Oldhof & Llewelyn (No 2)
[2023] FedCFamC2F 612
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Oldhof & Llewelyn (No 2) [2023] FedCFamC2F 612
File number(s): MLC 3081 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 May 2023 Catchwords: FAMILY LAW – final parenting orders – where one party has a history of alcohol abuse – benefit of face to face hearing – when overnight time should commence with one parent – whether to make orders for further alcohol testing – orders for gradual increases in time to overnight. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1075 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 64B, 65DAA, 65DAC
Division: Division 2 Family Law Number of paragraphs: 80 Date of hearing: 15 – 17 May 2023 Place: Melbourne The Applicant: Litigant in person The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Melanie Wyatt Family Law Counsel for the Independent Children's Lawyer: Ms McNamee ORDERS
MLC 3081 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR OLDHOF
Applicant
AND: MS LLEWELYN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 MAY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the child X born 2016 (“the child”).
AND THE COURT ORDERS BY CONSENT THAT:
3.The child live with the Mother.
THE COURT ORDERS THAT:
From now until June 2024 school holidays
4.The child spend time with the Father as follows:
(a)By electronic video communication on WhatsApp each Wednesday at 6.00pm, with the Father to initiate the call and the Mother to ensure the child is prepared for the electronic video or telephone communication;
(b)Commencing Saturday, 20 May 2023 (inclusive) and each alternate Saturday thereafter from 9:30am until 6pm; and
(c)Commencing Saturday, 2 July 2023 (inclusive), each alternate weekend from 11am on Saturday until 4pm on Sunday;
(d)Commencing Saturday, 13 August 2023 (inclusive), each alternate weekend from 10am on Saturday until 6pm on Sunday;
(e)On the Father’s day weekend, if not already in the Father’s care, from 5:00pm on the night immediately preceding Father’s Day until 6:00pm on Father’s Day;
(f)When the child’s weekend with the Father falls during the September 2023, 2023/2024 long summer holidays and first term 2024 holidays, the child’s weekend with the Father be extended to three nights on one occasion only during each specific holiday period (therefore on three occasions), until 6pm on the fourth day, and failing agreement for the additional Sunday and Monday night following the child’s weekend time with the Father;
(g)During the Christmas period in 2023 as follows:
(i)With the Father from 3pm Christmas Eve until 3pm Christmas Day, each alternate year thereafter; and
(ii)With the Mother from 3pm Christmas Day until 3pm Boxing Day, each alternate year thereafter.
(h)Commencing 10 March 2024, each alternate weekend from 6pm Friday until 6pm on Sunday (‘the usual fortnightly weekend’); and
(i)At any other time as agreed between the parents in writing.
From July 2024 school holidays onwards
(j)By electronic video communication on WhatsApp each Wednesday at 6.00pm, with the Father to initiate the call and the Mother to ensure the child is prepared for the electronic video or telephone communication;
(k)As from and including the July 2024 term holidays, and each term holidays thereafter, for one half as agreed and failing agreement from 10am on the first Saturday after the conclusion of the last day of school until the second Sunday at 10.00am;
(l)As from and including the start of the third term, the ‘usual fortnightly weekend’ occur during school terms in the same rotation, from 6pm Friday until 6pm Sunday and each alternate weekend thereafter at those times.
(m)From and including the 2024/2025 long summer school holidays, for one half of the summer school holiday period as agreed and failing agreement:
(i)In 2024/2025 and each alternate year thereafter, from the conclusion of school until 10.00am on the seventh day and each alternate week thereafter (a week on week off arrangement) for the remainder of the summer school holidays, with the child to be returned to the Mother’s care at 10.00am three days prior to the commencement of the new school term.
(ii)In 2025/2026 and each alternate year thereafter, from 10.00am on the seventh day and each alternate week thereafter (a week on week off arrangement) for the remainder of the summer school holidays, with the child to be returned to the Mother’s care at 10.00am three days prior to the commencement of the new school term.
(n)By electronic video communication on WhatsApp, each Wednesday at 6.00pm with the Mother to provide the Father the contact details for the child and ensure the child is prepared for the electronic video or telephone communication.
(o)At any other time as agreed between the parents in writing.
5.The child spend time with the parents during the Christmas period as follows:
(a)In 2024 with the Mother from 3pm Christmas Eve until 3pm Christmas Day, and at those times each alternate year thereafter; and
(b)In 2024 with the Father from 3pm Christmas Day until 3pm Boxing Day, and at those times each alternate year thereafter.
(c)In 2025 with the Father from 3pm Christmas Eve until 3pm Christmas Day, and at those times each alternate year thereafter; and
(d)In 2025 with the Mother from 3pm Christmas Day until 3pm Boxing Day, and at those times each alternate year thereafter.
Other time provisions
6.The child communicate with the parent whose care the child is not in the child’s, Father’s and Mother’s birthdays by electronic video communication on WhatsApp at 6pm with the parent who has the child to initiate the call.
7.During the school holiday periods, the parent who does not have the child in their care is permitted to communicate with the child by electronic video communication on WhatsApp each Wednesday at 6.00pm with that parent to initiate the call.
8.On the Father’s day weekend, if not already in the Father’s care, the child spend time with the Father from 5:00pm on the night immediately preceding Father’s Day until 6:00pm on Father’s Day.
9.On the Mother’s Day weekend, if not already in the Mother’s care, the child spend time with the Mother from 5:00pm on the night immediately preceding Mother’s Day.
10.In the event that Whatsapp or such other agreed application is not available or not working, any communication between the child and parent be made by telephone.
11.In the event the Father’s employment means he is unable to care for the child on the Friday night of his weekend time, the Father ensure that he provides the Mother with notice as soon as practical and in any event no later than 7 days beforehand and in that case, the Father’s weekend time commence at 10am on the Saturday instead.
12.All changeovers to occur at the Town B Railway Station, and as far as practical, the times of the commencement and end specified in these orders be varied as necessary to accommodate the train schedule between Melbourne and Town B.
Communication
13.The parents communicate about matters relating to the child’s care, welfare and development as agreed, and failing agreement, via the Talking Parents App.
14.Each parent keep the other advised of:
(a)their residential address, mobile telephone number and email address; and
(b)notify the other parent of any intended change to their residential address at least 7 days prior to the intended change.
15.The parents advise and keep the other advised of any serious and/or significant health issues experienced by the child and permit and authorise the other to speak to the children’s treating medical general practitioner and/or specialist.
Schooling / Medical
16.Each of the parents be entitled to receive, and do all acts and things to authorise the other parent, to receive:
(a)Documents distributed by the child’s school to parents such as school reports, newsletters and photos (at each parent’s expense if any);
(b)Reports from GP/Specialist or Allied Health Professional attended by the child;
(c)Information about extra-curricular activities and be at liberty to attend same;
17.Subject to any direction by the child’s School Principal, each parent be at liberty to attend the child’s school, and attend all school functions to which parents are normally invited including but not limited to parent/teacher interviews, school sports day and concerts.
Restraints
18.Pursuant to s 68B(1) of the Family Law Act 1975 (Cth), the parties and their agents be restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, or a member of their family to or in the presence or hearing of the child or allowing any other persons from saying anything to or in the presence of the child, which is in any way abusive, belittling or demeaning to the other parent;
(b)Discussing these proceedings or any other proceedings relating to the child with or in the presence or hearing of the child;
(c)Questioning or quizzing the child about the happenings in the Mother/Father’s household; and
(d)Committing family violence (including physical discipline) to or in the presence or hearing of the child.
19.The Father be and is restrained from consuming alcohol at any time the child is in his care.
Counselling
20.The parents do all acts and things to enrol and engage with a course child focussed counselling with an accredited agency such as C Support Services, D Support Services or E Support Services (“the counselling service”), for a period of six months, or such other period as directed by the counsellor facilitating such counselling, but unless agreed not to exceed 12 months, and as far as practical with the same counsellor.
21.This order does not require the parties to attend such counselling in the presence of the other.
22.The parents do all acts and things to ensure a copy of the Family Report by Ms F dated 30 January 2023 and these orders to be provided to the counselling service.
23.Each party bear his or her own costs of such counselling.
Hair Follicle Testing
24.The Father make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (AWDTS) Clinic or nominee for hair ALCOHOL/ ETHANOL testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognized International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this agreement:
(a)The Father is required to maintain his head hair at a length of not less than four centimetres and/or neither head hair nor body hair is to be cut, bleached or dyed between the date of this Order and the time of collection of hair;
(b)The Father is required to make an appointment with AWDTS for the purpose of providing a hair sample for hair drug testing purposes and undertake such testing to take place as follows:
(i)In the month of August 2023, so that the test results are available and provided to the Mother on or before 31 August 2023 (“the first test”) with the Father to bear the cost;
(ii)In the month of February 2024, so that the test results are available and provided to the Mother on or before 28 February 2024 (“the second test”) with the Mother to bear the cost provided that the first test is negative for alcohol/ethanol.
(iii)In the month of June 2024, so that the test results are available and provided to the Mother on or before 30 June 2024 (“the third test”) with the Father to bear the cost.
(c)Each parent is at liberty to provide AWDTS with a copy of these orders.
(d)The Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to the Mother upon receipt of such test results.
(e)The hair drug test may screen for drugs of ALCOHOL/ ETHANOL as required.
(f)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS' selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory's compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
25.The appointment of Independent Children’s Lawyer is discharged.
26.All extant applications are dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oldhof & Llewelyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
In the matter of Oldhof & Llewelyn I must determine the living arrangements for the child, X, who is now aged six. The parents and the Independent Children’s Lawyer (‘the ICL’) disagree as to his living arrangements and as to whether or not there should be equal shared parental responsibility.
It must be noticed that at the commencement of the litigation the parents had widely divergent views of the time that X’s father should spend with him. As the matter progressed, and, particularly, after the release of the family report, the differences reduced significantly. During the course of the final hearing before me the differences reduced again. The extent to which each parent, notwithstanding the long history conflict and litigation, was prepared to take account of the other parent’s position in the hearing before me and the evidence given is significant.
Ms Llewelyn (‘the Mother’) is 43 years old and employed full-time in caring for her three children: the child subject to the proceedings, and her two teenage children from a previous relationship. The Mother, in addition, is undertaking studies.
Mr Oldhof (‘the Father’) is 43 years old, and although holding tertiary degrees, is currently unemployed. In addition, the Father holds other qualifications, has recently been employed, and is seeking further employment within that area or profession at the moment.
The parties commenced cohabitation in 2014 and married in 2015. The parties finally separated in December 2019, and the Father issued these proceedings on 22 March 2021. There was no dispute at any time that X should always live with his Mother.
In these proceedings any findings of fact are made in accordance with section 140 of the Evidence Act 1995 (Cth), which reads:
140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The relevant law that I must apply in this matter is as set out in Part VII of the Family Law Act 1975 (Cth) (‘the Act’). In particular, I apply the section 4 definition of “major long-term issues” and sections 60B(1) and (2), 60CA, 60CC, 61DA, 64B(2), 65DAA and 65DAC which are as follows:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
…
60BObjects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(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; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
…
60CA:Child's best interests paramount consideration in making a parenting order
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.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(not relevant to this case)
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
…
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
64B Meaning of parenting order and related terms
…
(2) A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i)a child to whom the order relates; or
(ii)the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note: Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
…
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Consent orders
(6)If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
…
65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The final hearing proceeded over Monday, 15 May 2023 and Tuesday, 16 May 2023 and concluded at about 4:40pm on Tuesday, 16 May. These reasons are being delivered the day following the conclusion of the hearing via video link. Recently I determined (on 10 May 2023) that both parties should appear for the final hearing in person before me rather than by video link. Having dealt with this matter previously on video link and now having dealt with the parties in person, including observing them in the witness box, I am satisfied that the additional verisimilitude that their evidence obtains by being present in the same room while explaining their position, making submissions and giving evidence is well worth the considerable trouble and inconvenience of having the parties travel to be with me in the same courtroom.
The Father relied upon the following material:
·The Father’s affidavit filed 9 May 2023; and
·The Father’s amended application filed 9 May 2023.
The Mother relied upon the following material:
·The Mother’s affidavit filed 12 May 2023;
·The Mother’s affidavit filed 16 March 2023; and
·The family report.
The ICL relied upon the following material:
·Subpoena notes from a contact centre;
·A supervision report from a contact centre;
·The section 69ZW report dated 10 June 2021; and
·The family report.
Expert evidence
In addition, in this matter there was expert evidence, being the family report by a Regulation 7 family consultant, Ms F. I take into account the whole of the report but, in particular the following paragraphs:
26. [The Father] said that he drank heavily all his life up until he became sober [in late] 2020 and has been sober since; he attended drug and alcohol counselling; he attended [G Counselling Service] which was his main support; he started attending [G Counselling Service] not long after [[X]] was born, now he just attends a couple of times a week on and off. [The Father] is now an […] which he has been doing full-time for three months.
27. [The Mother] said that [the Father] was drinking heavily and on medication; at the end of 2016 he became psychotic; that he drank heavily all through their relationship apart from some periods which may have been days or months; the longest time was eight or nine months without drinking. [The Mother] said that [the Father’s] behaviour would be strange so it was difficult to tell whether that was from drinking as he would not admit it.
…
55. When asked her views about [X] spending time with [the Father], [the Mother] said that it is really good for [X] he looks forward to it; it makes him feel loved; the periods [X] has not spent time have been dreadful for [X].
…
69. [X] was asked if it would make it easier for him if [the Father] took him to where he lives to show him and show him his bedroom, he said, “Yeah, he has got to do that one day.”
…
76. … Overall, it is my view that [X] feels a warmth and closeness to [the Father] and to [the Mother].
…
79. There is a high level of conflict between [the Father] and [the Mother] which has prevented them from developing a co-operative parenting relationship. It is my view there are unresolved issues from their relationship and separation which prevent them from communicating effectively as parents. [The Father] acknowledged he had a drinking problem, to his credit, he sought appropriate help for this and maintains he has been sober since [late] 2020. [The Mother] would have found life difficult through the years living with [the Father] being a heavy drinker. It is my view that [the Mother] would now have difficulty trusting [the Father], not knowing whether to believe he has made the positive changes he reports he has.
…
90. In the meantime, to provide [the Mother] with reassurance, and as a safety net, [the Father] could do hair follicle tests once each month over the next 12 months.
RECOMMENDATIONS
91. It is recommended at this time that [the Father] and [the Mother] share parental responsibilities for [X].
92. It is recommended at this time that [X] lives with [the Mother].
93. It is recommended at this time that [X] spend the following times with [the Father].
•Each Saturday or Sunday from 9.30 am to 6.30 pm.
•Communication at least once each week by electronic means; times on the special days through the year if person to person time is not possible.
•After six months, on alternate weekends from Saturday 11 am to Sunday 4pm.
•After three months on alternate weekends from Saturday 10am to Sunday 6pm; three nights each school holidays and by mid-2024, half of all school holidays.
•After 12 months on alternate weekends from Friday 6pm to Sunday 6pm.
94. It is recommended that [the Father] and [the Mother] attend a Parenting After Separation program at an accredited agency such as [C Support Services, D Support Services, or E Support Services].
95. It is recommended that [the Father] and [the Mother] attend child focused counselling at one of the above agencies.
96. It is recommended that [the Father] do hair follicle tests every three months for the next 12 months.
Ms F was available for cross-examination during the proceedings, and some questions were asked of her by the Mother and by counsel for the ICL.
It became apparent during the cross-examination of Ms F that the timeline that she was contemplating was operating from the time of her writing the report, that being January 2023.
As can be seen from the paragraphs of the family report referred to above, the major matter that hovered over the sensible progression of living arrangements for the child in this matter was the father's issue with alcohol. In this case credit is not an issue. The father's position was that since late 2020 (or in the family report he referred to a specific date in late 2020) he has not consumed any alcohol. In evidence before me he was frank and asserted that he fully intended to remain abstinent from alcohol hereafter. There was no question, in the thrust of his evidence, that it was a matter of abstaining from alcohol during the periods that the child was in his care.
With remarkable frankness and frankness too rarely seen the father described alcohol in terms to the following effect:
(a)He cannot consume alcohol safely or responsibly at all.
(b)It was necessary, in his view, that he have a zero consumption and tolerance of alcohol; and
(c)that he recognised the damage that his consumption of alcohol had done to himself, to the child X and to the Mother.
It was not questioned in the proceedings that, in fact, the Father had not consumed any alcohol since late 2020.
It was not questioned that the Father was a regular attendee at G Counselling Service, and it was not questioned that he regularly attended for counselling with a psychologist that is made available to him because of his prior history in the defence force.
This matter has the additional benefit of the Father’s interest in rehabilitation. The Father had attended a rehabilitation service in 2020 and was an inpatient for some months. Following that experience the father undertook some study in this area of interest.
In late 2021 and early 2022 he was employed for about three months full time. Ultimately, he was not able to be employed beyond his probation period, and, he said, that related to issues about management and training. Notwithstanding that experience, the Father has applied for and regards himself as being shortlisted for further employment. I am satisfied that the Father has remained abstinent from alcohol since late 2020, as he asserts. The Mother’s position was of hoping that that was true but having some remaining circumspection about whether it was because of her experience during the relationship with the Father.
During the parties’ relationship the Father had a significant problem with alcohol, and there were periods of abstinence or at least less problematic drinking during that relationship. The Mother found that she could not trust the Father in regard to whether his assertions about not drinking were correct or not. Further, her circumspection about whether he has ceased drinking arose from Court orders where he had been ordered to undertake tests as to alcohol consumption, and whilst he had undertaken the tests they had not, necessarily, been undertaken within the timeframe as court-ordered. The timeframe for undertaking urine analysis-type tests and/or blood analysis tests is quite important for that test. The tests that are in evidence before me were tests in May 2021 (page 11 of 23 of the Father's trial affidavit), July 2021 (page 12 of 23 of the Father's trial affidavit), September 2021 (page 14 of 23 of the Father's trial affidavit), June 2022 (page 15 of 23 of the Father's trial affidavit) and August 2022 (page 16 of 23 of the Father's trial affidavit). The Father also undertook a hair follicle test in March 2023, that test indicated that the Father had recorded 2pp/mg and the report states that a test in the range of 0 to 2pp/mg is considered as negative or abstinent. In addition to that, in April 2023 the Father undertook a further hair follicle which had the same results.
I am satisfied that the Father’s statements about the serious problem of alcohol is not merely a statement for the purpose of these proceedings. He genuinely understands how destructive for him alcohol is and he genuinely is determined, having now been able to remain abstinent from alcohol for more than two years, to continue with that choice to remain abstinent. Further, I am satisfied that the Father continues to consult G Counselling Service and a psychologist on a regular basis.
Of course, given the Mother’s experience, her difficulty in trusting the Father and circumspection that this time he really has given up alcohol can be understood.
When cross-examined, the family report writer was very interested in the circumstance that for the last four unsupervised visits, which I infer have occurred during the late March and April of this year, the Father and the child had attended the Father’s home in the city, and he was able to observe what that accommodation would be. The impact of that was such that the family report writer's view was that the parties could move to overnight time sooner rather than later and immediately.
When the matter commenced before me the Mother had significantly altered her position following reading the family report. I acknowledge how difficult that change of position would have been. At the time of the family report interview, as recently as 10 January this year, the Mother’s position was that 6 hours on an alternate weekend, or even every 3rd weekend, was sufficient time for the relationship between the Father and the child. The Father sought a move to immediate overnight time but on a 1 night, and perhaps 2 night, per alternate weekend leading up to half of school holidays.
The Mother sought the following orders:
82. The mother has sole parental responsibility. The father has the ability to apply for shared responsibility via consent if he begins to play a positive role in [X’s] life in terms of contributing to his developmental, educational, emotional, and psychological needs.
83. Hair follicle test every 5 months. If the next test in 5 months' time is negative, I will pay for the following one, as long as all the conditions of the testing are met. The father pays for the subsequent test if there is a positive result or the current test if sampling requirements are not met.
84. The father commits to ongoing counselling/psychology and a psychiatric assessment.
85. That the child spend time with the father as follows:
84.1 Each alternate Saturday from 9 .30am until 6pm for 6 months.
84.2 Then each alternate weekend from 11 am on the Saturday until 4pm on the Sunday for a period of 3 months.
84.3 Then every third weekend from 10am on the Saturday until 6pm on the Sunday for 12 months.
84.4 Then every third weekend from 6pm on the Friday until 6pm on the Sunday.
84.5 From the conclusion of 84.3, during the school holiday periods three nights as agreed between parties and failing agreement from 10am the first Saturday after conclusion of last day of school until Tuesday 10am.
84.6 That from the conclusion of 84.3 that during school holiday periods three nights per three week period as agreed between the parties and failing agreement within 2 weeks of the end of the school term, from 10am on the first Saturday after the conclusion of the last day of school until the following Tuesday at 10am with the child to be returned to the mother three days prior to the commencement of the school year.
84.7 In 2023 from 10am until 2pm on Christmas Day.
In final address, after my inquiring of her, the Mother indicated that she had moved her position after hearing the evidence and learning some things about the Father’s attitude to parenting in the course of the final hearing evidence. Those included things which she was not aware of, or at least was distrustful of, before the hearing. She then sought that the Father’s overnight time should commence in about the school holiday period, that is, the middle of the 2023 year and that the move to school holiday time of 3 nights should be around the September school holidays.
In final address, I pressed the Father as to when he thought that his time with the children should move from unsupervised daytime, in accordance with the existing orders, to overnight. The Father asserted that he would accept the starting time that the Mother had put forward. When I pressed the Father as to when there should be a move to extending weekend time during school holidays for a period of three nights, as contemplated in the family report, the Father advised me that he was prepared to accept the Mother's suggestions in final address.
The Father did not see a move to 2 nights overnight on an alternate weekend as happening at all in the 2023 year, and the Mother, when pressed, was unable to assist as to when that should occur but was accepting that it should occur at some point. The Mother was frank in asserting that she had a difficulty in putting a time when the school holiday arrangements should move from a 3-night block to a half school holiday and a week block during the long school holidays.
Some significant events
I will just turn to some significant events at this point that have informed each parent’s attitude. It is not disputed that the Father has been a heavy drinker since the age of 15 years. It is unnecessary that I recite all of the instances of trouble and grief of the Father’s alcohol consumption and the impact that has had on his psychiatric functioning during the relationship. It is unnecessary that I recite the precise terms of how it was that the parties ended the relationship, finally, in late 2019. The parties agree that that is when their relationship finally ended.
The matters came to a crisis between the parents in or about early 2020, and the Mother’s trial affidavit included the following:
33. [Early] 2020. [The Father] called me repeatedly whilst drunk after accidentally sending me breathalyser history showing evidence of him being intoxicated whilst caring for the children. He also sent pictures indicating he was tampering with the breathalyser unit. During his repeated calls, I answered and explained that I was cooking dinner for the children and did not wish to speak to him. He continued to call. I answered again and asked him not to contact me any further. I sent this in writing also.
34. [The next day], 2020. 8.37am. [The Father] arrived at my home and attempted to open the front door without ringing the bell or knocking. (Video evidence available on request - has been provided to police)
35. [The Father] then walked around the side of my home, opened my side gate to access the rear of the property. The back door was unlocked, and he opened it, again without knocking. He then walked through the house where the three children and I were all sleeping and entered my bedroom.
36. [The Father] then sat down on my bed (where [X] was also sleeping) and shook my leg to wake me up. I stated that he needed to leave and asked him why he was in my home. He stated that he wanted to talk to me, and I repeated several times that I did not wish to talk to him, and that he needed to leave. He was clearly intoxicated. At this point I was becoming distressed, and [X] started to wake up. I again asked him to leave, and he finally did.
The Mother's account of those events was accurate and was not in dispute. In the hearing before me the Father professed to apologise for his behaviour on that occasion, and it was not challenged that his apology and recognition of the distress that his behaviour would have caused was genuine. Nonetheless, that event of itself, in my view, constitutes family violence and has had a serious impact upon this family.
The Father commenced proceedings on 22 March 2021 seeking time with X. On 24 May 2021 interim orders were made by consent that X would live with the Mother and that the Father would undertake alcohol testing and that the parties would make application to a regional spend-time supervision facility. The Father commenced spending time with that facility in the period between May and November 2021. That period overlapped with the COVID-19 restrictions and pandemic.
The Father's ability to spend time with the child during that time was problematic. It is unnecessary that I resolve what was then a dispute as to the extent that the Mother was supporting those orders and the Father’s relationship with the child. On the one hand, there were strict and precise instructions to the Mother that neither she nor the child should attend at the supervision service if there were any symptoms of or consistent with COVID-19. On the other hand, when the Mother did advise of either her or the child experiencing what she understood to be symptoms consistent with COVID-19 she was criticised as not supporting those orders. Interim orders were made again on 11 November 2021 that related to the provision of medical certificates on the occasions that the Mother was unable to attend, and the Father was to undertake further alcohol tests.
A crisis befell the parties in late 2021 when the supervision service refused to supervise any further visits. In February 2022 further interim orders were made that the parties re-engage with the same service for the purpose of the Father having three visits with the child.
On 15 June 2022 further orders were made that provided for the Father to spend time with X but now supervised by a private supervision service (at his expense) and that he engage with a psychologist for alcohol counselling. The Father undertook testing and I have recited those test results.
On 7 September the Father's psychologist, Mr M, provided a report which was supportive of the Father's efforts to undertake rehabilitation.
On 21 September 2022 further orders were made (mostly by consent) for the Father to have unsupervised time with the child on an alternate weekend, and those orders read:
THE COURT ORDERS BY CONSENT THAT:
1.That the child [X] born […] 2016 ... spend time and communicate with the Father as follows:
(a)On the 9 October 2022 and each alternate Sunday thereafter from 11.00am until 1.00pm in the [Town B] area.
(b)On and from the 20 November 2022 and each alternate Sunday thereafter from 10.00am until 2.00pm;
(c)Commencing on and from 1 January 2023, Sunday 1 January from 10.00am until 4.00pm and each alternate Sunday thereafter;
(d)On Boxing Day 2022, from 10.00am until 2.00pm.
(e)Each Wednesday at 5.00pm via video call with the Father to initiate the call to the Mother's mobile and the Mother to facilitate the call.
(f)Any other times as agreed between the parties in writing, by text message, AppClose or email .
2.Changeover to occur at [Town B] railway station.
3.On or before 19 November 2022 the Father inform the Mother of his current residential address.
THE COURT ORDERS THAT:
4.If the Mother cancels more than two consecutive visits that the Father has liberty to apply to the Court on short notice seeking an urgent hearing.
5.In the event that the Father fails to or is unable to attend to spend time with [X] on two or more consecutive visits, then the Father’s time shall not progress to the next stage as provided in these orders until the Father has been able to attend for the number of visits as specified in these orders.
6.The matter be adjourned to 20 March 2023 at 10:00am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia.
AND THE COURT NOTES THAT:
A.The Court addressed whether Section 102NA applied this day and the Court determined that 102NA(1)(a) and (b) applied, but subsection (c) does not apply.
The arrangements for that time was further complicated by the circumstance that by the end of 2022 the Father had moved to the city and the Mother lived in a regional town some distance from the city. The Father, although licensed, does not have a motor car, and, in fact, at this time does not drive. All travel for the purpose of the Father spending time with the child is by train, with all changeovers accommodated at, what was for the Mother, the local railway station. The evidence satisfies me that despite the parents’ antipathy and lack of trust for each other, they managed those railway station changeovers well and even agreed between themselves to change the day of the time from a Sunday to a Saturday to better accommodate the railway timetable.
The family report interviews were undertaken on 10 January 2023, that is, at a time when the Father was having unsupervised but only daytime time with the child.
On 20 March 2023 further orders were made again that provided that the Father's alternate weekend time was to be from 9:00am until 6:00pm, and the Father was ordered to undertake two further hair follicle tests that I have recited earlier, which he has provided.
At final hearing there was some variation, in form only, of the orders sought by the ICL and as recommended by the family report writer and, then, as sought by each of the Father and the Mother.
In terms of the immediate time, the ICL and the family report writer had pressed that the unsupervised daytime only time for the child be each weekend. The Mother and the Father each pressed that that daytime be on an alternate weekend basis rather than each weekend. I am satisfied that the child’s time, until it moves to an overnight period, should be alternate weekends.
Applying law to facts
Turning now to application of the law to the facts of this case. The orders I make consider the best interests of the child as the paramount consideration.
I must consider the primary considerations of section 60CC(2). The parents have common ground that it is to the benefit of the child of having a meaningful relationship with both parents, and I refer to and again acknowledge the Mother’s statements in the family report at paragraph 55, recited earlier.
I am satisfied and regard those statements by the Mother about the benefit to X of spending time with his father as genuine. Of course, the Mother’s position is there is a benefit to the child of having a meaningful relationship with his father provided his father is not consuming alcohol and is psychologically and psychiatrically well.
I must consider the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence. It is common ground in this case that for the Father to have consumed any alcohol or to have consumed alcohol to excess during or proximate to his time with the child that this would be contrary to the child’s best interests and has the potential to expose him to at least neglect were the Father's personal circumstances to disintegrate and deteriorate because of alcohol consumption. The Father's position is not just that he will not consume alcohol whilst the child is in his care but that he will not consume alcohol at all. I accept that position and it underpins my decision.
I must take into account the additional considerations, and I will now run through each of the section 60CC(2) factors.
Firstly, any views expressed by the child but considering the child's level of maturity. It is the Mother’s position that the child is, in fact, excited and has some considerable anticipation of being able to spend overnight time with his Father and very much enjoys the unsupervised daytime period that the child has had with the Father so far. The child, to the extent that he has a view, is of the view that he wants to spend time with his father but live with his mother.
I must take into account the nature of the relationship of the child with each of the child's parents and with any other persons. The child has two siblings who live with the Mother, and his time with those siblings and his mother will be always important to him. The family consultant's evidence was that the child has a very good and close relationship with both of the child’s parents, and I accept that evidence. Nonetheless, it is clear and obvious and I find that the child's primary attachment is to the Mother and that he has a closer relationship with his mother. This is inevitable given the pattern of caring that he has had the benefit of up until this point in his life.
I must take into account the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in decisions about, or to spend time and communicate with, the child. I am satisfied that the Father has taken all reasonable steps to spend time with the child. At a time when he was frustrated with being able to spend time with the child at the supervision centre, he persisted. He issued proceedings and persisted with these proceedings. The Mother is critical of him for failing to telephone the child or communicate with him via video link on a regular and reliable basis. There is some substance to that criticism. However, in part, the Father’s difficulty in that related to his ability to operate the appropriate technology and the reliability of his telephone service.
The Father has somewhat of a passive nature and, I am satisfied, follows the lead of the Mother in regard to day-to-day requirements of the child. It appears to me that the Father did underestimate how important it was for the child to communicate with him each Wednesday. There were significant periods in recent times where that has not occurred. On the other hand, I also regard that obligation for the child to communicate with both of the parents as a mutual obligation and for both parents to have followed that up, notwithstanding that the Court orders provided that the call was to be initiated by the Father.
The Father has essentially deferred to the Mother for major decisions about the child such as health and schooling location. That was sensible that he do so in all of the circumstances.
I must take into account the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child. The Mother has the burden and responsibility of providing for the child, and she does so very well. The Father, I am satisfied, contributes very modest child support when he is able and when he is employed contributes more child support. Nonetheless, the financial burden of supporting the child falls almost entirely on the Mother.
I am to consider the likely effect of any change in the child's circumstances. In this case there is no suggestion that the child will be separated from any person important to him. The Mother is of the view that for the Father to have alternate weekend time will seriously impact on his ability to relate to his local community and spend time with her and her siblings. In that context the Mother suggests that the regular time for the Father and the child should be every 3rd weekend rather than every 2nd weekend. This matter was raised with the family report writer, who was firmly and resolutely of the view that the alternate weekend regime was necessary for the child’s development and that every third weekend was too long a gap in between times. Considering all of the evidence, the child's relationship with both of the parents and the importance of the child’s relationships with his siblings, I am satisfied that the weekend time during school term should be every alternate weekend, not every 3rd weekend.
I am to take into account the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs. I am satisfied that each of the parents has the capacity to provide appropriately for the child at the times that they will have the child pursuant to these orders. The Father at all times has maintained that the child should live predominantly with the Mother and that he should spend time with the child. I am quite satisfied that he has the parenting capacity to provide for the child during those times that he has the child with him and will have the child with him pursuant to the orders that I make. However, he will only have that capacity if he is able to remain sober and not abuse or consume alcohol and I am satisfied that he will not consume alcohol.
I am to take into account the maturity and lifestyle of the child, and I find that he enjoys a rural lifestyle living with his mother but will also enjoy exposure to a city lifestyle on the occasions when he spends time with his Father.
I am to take into account the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. I am satisfied that each of the parents have demonstrated an appropriate attitude to the responsibilities of parenthood. I am satisfied that the Mother has devoted her life to ensuring that the child is raised appropriately and safely. Now that the Father has been able to achieve what he would describe as sobriety, and what I would describe as complete abstinence from alcohol, I am satisfied that he has the appropriate attitude to the responsibilities of parenthood necessary for the child's welfare.
I am to take into account family violence and any family violence order that applies. I have referred to the early 2020 incident. This incident must have inevitably had a significant impact upon the Mother. The Father recognises that impact, and I am satisfied that there is no prospect of any reoccurrence of such event or any other aspect of family violence. Unsurprisingly, the family violence order that the Mother sought previously has expired and has not been extended.
Both parents seek that I make final orders in these proceedings.
Parental Responsibility
Now, turning then to the issue of sole parental responsibility. I refer to the terms of section 61DA that I have recited or referred to earlier. In this case the presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe that a parent has engaged in family violence. That was the common ground incident when the Father entered the Mother's bedroom intoxicated on a morning in early 2020.
Notwithstanding that, I must consider whether there should be equal shared parental responsibility. I am satisfied that the Father takes or acknowledges the Mother's care of the child and, as a general rule, defers to the Mother's decisions about the child's arrangements. I am satisfied that it is in the child's interests that the parents have equal shared parental responsibility. I am satisfied that it is important for the child that his parents have that responsibility at this time and in the future. I am also satisfied that the parents are able to comply with the terms of section 65DAC as to consulting over long-term decisions, so in all of those circumstances I will make an order for equal shared parental responsibility.
As a matter of practical reality, the only likely decision involving a long-term issue will be the choice of the child’s secondary school. The Father indicated to me, and I accept, that he was likely to accept any proposals for secondary school that the Mother makes as he, I infer, had confidence in her judgment on such matter and her judgment about the practicalities of such arrangements.
Conclusions
Turning now to the detail of the orders and the extent of dispute. I take into account all of the evidence and the parents’ positions, ultimately, in final addresses. I am satisfied that the daytime time should be, for the time being, broadly as the Mother sets out in her orders, but that the time between X and the Father commencing this coming Saturday, 20 May, should be from 9:30am until 6:00pm and each alternate Saturday thereafter. From Saturday, 2 July 2023, each alternate weekend thereafter from 11:00am Saturday until 4:00pm Sunday. Then commencing 13 August 2023, each alternate weekend from 10:00am Saturday until 6:00pm Sunday. That is, what I will describe as the full two-day weekend will commence overnight on 13 August 2023, but the first overnight occasion would be on 2 July 2023 over a shorter weekend, being a later starting time and an earlier finishing time. I also determine that there should be overnight time on the Father's Day weekend and, absent agreement, from 5:00pm on the night immediately following Father's Day until 6:00pm on Father’s Day in the event Father’s Day is not on the Father’s weekend.
The parents then agreed that the school holiday time could move to a block of 3 nights, which was, effectively, spread over 4 days, from the September school holidays, and the order that I make will reflect that.
In terms of the Christmas Day time the Mother would have preferred for the 2023 year, that is, this year, for the Father to have daytime only time for 4 hours on Christmas Day. I do not consider that practical, and in the circumstances where the time will have already moved to overnight time I consider that the Father should have overnight time from 3:00pm Christmas Eve until 3:00pm Christmas Day and each alternate year thereafter, with the Mother having 3:00pm Christmas Day until 3:00pm Boxing Day each alternate year thereafter.
Then the issue is when the alternate weekend time moves to a 2-night regime, that is, from the Friday night till the Sunday night. The Mother’s position on that is as set out in her affidavit. The Mother’s reading of the recommendations of Ms F was that each of the timeframes of Ms F’s recommendations should be made cumulative, that is, where Ms F referred to "after six months" and then referred to "after three months": that each of those matters were to be added on to each other. I did not read it that way and saw Ms F to be referring from the time of the family report. In any event, the parents have come together or acquiesced on a position where overnight time would start during the midyear school term holidays of this year. Hence I find, balancing all of the matters, that the move to the two nights overnight should commence on 10 March 2024. I might add that I have looked at a calendar and tried to keep each of these dates in the fortnightly regime the same as it is now and, then, further, such other times as agreed in writing.
I then come to the issue of when does the half-school term holidays commence. Balancing all of the matters, including the need to reassure the Mother, I determine that the half-school holiday regime, that is, the full half of the school term holidays, should commence from the July 2024 school term holidays. I determine that the 2024-2025 long summer holidays should be on an alternate week-about arrangement, but provided that the child is always returned to the Mother’s care 3 days before the start of the school year. Which parent has the first week and which has the second week of the school holidays will alternate between years so that any unfairness or advantage to either parent or the child evens out over time. The net result of that is that whoever has the child with them on the Christmas Day/Christmas Eve week has that week interrupted.
I have drafted the orders so that there is, effectively, two schemes. That is, until July 2024 a scheme of specific times giving effect to the alternate weekends of the Father's time rolling through the school holiday period and not being suspended during that period. On one occasion of each of those school holiday periods, commencing from September this year, that time will be extended by two nights so that there is a block of three nights.
The other scheme is from July 2024, where the time arrangement can be simply described as each alternate weekend from Friday evening until Sunday evening and during school term. During school holidays each of the parents will have one-half of the school holiday period and that the alternate weekend arrangements otherwise do not apply during school holidays from the July 2024 arrangement.
The other matter that needed to be determined, although the parents had reached substantial common ground in regard to that, was the need for hair follicle testing. I regarded the Mother’s suggestion of the Father paying for the first test, her paying for the second test if the first one was negative, as the last two have been, as being generous and sensible. It is one of the many matters that satisfies me that the Mother is genuinely committed to supporting the child’s relationship with his father. There was some tension between the proposals in that the family report writer had requested 12 months of tests every three months, and the Mother’s understanding was that the minimum cost test would cover a period of five months, when I am satisfied that it may only cover three months.
The end result of that arrangement is that I have determined that the Father should undertake the next hair follicle test in the month of August 2023 so that the test results are available to the Mother on or before 31 August 2023, which I will call the first test. That is because it immediately following September when the time arrangement will move to the first block of three nights during the school holiday period, and I want the Father to have provided a clean hair follicle test in the period immediately before that change of arrangement.
The second test that I have determined should be in the month of February 2024 so that the test results are available on or before 28 February 2024. This is because it is in March of 2024 that the orders move to a two night overnight weekend, and I want the Mother to have had the satisfaction of a clean hair follicle test before that change or move.
The third test that I have determined is necessary should occur during the month of June 2024 so that the test results are available on or before 30 June 2024. That is because there is a move to the first block of half the school holidays, which will be a block of a week and a day during that school holidays, and the Mother should have the comfort of a clean hair follicle test prior to that new regime coming into place.
The Father should pay for the first test and the Mother should pay for the second one, provided the first was clean, and the Father should pay for the third test. I do not otherwise make any further orders for testing. I wish to make it clear that these orders are predicated on the Father's continued abstinence from alcohol.
I am satisfied that the parents should attend the child-focused counselling as discussed in the final hearing and contemplated and recommended by the family report writer, and I have made that order. I have made what could be described as the usual orders for communication and each parent keeping the other informed of their email, phone numbers, residential address and the usual orders for provision of information about medical and schooling matters to both parents, including both parents being authorised to attend extracurricular activities and school events of the child.
I have ordered that all changeovers occur at the railway station closest to the Mother’s house, as has been the arrangements to date. However, I have also included the provision that, as far as practical, the times of the commencement and end specified in these orders be varied as necessary to accommodate the train schedule to and from Melbourne. That is what the parties have been undertaking so far. There is the potential for dispute between them because of that, but I have confidence that they will be able to sensibly overcome such times being a little earlier or a little later to accommodate the travel by train to and from the Father’s home. I also take into account the Mother's, effectively, long-term concern about the geographical requirements that follow from alternate weekend arrangements.
I take into account the Mother’s concern that the child may well be less involved in local activities with school friends, neighbours and/or sporting environments than what he would be if the Father lived closer-by and/or had different travel arrangements. I am satisfied that the Father living where he wants to live is not only in his best interests but also in the child’s best interests. I am satisfied that the father’s current position of not having a motor car and not driving at all is a sensible one, notwithstanding the limitation that makes because of travel then always being by train to and from the mother’s local railway station. I have considered those matters in coming to the decision that the matter should be alternate weekends.
I will now make those orders, and I will settle those reasons from the transcript. That means deleting repletion, changing the order of paragraphs to make it easier to read, and the settled reasons should come out and be available to each of the parents within the next week or so.
I will also add another order that all extant applications are otherwise dismissed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 23 May 2023
0
0
0