MATHER & CATHCART

FAMILY COURT OF AUSTRALIA

MATHER & CATHCART

[2020] FamCA 343

FAMILY LAW – CHILDREN – best interests – where the father is seeking unsupervised time with the children on alternate weekends – where the mother is seeking the father’s time with the children remain supervised – where the father committed family violence against the mother and in the presence of the children – where the father has alcohol abuse issues – where the father has mental health issues - where the father poses physical and psychological risks of harm to the children whilst in his care – where the father has failed to engage in recommended professional supports to alleviate the risk of harm to the children – where the presumption of equal shared parental responsibility is rebutted – order that the mother have sole parental responsibility – where the risk of harm to the children is such that it is in the best interests of the children for the father’s time remain supervised.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA
Family Law Rules 2004 (Cth)

B and B (1993) FLC 92-357
Bant & Clayton (2019) FLC 93-924
CDJ v VAJ (1998) 197 CLR 172
Champness & Hanson (2009) FLC 93-407
Donnell & Dovey (2010) FLC 93-428
M v M (1988) 166 CLR 69
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
N and S and the Separate Representative (1996) FLC 92-655
R v Baden-Clay (2016) 258 CLR 308
Shepherd v The Queen (1990) 170 CLR 573
Slater & Light (2013) 48 Fam LR 573

APPLICANT:

Mr Mather

RESPONDENT:

Ms Cathcart

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

991

2018

DATE DELIVERED:

26 May 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

14, 15, 16, 17 and 18 September 2020 and Written Submissions in Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gates

SOLICITOR FOR THE APPLICANT:

Plaza Legal

COUNSEL FOR THE RESPONDENT:

Mr Marchetti

SOLICITOR FOR THE RESPONDENT:

Fitzroy Legal Service

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bonney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That all previous parenting orders be discharged.
That the mother have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children Y born … 2013 and Z born … 2015 (“the children”).
That the children live with the mother.
That the children spend time with the father as follows:-
(a)from 4.15 pm to 7.00 pm each Wednesday;
(b)from 10 am until 4 pm each alternate Sunday;
(c)from 10.00 am until 4.00 pm on Father’s Day;
(d)from 3 pm to 7 pm on Christmas Day each year;
(e)on the Father’s birthday from 4.15 pm to 7.00 pm should the birthday fall on a school day, and, from 10 am until 4 pm should the Father’s birthday fall on the weekend;
(f)on each child’s birthday from 4.15 pm to 7.00 pm.
(g)such further or other time as may be agreed in writing between the parties from time to time.
In the event that the children’s time with the Father pursuant to paragraph 4 (a) and (b) occurs on the following occasions, such time be suspended:
(a)on the Mother’s birthday;
(b)on either child’s birthday AND THE COURT NOTES that the children’s time with the Father on their birthday’s shall occur pursuant to order 4(f) herein;
(c)Mother’s Day.
That the father’s time pursuant to order 4 hereof shall be supervised by a private supervisor to be paid for by the Father, and in the event the private supervisor is not available, by a third party as agreed between the parties in writing.
That the children have telephone and/or Facetime communication with the Father each alternate Sunday, with the call to be initiated by the Father, and the call to commence between 6 pm and 6.30 pm or such other time as may be agreed in writing between the parties.
That in order to facilitate the father’s communication with the children pursuant to order 7 hereof, the Mother shall:
(a)ensure that the children are available to receive the telephone call;
(b)ensure the children have privacy during the conversation.
That within 7 days the Mother and the Father each provide the other with a contact telephone number and email address and keep the other updated of any change to those details, within 7 days of any change occurring.
That the Mother facilitate telephone calls to the Father upon the request of the children or either of them.
That the Father be at liberty to send cards, and postcards by post to the children.
That the parents communicate by way of email only in relation to the health or wellbeing of the children, or any issues pertaining to changeover.
That in the event that the Father is unable to spend time with the children in accordance with these orders, he provide the Mother with no less than 48 hours’ notice in writing of his inability to so attend.
That the Mother do all such acts and things and sign all such documents to request and authorise any school at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations, parent-teacher interviews and other information relating to the children’s education to the Father at his expense, if any.
That the Mother inform the Father of any change to the children’s schools within 7 days of any change occurring.
That each party, as soon as reasonably practicable, inform the other of any serious illness, injury or accident suffered by the children whilst in their care and forthwith upon receipt provide the other with particulars of any treatment providers and copies of any medical certificates or reports.
That the Mother notify the Father of any health issues concerning the children or either of them that requires specialist attention or treatment and authorise all health professionals attended by the children to provide such information as may be requested by the Father with respect to that treatment.
That the Mother and the Father be and are hereby restrained by injunction from ingesting, consuming, using or otherwise being under the influence of any legal or illegal drug or substance save and except for:
(a)any medication prescribed to them by a registered medical practitioner and taken or used by them strictly in accordance with such prescription; and
(b)any over the counter medication or pharmaceutical substance ordinarily sold in supermarkets (which does not contain codeine) and taken or used by them strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
That the Father be and is hereby restrained by injunction from:-
(a)consuming alcohol for a 24-hour period prior to spending time with the children and during his time with the children pursuant to order 4 hereof;
(b)driving a motor vehicle with the children
(c)attending the mother’s residence for the purposes of changeovers.
In the event the Mother proposes to travel interstate or overseas with the children:
(a)the Mother provide the Father with 30 days written notice, other than in the case of an emergency, of any intended travel outside of the Commonwealth of Australia, with such notice to include a copy of the children’s return tickets, travelling itinerary, and contact details for the duration of such travel;
(b)the Mother provide the Father with 14 days written notice, other than in the case of an emergency, of any intended interstate travel within the Commonwealth of Australia, with such notice to include contact details for the duration of such travel;
(c)in the event that such travel occurs during the father’s time the Mother shall provide the Father with make-up time, as agreed in writing between the parties.
The Mother and Father do all acts and things and sign all necessary documents to enable the issue and maintenance of the children’s passports to be held by the Mother.
That the Mother and the Father, their servants and agents be and are hereby restrained from abusing, insulting, or otherwise denigrating the other party or members of the other party’s family or friends in the presence or hearing of the children.
That the Mother and the Father be and are hereby restrained from:
(a)Discussing with the children or with any other person in the children’s presence, details of these proceedings;
(b)Denigrating the other to the children or speaking with the children, or to any other person in the children’s presence, in derogatory terms about the other party or members of the other party’s household.
That within 14 days the Father provide to the Mother or her legal representative a list of his current treating medical practitioners, drug and alcohol abuse programmes and rehabilitation courses attended by him and notify the Mother within 7 days in the event of any change to his treating medical practitioners.
That the Father comply with all reasonable recommendations made by his treating medical practitioners, including his general practitioner, psychiatrist and psychologist with respect to treatment for his mental health and substance abuse issues as identified in the reports of Dr B, Dr C and Ms D.
That the appointment of the ICL be discharged at the expiration of 30 days following the making of these orders.
That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mather & Cathcart has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 991 of 2018

Mr Mather

Applicant

And

Ms Cathcart

Respondent

REASONS FOR JUDGMENT

Introduction

This matter comes before the Court upon applications made by the father, Mr Mather and the mother, Ms Cathcart seeking final parenting orders with respect to their two children, Y, aged 8 and Z, aged 5.
The parties separated on a final basis in either December 2015, according to the father, or on the mother’s case, February 2016, when the father vacated the former matrimonial home in Suburb E. Upon separation the mother remained living with the children in Suburb E and the father spent unsupervised time, including some overnight time, with the children as agreed between the parties.
Those arrangements broke down in September 2018 following an alleged incident of family violence by the father against the mother which she deposes occurred outside her home and in the children’s presence when the father was returning them to her care. Some days later, the mother attended upon police and reported that incident, together with other alleged instances of family violence she says were perpetrated against her by the father.
As a result of that report, on 1 October 2018 the police applied for and obtained an interim intervention order against the father on behalf of the mother, listing the mother and the children as the affected family members (Exhibit M-9). On 12 March 2019 in the Neighbourhood Justice Centre at Suburb F a final intervention order was made against the father for the protection of the mother and the children. That order will expire on 11 March 2023. The father did not attend that hearing.
Since the events of September 2018 the father has spent limited supervised time with the children. The father’s time has been further curtailed as a result of the effects of the global pandemic.
The father denies that any physical altercation occurred with the mother at the changeover in September 2018, and further deposes that he has never committed any sort of family violence against her.
The father commenced these proceedings by Initiating Application filed 7 December 2018; he sought orders that the children live with him and spend time with mother. At the time of that application the father filed a Notice of Risk (Exhibit M-4) which alleged that the mother used and trafficked illicit drugs. Later in the proceedings, the father also alleged that the mother solicited sexual services from her home.
Whilst admitting the use of illicit drugs prior to the parties’ separation, the mother denies the father’s allegations with respect to her parental capacity, her use and trafficking of illicit substances and that she has solicited sexual services.
The mother also raises significant concerns as to the father’s parenting capacity in addition to the allegations that he is a perpetrator of family violence. She alleges that the father has a history of alcohol abuse and personality and behavioural issues which compromise his parenting capacity and therefore, the children’s safety.
By the time of the final hearing before me the father had amended his application; at trial he sought orders for equal shared parental responsibility and that he be permitted to spend unsupervised time with the children each alternate weekend and one evening per week for dinner.
The mother seeks orders for sole parental responsibility and that the father continue to spend supervised time with the children each Wednesday evening and alternate Sunday from 10.00am to 4.00pm. The mother’s application largely adopts the recommendations of the family report writer, Dr B, Psychologist. The mother’s application is supported by the Independent Children’s Lawyer (“the ICL”).
The hearing proceeded before me over five days and the parties were represented by counsel throughout. These are my Reasons for Judgment with respect to the parties’ competing parenting applications.

Background

The father, Mr Mather, is aged 47. He owns and operates a business in metropolitan Melbourne. He also has business interests in Africa, albeit that he has been unable to pursue those interests as a result of the effects of the global pandemic.
The mother, Ms Cathcart, is aged 37. She is employed part time as a general manager and has primary care of the parties’ two children.
The mother deposes that the parties commenced cohabitation on 30 December 2010, whilst the father’s evidence is that cohabitation commenced in late 2012. As noted above, the date of the parties’ final separation is also disputed albeit that it is common ground that the father vacated the Suburb E property in February 2016. Little turns on those issues for the purposes of determining the parties’ competing parenting applications.
There are two children of the relationship; Y, aged 8 and Z, aged 5. The children live with the mother. At the time of hearing, Y was in Grade 1 at a local primary school and Z was attending kindergarten.
Interim orders made by consent on 30 April 2019 provide for the father to spend supervised time with the children on Wednesday evenings and each alternate Sunday from 10.00am to 4.00pm. In his trial affidavit filed 19 May 2020 the father deposes that he had not spent any time with the children in person since 22 March 2020 due to the restrictions imposed in Victoria as a result of COVID-19.
The father commenced parenting proceedings upon the filing of his Initiating Application on 7 December 2018. The mother filed a Response to Initiating Application on 25 January 2019.
The matter first came before the Court on 31 January 2019. That day Senior Registrar Field made orders for the appointment of an ICL. Further, orders were made by consent providing for the following:-
(5) That until further order the children of the relationship, [the children] live with the mother ("the children").
(6) That until further Order the children spend supervised time with the father as follows:
(a)From 4.15pm until 7.00pm each Thursday; and
(b)From 10.00am until 4.00pm each alternate Sunday; and
(c)Such time shall be supervised by the paternal grandmother, Ms G Mather ("the supervisor"), upon signing and making an Undertaking to the Court; and
(d)The supervisor shall effect changeover alone without the father present at the mother's residence and the supervisor shall undertake all driving of the children during all times spent.
The orders also restrained the parties by injunction from ingesting, consuming, using or otherwise being under the influence of any legal or illegal drug or substance and provided for the parties to undertake a supervised drug and alcohol screen within 7 days. The orders also provided for the parties to attend upon Dr B for the preparation of a Family Report.
In accordance with those orders the parties attended upon Dr B in March 2019. In his first family report dated 18 April 2019 (“the First Family Report”) Dr B assessed the parties and raised a number of concerns with respect to the father, including that he presented with:-
·       “Significant psychological difficulties” in conjunction with a history of alcohol and other substance abuse and dependency;
·       Cognitive difficulties that are likely to be secondary to substance and alcohol abuse;
·       Vulnerability towards anger and potential violence; and
·       Vulnerability towards narcissistic or self-focussed functioning.
As a result of that assessment Dr B made a series of recommendations at paragraphs 130 to 136 of the First Family Report, including that:-
·       The father spend time with the children twice weekly, once midweek and on the weekend for approximately 6 to 8 hours, the time to be supervised or with another adult in substantial attendance. Dr B considered that supervision would be required over the next two years.
·       The father’s time should be dependent upon him not abusing alcohol and remaining drug free and there should be random drug and alcohol screening for a period of two years.
·       The father’s time could be reviewed in 18 months to address the possibility of increased time, dependent upon the father making gains with respect to the above identified issues.
·       The father should have a separate evaluation with a neuropsychologist to address potential cognitive difficulties.
·       The mother may benefit from ongoing assistance with her current psychologist.
Following the release of the First Family Report the matter returned to Court for interim hearing on 30 April 2019. That day the following orders were made by consent:-
(1)    That until further Order the children of the relationship, [the children] live with the Mother.
(2)    That until further Order the children spend supervised time with the Father as follows:
(a)from 4.15pm until 7.00pm each Wednesday commencing 1 May 2019 (save for 8 May 2019 when it will be Thursday instead of Wednesday);
(b)from 10.00am until 4.00pm each alternate Sunday commencing 5 May 2019;
(c)Father’s Day from 10.00am until 4.00pm;
(d)in addition, the children be able to spend from 6.00pm until 10.00pm to attend Carols by Candlelight on 24 December;
(e)otherwise as agreed between the parties in writing;
(f)the Father’s time be suspended on Mother’s Day;
(g)such time shall be supervised by the paternal grandmother, Ms G Mather (“the supervisor”);
(h)the supervisor shall effect changeover alone without the Father present at the Mother’s residence and the supervisor shall undertake all driving of the children during all times spent.
(3)    That in the event that the paternal grandmother is unavailable to supervise then the time referred to in paragraph 2 be supervised by a private supervisor as recommended by the Independent Children’s Lawyer to be paid for by the Father (and such supervisor shall undertake all driving of the children during all times spent).

Further orders made by consent that day provided that:-
·       Each party be restrained by injunction from ingesting, consuming, using or otherwise being under the influence of any legal or illegal drug or substance, unless prescribed by a registered medical practitioner or over the counter medication.
·       Within 72 hours the father attend for hair collection for drug and alcohol testing.
·       The father undergo supervised drug and alcohol tests as requested by the legal representatives of each party which shall take place within 24 hours of such a request, but not more than three times in any calendar month.
·       The father be restrained by injunction from consuming alcohol for a 24 hour period prior to spending time with the children or whilst he is spending time with the children.
·       The father be restrained by injunction from driving with the children.
·       The father attend upon and engage with an inpatient program as recommended by his General Medical Practitioner to obtain treatment and rehabilitation for drug and alcohol abuse.
·       The father engage and attend upon a psychologist in accordance with the psychologist’s recommendation, with such psychologist as recommended by his general practitioner or the inpatient program.
·       The father attend upon and engage with a neuropsychologist for the purpose of a neuropsychological assessment as recommended by his general practitioner or the inpatient program including assessment of cognitive function and assessment of the impact of drugs and alcohol upon such cognitive function.
On 17 April 2020 the matter came before me for a first day hearing. That day trial directions were made setting the matter down for final hearing on a date to be fixed. Orders were also made for Dr B to prepare an updated Family Report.
On 4 June 2020 orders were made in Chambers setting the matter down for a final hearing to commence on 24 August 2020 as a four day matter.
As a result of Court availability the original trial date was vacated and re-listed. The matter commenced before me on 14 September 2020 and proceeded over five days. At the conclusion of the hearing, orders were made regarding the filing of final written submissions.

Material Relied Upon

The father relies upon the following material:-
·Case Summary document filed 20 August 2020;
·Amended Initiating Application filed 19 May 2020;
·Affidavit of the father filed 19 May 2020;
·Affidavit of the father filed 24 June 2020;
·Affidavit of Ms G Mather filed 19 May 2020;
·Affidavit of Ms G Mather filed 24 June 2020;
·Affidavit of Dr H filed 19 March 2020;
·Affidavit of Dr H filed 11 September 2020;
·Affidavit of Ms J filed 19 March 2020;
·Affidavit of Dr C filed 10 March 2020;
·Affidavit of Mr K filed 29 January 2019;
·Affidavit of Mr L filed 7 December 2018;
·Affidavit of Ms M filed 7 December 2018;
·Updated Family Report prepared by Dr B dated 2 July 2020;
·Written Submissions filed 9 October 2020; and
·Exhibits F-1 – F-9 inclusive, being documents tendered during the course of the hearing.
The mother relies upon the following material:-
·Case Summary document received 17 August 2020;
·Amended Response to Initiating Application filed 30 March 2020;
·Affidavit of the mother filed 16 June 2020;
·Affidavit of Ms N Cathcart filed 16 June 2020;
·Affidavit of Mr O Cathcart filed 16 June 2020;
·Affidavit of Ms P filed 16 June 2020;
·Affidavit of Ms Q filed 16 June 2020;
·Family Report prepared by Dr B dated 18 April 2019;
·Updated Family Report prepared by Dr B dated 2 July 2020;
·Written Submissions filed 2 October 2020; and
·Exhibits M-1 – M-22 inclusive, being documents tendered during the course of the hearing.
The ICL relies upon the following documents:-
·Case Summary document dated 25 August 2020;
·Family Report prepared by Dr B dated 18 April 2019;
·Updated Family Report prepared by Dr B dated 2 July 2020; and
·Written Submissions filed 25 September 2020.

Orders Sought

The father sought orders pursuant to his amended Initiating Application filed 19 May 2020, which provides as follows:-
(1)    That the mother and the father have equal shared parental responsibility for the children of the relationship…(“collectively as the children”).
(2)    That the children spend time and communicate with the father as follows:
(a)Each Wednesday from the conclusion of school until 8.00 p.m. during school terms;
(b)Each alternate week from the conclusion of school on Friday until the commencement of school on Monday and if Monday is a Public Holiday until the commencement of school on Tuesday during school terms;
(c)For the first half of the second term school holidays and the long summer vacation in odd numbered years from the conclusion of school until 5.00 p.m. on the middle day;
(d)For the second half of the second term school holidays and the long summer vacation in even numbered years from 5.00 p.m. on the middle day until the commencement of school;
(e)For the entirety of the third term school holidays;
(f)From 6.00 p.m. on Father’s Day Eve until 8.00 p.m. on Father’s Day;
(g)On the father’s and each of the children’s birthday’s from the conclusion of school if the birthday falls on a school day until 7.30 p.m. and it [sic] the father’s and or the children’s birthday fall on a weekend from 10a.m. until 4.00p.m. on their respective birthday’s;
(h)From 7.00 p.m. on Christmas Eve until 7.00 p.m. on Christmas Day in even numbered years;
(i)From 7.00 p.m. on Christmas Day until 7.00 p.m. on Boxing Day in odd numbered years;
(j)Such other and further time as may be agreed in writing between the parties.
(3)    For the purpose of changeover of the children when not at school the father collect the children from the mother’s residence at the commencement of time and the mother collect the children from the father’s residence at the conclusion of time.
(4)    That the Mother do all such acts and things and sign all such documents to request and authorise any school at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information relating to the child/ren’s education to the father at the expense of the father, if any.
(5)    That the mother and father sign all documents and do all things necessary to ensure that the children attend Suburb E Primary School in Suburb E for the duration of their primary school years.
(6)    That the mother and father sign all documents and do all things necessary to ensure that the children are enrolled in and attend R School in Suburb E for the duration of the secondary school years.
(7)    That the father arrange for the child Y at his expense to have access to and in her possession a mobile telephone with the mother, the father, the paternal grandmother and the maternal grandmother’s telephone numbers saved in them and she be at liberty to make calls and receive calls from the saved telephone numbers.
(8)    That the father arrange for the child Z when she reaches the age of seven years at his expense to have access to and in her possession a mobile telephone with the mother, the father, the paternal grandmother and the maternal grandmother’s telephone numbers saved in them and she be at liberty to make calls and receive calls from the saved telephone numbers.
(9)    That the parties shall immediately inform the other of any serious illness or injury sustained by the child/ren whilst in their care and further provide any particulars of any treatment received by the children/ren together with the name and address of the treatment provider and or location at which the child/ren is/are a patient
(10)    That the parties shall each make available to the other any medication prescribed for the child/ren to enable the other party to administer such medication to the child/ren and the other party shall thereafter administer the mediation [sic] as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the party with whom the child is living or spending time.
(11)    That each party shall notify the other with no less than 7 days prior written notice and particulars of any change of residential address, telephone number, email address or other contact details
(12)    That the Father and the Mother both be permitted to attend all school activities including school concerts, school plays, excursions, parent teacher interviews and the like, normally attended by parents.
(13)    That each party give all necessary consents and authorities to enable the other party to obtain information concerning the child/ren’s education, health care and extracurricular activities.
(14)    That each party inform the other party if they intend to take the child/ren outside the Melbourne metropolitan area/State of Victoria during the period when the child/ren are in that party’s care.
(15)    That in the event that either of the Husband/Father/Wife/Mother intends to travel with the child/ren outside the Commonwealth of Australia, they shall not less than 30 days (or such other period as the parties agree) notify the other in writing as to:
(a)The country/ies to which the child/ren will travel and with whom the child/ren will travel;
(b)The airline/s upon which the child/ren will travel;
(c)The date upon which the child/ren will depart from and return to the Commonwealth of Australia; and
(d)The address/es at which the child/ren shall reside and a telephone number on which the other party can communicate with the child/ren; and
not less than seven days prior to the departure provide a final itinerary for the child/ren.
(16)    That without admitting the necessity for same, Husband/Father/Wife/Mother, their servants and agents be and are hereby restrained from abusing, insulting, or otherwise denigrating the other party or members of the other party’s family or friends in the presence or hearing of the children.
(17)    Each party be and is hereby restrained from:
(a)discussing with the children or with any other person in the children’s presence, details of these proceedings;
(b)denigrating each other to the children or speaking with the children, or to any other person in the children’s presence, in derogatory terms about the other party or members of the other party’s household.
(18)    That the Father and the Mother shall not for a period of 12 hours prior to or during their time with the child/ren:
(a)consume alcohol to excess; or
(b)use or take any drug of addiction; or
(c)misuse or abuse any drug whether or not prescribed.
(19)    Such other and further Orders as this Honourable Court deems appropriate.
The mother sought orders in the terms of her Case Summary document received on 17 August 2020 as follows:-
Parental Responsibility
(1)    The Mother has sole parental responsibility for the children of the relationship named… (“the children”).
Live with and spend time with
(2)    The children live with the Mother.
(3)    The children spend supervised time with the Father as follows:
(a)from 4.15 pm to 7.00 pm each Wednesday;
(b)from 10 am until 4 pm each alternate Sunday;
(c)from 10.00 am until 4.00 pm on Father’s Day;
(d)from 3 pm to 7 pm on Christmas Day each year;
(e)on the Father’s birthday from 4.15 pm to 7.00 pm should the birthday fall on a school day, and, from 10 am until 4 pm should the Father’s birthday fall on the weekend;
(f)on each child’s birthday from 4.15 pm to 7.00 pm.
(g)such other and further time as may be in agreed in writing between the parties;
(4)    In the event that the children’s time with the Father pursuant to paragraph 3 (a) and (b) occurs on the following occasions, such time be suspended:
(a)on the Mother’s birthday;
(b)on either child’s birthday UPON NOTING the children’s time with the Father on their birthday’s occurs pursuant to paragraph 3 (f) herein;
(c)Mother’s Day;
(d)Easter Sunday.
(5)    Such time shall be supervised by a private supervisor to be paid for by the Father, and in the event the private supervisor is not available, by a third party as agreed between the parties in writing.
Notice of cancellation of time
(6)    Except in exceptional circumstances, should the Father not be able to spend time with the children he is to give the Mother no less than 48 hours notice of his inability to spend that time.
Communication with the children
(7)     The children have telephone and/or Facetime communication with the Father ~~every Friday and~~ each alternate Sunday, with the call be initiated by the Father, and the call to commence between 6 pm and 6.30 pm or such other time as may be agreed in writing between the parties.
(8)    In relation to such communication, the Mother shall:
(a)ensure that the children are available to receive the telephone call;
(b)ensure the children have privacy during the conversation.
(9)    Forthwith, the Mother provide the Father with a telephone number and keep the Father updated of any change, within 7 days of any change occurring.
(10)    The Mother facilitate telephone calls to the Father upon the request of the children.
(11)    The Father be at liberty to send cards, and postcards by post to the children.
Communication between parents
(12)    The parents communicate by way of email only in relation to the health or wellbeing of the children, or any issues pertaining to changeover, with the Mother to provide an email address to the Father.
Changeover
(13)    That the supervisor, shall effect changeover alone without the Father present at the Mother’s residence and the supervisor shall undertake all driving of the children during all times spent.
Travel
(14)    In the event the Mother travels with the children during their time with the Father pursuant to these orders:
(a)the Mother provide the Father with 30 days written notice, other than in the case of an emergency, of any intended travel outside of the Commonwealth of Australia, with such notice to include a copy of the children’s return tickets, travelling itinerary, and contact details for the duration of such holiday;
(b)the Mother provide the Father with 14 days written notice, other than in the case of an emergency, of any intended interstate travel within the Commonwealth of Australia, with such notice to include contact details for the duration of such holiday;
(c)the Father is provided with make up time, as agreed in writing between the parties.
(15)    The Mother is otherwise at liberty to travel with the children when they are in her care.
(16)    The Mother and Father do all acts and things and sign all necessary documents to enable the issue and maintenance of the children’s passports to be held by the Mother.
School and extra-curricular activities
(17)    That the Mother do all such acts and things and sign all such documents to request and authorise any school at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations, parent-teacher interviews and other information relating to the children’s education to the father at the expense of the Father, if any.
(18)    The Mother inform the Father of any change to the children’s schools within 7 days of any change occurring.
Health/Medical emergencies
(19)    Except in the case of emergency, in the event that it is proposed the children be given any necessary medication or treatment by the Supervisor or Father, the Mother be immediately notified by the supervisor by SMS prior to the administration of the same.
(20)    Each party, as soon as reasonably practicable, inform the other of any serious illness, injury or accident suffered by the children whilst in their care and forthwith upon receipt provide the other with copies of any medical certificates or reports.
(21)    The Mother notify the Father, of any health issues concerning the child that requires specialist attention or treatment and authorise all health professionals to provide information to the other party about any such attention or treatment.
Other
(22)    Each party be and are hereby restrained by injunction from ingesting, consuming, using or otherwise being under the influence of any legal or illegal drug or substance save and except for:
(a)any legal medication prescribed to each party by a registered medical practitioner and taken or used by each party strictly in accordance with such prescription; and
(b)any over the counter medication or pharmaceutical substance ordinarily sold in supermarkets (which does not contain codeine) and taken or used by each party strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
(23)    The Father be hereby restrained by injunction from driving with the children.
(24)    The parties, their servants and/or agents be and are hereby restrained by injunction:
(a)from denigrating the other party or their family in the presence or hearing of the children and from allowing anyone else to do so in their presence or hearing;
(b)from discussing with the children any matter associated with these proceedings;
(c)and/or from allowing the children to remain in the vicinity of any persons discussing such proceedings; and
(d)from making available to the children any Family Court documentation filed in these proceedings or any correspondence from solicitor’s for each respective party.
(25)    The Father be hereby restrained by injunction from consuming alcohol for a 24-hour period prior to spending time with the children or whilst he is spending time with the children.
(26)    Within 7 days the Father provide the Mother or her legal representative with a list of all of his treating medical practitioners, drug and alcohol abuse programmes and rehabilitation courses he currently attends.
(27)    The Father continue to engage with all his medical practitioners including but not limited to his General Practitioner, drug and alcohol counsellor, Psychologist and Neuropsychologist, and comply with the recommendations of such practitioners, and the Mother or her legal representative be at liberty to request reports from all medical practitioners addressing:
(a)the status of the Father’s diagnosis’ including but not limited to any progress or regression in the Father’s previous diagnosis’;
(b)the nature of the Father’s compliance with such practitioners' recommendations; and
(c)any recommended treatment plan.
(28)    The Father continue to attend all drug and alcohol abuse programmes and rehabilitation courses.
(29)    In the event the identity of any of the Father’s medical practitioners change, the Father notify the Mother in writing within 7 days of any change occurring.
…
Prior to the commencement of the proceedings, the ICL provided a preliminary view in her Case Summary document which supported the mother having sole parental responsibility and the children living with her. The ICL also supported the mother’s application that the father continue to have supervised time only.
At the conclusion of the evidence, the parties were required to provide final written submissions to the Court. As a part of those submissions the ICL supported orders as sought by the mother in her Case Summary document.

The Issues

The issues in this matter as identified in the parties’ affidavit material, the expert reports and during the course of the hearing, may be summarised as follows:-
·The allocation of parental responsibility;
·Whether the father has perpetrated family violence against the mother and whether the children have been exposed to family violence;
·Whether the father poses a risk of physical or psychological harm to the children;
·The parenting capacity of the father;
·Whether the father has issues with alcohol and substance abuse and if so the impact of that upon his parenting capacity;
·Whether the mother has issues with the use of illicit drugs and if so the impact of that upon her parenting capacity;
·The children’s developmental needs and views;
·What time the children should spend with the father; and
·Whether the father’s time with the children should be supervised.

The Hearing

The final hearing commenced before me on 14 September 2020 and was listed for four days. Ultimately, the evidence was heard over five days and the parties were required to present their final submissions in writing.
All parties were represented by counsel throughout the entirety of the final hearing. The hearing was conducted virtually via Microsoft Teams.
At the commencement of the father’s case, counsel for the father sought to rely upon an affidavit which was filed one business day prior to the commencement of the final hearing. That affidavit was provided by the father’s treating psychiatrist, Dr H and annexed to it was his letter in response to a request for information from the father’s lawyers. Despite the late filing of the affidavit, given the importance of Dr H’s evidence to the issues in dispute I granted leave for the father to rely upon that updating affidavit.
On the second day of the hearing, counsel for the father sought leave to rely upon affidavits filed by Mr L and Ms M on behalf of the father on 7 December 2018. Pursuant to my trial directions made on 17 April 2020, the respondent was to file and serve upon the other parties by 15 May 2020 “the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief)”. Despite this order, counsel for the father pressed his client’s application to rely upon the earlier filed affidavits of Mr L and Ms M. Again, given the nature of the proceedings and the seriousness of the allegations raised by the father, I acceded to his application to rely upon the evidence of those witnesses.

Legal Principles

Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order, the best interests of the child is the paramount consideration (s 60CA of the Act).
Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must have regard to in determining what is in the child’s best interests. The Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)).
There is no requirement for the primary and additional considerations to be considered in a particular order or for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of the considerations will depend upon the unique circumstances of each case.
As to the manner in which the Court is to take into account those considerations, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at paragraph 76-77 as follows:-
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in original)
As was described by the Full Court in Donnell & Dovey (2010) FLC 93-428, the s 60CC considerations are “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another” (at [103]).
A central issue in the case was whether or not the mother had been a victim of family violence at the hands of the father and further, whether the children had been exposed to that behaviour. Family violence is defined at s 4AB of the Act and includes:-
·An assault;
·A sexual assault or other sexually abusive behaviour;
·Stalking; or
·Repeated derogatory taunts; or
·Intentionally causing death or injury to an animal; or
·Unreasonably denying a family member financial autonomy that he or she would otherwise have; or
·Unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child at a time when the family member is entirely or predominantly dependent on the person for financial support; or
·Preventing the family member from making or keeping connections with his or her family, friends or culture; or
·Unlawfully depriving the family member, or any member of the member’s family of his or her liberty.
Section 4AB(3) provides that a child is exposed to family violence, as defined above, if the child sees or hears family violence or otherwise experiences the effects of family violence.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child, who at the time, was a member of the parent’s family or where there are reasonable grounds to believe that a parent has engaged in family violence as defined in s 4AB of the Act. The presumption may also be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
For the reasons set out below, I am satisfied that in this case it is not in the children’s best interests for the father and the mother to have equal shared parental responsibility and that the mother should have sole parental responsibility for making decisions regarding Y and Z’s long-term care, welfare and development.
Given that I have determined that it is not in the children’s best interests that there be an order for equal shared parental responsibility, I need not consider whether it would be in the children’s best interests and reasonably practicable for them to spend equal time or substantial and significant time with each parent (s 65DAA of the Act).

The Evidence

Findings are made on the balance of probabilities having regard to the evidence. In applying that standard, the Court must have regard to the nature and subject matter of the case and the gravity of the matters that are alleged (s 140 Evidence Act 1995 (Cth)). In what follows statements of fact constitute findings of fact.
I have read all documents upon which the parties have relied and the exhibits tendered during the hearing. I have also had the benefit of observing the appearance and demeanour of the parties when giving their evidence in Court virtually via Microsoft Teams.
In making my findings I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings.

The Father

The father commenced his evidence on the first day of the final hearing and concluded on day three. He was cross-examined by both counsel for the mother and counsel for the ICL.
The father was an unimpressive witness. At times, I found him to be non-responsive and evasive when questioned as to his conduct. He was also at times combative and aggressive in his response to questions by counsel for the mother and the ICL. On other occasions he was argumentative and sarcastic in his responses to appropriate and relevant cross-examination.
For example, when counsel for the mother questioned the father as to his inheritance from his grandmother’s estate, the father responded, “that’s none of your business”. No objection had been taken by the father’s counsel to the question, it relating to his capacity to accommodate the children.
Similarly, when questioned by counsel for the mother as to his proposed housing arrangements for the children when in his care, the following exchange occurred:-
Counsel: And you would say in terms of your practical arrangements for looking after the children now, should Her Honour be minded to make the orders that you seek, that you would suggest that it is appropriate that you house them where, on the alternate weekends when they are in your care?

Father: I have explained this to you.
Counsel: Sorry?
Father: I have explained this-
Counsel: Variously around at friends’ houses, is that your evidence?
Father: At different properties. If I have to rent an Air BNB for a weekend I’ll do it. Because I’m financially constrained and I’m having to live with other people, does not have any, anything to do with my, what I do with my children. I’m always welcome at my mother’s house. I’m always welcome at my friend Mr FF’s farm. I’m always welcome at 25 different places.
Counsel: Don’t you think it might be a good idea to have a permanent spot for your children to come back to?
Father: I don’t think that’s relevant.

Throughout his evidence, the father was steadfast in his rejection of the proposition that he had committed family violence against the mother. Further, during cross-examination he confirmed his view that the proceedings were an opportunity for him to clear his name in relation to those allegations, as well as to protect the children from the risks he alleged the mother posed, notwithstanding his concession that she was to remain the children’s primary caregiver.
The father was extremely critical of the mother and her conduct throughout his evidence and sought to highlight what he perceived to be her faults at every opportunity.
For example, during cross-examination the father asserted that he did not sign the Application for Consent Orders filed on behalf of the parties in relation to property. That application was filed 1 February 2018 (Exhibit M-2) and the orders sought by consent included that the Suburb E property be transferred to the mother. The father’s oral evidence was that he had engaged a handwriting expert to establish that he had not signed the application or the minute of order, it being his contention that the mother had forged his signature.
Notwithstanding the father’s allegations that the documents were forged, the father confirmed that he had complied with the orders and transferred the Suburb E property to the mother.
The father tendered the report obtained by him from the handwriting expert (Exhibit F-2). That report discloses that the father did not provide instructions to that expert until 23 May 2020, more than two years after the application was filed and the property was transferred.
I found the father’s evidence in relation to this matter to be nonsensical; that he would comply with orders he asserts were improperly made as a result of his signature being forged by the mother is unbelievable. There has been no challenge to the property orders made by the Court. Further, the father waited more than two years before engaging a person to investigate the alleged forgery. I am satisfied that the father’s evidence with respect to these matters was likely a further attempt by him to besmirch the mother’s character.
Rather than focussing on the children and their needs, the father’s attention throughout his evidence was concentrated on defending the allegations made as to his own conduct, and on his criticisms of the mother. That the father adopted that approach, notwithstanding his proposal that the children should continue to live with the mother, did him no service.
When questioned by both counsel for the mother and the ICL as to his concerns with respect to the mother’s behaviour and care of the children, the father confirmed that he maintains concerns that:-
·The mother uses and traffics illicit drugs.
·The mother allows the children to be exposed to people affected by drugs.
·The mother forged the father’s signature on the application for property consent orders filed in February 2018.
·The mother had somehow influenced the father’s general medical practitioner, Dr S such that he was persuaded to record inaccurate accounts as to the father’s report of his use of alcohol; it was the father’s evidence that the mother had “something going on” with Dr S. He was also critical of the alleged failure of Dr S to supervise drug screens and indeed at paragraph 71 of his trial affidavit deposed as to his attempt to discredit Dr S in that regard.
The father went to extraordinary lengths in order to prove his allegations against the mother. For example during his oral evidence he confirmed that he engaged a private investigator to surveil the mother, her housemate and her home, an IT specialist to monitor computers in the mother’s home and as I have discussed above, a handwriting expert in his attempt to prove that he had not executed the Application for Consent Orders.
In Dr B’s second family report dated 2 July 2020 (“Second Family Report”) he observed of the father at paragraph 120:-
…Within the evaluation, evident were consistent themes associated with rather paranoid thinking. [The father’s] allegations regarding [the mother], while potentially able to be confirmed by court proceedings or police proceedings, presented with an undercurrent of paranoid ideation.
That observation is consistent with the father’s presentation during his oral evidence. The father was steadfast in his criticism of the mother and the maintenance of his beliefs as to her anti-social behaviours, notwithstanding his inability to prove those matters whether through the engagement of a private investigator, an IT specialist or multiple reports of these matters to police. The father’s evidence in relation to the mother’s conduct was characterised by unsubstantiated assertions or assertions that were unsupported by evidence.
As well as being highly critical of the mother, the father was staunch in his denial of the allegations as to his own anti-social behaviour. In particular, he was unwavering in his denial that he had perpetrated family violence or that he had issues with drugs and alcohol.
In doing so, the father demonstrated that he had little awareness or understanding of what constitutes family violence. He maintained his denial in relation to that conduct, notwithstanding admissions by him that he had been abusive towards the mother, calling her names such as “a fuckhole” (Exhibit M-6) and “fagmom” (Exhibit M-20). His justification for such verbal abuse was that “people argue”.
It was also put to the father that during another incident between the parties in January 2015, the father held the mother, who was then pregnant with the parties’ second child, against a wall and threatened her with a knife. The father was shown a copy of text messages passing between the parties’ following that incident (Exhibit M-5). At 7.36 pm on 29 January 2015 the following text exchange occurred:-
MotherYou just held you pregnant girlfriend against a wall and threatened her with a knife. I am going me to stay at Ms T’s and I am taking Y
FatherYou kicked and hit me. Stay away. Go do what you do.
MotherI am getting Y. I am not leaving without her. I got you when we held me against the wall.
When questioned in relation to that event the father asserted that there were more text messages and that the texts were doctored. Notwithstanding that allegation no further texts were produced by him in relation to that incident.
When pressed, the father admitted that he held the mother against the wall in order to have her “calm down”. He sought to justify that behaviour stating that he was in fact being attacked by the mother as she threw a bowl and spoon at him. During cross-examination the father denied the allegation that he had threatened the mother with a knife.
Given the content of the text message sent by the mother immediately following the incident which refers to the father threatening her with a knife, which was not denied by him during the exchange of text messages, I am satisfied on the balance of probabilities that the father was holding a knife during the exchange. I am also satisfied that the mother felt threatened by the father’s conduct.
The father sought to minimise his own conduct during that incident and to justify his behaviour, alleging that the mother attacked him. The mother conceded during her evidence that she did throw a dish during the incident. The father demonstrated little insight or understanding that his behaviour in physically restraining the mother and then pushing her against a wall was threatening or intimidating or that it is conduct that constitutes family violence.
At paragraph 73 of Dr B’s First Family Report, he noted the father’s report to him that he had told the mother “if you are lying to me you know that I’ll strangle you”. When cross-examined in relation to that reported comment, the father’s oral evidence was that he could not recall ever saying that to the mother. However he qualified that statement by saying that whilst he did not remember saying it, if he did make such a statement it “wasn’t a threat to kill”. He conceded that he may have made the statement as reported by Dr B. There was no challenge to Dr B’s reporting of that statement and I accept that he has accurately recorded the father’s comment. I am satisfied that the father’s reported statement to Dr B is a further example of the father’s threatening behaviour. I am also satisfied that the father has little insight as to the impact of that behaviour on the mother.
Dr B also reports in that paragraph that the father justified that statement saying it was “coupley stuff”. Dr B’s assessment of those statements was that they represented a minimisation and normalisation of family violence. That assessment is consistent with my impression of the father during his oral evidence.
The father also demonstrated little insight as to the impact of his behaviour towards the mother which is belittling and abusive. He was cross-examined in relation to a series of text messages passing between the parties on 5 August 2015 regarding his request that the mother prepare a music playlist for his business (Exhibit M-7). The mother was approximately 8 months pregnant with the parties’ second child when that event occurred. At 5.13 pm that day the father sent the following text to the mother:-
Wow.you drove all the way over here. All up 30 mins to do something you could have done months ago. You managed to download one fucking album. Great. Put a fucking suitable playlist together for fucks sake. “oh I don’t know what you want” or “I did not have the money” is wearing fucking thin with me. Enjoy your day off
Oh and big cheers for burning 9 CDs at your sisters house two months ago.

During cross-examination in relation to that text exchange the father agreed that this was an example of “coupley stuff” as had been reported by Dr B. The father conceded that at the time of that exchange the mother was heavily pregnant and had been ordered by her doctor to have bed rest. He sought to justify his conduct, stating that the mother could have created the playlist he required in bed. He agreed that he expressed no concern for and only criticism of the mother during that exchange.
The father was also unwilling or unable to make any concessions in relation to conduct by him towards the mother which may be perceived as stalking or harassment. For example, he would not acknowledge that his conduct in engaging private investigators and making video and audio recordings of the mother without her knowledge could be perceived as stalking behaviour. When asked to consider the impact of that behaviour on the mother, the father stated that that “wasn’t a concern of [his]”. The father admitted that he did not consider the impact of his behaviours on the mother.
The father was insightless as to the impact of his behaviours upon the mother and throughout the evidence sought to minimise and justify any behaviour that might be characterised as family violence.
In relation to his own conduct, the father was at times evasive or non-responsive and otherwise sought to minimise or justify behaviour which may attract adverse comment. The inability of the father to recognise his own violent behaviour and its impact upon the mother and the children does not give the Court confidence as to his capacity to contain such behaviours and protect the children from them were they to be placed in his unsupervised care.
Having regard to those matters, I am satisfied that the evidence of the father must be treated with caution.

The Mother

The mother’s evidence commenced on the fourth day of the trial and concluded the same day. The mother was cross-examined by counsel for the father and counsel for the ICL.
The mother impressed as an open and frank witness who readily made concessions when appropriate to do so.
For example the mother made many concessions regarding her historic use of illicit drugs. During cross-examination by counsel for the father, the mother openly conceded that prior to the birth of the children she had used a range of illicit substances including ice, marijuana, cocaine, ecstasy, ketamine and LSD. The mother conceded that she last used cocaine at a work function in 2017.
When challenged as to the parties’ separation date by counsel for the father, the mother readily conceded that the parties may have different versions of when the relationship ended.
The mother also readily made concessions that the children miss the father when he is away. The mother confirmed that in the long-term she hoped that the father would be involved in the children’s lives and agreed that the father loves the children.
The mother also conceded that she threw a bowl at the father during the argument in January 2015 which culminated in him pinning and restraining her against a wall to enable her to “calm down”. I will refer to the mother’s evidence in relation to the family violence allegations in more detail later in the judgment.
I found the mother’s oral evidence to be consistent with that provided by her in her trial affidavit and also in the history provided by her to Dr B.
The mother’s evidence as to the children’s differing relationships with the father and her insight and understanding as to their needs was evident throughout the cross-examination. I found the mother to be child-focussed and I am satisfied that she was a truthful witness.

Ms G Mather

Ms G Mather is the father’s mother, the children’s paternal grandmother. She swore two affidavits in these proceedings in support of the father’s application, the first filed on 19 June 2020 and the second on 24 June 2020, in reply to the mother’s trial affidavit. The paternal grandmother was cross-examined by both counsel for the mother and counsel for the ICL on the third day of the hearing.
In her first affidavit filed 19 May 2020, Ms Mather deposes as to her role as a supervisor of the father’s time with the children. She deposes as to her observations of the father with the children confirming her view that the father and the children enjoy a close and loving relationship. She also deposes as to her own close relationship with the children and expresses her desire to continue to spend time with the children on a regular basis.
Ms Mather is critical of the mother, deposing as to occasions where she believes the mother has endeavoured to thwart the father’s time with the children. In particular she refers to specific occasions in December 2018 and January 2019.
What is striking about Ms Mather’s affidavit is that she does not in any meaningful way identify the reasons she is required to act as supervisor, nor does she identify the risks posed by the father to the children which necessitate that supervision. Indeed, at paragraph 27 of her affidavit, Ms Mather seeks to defend the father referring to the “untrue allegations” made by the mother about the father which “have affected his integrity greatly.”
During her oral evidence, Ms Mather was strident in her defence of the father. For example, during cross-examination by counsel for the mother Ms Mather confirmed her view that the father does not need to have supervision during his time with the children, stating that he is a kind and loving father. She confirmed that it was her view that the only reason supervision was required was based upon a lie, the lie being the mother’s allegation that the father had assaulted her in September 2018. Ms Mather was not present when that assault is alleged to have occurred. Accordingly, her views as to the veracity of those allegations are based upon information obtained by her from the father and as such must be treated with caution. Ms Mather also expressed the view that had that “lie” not been told, the father would enjoy “a normal relationship” with the children.
Further, Ms Mather confirmed that her position was that she sought to look after the father in circumstances where an injustice has been done. She expressed the view that Dr B’s family reports were biased and were based upon the mother’s lies and further that those reports cast aspersions on her family.
It was clear from Ms Mather’s oral evidence that at no time had she challenged the father’s version of events or his views of the mother; rather, Ms Mather seems to have accepted the father’s account of events and adopted his narrative.
Notwithstanding her views as to Dr B’s report, Ms Mather did acknowledge that the father has difficulties in some areas. For example, she conceded that the father gets “terribly frustrated” and that in relation to the alleged assault in September 2018, she conceded that the father seemed to be “paranoid”. She conceded that the father has been very troubled in relation to those matters and stated that his disturbance arises as a result of the alleged lie. This was another example of her adopting the father’s narrative of that event; it was clear that Ms Mather had not considered the possibility that in fact the father had assaulted the mother.
When questioned as to how the father’s “troubles” manifest themselves, Ms Mather conceded that the father probably drank too much. It was her view that the father does not drink when with the children, that he has undertaken counselling and rehabilitation. When questioned as to whether or not it was her view that the father has an issue with alcohol, Ms Mather repeated that he probably did drink too much. As to whether the father’s issues with alcohol were long-standing, Ms Mather sought to justify his behaviour noting that he is a “social being”, that he was “out and about” and that, in that context perhaps he did drink too much.
Ms Mather was unaware of the assessments of the father undertaken by either Ms D or Dr H.
When questioned as to her views of whether the father has an anger-management problem, Ms Mather stated that he is generally not an angry man but that he is angry with the current situation. She sought to minimise the father’s behaviour stating “he gets angry, I get angry, I’ve been very angry - you have to learn to deal with it”.
When pressed, Ms Mather conceded that she had observed the father become angry and further agreed that the mother might have felt intimidated by his anger.
Again she sought to justify the father’s angry outbursts stating that very, very often the father would ask the mother to do something and would get angry, if she did not respond. She noted that he would exhibit a “short burst” of anger and that the mother would then attend to the task and his anger would subside. Ms Mather demonstrated little insight as to the impact of the father’s behaviour on the mother, nor did she perceive or understand the potential risk to the children should the father have similar angry outbursts when they are in his care.
As to the mother’s allegation that there had been a physical altercation between the father and Mr Mather Senior, Ms Mather confirmed that she was aware of the allegation. During cross-examination, she conceded that she was in the other room when that altercation is alleged to have occurred. She conceded that her husband and the father “got a little loud”, that she was in bed at the time and got up to speak to them as she did not want them to wake the children. It was my impression that Ms Mather was minimising the seriousness of that event and again adopting the father’s account of an event, without question. The mother’s evidence was that she was informed of the altercation by Ms Mather’s husband, the paternal grandfather, who did not give evidence in the proceedings due to his incapacity. Ms Mather agreed that the report of such incident to the mother, if that occurred, would be cause for concern.
Ms Mather was cross-examined by counsel for the mother in relation to the father’s conduct towards the mother. On 9 January 2016, the father sent a text message to the mother at 5.19pm (Exhibit M-15) as follows:-
Fact.. You and your whole family have been wrong about me.. Fact… You avoided doing absolutely anything at V Town ..fact… Mr O Cathcart is a undermining cunt of a bloke to me and others( even your mum and the Easter squad knows and have said it)fact ..Counsellors prey on the vulnerable for a living.. Fact …You chose not to ever be on my side with my folks having a go at mike…fact .. You have threatened and used my children against me.. Fact .. You have made it impossible for reconciliation and have indeed actually sought legal advice to get me.. You are a nasty piece of work . Using the kids is unforgivable. You are the problem.
(As per the original)
Ms Mather confirmed that the mother forwarded that text message to her and sent a further message stating “I don’t think I can go back home after this one” (Exhibit M-17).
During cross-examination, Ms Mather conceded that the message from the father was unpleasant. She agreed that the person receiving that message, that is, the mother, was justified in feeling apprehensive.
Again, Ms Mather sought to justify the father’s behaviour. It was her evidence that on that occasion the father would have been “stirred up” as he had been unable to find a missing pillowcase at the V Town property. She confirmed that the father was preparing that property for tenants and that the mother had not assisted him on that occasion. Ms Mather acknowledged that the father would have been angered by the mother’s failure to assist.
It was put to Ms Mather that at the time of that exchange the mother was then caring for Z who was aged four months and Y aged two-and-a-half years. When questioned as to whether there was some expectation by the father that the mother would attend the V Town property to assist him with the preparations, Ms Mather confirmed that there was such expectation that the mother would assist, noting that it is a five-bedroom property and that the father was obviously “stirred-up” by the mother. Seemingly, from Ms Mather’s view point, the mother was to blame for the father’s outburst and he was justified in his anger towards the mother and in his conduct in forwarding to her abusive and derogatory messages, notwithstanding the pettiness of the source of his anger, being a missing pillowcase.
I do not accept that the father’s behaviour on that occasion was appropriate or justified; the message to the mother was abusive and intimidating. Further, in my view the expectation that the mother travel to V Town from Melbourne to assist in the cleaning and preparation of the property whilst caring for the parties’ young children was unreasonable.
As to the father’s substance abuse, Ms Mather confirmed that she had suspicions that he had been taking drugs. She acknowledged the father’s allegations that the mother used drugs but confirmed that she had not noticed that; she confirmed during her oral evidence that if the mother was taking drugs she was not aware of it.
Ms Mather was also questioned about the father’s “drive to have his day in court” as was observed by Ms D at page 4 of her personality assessment of the father. Ms Mather conceded that the court case was consuming the father and that he was focussed on spending time with his children. Later in her evidence Ms Mather stated that she did not believe the father was paranoid but that he was focussed on trying to prove the lie, that he did not assault the mother in September 2018 as alleged. Nonetheless, she agreed with the observations of Dr B at paragraph 179 of the Second Family Report where he observed the father to be impulsive and focussed on the mother.
Ms Mather took issue with Dr B’s assessment that the father has problems with alcohol notwithstanding her concessions during cross-examination that the father at times, drank too much.
Throughout her evidence Ms Mather endeavoured to support and assist the father. That she adopted that position is unsurprising given her love and devotion to the father and the children. Ms Mather did make concessions in relation to her observations of the father’s fixation on the proceedings and the need to disprove the mother’s allegations as to his violent behaviour. Ms Mather reluctantly made concessions as to her own observations of such behaviour, acknowledging the text messages sent by the father, the verbal altercation between the father and her husband, and her own observations of his angry outbursts.
My impression of Ms Mather was that she had been shielded from much of the father’s anti-social and aggressive behaviours. She had not been provided with or read the personality assessments of the father prepared by Dr C or Ms D. Further, it was clear from her oral evidence that she accepted without question the father’s account of what occurred in September 2018.
I am satisfied that the evidence of Ms Mather and the concessions made by her as to the father’s behaviour are consistent with and support the mother’s contentions as to the father’s propensity to anger. It is understandable that Ms Mather sought to minimise and justify that behaviour. However, Ms Mather’s justification of or minimisation of the father’s aberrant behaviour does little to support him in seeking treatment for that conduct and fails to protect the children from the harm exposure to such behaviours may visit upon them.

Mr K

Mr K swore an affidavit that was filed on 29 January 2019 in support of the father’s application. Mr K is a private investigator and deposes that “in early September 2018, [the father] engaged me to investigate [the mother] in relation to the safety of their children, Y and Z.”[1] Mr K was not required for cross-examination.
[1] Affidavit of Mr K filed 29 January 2019, para 3.
Mr K deposes as to his observations of the changeover of the children that occurred at the front of the mother’s home in Suburb E on 17 September 2018. He deposes that he witnessed “the entire changeover” and that “[the father] did not touch [the mother] at all”. He deposes that he was approximately 20 metres away from the changeover.
Although not referred to in his affidavit, it is the father’s evidence that Mr K videoed the changeover at the mother’s home on 17 September 2018 (Exhibit M-12). The father was cross-examined in relation to the content of that video and conceded that:-
·The video was disjointed;
·The video does not show the father pulling up at the front of the house in his motor vehicle;
·The video does not show the whole sequence of events that occurred at the front of the mother’s home;
·The video does not show the mother coming around the back of the father’s motor vehicle to remove the child; and
·The video appears to have been edited.
When questioned as to his explanation for the apparent edits and absence of footage in the video produced, the father responded that those questions would need to be put to Mr K who had filmed the video. Throughout his oral evidence the father sought to maintain that the video demonstrates a “normal” changeover.
The difficulty with the evidence of Mr K as set out in his affidavit is that he makes no reference to the video filmed by him, and he asserts that the changeover occurred over the period of only one minute. It is evident from the video produced by the father and identified by both parties as being footage of the changeover, that the changeover took place over a period longer than the time alleged by Mr K and further, as conceded by the father, that the video produced by Mr K has been edited and does not disclose the complete sequence of events.
Having regard to those matters I am satisfied that little weight can attach to the evidence of Mr K.

Mr L

Mr L is a friend of the father. He swore an affidavit in support of the father which was filed on 7 December 2018. The father sought and was granted leave to rely upon that affidavit.
In his affidavit, Mr L deposes that at the time of swearing he had known the mother for a period of approximately eight years. He also deposes that he witnessed the mother take drugs including cocaine, speed and ice. He deposes that he observed the mother smoke ice during the first day of a festival on 31 December 2015. He deposes that the mother continued to ask to smoke ice in the two following days.
Mr L was not required for cross-examination.
The mother was cross-examined in relation to the allegations contained in Mr L’s affidavit. It was her evidence that in fact the parties attended the festival with Mr L and his wife in December 2014/January 2015, rather than a year later as alleged in Mr L’s affidavit. The mother admits that she smoked ice on the first day of the festival but otherwise denies the allegations that she smoked ice on the second and third days of that festival.
In light of the admissions made by the mother as to her historic drug use, which I accept, coupled with the fact that the father does not challenge her role as the children’s primary carer, in my view little turns on the evidence of Mr L.

Ms M

Ms M is also a friend of the father. She swore an affidavit in support of the father which was also filed on 7 December 2018. The father was granted leave to rely upon that affidavit.
Ms M deposes that she first met the mother in 2011. She also deposes that she witnessed the mother taking drugs. It is her evidence that she attended a music festival with the mother on 31 December 2015 until 2 January 2016 and that she smoked ice with the mother. She alleges that the mother told her that she used ice every day before getting pregnant and that she loved it.
Ms M was not required for cross-examination. Again, in light of the father’s case that the children should continue to live with the mother and in circumstances where the mother admits that she used drugs, including at a music festival with Ms M in December 2014, Ms M’s evidence is of little assistance to the Court in the determination of the current parenting dispute.

I accept Dr B’s evidence regarding the risks of harm to the children in the father’s care. I am satisfied that the risks posed by the father relate both to the children’s psychological well-being as well as their physical well-being.
Further, in light of the father’s inability to remain abstinent during the course of these proceedings, when he was on notice that his use of alcohol and drugs was an issue, I have little confidence that he will remain abstinent at the conclusion of the proceedings, even if orders were made to that effect.
Whilst Dr B clearly identified the risks the father poses to the children’s psychological harm, it is also evident from his reports and oral evidence that there are potential risks to the children’s physical well-being by virtue of the father’s failure to address his mental health issues and substance use issues. Those risks cannot be ignored given the young ages of the children and their inability to protect themselves from harm.
As to the proposition that the father’s mother be in substantial attendance to support his time with the children, given my findings as to her views in relation to the concerns raised by the mother and lack of acknowledgement or understanding of the risks posed to the children by the father, I do not consider her to be an appropriate supervisor of the father’s time.
The children the subject of these proceedings are very young and as such particularly vulnerable to the risks identified by Dr B. As a result, in my view the father’s proposal that his time with the children be unsupervised is not sustainable.
The reality is that the father has been on notice as to the need for him to engage in therapeutic treatment so as to modify his behaviours since the publication of the First Family Report in April 2019. Similarly, he has been advised by his treating psychiatrist, Dr H and the psychologist from whom he sought opinion, Ms D that such treatment was necessary. In the face of that advice, the father has taken no action to address his identified mental health issues. That he has failed to do so in my view demonstrates that he has little insight as to his difficulties or their impact on his behaviour. Further, the father’s failure to engage with therapeutic intervention supports a view that he has little insight or understanding as to the impact of his behaviour on the mother and the children. In my view the father’s failure to recognise the impact of his behaviours on those closest to him, namely the mother and the children, highlights the potential risks to the children whilst those issues remain untreated.
Throughout the proceedings, the father was highly critical of the mother. I have no confidence in light of the father’s evidence that he will be able to contain that behaviour in the aftermath of these proceedings. That view is bolstered by the evidence of Dr H that the father would have difficulty if his application did not succeed. Dr B expressed concerns as to the potential psychological harm to the children were they to be exposed to the father’s views regarding the mother.
The father also demonstrated little insight or understanding as to what constitutes family violence. Throughout the proceedings he was unwavering in his denial that he had committed family violence, albeit that he admitted verbally abusing the mother, pinning her against a wall while pregnant and engaging third parties to conduct surveillance of her in the home at Suburb E. I am also satisfied that the father did commit family violence against the mother when he pushed her during a contact changeover on 17 September 2018.
A child is exposed to family violence if she or he hears or sees family violence or otherwise experiences its effects; exposure includes overhearing threats to cause harm to another. It also includes a child feeling the need to comfort a person affected by violence, whether verbal abuse or physical assault. As noted earlier in the judgment, I am satisfied that the children have been exposed to the father’s physical assault of the mother in September 2018, and the father’s verbal attacks on the mother.
Ordinarily the Court is reluctant to make orders for long-term supervision, although it can and should do so if it is satisfied that such orders are in the child’s best interests. The Full Court has cautioned against the making of such orders in the absence of a review mechanism (see Champness & Hanson (2009) FLC 93-407; Slater & Light (2013) 48 Fam LR 573). Both of those decisions express concern as to the making of orders providing for on-going supervision without at least providing some opportunity for the party the subject of that supervision to seek to remove the supervision requirement.
The challenge at this time in providing a mechanism as contemplated by the Full Court is the failure of the father to engage with the therapeutic supports which have been recommended by Dr B, Dr C, Ms D and Dr H. At the time of hearing, the father had not commenced therapy as recommended. Further, he had failed to remain abstinent from alcohol as recommended by those experts.
As a result of the father’s reluctance to engage with the therapeutic treatments recommended by those experts so as to effect change and improvement in his mental health issues and addiction to alcohol, I am satisfied that it is appropriate and necessary that there be orders for long-term supervision. An order in those terms will ensure that the children have the opportunity of maintaining their relationship with the father.
The father is presently spending supervised time with the children on a weekly basis each Wednesday afternoon and each alternate Sunday. The evidence of Dr B across the two Family Reports is that the children’s relationship with the father has improved over time with those arrangements and he recommends that they continue. Having regard to that evidence I will make orders in those terms.
The mother also proposes that the father communicate with the children by telephone and/or Facetime each alternate Sunday with the calls to be initiated by the father and commence between 6.00pm and 6.30pm. The father makes no submissions in relation to that proposal which is supported by the ICL. I am satisfied that orders in those terms are in the children’s best interests to ensure that they have the opportunity of having regular and frequent communication with the father in addition to time spent.
The mother also proposes that there be an order that she facilitate the children’s telephone calls to the father and that the father be at liberty to forward cards and postcards to the children. Again these matters are not addressed by the father in his submissions. However, having regard to the nature of the relationship the children enjoy with the father, I am satisfied that orders in those terms are in the children’s best interests.
The father proposes that he provide to the children a mobile telephone in order to facilitate the children communicating directly with the parties and their grandparents. He proposes that Y be given a phone now and that Z receive one when she turns 7. I do not consider orders in those terms to be appropriate. I am not satisfied that the children have sufficient maturity to be in possession of their own mobile telephones at age 7 or 8 as in the case of Y. Accordingly, I will dismiss that application. The orders I will make regarding telephone/facetime communication supplemented by orders that the mother facilitate additional time if sought by the children will ensure that the children have frequent and regular opportunity to communicate with the father and members of his family without the requirement for them to be provided with mobile telephones.
The mother also seeks orders as to how communication is to be facilitated between the parties. She proposes that the parties communicate by way of email only. Given my findings as to the poor relationship between the parties, I am satisfied that an order in those terms is appropriate.
Both parties seek orders that they be notified by the other in the event of either of the children having a medical emergency which necessitates medication or treatment. The mother also proposes that there be an order that she notify the father of any health issues concerning the children that require specialist treatment and further that she authorise health professionals to provide information to the father in relation to such medical assessment or treatment. Those orders are supported by the ICL. I am satisfied that it is in the children’s best interests that both parties are notified of any illness or injury sustained by the children and further that both parties have the opportunity of obtaining information in relation to the assessment and treatment of any health condition suffered by the children. Accordingly, I will make orders as sought with respect to those matters.
Both parties propose that there be an order that the mother authorise the children’s schools to provide copies of notices, reports, information, newsletters and photographs to the father in relation to the children’s education. The ICL supports the making of such orders. Again I am satisfied that it is in the children’s best interests that both parents receive information from the children’s schools regarding their progress and I will make orders in those terms.
The father seeks orders that the parties do all things necessary to enrol the children to attend at R School in Suburb E commencing in Year 7. The mother opposes that order, it being her case that it is premature to commit to the selection of secondary schools for the children, given that they are in Year 2 and Prep respectively. Having regard to the young ages of the children and in circumstances where there are still many years of primary school education ahead of them, I accept the submission made on behalf of the mother and agree that it would be premature at this time to make any orders in relation to the selection of their secondary school. Accordingly, I do not propose to make any orders in respect of that issue.
Both parties seek mutual orders restraining them from misusing prescription medication or consuming illicit substances. Given the nature of allegations raised by each of the parties in respect of those matters and further the admissions by each of the parties as to their use of illicit substances, I am satisfied that orders in those terms are appropriate. Accordingly I will make orders as sought by the mother regarding those matters.
In addition, in light of the evidence of Dr B regarding the father’s consumption of alcohol and my findings with respect to those matters I will make orders as sought by the mother restraining the father from consuming alcohol for a period of 24 hours prior to the commencement of his time with the children and during his time with the children.
Both parties seek orders in relation to travel with the children. Given the orders that I will be making in relation to the father’s time with the children, I do not propose to make any orders regarding travel by him overseas or interstate with the children.
The mother seeks orders requiring her to provide notice to the father in the event that she proposes to travel with the children during his time. She proposes that she provide 30 days’ written notice to the father in the case of travel outside of the Commonwealth of Australia, and otherwise 14 days’ notice in writing in the event of proposed interstate travel. She proposes to provide the father with evidence of the purchase of return air tickets in the case of international travel, itineraries and contact details prior to commencement of travel. She also seeks orders requiring the parties to sign all documents necessary to enable the parties to obtain passports for the children. The father proposed that there be mutual orders in almost identical terms.
I am satisfied that the opportunity for the children to travel with the mother interstate or overseas upon appropriate notice and provision of information as identified is in the children’s best interests and I will make orders in those terms. Those notice provisions should apply to all travel, including that that does not impinge on the father’s time. I am satisfied that it is in the children’s best interests that the father have notice of all travel, whether or not it occurs during his time. This will enable the children to share with him their travel experiences. I am satisfied such an order is in the children’s best interests.
The father seeks orders that each party be required to provide to the other updating information as to their addresses and contact details. I am satisfied that an order in those terms is in the children’s best interests. It is essential that the parties be able to communicate with each other at all times regarding the children and an order in those terms will facilitate that communication.
The mother seeks orders that the father provide her with no less than 48 hours’ notice in the event of his inability to spend time with the children pursuant to Court order. Again, I consider an order in those terms to be in the children’s best interests. It will ensure the mother has opportunity to make alternative arrangements for the children in the event that the father is unable to spend time with them.
The mother seeks orders that the father continue to be restrained from driving the children. Given my findings in relation to the father’s issues with alcohol and his identified untreated mental health issues, I am satisfied that the continuation of that order is in the children’s best interests.
The mother also seeks an order that the supervisor of the children’s time facilitate changeover without the father being physically present at the mother’s residence. Given my findings in relation to family violence, I am satisfied that the father should not attend at the mother’s residence at changeovers and will make orders to that effect.
The mother also seeks orders that the father provide a list of his treating medical practitioners, rehabilitation programs and courses attended by him and further, an order that the father continue to engage with his medical practitioners regarding treatment for his drug and alcohol use as identified earlier in the judgment. To date the father has failed to engage with the therapies and treatments recommended by both his own medical and psychological treatment providers as well as Dr B. Given the issues identified, I am satisfied that it is in the children’s best interests that the father continue to engage with those professionals to address these issues. Accordingly, I will make orders to that effect. However, given that I am making orders that the father’s time will be supervised I am not persuaded that it is necessary for the mother to be at liberty to seek reports from the father’s treating medical practitioners.
The mother also seeks notice in the event of a change of the father’s treating medical practitioners. Again, given the father’s history with respect to substance abuse and mental health issues, I am satisfied that it is in the children’s best interests that the mother be kept appraised of the identity of the father’s treatment providers.
The father also proposes that there be mutual non-denigration orders and orders restraining each party from discussing the proceedings with the children. Having regard to my findings in relation to the matter, including findings in relation to verbal abuse and the fact that the children have been exposed to the conflict, I am satisfied that such orders are in the children’s best interests and I will make orders in those terms.
Finally the mother seeks an order that the father pays her costs of the proceedings. The mother makes no submissions in support of that application. Given the nature of the proceedings, and absent submissions as to circumstances that would justify a departure from the usual position that each party bear their own costs, I will dismiss that part of the mother’s application.
Accordingly, the orders that I will make are as follows:-
(1)That all previous parenting orders be discharged.
(2)That the mother have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children Y born … 2013 and Z born … 2015 (“the children”).
(3)That the children live with the mother.
(4)That the children spend time with the father as follows:-
(a)from 4.15 pm to 7.00 pm each Wednesday;
(b)from 10 am until 4 pm each alternate Sunday;
(c)from 10.00 am until 4.00 pm on Father’s Day;
(d)from 3 pm to 7 pm on Christmas Day each year;
(e)on the Father’s birthday from 4.15 pm to 7.00 pm should the birthday fall on a school day, and, from 10 am until 4 pm should the Father’s birthday fall on the weekend;
(f)on each child’s birthday from 4.15 pm to 7.00 pm.
(g)such further or other time as may be agreed in writing between the parties from time to time.
(5)In the event that the children’s time with the Father pursuant to paragraph 4 (a) and (b) occurs on the following occasions, such time be suspended:
(a)on the Mother’s birthday;
(b)on either child’s birthday AND THE COURT NOTES that the children’s time with the Father on their birthday’s shall occur pursuant to order 4(f) herein;
(c)Mother’s Day.
(6)That the father’s time pursuant to order 4 hereof shall be supervised by a private supervisor to be paid for by the Father, and in the event the private supervisor is not available, by a third party as agreed between the parties in writing.
(7)That the children have telephone and/or Facetime communication with the Father each alternate Sunday, with the call to be initiated by the Father, and the call to commence between 6 pm and 6.30 pm or such other time as may be agreed in writing between the parties.
(8)That in order to facilitate the father’s communication with the children pursuant to order 7 hereof, the Mother shall:
(a)ensure that the children are available to receive the telephone call;
(b)ensure the children have privacy during the conversation.
(9)That within 7 days the Mother and the Father each provide the other with a contact telephone number and email address and keep the other updated of any change to those details, within 7 days of any change occurring.
(10)That the Mother facilitate telephone calls to the Father upon the request of the children or either of them.
(11)That the Father be at liberty to send cards, and postcards by post to the children.
(12)That the parents communicate by way of email only in relation to the health or wellbeing of the children, or any issues pertaining to changeover.
(13)That in the event that the Father is unable to spend time with the children in accordance with these orders, he provide the Mother with no less than 48 hours’ notice in writing of his inability to so attend.
(14)That the Mother do all such acts and things and sign all such documents to request and authorise any school at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations, parent-teacher interviews and other information relating to the children’s education to the Father at his expense, if any.
(15)That the Mother inform the Father of any change to the children’s schools within 7 days of any change occurring.
(16)That each party, as soon as reasonably practicable, inform the other of any serious illness, injury or accident suffered by the children whilst in their care and forthwith upon receipt provide the other with particulars of any treatment providers and copies of any medical certificates or reports.
(17)That the Mother notify the Father of any health issues concerning the children or either of them that requires specialist attention or treatment and authorise all health professionals attended by the children to provide such information as may be requested by the Father with respect to that treatment.
(18)That the Mother and the Father be and are hereby restrained by injunction from ingesting, consuming, using or otherwise being under the influence of any legal or illegal drug or substance save and except for:
(a)any medication prescribed to them by a registered medical practitioner and taken or used by them strictly in accordance with such prescription; and
(b)any over the counter medication or pharmaceutical substance ordinarily sold in supermarkets (which does not contain codeine) and taken or used by them strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
(19)That the Father be and is hereby restrained by injunction from:-
(a)consuming alcohol for a 24-hour period prior to spending time with the children and during his time with the children pursuant to order 4 hereof;
(b)driving a motor vehicle with the children
(c)attending the mother’s residence for the purposes of changeovers.
(20)In the event the Mother proposes to travel interstate or overseas with the children:
(a)the Mother provide the Father with 30 days written notice, other than in the case of an emergency, of any intended travel outside of the Commonwealth of Australia, with such notice to include a copy of the children’s return tickets, travelling itinerary, and contact details for the duration of such travel;
(b)the Mother provide the Father with 14 days written notice, other than in the case of an emergency, of any intended interstate travel within the Commonwealth of Australia, with such notice to include contact details for the duration of such travel;
(c)in the event that such travel occurs during the father’s time the Mother shall provide the Father with make-up time, as agreed in writing between the parties.
(21)The Mother and Father do all acts and things and sign all necessary documents to enable the issue and maintenance of the children’s passports to be held by the Mother.
(22)That the Mother and the Father, their servants and agents be and are hereby restrained from abusing, insulting, or otherwise denigrating the other party or members of the other party’s family or friends in the presence or hearing of the children.
(23)That the Mother and the Father be and are hereby restrained from:
(a)Discussing with the children or with any other person in the children’s presence, details of these proceedings;
(b)Denigrating the other to the children or speaking with the children, or to any other person in the children’s presence, in derogatory terms about the other party or members of the other party’s household.
(24)That within 14 days the Father provide to the Mother or her legal representative a list of his current treating medical practitioners, drug and alcohol abuse programmes and rehabilitation courses attended by him and notify the Mother within 7 days in the event of any change to his treating medical practitioners.
(25)That the Father comply with all reasonable recommendations made by his treating medical practitioners, including his general practitioner, psychiatrist and psychologist with respect to treatment for his mental health and substance abuse issues as identified in the reports of Dr B, Dr C and Ms D.
(26)That the appointment of the ICL be discharged at the expiration of 30 days following the making of these orders.
(27)That all extant applications be otherwise dismissed.

I certify that the preceding three hundred and eighty-six (386) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 26 May 2021

Associate:

Date: 26 May 2021

[2020] FamCA 343

26 May 2021

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness