PEARCE & PEARCE

[2019] FamCA 871

FAMILY COURT OF AUSTRALIA

PEARCE & PEARCE [2019] FamCA 871

FAMILY LAW – PARENTING – Where the children live with the wife – Where the children’s time with the husband was the subject of disputation – Family violence –Alcohol use – Expert opinion as to CDT testing – Where the presumption of equal shared parental responsibility does not apply – Wife to have sole parental responsibility in relation to health and otherwise equal shared parental responsibility – Children to spend increasing time with the husband.

Australian Passports Act 2005 (Cth) s 11(2)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Family Law Act 1975 (Cth) ss 60CC, 61DA, 65AA, 65DAA, 106A

Doherty & Doherty [2016] FamCAFC 182

APPLICANT. Mr Pearce

RESPONDENT. Ms Pearce

INDEPENDENT CHILDREN’S LAWYER. Legal Aid NSW

FILE NUMBER. SYC 2654 of 2017

DATE DELIVERED. 28 November 2019

PLACE DELIVERED. Sydney

PLACE HEARD. Sydney

JUDGMENT OF. Ryan J

HEARING DATE. 5, 6 ,7 & 8 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT. Mr Scarlett

SOLICITOR FOR THE APPLICANT. Hudson Law

COUNSEL FOR THE RESPONDENT. Ms Eldershaw

SOLICITOR FOR THE RESPONDENT. Barkus Doolan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER. Mr Greenaway

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER. Legal Aid NSW

Orders by consent

Definitions

1. That in these Orders:

   (a)       “Act” means the Family Law Act 1975 (Cth);

   (b)       “Children” means X and Y;

   (c)“X” means X born … 2010; and

   (d)“Y” means Y born … 2013.

2. That all prior parenting orders in these proceedings be discharged.

Parental responsibility

1. That the wife has responsibility for making decisions for the day to day care of the children when the children are living with her.

2. That the husband has responsibility for making decisions for the day to day care of the child when the children are spending time with him.

Live with

1. That the children shall live with the wife.

Special occasions

1. Notwithstanding any other order to the contrary, that the children spend time with the wife as follows:

   (a)from 10.00 am on 24 December 2019 to 10.00 am on Christmas Day in 2019 and each alternate year after that;

   (b)from 9.00 am on Good Friday 2020 to 5.00 pm on Easter Monday in 2020 and each alternate year after that;

   (c)if  Mother’s Day occurs on a weekend where the children would be in the husband’s care pursuant to an order of the Family Court, then the children shall:

   (i)spend time with the wife from 3.00 pm on the Friday immediately prior to Mother’s Day until 9.00 am on the Monday immediately after Mother’s Day; and

   (ii)in 2020, spend time with the husband from 9.00 am on Saturday to 5.00 pm on Sunday on the weekend immediately following the Mother’s Day weekend in lieu of the Mother’s Day weekend;

   (iii)in 2021 and thereafter, spend time with the husband from 3.00 pm on Friday to 9.00 am on Monday on the weekend immediately following the Mother’s Day weekend in lieu of the Mother’s Day weekend.

   (d)on the wife’s birthday as agreed between the parties but failing agreement, from 3.00 pm to 6.00 pm if the day occurs on a school day or from 9.00 am to 5.00 pm if the day occurs on a non-school day.

2. Notwithstanding any other order to the contrary, that the children spend time with the husband as follows:

   (a)from 10.00 am on 24 December 2020 to 10.00 am on Christmas Day 2020 and each alternate year after that;

   (b)from 9.00 am on Good Friday 2021 to 5.00 pm on Easter Monday in 2021 and each alternate year after that;

   (c)if Father’s Day occurs on a weekend where the children would be in the wife’s care pursuant to an order of the Family Court, then the children shall:

   (i)spend time with the husband:

   A.in 2020, from 9.00 am on the Saturday before Father’s Day to 5.00 pm on Father’s Day; and

   B.in 2021 and thereafter, from 3.00 pm on the Friday immediately prior to Father’s Day until 9.00 am on the Monday immediately after Father’s Day; and

   (ii)spend time with the wife from 3.00 pm on Friday to 9.00 am on Monday on the weekend immediately following the Father’s Day weekend in lieu of the Father’s Day weekend.

   (d)on the husband’s birthday as agreed between the parties but failing agreement from 3.00 pm to 6.00 pm if the day occurs on a school day or from 9.00 am to 5.00 pm if the day occurs on a non-school day.

Changeover

1. Except as otherwise agreed by the parties in writing:

   (a)when changeover occurs at 3.00 pm or at the conclusion of school, changeover shall occur at the children’s school unless a child is not attending school on such a day in which case Order 8(b) below, shall apply for that child; and

   (b)for all other changeovers, the husband shall collect the children from the wife’s residence at the commencement of their time with him, and the wife shall collect the children from the husband’s residence at the conclusion of their time with him.

Communications

1. That either party shall be at liberty to communicate with the children by telephone and Facetime between the hours of 6.00 pm and 6.30 pm on each Tuesday and Thursday that they are in the other party’s care and for the purpose of this Order, the parent with whom the children are living or spending time with shall ensure that the children are afforded privacy when communicating with the other parent.

2. That each parent shall cause the children to attend all school and regular extra‑curricular activities, including weekend sport at times the children are in their care.

3. Each party shall notify the other of all changes to his/her residential address, mobile telephone number(s), landline telephone number(s) and email address(es) within twenty-four (24) hours of all changes to the same.

4. That the parties notify each other as soon as practicable in the event of any serious illness or injury that requires medical intervention by a doctor or hospital concerning the children or either of them whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any such authority and direction necessary to enable the other party to obtain all necessary information concerning the child from such medical practitioner, health service provider or institution.

Passports

1. Within seven (7) days of being requested to do so, the parties will do all acts and things and sign all documents necessary to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act2005 (Cth) (“Passports Act”)) to enable the children or either of them to be issued with an Australian travel document.

2. That in the event that a party refuses or neglects to sign any document necessary to issue the children or either of them with an Australian travel document, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Passports Act give consideration to issuing an Australian travel document pursuant to section 11(2)(a) of the Passports Act.

3. Both parties do all acts and things and sign all necessary documents within seven (7) days of being requested to do so to ensure that the children retain their Australian and British citizenship and maintain current passports for both countries and the father and the wife shall equally meet the costs of obtaining and/or renewing the passports.

4. Either party be permitted to take the child out of the Commonwealth of Australia and in relation thereto:

   (a)the occasions on which the travelling parent takes the children overseas be during that parties’ school holiday period pursuant to these Orders or at such other times as the parties may agree in writing;

   (b)the party taking the children out of the Commonwealth of Australia to give the other party as much notification as possible of the intention to take the children out of the Commonwealth of Australia and in any event will give the other party not less than twenty-eight (28) days’ written notice of such intention;

   (c)the party taking the children out of the Commonwealth of Australia will furnish to the other party an accurate itinerary to include the departure date and return date, the country or countries the children will be travelling to, the appropriate dates on which the children will arrive and depart each country and a telephone contact number and address at which the children can be contacted in each country;

   (d)the travelling parent will facilitate the other parent having reasonable telephone/Skype/email communication with the children whilst they are away;

   (e)the country or countries the children will be travelling to shall be a party to the Hague Convention on the Civil Aspects of International Child Abduction.

5. Provided that the travelling party complies with Order 16, the other party shall do all things and sign all documents necessary including signing any consent letter which is required for travel outside of the Commonwealth of Australia within seven (7) days of the travelling party requesting that consent letter or document be signed by the non-travelling party.

6. That save for periods when each of the parties are travelling overseas with the children, the wife will retain the children’s passports and the husband will ensure that the children's passports are returned to the wife within three (3) days of the husband returning to the Commonwealth of Australia and the wife shall ensure that she complies with any request of the husband to make the children's passports available prior to the travel for the purpose of any prior visa application.

Injunctions

1. Each party is and be restrained by injunction from:

   (a)       physically chastising or disciplining the children;

   (b)making critical or derogatory remarks in relation to the other parent or member of that parent’s family in the presence or hearing of the children or causing or encouraging any other person to do so;

   (c)discussing their Family Court proceedings or any criminal or ADVO proceedings to which they have been a defendant, victim or witness in the presence or hearing of the children or causing or encouraging any other person to do so; and

   (d)discussing any issues concerning the breakdown of the parties’ marriage with the children or in the presence or hearing of the children or causing or encouraging any other person to do so.

General

1. In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then the Registrar of this Court shall be appointed pursuant to section 106A of the Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

IT IS FURTHER ORDERED:

1. That the wife have sole parental responsibility in relation to the each of the children’s health needs subject to Orders 22 and 25 of these orders.

2. The wife shall keep the husband informed of all intended decisions relating to the children’s health and shall promptly inform him of all appointments relating to each of the children with each practitioner and any intended practitioner.

3. The wife shall authorise each medical practitioner upon whom each of the children attend, to permit the husband to attend upon and to be provided with copies of all reports and information to which the wife would be ordinarily entitled to receive and for the purposes of such authorisation this order shall be sufficient.

4. Each party shall promptly advise the other in the event of either or both of the children having a medical emergency or illness which requires hospitalization, when the children or either of them are in their care.

5. The wife shall provide to the husband the name and details of the treating general practitioners upon whom each of the children attend, and the husband shall other than in emergencies, arrange for the children to attend upon such practitioner if and when they require medical treatment when in his care.

6. Other than in relation to each of the children’s health needs, the parties shall have equal shared parental responsibility for each of the children.

7. That from the date of these orders until 12 January 2020, the children spend time with the husband (as reflected in the interim orders made by consent on 8 November 2019) as follows:

   (a)       each Sunday from 9.00 am to 5.00 pm (omitted), save for 5 January 2020;

   (b)       on 25 December 2019 from 10.00 am to 5.00 pm;

   (c)       on 26 December 2019 from 9.00 am to 5.00 pm;

   (d)       on 28 December 2019 from 9.00 am to 5.00 pm;

   (e)       from 9.00 am on 29 December 2019 to 5.00 pm on 30 December 2019;

   (f)       on 9 January 2020 from 9.00 am to 5.00 pm;

   (g)       on 10 January 2020 from 9.00 am to 5.00 pm; and

   (h)       from 9.00 am on 11 January 2020 to 5.00 pm on 12 January 2020.

8. Thereafter the children shall spend time with the husband as follows:

   (a)commencing 18 January 2020, each alternate weekend from Saturday 9.00 am until the following Sunday at 5.00 pm;

   (b)at the expiration of the time pursuant to Order 28(a) above and, commencing 17 July 2020, each alternate weekend from Friday after school until the following Monday before school (or Tuesday if the Monday is a public holiday);

   (c)during the short school holidays in 2020 from 9.00 am on the first Monday of such period until 5.00 pm the following Thursday at 5.00 pm such period to coincide with the husband son Z being Australia and by agreement and failing agreement during the first week of each such holiday period;

   (d)for one half of the 2020/2021 Christmas school holidays as agreed between the parties in writing no later than 1 November 2020 and failing agreement in block periods of no more than seven (7) consecutive nights with the children spending the second and each alternate block period with the husband;

   (e)during the Christmas school holiday period commencing 2021/2022, for one half of each such period as agreed in writing no later than 1 November in any given year and failing agreement for the first half in 2021/2022 and the second half in 2022/2023 and alternating each year thereafter;

   (f)on the children’s birthdays, on school days from after school until 6:30 pm in years ending in an even number and for the same time the day following their birthdays in years ending in an odd number; and

   (g)at other times by agreement.

9. Notwithstanding any order to the contrary, if the children’s birthday/s falls on a weekend, they shall spend three (3) hours with the parent who does not have their care that weekend, at times nominated no less than fourteen (14) days hence by the parent who has the children in her/his care that weekend.

10. Commencing February 2020, the children’s weekend time with the husband pursuant to Orders 28(a) and 28(b) be suspended during school holidays.

11. If the children have spent the last week of a school holiday with the husband, alternate weekend time with him will resume on the second weekend following the commencement of the school term, otherwise on the first weekend.

12. The husband is restrained from consuming alcohol when the children are in his care and for twelve (12) hours beforehand.

13. That pursuant to section 65DA(2) and section 62B of the Act, 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 those particulars are included in these orders.

14. Within twenty-eight (28) days the husband provide the wife with such of the children’s original birth certificates and citizenship certificates as are in his possession.

15. Within three (3) months the wife pay the costs of the Independent Children’s Lawyer of and incidental to these proceedings in the amount of $6,325.

16. Within three (3) months the husband pay the costs of the Independent Children’s Lawyer of and incidental to these proceedings in the amount of $6,325.

17. All outstanding parenting applications are otherwise dismissed.

Note. The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pearce & Pearce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER. SYC 2654  of 2017

Mr Pearce

Applicant

And

Ms Pearce

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Mr Pearce (“the husband”) and Ms Pearce (“the wife”) are the parents of two children, X, who is nine years of age, and, Y, who is six years of age (“the children”).  The parties agree that the children should continue to live with the wife and that, in significant respects, they should have shared parental responsibility for the children.  They also agree that it is in the best interests of the children for them to have a meaningful relationship and unsupervised time with the husband.  However, the circumstances and conditions under which the children would spend time with the husband have been and remain the subject of considerable disagreement.  It is the determination of this issue and aspects of parental responsibility which is the focus of this hearing.  Although the dispute might seem small, it reflects parents who have come from polarised extremes as to what each said was best for the children.  The fact that the parties needed expensive litigation and assistance from an array of lawyers and medical specialists to reach this point is telling and demonstrates that as far as possible, the orders must limit the scope for further disputation.

The proceedings

1. The parties presented a large volume of evidence on the basis that all the contentious issues would require determination.  However, because many issues were resolved, the trial focused on matters germane to the remaining issues.  The same approach will be adopted in these reasons and the remaining issues will be determined in the context of what has been agreed.  That agreement (Exhibit R) is embodied in consent orders incorporated in these reasons

2. An Independent Children’s lawyer (“ICL”) was appointed to represent the interests of the children.

The Husband

1. The husband commenced proceedings in 2017 and at trial, moved on his Further Amended Initiating Application filed on 1 November 2019.  In closing addresses, he presented a Minute of Proposed Orders (Exhibit D) which, when read in conjunction with the submissions made on his behalf, means he proposes that the parties have equal shared parental responsibility for Y and that the issue raised by the wife concerning parental responsibility in relation to X’s health can be treated as unopposed.  He agrees that the children should live with the wife and he wants to commence regular overnight time with them on 27 January 2020.  In relation to school term, he seeks each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday and from 22 July 2020 that the alternate weekends continue until to 9.00 am Monday (or Tuesday if the Monday is a public holiday).  School holidays are similarly graduated so that for the first two end of term holidays the children would be with him for four consecutive days and thereafter for one half. Provision is made for contact on the children’s birthdays from 3.00 pm to 7.00 pm if on a school day and from noon to 5.00 pm if it falls on a non-school day.

1. The husband has a child from a previous marriage, Z who lives with his mother in the United Kingdom.  Z spends time with the husband in Australia and in Europe and the United Kingdom when the husband visits.  Orders are in place which address the husband’s time with Z.  Z will be visiting Australia between 22 December 2019 and 2 January 2020 and for three weeks during the British 2020 summer school holidays.  From when Z is 16 years of age, he will spend time with the husband as the boy wishes.  When Z is in Australia during school holidays, the husband wants the children to be with him. Conceptually this is agreed as, at the end of the trial, are the arrangements for the children to spend time with the husband next month.

The Wife

1. The wife relied on her Amended Response to Initiating Application filed on 23 January 2018 albeit, the orders she seeks are set out in a Minute of Order submitted at the close of evidence (Exhibit E).  The wife seeks sole parental responsibility for major long-term decisions concerning the children’s health and otherwise, that the parties have shared parental responsibility and in this respect, she agreed to the orders sought by the ICL.  In relation to the children’s time with the husband, she proposes a staged regime for unsupervised time which would culminate in the children spending alternate weekends with him during school term from after school Friday (or 3.00 pm) until 9.00 am the following Monday (or Tuesday if Monday is a public holiday), for one week during the terms 1, 2 and 3 school holidays and, for one half of the term 4 school holidays as agreed, and failing agreement, in block periods of no more than seven consecutive nights.

2. The wife is concerned about the children’s safety in the husband’s care, particularly because of what she says is his heavy alcohol use and angry behaviour.  X has various health issues and the wife is particularly concerned about the husband’s capacity to manage their son’s behaviour without resorting to inappropriate physical discipline.  These concerns are not new and have informed the wife’s cautious approach to the husband’s time with the children post‑separation, which has been limited and supervised.  Until midway through final addresses, she proposed the continuation for six months of carbohydrate deficit transferrin (“CDT”) testing.  The wife also proposed an order  but in the end abandoned) that the husband completes a 12 week anger management course such as Life Support as a precondition to his time with the children extending to overnight time.

The Independent Children’s Lawyer

1. In relation to final orders, the ICL proposed the orders (Exhibit I) set out below as those which it is submitted promote the best interests of the children.   With some small variations, I agree with the ICL’s proposals.

   1.That the children, [X] born … 2010 and [Y] born … 2013 live with the [wife].

   2.That the wife have sole parental responsibility in relation to the each of the children’s health needs subject to order three (3) herein.

   3.The wife shall keep the husband informed of all intended decisions relating to the children’s health and shall promptly inform him of all appointments relating to each of the children with each practitioner and any intended practitioner.

   4.The wife shall authorise each medical practitioner upon whom each of the children attend, to [permit the husband to] attend upon and to [be provided] with copies of all reports and information to which the wife would be ordinarily entitled to receive and for the purposes of such authorisation this order shall be sufficient. 

   5.Each party shall promptly advise the other in the event of either or both of the children having a medical emergency or illness which requires hospitalization, when the children or either of them are in their care.

   6.The wife shall provide to the husband the name and details of the treating General Practitioners upon whom each of the children attend, and the husband shall other than in emergencies arrange for the children to attend upon such practitioner if and when they require medical treatment when in his care.

   7.Other than in relation to each of the children’s health needs, the parties shall have equal shared parental responsibility for each of the children.

   Time

   8.        The children shall spend time with the husband as follows:

   a.For a period of 6 months commencing 18 January 2020, each alternate weekend from Saturday 9am until the following Sunday at 5pm;

   b.At the expiration of the time pursuant to order 9 (a) and commencing 17 July 2020, each alternate weekend from Friday after school until the following Monday before school;

   c.During the short school holiday vacation periods in 2020 from 9am on the first Monday of such period until 5pm the following Thursday at 5pm such period by agreement and failing agreement during the first week of each such holiday period but during which time order 9(a) shall be suspended;

   d.During the Christmas school vacation period commencing 2020/2021, for one half of each such period by agreement and failing agreement for the first half in the period 202[0]/2021 and then each alternate year thereafter but subject to orders 9(f) and 9(g);

   e.        On 25 December 2019 from 12 noon until 5pm;

   f.Thereafter, commencing 2020 from 10am on 24 December until 10am on 25 December and then each alternate year thereafter;

   g.In 2021 from 10am 25 December until 10am 26 December and then each alternate year thereafter;

   h.Notwithstanding these orders, the children shall spend Father’s Day weekend with the father from after school Friday until before school Monday’

   i.In the event that the children are not with the [wife] on Mother’s Day pursuant to these orders, the [husband’s] time with the children on that weekend shall be suspended.

   j.         At other times by agreement.

   k.Each party shall be at liberty to telephone/face time the children each Monday and Thursday nights when they are not in their care, and each party shall do things reasonably necessary to ensure that the children and each of them have privacy during such telephone/face time calls.

   9.For the purposes of facilitating the orders relating to time other than on school days, the party with whom the children are then with, shall cause the children to be delivered to the other party at their residence for the commencement of time, and the other party shall then cause the children to be returned at the end of such time.

   [Restraints]

   [10]. That the husband be and is hereby restrained from consuming alcohol during all periods of the time the children spend with him and for a period of 12 hours prior to such time.

   [11].That the husband and the wife be and are each hereby restrained from physically chastising or disciplining the children or permitting any third party so to do.

   (Proposed Minute of Orders by the Independent Children’s Lawyer)

Background facts

1. Some background facts are needed to provide context to the matters in dispute.

2. Each of the parties was born in 1975 and are now 44 years of age.

3. The husband’s son Z, was born in 2005.

4. It would seem that the parties met when the husband was living in the United Kingdom (where the wife was born) and they commenced living together in either April 2008 (according to the wife) or April 2009 (according to the husband).  They married in 2010.

5. X was born in 2010.  Following X’s birth, the wife took nine months parental leave before returning to work full‑time.  A full‑time nanny was engaged to assist with the care of X.  The nanny arrived as the wife left for work and departed on her return.  Each party claims to have been primarily responsible for X’s care prior to the family’s departure for Australia, an issue which was not explored in cross‑examination.  Irrespective of who was primarily responsible for X’s care, there is no dispute that from when he was born and until the family moved to Australia, each of the parties was intimately involved in the child’s life.

6. The parties and X moved to Australia in July 2013 where they have lived ever since.

7. Y was born in 2013.  The wife took 12 months parental leave and in that period both parties were at home and involved in the children’s care.  When the wife returned to work, two nannies were engaged, one to care for the children during the day and the other from 6.00 pm until one of the parties returned from work.  Again, there is disagreement about which of the parties was primarily responsible for the care of the children (over and above that provided by the nannies).  I was unable to come to a conclusion about that issue but am satisfied that following Y’s birth, both parties were intimately involved in the children’s lives and contributed to their care.

8. X commenced school in 2016.

9. The husband assaulted the wife on 22 October 2016 and 5 November 2016.  The husband was charged with two counts of common assault arising from those incidents on 10 November 2016.  The parties give different versions as to precisely what took place.

10. On 10 November 2016, on the application of Police, a Provisional Apprehended Violence Order was made against the husband for the protection of the wife.  In addition to the mandatory orders, the husband was restrained from approaching the wife within 12 hours of consuming alcohol or illicit drugs.

11. The provisional order became an interim order on 16 November 2016.

12. The parties separated in December 2016 and the wife left the family home with the children, who were then six and three years of age.  Since separation, the wife and children have lived in rented accommodation in the same suburb as the family home, where the husband has remained in occupation.

13. In the weeks following separation, the parties and children had a number of outings together and a few days at the coast and boating.  It is the wife’s evidence that on 5 January 2017, as the family was packing up from their boating trip, the husband smacked X which caused bruising.  The wife reported the incident to Police and on 11 January 2017, on their application, the Interim Apprehended Violence Order was varied to include X as a person in need of protection.

14. This seems to have been a turning point in the parties’ ability to communicate and cooperate in relation to the children’s time with the husband.  In essence, there was an impasse with the wife insisting that supervision was needed for the children to be safe with the husband which the husband refused to accept. Thus, contact by telephone and FaceTime was the only way that the children had contact with him.

15. The husband commenced these proceedings on 4 May 2017.

16. Following a defended hearing, on 26 May 2017, the husband was convicted on two counts of common assault arising from the October and November 2016 incidents referred to earlier.  In relation to the first incident, he was placed on a good behaviour bond and he was fined in relation to the second.  The same day, a further Interim Apprehended Violence Order was made against the husband for the protection of the wife and X.  In addition to the mandatory orders, the husband was restrained from attending any place where the wife or X live or work.  The inclusion of X in the order was contentious and that issue was set down for hearing on 14 July 2017.

17. On 14 July 2017, the Interim Apprehended Violence Order was made final qua the wife and the application for X to be included on the order was dismissed.

18. The husband spent time with the children on the day before Y’s birthday in 2017 which was facilitated by mutual acquaintances, Mr and Ms B.  This took place at the family home and both children told the husband they miss him.

19. In addition to the Bs, the wife proposed other mutual acquaintances to supervise as well as Ms C and Mr C, the husband’s aunt and uncle.  In the event, the husband’s aunt and uncle were the only available supervisors and thereafter, he had irregular and limited supervised time with the children.

20. The husband appealed against the convictions and sentence. His conviction appeals were dismissed on 3 August 2018 and the sentence appeals were upheld. The sentences were set aside and pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a conviction was recorded on each count and the proceedings were disposed of without imposing any other penalty (Exhibit M).

21. On 17 April 2019, interim orders were made for the children to live with the wife and spend supervised time with the husband from 3.30 pm to 6.30 pm on Wednesdays and noon until 5.00 pm on Saturdays.  By reason of the children’s commitments, Saturdays were inconvenient and the parties agreed that the children would see the husband on Sundays.  This generally occurred but there were occasions when the wife wrongly refused contact and instances when the unavailability of supervisors meant that the children did not see the husband in accordance with the orders.

22. The last occasion of contact was on 28 July 2019.  This was a special occasion as it was the first time that the children met their new brother, W.  W was born in mid-2019 and is the husband’s son by his then partner Ms D.  Unfortunately, the husband’s aunt and uncle were unable to continue supervision and thus, once again, face‑to‑face contact between the children and the husband broke down.

23. On 30 August 2019, by agreement, the interim orders were varied so as to include Ms D as a supervisor.  However, on 14 October 2019, the husband and Ms D separated and she has not supervised his time with the children, albeit he and the children have continued to see each other via FaceTime.

Interim Consent Orders

1. After much toing and froing, the parties presented arrangements to govern the commencement of unsupervised time and arrangements over this Christmas period.  Thus, by consent, interim orders were made on the last day of the hearing as follows:

   1.That except as otherwise agreed between the parties in writing, that the children spend time with the [husband] as follows:

   1.1each Sunday from 9.00 am to 5.00 pm commencing 10 November 2019, save for 5 January 2020;

   1.2on 25 December 2019 from 10.00 am to 5.00 pm;

   1.3on 26 December 2019 from 9.00 am to 5.00 pm;

   1.4on 28 December 2019 from 9.00 am to 5.00 pm;

   1.5from 9.00 am on 29 December 2019 to 5.00 pm on 30 December 2019;

   1.6on 9 January 2020 from 9.00 am to 5.00 pm;

   1.7on 10 January 2020 from 9.00 am to 5.00 pm; and

   1.8from 9.00 am on 11 January 2020 to 5.00 pm on 12 January 2020.

The main issues in dispute

1. As will be apparent, the main issues in dispute are:

   ·whether the parties  should have equal shared parental responsibility on all issues or whether the wife should have sole parental responsibility as to the children’s health and the parties have joint parental responsibility as to the balance;

   ·the pace at which time should be graduated in school holidays to half the holidays (at the end of term 3, 2020 per the husband’s proposal or, over 12 months per the wife’s proposal) and the structure of the Christmas school holidays; and

   ·the pace at which alternate weekends during school terms should extend from 3.00 pm Friday to 9.00 am Monday.

Single expert report

1. Dr E, who is a child, family and adult psychiatrist, was appointed as the Court’s expert to investigate and report on the family.  A Single Expert Report was prepared and dated 9 July 2019 and a further Supplementary Report was prepared and dated 14 August 2019.  In his report, Dr E recommended the following:

   1.        The children remain in the [wife’s] primary care.

   2.        The current supervision of contact be discontinued.

   3.For the [husband’s] contact with the children to be increased to alternate weekend contact, including one overnight stay. After 12 months, this could be increased to two nights. There should be a gradual implementation of holiday contact to enable the children to attend with each parent for half the school holidays. The [husband] should undertake to not drink alcohol within 12 hours of the children being placed in his care.

   4.Both parents should undertake to not denigrate the other parent or members of their extended family.

   5.The children should attend a single General Practice. Both parents should be notified of referrals for specialist medical care. Should there be a disagreement regarding this, the [wife] should be authorised to implement recommended medical treatment.

   6.The use of Our Family Wizard as a co-parenting tool to assist in effective communication regarding the children's residential arrangements and activities.

   (Report of Dr E dated 9 July 2019, pp.31-32)

2. It is Dr E’s opinion that the children will benefit from maintaining a meaningful relationship with each of their parents.  The children were identified as strongly aligned to the wife, with whom they have a close and connected relationship.  The wife was assessed as having appropriately attended to the children’s developmental needs and as their primary carer post‑separation.  The husband was assessed as having an adequate capacity to attend to the children’s emotional and intellectual needs and, during the husband and children’s observation session with Dr E, he saw that the children enjoyed “a loving and connected relationship with their father” (Report of Dr E dated 9 July 2019, p. 27).

3. Notwithstanding the recommendations contained in Dr E’s report, he explained that the key issue in progressing the children’s time with the husband, is for the children to feel stable and secure and for the arrangements to be progressing well.  He saw no magic to the number of months between one stage and the next.  In his opinion, if the children stopped too long in one stage it might be difficult for them to take the next step.  However, if the period was too brief and the next stage was implemented when the children were still dysregulated and the parties (most likely the wife) were unsettled, this could make the next stage difficult.

4. Dr E strongly supported the children having the opportunity to spend two single nights overnight with the husband while Z is in Australia next month.  He saw this as an excellent opportunity to fast‑forward the process, including the introduction of weekend overnight time.  His point being that this provided an opportunity to move into overnight time in a manner which made taking that step “no big deal” (Transcript 7 November 2019, p. 26 line 26).  It is how he would approach the matter clinically.  Ultimately, the parties agreed to implement Dr E’s recommendations concerning arrangements while Z is in Australia next month.

5. Dr E supports the wife’s application that she have sole parental responsibility for the children’s health.   Dr E pointed out that there has been considerable disagreement about whether X has Attention Deficit Hyperactivity Disorder (“ADHD”), and his own experience of the husband dealing with even routine medical arrangements was problematic.  In his view, the children’s medical practitioners need sensible consistency in their dealings with the children’s parents, an issue which is particularly important in relation to X, whose medical needs are likely to be ongoing.

6. Dr E did not support the wife’s application for CDT testing of the husband or for the husband to attend an anger management course.  He saw no utility in either program and foresaw that such orders would probably cause resentment in the husband and create fertile ground for further parental disputation, which is the last thing these children need.  The wife was able to accept this evidence, as I do.  Indeed, as will become apparent, Dr E’s opinion in relation to the family, its individual member’s needs and the facts upon which he relied to reach these opinions were largely unchallenged.  It is appropriate that his opinion is afforded significant weight.

1. It is useful to record at this juncture, that the husband undertook drug and alcohol tests between 10 July 2017 and 9 September 2019.  Professor F, who is a Professor of Pharmacology was retained by the wife to report on the tests.  Although the wife accepts Professor F’s opinion that the CDT evident in the results does not accord with chronic excessive alcohol use, until midway through final addresses, she proposed the continuation for six months of CDT testing to coincide with the husband commencing unsupervised time with the children.  As mentioned earlier, the wife also proposed, but eventually abandoned her application that the husband complete an anger management course as a precondition to his time with the children extending to overnight time.  Nonetheless the wife’s concerns which prompted these applications remain.

Guiding principles

1. Parenting issues fall to be determined in accordance with Part VII of the Family Law Act 1975 (Cth) (“the Act”) which requires that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration (s 65AA). Section 60CC sets out two “primary” and several “additional” considerations to which the court must have regard (if relevant) in determining what orders are in a child’s best interests. The effect of s 61DA of the Act is that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. However, this presumption does not apply if there are reasonable grounds to believe that a parent (or person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. In this case, as a consequence of the husband’s convictions for assault of the wife, there are reasonable grounds to believe that he has engaged in family violence and thus, by the application of s 61DA(2) of the Act, the presumption does not apply. That said, even if the presumption does not apply, if the court is satisfied that it would be in a child’s best interests for his or her parents to have equal shared parental responsibility, an order to the effect may be made.

2. If a parenting order provides for equal shared parental responsibility, the court must consider whether it is in the child’s best interests and, reasonably practicable, for the child to spend equal time with each parent (s 65DAA(1)).  If equal time is not ordered, the court must consider whether it is in the child’s best interests and reasonably practicable, for the child to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant” and “reasonably practicable” are defined in ss 65DAA(3), (4) and (5).  Failing those outcomes, the time arrangements will be determined as set out earlier.  In this case, it is common ground that an order for equal time is contraindicated.  However, the husband seeks orders for substantial and significant time.

Parental Responsibility

1. As has already been mentioned, the presumption of equal shared parental responsibility does not apply.

2. In order to determine the dispute concerning parental responsibility, it is necessary to consider the children’s health needs and, whether the parties are able to cooperate in relation to them.  Dr G is a developmental and behavioural paediatrician who X attends.  Dr G first saw X on 29 March 2017 and has seen him regularly since then.  He has diagnosed X as having ADHD. Dr G describes X as predominantly inattentive in his presentation and having mild Oppositional Defiance Disorder, which is improving.  Under his supervision, X has been prescribed Ritalin, albeit this was stopped in late 2018.

3. Dr G knows X reasonably well and his opinions are informed by his own observations of the child.  He observed that X has a tendency to be hyperactive and impulsive, he can talk to excess, tangentially and is sometimes difficult to understand.  Presently, X is managing well at school with a supportive environment but Dr G’s expectation is that X will continue to have symptoms of inattention, concentration and focus difficulties and impulsivity/hyperactivity, into his adolescent years and young adulthood.  As to X’s contact with the husband, Dr G deferred to Dr E.  Dr E agreed with Dr G in relation to his diagnosis of X and emphasised the importance of consistent parental support in relation to diagnosis and treatment.

4. X also attends Ms H, who is an occupational therapist.  He first saw Ms H on 27 March 2017 and, following assessment, he commenced weekly therapy for cognitive and behavioural issues which pose continuing challenges for him; specifically his hand writing and schooling.  Ms H identified the child’s low average muscle tone, specific writing difficulties, low average visual memory skills, low average fine motor integration and manual dexterity skills and impulsivity as needing attention and therapeutic intervention.

5. In broad terms, X attends individual therapy weekly and is given exercises or activities to practice at home.  Ms H’s opinion, which was unchallenged, is that:

   If X does not continue with occupational therapy and practicing the exercises I have designed in his Therapy Program, his skills are likely to plateau and/ or fall behind his peers. In my opinion this is likely to affect his ability to keep up with classwork and from my experience this can also impact on a student’s self-esteem and behaviour.

   (Report of Ms H dated 2 July 2019, p. 12) (As per the original)

6. X has also seen other professionals, particularly Dr J, Ms K and Ms L (all of whom are psychologists).  In broad terms, these and the other practitioners discussed above, speak with one voice concerning X’s health issues.

7. In the wife’s affidavit, she provides a detailed account of her engagement with X’s doctors and other health professionals.  Her evidence demonstrates that she is attuned to X’s health issues and has a cooperative relationship with these professionals.  There is no doubt that she can be trusted to act on their recommendations.

8. However, the husband does not fully accept that X has been correctly diagnosed, needs the assistance offered or that it is beneficial for him.  He was very clear that in his view the wife “engaged various specialists to treat and diagnose X… to gain a strategic advantage in these proceedings” (husband’s affidavit filed 26 October 2019, p. 18), views he also expressed in the Apprehended Violence Order hearing.  Questioned about statements to this effect, the husband said that although this had been his view historically, he was now more accepting of the need for medical intervention.  The husband’s emails to the wife dated 4 July 2019 and 8 October 2019 tell a different story and, notwithstanding his oral evidence, demonstrate that his views are largely unchanged and are at odds with the child’s health professionals.

9. These emails (Exhibit J) contain the following statements by the husband:

   ·    “Likewise, that from what we [the husband and Ms C] have observed during contact he does not suffer from ADHD”;

   ·    “I would suggest for the sake of X, that he does not need to continue to see Dr G, and this is based upon my conversation’s [sic] with Dr G, Ms M, [X’s teacher] and []”;

   ·    “Likewise, I would suggest that he does not need to see the other learning specialists that he is currently seeing, given he is performing well”; and

   ·    “I think for sake of continuity and stability X, [sic] he would prefer, based upon his conversations with me, to get on with school in a regular manner and not be subjected to further distractions”.

10. In short, the parties have very different and strongly held views as to their son’s health needs and the scene is set for disagreement and potentially further litigation.  The parties do not speak to or trust one another.  The unfortunate reality is that their poor relationship is likely to continue and the prospect of easy and effective communication in relation to the children is likely to remain elusive.  The effect of this is that it is highly likely that they may misinterpret advice from health professionals, and misinterpret the views of one another.  I agree with Dr E that this would place the children’s treating professionals in a most undesirable situation and potentially impede the children receiving timely and necessary treatment.

11. Y does not have particular health needs but should any arise, it is in her interest that these are dealt with decisively and do not themselves become the subject of further parental disharmony.  Although the husband will be disappointed, it is in the best interests of the children that the wife has sole parental responsibility in relation to health, along the lines proposed by the ICL.

Developing the children’s time with the husband

1. Because there will not be an order that the parties have equal shared parental responsibility in every respect, s 65DAA(1) of the Act does not apply (Doherty & Doherty [2016] FamCAFC 182) .

2. As was mentioned earlier, s 60CC of the Act contains a suite of considerations which inform how a court determines what is in a child’s best interests. Stated broadly, in this case, the challenge is how to balance the benefits to the children of a meaningful relationship with the husband with the risks of exposure to family violence and the effect on the wife’s ability to attend to the children’s needs if she is unduly anxious about their situation.

Risks of exposure to family violence

1. The evidence concerning family violence is extensive and each of the parties gives a different version about pivotal incidents; in particular the incidents on 22 October 2016 and 5 November 2016, which resulted in the husband being convicted of assault against the wife, and of 5 January 2017 when the husband smacked X, resulting in bruising.

2. The circumstances of the assault are set out in the wife’s affidavit filed 22 October 2019, which are set out below:

   12.The first instance occurred at about 3:00am on 22 October 2016.  I was awoken when [the husband] returned home in the early hours of the morning. I asked [the husband] to leave and started closing the bedroom door.  [The husband] pushed back in the door and forced his way past me and into the bedroom.  [The husband] then placed two hands on my chest area and pushed me backwards before going to bed.

   13.The second occasion occurred on 5 November 2016 at our home.  [The husband] was on a corporate outing during the day and posted photographs on his social media account.  [The husband] and I exchanged text messages about his behaviour and ongoing contact on social media with other women, which continued until he returned home at about 5.30pm.

   14.When he got home, [the husband] approached me rapidly from behind.  [The husband] firmly grabbed my right arm and attempted to grab my mobile telephone out of my back-right pocket with his hand.  Whilst doing this, [the husband] pushed me in a forward motion, causing me to trip over my own feet.

   15.I reached back and grabbed my mobile telephone.  [The husband] continued to forcefully hold my right upper arm.  I turned and slapped [the husband] in an attempt to get away from him.  I had a large bruise on my upper right arm from where [the husband] grabbed me.  A copy of 2 photographs of my arm, showing the injury is exhibited and marked “M6-1”.  The first photograph was taken on the day.  The second photograph was taken by the Police on 9 November 2016, when I made my statement.

   16.I was walking towards the children out of the kitchen and both X and Y observed the incident at a range of around 1.5 meters in front of them.  I immediately turned to the children and saw them both in distress, Y leapt up from the sofa and came towards me.  X had turned to hide his face in the sofa.

   17.I immediately sat between the children and said to them: “Don’t worry, Mummy’s okay.  Look, Mummy’s okay.”

   (Emphasis in original)

3. This evidence is consistent with the facts relied upon in securing an ADVO.  Furthermore, in addition to the fact that the husband was convicted of assault in relation to these incidents, the wife was not cross‑examined in relation to conflicts in her and the husband’s evidence on the point.  The husband was, and I am unable to reconcile his evidence to the effect that on each event the wife was the protagonist and she attacked him, given the outcome of the ADVO and criminal proceedings.  The husband’s evidence that the children sat “glued to the TV” on 5 November 2017 whilst an assault between their parents took place in front of them had an air of unreality and is not accepted. My sense of the husband’s evidence on this point, was he sought to minimise his role in these events and their effect on the wife and the children.

4. X made it clear to Ms K that he regarded the husband as the angriest person in his family, and her notes record X telling her that his father is “always mad at mummy” (Exhibit O, Child Assessment/Interview dated 3 May 2017).  Further, the notes record X feeling sad that his father injured his mother.  Similar sentiments were reported to Drs G and E.

5. As to the incident on 5 January 2017, the husband smacked X as punishment for the boy’s behaviour towards his sister.  The smacks were inflicted with sufficient force to cause bruising and were excessive.  The wife took X to see the family’s general practitioner on 6 January 2017 and the consultation notes document the bruise on the child’s left side.  The general practitioner recorded X saying “I want to tell dad not to smack me again. but [sic] I can’t” (Exhibit P).  He was reluctant to discuss the incident but told the GP “dad smacked me and it’s [sic] left a mark” (Exhibit P).

6. To Dr E, X:

   120.…readily identified an angry face.  He sometimes felt this way with [his sister].  He explained that Daddy used to be the angriest, because he got drunk a lot.

   121.When asked about Daddy, X explained, “Mummy divorced Daddy because of endless fights.  He made Mummy bullied.  He hurt Mummy.  He hurt me.  He got drunk most of the time”.  When asked about how he knew his dad was drunk, X responded, “Because he gets mad and weird”.

   (Report of Dr E dated 9 July 2019, p.19)

7. Dr E sought to establish the children’s views about their living arrangements and their relationships with their parents.  Each of the parties gave evidence of statements by the children about their other party.  However, as Dr E established, it is likely that the children have been exposed to the wife’s concerns about their father.  Similarly, the wife overheard the children’s telephone calls with the husband during which he shared his concerns with them.  For example, the husband said things to the children such as:

   “Tell Mummy’s lawyer that you want to be allowed to go to Daddy’s house.”

   “Ask Mummy that you be able to speak to your own lawyer.”

   “I will see the judge shortly to try to allow you to be able to visit my house.”

   (Wife’s affidavit filed 22 October 2019, p. 26 paragraph 203) (As per the original)

8. Compared to the parties, the children probably regarded Dr E as neutral; that is, neither would have seen him as desiring a particular outcome and thus, they are likely to have felt freer to express their true feelings.  Indeed, Dr E explored notions of truth and falsehood with the children, which further set the scene for them to appreciate that they were expected to be honest with him.  In short, it is accepted that Dr E was able to come closest to what the children think and feel about their situation.

9. Dr E reported:

   190.Both X and Y identified concerns regarding their mother’s experience of stress.  The both identified their father as angry.  X expressed concern regarding contact with his father should he be drinking.  That said, he identified that he had last witnessed his father to drink two years prior to the parental separation.  He was interested in spending more time with his father but was ambivalent about overnight and extended contact.  He agreed with Y that he would miss his mother at such times.  It appeared probable that the children had been exposed to their mother’s expressed concerns regarding their father’s behaviour.  X stated that he felt uncomfortable in his father’s care at times and acknowledged having expressed suicidal ideation.  He related his transient depressed mood to his failure to achieve his goals when gaming, referencing his experience with Fortnite.

   191.X had recently expressed suicidal thoughts during contact visits.  This was viewed to be an immature response to the stress of his persistent exposure to family conflict and concern for his mother’s wellbeing.  The present circumstances led to a focus on his father’s alleged previous excessive drinking and angry manner.  X was not identified to be suffering from depression and was viewed to be at low risk of suicidal behaviour.  Additional psychiatric assessment and treatment was not indicated.  His symptoms were identified to be reactive and will resolve with the resolution of the adversarial conflict which is damaging to the children’s current and future mental health.

   (Report of Dr E dated 9 July 2019, pp. 27-28) (As per the original)

10. From the information the children provided to Dr E and other third parties, it is clear that they recall the husband as angry.  X recalls the husband’s mistreatment of the wife and his account of the family sees the husband cast in the role of an angry protagonist.  His recollections are more consistent with the version of events given by the wife and are another reason why I am satisfied that her evidence of family violence and the husband’s alcohol consumption (subject to a couple of matters which will be discussed later) are more reliable than the account given by the husband.

11. The effect of this is that unsupervised time between the children and the husband involves a small, but not unacceptable, risk that the children may be exposed to excessive alcohol consumption and inappropriate physical discipline, something which worries X in particular.  That said it is clear that both children want to spend time with the husband.

12. The husband has completed a Triple P Parenting course and a post‑separation parenting course.  He has committed to not physically disciplining the children and has consulted a psychologist, Ms N, in relation to the stress of separation and anger management.  In short, the husband says that the children are safe in his care and that he can be trusted to attend to their needs.  The risks are modified by the embargo on physical discipline and the husband’s consumption of alcohol.  As to the latter, Professor F gave expert evidence concerning the husband’s CDT test results.

Expert evidence concerning the husband’s alcohol consumption

1. CDT is a blood protein that is affected by persistently high levels of alcohol consumption.  According to Professor F:

   … Individuals misusing alcohol typically have a higher proportion of transferrin as CDT (3-10%).  The actual threshold to indicate heavy alcohol consumption is uncertain, but a threshold of more than 1.7% is generally considered by international consensus as an indicative level of alcohol consumption outside the range of the normal social drinking population, but this is only is very specific for heavy drinking above 2.0 %.  There is some uncertainty in the upper normal range from 1.4 - 1.7% because it is above average but still within the range of most of the population.  Typically, the level of alcohol intake required to produce a clearly abnormal CDT result of 3.0% is 100 - 150 grams of alcohol per day, which is 10 - 15 standard drinks, or more than a bottle of wine.

   (Report of Professor F dated 14 October 2019, p. 5) (As per the original) (Citations omitted)

2. The husband’s CDT results are set out at paragraph 1.10 of Professor F’s report.  The highest reading was 2% on 10 July 2017, the next highest on 19 January 2018 was 1.9% and from 29 April 2019 his readings have been between 1.1% and 1.3%.

1. In relation to the results, Professor F said:

   … From [the husband’s] fourth test (17 April 2019) to his last test on 9 September 2019, all of his CDT values were less than or equal to 1.3%, which is indicative that he was not engaged in persistent heavy alcohol intake during that period, except for an uncertain, prolonged period when no tests were performed (4 July – 15 August 2019).  It is possible but uncertain that his earlier voluntary tests from 10 July 2017 to 19 January 2018 reflected heavy alcohol consumption but not within the high daily range of 100 - 150 grams per day.

   (Report of Professor F dated 14 October 2019, p. 5)

2. Professor F explained that alcohol free days influence CDT.  Thus, “someone who only has one “binge” in a 14 day period and does not consume alcohol for the rest of the time period is unlikely to have a raised CDT, as the normal transferrin produced on the other 13 days would ‘dilute’ the CDT produced on the day of drinking” (Report of Professor F dated 14 October 2019, pp. 5-6).  He explained that the half-life of recovery from elevated CDT levels towards normal is more than 14 days.  As to the accuracy of the tests “[t]hey might be inaccurate to one or two significant figures in the lowest cited digit, e.g., it is possible that 1.1% and 1.3% are varying measures of the same underlying true value”, albeit “the test is not as sensitive as it is specific” (Report of Professor F dated 14 October 2019, p. 8).  In a practical sense, the effect of this is that only large deviations for readings above 2% are meaningful indicators of heavy regular drinking.

3. Questioned about the half-life of recovery from elevated CDT levels, Professor F explained that even fortnightly CDT testing may fail to detect episodic binging.  Although the prospects of detection would increase if the testing occurred over shorter periods for example 8-10 days, it was far from certain that they would do so.

The wife’s concerns of the husband’s use of alcohol

1. Notwithstanding the lack of obvious utility in random monthly testing, the wife considered that the threat of it may have a prophylactic effect on the husband.  That is, he would moderate his consumption of alcohol for fear that he could be called upon at any time to give blood to be tested.  The logic is attractive but the sense I gained of the husband is that a one in 30 risk would not cause him to change his behaviour.  

2. The wife has been concerned about the husband’s alcohol consumption for a long time, well before the parties’ separation.  X shares her concerns and for both of them anything other than a total embargo on alcohol consumption along the lines proposed by the wife will exacerbate the tensions around unsupervised and longer periods of time for the children with the husband. It is worth noting that the wife saw the husband at a charity ball on 4 May 2019.  He had a drink in his hand.  Although the wife was not close enough to see what he was drinking she assumed it was alcohol and thus she refused contact the next day.  The husband’s evidence was that he knew the wife had seen him and was watching him.  He anticipated trouble and drank water.  I believe him.

3. The children were due to spend time with the husband on 23 June 2019, however, the supervisor became unavailable.  The wife did not see the husband’s email to this effect and she took the children to his home at midday.  The wife did not enter the home and was about 1 metre from the husband.  She says she smelled alcohol on his breath.  The husband agrees he was dishevelled but says this is because when the wife arrived he had been under a bench repairing a dishwasher.  He denies he had consumed alcohol.  I do not accept that the wife was close enough to the husband to smell alcohol on his breath and in this instance prefer the husband’s evidence.

4. Nonetheless, these incidents demonstrate the wife’s sensitivity to the issue.  The wife’s childhood experiences leave her vulnerable to stress and anxiety, which given she is the children’s primary carer, is contraindicated for her and them. Thus, although I consider the husband’s alcohol consumption is not presently excessive, it will only enhance the prospects of successful longer periods of unsupervised time if the embargo on alcohol remains in place.  It will not, as the husband proposes, expire after three years.

5. The effect of these matters is that I agree with the husband that he is able to meet the children’s needs when they are in his care.

What is the effect of changing the children’s circumstances?

1. As to the effect of changing the children’s circumstances, which was influenced in part by the children’s views, Dr E said:

   199.The children had already been exposed to separation and loss having been separated from their father for a sustained period in stressful circumstances.  The re-establishment of contact had progressed surprisingly well despite continued adversarial positions of the parents.  The children would benefit from the resolution of such hostilities and the establishment and maintenance of regular contact with both parents and their extended families.  The children would be likely to benefit from such an arrangement if this can be established and maintained in a safe and stable manner.  Y expressed anxiety about separation from her mother.  Should there be an extended and sustained separation from her, as their primary carer, this will be a significant psychological stressor, likely to exacerbate any underlying vulnerability to emotional and behavioural problems.

   (Report of Dr E dated 9 July 2019, p. 29)

2. It is pleasing that the parties were able to implement Dr E’s recommendations for unsupervised time and overnight time whilst Z is in Australia next month.  It is the first sign of them being able to heed Dr E’s opinion that the children’s mental health is being damaged by the parental conflict.  Indeed, going forward, it is my assessment that parental conflict is the greatest risk faced by the children.  Neither party is solely responsible for this state of affairs and, both are responsible for a resolution to hostilities.

3. In any event, having acted on Dr E’s advice to commence overnight time in December 2019, it is appropriate to maintain momentum and for that to continue.  The orders attempt to strike an appropriate balance between momentum and the wife and children being able to adapt and settle (but not for too long) with each increment.  By when the longer weekends commence, the children will have had a couple of periods during school holidays of similar duration which should make that transition reasonably smooth.  Further, they will have become used to spending at least one night and most of each alternate weekend with the husband.

4. However, it is not accepted that the wife and children would easily accommodate them being away from her for possibly three weeks during the 2020/2021 Christmas school holiday and in relation to that period, the wife’s proposal strikes the best balance.  However, from the Christmas thereafter, the children would benefit from an unbroken half school holidays with the husband.  They will be older and this will give him an opportunity to parent them for an extensive period and for them to immerse themselves in his and the paternal family’s lives.

5. Provision is made for the children to see both parents on or in close proximity to the children’s birthdays.  The husband’s proposal that the children would have the afternoon with him after school gave the children scant opportunity to celebrate these occasions in a joyful manner with the wife.  Otherwise, there is a raft of minor orders designed to limit the prospect of further proceedings.  Of course, the parties remain in heated combat concerning child support and property settlement but, to the extent that potential areas for disputation can be avoided, they have been.

6. The orders provide an outcome that I am satisfied is in the best interests of the children.

Other matters

1. The parties are unable to agree which of them should hold the children’s birth and citizenship certificates.  The wife has the children’s passports and the husband has the certificates.  Neither of them needs the certificates and their argument is no more sophisticated than self-entitlement.  These are the children’s documents and they should have access to them.  It follows that the husband should give the documents to the wife as their primary carer.

2. The ICL seeks costs to be paid in equal shares.  The amount sought is modest and pales into insignificance when compared with the amount of money the parties have spent on legal costs.  The husband agreed to pay the amount within three months.  The wife sought to defer payment until she receives her property settlement.  Given the approach taken to the financial dispute that may well be some considerable time.  The wife has a significant salary and, although she carries significant expenses (and outstanding legal costs) and it will probably cause her some financial discomfort, she will be required to pay the ICL’s costs within three months.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 28 November 2019.

Associate:

Date: 28 November 2019