McDonald & Higgins

[2007] FamCA 1415

FAMILY COURT OF AUSTRALIA

MCDONALD & HIGGINS [2007] FamCA 1415

FAMILY LAW – CHILDREN – Parenting orders re four children aged 11 and triplets aged 8 – Central issue history of alcohol abuse by father – Orders directed to having the father address it through counselling with someone appropriately qualified and to comply with counsellor’s reasonable recommendations – Order for supervision for 12 months pursuant to s 65L with the supervisor given designated tasks related to compliance with the orders – To receive confirmation of alcohol counselling and bi-monthly reports from the counsellor with capacity to report on the supervisor’s own initiative – Overnight and holiday time with their father to be in the presence of one of the paternal grandparents for 12 months followed by a longer term orders without supervision provided no adverse report from supervisor or alcohol counsellor

Family Law Act 1975 (Cth)

APPLICANT: Mr McDonald

RESPONDENT: Ms Higgins

FILE NUMBER: SYF 2677 of 2006

DATE DELIVERED: 5 December 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 12 December 2006, 8 March, 20 July, 2, 7, 12, 13, 14 & 15 November 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Peters Lawyers

Orders made 15 November 2007

1.        All orders relating to the children:

K born … February 1997;

P born … October 1999;

T born … October 1999; and

R born … October 1999

are discharged.

2.The parents are to have equal shared parental responsibility for the children.

3.        The children are to live with their mother.

4.Pursuant to s 65L of the Family Law Act 1975 the Manager Child Dispute Services of the Sydney Registry is to nominate a Family Consultant to supervise compliance with these orders for a period of 12 months from the date of these orders and the supervisor is -

(i)to give either or both parents such assistance as is reasonably requested in relation to compliance with and carrying out these orders;

(ii)to receive confirmation from the father’s counsellor referred to in order 5 hereof of the initial counselling appointment and provide a copy of it to the mother;

(iii)to receive a bi-monthly report from the father’s counsellor referred to in order 5 hereof and provide a copy of it to the mother;

(iv)to receive a copy of the certificate of completion by the mother of the course referred to in order 7 hereof and provide a copy of it to the father;

(v)able to provide to the court on the supervisor’s own initiative a report pursuant to s 62G about relevant matters if the supervisor considers it warranted;

(vi)if so directed by the court at any time during the period of supervision to provide a report of matters arising during the supervised period including but not limited to compliance with orders 5, 6 and 7 hereof.

5.        The father is to:

(i)make an appointment forthwith for counselling with a qualified drug and alcohol counsellor located in reasonable proximity to his residence in the NSW South Coast area;

(ii)      attend all appointments recommended by the counsellor;

(iii)comply with any reasonable recommendations by the counsellor including recommendation to participate in any ancillary programs and/or attendance upon a general medical practitioner for examination for alcohol related health issues;

(iv)provide to the counsellor an irrevocable authority to enable the counsellor to communicate with and provide to the supervising Family Consultant confirmation of the initial counselling appointment and a bi-monthly report of his attendance and compliance with any reasonable recommendations made by the counsellor. 

6.        It is noted:

THE FATHER UNDERTAKES not to consume alcohol within 12 hours of the children coming into his care and not to consume alcohol at any time the children are in his care. 

7.The mother is to take steps forthwith to enrol in and complete a parenting after separation course conducted by a recognised service provider and give to the supervisor a copy of the certificate of completion or other document evidencing enrolment and completion. 

8.Subject to compliance with order 5 and the undertaking noted in 6 hereof, the children are to spend time with their father

A.        until the commencement of the 2007/2008 Christmas school holidays:

(i)every second weekend from 9am to 6pm Saturday and Sunday to commence Saturday 17 November 2007 [and it is noted the father has agreed to take the children to their sporting commitments on those weekends];

B.       until the conclusion of the 2007/2008 Christmas school holidays:

(i)from the morning of 27 December 2007 until the afternoon of 7 January 2008; and

(ii)from the morning of 16 January 2008 until the afternoon of 23 January 2008 provided:

(a)the times referred to in (i) and (ii) hereof are to be in the presence of the children’s paternal grandfather or in the presence of the children’s paternal grandmother according to arrangements made by the father with either of his parents.

C.from the commencement of the 2008 school year until the commencement of the 2008/2009 Christmas school holiday period:

During school terms:

(i)every second weekend from 9am to 6pm Saturday and Sunday subject to order 8 C (ii) hereof;

(ii)every fourth weekend from 9am Saturday to 6pm Sunday until mid-March 2008 [the conclusion of the agreed sporting commitments for the children] and from mid-March 2008 from 4.30 pm Friday to 6pm Sunday provided the overnight weekend is spent in the presence of the children’s paternal grandfather or their paternal grandmother according to arrangements made by the father with either of his parents [and it is noted that if the parents agree the children are to participate in a particular sport on the weekends, the children will be taken to their sports by the parent in whose care they are on that weekend];

During school holidays:

(iii)for four (4) nights and five days during each of the mid-year school holiday periods on days to be agreed and failing agreement from the morning of the first day of the holidays to the afternoon fifth day provided the holiday periods are spent in the presence of the children’s paternal grandfather or their paternal grandmother according to arrangements made by the father with either of his parents.

9.From the commencement of the 2008/2009 Christmas school holidays provided that the period of supervision pursuant to s 65L has concluded without any adverse report either from the drug and alcohol counsellor or the supervising Family Consultant as to compliance by the father with attendance and/or reasonable recommendations sufficient to warrant the substitution of some other order, order 8 is discharged and thereafter the children are to spend time with their father as follows:

During the 2008/2009 Christmas school holidays:

(i)for one week, to include Christmas Day 2008, to commence on the morning of a day agreed between the parents and conclude on the afternoon of a day a week later, but failing agreement the week to commence on a day four days before Christmas Day; and

(ii)for one week during January to commence on the morning of a day in January agreed and conclude on the afternoon of a day a week later, but failing agreement to commence on the first day of the fourth week of the school holidays. 

During school holiday periods thereafter:

(iii)four (4) nights and five (5) days during the first short school holiday period in 2009, to commence on the morning of the first day and conclude on the afternoon of the fifth day on days to be agreed but failing agreement to commence on the first day of the school holidays;

(iv)one half of each mid-year school holiday period to follow on days to be agreed but failing agreement to be the first half in odd numbered years and the second half in even numbered years;

(v)during each of the Christmas school holiday periods from December 2009 thereafter the children’s time is to be spent as follows:

(a)from the conclusion of school until 27 December with their mother in 2009 and with their father the following year, to alternate each year thereafter;

(b)from 27 December to twelve (12) days before the conclusion of the school holidays with their father in 2009/10 holidays and with their mother the following year, to alternate each year thereafter;

provided that during the years they are with their father according to order 9(v)(b) hereof, he is to return the children to their mother at 5pm two (2) days before the start of school. 

During school terms from the beginning of the 2009 school year:

(vi)every second weekend from 4.30pm Friday to 6pm Sunday [and it is noted that if there is agreement about the children’s participation in sport on the weekends, the children will be taken to that sporting commitment];

(vii)if the weekends in (vi) do not fall on Father's Day then that weekend is to be additional to the weekends in (vi);

(viii)if the weekends in (vi) fall on Mother’s Day that weekend is to be foregone by the father;

(ix)the school term weekends are to commence the second weekend after the commencement of the school term when the children are with their father in the second half of the preceding school holidays and on the first weekend after the commencement of the school term when the children are with their father in the first half of the preceding school holidays.

10.When the children are in the care of their mother the children may communicate with their father by telephone at any reasonable time not later than 7.30pm and not more than three times per week, the father to initiate the telephone call to a number at which the children can be reached, whether mobile or land line, provided to him by the mother. 

11.When the children are in the care of their father the children may communicate with their mother by telephone at any reasonable time not later than 7.30pm and not more than three times per week, the mother to initiate the telephone call to a number at which the children can be reached, whether mobile or land line, provided to her by the father. 

12.The children are to participate in sport or other pre-arranged activities at the weekends, whether that falls in school terms or during school holidays, only if agreed by the parents and confirmed in writing and failing agreement they are to participate in sport or other pre-arranged activities for one season only per year and at other times are to spend time with their father according to these orders without any such weekend commitments [and it is noted it is agreed the children will continue their present participation in T Ball and baseball which will be suspended during the forthcoming school holidays and conclude in mid-March 2008]. 

13.For the purpose of the children spending time with the father as provided in these orders, the changeover of the children’s care is to occur between the parents or their agents at McDonald's in M unless otherwise agreed until the commencement of the 2009 school year and thereafter the children are to be returned by their father or his agent to their mother or her agent at the conclusion of times spent in his care at an agreed venue in L. 

14.Both parents are restrained from denigrating the other in the hearing or in the presence of the children and are to use their best endeavours to ensure no other person does.

15.Each parent is to keep the other informed about any medical treatment any of the children have received other than minor childhood ailments, including details of the treating medical practitioner and any treatment prescribed.

16.In addition to any other order, each parent is entitled to receive from the school attended by the children copies of notices or newsletters or other material distributed to parents in the normal course and each parent is entitled to attend such school or school related events as parents are invited to attend in the normal course. 

17.The father is to provide to the counsellor referred to in order 5 hereof a copy of the report of Dr D together with a copy of these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF2677 OF 2006

MR MCDONALD

Applicant

And

MS HIGGINS

Respondent

REASONS FOR JUDGMENT

Proceedings

1. On 15 November 2007 the orders set out above were made about the future arrangements for the parties’ four children: K, who is almost 11 years (dob. ….2.97) and triplets, P, T and R who are aged 8 years (dob. ….10.99) and because the hearing extended beyond the allocated time these reasons were reserved. 

Issues for decision

1. Over the 3½ days the hearing occupied there were various proposals put forward, the father’s ultimate position not coming until the close of the evidence.  In the final analysis the parents agreed about many of the orders, based on a draft I provided of what I believed would be uncontentious. That led to the identification of a narrow band of decisions based on the common ground that the children would continue living with their mother but spend time regularly with their father. 

2. The decisions required related to (i) the progression and frequency of the children’s time with their father, more particularly the timing of the introduction of overnight visits and if the frequency of those occasions over the next 12 months would be every 6^th week [mother] or every 4^th week [father] as well as the rate of increase in the length of school holiday visits before equal time is introduced; (ii) whether their paternal grandmother as well as their paternal grandfather could be accepted as a responsible adult whose presence would be required during overnight visits over the next 12 months while the father undertakes counselling about misuse of alcohol; and (iii) the responsibility for travel to support the children’s time with their father, including whether changeover of the children’s care would occur at L thereby imposing on the mother or her agent responsibility for half of the travel involved. 

Evidence

1. Each parent gave evidence on affidavit and orally. The paternal grandfather gave evidence by telephone and the paternal grandmother came up from the South Coast at short notice to give evidence on the father’s behalf.  In May this year a Family Report was prepared by a Family Consultant whose recommendations included a psychiatric assessment by a single expert and that was taken up by the appointment of Dr D, child and family psychiatrist, whose report became available shortly before the final hearing days.  Dr D did not have available the Family Report but there is considerable commonality in key assessments made by both experts. 

2. Given the relative narrow scope of what was left for decision, there is no need to record or discuss the evidence in any detail and nor would any constructive purpose be served by doing so.  It is to be hoped that the children will have the benefit of at least some degree of improved communication between their parents as a result of the process undertaken and nothing said here should put in jeopardy any commitment they made to a new approach to their joint parenting responsibilities.  The account of the background to follow and the necessary assessments the legislation requires proceed from that footing. 

Background

1. The father (41) and the mother (46) began living together in 1995.  The mother had two children from a former marriage living with her at the time - N (now almost 24) and E (now 20). Their four children, as mentioned earlier, were born in 1997 and 1999.  They separated in October 2003. 

2. Financial problems in the father’s business and four young children, including triplets, no doubt imposed stress on the relationship and plainly the period leading up to their separation was marked by recurring arguments and considerable unhappiness on both sides. That is reflected not only in the evidence they each gave about that time but also in what they told the two experts of it.  Unsurprisingly, they bring a different perspective to the telling, but the difficulties discussed appear not to have been addressed in any satisfactory way by constructive communication through the articulation of needs in a common search for lasting solutions.  In all probability neither can legitimately claim the high ground on any objective review of their time together but, having said that, what remains of central relevance from these earlier years is the issue of the father’s misuse or abuse of alcohol, the unacceptable impact that had at times on his conduct and sound judgment, and the adverse knock-on effect on the mother’s ability to trust him and have confidence in his abilities.  That enduring issue is at the heart of the structure of the orders I made on 15 November. 

3. After the separation the father remained living in the Sydney area from where he continued to conduct the business. Initially there were informal arrangements for him to see the children by going to the home and earlier plans for a family holiday were kept. But before long things deteriorated and disputes over a range of matters continued.  In due course proceedings were instituted in the Local Court about the children’s arrangements, later transferred to this court, and in the State courts about their property settlement. 

4. As for the parenting proceedings, initially interim orders were made in the Local Court and later interim orders were made after the transfer to this court.  But it will be sufficient now to note that the interim orders operative at the time of hearing provided for the children to live with their mother and spend every second Sunday from 9am to 6pm with their father, subject to an undertaking he gave not to consume alcohol within 12 hours of spending time with the children or during the period they were to be in his care.  Throughout the time the proceedings were pending there was ongoing dispute about a variety of issues aired in the affidavit evidence. As for the property proceedings, they were settled but a question at the hearing about their agreed entitlements revealed lingering grievance and contrary viewpoints about whether or not the father got anything out of it after paying debts. 

5. In any event, the mother put the money she received from the sale of the family home towards the purchase of a home in the Sutherland shire where she and the children now live, with some financial assistance from her family.  She now lives near her mother who provides her with assistance with the care of the children. 

6. With the father’s business folded, the father moved some months ago from Sydney to the NSW South Coast area.  He is living at his mother’s property for the time being and plans to re-establish himself in the area in due course.  He has found work in landscaping and he anticipates being able to continue in that direction.  Since his relocation he has travelled to Sydney to spend time with the children in accordance with the interim orders. 

Best interests

1. The child’s best interests are the paramount consideration in making any parenting orders and the Act provides primary and additional considerations relevant to that determination.  It will be necessary to have regard to those factors in so far as they apply here before discussing the decisions made. 

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. This consideration can be read in different ways but those interpretations need not be discussed here.  It will suffice to say that these children would benefit from having a meaningful relationship with both of their parents.  Both parents recognise that; their contrary positions about what orders should be made proceeds from the same footing that the children are to live with their mother and spend time with their father.  The differences between them are related to the structure and surrounding supports in which that time will be spent. 

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

1. There is no question in this case of the children being the subject of conduct fitting those descriptions.  There is a history, however, of the children being exposed to family violence while the relationship was intact and to acrimony and argument after the separation.  But I am satisfied both parents have come to appreciate the debilitating effect this can have on the well being of their children and the drawback such an upbringing can represent for them. 

Additional considerations

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

1. Despite the interviews being some months apart, the two experts reported very similar views being expressed by the children about how they see their time between their parents.  In short, they are happy to live with their mother but all want to spend more time with their father.  At almost 11 years of age K was clear in his wish to spend more time with him, including overnights and holiday time as well as talk to his father by telephone frequently.  Some years younger, the other three children each expressed similar views: P said he wants to sleepover at his father’s to have holidays with him; R was keen to have sleepovers as well as holiday time with him; and T said she would ‘love’ to have sleepovers at her father’s.  They all spoke of activities they would like to do with him, variously mentioning fishing, going to the movies, going to the park or camping. 

2. Given Dr D’s assessment that all children are developing normally for their ages, cognitively and emotionally, it is appropriate to attach some weight to what the children want – provided of course the circumstances are otherwise consistent with their best interests.  If their views are not reflected in the arrangements put in place, dissatisfaction could ferment over time and possibly lead to their mother being seen as responsible for holding them out of that situation.  That prospect is to be avoided if possible. 

   (b)the nature of the relationship of the child with…parents and….others..

3. It is clear from the assessments of both experts that the children are strongly bonded to each other.  It is also clear that they all have a positive relationship with both of their parents.  In particular, they were assessed as having a close and loving relationship with their mother and also with their father whose company they enjoy. 

4. As for other adults around them, Dr D says they appear to relate well to their two older sisters.  It is accepted there are sound relationships in place there.  Nothing much was said of their maternal extended family, in particular their grandmother and step-grandfather, but they are closely involved in their lives and it accepted there are no difficulties with relationships in that quarter. 

5. It is also accepted they have good relationships with their paternal grandfather and his wife. That stems from the regular time spent in their company by reason of the close involvement maintained between their grandfather and father over the years.  The paternal grandfather is retired and he and his wife live in the mid-west of NSW.  Relations between the mother and the paternal grandfather were quite good once but there was a long period of no contact until she re-ignited it recently. The children do not currently have a close relationship with their paternal grandmother or her husband and that appears to be a function of the limited time spent together in the past. One of two siblings, the father’s parents separated when he was young and each re-partnered.  His mother lives on acreage on the NSW South Coast with her husband who operates a local business.  His sister and her children live nearby.  There has not been much contact with his mother over the years and therefore the children have not developed a familiarity with her or her husband.  That is not to say there has been a breach in the father’s relationship with his mother or her husband; the circumstances probably developed more as the result of personality differences within the family group and no doubt distance also took its toll.  Having said that, there is nothing about the paternal grandmother’s presentation or circumstances to suggest in any way that, given the opportunity of spending time together, the children would not develop close relationships with her and other extended family around her, including the children’s aunt and cousins. 

6. Dr D commented in his report that extended family relationships should be maintained and it is accepted that would be beneficial for the children –from both sides of their family. 

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

   (i)       the attitude to the child, and to the responsibilities of parenthood

7. Some aspects of the evidence could be read as raising for consideration whether the mother has an appreciation of the importance for the children of their father’s role in their lives and she genuinely supports the children having a relationship with him or whether some of her actions have been designed to obstruct that development and create distance between the children and their father.  This was taken up by Dr D who said the mother impressed as genuinely wanting to support a relationship between the children and their father, from her perspective the concerns about alcohol and his behaviour are understandable, and on his view of it she would be more willing to support contact if she could see genuine signs of change in the father.  I take no issue with that assessment. The mother is taken to be a capable parent who has expressed genuine concerns about the children’s well being and safety while in the care of their father.  It is also recognised that the history of the rather limited association between the parents for some time now means that she must rely for her beliefs and concerns more on her experience of the father in earlier times and, on that basis, they are entirely understandable. 

8. Having said that, it is apparent that issues such as trust and change and re-assessing grievances against the father – all understandable – are still issues for the mother. There was discussion about her undertaking a parenting after separation course with a recognised service provider and the prospect that she might derive some benefit from that.  She agreed to do such a course and the orders reflect that. 

   (d)      the likely effect of any changes in the child’s circumstances….

9. The proposals put forward by both parents, though different in several respects, will represent a change for the children.  I am satisfied that the change brought about by the orders made will be of benefit to the children. 

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

10. Quite apart from issues to be discussed at another point, there are practical difficulties for the children spending time with their father by reason of his move to the NSW South Coast and the implications for the children of additional road travel. That is not to imply criticism of the father for making the move; he has taken the decision to be closer to family and re-establish himself in those circumstances.  It is more to recognise and be alert to the consequences for the children as to travel and time by reason of the added distance. The orders, in my view, strike an appropriate balance. 

    (f)the capacity of …each of the child’s parents…to provide for the needs of the child, including emotional and intellectual needs

11. Dr D assessed the mother as a capable, caring parent with good insight into the children’s needs. He commented that her personality style may have some obsessional features which may have led to a lack of tolerance of the father’s lesser attention to detail. Nonetheless all of the children appear to be developing well in her care.  I accept that assessment.  That the children can be seen as happy and relaxed and developing well is a testament to the quality of care she provides.  To the extent, therefore, that there is reference in the earlier report to some statements made by the children about the manner in which their mother dealt with them at times, that can be put to one side. 

12. Dr D assessed the father as caring a great deal about the children and he formed the view that their father has a great deal to offer them and would not intentionally harm any of them. That assessment is also accepted. His capabilities are evident from the children’s response to him; being happy to see him, relaxed in his company, and keen to spend more time with him and share activities with him.  However, there is a significant drawback in his capacity to meet the children’s needs by reason of the history of alcohol abuse and the risk that represents for the children if it is not satisfactorily addressed. 

13. That there has been a history of alcohol abuse cannot be doubted. The father sought treatment during their time together, though it was not sustained, his father observed in discussion with Dr D that he was drinking too much, and the father himself concedes he drank to excess at times.  Despite the enormous problems that have stemmed from alcohol related incidents and the part it has played in continuing problems in his relationship with the mother, he has not abstained from alcohol.  His attitude is that he can control it.  Certainly there are aspects of his life that seem to support that view - for example, he has continued to work and operate a business - but the validity of that outlook will be for a counsellor experienced in the field to assess.  The father says Dr D misunderstood or incorrectly recorded what he told him of his consumption of alcohol.  Nonetheless, I prefer to rely on Dr D’s opinion which is to this effect: there are degrees of alcohol problems and he did not assess the father as qualifying for an alcohol dependent syndrome which relies on physical tolerance with serious withdrawal symptoms as manifested by DT's and withdrawal tremors and other psychological markers, but he is of the opinion there is a strong psychological dependence on alcohol which is very salient in the father’s life and he believes there is a much more complex interrelationship there.  He summarised his view by saying he regards the father as being in the 'problem drinker' or 'alcohol abuse disorder' category.  I shall return to this shortly.

14. Any review of the evidence would reveal a number of issues that might fall for discussion under the capacity to meet the children’s needs factor, but they are best left to fall away.  The alcohol issue is central to the discussion and the orders were designed to ascertain what is needed to address it in a satisfactory way consistent with the children’s various needs. 

15. The only other impediment to meeting the children’s needs stems from the long standing inability of the parents to effectively and constructive communicate about matters related to their welfare.  This is evident not only from the conduct of the case before me but also from the description given by Dr D of his interview with them jointly, as set out in his report.  However, I am optimistic and regard the sentiments both parents expressed about the need for change in the children’s interests as representing a genuine commitment to make efforts to improve the manner and tone of their communications, which admittedly may take some time along with vigilance and occasional restraint.  For the children’s sake, I hope that confidence not misplaced. 

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

    (k)       any family violence order…

16. There have been episodes of violent behaviour during the time they were together – assessed in one report as having been mutual - and over time AVO’s were issued against the father. However, it is now some considerable time since there was any such episode and some time since the last order expired. 

Parental responsibility

1. The orders made provide for equal shared parental responsibility. This may seem to be contra-indicated given the history of conflict and the long standing difficulties that have inhibited communication, but in the final analysis I am satisfied it is in the children’s best interests.  That is based in part on what I believe to be the parents’ genuine recognition of the potential damage to the children from parental conflict, not just in the short term but later as they take up their independent lives as adults, and their mutual commitment to turn that around in the children’s interests.  It is also based on the assessment that each has a great deal to offer the children, in their own separate ways as individuals and as parents, and neither should be in fact or in effect sidelined when major long term issues effecting the children have to be decided. 

2. That leads to the obligation imposed by the Act to consider if it would be in the children’s best interests and reasonably practicable to spend equal time with each parent and, if an order for equal time is not made, to consider if it would be in the children’s best interests and reasonably practicable to spend substantial and significant time, as defined, with each parent.  In this case both options have to be rejected; first, because the children’s father is not seeking those outcomes and, secondly, because the several hours travel between the parents’ residences makes them impracticable. 

Conclusions

Risk and alcohol

1. Dr D made a number of recommendations at the end of his report, elaborated in his oral evidence, and that formed the basis of discussion about what would be the appropriate outcome to address the risks for the children arising from possible alcohol abuse. A key recommendation was for the children to continue living with their mother, assessing her as capable and the children doing well in her care; the father never put that outcome in contest.  He also recommended the children continue to have contact with their father, initially fortnightly in Sydney and increasing over time. He commented that while the father continues

   ‘…to be a problem drinker, he have some more extended time with the children perhaps at the paternal grandfather's residence in […] which could occur as the paternal grandfather suggested, perhaps every six weeks. School holidays could also be spent at the paternal grandfather's residence and the issue of potential alcohol abuse then becomes minimized.  Therefore the contact between the father and the children would be significantly increased where every six weeks or if the paternal grandfather were able, every month, there could be a whole weekend where the children spend time with the father and the extended family and every other fortnight the time could be spent on a Sunday with the father.’

2. Dr D went on to discuss the means by which the father should address his problem drinking issue and concentrate on re-establishing his life. He recommended the father seek alcohol counselling as well as supportive counselling in order ‘to help him adjust to the changes and disappointments in his life as well as work on establishing a supportive relationship between himself and the children’.  He suggested that if the father is unable to address the alcohol problem then contact continue to be restricted to one day each fortnight intermixed with longer periods of time involving the paternal grandfather.  Commenting on the desirability of support for the children from grandparents, he indicated awareness of the mother having some confidence in the paternal grandfather but he was unaware of the paternal grandmother’s situation [he did not interview her]. 

3. The father took up the recommendation of assistance with alcohol misuse and he agreed to do what was necessary.  What is necessary, however, could not be determined by Dr D who said it requires proper assessment, including assessment for any physical damage from alcohol abuse, by a suitably qualified person within that field of expertise.  In the course of discussion, Dr D provided valuable assistance in identifying the path the father should take and where that expertise and experience is likely to be found. 

4. The whole history demonstrates that the issue needs to be addressed because that history shows the debilitating impact excessive alcohol can have on the father’s conduct and judgment.  To this end I drafted orders which are designed to put in place a protective structure for the children so they can spend time with their father in a safe and comfortable environment:

   ·The first is the order for supervision for a period of 12 months pursuant to s 65L of the Act, which will provide the means by which assistance can be obtained from a Court Family Consultant should difficulties arise with the implementation of the orders. In drafting the supervision order, however, I specifically allocated to the supervisor roles and responsibilities related to the alcohol counselling that the father will undertake; in particular, to act as a conduit for relaying compliance with the orders by the father to take up alcohol counselling and the mother to complete a parenting after separation course by receiving confirmation of the initial counselling appointment for the father and of the certificate of completion by the mother and also to receive a bi-monthly report from the alcohol counsellor and to give copies of these documents to the other parent. The orders also provide for the supervisor to provide a report on the supervisor’s own initiative pursuant to s 62G if that is considered warranted and to report to the court as directed.

   ·This runs in tandem with the father’s obligation to seek counselling with a qualified drug and alcohol counsellor in the general area where he lives and to maintain all appointments and adhere to reasonable recommendations by the counsellor including participation in any ancillary programs and examination by a general medical practitioner.  The orders also direct him to authorise the counsellor to communicate with the supervisor and provide reports of his attendance and compliance.  This assures the issue is being adequately addressed as ordered, not only in the father’s interests but more particularly in the interests of the children as well as addressing their mother’s concerns about their well being when in his care. 

   ·Accompanying this is the continuation of the undertaking about abstinence from alcohol given by the father during interim proceedings, which I am satisfied he has adhered to. 

   ·During the period of supervision by the Family Consultant the orders also provide for the presence of the children’s paternal grandfather or grandmother [I shall come to that decision next] during overnight visits including holiday time. 

   ·On those bases, the arrangements about the children’s time with their father were structured, including a move to unsupervised overnight and holiday time at the end of the supervision period provided there has been no adverse report in that time either from the drug and alcohol counsellor or the supervisor. 

Responsible adult

1. The father accepted the proposal whereby his overnight and holiday time with the children over the next year while he undertakes the alcohol related counselling be in the presence of a responsible adult.  There was common ground that his father would be suited to that role, but he wished to include his mother (the paternal grandmother) and the mother did not agree to that. One concern she expressed was that when the paternal grandmother was cross-examined she would not say she would report to the mother if he had a drink contrary to the abstinence undertaking.  This is accurate as far as it goes; in truth, it was more that she struggled with the question and its entirely hypothetical [to her] basis and it was apparent she had a firm belief that if her son gave a promise not to drink then he would honour that promise.  Another area discussed was the minimal contact the paternal grandmother has had with the children and the absence of any real relationship between her and them.  Against this, there was some speculation about personality differences being at the bottom of the issue, but whether or not there is any substance to that could not be the subject of a finding here. 

1. What I can say is that the paternal grandmother presents as a responsible person, focussed on family, committed to the care of her other grandchildren and actively involved in their day to day arrangements, with no indicators at all of any factors in her life inhibiting her being seen as suited to such a role, with the capacity to communicate and co-operate with her former husband should interchange about their respective roles be necessary, and likely to be experienced by the children as a welcoming presence were the children to be in or around her home. 

2. Having weighed and considered the issue and taken the mother’s viewpoint into account, these assessments persuaded me that the paternal grandmother could be included to take on that role and I am entirely satisfied she would not countenance the children being put at any risk of harm from alcohol or otherwise. 

3. Having regard to the orders I proposed making for supervision and the role of the supervisor, the alcohol counselling and compliance with recommendations to be undertaken by the father, as well as the provision for either of his parents to be present when he has the children overnight or for longer holiday periods, I was satisfied those arrangements would provide for the children the necessary protection from potential harm stemming from the father’s history of misuse of alcohol. 

Time

1. Those supports in place, the question of the children’s time with their father became more a question of what is best for the children and practicable, given the distance between their residence and their father’s.  It was necessary to find the balance between several considerations: supporting their clear desire to spend more time with him and have the opportunity to do the sort of activities they were keen to share with him; the distance involved and the travel that would entail; and the requirement of a grandparent to be present over the next year as matters progress, it is anticipated, to a settled and satisfactory arrangement for the longer term.  It was my assessment that balance could be found by taking first the short term future in stages related to the children’s upcoming school holidays which will include their grandfather’s birthday and then looking to their school terms and school holidays for the next year and then beyond.  From the start of the 2008 school year there will be a mix of weekends when they will spend both days but not overnight with their father - and therefore not necessarily in the presence of a grandparent - and every 4^th weekend and school holiday time in the presence of a grandparent.  This will be a matter of arrangement between the father and his parents. 

2. Added to the mix, there was discussion about the children’s sporting commitments at weekends and orders were made directed to that. The paternal grandfather’s evidence of the arrangement he and his former wife had years ago about sport for the children at weekends provided what I regarded as the sensible solution to the tug in one direction from weekend sporting commitments and in the other from their need to spend time with their other parent.  In short, if there is agreement they will do sport at the weekend and they will be taken to it by the parent who is caring for them at the time and if it is not agreed they are to participate in sport for one season only per year rather than all year round. 

Changeover/travel

1. Historically and at present the father is doing all of the travelling necessary for the children to spend time with him.  Now he has moved to the NSW South Coast area the travel will be greater.  He sought orders for a sharing of the necessary travel.  Contrary to his application, the orders provide for changeover to occur at M which is near the mother’s residence until the commencement of the 2009 school year when there will be a change.  From that time the children will be returned at the conclusion of times spent in his care at an agreed venue in L which is said to be around half way between M and the NSW South Coast.  It has the effect of imposing on him the obligation to do most of the travelling involved – all of it to collect and half of it to return - but introduces participation by the mother to some extent in those arrangements.  Opinions may differ about it, but I considered it would be beneficial at some point when things settle down more for the children to see their mother participating in and supporting the arrangements for them to spend time with their father, even if her share of the travel is done by someone associated with her rather than by her directly. 

2. Overall I am satisfied the orders made 15 November are in the best interests of all four children. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate

Date:  5 December 2007