Oscar & Traynor

FAMILY COURT OF AUSTRALIA

OSCAR & TRAYNOR

[2008] FamCA 95

FAMILY LAW – CHILDREN – Best interests – Consultation – Major long term issues – with whom a child spends time – alcohol and risk

Family Law Act 1975 (Cth)

Neil v Nott (1994) 68 ALJR 509
Mazorski v Albright [2007] FamCA 520

APPLICANT:

MR OSCAR

RESPONDENT:

MS TRAYNOR

INDEPENDENT CHILDREN’S LAWYER:

Mr Hammond

FILE NUMBER:

NCF

3046

2002

DATE DELIVERED:

22 February 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Lismore

JUDGMENT OF:

Murphy J

HEARING DATE:

17-18 December 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Jordan of Counsel

SOLICITOR FOR THE RESPONDENT:

B.L. Crane & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hammond, Solicitor

Legal Aid Commission of NSW

ORDERS

All previous parenting orders are hereby discharged.
The Applications in a Case filed by the Father on 30 November 2006 and 13 November, 2007 and the Application for Contravention filed on 9 November 2007 each be dismissed.

Parental Responsibility

The mother have sole parental responsibility for the long term welfare, development and care of the children, O…, born … January 2000 and X …, born … December 2001, save that prior to making any decision with respect to any “major long-term issue” (as defined by the Family Law Act 1974 (as amended)) (“the Act”)), she shall give to the father not less than 28 days written notice of the nature and content of any such decision, to the address notified to the mother by the father in accordance with these orders.
Each of the parties shall retain parental responsibility for the children in respect of issues that are not major long-term issues, during the time that the children spend with each parent pursuant to these Orders.

Lives With

The said children shall live with the mother.

Spends Time With

The said children shall spend time and communicate with their father at all such times as might be agreed between the parties in writing, and failing agreement in accordance with the following orders:

6.1.On each alternate Saturday commencing 1 March 2008:
6.1.1.To a date four (4) months therefrom, for a period of four (4) hours commencing not earlier than 9.00am and concluding not later than 5.00pm;
6.1.2.Thereafter for four (4) months for a period of six (6) hours commencing not earlier than 9.00am and concluding not later than 5.00pm;
6.1.3.Thereafter between 9.00am and 5.00pm;

with each such period of time commencing and concluding at, and supervised by, the Family Centre in [northern NSW].
6.2.On Father’s Day for the period consistent with the timetable provided for in Order 6.1 with time with the father to occur in lieu of the Saturday otherwise falling closest to Father’s Day.
6.3.On Christmas Day in each year for a period of four hours commencing not earlier than 9.00am and concluding not later than 5.00pm.
6.4.In respect of each of the children’s birthdays:
6.4.1.If such birthday shall occur in a week in which, in accordance with Order 6.1, the children would spend time with their father, then they shall spend time with him in accordance with Order 6.1;
6.4.2.If such birthday shall occur in a week in which time with the father does not otherwise occur in accordance with Order 6.1, then for a period of four hours commencing not earlier than 9.00am and concluding not later than 5.00pm on the Saturday following such birthday.
For the purposes of this order a week shall commence on a Sunday.

6.5.The Mother shall do all such things as might be necessary to actively encourage the children to communicate regularly with their father by letter or card.

Other Issues

The Mother shall:

7.1.Do all such things and sign all such documents so as to authorise and permit the Father to obtain all reasonable information with respect to the children’s scholastic, sporting and extra-curricular activities;
7.2.In any event, provide to the father as soon as reasonably practicable after receipt, a copy of any school report, school achievement award, sporting award, or the like, received by the children, either from their school, or any sporting club or organisation in which they are involved;
7.3.Provide to the Father, details of each such sporting or other extra-curricular activity or club in which the children are involved;
7.4.Do all such things as might be required, so as to authorise and permit, any doctor or other health professional providing advice and/or treatment to the children, to provide such information as might reasonably be required by the father;
7.5.In any event provide to the Father a copy of any written report received in the usual course of treatment by any medical specialist, counsellor, psychologist, or other treating professional for the children, as soon as reasonably practicable after receipt of same by her;
7.6.Keep the Father appraised in writing, of any issues effecting the children’s education in any substantial way, including, but not limited to, any recommendations for specialised or remedial courses, courses for gifted children, or any courses, programmes, or activities undertaken or suggested as being undertaken, by the children outside the usual course of schooling.

The address to which all notifications required of the Mother by these Orders shall be:

8.1.…, being the Notice of Address for Service provided by the Father for the purpose of these proceedings;

8.2.such other address as is notified in writing by the Father to the Mother.

IT IS FURTHER ORDERED THAT

The Independent Children’s Lawyer shall provide a copy of these Orders and Reasons for Judgment to the Director of the Family Centre in [northern NSW] as soon as reasonably practicable after the date of these Orders.

10. Each of the mother and father shall do all such things and sign all such documents as might be necessary to request that the Family Centre monitor and take notes of their observations of the changeovers provided for in these Orders and, in particular but not limited to, any observable signs that, in the opinion of any responsible person at the said Family Centre, the father is adversely affected by alcohol.

11. Pursuant to Rule 17.01 of the Family Law Rules 2004, these Orders shall take effect:

11.1.For the purposes of Rule 22.03(1) (relating to the commencement of the Appeal period) from 29 February, 2008;
11.2.Otherwise, from 22 February, 2008.

12. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period or the determination of any application for costs, whichever is the later.

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

14. The applications for any further or other orders be dismissed and the matter be removed from the list of cases awaiting finalisation.

15. All material produced pursuant to subpoenae issued for the production of documents be returned to their respective providers after the time for appeal has elapsed.

IT IS NOTED that publication of this judgment under the pseudonym Oscar & Traynor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: NCF3046/2002

Mr Oscar

Applicant

And

Ms Traynor

Respondent

REASONS FOR JUDGMENT

Introduction

This dispute about the parenting orders which are in the best interests of two young boys, O and X, occurs within the mother’s proposal that the father spend time with the children for two hours each fortnight supervised by a contact centre and the father’s initial proposal that the children live with him and the mother “week about”.
During the course of the hearing, the father’s position altered. He indicated that he sought orders that he spend time with the children each alternate weekend from after school Friday until the beginning of school Monday. His position altered again subsequent to the Independent Children’s Lawyer’s (ICL’s) address.
The ICL sought, in address, a graded regime of unsupervised time each alternate Saturday – initially four hours for two months and thereafter from 9.00am until 5.00pm. A further submission was that, during school holidays, time could be spent by the father on “four or five consecutive days”.
Having heard this submission, the father submitted in address that he agreed with the position of the ICL and sought orders to similar effect.
Whilst that obviously changed the nature of the case, the mother’s position, and the central issues for determination remained the same. Whatever be the details of the proposals ultimately expressed, the resolution of this parenting dispute (including a proposal thought best for the children by the court which differs from the parties proposals) turns on two central issues, from which a number of other issues flow.
First, it is said that the children are at risk in their father’s unsupervised care because of a long-standing problem with alcohol. It is said that the father has no insight into the nature or extent of that problem and its impact on his behaviour and the risks it represents to his care of the children.
The second, and competing, central issue is that, after 18 months of supervised contact at a contact centre, the relationship between the father and the children needs to develop and grow and the children need to spend more time with their father and that cannot occur – productively or meaningfully – at a contact centre.

ISSUES and CONSIDERATIONS

The issues thus posited occur in the context of an overriding obligation on this court to make orders which, consistent with the court’s findings, best promote the best interests of these particular children in these particular parenting circumstances.
I am cognizant of the statutory presumption, considerations and pathway mandated by the Family Law Act 1975 (“the Act”) as well as the Objects and Principles applicable to parenting cases underpinning same.
The central issues in this case earlier delineated, and the ambit of the evidence about to be discussed, find clear resonance in the mandatory statutory considerations by which the children’s best interests are to be determined.
For example, on the mother’s case, the need to protect children from harm must extend to the need to protect them from unacceptable foreseeable risks emanating from alcohol abuse and its potential to impact on a lack of parental supervision and care.
And, clearly enough, those same central issues impact directly on Additional Considerations such as the nature of the relationship between the children and each parent; the willingness and the ability of each to facilitate and encourage a close and meaningful relationship and parental capacity.
If I find that the father abuses alcohol to an extent that is likely to impact on his capacity to care for the children, or otherwise interferes with his exercise of the responsibilities of parenthood, and I find further that the father has little or no insight into that fact. That, too, is an important matter in the context of the statutory considerations and a real issue with respect to whether the presumption of equal shared parental responsibility should be rebutted.
Given the central issues identified I should, though, record my view on two aspects of the statutory requirements.
First, the purpose of each of the Primary and the Additional Considerations is, as the heading to the section makes clear, to direct a court as to how a decision is to be arrived at, about the subject children’s best interests.
The clear wording of the statutory delineation suggests to me that the “Primary Considerations” are to have particular importance but, as the word “Additional” suggests, they are to be considered in conjunction with the other Considerations and do not, per se, outweigh or “trump” the “Additional Considerations”.
The second matter to which I should make specific reference is the application of the first of the Primary Considerations (s.60CC(2)(a)).
In Mazorski v Albright ([2007] FamCA 520), Brown J said (at para 2 of Her Honour’s reasons:-
“The provisions in the Act relating to children rest on two pillars. The first is the importance to children of having a meaningful relationship with both parents, the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC.”
Reference to the Act makes it clear that the court’s overriding mandatory function is to determine the orders that best promote the best interests of the particular children the subject of the proceedings in the circumstances specific to them. The court is reminded more than once (eg s.60CA; s.65AA), that a determination of those best interests is at the heart of the decision - “the paramount consideration” - when making parenting orders.
Findings about harm or abuse or the risk of either, or the likely effect of change for a child, or the capacity of one or both parents to provide for children’s needs, all involve findings of fact which can be readily seen as likely to impact on orders about the nature and extent of a future parent/child relationship.
The position with respect to s.60CC(2)(a): (“the benefit to the child of having a meaningful relationship with both of the child’s parents”) is, it seems to me, less clear.
“Meaningful relationship” is not defined in the Act. Brown J in Mazorski v Albright concluded in respect of the phrase (reasons para 26) that it did not involve quantitative concepts:-
“…when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one…”
I respectfully agree, noting the use of the qualifying word, “strictly”. Further, in my respectful view, Her Honour’s conclusion receives added weight by reason of the Act specifically eschewing (Note to s.61DA(1)) a presumption as to time. Put in Her Honour’s terms, the Primary Consideration is, then, relevantly, “the benefit to the children of a relationship which is important, significant and valuable to the child.”
But, significantly, as it seems to me, the Act does not require a court to consider whether a party’s proposal is important, significant and valuable to a child. Rather, it requires the court to consider the presumption that such a relationship is of benefit to the subject children.
The Considerations are the pathway by which factual findings underpinning ultimate findings about best interests are to be determined. The court can only “consider” the required matters in the light of factual findings made about those matters (or other relevant matters – see s.60CC(3)(m)). If that is so, it seems to me difficult to know what to make of the Primary Consideration under discussion.
The exercise in discerning the proper meaning of the legislation is not an exercise in semantics or sophistry. The primary task of the court at a hearing is to perform a disciplined and reasoned fact-finding exercise by which the particular children’s best interests are determined. The legislature makes it clear that s.60CC (inter alia) provides the guideposts by which that task is to be conducted. The nature of what is required of a court by that section is central to the court’s role.
The “presumption” of benefit to a child of a relationship with each parent which is “important, significant and of value” is, it seems to me, either axiomatic or a fact in issue. That is, if it be determined - as a fact - that a current, or proposed future, relationship is not for the child important, significant and valuable and best interests is the ultimate criterion, it surely can’t be presumed by a court that such a relationship is of “benefit”. Conversely, if it is found as a fact that a current, or proposed future, relationship is for the child, important, significant and valuable, and best interests is the ultimate criterion, it is difficult to see how a court could conclude that such a relationship is not of benefit to the child.
In either case, it is difficult to see how, as part of the fact-finding exercise, the presumption contained in the sub-paragraph usefully serves as a pointer to the best interests of the particular children in the particular circumstances under consideration. Yet, the heading to s.60CC says that is its purpose.
That is in no sense to undermine its importance. It clearly has importance – indeed, primary importance – in emphasising an underlying philosophy (or Object, or Principle – or “pillar”) of the Act. The difficulty, as it seems to me, is one of application.
Factual findings as to attachment, developmental stage, the respective exercise of parental responsibility, the nature of the relationship between child and parents and the like can be seen immediately to shine a light on ultimate findings about best interests.
Each such finding is overtly and intimately attached to individual justice for the particular children and their particular circumstances the subject of the proceedings. Each focuses (or should focus) upon the individual needs, developmental stage, psychological and emotional health and personality of the individual children. And, of course, parenting orders are, axiomatically, about effecting individual justice.
The role of a court in effecting individual justice occurs within a factual context which, by definition, has resisted resolution and which (almost by definition), almost invariably involves parents in high conflict. In such cases, both the nature of the existing, and possible future, relationship between child and parent - and the possible benefit or detriment of any prospective relationship (including a prospective relationship that might not be properly considered “meaningful”) - are frequently in issue.
A presumed benefit from an important, significant and valuable relationship says nothing of the particular circumstances of a child. Indeed, reference to the relevant statutory objective (s.60B(1)(a)) underlines why this is likely to be so. It assumes individual justice: the objective is not to ensure that children have a meaningful involvement with their parents but rather to ensure that parents have a meaningful involvement in the lives of their children only “to the maximum extent consistent with [their] best interests…”.
The primary importance of the Primary Consideration – its characteristic as one of “two pillars” – is, it seems to me, as a supervening imperative. To the picture of best interests emerging from factual findings based on the additional considerations (including s.60CC(3)(m)) must be added a consideration of two matters of primary importance to the ultimate finding of best interests. (First, is the need to protect the children from the specified acts and omissions (s.60CC(2)(b)). The second is the consideration (not application) of a presumption that, consistent with the Act’s objects and principles, children benefit from maximising the extent to which both parents have an important, significant and valuable role in their lives.

FINDINGS AS TO THE CONTEXT OF THE DISPUTE

The father is aged 50 and the mother 47.
The parties married in June 1994 and separated on 31 July 2002.
The parties’ children were each born in Korea. O was born in January 2000 and X was born in December 2001.

O came into the care of the mother and father in August 2000 and was formally adopted by them on 8 June 2001.
X came into the care of the mother and father on 18 May 2002. The formal adoption of X was more complicated.
The adoption of the children from an overseas country resulted in the involvement of the Department of Community Services which conducted a process of investigation before lending its support to the formal adoption of the children.
Ms E had contact with the mother and father (and children) for that purpose. She is a social worker engaged in private practice, then engaged by the Department to assess and provide reports in respect of the then prospective adoption. An affidavit of Ms E, filed by leave on 30 May, 2006 in the first trial of this matter, was in evidence before me. She deposes to having produced a number of assessment reports in respect of the adoption process. Her most recent report, a “Supplementary Assessment Report” in respect of X dated 27 April 2005, was in evidence before me. Ms E was not required for cross-examination.^.
The report reveals each of the parties being less than fully frank with the Departmental assessment in respect of X. Ultimately, X was formally adopted in June 2007.
According to the father’s account to Dr W, he was admitted to the alcohol dependency unit at the Hospital (“HADS”) on two occasions in January 1995 and June 2002.
The father consulted a psychiatrist, Dr P, at about the end of 2002. He apparently continues to see him, although the frequency of those consultations was unclear on the evidence before me. Dr P was not called as a witness and no report or affidavit from him was before me.
On 9 September 2004 this Court made final Orders that the children live with their mother and have contact with their father including from 8.00am Thursday until 4.00pm Friday each week until December 2004 and thereafter from 4.00pm Wednesday until 4.00pm Friday each week until O commences school. Thereafter, the father was to have contact from after school Friday until before school on Monday together with holiday contact commencing Easter 2005.
There was also an order that the father not consume alcohol while the children were in his care and for 12 hours prior and the father was to have four liver function tests per year.
Litigation ensued between the parties between December 2004 and a trial in June, 2006, including three applications by the father for contravention of orders by the mother, and applications by the mother that contact be supervised and an application pursuant to s.118 of the Act.
Final Orders were made after a trial on 2 June 2006. Those Orders provided for the father to have contact with the boys at a contact centre for two hours each alternate Saturday, on Christmas Day, Father’s Day and on the father’s and each child’s birthday.
The father appealed those Orders and, on 31 July 2007 the Full Court heard the appeal. In Orders made on 4 September 2007 the Full Court allowed the father’s appeal and ordered this new trial.
The Orders made on 2 June 2006 remain current and have governed the time spent by the father with the children since that time.
On 9 November 2007 the father filed his fourth Contravention application. At the commencement of the hearing of the trial before me, the father abandoned that application, effectively in favour of having the trial of the substantive parenting issues between the parties determined.

THE CHILDREN

X is clearly of insufficient maturity to have his “views” taken into account. The manifestation of his attachments, level of development and relationship with each of his parents is, of course, a different matter and, in my view, very important.
So, too, O’s age and level of maturity and understanding about what is in his own best interests is such that I propose to put little weight on his “views” in the sense of him expressing a preference for the parenting arrangements that might be made about him and his brother or, in the context of this highly-charged dispute between his parents - even comments made about either parent.
Again, though, O’s voice should be heard in these proceedings but, in my opinion, primarily through the observations and opinions constituting the expert evidence before me. As with X, the manifestation of O’s attachments, level of development and relationship with each of his parents are important matters.

The Expert Evidence in Context

Evidence was before the court from expert witnesses who were not required for cross-examination: Dr W, Ms E and Ms P.
Each gave opinion evidence as experts being, respectively, a psychiatrist, a social worker and a Family Consultant.
The evidence of each was unchallenged in the sense that propositions contrary to their opinions were not put to them. However, I am acutely aware of the fact that the father represented himself and prepared his own material, a topic I shall return to.
In those circumstances, and taking into account my assessment that the father is not a sophisticated or particularly well-educated man and my assessment that, certainly, his self-representation was barely adequate, any conclusion I draw from a failure to cross-examine should, in my view, be tempered.
I attach considerable weight and significance to opinions which are consistent throughout those reports and/or which accord with my own views about the parties and their evidence. I intend being more circumspect in considering the weight I should attach to that evidence in circumstances where, although not cross-examined, the thrust of the father’s evidence and case make it clear that he disputed some aspects of those opinions. Primarily, that relates to the issue of the extent of the father’s use of alcohol.

(a)The Children: Evidence of Dr W

Little of what Dr W said about the children appears to be seriously in issue. In any event, although not cross-examined, it seems to me his report is comprehensive and thoughtful.
The opinions expressed appear well founded in observations made by him and by careful analysis of the data before him. I have taken account of the fact that the doctor’s report is now nearly four years old.
The doctors observations of the mother’s interaction with the children can, in my view, be summarised as the mother providing high quality nurturing and care for the children. Dr W observed considerable enthusiasm on O’s part at seeing his father and that X had very little to say.
The mother told Dr W that O (then aged approximately 4) had “a happy nature though he can be strong willed and stubborn and he has an ability to plausibly argue his case…she feels that he is quite a bright boy. She said he loves affection, books, anything out of the ocean and nature”.
Specifically in respect of the nature of the relationship of the children with each parent Dr W was of the opinion that:
“…the children [have] a close, affectionate relationship with their mother and with her being their primary attachment. I did not observe any insecurity in this relationship despite the tension between the parents and it does not appear to me that Ms [E] did either, although I might have expected this if the parents were concealing the extent of the problems between them for much of the time.
I also formed the view that the boys have a close bond of attachment with their father. In [X’s] case it seems to be quite secure and this seems to be Ms [E’s] observation as well. While I observed what appeared to be a secure attachment between [O] and his father, I note Ms [E’s] two most recent reports in relation to the father in which [O] seemed quite unsettled in his father’s presence, although I also note this may well have been a response to some degree of residual intoxication or emotional upset by the father and may not be representative of the relationship when the father is emotionally stable. However it does provide some indication that there are probably times when [O] feels insecure with his father”.

(b)The Children: Evidence of Ms E

The report of Ms E was prepared for a different purpose (the adoption of X) but which purpose nevertheless was integrally concerned with X’s best interests and, in turn, his relationships with each of the mother and father.
Equally, each of the parents must have known that they were, as it were, “under scrutiny” just as they were in the processes conducted by Dr W, Ms P and Ms F. I am very conscious that Ms E was not cross-examined and attach weight to her evidence cautiously as a result. Her report is, also, nearly three years old. But, nevertheless, I derive assistance from her observations in the context under discussion.
Ms E records in her report:
“In the three years and five months of [X’s] life he has experienced multiple separations, losses, changes of carers and changes of residences. It is likely that these losses and changes have had an impact on his emotional security and development”.
“[X] seemed comfortable and secure in his primary home setting and was happy to play by himself or with [the mother] and [O]. He seemed confident in his surroundings and was affectionate with [the mother], who related to both children well at their own level and in a warm and caring manner.”
“[The father] did not appear relaxed or comfortable in his care of [X] and [O]. His supervision of [X] was inconsistent and episodic, and he had to be asked twice to check on [X] who was climbing on the railing of the front verandah, and reminded to attend to [X] in the toilet, after the child had soiled himself. [The father] tended to relate to [O] and [X] on the same level without appropriate differentiation based on their developmental needs. This culminated in [X] becoming quite distressed when a computer game was disrupted because of the different developmental abilities of [O] and [X]. [The father] was easily frustrated by difficulties presented by [O] and [X] and had difficulty placing appropriate limits on [O] and [X]. He did attend to their physical needs although often in a reactive manner and without limits such as giving the boys iceblocks and [indecipherable] whenever they asked for them. He is able to give attention to [X] while the child was crying and distressed and eventually calmed him and offered him an alternative activity”.
“[X] appears to have an attachment to [the father] and did gain reassurance from his physical contact and interaction with him. [X] was less confident and more subdued in his relationship with [the father] than [the mother]. This would be expected due to the diminished time he has spent with [the father] as a result of the marital separation and due to the deficits in [the father’s] parenting skills and knowledge…”
“[X] has formed an attachment to [the father], which could continue to develop positively if [the father] settles his life in terms of residence and relationships, and his mental health and alcohol use…”.

(c)The Children: Evidence of Ms P

Ms P was a family consultant at the time of preparing her report. She was, I gather, no longer employed in that capacity by the time this matter was being prepared for the trial before me. As a result, Ms F prepared the “updated report”.
Again, Ms P was not cross-examined. I thought her report was comprehensive and thoughtful. I am somewhat concerned (and given she was not a witness before me can put it no higher than that) that some of her conclusions were based on assumption as opposed to direct observation and analysis of the data before her.
Nevertheless, I have no reason to doubt the accuracy of her observations which, again, I find of assistance in the present context. I also take into account that Ms P’s report is almost two years old and her observations of O and X occurred when they were aged 6 and 4 respectively.
Ms P records:
“[The father] reported to the report writer that he encouraged [O] to go next door to play with the neighbour’s child so that he could have some one on one time with [X], so that he could help him with speech. Towards the end of last year and this year [the father] has complained about the children having behaviour problems on a number of occasions, and that he has been having difficulty managing their behaviour. While it is evident that [the father] is having difficulty managing the children’s behaviour, it is the report writer’s opinion that there is no evidence to suggest that the children have behaviour problems”.
Ms P records the mother as telling her that the children are increasingly resistant to having contact with their father. The mother quotes O as saying: “I hate you mum” on his return from time spent with his father.
The mother also told Ms P that O is increasingly inquisitive, asking questions as “Why is […] [i.e. the father] angry?” In terms of the children and the nature of their relationship with each of their parents, Ms P observed a strong bond between the children and the mother.
Ms P also records O telling her “in a sophisticated manner”: “[mother’s first name], I really don’t like going to see my dad”, explaining that this was because he didn’t like that his father smacked him. However:
“…he was able to say that he liked fishing and playing games with his father. [O] was aware that his mother gets “cranky” if his father gives him coke, and is afraid that his father will do this. [O] told the report writer that he wanted to visit his father for half the day, and return home at lunch time. However he wasn’t able to give any reason other than he liked going home at lunch time. It is the report writer’s opinion that [O’s] statements appear sophisticated for a child of his age, despite his intelligence and it is likely that he has been exposed to adult views”.
“[O] presented as a very bright and imaginative 6 year old, who was drawn to engaging in fantasy games, which he wanted the report writer to participate in. During play [O] stated that he wished his father was more like him, although it was unclear what he meant by this. [O] exhibited high amounts of energy and a need for constant stimulation, consistent with an enormous drive to learn as reported by his mother, through play and interaction with adults. It is the report writer’s impression that [O] requires a high level of stimulation to meet his daily learning needs. He is an inquisitive boy who asks lots of questions and it is likely that he is already aware of his father’s limitation, and that this causes him some confusion and anxiety”.
Ultimately, Ms P was of the view in respect of O that:
“Of further concern is [the father’s] ability to manage [O] and meet his significant need for stimulation. As a strong willed energetic child [O] could be placed at risk if he is not adequately supervised and left to his own devices…”

(d)The Children: Evidence of Ms F

Ms F is a family consultant who prepared an “updated report” due to Ms P’s unavailability. Her report was significantly more current than any other expert report, having been prepared shortly prior to the commencement of the trial before me.
Ms F’s evidence, was the subject of some criticism by counsel for the mother, Mr Jordan. He submitted that, in oral evidence - particularly under cross-examination from Mr Hammond, the ICL - she tended to “blow with the wind”.
I think it is true that Ms F appeared somewhat ready to agree with contentions that were put to her in the witness box. It is also true that Ms F’s ultimate recommendation changed in oral evidence. In her report, her ultimate recommendation, taking into account her concerns about the father’s alcohol use, was that “supervised time should continue, with perhaps a view to increasing the time to four hours (if this could be negotiated with the contact centre)”. In the witness box, the general thrust of Ms F’s evidence tended towards recommending unsupervised time away from the contact centre (subject to appropriate findings about risk).
For example Ms F said in oral evidence, in effect, that she thought the relationship between the father and children would be strengthened and protected outside the contact centre. She also said that contact for two hours at a contact centre, where the children say they are bored, “sets up the time with their father to be boring” and this wasn’t helpful to them or the relationship.
I am not convinced, though, that Mr Jordan’s criticism is fair to Ms F. She - quite properly in my view - posited her assessment as culminating in a dilemma. She was clearly of the view (as, ultimately, am I) that the relationship between the father and children in the contact centre environment does not provide the opportunity for the relationship between father and children to grow as the children need. But she also was of the opinion that there was a history of alcohol abuse, she had made certain observations of the father and had, as a result, concerns about risk to the children if the father continued to abuse alcohol.
As she said in the witness box the problem created by circumstances such as that (i.e. “the dilemma”) is that a decision has to be made ultimately about “risk management”.
That cross-examination and reflection might result in a recommendation that is somewhat different from her reports does not, in my view, necessarily result in criticism. It might, of course, if the change can be demonstrated to be as a result, for example, of error, sloppy thinking or analysis, or capriciousness. Here, though, no such distortion is demonstrated. In my judgment, the discrepancy between an ultimate recommendation arrived at in the report and an ultimate recommendation different from that arrived at in the witness box was, here, simply the exemplification of the difficulty of reaching a decision when two competing considerations have merit.
Crucially, it also exemplifies an issue vital to my ultimate findings and conclusions. In my view, the evidence taken on a whole, clearly reveals two potential risks central to the children’s best interests. The first is the risk of harm associated with alcohol abuse. The second is harm associated with an inability for their relationship with their father to grow and develop.
The latter risk is, of course, of a different type to the former, but that, in my judgment does not affect its importance – particularly in the context of fashioning orders within the statutory framework.
Further and in any event, recommendations are not written in stone nor do they, in my view, carry any greater weight (and, arguably, should carry less weight being effectively an opinion on the ultimate issue for the court) than the observations, data, process of assessment and analysis giving rise to them.
Generally I consider Ms F’s evidence to have been given thoughtfully with appropriate recognition of the integral place of the children’s safety, wishes, attachments and needs at the heart of her assessments and recommendations.
The mother told Ms F that since the inception of the orders made by this court in June 2006, family life for her had settled considerably and, that, since the routine of alternate weekend contact has been established, “[O] stopped wetting his pants, both boys began sleeping better, [X] stopped returning from his father’s in a clingy and insecure state”. The mother also told Ms F that O had been assessed as being a gifted child and is doing extremely well at school. She said that he needed constant stimulation. She reported X as being more reserved with some speech delay. Since starting school the gap in speech development had closed.
O told Ms F that it was “good seeing dad” and she quotes him directly as saying that he “would like to see dad more, but not much more…dad calls mum names. I don’t like it when he does that”. W also told Ms F that “it’s kinda boring at the contact centre”. Those comments are made against the background of an assessment of O as a “very bright, articulate little boy who asked a lot of questions and delighted in experiencing new things and meeting new people”.
Ms F also observed the boys to be “happy and relaxed in the company of their mother”. She observed a similar contrast between the behaviours of O and X: “[O] was the more articulate outgoing one and [X] sat on the floor playing with the toys”. Ms F also observed spontaneous affection between X and his mother and opined that “[X] is significantly attached to his mother and it would be my assessment that he has a very ambivalent attachment to his father”. In respect of O, Ms F concluded that he “enjoys a significant attachment with both his parents with his mother being the primary attachment figure”.

THE PARTIES
(a)The Father

I am mindful that the father’s self-representation (and preparing his own material) may create for him some disadvantages, and I have sought to be particularly careful when assessing his evidence (and submissions) to bear that in mind. (I have in mind, for example what the High Court said in Neil v Nott ((1994) 68 ALJR 509 @ 510) that: “… a frequent consequence of self-representation obviously is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy”.
In this matter the father’s case was not only “… obfuscated by his own advocacy…” but also by the fact that his material was meagre at best. In short, his case appeared to be: This case is all about my alcohol use. It shouldn’t be. The mother either tells lies about this or exaggerates it. Her assertions as to alcohol use can’t be right because I work hard, I work long hours, I pay a mortgage and there is no money to drink to the extent she alleges and I maintain a full time relationship (with Ms B). There is no focus on the mother’s mental health. There should be. I love my boys, they love me.
As indicated earlier, his case, in terms of the Orders sought, changed as the hearing went on and was not finally determined until the ICL had addressed.
A corollary of the concern about self-representation just expressed is that it can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation. In his Atkin Lecture in 2002 “The Misnomer of Family Law” Mr Justice Wilson (UK) made the following observations:
“… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore, one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against barbarity which sometimes effects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.”
Here, I consider that the father’s self-representation provided an opportunity to “discern the quality” of his capacity to parent, including his insight into the children and their needs.
I am also acutely aware that, in cases such as the present, where each of the mother, and the ICL is represented by trained legal practitioners, the “spotlight” of the hearing tends to shine brighter on the unrepresented party. Because the spotlight of enquiry shines brighter here on the father any flaws tend to be all the more vividly exposed.
Generally speaking, the experts to whom I have made reference express views of the father which accord with my own observations of him in the witness box and the evidence generally.
Dr W formed the view that the father had:
“…as comprehensive an understanding of the boys background and development and as accurate a view of the boys’ natures [as the mother. But, formed the view that] he probably has been less involved in the children’s day to day care than has the mother, certainly on a consistent basis. For instance, it is unlikely he was able to function effectively as a parent at those times when he was drinking heavily. Moreover, overall I form the view that he is probably a more passive parent than [the mother], who is more proactive and imaginative in her parenting. I also form the view that the immature aspect of his personality makes him more self-centred”
Dr W was also of the view that the father was a:
“rather dependent and emotionally immature person who uses alcohol to manage depression and stress… particularly when drinking, he probably is capable of being overbearing and using his physical size to advantage”.
For her part, Ms E said:
“[The father] presents as assertive, anxious, self-focussed and angry. He was determined to give the information that he wanted to share in the individual interview and was at times unable or unwilling to answer some of the questions from the interviewers”.
Although I did not witness the father being angry in the witness box I certainly gained the impression that he was an emotionally immature person and that he was self-focussed and determined to give the information he wanted to share.
I assessed him as being unable to appreciate the import of many of the questions put to him, particularly in relation to his capacity to put the children’s needs ahead of his own and to see how his behaviour, particularly when drinking, may have impacted upon the children.
Ms F was of this opinion:
“I am of the view that [the father] is genuinely desirous of playing a meaningful role in [O’s] and [X’s] life. However I am concerned that he is very self-absorbed and that his pursuit in being a part of the boys’ life is motivated by his own needs rather than for the boys needs. This was evidenced by his reaction to my suggestion that an increase in time would most likely be introduced gradually.
He failed to understand how this graduated approach would be in the best interests of the children and was more concerned about how this graduated regime would be unfair to him. [The father] failed to demonstrate a child-focussed approach particularly when he suggested that he take three months long service leave and the children immediately start living with him on a weekly basis. He failed to display any understanding that his proposed parenting would negatively impact on the boys by them being suddenly wrenched away from their mother who they are significantly attached to and then expected to be cared for by the man who according to the boys calls their mother names, and who they have a somewhat tenuous attachment to.”
I agree with that assessment and those observations. I, too, thought the father self-absorbed with limited insight into how his proposals and/or behaviours might have an impact upon the children.
I take into account the father’s self-representation. I also take into account his perhaps understandable desire to achieve a result in these proceedings that would see him spend more time with the children. Nevertheless, it seems to me that, for example, both the father’s material and the manner in which his proposals changed during the course of the hearing are indicative of the very sort of failure to predominate the children’s needs over his own or demonstrate a child-focussed approach that had been spoken about in the evidence by the experts to which I have referred.
Ms P refers in her report to attempts by the father to discuss the mother in front of the children and she concludes that “[the father] was not focussed on the children’s needs and did not encourage them when they sought to share their ideas with him”.
An annexure to the father’s affidavit filed 11 December 2007, dated 9 November 2007, is a letter from Mr J who is the manager at the children’s contact centre where the father has been spending time with the children for about the last eighteen months. Mr J refers to the father having discussed prospective living arrangements with the children and:
“… openly [admitted] he did this because of the changes to the current arrangement [by the mother]. Writer has requested that [the father] comply with the centre’s policy of not discussing the court process or possible living arrangements with the children. [The father] has indicated that he is more than happy to comply with the contact centre’s policy.”
Ms P was of the view that:
“…[The father] is entrenched in warfare with [the mother] and that he is primarily motivated by a desire to continue some form of relationship with her in order to punish and unsettle her, rather than to consider the children’s best interests. [The father] presented as someone who blames others for things that happen in his life, which he is not happy about, and as unable or unwilling to take personal responsibility for his actions”.
That opinion, expressed in March 2006, in respect to the father’s motivation, is at odds with the report of Ms F in December 2007. She says “I am of the view that [the father] is genuinely desirous of playing a meaningful role in [O’s] and [X’s] life”.
The history of litigation between these parties and, in particular, the applications for contravention filed by the father might be seen as supporting Ms P’s view.
It was not, however, the view I ultimately had of him. Whilst I agree with the assessment that he is self-absorbed and has a very limited capacity to see beyond his own needs and whilst I also agree that he does tend to blame others and fail to take responsibility for his part in disputes, nevertheless I think his motivation in seeking to spend more time with the children – although flawed in its application - represents a sincere desire by him to be a part of their lives.

(b) The Mother

I suggested to Mr Jordan during the course of argument, that the mother was disdainful of the father, particularly, for example, by reference to the evidence with respect to the children calling their father by his first name. In my view the mother is, at best for her, passive about that.
Mr Jordan argued that such an interpretation was unfair and, in particular, pointed to the long history of this matter including applications for contraventions, apprehended violence orders and the like and further pointed to the evidence contained at paragraphs 120 and following of the mother’s affidavit of evidence in chief (which the father did not appear to dispute in any material way) that, post-separation, she encouraged interaction between the father and O, visited the father, took him a meal and generally looked out for him.
Dr W was of the view that:
“…[The mother] is highly motivated as a parent…[The children] also appear to be well cared for. She seemed well informed about the children, their natures, their needs, and she seemed to have an appropriate recognition of their need for stability…”
“…I also found her rather rigid and inflexible in her thinking such that she is temperamentally unsuited to negotiations and compromise which is particularly evident with [the father]. However I do not think that these personality traits are of such a degree that they constitute a personality disorder”
“Overall I formed the view that the mother was a more emotionally mature person than the father, although she is somewhat rigid in her thinking in some respects and I suspect is rather bound to routines. However I form the view that she has performed capably as a parent and that aside from any issues to do with contact with the father, she is as capable as is necessary to provide adequately for the children’s emotional and intellectual needs”
Ms E opined:
“[the mother] has clearly shown that she wishes to limit the relationship between [X] and [the father] and she is dismissive of his role as father to [X]. [The mother] refers to [the father by his first name] in conversation with the children and does not concede him the title of father or “dad”.”
Observing, and listening to, the mother closely in the witness box I was also of the view that she was dismissive of the relationship between the children and their father. She appeared to me unrepentant in respect of the use of the father’s first name to refer to the children’s father and I gained the very strong impression the term was used intentionally as a sign of disrespect for the father and/or his role in the children’s lives.
Ms P thought:
“[The mother] presents as a woman of average intelligence, who demonstrates elements of rigid thinking and limited insight in relation to past choices she has made. [The mother] presents as someone who constructs barriers to defend against things she has difficulty understanding or addressing in a more direct fashion. This is demonstrated in her relationship with [the father], and her perceived inflexibility. It is the report writer’s opinion that [the father] behaves in a critical, manipulative and abusive manner in his dealings with [the mother] and that her strict adherence to court orders is a way of managing his behaviour. It is the report writer’s opinion that [the mother] is genuinely afraid of [the father] who continues to abuse her and who physically towers over her, and that she has very real concerns about his ability to keep the children safe”.
It needs to be accepted that the layout of the courtroom and the fact that the father represented himself presented considerable difficulties to the mother when giving evidence; she was in close physical proximity to him when she was in the witness box. I also take account of the fact that this matter has a long history with multiple applications. The mother is, in my view entitled to feel significantly exasperated at being involved in a parenting trial nearly six years after a relationship has ceased.
I consider that the mother presented in the witness box as, to use Ms P’s words, a “serious and determined woman” and I certainly agree with Dr W’s observation that the mother was rigid and inflexible in her thinking and temperamentally unsuited to negotiation and compromise with the father.
Despite her counsel’s argument to the contrary, I am of the view that she is somewhat disdainful of the father and, in particular, dismissive of a meaningful role for the father in the children’s lives. Needless to say, if the father has abused, or abuses, alcohol as she suggests and believes, this, in my view, is legitimate cause for concern and caution by the mother, and that, in turn, is exacerbated by her (understandable) exasperation.
But, in my judgment, her dismissive attitude towards the father’s role as a father to the children and the benefit of him having significant involvement in their lives, whilst emanating from legitimate exasperation and concern, goes beyond a level given legitimacy by those considerations.

(c)The Parties Generally

What is abundantly clear on any view of the evidence is that the parents are utterly incapable of having any form of meaningful co-parenting relationship in respect of the children.
The expert reports are redolent of instances of why this is so, culminating in the assessment by Ms F that:
“It was clear that both parties viewed the other in a very negative manner. Neither of them trusts the other, with [the mother] believing that she has to protect herself from [the father’s] intimidating and abusive antics and [the father] believing that [the mother] is openly undermining his relationship with his sons. I am therefore of the opinion that there is very little scope of a cooperative parenting arrangement being implemented in the near future.”
I have little doubt that the father’s relationship with the children represents a “black-spot” in the mother’s parenting. When her and the children’s interrelationship with the father is removed from the circumstances, she is otherwise a loving, caring parent who has obviously done a good job of doing the majority of the parenting with respect to the children in what I assess to be difficult circumstances against the backdrop of litigation and legitimate concerns about the father’s alcohol abuse. The expert reports are unanimous to that affect and it accords with my own impression of her and the evidence.
I am not convinced that either party is a particularly reliable historian.
The mother’s evidence is, in my view, coloured by her highly negative and dismissive view of the father mixed with legitimate concerns about the safety of the children when in their father’s care as a result of her perception of his current level of abuse of alcohol.
An example is contained in the annexure to the father’s affidavit filed 9 November 2007 to which I have already made reference. The mother gave a letter to the contact centre prior to the visit of 24 August 2007.
Mr J (the Case Manager of the centre, who was not called as a witness and therefore not cross-examined by any party) indicates he had a telephone conversation with the mother where she indicated that:-
“… [X] “shot out of the contact centre door and hugged [the mother] with [X’s] arms around [the mother’s] neck and his legs around [the mother’s] legs. [The mother] suggesting it was tight and uncomfortable as he is a strong boy. [The mother] suggested that [X] appeared distressed with the notion of having to “live half with [the father] and half with you”. The mother also complained about a “lack of support from staff, particularly regarding [incident just referred to]”.
Contrary to the report of the mother, Mr J writes:
“I have spoken with staff who were rostered on for that day. I have reviewed the observation report and video surveillance of the drop off and pick up. I find no evidence to support your allegation of the behaviour exhibited by [X] or any necessity for staff to assist. [X] did exit the contact centre first, in a relaxed manner, without staff in view of the camera. Staff have suggested to me that [O] doubled back to say goodbye to his father again. We are required to supervise children with “spends time with” parent, hence staff determined that [X] was safe in your company and proceeded to supervise [O] with his father”.
I also find the father to be an unreliable historian. In particular, his evidence in respect to his past use of alcohol is entirely unsatisfactory and I essentially reject it. Further reference will be made to this later in these reasons.
The father gave evidence in the same self-serving way observed in the reports: once he determined that something was a “fact”, or ought be viewed in a certain way then no other interpretation was, as far as he was concerned, reasonably open.
I also agree with Ms F’s assessment that the father had no understanding of the complexity of issues or the ramifications for the children in having their parents in significant conflict for virtually the whole of their lives. Again, many of my concerns with respect to his evidence emanate from his evidence about alcohol use to which I will refer below.

(d) Other Witnesses

The father called a Mr L in his case. I did not find his evidence helpful with respect to the issues I regard as central to my determination.
Affidavits were received from a Ms M and Mr G in the mother’s case. Again, their evidence does not weigh significantly on my mind in reaching an ultimate determination of the issues in this case.
Dr TW the general practitioner for both the father and the mother was subpoenaed to give evidence. His evidence is important, in the context of the issue of alcohol abuse and I will refer to it in some detail below.
Ms K is a former partner of the father’s. She was called in the mother’s case. Again, I regard her evidence as important on the issue of alcohol use by the father and it will also be referred to in some detail below.

FINDINGS:PARENTS, CHILDREN, ATTACHMENTS AND NEEDS

By reference to the evidence and reasons just discussed, I make the following findings:
·Neither child is of sufficient age, maturity or level of understanding to express “views” to which significant weight should attach about the parenting arrangements that are in their best interests or the relationship that exists, or should exist, between them and each of their parents;
·The children’s needs, attachments and the nature of their respective relationships with each of their parents are, though, of primary importance and should be gleaned primarily by reference to the expert evidence before the court;
·The mother has carried out the vast majority of parenting tasks and exercised the vast majority of parenting decisions in respect of the children for the bulk of their lives;
·O enjoys a significant attachment to both of his parents but his mother is his primary attachment figure;
·X is significantly attached to his mother and has, to use Ms F’s words, a “very ambivalent attachment to his father”;
·O has expressed a desire to spend more time with his father than he does at present and an opinion that time at the contact centre is boring. He is a bright, articulate child and I agree with Ms F that regard should be had to those wishes;
·The father is sincere in seeking to maximize his relationship with the boys – that is, he is not motivated solely or predominantly by a desire to harass or inconvenience the mother. Nevertheless, the father can, particularly when affected by alcohol, appear threatening and express himself in a threatening manner;
·The relationship between the children and their father is likely to suffer detriment if time spent with him continues to be supervised at a contact centre. That is particularly true of X whose relationship with his father is currently “ambivalent” or “somewhat tenuous”;
·There is a basis for concern that the father may have a limited ability to manage and meet the children’s needs for stimulation and that is particularly true of O who may be gifted intellectually and in any event appears to have a high need for stimulation and engagement;
·O is also strong-willed, energetic and apparently more exuberant than his brother and has a need for supervision accordingly;
·The father is an emotionally immature person who has displayed limited insight into the effect of his behaviours (particularly his drinking) on the children and with a limited capacity to prioritise his children’s needs ahead of his own;
·The mother is dismissive of the children’s relationship with their father and dismissive of the notion that he can, or should, play a meaningful role in their lives. The use of the father’s name (as distinct from the appellation “Dad” or similar) is an example of that attitude;
·The parties currently have a dysfunctional co-parenting relationship marked by no ability to communicate in any meaningful way about the children. There is no reasonable prospect that will improve in the future;
·Both parties are likely to have made their negative views of the other party known to the children – either explicitly or implicitly.

EVIDENCE AS TO ALCOHOL

The father’s position in respect of his alcohol use is, it seems, summed up by his oral evidence that “it hasn’t been a huge problem”.
Asked whether it was a problem when his general practitioner, Dr TW suggested to him, at about 10.00 in the morning, that he have a blood test because of concerns the doctor had, which test returned a blood alcohol reading of .271, the father said his alcohol use may have been a problem “that day” or “maybe that week”.
The father was clear that he did not consider that his alcohol use presented any risk at all to the children. That seemed, clearly enough, to be his view of his past alcohol use as well.
Paragraphs 123 and following of the mother’s affidavit of evidence in chief were put to the father. There it is alleged, in broad summary, that, as a result of abuse of alcohol, the father had been observed by the mother to have been in the same clothes for several days; that he was unable to get out of bed and that the carpets smelt of urine.
The father denied each of the specific matters put to him. I do not accept his denials. I suspect there may be some hyperbole in the claims by the mother, but I accept that, at that time (essentially August through November 2002) the father’s use of alcohol was beyond his control and had manifestations of the general type described by the mother.
The father admitted he had undergone one liver function test in 2004 and four in 2005 and thought his last was in June, 2006. That evidence occurs in the face of the earlier order of this court to which reference was earlier made. The results of none of those tests was before me in evidence save as given in general terms by Dr TW, to which reference will be made.
Notes from a case worker at the contact centre on 1 October 2004 and 9 July 2005 were put to the father. It was put that the former recorded the smell of alcohol on the father but no other observable signs of intoxication and it was put that the second records the father being “dishevelled” but with no observable signs of intoxication. The father’s response was that he had never been to the contact centre affected by alcohol – a claim supported (at least in terms of observable signs of intoxication) by the evidence from Mr J.

(a) Alcohol: Evidence of Dr W

I am conscious of the fact that Dr W was not cross-examined. But, his report is, in my view, nevertheless instructive for what the father said to him about his use of alcohol. It is also significant for the depth of concern held by the psychiatrist about the father’s use of alcohol.
Dr W says::
“In relation to his second admission in June 2002…he seems to have concluded from [the fact that he was admitted for five days and did not receive any sedation and did not experience withdrawal] that he could not have been drinking so heavily that he was addicted”.
“He told me he has only drunk on a social basis since the separation, by which he meant two or three beers a day generally although he said he might have six or eight if he was at a party”.
“[The father] said that he first saw Dr [P] at around the end of 2002. He said that his wife had gone with him but that Dr [P] had indicated that he did not have a drinking problem. I questioned this, indicating that Dr [P] had responded in writing to the referring doctor with the view that he did have a drinking problem. [The father] seemed unaware of this and indicated that he could not understand why Dr [P] would have written this at the same time as he was saying something different”.
The father has, it seems, continued to consult Dr P although details of when and how frequently are not in evidence. As I said earlier, Dr P was not a witness in these proceedings and no report from him was in evidence.
Dr W reports further:
“I attempted to make a number of enquiries about [the father’s] drinking. He questioned why he had to answers (sic) questions like these, whereas [the mother] does not have to answer questions of her mental health. He declared that he had addressed his alcohol problem a long time ago…”.
That report by Dr W has resonance in comments, and evidence, given by the father in these proceedings. At times, the father seemed to me to be genuinely perplexed as to why this court, and the evidence before it, should focus on alcohol abuse.
The father said on a number of occasions during the course of the hearing – including as part of asking questions of witnesses – the words “I’m not denying the alcohol”. Whilst it never became entirely clear what he meant by those words, it was abundantly clear, both from the evidence of Dr TW and the comments by, and evidence of, the father himself, that he did not mean by that comment that he accepted that he had a problem with alcohol abuse of the nature and extent expressed in the evidence of Dr TW, Dr W and the family report writers.
Dr W’s report also takes on significance by reason of a submission made by Mr Jordan, counsel for the mother, who submitted that Dr W provided a “blueprint” for how the father might satisfy the mother (and, indeed, this court) about the minimisation of risk associated with his alcohol abuse.
In particular, it was ultimately submitted on behalf of the mother, that the failure of the father to produce evidence of consistent sobriety, including evidence of medical tests (in particular liver function tests) to that effect, should result in adverse inferences being drawn against the father on this issue.

(b)Alcohol: Evidence of Dr TW

Dr TW is the father’s general practitioner and has been since the early 1990’s. His evidence was thoughtful, cogent and compelling. I accept it in its entirety.
Dr TW is of the view that the husband has had a significant problem with alcohol abuse which was apparent soon after they first met. It was apparent to Dr TW from the things said by the father and also by the mother (who is also a patient of the doctor) that the father’s drinking was a cause of problems within the relationship between the parties.
Significantly, Dr TW indicated that the father only periodically faced up to the nature and extent of his alcohol problem and that was done “under coercion”, for example “when he was confronted with data”. Examples of the data to which the doctor was referring were abnormal liver function tests and a particularly stark incident which occurred on about 19 July 2005.
On that occasion, the father presented to Dr TW’s surgery for treatment of an injured ankle. Dr TW was of the view that the father was affected by alcohol and convinced the father that he should undergo a blood test. That blood test revealed a blood alcohol concentration of .271 – that is over five times the legal limit.
The father suggested to Dr TW when cross-examining him that, in fact, the reading was .17. Dr TW looked squarely at the father and said “No, […], it was definitely .271 – five times the legal limit”. The father thereafter proceeded on the assumption that this was correct.
During his evidence in the witness box, I put to Dr TW opinions expressed by Ms P. Dr TW agreed with the opinions there expressed and confirmed that each of those opinions was entirely consistent with his own opinion of the nature, level and extent of the father’s alcohol abuse. They are in my view, important:
“55 It is the report writer’s opinion that [the father] continues to misuse alcohol and that he has a significant alcohol dependency. It appears that [the father] has used alcohol to manage stress over the years, and that he is resistant to treatment. It appears that at times [the father] has sought treatment to appease others. [The father] has demonstrated a position of persistent denial over the years and it is the report writer’s opinion that this suggests an inability or lack of motivation to change and excludes the possibility of successful management or treatment.
56 Given information that [the father] has a history of denial, and minimising his level of alcohol consumption and of hiding alcohol, it is not possible to determine his current level of alcohol consumption and pattern of drinking. This makes it difficult to determine what risk his drinking poses to his parenting, or to make any recommendations as to how any risks could be minimised. The report agrees with Dr [W’s] conclusions and recommendations made in his report for the court dated 16 April 2004, when he states that unsupervised contact is not appropriate in a case where the court determines that [the father] has a significant drinking problem which is susceptible to relapse. Dr [W] recommends that [the father] demonstrate at least six months of sobriety and that he undergo medical tests through a recognised alcohol rehabilitation program, on a continuing basis, designed to reveal covert drinking, and that this be associated with continuing psychiatric care”.
Dr TW gave evidence that the father had been admitted as an in-patient to a detoxification/rehabilitation centre, once in the early 1990’s and again in 2005. The doctor said that the later admission occurred as a result of the father being “confronted” with the blood test reading and determining to do something about it.
The doctor said the mother had expressed to him concerns about her safety and the safety of the children when the father was drinking and as a result of his abuse of alcohol. Dr TW said that he personally had seen the father “angry and threatening” when he had been drinking.
Dr TW was of the view that the risks to children presented by abuse of alcohol were that the person would not have good coordination; would have impaired judgment; was more prone to motor vehicle accidents and more likely to have lack of self-control and lack of care towards children.
There had been periods, of which Dr TW was aware, where the husband had abstained from alcohol but these were relatively short-lived and, ultimately, resulted in him continuing to abuse alcohol. Dr TW indicated that he had requested and received the results of a number of liver function tests. He said that “most were abnormal”. There were occasional improvements in those tests when the father had abstained from alcohol for a period of time.
I should add that the manner in which Dr TW gave his evidence was impressive. He was seated in the witness box only two or three metres from the father and looked the father squarely in the eye as he gave evidence of the nature and extent of the father’s alcohol abuse

(c) Alcohol: Evidence of Ms K

Ms K swore an affidavit on 6 December 2007 in the mother’s case. She was subpoenaed to give evidence.
Ms K could readily be described as a reluctant witness. The father described her as “hostile”. This comment was, as I apprehended it, directed to the fact that she is the former partner of the father and they separated in unhappy circumstances. Ms K and the father lived together from about March 2004 until January 2005.
In her affidavit, Ms K deposes to a particular incident which occurred in 2004 when she came home from work and found the two boys (then aged about four and two) on the road about a hundred metres from her home. She deposes to the fact that she found the father asleep on the lounge with an empty coffee cup beside him. She says she could smell alcohol on him.
In oral evidence Ms K said that the father lied to her about the extent of his alcohol use during their relationship. She said that he drank alcohol from coffee cups and she discovered the remains of alcohol in those coffee cups. After the relationship ceased she found “six squashed up wine casks” hidden behind the freezer. In her affidavit, she deposes to finding “eight or nine wine casks stuffed behind the fridge”.
Ms K deposes in her affidavit that, when she was at work:
“…[The father] would drink alcohol, mostly cask wine. He would drink it in a coffee cup and tell me it was coffee he was drinking. I knew it was wine or some form of alcohol because I washed the cups and also because I could smell alcohol on him. When I would challenge [the father] about this he would deny he had been drinking. I would say to him “have you been drinking” and he would say “no”. I became very irritated by his constant lying and the denial of his drinking”.
Ms K deposes to the relationship ceasing because of the father’s alcohol abuse and, specifically as a result of an incident occurring on a holiday when, at about 3.00am, she found the father “paralytic and hopelessly drunk” on the top floor of the pub where they were staying.
The father challenged the veracity of Ms K’s evidence based essentially on a number of details in her oral evidence which differed from her affidavit. These included the number of wine casks allegedly found to which I have earlier referred and also conflicting evidence given about the name of the town where the incident just described occurred.
Ms K became somewhat flustered and agitated when confronted by the father about details which he asserted she had wrong. She was, however, adamant about the incident described where the boys were on the road and the father was asleep on the couch. (That incident, too, involved a conflicting detail: the affidavit evidence suggests that the coffee cup beside the couch was empty; in oral evidence Ms K suggested it was half full).
I have considered the father’s claim that Ms K may be hostile to him or “biased” because of their former relationship. It is certainly true that she appeared to me to be highly reluctant to be involved in the proceedings. She told me, in effect, that she was sick of being involved; that she had been asked by each of the parties to give evidence and was reluctant to give evidence on behalf of either party.
I am not at all persuaded that either that factor, or the former relationship with the father or such differences as exist in the details challenged by the father in cross-examination affect the general veracity – or cogency – of Ms K’s evidence.
I listened carefully to her evidence and observed her carefully in the witness box. I thought she was a truthful witness doing her best, in stressful circumstances, to give the best honest answers she could.
In respect of the substance of the matters alleged by her – the continual drinking by the father despite her protests, his denial of drinking when he had been and the specific incident relating to the boys – I accept her evidence and find it unaffected by the discrepancies to which I have referred.

(d)Signs of Alcohol and Other Evidence

Each of Ms E, Ms P and Ms F record observations of the father which they link to the use of alcohol by him. Obviously, it needs to be observed that each such observation occurred in the context of preparing reports which the father must clearly have known were to be used for purposes relating to his care of the children (adoption of X in the case of Ms E and Family Court proceedings in the case of the other two women).
The observations included each noticing the father smelling of alcohol and, variously, a red face, “the shakes” and a dishevelled appearance. Mr J, too, refers to the father smelling of alcohol at contact changeovers. In the latter case, the father put the smell down to a form of alcohol-based rub “with a peculiar aroma” He maintained – at least in part – that as a reason for people smelling alcohol on him. I utterly reject his suggestion in that respect.
I have accepted the evidence of Dr W and no other evidence before me indicates that I should be dissuaded from finding that Dr W is correct when he opines that the father has “probably been a moderately heavy social drinker throughout his adult life but he has had episodes of binge drinking at times of stress…” and further that “it would appear that [the father] has been having a great deal of difficulty controlling episodic binge drinking for the past two and half years [i.e. from about late 2001 until April, 2004], yet he minimises or denies what appears to be sound corroboration of this pattern…”.
I have already referred to the father’s position with respect to alcohol: he points to a number of considerations and says, in effect, how could all this be possible if I was drinking at the level and frequency alleged by the mother.
Ms P is, in my view, undoubtedly correct when she says:
“…Given information that [the father] has a history of denial, and minimising his level of alcohol consumption and of hiding alcohol, it is not possible to determine his current level of drinking. This makes it difficult to determine what risk his drinking poses to his parenting or to make any recommendations as to how any risks could be minimised. …”
It is difficult for me to make findings as to frequency and quantity of the father’s drinking. That would be of greater concern if the fact in issue was that quantity or frequency. However, it is not. What is in issue is the best interests of these two children and the unacceptability or otherwise of any risk posed to them by the father’s drinking.
I will deal with this issue separately in these Reasons.

FINDINGS: ALCOHOL

In light of the evidence and reasons just discussed, I find in respect of the father’s use of alcohol;
·The father is likely to have been a very heavy user of alcohol for a very long period, including the vast bulk of the post-separation period;
·His use of alcohol impacted adversely on a post-separation relationship (with Ms K) and that relationship was marked by false under-reporting of his use of alcohol, his hiding alcohol and the end of that relationship came about essentially as a result of each;
·The father’s use of alcohol has in the past been beyond his control. He has required inpatient treatment for alcoholism;
·His current, and apparent past, insight into the problem that alcohol created for him in the past is, as reported to witnesses in these proceedings, extremely limited and out of touch with the reality of his situation;
·Despite concerns about his use of alcohol and its potential impact on parenting orders being made clear to the father, in orders made some years ago, and in a trial conducted last year, the father has failed to provide any independent evidence as to any steps he has taken to convince the mother and this court either that he does not have a problem with alcohol or that any earlier-perceived problem is under control or being contained;
·Specifically, the father has failed to undergo and produce results of liver function tests as ordered. However, in respect of liver function tests undertaken by his GP, Dr TW, “most have been abnormal”;
·The father has only limited control over his drinking and, generally, only when under some form of “coercion” or when confronted with hard data;
·Occasional attempts at sobriety have failed;
·It is unclear what, if any, treatment the husband is seeking from his psychiatrist Dr P, but the father appears to disavow the need for any such treatment to be directed to any drinking problem;
·Dr W’s view that the father is an episodic binge drinker is likely to remain true;
·It is highly likely that the father has had a significant drinking problem which was beyond his effective control for a significant part of the approximately five years since the parties separated.
In general terms, the evidence of each of Dr W and Dr TW which I have accepted (the former with the caveat addressed earlier) paint a picture of serious past alcohol abuse including in-patient treatment in respect of same; a pessimistic picture about change and a picture of extremely limited insight into, and acceptance of, the extent of alcohol abuse. The nature of that abuse is chronic and recurrent binging.

EVIDENCE SPECIFIC AS TO TIME AND BEST INTERESTS

Dr W was of the view that, if the court found that the father had “a significant drinking problem” and also that he is “in denial about this” – each of which I have found – then the court should not order unsupervised contact until sobriety was demonstrated.

Of course, at the time of that report, O and X were aged about 4 and 2 respectively.
Ms P was of the view that contact should occur at a contact centre “until such time as the father can prove that he is actively engaged in treatment for his alcohol dependency”.
The ultimate conclusions of Ms F have been referred to earlier in these reasons. As also noted earlier, Ms F, in oral evidence, expanded on those ultimate opinions, describing X’s relationship with his father as “somewhat tenuous”.
Specifically in respect of the issue of whether that relationship was likely to change if the current time arrangements continued at the contact centre, Ms F responded, in effect, that X needed greater time with his father to establish a more secure relationship.
It was put to Ms F that the father says that his relationship with O was, to his mind at least, deteriorating also as a result of time continuing to be spent at the contact centre. Ms F conceded that this was “quite possible”.
Whilst acknowledging that issues of risk arose because of her assessment of the father’s use of alcohol, Ms F was nevertheless of the view that, if reasonable satisfaction could be reached in respect of the risk, both children “clearly needed more time” with their father. She was of the view that the relationship between father and children could be strengthened and protected outside of the contact centre.
Asked about whether she had observed “any signs of alienation” in the children, Ms F responded that in her opinion there were no such signs but rather any reserve noticed in the children probably resulted as a function of the limited time spent between the father and the child.
Ms F was of the view that (assuming no finding of unacceptable risk) a regime which saw the father spending time with the children for about four hours or so outside of the contact centre building up to 9.00am to 5.00pm over a period of time was appropriate.
It is also important, I think, to observe in this context that, in Exhibit 1 (dated 15 November 2006), a number of other comments were made by Mr J whose independence as a reporter was not questioned. For example, Mr J notes that:
“[The father] attends on occasions with activities, food and drink for the children. [The father] empowers the children to choose activities. [The father] will also initiate and direct activities. [The father] appears to be careful [to] not over control and dominate the visits at the centre, allowing the children, choice, decision-making and spontaneity…
[The father] has a loud booming voice and mostly greets the children loudly with his arms open. Both children reciprocate happily and spontaneously. Both children initiate physical affection with [the father] during the visit. Conversation appears free flowing, mutually initiated and appropriate to age, development and venue….
The children appear very active, happy, they are polite with [the father] and others, at times they can present as self-determined…
The nature of [the children’s] relationship [with the father] appears spontaneous, warm, loving, happy and very active. Conversations are appropriate to age and personality. Although [the father] allows the children wide latitude when playing or during general activities, if required [the father] will respond to Oppositional Defiant behaviour with appropriate structure and discipline and encourages good social skills and manners. He encourages a respectful relationship, for example the sharing of toys and taking during activities or games.”
I have already said that I reject the criticism of Ms F and that, generally, I accept her evidence.
Whilst the other expert evidence before me is important and whilst I have accepted many aspects of it, it seems to me that Ms F’s evidence on this topic is more up to date; takes more account of the children’s current ages and levels of maturity; takes more account of the children’s current needs, and properly flags the competing risk to the children of the continuation of supervised contact.
Those considerations are more consistent with my own overall views of the evidence. On the whole of the evidence before me and given the ages of O and X now and the potential risk of detriment to the relationship between the father and the children of continuation of supervised contact, I am of the view that, if I can be satisfied that any findings as to risk emanating from alcohol abuse can be contained within acceptable bounds, the children need unsupervised time with their father.
Put another way – in a way, perhaps, more consistent with the statutory mandates - for the children to derive the assumed benefit from a relationship with their father, it is, in the circumstances of this case, likely to be “meaningful” only if spent away from the contact centre, if a consideration of any risk to the children can accommodate such a result.
Obviously enough, findings about any risk will also have a dramatic impact upon the quantity and frequency of any such time.

FINDINGS:TIME

For the reasons just discussed, I make the following findings with respect to the children’s best interests:
·If tolerably safe from harm or neglect, the children are likely to benefit from spending more time with their father than what they do at present;
·If tolerably safe from harm or neglect, the children are likely to benefit from spending time with their father away from a contact centre;
·If tolerably safe from harm or neglect, X, in particular, needs his relationship with his father to grow and develop;
·In particular, X’s relationship with his father is, at the moment, “somewhat tenuous”.

RISK

Writing extra-curially (20 AJFL 249 @ 254-5) the Honourable John Fogarty AM says this about the notion of risk:
“…But the reality is that all courts deal with issues of “risk” and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.
Risk is difficult to define in a way which is not ultimately circular. But it is an inevitable part of life at all its levels. It is inherently risky to breathe, eat, drink, walk, drive, work, invest and play. The world is full of different risks and consequences and everyone is prone to dangers. We confront varying levels of risk everyday. People frequently face potentially dangerous situations; not many live at home in complete isolation to avoid getting in harms way. Most people try to avoid what they perceive to be risk; some willingly take on high risk activities.
Risk involves two component; the degree of “likelihood” of the happening of an event, and the possible consequences (good or bad) if it does [cases and citations omitted]. Individuals in their assessment of some risks may focus more on one than the other of these components.
But at some point it usually becomes necessary for that person to make a judgment of the risk and whether it can/should be taken. Where the risk relates to a third person to whom one owes a responsibility, it is likely in the nature of things that the estimate will be conservative.
Risks are relative and usually involve trade-offs. Crossing the road with on coming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing the plane. Very much a balancing exercise of facts, experience and intuition, but essentially which risk carries the greater detriment (usually the car).
Then there is the common experience of a mother watching her child cross a road to go to school. The risk is seen as greater (although it may not be) because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult….
At times the courts and the legislature have attempted to give an indication of the content or quality of the risk – otherwise “risk” may mean any risk, however small or unlikely. Hence the use of adjectives such as “serious”, “grave”, “real”, “appreciable” and “unacceptable”.”
Here, the mother, in my judgment, plainly has good reason to be concerned about the father’s unsupervised care of the children. Equally, the mother has, in my judgment, a sound basis for those concerns manifesting in the desire to have the time between the children and the father supervised.
But, the question of orders which best promote the children’s bests interest is not answered solely by those matters (albeit that, among other things, “parental attitude” is a matter to be considered).
I have found that there are good reasons (absent unacceptable risk) for time to occur for periods, and in a manner, more extensive than those governed by the mother’s perception of risk (which is, of course, supported, in part, by other evidence before me).
The issue is, of course, not whether risk can be eliminated because that is rarely, if ever, possible. (If it was possible such a course of action would clearly be in any child’s best interests). Rather, the issue is whether orders which otherwise accommodate my findings as to the children’s best interests can be made but not expose the children to a risk which I consider is unacceptable.
I respectfully agree with the former Justice Fogarty’s statement (@261) that:
“… unacceptable risk in the High Court’s formulation [ in M v M (166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of “benefit to the child”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk”.
In submissions made by Mr Jordan on behalf of the mother, he argues that the risk of unsupervised contact is a risk that the court ought not take. He points to a number of considerations including the history of the husband’s alcohol abuse; (importantly) the history of denial of abuse of alcohol by the father; the failure to overcome that alcohol problem (or, to appropriately address it) and the risks to the care of the children presented by a person significantly affected by alcohol.
Mr Jordan argued that the court should be satisfied about alleviating risk only to the extent indicated by reliable evidence. He argues the father had the means to provide that evidence and has singularly failed to do so. He submitted that Dr W provided, in effect, “a blueprint” for the father as to what he should do in order to satisfy the mother - and this court – that he had his drinking under control. As observed earlier, the father has clearly failed to provide the liver function tests required by earlier court orders. Yet, within the same time frame, he has been convicted of driving with an excessive blood alcohol concentration (described as a “mid-range” offence implying, I was told, a reading between .08% and .11%.)
Mr Jordan argues additionally that, the earlier blood test undertaken by Dr TW which returned a blood alcohol concentration of .271 and the father’s insistence to Dr TW that he was not affected by alcohol show that the father is incapable of identifying when a risk might occur.
So, too, the evidence of Ms K is said to be of concern because the father consistently denied his alcohol use to her and on one occasion (the evidence in respect of which I have accepted) alcohol consumption led to lack of care or neglect by the father in that the children were playing on the street while he slept, smelt of alcohol and where a half-drunk cup of alcohol was present beside him.
The father has indicated that alcohol is not a problem for him to Dr W, Ms E, Ms P and Ms F and each of the last three of those people just named have smelt alcohol on him during a report process.
I am very cautious about attaching any significant weight to the smell of alcohol, “the shakes”, ruddy complexions and dishevelment to ground findings about the specific quantity or extent of the father’s current drinking. However, in my view, I can, in combination with my other findings on the whole of the evidence to which I have referred, use that evidence in an assessment of risk.
When assessing risk, I cannot ignore the consistency of the various reports to which I have referred and where and when the observations have occurred (for example during report processes the seriousness of which – and drinking as a focus of which - must have been known to the father).
In the instant context, I am particularly troubled by the very issue that troubled Dr W nearly four years ago: the father seems to have very little insight into the nature and extent of his past drinking problem – i.e. he seems to me to be “in denial” about same. There seems to me to be abundant evidence of a significant problem with alcohol in the past. The father simply can’t – or won’t - see that.
His failure to do so represents a risk to the children for the reason that the responsibilities of parenthood require a parent to know appropriate limits to the use of alcohol. The father’s lack of insight into the binge use of alcohol and his then patent lack of control over his drinking, represents a lack of insight on his part into the appropriate exercise of parental responsibilities and the boundaries of acceptable parental behaviour.
The father’s failure to comply with court orders which he clearly must have known were there to allow a monitoring of his drinking, exhibits not only a high-handed attitude consistent with what I have found to be his personality traits, but also a risk factor in itself. How might a court be satisfied that a monitoring process put in place by a court to assist in alleviating risk, if, in respect of a past monitoring process, there has been apparently flagrant non-compliance?
I am not prepared, as a result of the father’s self-representation and lack of sophistication to which I have earlier referred, to draw what might be described as a “pure” Jones v Dunkel inference. However, I do propose to use the absence of that evidence as a significant factor in my conservative (from the children’s perspective) conclusion about risk emanating from the father’s alcohol use.
So, too, the father’s attitude to any such process is, in my view, relevant to such an assessment. He told Ms F, when she asked if he would contemplate a parenting course, that “he didn’t see the need for him to ‘jump through hoops’ to see his kids”.
However, it is necessary to balance the nature and extent of any risk against not only any benefits to the children from additional time with their father, but, also, any other risks. This is because, respectfully adopting the Honourable John Fogarty’s words, “…in some cases a risk is “acceptable” when balanced against other factors …”.
In that respect, I have already found that the continuation of time with the father at a contact centre involves a risk; albeit a risk of a different type, namely, that a relationship between the children – and, in particular, a young child whose relationship with his father is “tenuous” – may flounder with consequent detriment to the relationship and the children.
It is, in my judgment, important to bear that in mind, particularly when assessing the benefit to the children of the most meaningful relationship with their father consistent with minimising risks.
I have already referred to the fact that the father asserts he is not a risk, either with respect to his use of alcohol or otherwise. Particularly in respect of the former, he refers to the fact that he has been in full time employment, saved money, met mortgage payments and sustained a relationship with Ms B.
He says, in effect, how could he have done all that and abused alcohol to the extent asserted or suspected by the mother. As he put it under cross-examination, in his view, his use of alcohol “has been blown totally out of proportion”.
In addition, the father points to the fact that there is no evidence before me that his employer has at any time raised concerns in respect of his alcohol use in the context of his employment.
In a similar vein, he says that, in the context of this case, no allegation has been made by the contact centre that his being affected by alcohol has impaired his capacity so as to cause concerns with respect to his exercising time with the children at that centre.
I have already said that he is supported in that respect by Mr J, the Case Manager at the contact centre. In a report signed by Mr J the issue of concerns about the father’s drinking were specifically addressed. He says:
“…there has been no reason or concern to not proceed with the visit or changeover. [The mother] has alluded to her concerns that [the father] drinks excessively and may on occasion drive. [The mother] has alluded to her concern on the effects on [the father’s] ability to provide general care for the children. On occasion [the father] has presented with a smell of alcohol about his person. This has been addressed with [the father] who suggests that he has an alcohol based rub and has that particular aroma. The contact staff are not trained in the clinical assessment to determine the legal standard of a person’s sobriety. We are obliged to assess if necessary client’s based on behavioural clusters addressing such areas as fine and gross motor skills, cognitive and speech skills and condition of eyes this also includes the aroma of a person drinking alcohol excessively. We also take into account the individual’s health issues if any, such as diabetes, brain injury etc. The assessment is not completed with the behaviour in isolation, but a cluster of behaviours and also questioning the individual. [The father] has not presented with any cluster of behaviours/indicators that have required staff to refuse a changeover of the children, or to cancel a visit”.
I have considered whether I should weigh in the balance the prospect that the father’s current partner, Ms B assists in alleviating risk in any way.
Ms B was not a deponent and did not give evidence. The father provided an explanation for that. Ms B is, I gather, profoundly deaf. According to the father’s oral evidence she also suffers from bi-polar disorder. This results in her suffering significant impairment. To use the father’s words: “as for basic life skills, she hasn’t got them”.
It is not necessary, given the father’s ultimate proposals, to examine the role which the father mooted for Ms B in the care of the boys in the event of his initial equal time shared care proposal. In the current context, what is significant in my view is the evidence of Ms P as to the change in account given by Ms B as to the quantity and timing of the father’s drinking and the manner in which that account to Ms P changed.
I take no comfort in the potential presence of Ms B at, or her participation in, time between the father and the children as a means of alleviating the risk perceived by me.

FINDINGS: RISK AND TIME

I am not persuaded that the factors outlined by the father and enumerated above lead to a conclusion that his drinking does not represent a risk to the children were he to have significant unsupervised time with them. On the whole of the evidence before me I find that, in those circumstances, there would be an unacceptable risk to the children emanating from the father’s likely abuse of alcohol.
Whilst unable to specify the exact quantity of alcohol currently consumed, or the frequency with which it is currently consumed, I consider the risk emanates from the totality of the evidence before me. In particular, I think there is a very high likelihood that the binge drinking problem identified by Dr W continues to afflict the father and I think there is a high likelihood that the father’s use of alcohol is barely controlled by him.

I consider, though, that the evidence indicates a measure of control by the father over his drinking or, more precisely, a measure of control over a level of drinking at which his capacity to care for the children and exercise the responsibilities of parenthood becomes unacceptably impaired.
I think that measure of control is most likely understood or explained by reference to a part of Dr TW’s evidence. The doctor gave evidence that it was only when the father was confronted with data or was under some form of “coercion” that he effected change. I consider that the father’s employment and time with the children under the scrutiny of the contact centre operate as a form of, as it were, coercion that allows the father to maintain a measure of control over the extent of his drinking.
Put in simple terms, in my judgment, the father is, as it were, able to “hold it together” for those periods when he knows significant scrutiny is being applied to his behaviour in general and his drinking in particular.
Conversely, I consider that the likely level of the father’s drinking presents a risk to the children in circumstances where the length of time and circumstances of time spent with them is such that I can be less confident that a reasonable degree of scrutiny is present.
It is for that reason that I am not prepared to countenance, for example, overnight time or time which extends for a period longer than about the working day.
Taking all of those matters into account, in my judgment, the children’s best interests require time spent with their father away from the contact centre but in circumstances where the time periods are relatively short and where a monitoring of the situation – independent of the father or his actions or inactions – exists. The latter can occur, in my view, if all changeovers occur at the contact centre where contact has taken place.
Orders along those lines will represent a change for the children. I consider that I should graduate that process so that, initially, periods of time are relatively short and build to longer periods to allow both children to adjust to that change.
I consider that time should, over a period of about 12 months, build to an entire day.
I also propose that a copy of my reasons and orders be made available to the contact centre and I intend to order that each of the parties do all things necessary to request the contact centre to take notes of the “cluster of behaviours” referred to by Mr J.
I am acutely aware that my findings as to an appropriate time regime have neither a review by this court built in to them nor contemplate further time (including, for example, overnight or holiday time). That omission is intentional. I am not persuaded that any benefit, or risk, to the children outweighs the risk to their care posed by such an order.
I am bound to consider whether it is preferable to make a time order which would be least likely to lead to the institution of further proceedings in relation to the child.
These parents have been litigating for many years. An end to litigation (and, more generally, parental conflict) is, without doubt in the best interests of these children.
If I make final Orders which do not provide for time with the children more extensive than that proposed, I acknowledge that there is the possibility of future proceedings. However, I cannot persuade myself that making interim orders which contemplate, as a certainty, further judicial process is in the children’s best interests or is otherwise warranted. Nor can I persuade myself that final orders which provide for time with the father to extend beyond that which I contemplate can be made without an unacceptable risk of harm to the children.
If I make final Orders along the lines indicated, each party will confront the need to establish a change of circumstances before the Orders are changed. Again, that is an intended effect of the Orders I contemplate. I particularly have in mind (but not exclusively) any change that might in the future be alleged by the father as to the nature or extent of the risk, found by me, that is posed by the father’s alcohol use.
In reaching these conclusions with respect to time, I have taken into account the primary importance of the children having the benefit of a meaningful relationship with their father but have determined that the nature, extent and manner of time I will order provides to the children the maximum meaningful involvement with the children by him consistent with my findings as to risk and the children’s best interests.

PARENTAL RESPONSIBILITY

If making a parenting order, the court must presume that it is in the best interests of the children for their parents to have “equal shared parental responsibility” of them.
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that (relevantly) the father has either engaged in abuse of the children (or either of them) or family violence or where it is in the bests interests of the children for that presumption to be rebutted.
Mr Jordan argues, principally as a result of the evidence contained at paragraphs 90 through 92 of the mother’s affidavit of evidence in chief, that I have reasonable grounds to believe that the father has engaged in family violence. I am not prepared to make that finding on the basis of the evidence contained in that affidavit - particularly given the (understandable) lack of attention paid to this issue during the course of the hearing.
The issue of whether the best interests of these children demand the rebuttal of the presumption requires further consideration.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as I order, each of the father and mother has parental responsibility for each of the children. A parenting order does not derogate from that save as is expressly provided.
Thus, absent specific orders, parents have equal responsibility for their children. But, in making a parenting order, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.
The Act (s.65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
A finding, then, that the parties are utterly incapable of doing so and that there is no reasonable prospect of them doing so in the future, would appear to lead to a conclusion that equal shared parental responsibility is contra-indicated in the best interests of the children and all the more so if it be accepted that high conflict is generally antithetical to the best interests of children.
Equally, though, an order for “sole parental responsibility” in favour of a party means that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children, save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s.65DAC and s.65DAE).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
In the sad mix of parenting cases which resist resolution and proceed to a hearing and which constitute the daily work of this court, post-separation parenting arrangements are highly likely to involve significant conflict, lack of co-operation and inability to communicate. Accordingly, the interrelationship between fundamental rights and the need for co-operation in the best interests of children will frequently be in issue.
There is little doubt that any such conflict ought be resolved in favour of an outcome which is seen to be in the best interests of the children but the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant.
There is no doubt at all on the evidence in this matter that the parties regard each other with distrust and have no ability whatsoever to communicate. I have already found that the mother is somewhat disdainful of the father. The mother has had the effective fulltime care of the children, including, in X’s case, for the whole of his life.
It seems to me that the greater the degree of mistrust, lack of communication, disrespect and dysfunction in the co-parenting relationship the greater the indication that an attempt for those parents to equally share the responsibilities (and, importantly, actively carry them out) is unlikely to be in the children’s best interests.
The Independent Children’s Lawyer submits that, in effect, there is no necessity for the parents to actively exercise the relevant duties responsibilities and the like and submits further that there is no evidence before me about decisions that haven’t or can’t be made by these parents. For the reasons just outlined, the terms of the Act in my view exclude the former proposition. In any event, the fact that no particular decision, right or duty has come to, as it were, a “flashpoint” is in my view not to the point.
When there is, as I find there is here, an utter incapacity to do any of those things now and, as I find, a very high likelihood that there will continue into the future to be a complete incapacity to do so, I can’t see how it is in the best interests of these children to oblige each of their parents to do so as an order for equal shared parental responsibility in respect of major long term issues would require.
It may be that, in cases such as that, a balancing of the considerations just mentioned may require, for example, an enumeration of those duties, rights, responsibilities and authorities which the best interests of the child require a party to relinquish or ameliorate or the making of some other order to accommodate that concern. I consider that this is such a case.
It will be clear from everything I have said that I consider the best interests of O and X require the rebuttal of the presumption of equal shared parental responsibility. Equally clearly, emerging from the preceding reasons, I consider that I should make orders which take account of the fact that the mother has, in fact, made the significant parenting decisions for these children historically and my findings that the father’s capacity to do so has been impaired in the past and is likely to be impaired at times now and in the future. Yet, those same orders should, in my view also take into account, if possible, my concerns about the disdain in which the mother holds the father and her negative view about his meaningful involvement in their future lives.
I propose to attempt to balance those considerations by ordering that the mother have sole parental responsibility but she shall give the father written notice of any decision about any major long term issues (as defined in the Act) in respect of the children. Again, a concern about future litigation looms large, but I nevertheless conclude that those orders are appropriate.
The ICL submits I should injunct the mother from calling the father by his first name as opposed to “Dad” or similar. I do not propose to make orders to that effect.
First, that issue was not specifically joined between the parties on their respective “cross-applications”. Although certainly raised during the hearing as an issue – at least in cross-examination - I am not entirely comfortable making an order in those circumstances.
Secondly, there is no communication between these parents. The order would, in practical terms, be extremely difficult – if not impossible – to monitor or enforce. It is not difficult to imagine the circumstances in which “evidence” of breach might be sought – including, repugnantly, most likely through reports of the children. The prospect of a further round of enforcement applications looms large with likely detrimental effects on the children and yet further erosion of such vague vestiges of future parental co-operation as optimism might hope for.
Finally, such an issue is, in circumstances such as the present, best left, in my view, to the practical application of parental responsibility. The mother has heard the evidence of Ms F as to the potential for detriment to be caused to the children as a result of calling their father by his first name.
For the sake of completeness in respect of parental responsibility, I should also record that, by reason of the evidence, and conclusions reached in these Reasons, even were I persuaded to make an order for equal shared parental responsibility, the facts and circumstances of this case indicate clearly that, in the best interests of these children, I would not make either an equal time order or a substantial and significant time order.
I order accordingly.

I certify that the preceding two hundred and seventy-one (271) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:
Date: 22 February 2008

[2008] FamCA 95

22 February 2008

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