Randall and Randall

[2008] FamCA 1269

FAMILY COURT OF AUSTRALIA

RANDALL & RANDALL [2008] FamCA 1269

FAMILY LAW – CHILDREN – RESIDENCE – Family violence

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61B, 65DAC, 65DAE, 65DAA

APPLICANT: Ms Randall

RESPONDENT: Mr Randall

FILE NUMBER: PAC 4054 of 2007

DATE DELIVERED: 28 February 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Flohm J

HEARING DATE: 6 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Thompson

SOLICITOR FOR THE APPLICANT: Malouf Solicitors

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. That all previous parenting orders in relation to R born … February 1999, J born … May 2000, Q born … July 2001 and T born … February 2003 (“the children”) are vacated.

2. That subject to Order 14 hereof Ms Randall (“the mother”) is to have sole parental responsibility for decisions relating to the major long-term issues for the children.

3. That the children are to live with the mother who is to have sole responsibility for decisions as to the children’s daily care during periods when the children are living with her.

4. That the children are to spend time with Mr Randall (“the father”) as follows and he is to have sole responsibility for decisions as to the children’s daily care during periods when the children are spending time with him:

   (a)For a period of two months from the date of these orders, for two hours each Saturday supervised by the H Contact Centre at times suitable to the Centre.

   (b)Thereafter and subject to Order 5 hereof, for a period of three months, from 12 noon to 3.00pm each Saturday and for the purpose of implementing this time the father is to collect the children from and return the children to the H Contact Centre.

   (c)Thereafter and subject to Order 5 hereof, for a period of three months, from 9.00am to 1.00pm each alternate Sunday.

   (d)Thereafter and subject to Order 5 hereof, for a period of four months, from 9.00am to 4.00pm each alternate Sunday.

   (e)Thereafter and subject to Order 5 hereof, for a period of four months, each alternate weekend from 12 noon to 4.00pm on Saturday and from 9.00am to 1.00pm on Sunday.

   (f)Thereafter and subject to Order 5 hereof, for a period of six months, each alternate weekend from 12 noon on Saturday until 4.00pm on Sunday.

   (g)Thereafter and subject to Order 5 hereof, as follows:

   (i)Each alternate weekend during each school term from 9.00am on Saturday until 4.00pm on Sunday;

   (ii)If the children are not spending time with the father at this time, on Father’s Day from 9.00am to 4.00pm.

   (iii)From 3.00pm on Christmas Day to 3.00pm on Boxing Day in even numbered years and from 3.00pm on Christmas Eve to 3.00pm on Christmas Day in odd numbered years.

   (iv)In 2010, for block periods of up to 4 days in all school holiday periods, commencing at 9.00am on the first day and concluding at 4.00pm on the last day on days as agreed between the parents.

   (v)From 2011 onwards, for one half of all school holiday periods being the first half in even numbered years and the second half in odd numbered years, provided that one month’s written notice has been given to the mother of the dates.

5. That the father is to spend time with the children ONLY in the following circumstances:

   (a)The father has complied and spent time with the children as provided for in each of the preceding stages of the regime in Order 4 hereof, and should he fail to comply he remains at that stage until he has complied;

   (b)Within a month of the date of these Orders, the father has attended upon his treating psychiatrist at N Hospital and associated community health service or such other psychiatrist as the Hospital may recommend and complied with all the recommendations of that psychiatrist and provided the mother’s solicitor with a report from the psychiatrist and/or an authority to enable the mother to obtain the relevant information from the psychiatrist, counsellor and general practitioner or such other health care practitioner recommended and to enable her to keep herself updated;

   (c)Within two months of the date of these Orders the father commences an anger management course as conducted by Relationships Australia or similar and on completion of that course provides the mother’s solicitor with a Certificate of Completion;

   (d)The father does not consume alcohol or use illegal drugs for 48 hours prior to the commencement of his time with the children;

   (e)The father undergoes fortnightly supervised drug urinalysis testing for a period of three months from the date of the commencement of his unsupervised time with the children and is to provide the mother prior to any unsupervised time with the children a copy of the most recent drug urinalysis results and it indicates a negative result;

   (f)The father has sufficient seatbelts and booster seats in his vehicle for each of the children.

6. That for the purposes of implementing Order 4(c) to (g) hereof the father is to collect the children from and return the children to the mother at S Shopping Centre.

7. That while the children are spending time with the father, the father is to take the children to and collect the children from any sporting engagements and extra-curricular activities which the children are involved in or invited to attend.

8. That the father is to have telephone communication with the children each Tuesday and Thursday and on the children’s birthdays and the father’s birthday between 6.00pm and 6.30pm and such communication is to be initiated by the father telephoning the mother on her landline number and the mother is to ensure that the children are available to speak with the father other than when she is absent from her home with the children during school holidays.

9. That the mother is to have telephone communication with the children each Tuesday and Thursday and on the children’s birthdays and the mother’s birthday between 6.00pm and 6.30pm when the children are spending time with the father during school holidays and such communication is to be initiated by the mother telephoning the father on his landline number and the father is to ensure that the children are available to speak with the mother other than when he is absent from his home with the children during school holidays.

10. That if the children are spending time with the father on the Mother’s Day weekend pursuant to these Orders then the father is to return the children to the mother at 6.00pm on the Saturday preceding Mother’s Day.

11. That each parent is to provide to the other as soon as possible after such occurrence, details of any illness or injury to the children or any of them whilst in their care requiring specialist medical attention or hospitalisation, including the name and address of the medical specialist or hospital and each parent is to authorise any hospital or medical practitioner at which the children may attend or be admitted to give such information to the other parent as they may request.

12. That the mother is to sign all documents and do all acts necessary to authorise the school at which the children may from time to time attend:

    (a)to furnish the father with copies of all school reports, notices and advices concerning the children and any activity involving the children;

    (b)to make available to the father order forms for school photographs of the children.

13. That both parents are entitled to attend all parent/teacher interviews, school functions and concerts to which parents are invited to attend.

14. That each parent is to keep the other informed at all times of their respective residential address and telephone number, and the mother is to advise the father of any intended permanent change of the children’s residential address no later than 28 days prior to any change occurring.

15. That for the purpose of compliance with Order 4(a) and (b) hereof the mother and the father are to:

    (a)Contact the H Contact Centre within seven (7) days to arrange an appointment for assessment for suitability for supervision by the H Contact Centre and attend such assessment.

    (b)Comply with any appointments made by the H Contact Centre for supervision of the time the child spends with the mother.

    (c)Comply with all reasonable rules of the H Contact Centre and all reasonable requests or directions of the staff of the Centre.

16. That each parent is restrained from denigrating the other parent or their family to or in the presence or hearing of the children, and from causing or permitting any other person to so denigrate to or in the presence or hearing of the children.

17. That 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.

IT IS NOTED

that publication of this judgment under the pseudonym Randall & Randall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4054 of 2007

MS RANDALL

Applicant

And

MR RANDALL

Respondent

REASONS FOR JUDGMENT

The Applications

1. Mr Randall (“the father”) and Ms Randall (“the mother”) are the parents of R born in February 1999, J born in May 2000, Q born in July 2001 and T born in February 2003.  Each parent seeks orders which, in their view, are in the best interests of their four children.

The parties’ proposals and the orders sought

1. The mother filed a Further Amended Application on 7 December 2007 and the orders sought in that document were as follows:

   Parenting Orders:

   1.   That the Wife have sole parental responsibility for the children of the marriage:

   a)   [R] born […] February 1999;

   b)     [J] born […] May 2000;

   c)     [Q] born […] July 2001; and

   d)     [T] born […] February 2003.

   2.   That the children live with the Wife.

   3.   That, subject to Orders 4 and 5 below, the Husband spend time with the children as follows :-

   a)   For a period of two months from the date of these Orders, for two hours being from 10 am to 12 noon on each Saturday at the [H] Contact Centre or such other time as may be convenient to the Centre, the parties and the children.

   b)     Thereafter, for a period of three months, for a period of three hours, from 12 noon to 3 pm on each Saturday, or such other time as may be convenient to the Centre, the parties and the children, taking into account their sporting and extra-curricular activities, and for the purpose of implementing this time, the Husband shall collect the children from the [H] Contact Centre at the commencement of his time and return the children to the same location at the conclusion of his time. .

   c)     Thereafter, for a period of three months, on each alternate Sunday from 9 am  to 1 pm.

   d)     Thereafter, for a period of four months, on each alternate Sunday from 9 am to 4 pm.

   e)     Thereafter, for a period of four months, each alternate weekend from 12 noon to 4pm on Saturday and from 9 am to 1 pm on Sunday, or such other time on a Saturday as may be appropriate given the children's sporting and extra-curricular activities, with the parties to communicate in writing regarding any changes.

   f)   Thereafter, for a period of six months, each alternate weekend from 12 noon on Saturday until 4 pm on Sunday, or such other time on a Saturday as may be appropriate given the children's sporting and extra-curricular activities, with the parties to communicate in writing regarding any changes.

   g)     Thereafter:-

   i.each alternate weekend from 9 am on Saturday until 4 pm each Sunday, with the exception of Mother's Day if it falls on a spend time weekend, when the time will be suspended at 9 am;

   ii.on Father's Day from 9 am until 4 pm if it falls on a day on which the children would not spend time with the Husband;

   iii.On Christmas Day from 3 pm until 3 pm Boxing Day in even years and from 3 pm Christmas Eve until 3 pm Christmas Day in the odd years;

   iv.For block periods of up to 4 days in any school holiday period in 2010, increasing to block periods of up to 7 days in any school holiday period from 2011 onwards, commencing at 9 am on the first day and concluding at 4 pm on the last day, provided that one months notice in writing has been given to the Wife of the dates and arrangements including the places where the children will be staying, the period does not include Christmas Day or more than 2 days at Easter and the Husband has time off all work.

   4.   That notwithstanding Orders 3b to 3h and 4 above, the Husband shall only spend time with the children if the following pre-conditions are met:

   a)   the Husband has complied and spent time with the children as provided for in each of the preceding stages of the regime in Order 3, and should he fail to comply he remains at that stage until he has complied;

   b)     within a month of these Orders, the Husband has attended upon the psychiatrist responsible for his treatment at [N] Hospital and associated community health service or such other psychiatrist as the Hospital may recommend and who has been furnished with copies of all the Husband's records and complied with all the recommendations of that psychiatrist and provided the Wife with a report from the psychiatrist and an authority to enable her to obtain the relevant information from the psychiatrist, counsellor and general practitioner or such other health practitioner recommended and to enable her to keep herself updated; and

   c)     within two months of the date of these Orders he commences counselling and attends an anger management course as conducted by Relationships Australia or similar and has provided the Wife with an authorisation to enable the Wife to make inquiries regarding his attendance at any course and, within one weeks after the end of the course, a Certificate of completion; and

   d)     he has not consumed alcohol or prohibited drugs for 48 hours prior to the commencement of his time, with prohibited drugs defined to include Opiates; Barbiturates; Benzodiazepines; Cannabinoids; Cocaine; Methadone; Amphetamines and drugs of a like nature; and

   e)     he has complied with requirements to undergo weekly supervised drug urinalysis testing for a period of three months from the date after the commencement of his unsupervised time and at such other others as recommended by the psychiatrist, counsellor or general practitioner or other health practitioner and, by 5 pm Friday prior to weekend time with the children, has provided the Wife with copies of drug urinalysis reports which indicate negative results for each of the drug groups in Order 5d; with testing conducted in accordance with Australian Standard AS 4308 and the collection of the urine is supervised by staff; and

   f)   he has sufficient seatbelts and booster seats in his vehicle for each of the children, and

   g)     he has made the necessary arrangements for other staff to replace him in his business during the time when the children are to be in care and, by 5 pm Friday prior to weekend time with the children, has provided the Wife with written notice of the names of these staff; and

   h)     in relation to Orders 3f to 3h, he has appropriate sleeping accommodation for the children, with one bed space for each child and at least one bedroom dedicated to the children.

   5.   That for the purposes of implementing Orders 3b to 3h above: the change¬over will occur at [S] shopping centre.

   6.   That while the children are spending time with the Husband:

   a)   He is to take the children to and collect them from any sporting engagements, extra-curricular activities, such as dance, and other activities, such as birthday parties which they are due to attend while they are in his care; and

   b)     He is restrained from consuming alcohol or prohibited drugs as defined in Order 5d.

   7.   That notwithstanding Order 3, the Husband's time will be suspended until such time as the Court makes further orders:

   a)   If the Husband has a further admission to a psychiatric unit; or

   b)     If the Husband fails to provide the Wife with the results of drug urinalysis reports or returns two consecutive drug urinalysis reports with positive results, or

   c)     If the Husband works in his business when the children are in his care and takes the children to his business, or

   d)     If the Husband has been found to have consumed alcohol or prohibited drugs while the children are in his care.

   8.   That the Husband will communicate with the children by telephone between 6 and 6.30 pm on Tuesdays and Thursdays, when the children are not with the Husband, and the Wife will be at liberty to communicate with the children by telephone at these times when the children are spending block periods with the Husband.

   9.   That neither party denigrate the other party or members of that party's family or household. in the presence of the children and remove the children from the presence of any third party who is denigrating the other party or members of that party's family or household.

   10. That the parties notify each other bin writing of their residential address and a contact telephone number and notify the other of any change in residential address and contact telephone number within 7 days of such change.

   11. That the Wife provide an authority to the children's school authorising the school or pre-school to provide copies of the children's school reports, school photos, newsletters and school notices to the Husband, at the Husband's expense and upon the Husband's request of the school.

   12. That the Husband be permitted to attend at the school or other place for the purpose of attending school parent/teacher interviews, presentation nights, concerts and the like.

   13. That each of the parties inform the other as soon as practicable of any medical emergency in relation to the children.

   PROPERTY ORDERS

   14. That within 7 days of the date of these Orders the Husband shall do all acts and things and execute all such deeds, documents and instruments as may be necessary to transfer to the Wife all of his right, title and interest in the property known as [S property] New South Wales being the whole of the land together with improvements comprised in Certificate of Title Folio Identifier […] ("the former matrimonial home").

   15. That within 7 days of the date of these Orders the Husband shall do all acts and things necessary to transfer to the Wife the whole of his interest in the Ford Territory Motor Vehicle registration number […] in the Wife's possession.

   16. That the Wife discharge or cause to be discharged all and any encumbrance now registered upon the title of the former matrimonial home in respect of the former matrimonial home and the Ford Territory, including but not limited by Mortgage No.[…] and loan […] in favour of the Commonwealth Bank.

   17. That the Wife be declared to be the sole legal and beneficial owner of all her respective right and title in and to:

   a)   all furniture and household contents located at the former matrimonial home;

   b)     all cash in any bank or financial institution invested by her in her sole name;

   c)     all personal effects in her possession;

   d)     any superannuation entitlements received by the Wife and invested by or on her behalf;

   e)     all assets and goodwill of the business : "[L Business]" and in this regard the Wife shall indemnify the Husband with respect to all and any liabilities incurred by the business.

   18. That the Husband be declared to be the sole legal and beneficial owner of all his respective right and title in and to

   a)   all cash in any bank or financial institution invested by him in his sole name;

   b)     all furniture and personal effects in his possession;

   c)     any motor vehicle in his possession;

   d)     any superannuation entitlements received by the Husband and invested by or on his behalf; and

   e)     all assets and goodwill of the business conducted as [P Business] and in this regard the Husband shall indemnify the Wife with respect to all and any liabilities incurred by the business.

   19. That the Husband and the Wife declare that they are not aware of any liability in which either of them has either a joint or several liability with the other including but without limiting the generality of the foregoing: bank, credit or charge accounts, guarantees or any liability resulting from any of the parties' previous business (if any) and any other dealings.

   20. If it is subsequently found that any such liability as described in Order 18 exists, the party pursuant to whose own business or other dealings such liability arose shall indemnify the other against all claims, costs, demands, suits, actions and proceedings which may be made against or incurred by the party in respect hereof.

   21. That in the event that the Orders herein contained direct either the Husband or the Wife or both of them to execute a Deed or Instrument and that person has refused or neglected to comply with that direction, the Registrar be appointed pursuant to s.106A of the Act to execute any such document in the name of the party in default of executing such document or in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the Deed or Instrument and the costs thrown away by reason of such default shall be paid by the party whose default has occasioned such default on an indemnity basis.

1. The father filed a Response on 26 October 2006 and the orders sought in that document were as follows:

   1.That the children [R] born on […] February 1999, [J] born on […] May 2000, [Q] born on […] July 2001 and [T] born on […] February 2003 ("the children") live with the mother and father on a shared residence arrangement.

   2.That the children live with the father from 8.30am each Sunday until the following Wednesday. In the event that Mother's Day falls on a weekend that the children are living with the father, the father will collect the children at 3.00pm in lieu of 8.30am.

   3.That the father spends time with the children on each of their birthdays (in the event that they are not living with him at the time) from 4.00pm until 7.00pm on the child's birthday.

   4.That the father spend time with the children from Christmas Eve at 4.00pm until 12.00 noon on Christmas Day on even numbered years and from 12.00 noon Christmas Day until 4.00pm Boxing Day in odd numbered years. That the father has liberal and private telephone contact with the children at any time.

   5.That the parties share the joint responsibility for the long term care, welfare and development of the children.

   6.That the mother be responsible for the day to day care welfare and development of the children while the children are living with her.

   7.That the father be responsible for the day to day care, welfare and development of the children while the children are living with him.

   8.That in the event either party is for whatever reason unable to provide supervision for the children for a period during which they would otherwise have the children in their care, they shall give the other party the first option to have additional time with the children for the duration of such period.

   9.For the purposes of changeover and in the absence of agreement to the contrary each party will be responsible for delivering and collecting the children on days they have the children residing with them from their school and or after school care. In the event that changeover days are not school days or preschool days then changeover will take place at the mother's residence at [S].

   10.Each party is to notify the other as soon as practicable in the event that any of the children require specialised medical attention, hospitalisation or counselling and in the case of hospitalisation, within two hours.

   11.Each party shall ensure they do not denigrate the other party and shall take all reasonable actions to ensure no other party denigrates the other party in the presence of that party or in the presence of the children or at all.

   12.That any change in the living arrangements be as agreed upon by the parties in writing.

   Property Orders

   1.That within twenty eight (28) days of the date of these Orders, the Husband shall do all acts and things and execute all such deeds, documents and instruments as may be necessary to transfer to the Wife all of his right title and interest in the property known as [S property] NSW being the whole of the land together with improvements comprised in Certificate of Title Folio Identifier […] ("the former matrimonial home").

   2.That simultaneously with the Transfer referred to in Order 1 above the Wife shall do all acts and things and sign all such deeds, documents and instruments as may be necessary to discharge all mortgages secured over the former matrimonial home and in this regard the Husband shall sign any necessary discharge authority to enable the Wife to give effect to this Order.

   3.That simultaneously with Orders 1 and 2 the Wife will:-

   a)Pay in full the balance owing on the ANZ visa credit card in the Wife's name and thereafter such credit card account will be closed;

   b)Pay in full the balance outstanding on the ANZ visa credit card in the Husband's name and thereafter such credit card account will be closed;

   c)Pay in full the balance outstanding on the Citibank visa credit card in the Husband's name and thereafter such credit card account will be closed;

   d)Pay in full the liability owing to the Australian Taxation Office;

   e)Pay to the Husband the sum of $90,000.00.

   4.In the event that the Wife fails to comply with Order 2 above then the parties shall forthwith join in and do all acts and things and sign and execute all deeds, documents and instruments necessary to effect the sale of the former matrimonial home situated at and known as [S property] NSW by private treaty and shall immediately place the property in the hands of an agent agreed upon between the parties for sale at an agreed price or at a price determined by an independent valuer agreed upon between the parties, and failing such agreement at a price determined as the fair market price by the President for the time being of the NSW division of the Australian Property Institute whose decision shall be final and binding upon the parties.

   5.The parties agree to engage […] to act on behalf of the parties in connection with the sale of the former matrimonial home.

   6.Upon the sale of the former matrimonial home in accordance with Order 4 above the parties shall distribute the proceeds of sale, in the following order and priority:-

   a)In discharge of the mortgage presently encumbering the former matrimonial home with the Commonwealth Bank of Australia;

   b)In discharge of any outstanding Council and Water Rates. In payment of Real Estate Agent's proper commission arising from the sale;

   c)In payment of proper legal costs and expenses arising from the sale;

   d)In payment of all other expenses which may have been reasonably incurred in respect of such sale, including Valuer's fees if appropriate;

   e)In payment of the outstanding liability owing to the Australian Taxation Office;

   f)In payment of the balance outstanding on the ANZ visa credit card in the Wife's name and thereafter such credit card account will be closed;

   g)In payment of the balance outstanding on the ANZ visa credit card in the Husband's name and thereafter such credit card account will be closed;

   h)In payment of the balance outstanding on the Citibank visa credit card and thereafter such credit card account will be closed;

   i)In payment of the balance then remaining 55 per cent in favour of the Wife;

   j)The balance then remaining to the Husband.

   7.That in the event that a purchaser for the property is not found within 12 months of the date the property is listed for sale or as otherwise agreed, the parties shall do all acts and things and execute all such deeds, documents and instruments as may be necessary to list the property for sale by public auction at an agreed price.

   8.That in the event the parties are unable to agree upon an auction price, the agreed price shall be the price determined by the auctioneer, and the auctioneer shall be nominated by the Real Estate Agent marketing the property.

   9.That upon completion of the sale by auction the proceeds of sale are to be distributed in accordance with Order 6(a) - (j) above.

   10.That within twenty eight (28) days of the date of these Orders, the Husband shall do all acts and things necessary to transfer to the Wife the whole of his interest in the Ford Territory motor vehicle, registration number […], in the Wife's possession.

   11.That the parties divide equally between them all the furniture and household contents located at the former matrimonial home.

   12.That the Wife thereafter be declared to be the sole legal and beneficial owner of all her respective right and title in and to:-

   a)All cash in any bank or financial institution invested by her in her sole name;

   b)All furniture and personal effects in the Wife's possession;

   c)Any superannuation entitlements received by the Wife and invested by or on her behalf;

   d)All assets and goodwill of the business "[L Business]".

   e)In this regard the wife is also responsible for and shall indemnify the Husband with respect to all and any liabilities incurred by the business.

   13.That the husband thereafter be declared to be the sole legal and beneficial owner of his right, title and interest in and to:-

   a)All cash in any bank or financial institution invested by him in his sole name;

   b)All furniture and personal effects in the Husband's possession;

   c)The Ford XR6 motor vehicle registration number […] in the Husband's possession;

   d)Any superannuation entitlements received by the Husband and invested by him or on his behalf.

   14.That the Husband and the Wife hereby declare that they are not aware of any liability in which either of them has either a joint or several liability with the other; including but without limiting the generality of the foregoing, bank, credit or charge accounts, guarantees and any liability resulting from any of the parties previous business (if any) and any other dealings.

   15.If it is subsequently found that any such liability as described in Order 14 above exists, the party pursuant to whose own business or other dealings such liability arose shall indemnify the other against all claims, costs, demands, suits, actions and proceedings which may be made against or incurred by the other party in respect thereof.

   16.In the event that either party fails to sign any necessary document or instrument or to do any acts required or contemplated by these Orders to be done with such failure continuing for fourteen (14) days, then the Registrar of the Family Court of Australia in pursuance of the Orders conferred on him or her under Section 106A of the Family Law Act 1975, as amended, shall have the power to execute any document or instrument in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.

The Legal Principles

1. The legal principles relevant to the determination which I must make are:

   s.60B which is the section which deals with the objects of the part of the Act which deals with parenting orders.

   s.60CA which is the section which states that the child’s best interests are the paramount consideration in the making of a parenting order.

   s.60CC which provides guidance as to how a court determines what is in a child’s best interests, including primary considerations for the court and additional considerations for the court.

   s.61DA which provides for the presumption of equal shared parenting responsibility when making parenting orders and the circumstances in which that presumption may be rebutted.

   s.61B which explains the meaning of parental responsibility.

   s.65DAC and s.65DAE which deals with the effect of a parenting order that provides for shared parental responsibility.

   s.65DAA which deals with the obligation of the court in certain circumstances to consider a child spending equal time or substantial and significant time with each parent.

The proceedings

1. The father did not involve himself in these proceedings.  I am satisfied that the father was aware of the hearing date and further was aware of the orders being sought by the mother and the affidavit evidence on which she relied in support of those orders.

The evidence

1. I take into account in this matter the following evidence: 

   a)The evidence in the mother’s affidavit in relation to her role as the primary carer of the children, the fact that the children have an older brother, D, who now 13 years old. 

   b)The mother’s evidence in her affidavit of the level of involvement or lack of it, by the father in the children’s day-to-day care.  According to the mother’s affidavit between 1999 and 2003 he drank very heavily and that the drinking has continued since that time. 

   c)The mother’s evidence of the aggression that was directed towards her on a daily basis which was verbal aggression and physical aggression and aggression which took place in public towards other people.

   d)The evidence in the mother’s affidavit that she was so anxious about the father’s conduct towards her and family members that on occasions she slept on the lounge in her clothing so that she could be in a position to make a quick exit with the children, if necessary.

   e)The mother’s evidence in her affidavit that in Easter 2003 the father threatened to kill her and that in relation to his continual heavy drinking she was fearful every day about the condition in which the father would come home.

   f)The mother’s evidence that his aggression included throwing things at walls and furniture in the presence of the children and breaking glassware and china at the table where the family was eating.

   g)There is evidence of an incident where the father’s aggression extended to him repeatedly stabbing a knife into a kitchen bench.

   h)I note that on 8 August 2006, an interim AVO was obtained by the mother to protect her from the father.

   i)There is evidence before me from a court counsellor.  The evidence of significance is that the relationship between the mother and the children is identified as a close and loving relationship (see paragraph 29).  Paragraph 30 of the court counsellor’s report similarly describes a very close and loving relationship between the children and their father.

   j)In relation to the children’s wishes, paragraph 22 of the counsellor’s report indicates that R, who is 8, misses his father.  He wants to spend overnight with him but there is an underlying concern; R worries about his parents and particularly when they fight.

   k)Paragraph 23 of the court counsellor’s report refers to J’s wishes.  J is 7 and he wants more time with his dad but he, too, worries about mum and the impact upon her of any time he might spend with the father because he knows she worries about him.

   l)Q is 6 and at paragraph 25 of the court counsellor’s report, she too says she wants more time with dad but she worries that he might keep them and worried that her mother would worry about them whilst they were with the father.

   m)T is only 4 and her wishes were not canvassed given her age, but there is evidence from the counsellor that she worries when her mother and father get angry with each other.

   n)One of the significant issues in this case is the father’s apparently deteriorating mental health.  I take into account the contents of Exhibit M7, being documents produced on subpoena by N Hospital.  It refers to admissions in 2007 and to the scheduling of the father and to multiple suicide attempts and heavy drinking at that time. Exhibit M5 are documents from N Hospital which relate to general mental health issues identified in the father in 2007.  I also take into account Exhibit M4 which is the localMental Health Service documents and what they say about that service’s involvement with the father.

   o)Exhibit M6 is a police record which attest to the father’s anti-social behaviour and criminal offences and convictions that have flowed there from.

   p)Exhibit M3 is police record which corroborates the level of domestic violence in the home prior to separation and police attendance thereat. 

   q)One of the significant aspects of the court counsellor’s evidence is the level of conflict in which these children have been, and continue to be, embroiled.  They definitely love their father.  There is no doubt at all in the mind of the counsellor that they love him very much and they wish to spend time with him but, equally, they are very worried about their mother worrying about them and that has caused them a level of anxiety which is of concern to the counsellor.

   r)The father’s alcohol abuse and mental health problems and, indeed, the very high level of anger he demonstrates towards the mother, are referred to in the court counsellor’s report at paragraph 33 and it is clear that, in the view of the counsellor, this reflects very poorly on the father and the risk he poses not only to the mother but to the children.

   s)It should be pointed out that the allegations made by the mother about the father’s conduct and the conclusions reached by the Court counsellor about the father’s conduct were not challenged.

Summary and conclusion

1. The court counsellor makes recommendations for the Court at paragraphs 35 and 36 of the Family Report as follows:

   35. “It is difficult to make recommendations in families where there is serious allegation of risk to the children due to drug and/or alcohol abuse as well as violence and/or intimidations, because the parties’ evidence has not been tested.  However, [the mother] appeared to have some basis for her concerns and anxiety about the children in [the father’s] care.  [The father] would not have inspired trust in [the mother] when he had apparently disregarded his undertaking in the Interim Court Orders, attempted to intimidate her and blamed his lack of contact with the children in the last ten months totally on her.

   36. It is my assessment that if the Court finds evidence that there are problems in [the father’s] lifestyle, that is a tendency towards excessive drinking and violence, the children’s time with [the father] needed to be limited and perhaps supervised.  Certainly, the presence of his girlfriend and her children during his time with the children is a protective factor, as it is hoped that she would moderate the situation between these children and their father.  It is my view that irrespective of the Court’s findings that [the father] could benefit from some personal counselling, including anger management, if he was willing to undertake them for his own benefit, as well as for the benefit of his children who love him.”

2. As this case has proceeded, those matters were not challenged by the father.  I have come to the view that, at this time, the children would be at risk of psychological and other harm if they were to be in the unsupervised care of the father.  It is clear they love him and miss him and want to see him but they are too young to be able to protect themselves emotionally or otherwise.  However, they are not too young to be aware of and worried about how anxious their mother would be if they were to spend time with their father on an unsupervised basis at this time.

3. There is clear evidence before me that, in recent times, the father has been drinking heavily and is suicidal.  That is a deadly combination and he should be nowhere near children of this age who cannot protect themselves.  It is up to the father to seek the help he needs.  The orders the mother proposes do not seek to shut him out of the children’s lives provided he can manage and stabilise his mental health and stop his excessive use of alcohol and, if relevant, any illegal drugs.

4. In the meantime, I am of the view that the orders sought by the mother are in the children’s best interests including an order that, at this time, the mother have sole parental responsibility for both major issues and the day-to-day care of the children subject only to an order that the father remain involved in any decision in relation to where the children are living.

5. The parties’ respective applications for property orders were not ready to proceed at the time of the hearing.  Upon reserving my judgment in relation to the parenting issues, I made directions for the filing and serving of further documentation in relation to the property issues and the property proceedings were transferred to a Registrar for case management.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Flohm.

Associate: 

Date:  23 February 2010