O and C

[2006] FCWA 16

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	O and C [2006] FCWA 16
CORAM	:	MARTIN J
HEARD	:	22 & 23 DECEMBER 2005
DELIVERED	:	10 FEBRUARY 2006
FILE NO/S	:	PT 6117 of 2004
BETWEEN	:	O Applicant/Father
AND
C Respondent/Mother
Catchwords:

Children - contact - alcoholic father - allegations of child abuse - family violence

Legislation:

Family Court Act 1997 - s 66, s 90 and s 166

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Children's Representative	:	Mr Pacy

(Page 2)

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Children's Representative	:	Pacy Solicitors

Case(s) referred to in judgment(s):

Nil
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1 The issue for determination is the applicant father's application for parenting orders filed 26 November 2004, to which the respondent mother filed a response on 16 December 2004.

2 At trial, the applicant sought that he have contact with the parties' two children, boys aged five and three years, defined to include:-

• each alternate weekend from 6:00 pm Friday to 6:00 pm Sunday extending to 6:00 pm Monday in the event the weekend is a long weekend;

• for six weeks each year;

• reasonable contact on the children's birthdays each year and such further contact as agreed between the parties;

• telephone contact each Monday, Wednesday and Friday between 6:00 pm and 7:00 pm;

• such further contact as is agreed between the parties.

3 The respondent sought that the children reside with her and that she be responsible for their day to day to care, welfare and development.

4 This application was not opposed by the applicant.

5 In relation to contact, the respondent sought that the father have contact in

alternate weeks, on Sundays, strictly supervised by Mother Hen or Daisy House. She hoped the Department for Community Development would continue its investigations into alleged sexual abuse by the father. She wished to have the right to take the children to Jennifer Lee, a clinical psychologist.

6 The children's representative, in addition to the residence order in favour of the

mother, sought that the parties each remain responsible for the children's long term care, welfare and development. At the commencement of trial, he proposed that the father have contact on the following basis:-

• from 10:00 am Saturday to 5:00 pm Sunday on alternate weekends, to commence on the first weekend following the provision of a clear broad- spectrum urine drug test to the children's representative by the father;

• until contact commences in those terms, the father have contact in terms of the orders made on 24 August 2005 (which provided for the father to have contact each Sunday from 9:00 am until 5:00 pm with the handover point to be at the [local] police station);

• until further order, the applicant's contact be supervised by his partner, [LI], or if she is unavailable, by his sister, [LO];

• the father provide to the children's representative a broad spectrum urine drug test at monthly intervals, the first such test to be taken on or about 1 January 2006, and the results provided to the children's representative within 24 hours;

• the father have telephone contact each Wednesday at 7:00 pm with such contact to be facilitated by the mother causing the children to telephone the father's landline number;

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• handover for contact occur at the [local] police station or other venue as may be agreed by the parties from time to time;

• each party and the children's representative have liberty to apply on short notice in the event that -

- the father fails to undertake a drug test and/or provide the results to
the children's representative;

- one of the tests shows a positive result;

• the proceedings be adjourned to a further hearing before me to be listed in approximately six months time.

7 At trial, both parties had to represent themselves, as their grant of legal aid had

not been extended to trial. In the case of the applicant father, his trial documentation was prepared by his former solicitors. The position was more difficult for the respondent mother, who was given notice that she was to be self represented less than three weeks prior to trial. She made extensive attempts to obtain further legal assistance, unsuccessfully, and prepared her own material for trial.

8 The respondent clearly found it understandably distressing to conduct her case,

particularly the cross- examination of the respondent. She had not been face to face with him since July 2004. This was of particular concern, since she is an undisputed victim of serious family violence, in a case where there were serious allegations of sexual abuse. The position was made even worse by the fact that the trial was immediately prior to Christmas.

9 Unfortunately, it seems likely that there will be further proceedings between the

parties. As a result of my concerns about the respondent's situation, and in the hope it may assist her to regain a grant of legal aid, I propose to forward a copy of this judgment to the Director of Legal Aid WA.

Background

10 The applicant father is 32 years of age, and at the time of trial, was an unemployed [gardener]. He does do some casual work. The respondent mother is 35 years of age and is engaged in home duties. The parties first met as children, living [north of Perth]. It seems the applicant had problems with alcohol from a fairly early age. Apparently, at 20, he fell from a balcony when drunk and suffered serious head injuries.

11 The mother has a daughter, [M], from a previous relationship, now aged 10 years, who is living with her.

12 In January 1998, the applicant commenced a relationship with [DR], and there is

one child of the relationship, [KL], now aged seven years. The applicant and Ms Raines separated in December 1998. Ms [DR] moved to [the eastern states], and there were proceedings in this court and in the Family Court [in the eastern states] in relation to parenting orders for [KL]. The applicant's evidence was he was not in a position to continue proceedings in [the eastern states] so they proceeded on an undefended basis. The trial Judge's judgment refers to the horrendous family violence

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which had occurred in the relationship. While considering the issue of alleged sexual abuse, he made no finding as there was insufficient evidence. The father has no contact with [KL] and does not know where [DR] is.

13 The parties renewed their friendship in January 1999, when the mother returned

to live [north of Perth]. The applicant initially boarded with the respondent at her home in [the southern suburbs]. At that time, he was not consuming alcohol, but had started attending Alcoholics' Anonymous and other men's groups to obtain help. By late 1999, the parties were living in a de facto relationship. The applicant had recommenced drinking alcohol.

14 In March 2000, the parties moved to [a town] in the South West. Their first child [A], was born in January 2001.

15 The parties separated in October 2001 (the respondent refers to managing to

"escape"), but the applicant moved back into the respondent's home, she says without her permission, in December 2001. There was a serious incident of family violence, involving six policemen, on 26 January 2002. The parties did reconcile in March 2002. A second child, [JL], was born in September 2002.

16 The parties finally separated in early 2003.

17 In June 2003, the applicant commenced a residential rehabilitation course for his

addiction to alcohol and cannabis, first at Bridge House, moving to the Harry Hunter Medium Term Rehabilitation Farm on 24 July 2003. The applicant had some contact with the children while he was at the centre. While attending the programme over a period of six months, he became involved with his present partner, [LI], aged 35 years, and as a result, he and [LI] were required to leave the centre on 31 December 2003, as this was against the rules.

18 The applicant was advised to continue counselling with the centre's continuing

care programme, which was not pursued, so he was advised to seek counselling with another service as he "still had some issues with acknowledging and getting in touch with his feelings and emotions".

19 [LI] had been a long term attendee at the centre because she was addicted to

amphetamines. She has a criminal history through this. Her evidence is that she no longer has a drug problem, having not used drugs since March 2003, and there is no evidence to suggest otherwise. [LI] has three children of her own, aged approximately 13, 11 and 9 years, who reside with her former partner, [VI]. She has contact with her children on alternate weekends and school holidays. The applicant and [LI] have a child, [J], now aged 10 months. Her evidence is that the applicant is actively involved in [J]'s care and he gets on fine with her children.

20 The respondent commenced a relationship with her present husband, [RC], [a

cook] in January 2004. They were married in March 2005. The couple have a son,
[K], born in late September 2005.

21 Between April and July 2004, the applicant had daytime fortnightly contact with the children, but then the respondent would not allow unsupervised contact. He had

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attended her home drunk. There were then a number of occasions when the respondent was threatened by him and [LI] for denying contact. He commenced proceedings in this court in November 2004.

22 On 20 December 2004, the respondent filed a Notice of Child Abuse asserting

that the applicant, on two occasions, kicked and threw her child [M] across the room. She also referred to the proceedings regarding [KL] in the Family Court of Australia. She said:-

"3.	The child [M] … has disclosed that the applicant would get into her bed during the relationship between the [parties].
4.	The applicant was seen coming out of [M]'s bedroom by the respondent and the respondent's mother.
5.	[M] has disclosed that she is scared of the applicant and is now undergoing counselling …
6.	The child [A] has said that he is scared of the applicant."

23 On 6 January 2005, it was ordered that the children be separately represented.

24 From February 2005, the applicant had supervised contact fortnightly at

Anglicare. The evidence of the supervisor was that the children clearly enjoyed contact visits, and related well to their father and he behaved appropriately to them, including engaging in suitable activities. There was a strong bond between the father and the children.

25 On 14 March 2005, it was ordered that Chris De Rooster, a clinical and forensic

psychologist, be appointed as single expert in these proceedings. By consent, orders
were made that both parties be restrained by injunction from:-

• discussing with, or in the presence of, the children the proceedings or the allegations made in the case;

• denigrating any party to these proceedings, or members of their respective families, or allowing any other person to do so, to, or in the presence of, the children.

26 Mr De Rooster's report was published on 13 July 2005. In summary,

Mr De Rooster's conclusion was that the children had a good relationship with their father and should have contact with him on condition that he does not consume alcohol.

27 In July 2005, the respondent said that [JL] had made a disclosure to her of sexual abuse during a supervised contact visit. This issue is referred to subsequently.

28 On 22 August 2005, there was an incident when the applicant drank to excess.

[LI] called the police, who removed him from the home and made a 24 hour order to prevent him returning to the home. She was not harmed, but gave the applicant an ultimatum that she would leave if he drank again.

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29 On 24 August 2005, the following orders were made by consent, until further

order:-

• The applicant have contact with the children each Sunday from 9:00 am until 5:00 pm.

• The handover point for the purposes of contact be the [local] police station.

• The applicant have telephone contact each Wednesday at 7:00 pm with such contact to be facilitated by the respondent causing the children to telephone the applicant's landline telephone number.

• The applicant's contact be supervised by [LI], or if she is unavailable, [LO].

• The applications were to otherwise stand adjourned generally with liberty to either party or the child representative to relist.

30 The respondent says she believed she was agreeing to four supervised visits. In

any event, her consent was certainly not an informed consent as she had not been advised of the incident only two days earlier. The children's representative and the Court were also not informed of the events of 22 August 2005. This is a matter of great concern as I believe there is no possibility that the orders would have been made had the Court been aware of this situation.

31 At the time of trial, the applicant's contact was proceeding on this basis.

32 By the conclusion of the trial, it was clear that the applicant father still had some

way to go in dealing with his alcohol addiction, and that, largely because of the number of relapses he has had, it was premature to proceed to unsupervised or overnight contact. This was despite the fact there had been no incidents of note since August.

33 On 23 December 2005, at the conclusion of the hearing, I made the following

orders:-

On the undertaking of [LI] to forthwith inform the child representative and the

respondent mother in the event the applicant father consumes any alcohol -

1. The children reside with the mother and she be responsible for their day to day care, welfare and development.

2. Until further order:-

(i)	Each party remain responsible for the children's long term care, welfare and development.
(ii)	The father have contact with the children each Sunday from 9:00 am until 5:00 pm, except for Christmas 2005, when the contact is to occur on Boxing Day from 9:00 am to 5:00 pm.

3. The handover point for the purposes of contact be the [local] Police Station.

4. Until further order, the applicant’s contact provided for in these orders be supervised by [LI] or, if she is unavailable, [LO],and preferably by both of them.

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5.	By consent, the father have telephone contact each Wednesday at 6:00 pm with such contact to be facilitated by the mother causing the said children to telephone the father's landline telephone number.
6.	The father be restrained and an injunction is hereby granted restraining him from consuming alcohol at all, and from using marijuana within 48 hours prior to any contact.
7.	The father's contact with the children be on condition that he comply with paragraph 6 of these orders.
8.	Within 24 hours of being requested to do so by the children's representative, the father submit to a broad spectrum urinalysis drug test, which is to be provided to the children's representative as soon as available.
9.	Both parties and the children's representative have liberty to apply on short notice for further orders to the Honourable Justice Martin.

34 While the limitation placed on the applicant in para 6 of the judgment sounds

draconian, his evidence is that he was not consuming alcohol, and would not. He accepted the limitation imposed. Ms [LI] was also prepared to accept the obligations of the undertaking and supervision order.

35 The children's representative apparently supported the orders made.

Relevant factors

36 The object of Part 5 of the Family Court Act relating to children and the principles underlying it are set out in Section 66 of the Act:-

“(1)

The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)

The principles underlying these objects are that, except when it is
or would be contrary to a child’s best interests -

(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b)	children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development;
(c)	parents share duties and responsibilities concerning the care, welfare and development of their children; and

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(d) parents should agree about the future parenting of their children.”

37 Section 90 of the Act provides, in deciding whether to make a particular

parenting order in relation to a child, a Court must regard the best interests of the child
as the paramount consideration.

38 Section 166 provides, in determining what is in the child’s best interests, a Court must consider a number of matters set out in sub-section 166(2).

39 As to any wishes expressed by the children and the weight to be given to any

wishes, there is independent evidence that the children wish to see their father and enjoy spending time with him. The mother says the children do not want to see their father. Their wishes can bear little weight, having regard to their young ages.

40 As to the nature of the relationship of the children with each of their parents and

with other persons, the single expert reported that at the time he prepared his report in March to May 2005, the children were excited to see their father and their little brother [J]. The children wanted to stay longer at the end of the visit to the single expert's rooms. Mr De Rooster reported that the children felt close to the father, secure and seemed to have bonded well with him. There were no signs of anxiety, fear or other psychological symptoms which could indicate any concerns regarding the relationship of the children with the father.

41 This is despite the mother's assertion that the children are frightened of their

father.

42 There was no suggestion that the children's relationship with their mother is

other than very close. The single expert noted that the children are bonded closely with the mother, and feel close to her, made age appropriate physical and emotional contact, and interacted appropriately with her.

43 It was not suggested that the children do not have other than an appropriate and

good relationship with their half brother, [J], with their half-sister, [M], and their half-
brother, [K], and [LO]'s young children.

44 The single expert reported the children seem to feel at ease and comfortable with [LI] and have a close relationship with [RC] and felt at ease with him.

45 As to the likely effect of any changes in the children’s circumstances, including

the likely effect on the children of any separation from either of their parents, or any other child or other person with whom they have been living, I accept that the children should not be separated from their mother for lengthy periods, but they probably could be away from her at least overnight.

46 As to the effect of separating the children from their father, the single expert

said:-

"Not allowing contact of the children with the father will erode the father- son relationship and will not benefit their psychological development. Should the children be separated from their father for long periods of time,

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they will lose a figure they have known as one of the primary caretakers since birth and they will also be deprived of an important male role model which can result in behavioural and emotional problems in future. However, should the father continue with his alcohol use, abuse and dependency and violent behaviour the children will be at risk of developing behavioural problems in the future.

It was reported by the mother tha t [A] started showing some aggression.

The reason for [A]'s aggression can probably [be] due to either:

.	the fact that they sometimes see their father and feel somewhat distressed by being exposed to him and perhaps evokes negative traumatic memories, OR
.	the fact that they do not see their father regularly or long enough distresses [A] and demonstrates this through his behaviour.

There were no clear indications for the first possibility listed above, but clear indications for the second possibility, ind icating that being separated for (sic) the father is impacting on [A]. The main reason for this is that [A] has a close and loving relationship with his father as observed in this assessment. [A] also wanted to spend more time with his father. … The children probably perceive him as a "normal" father who loves them as they have not experienced his destructive behaviour over the past few years."

47 As to the practical difficulty and expense of the children having contact with the

father, this was not a significant consideration. Mr [RC] has been transporting the children for contact purposes so the parties have not come in contact with each other. The husband does not have a driver's licence, although he has an extraordinary licence for work purposes. He is hopeful he may soon regain his full driving licence.

48 An important issue was the capacity of each parent, or of any other person, to provide for the needs of the children, including their emotional and intellectual needs.

49 There was no question that the mother is well able to meet all the children's needs and has done so for all of their lives. As to their father, the single expert said:-

"Physical needs

The father is able and has the capacity to meet the children's physical needs of food, clothing and shelter. He has always been a hardworking man who has tried his best to provide for his family. His present home is well furnished, kept clean and in good order and is family friendly.

Intellectual needs

The father can meet the children's intellectual needs. He is an intelligent person who will stimulate the children's interest. He has interests like woodwork and his interest in nature through which he can enhance the children's intellectual developmental needs.

(Page 11)

Emotional

The father has the capacity to meet the children's emotional needs. He loves the children, wants to have a good relationship with his two sons, which he is achieving at present. He has created a secure and loving family home and he will see to it that they socialise with their cousins and other family members i.e. the paternal grandmother and her husband and the paternal aunt.

However, it is imperative that the father resolves his significant personal and alcohol abuse as his history has shown that he does not control his anger and physically, psychologically and emotionally abuses his partners. The violent behaviour will traumatise the children and will make them feel very insecure and will thus not meet their emotional needs of stability, safety and secur ity."

50 A significant issue at trial was whether the father has in fact overcome his

alcohol addiction. There is no doubt that he has had a number of relapses, which he
calls "slips", since leaving the rehabilitation centre in January 2004.

51 The father's evidence was that he had not consumed alcohol to excess, although

he had had "a beer" since August 2005. He did not intend to consume alcohol in the future. He is receiving some counselling with Gregory Smith, from Mission Australia.

52 While he has made significant progress, I do not accept he has yet overcome his

alcohol addiction. It is clear that he will not be able to drink alcohol at all if he wishes to retain his relationship with his present partner. The court expert's evidence was that the father must abstain entirely from alcohol and drugs. He still uses marijuana regularly, daily or every second day. He said it calms him and I suppose is the lesser of the two evils, although having its own risks. [LI] is an occasional user of marijuana.

53 As to the children’s maturity, sex and background, and any other characteristics

of the children the Court thinks are relevant, [A] has been receiving counselling for behavioural problems, as he has been showing aggression. The respondent says he has bad dreams, and has even attacked [M] with a knife.

54 An important consideration is the need to protect the children from physical or

psychological harm caused, or that may be caused, by being subjected or exposed to
abuse, ill treatment, violence or other behaviour, either directly or indirectly.

55 There is no doubt that the children have witnessed family violence prior to

separation, but they would not have any recollection of it and therefore it has not,
apparently, affected their relationship with their father.

56 However, the mother has grave fears that the children are at risk of sexual abuse

from the father. She says there have been many incidents of inappropriate sexual behaviour and statements made by the boys in front of [RC] and her parents. She said "I have great difficulty dealing with these incidents as previously when I did express my concerns I was dismissed".

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57	On 9 December 2004, a notification was made that [M] had told her teacher after
a sex education class, that the applicant "had done something to her that made her feel very uncomfortable".
58	After a contact period in July 2005, at Anglicare, she contacted the children's
representative and informed him that the child [JL] had told her and [RC] that "Daddy put his willy in [JL's] mouth. Daddy said don't worry, Daddy won't wee". This was when the father had taken the child to the toilet.
59	The response of Jennifer Hannan, the General Manager-Services of Anglicare WA, was in a letter to the children's representative dated 17 August 2005:-

"Our investigation has not found any indication that inappropriate behaviour has occurred during contact between Mr [O] and his son, [JL], during supervised visits at the Child Contact Centre.

On interviewing the supervisor of the contact between Mr [O] and [JL] he stated that he has been highly vigilant during contact, staying within clear viewing and hearing distance at all times. This included situations where Mr [O] was changing [JL]'s nappy in the toilet areas of the centre. The supervisor advised that he has observed only appropriate behaviour and conversations between Mr [O] and [JL]. The counsellor at the Centre at the time of Mr [O] and [JL]'s visits has also advised that the supervisor of these visits is a careful, dedicated and conscientious worker and to her knowledge the supervisor did not leave Mr [O] alone with [JL] at any time during the visits. Likewise file notes of visits did not indicate that the supervisor left the child unattended during visits at any time."

60 The mother accepts that it is very unlikely the abuse occurred. I am satisfied that it could not have occurred.

61 On 4 October 2005, Jennifer Lee, a senior clinical psychologist, of the South

Metropolitan Health Service, Armadale Community Health, who had been seeing [A] on the referral of CHN Sue Hart, for clinical psychological assistance with some behaviour concerns, wrote to the Department for Community Development, saying:-

"This is to report a remark made by [A]'s 2½ year old brother [JL] during a session attended jointly by the family. The rest of the family inclusive of [RC], the current partner of [A]'s mother, [M] 10 years old, and baby [K] left the room. [A]'s mother was in the room with [JL] and [A], when the remark was made. During a drawing activity, [A] volunteered the information that he has two daddy's, daddy [O] is “nice" and daddy [RC] is "good". [JL] followed with "and, when I was at daddy [O]’s, he put his willy in my mouth", noted in verbatim. [JL] said this in a matter of fact manner, with eye contacts and gestured with his index finger pointed to his open mouth. After this, [JL] was noted to move from the drawing activity to the toys, whilst [A] was noted to be quiet, showing no reaction, eyes cast down, and blank facial expression. The children continued with play activities: I did not prompt for information."

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62 It is alleged that on 7 December 2005, [A] had said his father had bitten his

penis. The applicant says other people were present the whole time and it could not have happened. The children have been examined at Princess Margaret Hospital, and abuse not substantiated. The father denies that he would have abused any child. He was firm that "it is not in his makeup to do it". His evidence is he is concerned what other man have been around for the children to say these things. He does not use the expression "willy", but rather "doodle".

63 The mother is concerned that the applicant may have, at the least, behaved

inappropriately to, [DR]s daughter, and her daughter, [M]. I fear there is a possibility of inappropriate behaviour when the applicant was drunk or under the influence of drugs and his, and his inhibitions were loosened. However, provided the applicant is totally alcohol free, and drug free, during contact, there is no unacceptable risk of abuse. I appreciate that investigations are continuing, but little weight can be placed on disclosures which seem, I accept, extremely unlikely to be true, in the circumstances alleged.

64 A copy of the reports to that time were sent to the single expert who responded in a letter of 29 November 2005:-

"There were no clear indications of direct abuse or sexual abuse of the father towards the children. It is understandable that the mother expresses concerns regarding the father's behaviour and potential concerns regarding his behaviour as a parent … however, the single expert is of the view that no further assessment or review is necessary at this stage."

65 When updated on the more recent allegations at trial, the court expert confirmed

that, because of the applicant's dysfunctional childhood and alcohol addiction, there is
a need to be vigilant and there is a higher risk.

66 As to the attitude to the children, and to the responsibilities of parenthood,

demonstrated by each of the children’s parents, there is no doubt that each party has tried to meet their responsibilities as parents. The mother is obviously competent and caring, but has found it very hard to deal with the difficult position in which she has been placed. She is extremely anxious and this is likely to have an effect on the children.

67 The father has failed to meet his responsibility in continuing to drink alcohol,

and then behaving aggressively, but he has made serious efforts to overcome his addiction. The father presently pays the minimum in child support. He is in arrears by about $2,600. His drinking has had further financial impact on the family, for example, he has incurred the costs of car repairs in road accidents.

68 At trial, while he presented as remorseful about what has occurred, he obviously

regarded restrictions upon him as being unnecessary and, probably, unreasonable. While accepting he was like Dr Jekyll when drunk, I am not certain he fully appreciates just how horrendous his behaviour has been, and that it is likely to take years of total reformation for the respondent to trust him. In this, she is not being unreasonable.

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69	As to family violence, it is not in dispute that there has been serious family
violence by the father to the mother, when he has been under the influence of alcohol.
70	I do not propose to canvas the respondent's lengthy, and unchallenged, affidavit
in this regard, except to say that the applicant has caused property damage on several occasions, has smacked her in the mouth, and chased her with an axe. There has been police involvement on several occasions. The respondent has been hospitalised on three occasions as a result of injuries caused by the applicant. The applicant was convicted of assaulting the applicant on 25 June 2002, and was fined, required to attend an anger management course, and do 120 hours community service.
71	As a result of the father's violence, his relationship with the respondent is
irreparably damaged. [M], who witnessed extensive violence, and had to seek medical aid for her mother when she had been hurt, is frightened of the applicant. The respondent's position is that while she tries to be positive about contact, the children must be aware of [M]'s attitude and this could be unsettling them. [M] has had counselling at Holyoake.
72	[LI] has been subject to some family violence if the applicant has been drinking,
but she says it was not severe. She accepted, in her evidence, that she had under- estimated the applicant's problems during 2004 at least, and she accepted she should not have supported him against the respondent at that time.

73 I do not believe there are presently any family violence orders in force.

74 Although it would be preferable to make an order that would be least likely to

lead to the institution of further proceedings in relation to the children, I consider further proceedings inevitable. If the father relapses in his drinking habits, his contact with the children is likely to cease, perhaps altogether. In the event that the father successfully completes his recovery, it may well be appropriate to extend his contact with the children. However, consideration of this is premature at this stage.

75 Any other relevant facts or circumstances will be considered in my conclusion.

Conclusion
76	The single expert's summary in his report dated 12 July 2005, was:-
"Both parents were found to be competent in their care and parenting of the children. The mother has created a safe and secure new family. There were no concerns regarding the mother and her parenting style.
This assessment indicates that the mother's concern regarding the father is well founded. The father's primary problem is alcohol addiction and severe violence (domestic violence, physical as well as emotional). The history of the father's alcohol use and abuse and his domestic violence caused significant marital conflict and dysfunction, which resulted in a disintegration of the marriage and the family. The father has a significant prior history of abuse in his previous relationship and as a result is not able to have contact with his child of that relationship. The father has a severe
(Page 15)
alcohol problem and can be diagnosed as an "alcoholic". He also uses and did abuse drugs. When using or abusing alcohol or drugs he can be a risk in taking care of children. There was no clear history that the father has physically harmed the children, but exposing them to violent and uncontrollable behaviour will have significant implications on their psychological development. The father will have to abstain totally from using alcohol to be able to guarantee a home free of violence or any other form of abuse (verbal and emotional) for the children when they come to visit.
On a more positive note, the father did admit himself to a rehabilitation centre a few years ago, has addressed and is addressing his substance abuse problem. There were no significant concerns that he is still regularly abusing alcohol. The father has created a new family home which can meet the needs of the children when they come for contact. The children where observed to have a positive relationship with the father and the father with them. The father was receiving counselling during the assessment and he is urged to continue doing so.
It was suggested that the father started seeing the children for one full day, initially under the care/supervision of one of his family members and later unsupervised for a full day. If no problems occur one night sleepovers can be arranged.
The assessment clearly indicates that the father should not use any alcohol or drugs two days prior and during the contact visits. If the father has a relapse he should immediately inform the mother and seek immediate appropriate help for his problem."

77 I am satisfied, on the evidence, that it is in the children's interests to have

ongoing contact with their father, as it is important for their future development, but only on condition that he not consume alcohol at all, or marijuana at times when the children are with him. Although she has had serious problems and is under a lot of pressure at the moment, as her mother has been ill, I am satisfied that providing [LI] is present, and particularly having attended the trial, there is no unacceptable risk to the children. This is despite the fact she did not inform anyone involved of the incident on 22 August 2005. If the father relapses, [LI] will probably leave him, and I would almost certainly then require a return to strict supervision. I am not so confident that [LO] would take any action which would prejudice her brother, but she certainly would protect the children from him.

78 In permitting the contact to continue, I am very much aware that the respondent

mother finds this very difficult to cope with, particularly because of her concerns
about possible child abuse.

79 As to the frequency of contact, the mother sought that the contact be on alternate

Sundays because Mr [RC] only has one day off per week, on Sunday, and so the weekly contact limits the family's time together. Having regard to the young age of the children, I consider it in the children's best interests for them to have weekly contact with their father, even though this impacts on Mrs [RC]'s family activities. To

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enable the family to have uninterrupted time together, I have decided to suspend the father's contact on the March long weekend and the middle Sunday of the next two school holidays.

80 As to telephone contact, there had been some difficulties in this regard, but the parties had reached an agreement at trial, and I made a consent order.

Proposed orders

On the undertaking of [LI] to forthwith inform the children's representative and the respondent mother in the event the applicant father consumes any alcohol:

1. Until further order:-

(1)	Each party remain responsible for the children's long term care, welfare and development.
(2)(i)	The applicant father have contact with the children each Sunday from 9:00 am until 5:00 pm.

(ii)	The applicant father's contact be suspended on the March long weekend and the middle Sunday of the April and July school holidays.
(3)	The handover point for the purposes of contact be the [local] police station.
(4)	The applicant's contact be supervised by [LI] or if she is unavailable, [LO], and preferably by both of them.
(5)	By consent, the father have telephone contact each Wednesday at 6:00 pm with such contact to be facilitated by the respondent mother causing the children to telephone the father's landline telephone number.
(6)	Until further order, the father be restrained by injunction from consuming alcohol at all, and from using marijuana within 48 hours prior to any contact.
(7)	The father's contact with the children be on condition that he comply with paragraph (6) of these orders.
(8)	Within 24 hours of being requested to do so by the children's representative, the father submit to a broad-spectrum urinalysis drug test which is to be provided to the children's representative as soon as available.

2. There be liberty to apply in relation to implementation of these orders and for further orders at short notice to the Honourable Justice Martin.

3. After the July school holidays, the court expert observe the children with their father and provide a brief updated report as to his perception of the children's relationship with their father.

4. In any event, the proceedings be relisted for further hearing on 28 August 2006 at 9:30 am.

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I certify that the preceding [80] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate