Meekin & Cline

[2017] FamCA 264

FAMILY COURT OF AUSTRALIA

Meekin & Cline [2017] FamCA 264

FAMILY LAW – CHILDREN – Interim –Where the wife alleges that she was subject to family violence and that the presumption under s 61DA of the Family Law Act 1975 (Cth) does not apply – Where an order is made pending further order for the wife to have sole parental responsibility for the children on the condition that she consult the husband prior to making a decision – Where the wife seeks orders for the children to spend supervised time with the husband due to issues with his mental health, drug and alcohol use and capacity to care for the children – Where the husband previously expressed suicidal ideation – Where an order is made for the husband to spend supervised time with the children until he provides a written report from a psychiatrist advising that he does not pose a risk to the children if left unsupervised in his care or until further order of the court if the wife relists the matter having received the report from the husband’s psychiatrist – Where a condition is imposed for the husband not to consume alcohol eight hours prior to him having the children in his care – Where an order is made for electronic communication – Where the wife’s application to take the children out of Australia on two specific occasions is dismissed.

Family Law Act 1975 (Cth)

APPLICANT:	Mr Meekin
RESPONDENT:	Ms Cline

FILE NUMBER:	SYC	1623	of	2017
DATE DELIVERED:	28 April 2017
PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney
JUDGMENT OF:	Watts J
HEARING DATE:	19 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Connor
SOLICITOR FOR THE APPLICANT:	Martin Street Lawyers
SOLICiTOR FOR THE RESPONDENT:	Reid Family Lawyers

Orders pending further order

1.         The children B and C, twins born … 2014 (collectively “the children”) live

with the wife.

2.         The wife have sole parental responsibility for the children in relation to all

major long term issues on the conditions that:

2.1.	the wife will contact the husband in writing and provide her views about any such issue;
2.2.	the wife shall consult with the husband with regard to any such issue;
2.3.	the wife and husband will make a genuine effort to come to a joint decision about any such issue; and
2.4.	if no agreement is reached between the parties, then within 14 days the wife shall make the final decision and advise the husband in writing of the decision about any such issue.

3.         The children spend time with the husband:

3.1.	each Monday and each Wednesday between 3pm and 6.30pm, with the husband to feed and bathe the children prior to their return to the care of the wife; and
3.2.	for a period of two months each Saturday between 1pm and 6.30pm, with the husband to feed and bathe the children prior to their return to the care of the wife;
3.3.	for a further period of two months each Saturday between 11am and 6.30pm, with the husband to feed and bathe the children prior to their return to the care of the wife;
3.4.	thereafter each Saturday between 9am and 6.30pm, with the husband to feed and bathe the children prior to their return to the care of the wife

4.       In order to facilitate order 3 the husband shall be responsible for collection of the children from the wife’s home at the commencement of the time and return of the children to the wife’s home at the conclusion of the time and for this purpose the husband shall wait outside but not enter the wife’s residential premises.

5.       The time referred to in order 3 shall be supervised until the husband complies with the conditions of order 6 and such time to be supervised by one of the following persons:

5.1.	the maternal grandfather, Mr Cline;
5.2.	Ms D and/or Mr E;
5.3.	Ms F and/or Mr F;
5.4.	Mr G;
5.5.	Mr H and/or Ms H;
5.6.	Mr I

6.       The children’s time with their husband pursuant to order 3 shall be supervised in accordance with order 5 until 14 days after the husband provides to the wife a written report from a psychiatrist to the following effect:

6.1.	the psychiatrist has been provided with and has read these Reasons for Judgment;
6.2.	the psychiatrist is of the opinion that, having regard to the husband’s current mental status, the husband does not pose a physical or psychological risk to the children if the children are left unsupervised in their husband’s care;
6.3.	details and purpose of any therapy, treatment or medication recommended by the psychiatrist;

or in the event the wife seeks a relisting of the matter pursuant to order 8, until
the further order of the court.

7.         The husband is to comply with any reasonable recommendation made by the

psychiatrist in relation to therapy, treatment or medication.

8.       The wife, within 14 days of receiving the report referred to in order 6 has liberty to relist the matter for consideration as to whether the order ending supervision should remain.

9.         The husband is not to use alcohol for eight hours before he has the children nor

during the period of time when he has the children.

10.     The children’s time with the husband may be suspended for periods of up to seven days once in every three months, to enable the wife and the children to take holidays together, and for this purpose the wife shall give the husband no less than 14 days written notice of the proposed suspension.

11.       The children shall communicate with the husband by Skype each Tuesday and

Thursday evening at 6pm, and for this purpose:

11.1.	the husband shall initiate the call to the wife’s mobile telephone; and
11.2.	the Skype call shall not exceed 15 minutes duration; and
11.3.	in the event that the husband is unable to Skype the children on any particular occasion, he shall provide the wife with no less than 60 minutes notice of his inability to communicate with the children, by way of SMS message to her mobile telephone.

12.       The wife’s application that she be permitted to remove the children from

Australia be dismissed.

13. Pursuant to s 11F of the Family Law Act 1975 (Cth), both parties shall as soon as possible attend the Child Responsive Program with a family consultant appointed by the court.

14.     Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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
Meekin & Cline has been approved by the Chief Justice pursuant to s 121(9)(g) of the

Family Law Act 1975 (Cth).

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

Family Law Rules 2004 (Cth).Family Court of Australia at Sydney

FILE NUMBER: SYC 1623 of 2017

Mr Meekin

Applicant
And

Ms Cline

Respondent

REASONS FOR JUDGMENT

1.       The parties have twin girls, B and C (collectively “the children”) born in Australia in 2014, aged almost three years old. At the time the girls were born the wife was working in a responsible position for a Middle Eastern company. The wife returned to live in the Middle East in April 2015 to continue her employment with this company, having previously resided there from January 2009 to July 2011. The parties employed a nanny in the Middle East in June 2015 from when the children were about one year old. From September 2014 until September 2016, the husband lived and worked in Australia. That is, from when the children were about 10 months old until they were about two years and three months old the husband did not ordinarily live with the children. Over that period of almost18 months, he commuted to the Middle East around about 15 occasions for various periods of time.

2.       The parties and the children returned to Australia on 18 December 2016. The parties separated immediately upon their return to Australia.

3.       The wife alleges that the husband has problems with his mental health and difficulties arising from the use of drugs and alcohol. The husband concedes that in September 2016 he was “suicidally depressed”. Otherwise the husband denies those allegations.

4.       The wife also alleges the husband was abusive, intimidating and has perpetrated family violence, particularly in the form of derogatory taunts and denigration of the wife and her new boyfriend.

5.       From mid-2016 the wife had an extra-marital relationship with her current boyfriend. The husband found out about this affair on 15 December 2016 and did not take the news well.

APPLICATIONS

6.       The parties have agreed that the children should communicate with their father by Skype on Tuesday and Thursday evenings at 6pm and that the orders should be in the terms of order 8 as sought by the wife in her amended minute of order (Exhibit 2; schedule 1).

7.       The husband otherwise seeks the following interim orders:

7.1.  the children spend time with him as follows:

7.1.1.	each Monday, Wednesday and Friday in alternate weeks between the hours of 3pm and 6.30pm;
7.1.2.	each Sunday in alternate weeks between the hours of 9am and 6.30pm.

In the alternate week:

7.1.3. each Tuesday and Thursday in alternate weeks between the hours

of 3pm and 6.30pm;

7.1.4. each Saturday in alternate weeks between the hours of 9am and

6.30pm.

8.       The husband agreed on those times to suit the wife’s convenience. This is a total of 37 hours each fortnight.

9.       The husband otherwise opposed all the orders sought by the wife.

10.     The wife’s sought orders are set out in Schedule 1.

11.     In summary the wife sought:

11.1.	the children live with her;
11.2.	the wife have sole parental responsibility;
11.3.	the children spend supervised time with nominated supervisors with their father each Wednesday between 3pm and 6.30pm and each Saturday between 1pm and 6.30pm (a total of 13 hours each fortnight);
11.4.	provision for the nomination of who was to be supervisor from time to time and for handover arrangements;
11.5.	the husband’s time with the children be conditional upon him attending a therapist for treatment (and the husband authorise the therapist to provide the wife with information in respect of the treatment);
11.6.	urinalysis and CDT testing of the husband;
11.7.	suspension of the husband’s time for periods up to seven days once every three months to enable the wife and the children to take a holiday together;
11.8.	Skype communication (as indicated, this is by consent);
11.9.	authorising the wife to be able to take the children out of the jurisdiction for two specific holidays in July/August and November 2017;

11.10. provision in respect to the release of passports;
11.11. an order the parties attend a child dispute conference.

12.     Both parties sought orders granting leave to issue subpoenas in respect of the final proceedings but I indicated that any such application could be made to a registrar at an appropriate time.

13.     In the event that supervision was not ordered, the parties agreed for changeover to occur at the front gate of the wife’s property with the wife or another designated person such as the wife’s father to deliver the children to the husband in his motor vehicle.

BACKGROUND

14.     The husband was born in 1978 and is currently 38 years old.

15.     The wife was born in 1979 and is currently 38 years old.

16.     The parties commenced cohabitation in 2005.

17.     In January 2009 the parties commenced living in the Middle East.

18.     In 2009 the wife commenced employment with a Middle Eastern company.

19.     In 2010 the parties married.

20.     The parties’ two children were born in Australia in 2014 and are currently two years of age.

21.     In April 2015 the wife returned to the Middle East with the children for her employment.

22.     The parties engaged Ms J, an experienced nanny, who commenced working for the parties in June 2015 when the twins were one year old and continued to work as a live-in nanny six days a week until 17 December 2016.

23.     In September 2014 the husband commenced employment as a public servant in Sydney Suburb K, NSW. He worked there until 2 September 2016. As mentioned, this meant that the husband was not an ordinary member of the children’s household from when they were one year old until they were two years old three months but in this period of almost18 months the husband made about 15 trips to the Middle East for periods ranging from three days to four to five weeks (the husband giving two versions of the maximum time on any one trip).

24.     In mid-2016, while living in the Middle East, the wife commenced an extra- marital relationship with Mr L.

25.    On 2 September 2016 the husband resigned his employment in Sydney and travelled to the Middle East to live permanently with the wife and children.

26.     The husband commenced a new full time job in the Middle East on 4 September 2016.

27.     On 10 September 2016, eight days after the husband had arrived in the Middle East, the wife told the husband that she intended to go back to Sydney with the children for a period of 10 days to attend her father’s 70th birthday and her friend’s divorce party. The wife left with the children that day. I infer the wife at this time may not have been emotionally responsive to the husband. The husband was not aware of the wife’s relationship with Mr L.

28.     At that time the husband concedes that he had difficulties with his emotional state. Over a period of three days between 10 September 2016 and 12 September 2016 he ate little and slept little and by the second day he was depressed.

29.     The husband, over the next period of 10 days from 10 September 2016, had multiple communications with the wife whilst she was in Australia. During those communications he indicated to her how depressed he was. He expressed the view to the wife that she was being cold and thoughtless and seemingly careless as to his emotional state.

30.     On 12 September 2016 the parties communicated using WhatsApp messaging during which the husband, having referred to the 18 months that the parties had been significantly apart, writes:

…But instead of elation and happiness at the end of that sad and lonely road, and feeling the joy of reunification and the chance to redeem and work on our suffering marriage, I have felt the deepest sadness and loneliness in a dead empty house with no family AGAIN. No family AGAIN. No family AGAIN. [The wife], [C] and [B] are MY family who I missed so much !!!! These last 3 days have been far worse than anything I could ever had imagined. You don’t want to know the things I have been considering doing. I will be mentally scarred by this memory and that someone I love was so flippantly able to do it to me (without even considering the big picture and how lonely I would be). My heart is not made of stone. If I sound like I’m being over dramatic I promise you these words do not even do half justice to how I have felt … I don’t know whether to walk in Wednesday and resign from work and go disappear and die somewhere. That is honestly how I felt … It really has been the worst 3 days of my life without question, I have been in such a dark place and at one stage didn’t think I’d come out….

(Emphasis added)

31.     The husband says that on 16 September 2016 he spoke to a counsellor in an effort to gain some clarity on the grief and sorrow he was feeling. On the evidence I have, even at an interim stage, the husband in the period from 10 September 2016 to 12 September 2016 experienced suicidal ideation or to use his expression, he was “suicidally depressed”. It is not clear on his evidence as to whether or not he was explicit about that with the counsellor he saw on 16 September 2016.

32.    On 15 October 2016 the parties discussed the message that the husband had written on 12 September 2016 and in particular “the very dark place” the husband had been in between 10 September 2016 and 12 September 2016. The wife says, and the husband does not deny, that he told her in that conversation on 15 October 2016, “I got that rope and three times I went to hang myself from the balustrade”.

33.     From 23 to 26 October 2016 the wife travelled overseas for a holiday, leaving the children in the care of the nanny and the husband.

34.     On 22 November 2016 the wife resigned from her employment in the Middle East.

35.     On 15 December 2016 the husband underwent a right knee arthroscopy under general anaesthetic at 8am. The wife picked the husband up from the hospital. After arriving home the wife fed and bathed both children and then at 7.30pm the wife asserts she went to a going away dinner for a work colleague. The wife left the children with the nanny and the husband at home. After the wife left the home, the husband went to the wife’s laptop computer. The wife had given him her password in March 2016 so he could use her computer for an agreed purpose. The husband searched the wife’s emails and found a number of communications between the wife and Mr L. The husband correctly concluded that the wife was having an ongoing extra-marital relationship of a sexual nature with Mr L. The husband rang the wife at about 7.45pm. The parties give different versions as to their conversations when the wife arrived home. The husband, somewhat incongruously, denies the wife’s assertion that he was extremely angry. The husband does concede that during the conversation however he told the wife that she was a “fucking disgusting person and a terrible mother”. It is difficult to imagine how the husband said those words without some anger in his voice. On this evening the husband had a conversation with Mr L in which he expressed the view to Mr L that he thought he was an “immature, foolish, immoral maggot of a man”, a “low, cowardly, snake of a man” and a “filthy predator”. It is difficult to see how the husband’s denial of being extremely angry on this evening can be sustained.

36.     At [34] of her affidavit, the wife says:

At about midnight, [the husband] went and got the blue rope. He told me that it was the same rope with which he had intended to hang himself in September 2016. It was tied as a hangman’s noose. He placed the noose around his neck and said “Look what you’ve made me do, you’re making me crazy”. He was tugging on the end of the noose.

The husband blankedly denies that there is any truth whatsoever in this evidence.

37.     Ms J, the nanny, was present in the home on 15 December 2016. She heard the parties having “a big fight”. She recalls on that evening that the wife ran into her bedroom and cried out to her, “[J] [I infer the name by which the wife called Ms J] help me”. She said the wife was crying and said to her, “[the husband] has tied a rope around his neck. He is pulling it. He wants to kill himself”. She said that she went out to where the husband was sitting and he said to her “No [J]. I didn’t do it. I only did it to frighten her”. Whilst Ms J’s evidence is on its face corroborative of the wife’s version, which is denied by the husband, in the context of this interim hearing, Ms J’s evidence is untested. I do however need to acknowledge the seriousness of this evidence, particularly in light of the husband’s suicidal ideation in September 2016.

38.     The husband also denies that he made threats directly to Mr L and indirectly to the wife about hurting Mr L and specifically chopping off Mr L’s hands and killing him.

39.     The husband does agree however that at around 4am on 16 December 2016, having not slept since he had discovered the emails on the wife’s laptop, he went into the bathroom and wrote on the mirror in lipstick, “… [the wife’s initials] + … [Mr L’s initials] ADULTERER” and drew a dagger sticking into a broken heart dripping blood. The wife took a photograph of the mirror on her mobile phone and a copy of that photocopy is contained in annexure B to her affidavit. The husband says, with hindsight, he should not have drawn that comment and image as he did.

40.     Ms J says she also saw what the husband had drawn on the bathroom mirror in lipstick. Her evidence is that she was frightened and shaking when she saw that drawing because she took it to mean that the husband was going to kill the wife.

41.     On 17 December 2016 the parties travelled from the Middle East to Australia on the same flight. The husband places into evidence a photograph showing the family and others shortly prior to departure (Exhibit 4). All are smiling with one of the twins on each of the shoulders of the parties and the parties in close proximity to one another.

42.     The parties separated upon their arrival in Australia. The wife went with the children and initially resided at her parent’s home and then acquired a leased property at Suburb M on 25 January 2017.

43.     On 21 December 2016 the husband spent two hours with a psychologist, Ms N. There is no report from Ms N tendered by the husband in these proceedings nor are her notes available. On 21 December 2016 the husband saw a GP, Dr O, for “Mental Health Treatment” and received a prescription for Venlafaxine. The husband gives no evidence about the reason for that prescription, simply saying the dosage has now been decreased. There is no report from the GP.

44.     The children spent time with their father at the wife’s insistence in the presence of others, for short periods of time during the day on eight occasions between 19 December 2016 and 7 January 2017.

45.     On 8 January 2017 the husband agrees that having consumed red wine and a prescription drug, he attempted to make international calls to Mr L. He admits to telephoning Country P (Mr L’s family home) five times. He had a conversation with a person he initially thought was Mr L. On the husband’s own evidence he warned that person to stay away from his children for the rest of his life, to never see them again, accused him of having “disgusting morals and ethics”, he warned that he would never permit contact between the children and Mr L “while there is breath in my lungs”, he referred to Mr L as a “fucking low-level predator”. He told the person he thought was Mr L that if he came to Australia he would “get spat on in the street”, calling him a “cowardly repulsive creature” and an “opportunist predator”. On what the husband describes as a one or two minute “conversation” (it was a rant) he said the voice on the other end indicated he didn’t speak English. That voice was Mr L’s 73 year old father. The husband had yelled at and berated him. The husband denies that he said to Mr L’s father “I am going to kill you and your family. I will come to [Country P]”. In the context of this interim hearing I am unable to make a finding one way or the other as to whether or not the husband made that threat.

46.    Following this call on 8 January 2017, the wife ceased all personal communication with the husband and prevented him from spending time with the children.

47.    On 9 January 2017 the wife made a report to Suburb M Police Station. No intervention order was sought. The wife says the police advised her “not to allow the children to spend unsupervised time with [the husband] until it was worked out in the Family Law Court”.

48.     Between 7 January 2017 and 15 January 2017 the husband says he did not know where the children were. On 15 January 2017 the husband tried to access the wife’s Hotmail account to ascertain the whereabouts of the children.

49.     On 30 January 2017 the husband recommenced work in Sydney.

50.     On 24 March 2017 the husband spent about four hours with the children at a wedding.

51.     On 6 April 2017 orders were made for the children to spend time with their father from 1pm to 6.30pm on 8 April 2017 and 15 April 2017 and from 3pm to 6.30pm on 12 April 2017 on the condition that such time be supervised by one of seven people. The matter was adjourned to 19 April 2017 in order for the husband to have an opportunity to reply to evidence provided by the wife.

52.    Until the orders were made on 6 April 2017 the husband had not seen the children since 7 January 2017 except for a period of about four hours at a wedding on 24 March 2017.

The husband’s witnesses

53.     The husband has filed affidavits from Mr Q and Mr H. Mr Q gives evidence that:

53.1.	He has known the husband since 2012.
53.2.	At no time has the husband said anything to him about self-harming or suicide.
53.3.	At no time has he observed the husband to drink excessively or to take any drugs (prescription or illicit).
53.4.	He has observed the husband to be appropriate with the children and has observed the wife to leave the children alone with him.
53.5.	He has always observed the husband to be respectful towards the wife.
53.6.	At a wedding in April 2016 (at which the wife is critical of the husband’s behaviour) Mr Q says that a male was forcing his attentions on the wife and that the husband acted appropriately at all times.

54.     Mr H gives evidence that:

54.1. He has known the husband since 1990.

54.2. He observed the husband to be coherent when he picked him up from Sydney domestic airport in December 2016 and did not observe him to be affected by drugs or alcohol (the wife did not allege he was).

54.3.	He has never observed the husband to take drugs or alcohol.
54.4.	He has never observed the husband to be in a depressed state or talk about self-harm or suicide.

DISCUSSION

55. The wife submitted that the presumption under s 61DA of the Family Law Act 1975 (Cth) (“the Act”) does not apply in this case because there are reasonable grounds to believe that the husband has engaged in family violence.

56.     The wife refers to the fact that on 17 December 2016 she says (at [44]) that the husband restrained her from leaving her bedroom and that on 15 December 2016 he took her mobile phone without her permission. The husband specifically denies restraining the wife on 17 December or “grabbing her mobile phone”. He does agree however that he took her mobile phone from her bedroom without her knowing it.

57.     The wife says other behaviours by the husband caused her to be fearful. The behaviours referred to in submissions were stalking (s 4AB(2)(c)) and repeated derogatory taunts (s 4AB(2)(d)). In relation to derogatory comments, the wife relies upon evidence by her mother of the husband referring to the wife as a “slut” and “a whore” and threatening to “make her pay” and threats made on 16 and 17 December 2016 immediately after the husband discovered the wife’s affair. The wife also refers to her mother’s evidence that many times during the marriage she heard the husband refer to her daughter as a “bad mother” and when setting up for the girls’ second birthday party, called her “useless”. The wife also relies on evidence from the nanny that on 16 December she heard the husband refer to the wife as a “bad woman” and a “bad wife”.

58.     I have detailed above other reactions which the husband had after he learned of the wife’s affair on 15 and 16 December 2016 and his call to Mr L’s father on 8 January 2017.

59.     The wife refers to her evidence at [102] that on 26 March 2017 there was an interaction between the husband and one of the wife’s friends at a hotel where the wife and the friends were having lunch during which it is alleged that the husband referred to the wife as “that thing” to the wife’s friend. The husband denies that that conversation took place.

60.     The wife also gives evidence as to her view that the husband has attempted to stalk her electronically. The husband at [35] of his second affidavit admits that he tried to gain access to the wife’s Hotmail account on 15 January 2017. He says he was extremely concerned as to the welfare and whereabouts of the children as he had no idea where his children were living between 7 January and 15 January.

61.     At [79] of his second affidavit, the husband refers to material the wife produced of an SMS text message to a group of her friends and Mr R (a friend of the husband’s) following the mediation. I am asked to infer that that was the result of some electronic stalking by the husband. I do not make that inference given that it is clear from the husband’s evidence that the probable source of the information was Mr R passing it onto the husband, having received it from the wife.

62.     At [75] of the husband’s second affidavit, he says:

The wife remains in a relationship with Mr [L] who is a foreign national (… citizen) and who has been in Australia since the beginning of this year and has future plans with the wife.

63.     In her affidavit filed a week earlier, the only information the wife had given about Mr L was as follows:

I remain in a relationship with Mr [L]. We have no present plans to live with one another.

64.     The wife conceded from the bar table that Mr L had been in Australia and had been in contact with the wife in the first part of this year. The lawyer for the wife asked the court to infer that it would not have been the wife who informed the husband of Mr L’s presence in Australia. Whilst I might have inferred that I am also not prepared to infer that the husband came by this information as a result of a process of stalking.

65.     Much of what the wife seeks to rely upon to establish family violence in these interim proceedings is contested. However that which is not contested does allow me to reach a conclusion that the husband’s threatening behaviour caused the wife to be fearful. Accordingly the presumption of equal shared parental responsibility does not apply.

66.     The husband seeks no interim order for parental responsibility and the wife seeks an interim order for sole parental responsibility. On an interim basis it is important that one or other of the parents have the responsibility for making a final decision about major long term issues if they arise for either of the children. I am comfortably satisfied that the parties would not be able to reach a joint decision at the current time if they held strong and conflicting views as to what decision about a major long term interest might be in a child’s best interests. The husband has not applied for any order that the children live with him (as opposed to spending time with him). Accordingly the order that the wife seeks on an interim basis that the children live with her will be made. She then is the more logical of the two parents to be able to make a final decision after consultation with the husband in relation to any major long term issue that might arise in the interim period.

TIME

Supervision

67.    The wife submits there are three reasons why an order for supervision is required:

67.1.	the husband’s mental health
67.2.	the husband’s drug and alcohol usage
67.3.	the husband’s capacity to care for the children.

The husband’s mental health

68.     In relation to the husband’s mental health, the wife points to her evidence of the husband’s history of mood problems, depressive anxiety including suicidal ideation.

69.     The wife says that in 2004 she saw an email that the husband had written to his father whilst she had been away in which he had told his father that he was “suicidal because [the wife] had left him there on his own”. The wife alleges that when the parties lived in the UK, the husband threatened an ex-boyfriend of the wife telling him that if “you ever go near her again, I’ll kill you”. The wife says that she witnessed the husband suffering from anxiety and stress, becoming angry, throwing his phone and frequent episodes of road rage. She says whilst they were living in the Country S in 2013 the husband was depressed again and would go for periods of up to three days where he was unable to sleep. The wife asserts that the husband consulted a psychiatrist in the Middle East and was diagnosed with anxiety and depression and prescribed medication for that condition.

70.    The husband denies all of these allegations saying that he has never been diagnosed with depression and asserts “I have never attempted any self-harm nor tried to take my own life”. In the context of this interim hearing, I am unable to make any findings about any of these matters save for the finding that I have already made, that is that in the period between 10 September 2016 and 12 September 2016 the husband did suffer suicidal ideation.

71.     At [12] of her affidavit, the wife gives evidence of observations she says she has made of the husband in relation to him becoming irritable and quickly becoming angry, his inability to tolerate loud noises, more details about road rage, a meltdown that the husband had when he was unable to find his car in a car park and the husband being stressed by noise and chaos in supermarkets and becoming anxious at the noise of scanners at the cash register. The husband denies that there is truth in any of this.

72.    The wife tendered a letter written to the wife by the husband prior to the husband’s discovery of the wife’s relationship with Mr L in November 2016 (Exhibit 6). She draws attention to a statement in that letter by the husband “I often feel anxious/edgy/scattered/unsure. I try to attend to that with exercise, alcohol, sufficient sleep and more recently meditation.” The husband speaks of his constant battle to keep on top of his feelings. I note in that letter the husband also asked the wife not to ridicule him when he asks the wife to do something that relates to the safety for the children. He says, “You know I am O.C.D./mild asbergers [sic] (or something?) and getting that stuff right actually means a lot to me”. Whilst on one level, what the husband has written in that paragraph is confrontational and controlling, it does demonstrate the value the husband places upon the children being safe.

73.     The husband lost control of his emotions on 15 and 16 December 2016 and on 8 January 2017.

1. The husband’s suicidal ideation between 10 and 12 September 2016 is a matter

   of some concern. That concern is mitigated somewhat by the fact that:

   74.1. the husband sought professional assistance by way of counselling on

   16 September 2016;

74.2. after the wife became aware on 15 October 2016 of the serious nature of the dark place the husband was in on 12 September 2016, she nonetheless thought that the risks were sufficiently low for her to leave the children with the husband and the nanny during her holiday overseas. I accept the nanny was on duty during most of the time the wife was away. Nonetheless I conclude, from the nanny’s evidence that the wife would have known that there were going to be periods of time when the husband was left alone with the children during the parts of the day when the nanny wasn’t working.

75.    The husband has had a long history of taking medication (he says at a low dosage for insomnia; the wife says for depression). The husband’s emotions have been seriously impacted by the breakdown of his marriage (prior to him realising the reason for the wife’s lack of emotional engagement with him and after he found out about the wife’s relationship with Mr L). Clearly on 8 January 2017 the husband demonstrated that he was significantly struggling with the emotions of the separation and particularly the part that Mr L has played in the separation.

76.     There is however no evidence that the husband’s emotional state has ever put the children at risk. Nonetheless, the wife’s peace of mind, as the children’s primary carer, is important.

77.    I intend to continue the existing supervision until 14 days after the husband provides to the wife a written report from a psychiatrist to the following effect:

77.1. the psychiatrist has been provided with and has read these Reasons for

Judgment;

77.2. the psychiatrist is of the opinion that, having regard to the husband’s current mental status, the husband does not pose a physical or psychological risk to the children if the children are left unsupervised in their father’s care;

77.3. details and purpose of any therapy, treatment or medication recommended
by the psychiatrist;

unless the wife within 14 days of receiving the report seeks to relist the matter
for consideration as to whether the order ending supervision should remain.

78.     The husband is also to comply with any reasonable recommendation made by the psychiatrist in relation to therapy, treatment or medication.

The husband’s alcohol and drug use

79.     The wife alleges that the husband drank to excess every day.

80.     The husband denies this and says in his current employment he is subject to random drug and alcohol testing as a condition of his employment. He says between May 2015 and 2 September 2016 he was in full time employment and was also subject to random drug and alcohol screening. Exhibit 3 is a letter from the head of Health and Safety at the husband’s place of employment. It indicates that the husband works in a “high risk … environment” and is subject to random drug and alcohol testing as part of his employment. The letter goes on to give the husband an exemplary reference in relation to the husband’s professionalism and punctuality. The wife correctly comments that the letter does not give any details of whether or not the husband has been the subject of any random drug testing in his work place but it is some indication that the husband has not been adversely affected by drugs or alcohol at work.

81.    The wife subpoenaed the Department of Human Services for the husband’s Medicare history and pharmaceutical benefits history. The husband tendered those records. The wife made no submissions that those records indicated the husband was abusing prescription drugs.

82.     Counsel for the husband points out that part of the wife’s application is for the husband to drive a motor vehicle to do all the travel associated with picking the children up and dropping them off (albeit on the wife’s proposal, with supervision).

83.     The one piece of evidence that concerns me about the husband’s use of alcohol is the statement the husband made in the letter he wrote in November 2016 (Exhibit 6) set out above which mentions alcohol as one of the means by which the husband at that time was dealing with his “anxious/edgy/scattered/unsure” emotions (along with exercise, sufficient sleep and meditation).

84.     I intend to impose a condition upon the husband not to consume alcohol for eight hours prior to him having the children and whilst he has the children.

85.     I do not find that it is necessary to impose alcohol drug testing upon the husband.

The husband’s ability to care for the children

86.     The wife raises the issue as to the husband’s ability to care for the children by himself for the amount of time sought by the husband (37 hours a fortnight). The husband has not in his affidavit focussed on the history of his caregiving. The wife’s real concern is the husband not being able to control his emotional state whilst he has the children (but that has already been dealt with above). The wife points to paragraphs [23] and [24] of the maternal grandmother’s affidavit which gives the maternal grandmother’s version of some interaction she had with the children since they returned to Australia where they told her they were “scared of daddy” and where the maternal grandmother says she overheard the husband asking the children “how many daddies do you have”. The wife points to the fact that the husband has historically, because of the parties’ agreement that he would remain in Australia and earn his living here whilst the wife pursued her own career overseas, meant that the husband had a restricted involvement in the lives of the girls for almost an 18 month period. The wife also had a high pressured career. A large amount of the caregiving in that 18 months was provided by the nanny who the parties employed.

87.     The wife also raises her concerns about the husband’s capacity to treat the twins equally. It is alleged by the wife (and the nanny) that the husband shows favouritism to B over C.

88.    The husband has now had multiple interactions with the children “under supervision” without the wife providing any evidence of any difficulty with the interactions between the husband and the children on those occasions.

89.     On an interim basis I am not prepared to accept the wife’s assertion that the husband lacks a capacity to care for the children. Given their ages, and the restricted involvement of the husband during an important period of the children’s lives, both parties, sensibly, do not propose overnight time immediately.

Conclusion about time

90.    I find it is in the best interests of the children to select a regime that is somewhere between the proposals of the two parties.

91.     I intend to order that the children spend time with their father each Monday and each Wednesday from 3pm to 6.30pm and to introduce a graduated increase of time each Saturday initially five and a half hours, then after two months, seven and a half hours and then after a further two months, nine and a half hours. That time is to be supervised until the husband obtains a report from a psychiatrist which is to the wife’s satisfaction or failing that, the court will further review supervision.

Overseas Travel

92.     The wife makes an application to be able to take the children from Australia in order to attend the 50th birthday party of a former boss on 30 July 2017 which would involve her flying to Europe on 20 July, taking the children to a theme park in Europe and then onto the party and returning to Australia on 5 August 2017. The wife also wishes to go to a friend’s wedding in Africa on 11 November 2017. The plan being that she would leave Australia on 4 November and arrive back on 13 November 2017.

93.     The husband asks that these orders not be made.

94.     The wife points to the fact that the children have travelled and lived overseas for much of their lives and have visited Europe and Africa previously. The lawyer for the wife offered from the bar table $10,000 security in relation to each trip. The wife submits that travelling to Europe and Africa is travel to Hague Convention countries and that the itinerary has been provided.

95.     Earlier in these Reasons I refer to the only information the wife has given about Mr L, namely that she remains in a relationship with him and they have no present plans to live with one another.

96.     The husband submits it is premature to consider overseas travel for the children, given the lack of information about the wife’s future plans to live with Mr L. On balance I agree with the husband that an order for overseas travel should not be made at this time particularly given there does not seem to be a compelling reason as to why the children need to travel. The priority should be given to establishing a regular routine with their father. Accordingly, I will dismiss the wife’s application to allow the children to travel internationally.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 28 April 2017.

Associate:

Date: 28 April 2017
SCHEDULE 1

1)         That the children B (“B”) and C (“C”), twins born … 2014 (collectively “the

children”) live with the Applicant Wife, MS CLINE (“the Wife”).

2)         That the Wife have sole parental responsibility for decisions concerning the

children’s long term care, development and welfare.

3)         That the children spend supervised time with the Husband:

a)	Each Wednesday between 3 pm and 6.30 pm, with the Husband to feed and bathe the children prior to their return to the care of the Wife; and
b)	Each Saturday between 1 pm and 6.30 pm, with the Husband to feed and bathe the children prior to their return to the care of the Wife.

such time to be supervised by one of the following persons:

c)	the maternal grandfather Mr Cline;
d)	Ms D and / or Mr E;
f)	Ms F and / or Mr F;
g)	Mr G;
h)	Mr H and / or Ms H;

i)            Mr I

provided that each supervisor first signs an Undertaking in accordance with
annexure “A” to these orders.

4)         In order to facilitate order 3):

a)	the wife shall as soon as practicable and no later than 48 hours before each scheduled “time with” period provide to the Husband the name of the proposed supervisor(s) for each “time with period”; and
b)	the Husband shall be responsible for collection of the children from the Wife’s home at the commencement of each “time with” period and return of the children to the Wife’s home at the conclusion of each “time with” period and for this purpose:

i) the Husband shall remain within his motor vehicle at all times when, for the purpose of collection or delivery of the children, he is within 100 metres of the Wife’s home; and

ii) the supervisor shall facilitate the children’s transitions between the

Wife’s home and the Husband’s motor vehicle

5)         The children’s time with their father pursuant to order 3 is conditional upon:

a)	the Husband attending upon a psychologist/psychiatrist (“the therapist”) for regular therapy and treatment and complying with the reasonable recommendations of the therapist with regard to medication and treatment; and
b)	the Husband shall irrevocably authorise his therapist to inform the Wife, upon her request that:

i) the husband is attending as directed for treatment with the therapist; and ii) is complying with the therapeutic objectives of the therapy

6)         That upon 24 hours’ notice from the Wife’s solicitor, the Husband shall do all

acts and things necessary to undertake, at his own expense:

a) urinalysis testing to detect the use of illicit drugs and benzodiazepines;

and

b) Carbohydrate Deficient Transferrin (“CDT”) testing to detect excessive alcohol use,

and for these purposes:

c)

The Wife’s solicitor shall notify the Husband that testing is required by sending him a text message to mobile telephone number ...; and

d)

The Husband shall use his best endeavours to obtain standing referrals

for:
i) supervised, chain of custody urinalysis testing; and
ii) CDT testing,
from his general practitioner

e)

Upon receipt of notification from the Wife’s solicitor that testing is required; the Husband shall promptly attend upon a Pathology collection centre to undertake CDT and urinalysis testing;

f)

The CDT test is to be analysed using the High Performance Liquid Chromatography (“HPLC”) analysis method;

g)

The Husband shall instruct his general practitioner that the referral for CDT testing is to include a request that a copy of the results be sent to Dr T, U Pathology, V Street, Suburb WW Queensland …; and

h)

The Husband shall provide copies of the urinalysis testing results to the

Wife’s Solicitors.

7)      That the children’s time with the Husband may be suspended for periods of up to seven (7) days once in every 3 months, to enable the mother and the children to take holidays together, and for this purpose the Wife shall give the Husband no less than 14 days’ written notice of the proposed suspension.

8)         The children shall communicate with the Husband by Skype each Tuesday and

Thursday evening at 6pm, and for this purpose:

a)	The Husband shall initiate the call to the Wife’s mobile telephone and
b)	The Skype call shall not exceed 15 minutes duration; and
c)	In the event that the Husband is unable to Skype the children on any particular occasion, he shall provide the Wife with no less than 60 minutes’ notice of his inability to communicate with the children, by way of SMS message to her mobile telephone.

9) That pursuant to section 65Z(2) of the Family Law Act 1975, the Wife be permitted to remove the children from the Commonwealth of Australia to travel overseas for holidays:

a)	Between 20 July 2017 and 5 August 2017, to travel to Europe; and
b)	Between 4 and 13 November 2017 to travel to Africa,

and for this purpose, the Husband shall do all things and sign all documents to authorise and direct Ms X of Y Lawyers, to release the children’s passports to the Wife no less than 72 hours prior to the proposed departure dates of travel; and in the event that the Husband refuses or neglects to sign such authority and direction, then a copy of these Orders shall be sufficient authority for Ms X of Y Lawyers to release the passports to the Wife.

10) That pursuant to section 11F of the Family Law Act 1975, both parties shall as soon as possible attend a Child Dispute Conference with a Family Consultant appointed by the Court.

Text of the undertaking omitted