised visit with the mother. R told the supervisor that the mother told him that the father and Ms N drink as much as the mother does.
On 12 February 2011 the mother’s supervised visit was aborted when the mother appeared to be under the influence of alcohol. She smelled of alcohol, placed her hands over her ears and grimaced a couple of times, and her coordination was impaired. When the supervisor said she was ceasing the visit the mother complained it was because she had accused another supervisor of being a prostitute. The mother said in oral evidence that on this day she had an ear infection that affected her balance.
On 20 May 2011 Dr L conducted interviews for the second family report. His second report was finalised on 4 June 2011.
The mother moved to Town 1 in July 2011.
The father married Ms N in October 2011.

MAJOR ISSUES

Mother’s Drug Taking and Alcohol Intake

The father gave evidence that the mother began drinking heavily from about January 2008 and that from July 2008 the mother began inviting people to the home to consume drugs and alcohol.
In relation to drugs, the father claims:
93.1.On 10 July 2008 he found a glass pipe in the mother’s make-up case;
93.2.On 19 July 2008 three men came to the house and smoked drugs and the father found a hypodermic syringe on the floor;
93.3.On 1 November 2008 the father found a glass pipe and the mother said she used it to smoke ‘coke’ but it did nothing for her;
93.4.The father found another glass pipe on 7 November 2008; and
93.5.On 27 February 2009 he found ziplock bags of a crystal substance in the mother’s home.
The mother agrees that in February 2009 the police found a crystal substance in her home. I do not have police records from this period before me. She blamed the two girls that had previously boarded with her after they all left H Drug and Alcohol Clinic and claimed that she had kicked them out after the father found a crystalline substance in one of their toiletries bag on a previous occasion. I note the March 2008 report from Y’s preschool that states the mother had two young lodgers living with her at that time. The mother showed poor judgment in inviting these two youths into her home and allowing them to be members of her household.
The mother admits to having a cocaine problem when she was 21 and living in London. Despite the wife’s admissions recorded in the intake report of 4 June 2008, the mother says she has not used cocaine since she lived in London. The mother tried to explain the intake report by claiming she was drunk and didn’t know what she was signing and that perhaps the doctor had her confused with other patient details. The clinical notes were not signed by the mother, nor would I expect them to be. The mother pointed to the fact that the typed intake note was not a contemporaneous record but a note a doctor had typed up and signed some time later. We do not have the doctor’s original notes. The mother accepted the first three of the four entries on the intake report to be accurate. I find it is unlikely the doctor would have recorded such a specific fact had the mother not provided it to him as part of the history she gave at the time. The mother admits using ‘speed’ amphetamines for between 2 and 4 months in 2009, ingested by inhalation and pipe. She said it was offered to her by an outpatient nurse (Mr F) from N Clinic as a way to help with the alcohol and stated “if I hadn’t have gone to [N Clinic] it wouldn’t have happened”. She cites this experience as the reason she is unwilling to enter another rehabilitation facility.
The mother admits a ‘crack pipe’ being found in her possession in 2009. She claimed that she was set up by Mr F, who was being paid by the father. I note this was during a period of time when she acknowledged she was using speed. In his 2009 report Dr L cast doubt over the mother’s assertion that her use of methamphetamine was experimental only.
In relation to the mother’s alcoholism, the father explains how the mother quickly deteriorated. She began drinking heavily in January 2008 and was self admitted to alcohol clinics on three occasions that year. He reports the mother drunk heavily with friends at the home and went out until very late. The mother was away from the home for many hours very frequently. The mother went missing from the home for days at a time on multiple occasions throughout the year. On two occasions indicated above, kindergarten staff contacted the father to inform him the mother was intoxicated when collecting the children.
In his report of 2 June 2009, Dr L noted that the mother had a record of high range DUI which occurred a couple of weeks prior to his interview with her. Both parents acknowledge the mother’s initial stint in a rehabilitation facility caused more problems than provided assistance, with inappropriate influences from staff and fellow patients and her involvement with amphetamines. In the initial 2009 interview the mother admitted to using alcohol from the age of 14 and drinking too much during her marriage. A brief testing measure of alcohol dependence put the mother in the “severe range highly suggestive of alcohol dependence”. Dr L concluded in his 2009 report that there was ‘no doubt’ that the mother had a chaotic mental state from various substance abuses, and that she was unable to effectively parent the children. He suggested a long term residential rehabilitation program for the mother of six to ten months.

The mother admits having had issues with alcohol ‘in the past’. She said in 2007 she was spiralling downwards after having given up her profession to be a stay at home mum, and having her relationship with the father suffer. She said she tried to responsibly address the issues, by getting counselling and voluntarily admitting herself to rehabilitation. She says in the rehabilitation clinic she frequently saw syringes, drugs being thrown into the premises, patients collapsing, and was distressed by the presence of children when she was not allowed to see her own. She said the father gave her no support and goaded her to drink, but she remained sober for a time. Counselling reports of the children record that in January and February 2009 the children said that the mother used to drink a lot but during this time she no longer drank to excess. This appears to have been short lived. Dr L refers to the mother’s CDT test results for April and May 2009. Her result for 21 April 2009 showed ‘excessive’ use of alcohol. The mother claimed she had last drunk alcohol 5 days prior to her 2009 interview with Dr L and had 6 standard drinks, but denies drinking frequently or to obliteration.
As I have set out in the detailed chronology, supervision reports reveal multiple concerns that the supervisors have had in relation to the mother’s behaviour and possible alcohol consumption. I note that on 23 May 2009, 18 December 2010 and 12 February 2011 visits were truncated due to the mother significantly presenting as under the influence of alcohol or drugs. Dr L notes one phone call was reported where the mother was inebriated and abusive.
The mother claims that the reports are inconsistent, fabricated, biased or irrelevant. She sites examples, with explanations:
101.1.that during one supervised visit away from the home, the mother took a phone call and then left the children and supervisor for a period of time. The mother returned acting completely different. The supervisor suspected a drug deal and reported this. The mother says she could not understand how the supervisor could make such an inference from a 2 minute phone call. The supervision report of 18 September 2010 however said that the supervisor was concerned about the 5 minute phone call but when she returned she did not notice a real difference in her behaviour. I put no weight on this comment by the supervisor;
101.2.that the mother looked unkempt and dishevelled. The mother said this was a result of a six hour trip from Town 1 to Sydney which involved “… , bus, train, on foot etc”. I am unable to understand why travel time by public transport took six hours.
101.3.that the mother bared her breasts to R who was uncomfortable. The mother retorted that she had breastfed the children in the past and was only changing her t-shirt. This demonstrates a lack of insight by the mother as to appropriate behaviour at R’s current age. This behaviour was exacerbated because the mother argued in front of the children with the supervisor about the report in relation to this. I note on another occasion the mother encouraged Y to urinate on the grass verge when the mother was walking to the shops with the children and Y said she needed to go to the toilet. There is no indication the mother explored more appropriate options;
101.4.that she was ‘out of it’. The mother says that she was under the influence of strong pain killers after a skin graft operation and an abortion but not alcohol.
The mother is unhappy about the supervisors treating a session as a ‘social outing’ by chatting to her friends and eating with the family. I note the supervisors actions are likely to be focused on making their presence more ‘normal’ for the children. The mother is also unhappy about the supervisors’ default position that she must have done something wrong to require supervision, and thus their interpretations of events and situations are negative. She claimed that one supervisor, Mr S, was not supervising, but reading books with his back to the family, and frequently going outside for cigarettes, and therefore questions any weight that is accorded to his reports. She said he also copy and pasted sections of reports into other reports. She annexes a number of reports to her affidavit of 10 November 2011 with her own comments about the visit noted. Her comment in relation to Mr S’s supervision of 15 August 2009 was that he was so absent that “the children and I used to laugh, playing “Where’s [Mr S]” as in the books “Where’s Wally”. It is inappropriate for the mother to send the supervisor up to the children in this way. On the one hand the mother complains when the supervisors attempt to involve themselves in the event but also complains when they give her some space with the children. I understand this inconsistency is explained because the mother does not believe supervision in any form is necessary.
The mother claimed the adverse supervision reports were written because “these people write what they want to hear because they are getting paid” and if no issues were reported and they were not needed they would lose their jobs. She also said one supervisor would act like an ‘alpha male’ and would get jealous. I do not accept the mother’s assertion that various supervisors have lied blatantly in their reports.
The father recounts the effect of the mother’s behaviour on the children (the following events took place prior to the supervision order of April 2009 being in place):
104.1.On 1 August 2008 the mother spoke to R on the telephone and R allegedly said “Mum said I will never see her again”;
104.2.On 4 November 2008 R showed the father a hand-drawn picture of the mother and father shouting at Y and R. R said “I am sad because mum is an alcoholic. I was scared this morning when a man came to the house and wouldn’t leave. There was lots of swearing”;
104.3.On 2 December 2008 R called the father and said “Mum is drunk. I’m scared – can you come home now?” In the AVO application the father reports R as saying “Mum’s very drunk and trying to drag me down to the Steakhouse and hurting me…earlier I saw [Ms W] and Mum take a bottle of wine each out of the wine cellar and up to Mum’s room to drink…Please Daddy come home, mummy really scaring me and has picked me up from school drunk.” The father later received a text saying “help me” and upon entering the house R said “Daddy daddy mum’s been hurting me”;
104.4.On 14 December 2008 the mother turned the music up loudly at 9:30pm and R had to take the control off her to turn the music down so the children could sleep;
104.5.On 15 December 2008 R called the father and said “Mum is crazy. I won’t get in the car with her”;
104.6.On 23 December 2008 R called the father and said “Mum got up about 10. I had to get breakfast. She is abusing me and yelling at me…She told me I was no son of hers.” R called periodically between 10am and 1:30pm;
104.7.On 15 January 2009 the father received a phone call from R at 8:30pm who was unable to wake the mother off the couch. The father sent someone to collect the children. He gave them dinner and put them to bed; and
104.8.On 11 March 2009 R called the father to collect him and said “Mum was acting weird”.
The supervision reports show R’s awareness of the mother’s drinking problem. The report of 20 June 2009 records R’s growing distress with each visit, that his behaviour was becoming more hostile, ruder and emotional, and that his relief upon being returned to his father grew. A counselling report of 21 January 2009 records the mother reporting R’s behaviour deteriorating over time, and becoming more aggressive and defiant with the mother.
On 18 December 2010 and 23 May 2010, R accused the mother of being drunk during supervised visits. On 12 February 2011 R swapped places when walking with his mother so that she was not the closest to the curb when she was swerving while walking. On 14 August 2010 R tasted the mother’s drink and grew angry at her, saying that it was very strong with vodka and only had a little Fanta to disguise it.
Dr L’s 2009 report shows that R has witnessed his mother’s behaviour, when he commented that the mother was “always holding a glass” and was not comfortable with the mother’s “strange friends”, some of whom would ‘get really drunk’.
Y is also aware of the mother’s drinking. On 12 February 2011 she asked R “Am I going to be like Mum?” and when R said no she said “Thank God!” In another [undated] supervision report, it was noted Y saw wine in the mother’s fridge and told her “you must get rid of that stuff”.
The mother insists that she no longer has an alcohol problem. She reports that she has now relocated to Town 1 where she is settled and has become friends with local families, does not maintain contact with friends from Sydney, is applying for jobs in the service industry and has reobtained her driver’s license. I note that the court was not provided with supervision reports from the visits the mother has had with the children in Town 1 since July 2011. The latest supervision reports of February 2011 and December 2010 indicate the mother still had a problem with alcohol.
The mother claims that she is now only a social drinker and that she doesn’t have alcohol in her house. In her oral evidence the mother indicated she now drank on average 2 to 3 times a week, and would drink 3 to 4 standard drinks in a sitting. She said that prior December 2010 (and I discuss the mother’s inconsistency with timing above) it was a lot higher – 4 to 5 times a week, with 5 to 6 drinks in a sitting – and that she was self-medicating with alcohol. I also note above the inconsistency in the mother’s evidence about when she consumed her last drink. The mother denies drinking while the children are in her care, saying she drinks on Saturday night after they have left or Sunday, and has occasionally drunk the night before they visit. She has no plans for abstinence from alcohol, saying it is not necessary as alcohol was no longer a problem for her. I found the mother’s evidence about her current level of drinking difficult to believe. I do not accept the mother’s current estimates as to her level of alcohol consumption.
In his report of 4 June 2011, Dr L noted that the mother found it difficult to provide a logical and coherent account, slurred her speech and tripped over words at times, and smelled of alcohol. He noted the mother called him after her interview, and her voice sounded as if she was under the influence of something. Dr L was careful not to make inferences, suggesting her incoherent account was probably due to her anger at him arising out of his last report, the slurred speech may have been due to long term damage of substance abuse, and admitting that he had a poor sense of smell. He said the mother’s voice on the telephone may have been characteristic of her voice when in despair. Dr L however felt that the whole of the mother’s demeanour was either the result of substance use or the effects of long term substance abuse. Dr L later said “despite her denials, I cannot rule out that she is simply in denial about her alcohol use”.
Dr L concluded that the mother probably
“continues to struggle with alcohol abuse, and experiences episodes of loss of control and drinks unwisely, including when she is seeing the children. She hasn’t been able to rehabilitate herself and she is unemployable at this stage and she appears to be experiencing an ongoing level of impairment in her social functioning”.
Dr L’s oral evidence was that the mother had intermittent issues with significant alcoholism. He opined the mother’s alcoholism is an obnoxious influence that is not going to go away easily. He agreed that anxiety fuels the need that the mother feels to medicate through alcohol.
Dr L reiterated that the mother needs residential treatment to treat both her addiction and her psychological difficulties. He is worried she has been unable to improve her situation, even with the high motivation of the prospect of the court allowing her to see her children more frequently, and he suggests she may not be able to improve her situation unaided.
Dr L acknowledged in oral evidence the difficulties the mother previously experienced from rehabilitation centres. He said that J Facility had attended to those problems since the time the mother was there. Dr L suggests a program more attuned to someone with a combined substance abuse and mental health problems. He mentioned that the 6 to 8 week program at S Facility or W Facility, both private services, are far more focused treatment than a 6 to 10 month program in the public system. The mother said her experiences during prior rehabilitation attempts meant she was not prepared to try again.
The mother made many excuses for her behaviour and refused to admit blame or wrong doing. Many are listed above but I provide the following further examples. The mother indicated that when she arrived at Y’s preschool in February 2008 after drinking over a long lunch there she was not drunk. She blamed another mother for spreading this false assertion before she was reminded that it was a teacher who had discovered her “paralytic” in the bathroom. She then explained that she had done the responsible thing by using a taxi to get to the preschool, seemingly lacking insight to the potential danger in caring for the children while under the influence. She attributes her alcoholism to the father’s past treatment of her, and said in relation to her not following Dr L’s recommendation that she attend a 10 month rehabilitation program “I did not ask for this situation. I did not instigate this situation”. The mother attributes people smelling alcohol on her as being due to her perfume or tea-tree oil, and their accounts of empty bottles as bottles that the mother collects (despite them being half full or in the trash). She also referred on a number of occasions to being ‘set up’.
The mother underplays the extent of problems caused by her use of alcohol and its effect on the children. When asked the question whether she had considered the possibility that the way she behaves impacts upon the way Y sees herself the mother responded “No, not at all”.
I find that the mother, during her evidence, attempted to minimise both the level of her use of alcohol and the affect that it had on her behaviour from time to time, particularly in relation to her ability to look after the children. It is unlikely that the mother will seek any rehabilitation as a result of both her inability to accept she has a problem, and the experiences that she subjectively had at the previous rehabilitation centres.
The mother also inferred during the hearing that the unnatural dynamic created by a supervisor being present created a stress on her, which in turn increased risk associated with her use of alcohol. She suggested any problem would be solved if supervision was removed. I am unable to accept the mother’s position on this. I find that the mother’s use of alcohol still poses an unacceptable risk to the children if they are left alone with her.

The Mother’s Mental Health

Dr L noted that there were many incidents in the records where the mother has made some inference to self harm. The examples given by the father are outlined in the chronology above. The children are aware of the mother’s mental state, evidenced by the report of 14 August 2010 when R accused the mother of drinking again after tasting her drink, and on the drive home said “I suppose she will shoot herself now”.
Dr L noted in his 2009 report that the mother has vulnerabilities and that having her children taken from her was the straw that broke the camel’s back, opining “As a result her psychological vulnerability has now exploded into what appears to me to be a full blown disorganised personality state in which a combination of traumatic memories, depression and the disorganisation of behaviour due to chronic alcohol abuse all take their toll”.
Dr L noted in his report of June 2009 that a file note by a senior psychologist of 17 June 2008 referred to a ‘recent diagnosis’ of bipolar illness though indicated some uncertainty about the diagnosis. In his 2009 report, Dr L doubted this diagnosis given there was no record of any confirmed diagnosis prior to the mother telling people about her bipolar disorder, which is recorded in the kindergarten report at exhibit 11. The single expert said this unconfirmed diagnosis was also present in police and DoCS reports. I do not find that the mother has suffered or is suffering from bipolar disorder.
The mother said in cross examination that in the past she has taken strong anti-anxiety medication and still takes Zoloft, but has not needed to consult specialists. She said she sees a counsellor but has not seen him for a while as she has the ‘tools and knowledge to manage her own issues’ and that she hasn’t really the need for counselling. The mother said that since moving to Town 1 she is at peace.
The mother seems to have a long term memory of significant events in her history and is able to recite the dates of the anniversary of a friend’s murder from around twenty years prior and another friend’s death from a similar time, the anniversary of her falling into a boiler and receiving severe burns, and the date of her abortion.
In his 2011 report Dr L noted a ‘palpable’ level of distress and despair which was either a result of substance use, or “her distress is such that she has a significant impairment of mood and cognition, so severe that her thought process easily becomes derailed and her language skills desert her”, or both. In oral evidence Dr L reiterated that there is comorbidity between the mother’s alcoholism and other psychological problems of impairment of mood and cognition. I accept Dr L’s opinion in respect of that comorbidity.

Family Violence

The father claims the mother had made various threats while intoxicated including:
126.1.In August 2008 the mother said “I know people who can hurt you. I have arranged to buy a Beretta. I don’t care if I go to prison.
126.2.On 16 October 2008 the mother made various threats that she could have people “fix [the father] up”.
126.3.On 9 November 2008 the mother texted “By the time you read this I’ll be dead”.
126.4.On 1 December 2008 the mother told the father “I’ll have friends waiting outside the Courthouse for you on Friday”.
126.5.On 24 February 2009 the mother made various threats including that she would kill the father or herself.
126.6.On 3 March 2009 the mother texted the father to say “[Mr P] gets out of prison on Thursday. You’re a dead man.”
126.7.On about 20 June 2009 the mother sent the following text messages, as reproduced by the father in his affidavit material. The mother agrees that these texts were sent by her but says there was more to them. The texts I have are somewhat incoherent, threaten loss to the father of the children, possible suicidal ideation and are in the following terms:
9:51pm – Remember yr mother told u not to speak to strangers…ive had enough of u…so have a lot of people…goodbye [the father’s first name]
10:00pm – say goodbye to my babies…you’ve got three days
10:07pm – 2 days and 3 hours
10:12pm – you wont know where…neither will i…until later…its done now
2:03am – 23hrs
2:37am – actually all retracted now
The mother claims the father used to denigrate her during the marriage and was violent. Dr L noted some low level violence, being the mother kicking the father on occasion and the father once grabbing the mother around he neck which he claims was self defence. There is a history of the parents taking out AVOs against each other.
The children in their counselling reports of January and February 2009 said that there was high parental conflict which settled when the parties ceased living in the same home. R recalled being embarrassed about incidents involving the police (taking the mother away from the home, searching for the mother after she had been drinking a lot). He told a counsellor on 3 February 2009 that he cannot remember a time when there was no conflict, and would scratch himself with lego or scream into a pillow when the parents fought.

The mother claims she was served with ‘orders’ in July 2008 from the father, which were subsequently ‘dropped/discharged’ in return for the mother learning to be a ‘good wife’ and performing oral sex. She claims the father is controlling and he told her and some friends that she needed to be locked up until she learned how to be a good wife. She claims that when the marriage finally dissolved he said “I will not stop until I have destroyed you. Emotionally, Financially, physically and you will NEVER HAVE THE CHILDREN. I don’t care how much it will cost”.
The mother had admitted significant violence perpetrated against her by a former boyfriend (Mr B) that resulted in a broken finger, cracked eye socket, her hair being cut and a subsequent AVO. I note the mother indicated the children had met each of her boyfriends.
I find there was high conflict when the parties were together and that the children were exposed to it. I do not intend to make any findings about family violence or allegations in the past as the parents do not currently interact at all, there has been no incident of family violence for a long time, there is not likely to be any in the future and it is not necessary for the purpose of this hearing to make any detailed findings about any past history of family violence.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII FLA 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
The principles underlying those objects (unless contrary to a child’s best interests) are:
(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).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)

While I am minded to ensure the children enjoy a meaningful relationship with both parents, the focus of this hearing has been on the effect of the mother’s substance abuse on the quality and benefit of her relationship with the children.
I note Dr L’s evidence that maintaining supervision in the time the mother spends with the children will maintain a relationship but may not allow that relationship to develop as it ordinarily would. He noted this consideration should be balanced against the need to protect the children from the harm the mother poses should she continue to consume alcohol irresponsibly.

The need to protect Children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

I am concerned and conclude that there is an unacceptable risk that the mother may inadvertently bring harm upon the children if she is either under the influence of alcohol or without her full capacities due to prior alcohol intake. The risk is primarily of psychological harm from the children’s observation of the mother in an intoxicated state or having to deal with her in such a state. In addition, I find the mother has made denigrating comments about the father, certainly holds a great deal of animosity towards him, and would be less likely to restrain herself from making denigrating comments if she is under the influence of alcohol.
The risk of physical harm to the children arising from an inadequate capacity to adequately supervise is not as great as when the children were younger but it is still an unacceptable risk.

The additional considerations

Children’s views (s60CC(3)(a))

In the 2009 and 2011 interview with Dr L, the children were reluctant to talk about the family situation. This was especially the case in the 2011 interview.
In the supervision reports of 2009 it was noted that R was becoming more distressed at attending visits and his behaviour was becoming more hostile and objectionable. In 2010 it was noted that Y was becoming more pensive and was missing her mother, and R was sullen, bored and angry, and appeared to be resenting time with the mother. The father also feels that R was rejecting his mother because of her past behaviours. The mother does not accept the supervision reports of this particular supervisor.
R told Dr L that he would be open to spending overnight time with the mother but was not enthusiastic about it and Y said that she didn’t want overnight time because it would be ‘creepy’. Dr L thought Y was perturbed by the mother’s boarding house, but still seemed reluctant if there was better alternate accommodation.
Dr L found it interesting that the children wanted the supervisors to remain involved, saying that “sometimes it is fun” with them and suggests this shows an element of insecurity about being with their mother. Neither child has expressed a view that points in the direction of allowing unsupervised time in the short term.

Relationships of the children with the parents and other persons (s60CC(3)(b))

In her affidavit of 8 February 2009 the mother claimed the children were terrified of the father and were not bonded to him. In her 2011 interview with Dr L the mother said that R resents the father and Y is really angry. There was little to support these claims.
Dr L noted the supervision reports show good relationships and conduct between the mother and the children. She noted that the children are apprehensive, but do “seem to have a strong sense of [the mother] as their mother and want to pursue a relationship with her, if only it could be made safe to do so”.
The mother claims that Y refers to the father’s partner as the “evil stepmother” however Y’s reports of Ms N to Dr L were positive and was the first time she smiled in her interview.
The mother reports the children’s older half-sister D ‘torments’ them however Dr L indicated there was a positive relationship between the children and D. D reports that Y likes to play dress-ups with her and R talks with her about music.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))

The mother told Dr L she had ‘moved on’ from her feelings towards the father. She admitted in the hearing that she may have initially denigrated the father because she was angry but now does not do so. Dr L notes the mother’s ‘hatred’ of the father is still ‘extremely high’ and there was nothing to suggest the mother has resolved her feelings. Both the father and his partner Ms N report receiving ‘nasty’, ‘rude’, ‘aggressive’ and ‘odd’ text messages from the mother or on her behalf.
Some entries in the supervision reports indicate that the mother has tried to isolate the children and whisper to them but the contents of those conversations were not overheard. It was noted at times that the mother was critical of the father and Ms N to the children, for instance on 23 May 2009 when she spoke about the father being a “fucking prick or bastard” and the nanny employed by the father being a “fucking slut”. It was noted in the supervision reports of 13 June 2009, 18 October 2009, 7 February 2010, 9 May 2010 and 5 February 2011 that the mother was talking about the family situation to the children or in front of them.
R told Dr L in 2009 that the mother has said really mean things about the nanny and about the father. One nanny, Ms T, reported to Dr L that Y had said to her “I hate you” then apologised, explaining the mother had told her to say it.
The father said on 23 January 2009 that R told him “Mum calls you a fucking arsehole. She says that she wishes you were dead” and that on 7 February 2009 R said to the father “I hate you. You shout at me all the time and you’re just trying to put mummy in jail and want her dead.”
The mother told Dr L in 2011 that she spoke to the children about “all this stuff” but later denied she talked to the children about the issues in the case.
In cross examination the mother voiced her belief that ‘pretty much’ all the father does as a parent is buy things. She also said he only married her to get NZ citizenship to live in Australia.
The father acknowledged, ‘massively’, the importance of the children having a relationship with the mother, saying it was his view that it is good for the children to have a mother who was proud of them. The father said he tries to encourage the children to have a good relationship with the mother. The supervision report of 7 February 2010 noted that the father gave the supervisor some photos of the children and a DVD to pass to the mother. The father said that if the children ask about the mother’s condition or an issue arises, he only tells them that their mother is sick and will get better and does not make derogatory comments.
It was noted in the supervision report of 17 April (no year recorded) that the father spoke to the supervisor about the mother in front of the children. The father accepts that it may have happened but would not have meant for the children to overhear on purpose.
The mother accused the father of removing all the photographs of the mother from the home. The father said he thinks the children have one each in their room, and while he has not actively encouraged them to have them displayed, denies removing all the mother’s photos. The mother said in her cross-examination at a later point that “I have all the photographs. There is not one single photograph, right from birth even, of the children in the [father’s] residence. I have all of them.” I infer that the mother took the family photos when she left the former matrimonial home, but accept the father should be doing more to encourage the children to be comfortable with having photos of the mother in their home.
The mother was distressed about not being given access to the website where parents of R’s sport team log in to attain sporting fixtures. The father said his concern was giving the mother access on that website to the forum application where parents speak to each other (he feared the mother might make inappropriate postings), and that arrangements were made for the mother to have access to the fixtures only.
The mother questions the father’s previously proposed order that would suspend the mother’s time with the children if she was unable to contribute to the cost of supervisors. I have dealt with this above. However the father has not hindered the mother’s visits with the children and I do not agree that it is his intention to prevent a relationship. He has never stopped the mother seeing children when she stopped paying.

Likely effect of any change in the children’s circumstances (s60CC(3)(d))

The mother claimed Y was almost expelled from kindergarten due to her aggressive behaviour but Dr L noted her school reports describe her as being of delightful character and behaviour. I note that counselling reports of 16 February 2009 records that the mother raised as an issue that Y was having trouble with violence and anger at school, but the counsellor recorded from her conversation with Y’s teacher that the few incidents are more consistent with ‘settling in’ to school and are minor in nature and she was otherwise settling in relatively well. The father stated in his 23 November 2011 affidavit that Y is now in year 2 at school, is very popular and enjoys play dates with friends and sport.
A counsellor recorded that during play therapy in February 2009, R wanted to be a shark in order to be able to attack and eat the father, the police and ‘sometimes’ the mother. He later enacted attacking and burying his father and mother, having soldiers shoot his father, and dropping bombs on his father and parents collectively. Dr L does not give this behaviour any focus and it seems R is now generally doing well living with his father.
The father’s affidavit of 23 November 2011 records that R is doing well at school, had many friends and was a grade 6 prefect. There was an incident involving inappropriate Facebook comments written by R and/or his school friend to a girl which involved the police talking to the father and the father grounding R for two weeks.
While the mother was spending supervised time with the children weekly for a long period of time, in the last couple of months that time has been reduced due to the mother moving to live one and a half hours away from the father’s residence. The mother currently calls the children on the telephone almost every night. The orders proposed by the Independent Children’s Lawyer and the father do not make significant changes to the current situation.
The father and children live with the father’s wife Ms N and a far more stable household has been established without as much need for nannies, minders and helpers. The father still works a 5:30am to 4pm work day. Ms N has given up work to assist with the children. The children are now in an established routine. The children are involved in extra-curricular activities, have good groups of friends, and are coping well at school although both children have struggled in some areas of their schoolwork.

Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))

The father and Dr L maintain that the children’s time with the mother should be supervised. This creates financial pressures. The mother and father were having to pay the cost of supervision from Dial-An-Angel on a half/half basis however the mother has not paid this from 14 August 2010 and the father has paid the full amount since that time. He now pays a private supervisor when the children go to spend time with their mother in Town 1, sourced from a Nanny agency. Each visit costs $300, which represents 7 hours at $40 an hour (4 hours visits and 3 hours travel time to and from Sydney) and $20 for a report. The mother’s only objection to this supervisor is that R dislikes her, but I have no other evidence about that.
Notwithstanding the mother’s prior employment history, the mother is unemployed, and according to Dr L, would currently find it difficult to hold down a full time job. She said she currently has no income and is not eligible for Centrelink due to her New Zealand citizenship. The mother often reiterated that she and the father made a joint decision for her to cease work when she became a mother and feels this has been overlooked. The mother said she has approached her former boss from a bank and has had a number of meetings. It was explained to her that she was overqualified for a junior position and been out of the market too long to get a senior position. The mother said she cannot work in the city if she is living in Town 1 and has found the job search difficult when she has had to prepare for this case and has had no private transport. She has applied for two hospitality positions in Town 1 and has made money conducting bookwork for friends.
The other difficulty with the children spending time with the mother is the amount of time taken out of their weekend to travel to Town 1 and back on the weekends. R is an avid sport player and during the season would normally have sport on Friday night or Sunday, and when he commences at O School, presumably Saturday sport. Y plays sport on Saturdays in winter. The father acknowledged that the schools are flexible in respect to weekend sporting activities of children whose parents are separated and confirmed that time with the mother will prevail over sporting commitments. The mother says that getting to Sydney on public transport with this distance is very difficult.

The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))

I discuss the mother’s mental health above.
The Independent Children’s Lawyer submitted, and I agree, that the mother has displayed insight into the children’s emotional needs in general, but has no insight into the impact that her problem with alcohol has on her children. As an example, the supervision report of 18 September 2010 noted that the mother had an argument with the supervisor about the time the children should be returned, changed her plans on a whim, and embarrassed and upset R. The Supervisor noted that “[The mother] appears to be either unaware or incapable of understanding the effect of her behaviour on the children”.
A supervision report of 8 August 2009 recorded that the mother was becoming stressed with the children’s misbehaviour when they were saying she was not giving them equal attention at a sport centre, and the mother began crying. The mother’s response to this report was that supervised contact is unnatural, unsatisfactory, ludicrous, stressful, humiliating and unnecessary. The supervision report of 14 August 2010 said that the mother began crying when R asked for more lunch, saying she could not afford the food, and R responded by putting the food back in the pantry. Despite the mother’s comments about the father’s take-away meals, the mother gave the children take away meals in the majority of her supervised visits.
The father acknowledges his heavy work-load and high stress position. His parenting of the children relied in the past to a large degree on the help of nannies and other assistance. This was a necessity if the father was to care for the children and continue to earn an income in his profession to support the children. He showed that despite the demands of his job, he was able to take three months leave and otherwise leave work when necessity required. While his dedication to caring for the children and providing a safe environment at times conflicts with his occupational commitments, he has made a huge effort to accommodate both. His current relationship eases that stress somewhat, with the father’s partner able to assist in the children’s parenting and home life.
The father’s November 2011 affidavit reports that Y regularly attends check-ups with a orthopaedic specialist and had new moulds made for her feet two weeks ago which she wears in her school and sports shoes, but not in her casual ‘crocs’.
The father has been diagnosed with Meniere’s disease which disrupts balance, creates dizziness and nausea and will probably eventually lead to deafness.

The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))

The mother and the children’s half sister are of New Zealand background. The father is of English background.

If the children is/are Aboriginal or Torres Straight Islander (s60CC(3)(h))

This is not an issue in this case.

Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))

Although the mother told Dr L she doesn’t focus on relationships, supervision reports say the mother has mentioned her partners. The police records indicate a number of volatile relationships marked by the use of alcohol, uninhibited behaviour, threats and violence as recently as 2010.
Although there are allegations that there was some lower level family violence between the mother and father during the marriage, there has not been any incident since separation nor is there likely to be given the mother and father are no longer in contact with each other.

Likelihood of order leading to further proceedings (s60CC(3)(l))

If orders are made on the basis that they will be reviewed upon the mother having treatment for her alcohol abuse, this will necessarily involve further proceedings. It is in the children’s interests to make orders which finalise proceedings so far as that is possible.

EQUAL SHARED PARENTAL RESPONSIBILITY

The mother and father do not effectively communicate. The father told Dr L that he and the mother have spoken on five occasions in the last 2 years, and told me they have spoken a maximum of 2 times in the last 12 months. Unfortunately most of the dialogue about the children is relayed to the other parent via the children. In the case of Marvel (2010) 43 Fam LR 348 when discussing whether a court should make an order for equal shared parental responsibility, the court said:
“a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests”
The mother feels the father is trying to destroy her. She claims the father exhibits “extreme warped controlling behaviour” and “incredible hatred” in response to her leaving him. She complains that the father is not informing her of important events for the children including school photos, school activities and achievements, the father’s partner moving into their household, or who the children are being cared for when the father is away.
The father says that communication with the mother is impossible. He said during telephone conversations the topic changes frequently, he cannot keep the mother on topic, and says the conversation descends to a point where the mother does not make any sense or is abusing him. He said for this reason he avoids conversations with the mother. My observations of the mother’s cross examination of the father are consistent with this description. It is also corroborative of Dr L’s experience with the mother, particularly as set out in the second report. The father ignores the mother’s text messages, with which he says she bombards him and says are normally abusive. Exhibit 20 is a copy of transcribed text messages from the mother which she has agreed to have written, and are of a particularly negative tone. The father said he ‘absolutely’ acknowledges that it is highly desirable that parents communicate about the children but says “it just doesn’t work”.
The father acknowledges he made the decision to send R to O School against the mother’s wishes but said he did notify her of his intentions. It is quite clear the father did organise for R to go to O School without involving the mother too much in that process. He did not tell the mother about Y’s podiatry appointments, but I am not particularly concerned, given the ‘check-up’ nature of those appointments. He said he did attempt to inform the mother about R’s recent involvement with the police (see above) but the mother became abusive.
Upon the mother’s complaints that the father does not inform her about the children, the father agreed to send the mother a weekly report by email. The mother’s response was “the children are not a weekly report”. This was a clear example of the attitude of the mother to the father and I accept it is very difficult for the father to behave in a way which would please the mother.
Counsel for the father submitted that the mother’s presentation in court demonstrates that she is very distressed about the situation and her hurt and anger directed to the father is palpable. I agree with that submission. During the hearing, particularly when she was giving evidence in the witness box when there was a direct line of sight between the mother and the father, the mother would glare at the father in a way that would indicate that she was furious at him for circumstances she found herself in, particularly when those circumstances related to her spending time with the children. The mother has shown that she is unable to contain herself in exchanges with the father in the court room, and so I am concerned she will feel even less constrained in communication with the father outside of the court room.
I conclude that there is no prospect that the parents could communicate effectively, if at all, to make a genuine effort to come to a joint decision about long term issues. It is in the children’s best interests for the father to have sole parental responsibility.
The Independent Children’s Lawyer submitted that the need for sole parental responsibility on this basis should be balanced with keeping the mother in the picture in regards to decision making, by requiring the father to notify the mother of any long term decision in relation to the children and consider her views before making the decision. I accept it is important for the mother to be informed about the children and I will make orders to that effect. The mother fears this order will not be followed as the father has not followed shared parental responsibility orders in the past. I will order that communication of this nature occur in writing.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

I am not required to consider equal or substantial and significant time in circumstances where there is no order for equal shared parental responsibility (section 65DAA FLA). Regardless, it is clearly not in the children’s best interests or reasonably practicable, to spend either equal or substantial and significant time with the mother when she continues to exhibit signs of alcohol abuse and when she lives one and a half hours from the father’s home.

CONCLUSION ABOUT BEST INTERESTS AND SUBSEQUENT PROPOSED ORDERS

I first deal with the necessity for supervision.
The mother disputes that supervision is necessary. She said the children are beginning to talk about more sensitive issues, when it is inappropriate to have a supervisor overhear. I asked Dr L during the hearing whether there is any lack of consistency in a position where the mother has nightly unsupervised phone calls with the children but where the father wants to maintain supervision within hearing of the mother’s time with the children. Dr L explained that there were important differences between the two situations. Firstly, the duration of the time is significantly longer in the face to face event. Secondly, the ability to convey a message is substantially more powerful in a face to face encounter. It is quite clear that on occasion, R will speak to his mother while continuing to play with his Xbox. I infer from that, that on occasions R’s full attention is not on what his mother is saying to him in a telephone conversation.
The mother’s main argument against supervision, besides that it was unnecessary, was that it is incredibly intrusive and incredibly restrictive. It makes the mother unhappy, unable to be herself with the children, and anxious. The mother said it is affecting her ability to deal with the children. It was argued that if supervision was removed, the mother would possibly feel less anxious. Dr L did not agree with this as a proposition. I accept the mother would be a happier person if she did not have supervision, but whether or not that would mean she would not drink in response to other pressures or the hold of her addiction and is a safe person to supervise the children is another matter. Dr L indicated, and I agree, that the mother’s alcoholism is a child protection issue.
Dr L concluded in his most recent report that the mother, “isn’t in a position where she can safely increase her contact with the children” and later continued, “It seems maintaining the current frequency and duration of contact is probably the best that can happen for the children at the moment…Regrettably it is not likely in the short term or even in the medium term that the mother will be able to have a substantial level of contact with the children.” This was an opinion Dr L maintained in oral evidence.
I have concluded above that the mother still is experiencing problems with her use of alcohol. She has been dismissive about her use of alcohol and in denial about its effect on herself and her ability to care for the children. The mother has demonstrated by her past behaviour and attitudes that there is a significant risk she will pose a threat to the children’s wellbeing, either physical or emotional, by her drinking habits. There is evidence that the children are fully aware of the mother’s drinking problem and have been adversely affected by it.
The Independent Children’s Lawyer submitted that supervision necessarily leads to restrictions in the time the mother can spend with the children. The proposal of the Independent Children's Lawyer allows the children to maintain their relationships with their mother but not to improve them. The Independent Children's Lawyer further submitted that once the children are older they can possibly build a stronger relationship from that foundation which has been maintained. I agree with this submission.
I acknowledge the mother’s attitude towards supervision and how it affects her emotional wellbeing and her behaviour when she is with the children. There is no doubt that both her problems with alcohol and emotional cognition are being affected by the restrictions placed on her as a mother, but it is a matter of balancing the risks. The risk to the children of unfettered time with the mother is more substantial than the risk to the mother’s parenting capacity if the supervision stays in place. I conclude that continuing supervision is necessary for the children’s safety.
Dr L suggested objective supervision needs to continue until the mother makes a substantial change in her behaviour with appropriate rehabilitation, or the children are old enough to manage the contact, when the children are teenagers. Dr L said in oral evidence that by ‘teenagers’ he meant middle adolescence, namely 14 or 15 years of age. Dr L said that if there is no incident in supervised contact over the next two years then we might be able to revisit the position however I am mindful of the need to make final orders.
On the question of whether or not supervision needs to be within sight and hearing, I have no confidence that left alone, the mother would not communicate things to the children which may either undermine their relationship with their father or place them in a highly conflicted position in respect of their two parents, causing emotional harm.
The mother has demonstrated an inability to fund supervision and I accept her evidence about that. The father has a quite significant income and is willing to fund the supervision required.
Supervision may become unnecessary if the mother deals with her use of alcohol and is no longer a risk to the children’s welfare. I find that the father is willing to facilitate the children’s relationship with their mother and is keen for them to maintain that relationship. I have every confidence that in the event the mother demonstrates substantial improvements in her behaviour with regards to alcohol, the father will seek to remove supervision in a responsible way. The father’s consent to agree in writing to remove requirements for supervision should not be unreasonably withheld if the mother provides evidence of a substantial change in her behaviour including evidence from a rehabilitation clinic that she has satisfactorily undergone treatment for drug and alcohol abuse and is in a fit and stable condition to spend time with the children unsupervised. I refer to the evidence of Dr L above about a safe age for the children to resume unsupervised time with the mother should she fail to address her problems. I will order a fallback option that the children can spend unsupervised time with the mother when they are of the age to protect themselves physically and have the emotional cognition to deal with the potential behaviour of their mother. This will be the age of 15 for either child, or if R and Y are with their mother together, when R is 15 and Y is younger.
Supervised visits will occur in accordance with the form of orders of the Independent Children’s Lawyer. The mother needs to make some effort to come to Sydney and see the children for some of the time. The children should not have to undertake all of the travel all of the time. A seven hour day will impede on their weekend to too high a degree as the children get older and want to spend more time with friends and at sport.
The mother said she preferred to collect the children in Sydney and drive them back to her home for their visits together and then return them to Sydney. This would create a 10 hour day for the mother and she would in fact be on the road during that day for six hours in that 10 hour period. I find that is not a practicable proposal.
If supervision is removed, there is obviously the potential for the children to spend more than four hours with the mother. I do not intend to make orders for that eventuality, without knowledge of the commitments of the children at that stage and their level of independence. If the matter cannot be otherwise agreed upon, then in those circumstances the mother would have the ability to make an application to the court to vary the times. Without binding any future trial judge, it is likely the lifting of supervision would be a significant and changed circumstance.
I will make the orders that the Independent Children’s Lawyer and father propose in relation to the mother being kept involved and informed about the children. This is not in dispute. It has been agreed that on occasions, it is in each of the children’s interests to spend some one on one face to face time with their mother. The father has agreed, on a without admission basis, to an order restraining him from consuming alcohol to excess at any time when the children are in his care. I will make all other orders upon which there is agreement.

I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 31 January 2012.

Associate:

Date: 27311.12

SCHEDULE 1 (orders sought by the Independent Children's Lawyer and the father)

That all prior parenting Orders and injunctions in relation to the children [R Marbow] born […] October 1999 and [Y Marbow] born […] October 2003 ("the children") are discharged.
That the children live with the Father.
That the Father have sole parental responsibility for the children.
That, except in the event of an emergency, the Father shall:
(a) notify the Mother of any proposed decision relating to the long term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
(b) take into consideration any views expressed by the Mother about the proposed decision.
That the Mother spend time with the children as follows:
(a) For a period of four hours on one day each alternate weekend to be implemented as follows:
i)Time will take place every four weeks in [Town 1] (or wherever the Mother is then living provided that it is no further away from the Father's home than [Town 1])
ii)Time will take place every four weeks in Sydney with the Mother spending the first two hours with one child (alternating each Sydney visit) and the subsequent two hours with both children
(b) As may otherwise be agreed between the parents in writing.
That the time that the Mother spends with the children is subject to the following:
(a)    It shall be supervised by [Ms C] or, if she is unavailable, by a third party nominated by the Father provided that the supervisor has qualifications or experience relevant to the care of the children;
(b)   Supervision shall cease when the parents agree in writing that it should cease or when [Y] turns thirteen (whichever is sooner);
(c)    The Father shall be responsible for the costs of supervision;
(d)   The Court notes that the Father will consent to supervision ceasing sooner in the event that the Mother provides evidence of a substantial change in her behaviour including evidence from a rehabilitation clinic that she has satisfactorily undergone treatment for drug and alcohol abuse and is in a fit and stable condition to spend time with the children unsupervised.
That for the purposes of communicating about matters relating to the children, the Mother and the Father shall communicate by:
(a)    telephone where the matter is of an urgent nature;
(b)   by letter, email and/or text messages where the matter is not urgent; or
(c)    such other method as the Mother and the Father may agree to.
That the Mother communicate with the children by telephone at any reasonable time, with the Father to ensure that the children are able to speak to the Mother in privacy if they want to do so.
That the Father shall:
(a) within 14 days of the date of these orders; and
(b) within 14 days of the any subsequent enrolment of the children at any school,
do all acts and sign all documents necessary to authorise the children’s school(s) to provide the Mother with copies of all reports, circulars, notices and documents in relation to each of the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and activities to which parents are invited as well as to provide to the Mother with any and all information which may be sought from time to time by the Mother in relation to the children.

10.That both the Mother and the Father shall be entitled to attend all school functions, parent teacher nights and activities that parents are ordinarily invited to attend, however such attendance(s) shall be at the discretion of the children’s school(s).
11.That the Father shall inform the Mother in writing as soon as practical of any extra-curricular activities that the children are involved in and the details (including date and location) of any events associated with such extra-curricular activities that parents are ordinarily invited to attend.
12.That both the Mother and the Father shall be entitled to attend all events associated with the children’s extra-curricular activities that parents are ordinarily invited to attend, however such attendance(s) shall be at the discretion of the organisation or body responsible for holding the event.
13.That the Father shall inform the Mother in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("medical consultant") in relation to the children.

14.That the Father shall ensure that the Mother is provided with a copy of any report by any such medical consultant in relation to the children, within 14 days of the Father’s receipt of the report.
15.That both the Father and Mother shall be entitled to:
(a)    attend any appointments with any medical consultant relating to the children; and
(b)   discuss the children’s condition with such medical consultant,
however such attendance(s) shall be at the discretion of the medical consultant.
16.The father shall ensure that the Mother is notified as practicable if:
(a)    either child is admitted to hospital;
(b)   either child is involved in a medical emergency; or
(c)    either child will be required to take medication when he or she spends time with the Mother, in which case the Father shall advise the Mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the period that the child is to spend with the Mother.
17.That the Mother and the Father shall advise each other in writing of:
(a)    any change to their residential address, such notification to be given no later than 28 days prior to the proposed change and include the details of their new residential address;
(b)   any change to their email address, such notification to be given no later than 7 days prior to the proposed change and include the details of their new email address; and
(c)    any change to their telephone contact number(s), such notification to be given no later than 7 days prior to the proposed change and include the details of their new telephone contact number(s).
18.That the Mother and the Father:
(a)    shall not make critical or derogatory remarks about the other parent, the other parent’s family members and members of the other parent’s household in the children’s presence or hearing; and
(b)   shall do all things necessary to ensure that no other person makes critical or derogatory remarks about the other parent, the other parent’s family members and members of the other parent’s household in the children’s presence or hearing.
19.That without admission the Father shall be and hereby is by injunction restrained from consuming alcohol to excess at anytime whilst the children are in his care.
20.That the Mother shall be and hereby is by injunction restrained from consuming alcohol:
(a)    For a period of 8 hours prior to any period of time that she spends with the children; and
(b)   During any period that she spends time with the children.
21.That the Father be at liberty to remove the children from the Commonwealth of Australia without the mother's consent in the following circumstances:
(a)    For the purposes of a holiday provided that:
i)Such holiday is for no longer than one month;
ii)There are no more than two such holidays each year;
iii)Not less than four weeks prior to departure he provides the Mother with a copy of the proposed itinerary for the travel including flight details, where the children will be staying and emergency contact numbers; and
iv)The Father ensures that the children are able to telephone the Mother at least once a week while they are overseas; and

(b) For the purposes of school or sporting trips provided that:
i)Not less than four weeks prior to departure he provides the Mother with a copy of the proposed itinerary for the travel including flight details, where the children will be staying and emergency contact numbers.

22.That appropriate officer of the Australian Federal Police be requested to remove the names of the children [R Marbow] born […] October 1999 and [Y Marbow] born […] October 2003 from the Airport Watch List.

SCHEDULE 2 (orders sought by the mother)

That the mother and father share equal shared parental responsibility;
That the children live with the father;
That the children spend time with the mother for 10 hours in each week and for three weeks over their school holidays on the following conditions:
a.The mother’s time with the children is not supervised;
b.That the time be at the convenience of both parties and the children, not set times;
c.The mother not be required to pay for supervision should it be required;
d.That if supervision is required the supervisor should be approved by both parties;
e.That the mother travels to see the children during term time but during holidays they are to be delivered to her home in [Town 1]; and
f.That the time the children spend with the mother at times be shared and at others be a single child only;
That the mother is not required to pay for previous accounts in regards to supervision;
That the children be permitted to attend overseas excursions with their respective schools and/or sporting clubs but for no other purpose.;
That the father refrain from talking to the children or in their presence about the mother in derogatory terms; and
That the father’s consumption of alcohol not exceed three standard drinks in any 8 hour period.

[2012] FamCA 24

31 January 2012

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Family Law

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Consent

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