Simonis & Amstal
[2025] FedCFamC1F 388
•13 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Simonis & Amstal [2025] FedCFamC1F 388
File number(s): ADC 209 of 2013 Judgment of: MEAD J Date of judgment: 13 June 2025 Catchwords: FAMILY LAW – CHILDREN – With whom the children live – Children exposed to high conflict between the parents post-separation – Long term impact on children’s mental health – Best interest of the children not the focus of the parents dispute – Three tranches of parenting proceedings – Father withholding children – Allegations of alcoholism – Mutual denigration. Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 61DA. Cases cited: Mazsorski & Albright (2007) 37 FamLR 518
McCall & Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 174 Date of hearing: 26-29 September 2022, 7-11, 14, 16-17 and 21 November 2022, 13-17 November 2023, 21-24, 27-28 November 2024, 18-21 March 2024, 30 September 2024 and 1 October 2024 Place: Adelaide Counsel for the Applicant: Ms Pyke KC (26 September 2022 – 21 November 2022); Ms Lewis SC (13 November 2023 – 1 October 2024) Solicitor for the Applicant: Jacqui Ion Lawyers Pty Ltd Counsel for the Respondent: Ms O’Connor SC Solicitor for the Respondent: Jordan & Fowler Family Lawyers Counsel for the Independent Children's Lawyer: Mr Lewis (26 September 2022 – 29 November 2023);
Mr Hemsley (12 March 2024 – 1 October 2024)Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 209 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AMSTAL
Applicant
AND: MS SIMONIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MEAD J
DATE OF ORDER:
13 JUNE 2025
UPON NOTING THAT
A.The paternal grandparents Mrs and Mr B Amstal have entered into the necessary fee contract with C School.
B.The father meet the costs of the children's tuition fees at C School.
C.The father meet the costs of the children's uniforms, IT equipment, books, school camp, extracurricular school trips, all sporting equipment and ongoing other costs that are not encompassed in the tuition costs noting the mother will maintain at her expense a set of uniforms at her home.
D.It is the expectation of the court that each party personally refrains themselves from either denigrating the other parent, members of the other parent’s family or members of the C School community or allowing anyone else to do so.
THE COURT ORDERS THAT:
1.All previous orders made herein be discharged.
2.The parties have equal shared parental responsibility for the children of the marriage, X (“X”) born in 2008 and Y (“Y”) born in 2010 (collectively “children”).
3.The children live with the mother.
4.During school terms (in accordance with the schedule existing at the time of the making of this order as provided for in paragraph 3 of the order of 6 May 2021) the children spend time with the father each alternate week, from the conclusion of school on Friday (or 9:30am if a non-school day) until the commencement of school on Thursday (or 9:30am if a non-school day).
5.During school holiday periods, the children spend time with the father as follows:
5.1During the school term holiday periods the children's time with the father pursuant to paragraph 3 above shall continue and shall be extended to conclude on the following Friday at 5:00pm;
5.2In the event that a school term holiday is for a period of three weeks then during that holiday period:
5.2.1the children shall remain in the care of the parent whose care they are in during the first weekend of the holiday period (pursuant to the rotation in accordance with paragraph 3 above) until 12 noon on the middle Wednesday of the holiday period and then be in the care of the other parent for the remainder of the holiday period;
5.2.2in the event that the children are spending time with the father in the second half of the holiday period, then the children’s time with the father shall conclude at the commencement of school on Monday and if not a school day then the commencement of school on Tuesday (or 9:30am if a non-school day).
(Upon noting that the children’s time with the father pursuant to the paragraph 3 above, shall recommence in the school term upon the same rotation as if it had continued through the school holiday period.)
5.3During the Christmas school holidays:
5.3.1in 2025-26 and each alternate year thereafter:
5.3.1.1from the conclusion of the final day of the school year until 5:00pm on 10 December (and in the event that the final day of the school year falls on 10 December, then this sub-paragraph is suspended);
5.3.1.2from 5:00pm on 17 December until 5:00pm on 24 December; and
5.3.1.3from 5:00pm on 3 January until 5:00pm on 10 January and each alternate week thereafter;
5.3.2in 2026-27 and each alternate year thereafter:
5.3.2.1from 5:00pm on 10 December until 5:00pm on 17 December (and in the event that the final day of the school year falls on 10 December, then from the conclusion of school that day);
5.3.2.2from 5:00pm on 24 December until 5:00pm on 3 January; and
5.3.2.3from 5:00pm on 10 January until 5:00 pm on 17 January and each alternate week thereafter.
(Upon noting that the children’s time with the father pursuant to the paragraph 3 above, shall recommence in the school term upon the same rotation as if it had continued through the Christmas school holiday period.)
Easter
6.The above Orders be suspended such that:
6.1in 2026 and each alternate year thereafter, the children shall spend time with the father from the conclusion of school on Maundy Thursday (or 10:00am if not a school day) until the commencement of school on Tuesday (or 10:00am if not a school day); and
6.2the children be in the mother’s care during the 2027 Easter period and each alternate year thereafter from the conclusion of school on Maundy Thursday (or 10:00am if not a school day) until the commencement of school on the following Tuesday (or 10:00am if not a school day).
Other Special Occasions
7.The above Orders shall be suspended such that:
7.1the children do spend time with the father on Father’s Day from 10:00am until the commencement of school on the following Monday (or 5:00pm on the Monday if a non-school day)
7.2the children do spend time with the mother on Mother’s Day from 10:00am until the commencement of school on the following Monday (or 5:00pm on the Monday if a non-school day).
7.3on the father’s birthdays (if the father is the non-residential parent) the children do spend time with the father from the conclusion of school (or 10:00am if a non-school day) until the commencement of school the following day (or 10:00am if a non-school day);
7.4on the mother’s birthdays (if the mother is the non-residential parent) the children be in the mother’s care from the conclusion of school (or 10:00am if a non-school day) until the commencement of school the following day (or 10:00am if a non-school day);
7.5on the children’s birthdays:
7.5.1if the father is the non-residential parent the children shall spend time with the father from the conclusion of school (or 3:00pm if a non-school day) until 7:00pm; and
7.5.2if the mother is the non-residential parent the children be in the mother’s care from the conclusion of school (or 3:00pm if a non-school day) until 7:00pm.
Handovers
8.Where handover does not occur at the children's school, then it shall occur at the paternal grandparents residence at D Street, Suburb E or at such other place as agreed between the parties.
Telephone Contact
9.Whilst the children are the father’s care, the father shall facilitate the mother speaking with the children by telephone or audio/video (Facetime or similar) on Sunday, Wednesday and Friday between 7:00pm and 7:30pm by the mother contacting the children on the father's mobile telephone or on their own mobile telephones.
10.Whilst the children are in the mother’s care, the mother shall facilitate the father speaking with the children by telephone or audio/video (Facetime or similar) on Sunday, Wednesday and Friday between 7:00pm and 7:30pm by the father contacting the children on the mother's mobile telephone or on their own mobile telephones.
11.The children be at liberty to contact either party by way of telephone or audio/video (Facetime or similar) in accordance with their wishes from time to time.
Injunctions
12.The father be restrained and an injunction is hereby granted restraining him from consuming alcohol whilst the children are spending time with him and for a period of five (5) hours prior to same.
Communication
13.All communication between the parent’s occur directly between each of them by text message or email unless in the case of an emergency.
14.The parent’s shall notify each other forthwith should their email addresses or mobile telephone numbers change.
15.In the event that the father is admitted to hospital or a rehabilitation facility, the father shall notify the mother of the admission, tell her for how long the father expects to be admitted and tell her forthwith when he is discharged.
Education
16.The children attend C School.
17.Both parent's names be placed on the enrolment forms with C School and that they both be nominated as an emergency contact together with the paternal and maternal grandparents for the children and that they all be the only emergency contacts provided to C School.
18.Each parent notify the other prior to the commencement of school on a school day if either of the child or children will not going to be in attendance on that day or for part of the day.
19.Each parent be at liberty to obtain the school reports, newsletters and other information normally available to parent’s from the children's school at their own cost.
20.Each parent be at liberty to attend at any school events including sports days, parent teacher interviews, concerts and the like to which parent’s normally are invited.
21.Each parent be at liberty to attend at any of the children's sporting activities (save for training sessions, which may only be attended at by the custodial parent) and ensure the children's attendance at same when in their care respectively.
22.In the event that due to illness of the children or either parent, the children will not attend their sporting commitments on any Saturday (or other day) whilst the children are in either parent's care, the other parent shall contact the other parent by mobile telephone, no less than one (1) hour prior to the children or either of them being due to attend to facilitate the other parent taking the children to that sporting event and enable the other parent to speak with the sick child or children.
Travel
23.Each of the parties is at liberty to travel within Australia with the children, provided that they first advise the other parent of the travel destination(s) and duration of the travel.
24.Each of the parties is restrained from taking the children out of the Commonwealth of Australia without the written consent of the other or an Order of this Court, such consent not to be unreasonably withheld provided that the travelling party:
24.1Provides no less than twenty-eight (28) days written (by email or sms text message) notice to the other party of their intention to travel with the children; and
24.2Provides to the other party a full and complete itinerary including flight numbers, flight times, accommodation and telephone contact numbers.
Passports
25.The mother shall hold the children's passports and shall provide them to the father:
25.1within forty-eight (48) hours of request for saying being made for the purpose of obtaining visas for the children with the passports to be returned to the mother within forty-eight (48) hours of the visa having been obtained; and
25.2no less than seven days prior to travel for the purposes of the travel, with the passports to be returned to the mother within seven (7) days of return from travel.
Medical
26.Each party notify the other as soon as practicable in the event of any serious injury or illness in relation to either of the children and provide the other party with details as to their condition and any hospital at which they have or will attend.
27.In the event that either child has been hospitalised then both parents are entitled to attend at the hospital during the period of that child’s in-patient status.
28.Each party is to provide the other with details as to the names and locations of any medical professionals consulted in relation to the children and authorise such medical professionals to release to the other parent any details regarding the children’s health.
29.Each parent do ensure that the other parent is nominated as the “contact parent” at all associated medical (including, but not limited to, a general practitioner, optometrist, psychologist, psychiatrist, counsellor, therapist, physiotherapist, chiropractor) and hospital attendances.
30.Each party be at liberty to obtain the school reports, newsletters and other information normally available to parent’s from the children’s school at their own cost.
31.The Order for the appointment of the Independent Children’s Lawyer be discharged.
32.All matters be removed from the pending cases list as finalised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE MEAD:
INTRODUCTION
Mr Amstal (“the father") and Ms Simonis (“the mother") are the parents of two children X (“X”) born in 2008 and Y (“Y”) born in 2010. The parties commenced a relationship in or about mid-2007, travelled overseas for three or four months and upon their return to Australia in late 2007 continued their relationship with the father living in Suburb E and the mother in Town F where she obtained employment.
In 2008, by which time the mother was pregnant with the parties first child X she resigned and took up residence with the father in Suburb E. The parties married in 2010, separated on 20 June 2012 and were granted decree nisi in late 2015.
Parenting proceedings were first initiated by the mother on 2 January 2013. During that tranche of the proceedings two family reports were prepared by Ms G. The matter was originally listed for trial on 24 August 2015, with that date subsequently vacated by consent and a new trial date of 12 October 2016 being allocated. Final consent orders were entered into on 12 October 2016. By that date, X was aged just under eight years and Y was aged six and a half years and they had been the subject of litigation for three and three quarter years.
On 12 June 2019 the second tranche of parenting proceedings were instituted by the mother. That set of proceedings concluded with a further final parenting order made by consent on 6 May 2021. By that time X was aged 12 years, Y was aged 11 years and the children had been the subject of litigation for a further period of almost 2 years. During this time a further family report had been prepared, this time by Ms H, and the children had participated in meetings with Ms J arising from a recommendation made by Ms H contained in her report dated 19 February 2020.
On 22 April 2022 the third tranche of the proceedings was initiated by the father. The final hearing with respect to that tranche of proceedings commenced on 26 September 2022. The trial occupied some 30 hearing days. Of that time, the first 10 days were occupied by cross-examination of the father by the mother’s counsel and counsel for the Independent Children’s Lawyer, albeit that one of his witnesses Dr K was interposed for significant periods on two of the days.
On 21 November 2022 the matter was adjourned part heard to 6 March 2023. It did not resume until 13 November 2023 in circumstances where I was absent from the court for most of 2023 as a result of health issues.
The matter occupied a further 10 days of hearing between 13 November 2023 and 29 November 2023 and was adjourned part heard to 18 March 2024. The matter occupied a further four hearing dates between 18 and 21 March 2024 and then a further two days on 30 September 2024 and 1 October 2024. By the time the trial commenced the children were aged almost 14 and 12 years respectively. At the time of these reasons being delivered, X will be aged 16 years and Y will be aged 15 years.
In this brief summary of the proceedings I have not referred to the various interim and urgent interim applications that have been required to be determined by the court.
When the trial resumed in November 2023, after the first 13 days of hearing in 2022, the father’s costs notice filed on 9 November 2023 detailed an amount of costs billed to and paid by the father to that date to Jacqui Ion Lawyers in the sum of $294,492, as well as unbilled costs of E$12,000 and anticipated costs of trial for 14 days in the sum of $300,000-330,000. The amount of costs paid by the father to L Law Firm, his previous solicitors, was stated as unknown. As at 16 November 2023 the mother’s costs billed by Jordan & Fowler Family Lawyers were said to be $57,545.18 with $10,646.50 outstanding ,and unbilled costs of $6,662. The costs notice stated that her funding for trial was pursuant to s 102NA of the Family Law Act 1975 (as amended) (“the Act”).
In an unreported ex tempore judgment, delivered by me in the course of the interim proceedings during the second tranche of the proceedings on 27 March 2020, I made the following comments:
Tragically for [X] and [Y] their parent’s dispute continues. It commenced in 2013. The long term impact on both children’s mental health and overall development can only be imagined.[1]
[1] Simonis & Amstal (Unreported, FCFCOA, Mead J, 27 March 2020) [1].
Later in those same reasons I said:
It raises serious concerns as to the impact on the children of their parent’s ongoing dispute…[2]
Each of course lays the blame for the dispute squarely in the court of the other.[3]
[2] Ibid [3].
[3] Ibid.
As I said earlier herein, that tranche of proceedings was settled by consent on 6 May 2021. The comments I made at that time are as apposite now as they were in 2020. Save for some periods of relative respite, both children have lived with the reality of the ongoing tension between their parent’s and the ongoing pressures of knowing that they are the subject of dispute between their parents’. In this particular case, that pressure extended to the children being embroiled in their parents’ dispute to the extent of obtaining evidence to support their father.
Overall, both parties in this matter displayed conduct that was self-serving, and lacked insight as to the possible impact of that conduct on the wellbeing of both of their children. They both lost sight of what the litigation was about, namely the best interests of their children. To the credit of X and Y, and somewhat surprisingly, taking into account the views and matters they have expressed to numerous people throughout the years that they have been engaged in these proceedings, they have assisted their parents in complying with orders of the court into which both parents’ have entered by consent. They are both young adults, not children. I am not confident that their well-being will be eased by whatever orders the court makes in this matter, unless each of their father and their mother are prepared to lay down their weapons. Nevertheless, taking into account the factors referred to in the relevant sections of the Act, an order will be made with a genuine hope that it will bring some peace to X and Y.
I am concerned in the particular circumstances of this case as to the possibility of X or Y or both children having the opportunity to access this judgment. Such a situation would not be in their best interests particularly if the judgments length consisted of very detailed evidence given by the parties and their witnesses in what could only be described as an unnecessarily lengthy trial.
As I have said, X and Y are young adults. There was extensive evidence as to their concerning involvement in the ongoing power struggle between their parent’s to the extent of trying to assist their father in obtaining evidence against the mother by talking to police, child protection personnel, workers at the Kids Helpline, their counsellors at school and Ms J about the mother’s failings and their associated feelings of unhappiness and risk to their well-being if they were not permitted to live with their father.
I intend to deliver reasons that are shorter than perhaps would be expected, after a trial taking 29 days. The evidence that was useful in determining this matter occupied significantly less time. I am anxious to avoid this document being a means by which the children continue into their adulthood being embroiled in the very long running dispute in relation to which it might be said that at least to some extent they were the vehicle for the maintenance of that dispute, rather than the genuine subject of the dispute. I do not mean by those remarks to say that either the father or the mother do not genuinely love both X and Y.
Their mutual palpable loathing however has caused them to behave at times in a manner where the best interests of the children have been forgotten. For reasons to which I will refer, I find that concern applies in particular to the conduct of the father.
BACKGROUND
In circumstances where two final parenting orders were made by consent during the lifetime of these proceedings, the first on 12 October 2016 and the second on 6 May 2021, I do not intend to set out the background to those two tranches of the proceeding in detail save as to those parts relevant to the current round of proceedings.
The current dispute in this matter primarily concerns the father’s deeply held and implacable belief that the mother is an alcoholic, neglects their children due to regularly being under the influence of alcohol, and accordingly puts them at risk both physically and psychologically, including causing them to feel unsafe and uncared for in her household and by ignoring their wishes to live with him.
From the mother’s point of view the father and his extended family, particularly his parents’, have engaged in a long term course of deliberate alienation of both children from her by falsely accusing her of being an alcoholic, facilitating and encouraging the children to make unfounded complaints against her including to police, child protection authorities, teachers, Kids Helpline, court experts and the like and that he, completely supported by his parent’s, continues with this behaviour that consumes all aspects of his everyday life.
The parties met at a time when they both consumed alcohol. The mother had obtained professional qualifications in 2006 and 2011. The father was primarily employed in his parents’ business, which was significantly engaged in the ownership of retail outlets and the owning and operating of hospitality venues, but ultimately he was unable to continue working due to his alcohol dependence and serious anxiety issues.
The parties had separated in mid-2012 at which time X was aged approximately three and Y was aged two years.
In late 2012 the father entered an inhouse rehabilitation program for alcohol addiction in South Australia for a period of some weeks. In late 2012 the mother obtained an intervention order against the father which was ultimately discharged. In early 2013 the father attended a further inhouse rehabilitation program in Queensland for a period of two weeks. In early 2013, the father returned to a rehabilitation facility at Town M for a further two weeks, having earlier spent five weeks at that facility in late 2012.
Some three weeks later, the mother instituted the first set of proceedings seeking orders for settlement of property and parenting matters. On 9 August 2013 the parties entered into final orders for settlement of property and entered into a binding Child Support Agreement.
By mid-2013, the father faced court with respect to his third conviction for driving under the influence and lost his driver’s licence for a period of three years.
Throughout the period from the filing of the mother’s first application on 21 January 2013 and the order finalising that tranche of the proceedings made by consent on 12 October 2016, the children were in the primary care of the mother.
In an order of 9 December 2014, the children spent regular time with the father supervised by the father’s parents’, with them being at liberty to suspend the children’s time with him and return the children to the mother if they had concerns. That order was preceded with notations stating:
(a)The Applicant mother reports an improvement in the Respondent father’s demeanour and behaviour and is confident that the respondent father is adequately addressing his alcohol consumption issues.
(b)The Applicant mother following her conversations with the paternal grandfather, now has more confidence that the Respondent father’s parent’s will, irrespective of any court orders, appropriately monitor the Respondent father’s behaviour and alcohol consumption to ensure the wellbeing of the children.
On 3 June 2015, prior to the trial listing on 24 August 2015, the parties entered into further interim consent orders providing for the children to have regular alternate weekend, Wednesday evening and pupil free day time with the father as well as half school holidays and special occasions. The father was restrained from consuming alcohol whilst the children were spending time with him, and immediately prior to same, but there was no requirement that the time either be supervised or subject to his parents having the ability to terminate the time if they had concerns about his conduct.
An order was made requiring a follow up Family Report from Ms G to be completed by 31 July 2016 at the cost of the father with a new trial listing of 12 October 2016. Her first report was dated 26 July 2016. An urgent application was filed by the mother on 27 May 2016 seeking that the requirement for supervision of the children’s time with their father be reinstated. She deposed to concerns about his consumption of alcohol whilst the children were in his care, and to a growing distrust on her part with respect to the paternal grandparent’s commitment to supervision of time. The order was not varied at that time, the further report of Ms G was received, the parties entered into negotiations and a final order was made by consent on 12 October 2016.
That order provided as follows:
AND UPON NOTING that the parties intend that the children of the marriage attend private schooling for their secondary education at a school or schools to be agreed or as may be ordered by a Court of competent jurisdiction subject always to the capacity of the parent’s and/or extended family to pay the costs associated with such private school education.
BY CONSENT IT IS ORDERED:
1.That the parties have equal shared parental responsibility for the children of the marriage, [X] (“[X]”) born [in] 2008 and [Y] (“[Y]”) born [in] 2010 (collectively “children”).
2.That the father shall speak with his parent’s or either of them at least once per day when the children are spending time with him and in their absence (as a result of interstate or international travel) he shall speak with his aunt, [Ms N] at least twice per day when the children are spending time with him.
3.The father’s parent’s or either of them shall be at liberty to suspend the children’s time with him and in their absence (as a result of interstate or international travel) his aunt, [Ms N] shall be at liberty to suspend the children’s time with him, in which case the children will be returned to the mother for the remainder of the period.
4.The children live with the mother.
5.The children spend time with the father and the mother as set out in these orders.
School Term
6.That during the school term, the children shall spend time with the father as follows:
6.1Each alternate weekend, from the conclusion of school on Friday (or 3:30pm if a non-school day) until the commencement of school on Monday (or if a non-school day then the commencement of school on Tuesday); and
6.2Each intervening Wednesday from the conclusion of school until 7:00pm. [the alternate weekend and Wednesday rotation to continue upon the same rotation as currently exists]
School Holidays
7.That during school holiday periods, the children shall spend time with the father for one half of the school holiday period as follows:
7.1during the school term holiday periods the children’s time with the father pursuant to paragraph 6.1 above shall continue and shall be extended to conclude at 5:00pm on the following Friday.
7.2during the Christmas school holiday period:
7.2.1 in 2016/2017 and each alternate year thereafter:
7.2.1.1from the conclusion of school until 5:00pm on 18 December;
7.2.1.2from 5.00pm on 24 December until 5.00pm on 3 January; and
7.2.1.3from 5.00pm on 10 January until 5:00pm on 17 January and each alternate week thereafter.
7.2.2 in 2017/2018 and each alternate year thereafter:
7.2.2.1from 5.00pm on 18 December until 5.00pm on 24 December; and
7.2.2.2from 5.00pm on 3 January until 5.00pm on 10 January and in each alternate week thereafter.
(upon noting that when the fortnightly rotations, pursuant to paragraph 6.1 above, recommence following Christmas school holiday periods, they shall recommence upon the same rotation as if they had continued through the school holiday period.)
8. Easter
8.1That the above Orders shall be suspended to permit the children to be in the mother’s care during the 2017 Easter period and each alternate year thereafter from 10:00am on Good Friday until 5:00pm Easter Monday; and
8.2That the children shall spend time with the father during the 2018 Easter period and each alternate year thereafter from 10:00am on Good Friday until 5:00pm Easter Monday.
9. Other Special Occasions
That the above Orders shall be suspended to such extent as necessary to permit:
9.1The children to spend time with the father on Father’s Day from 9.00am to 5.00pm;
9.2The children to be in the mother’s care on Mother’s Day from 9.00am to 5.00pm;
9.3On the father’s birthdays (if the father is the non-residential parent) the children are to spend time with the father from the conclusion of school (or 9:00am if a non-school day) until the commencement of school the following day (or 9:00am if a non-school day);
9.4On the mother’s birthdays (if the mother is the non-residential parent) the children are to be in the mother’s care from the conclusion of school (or 9:00am if a non-school day) until the commencement of school the following day (or 9:00am if a non-school day);
9.5On the children’s birthdays:
9.5.1If the father is the non-residential parent the children spend time with the father from the conclusion of school (or 3:00pm if a non-school day) until 7:00pm; and
9.5.2If the mother is the non-residential parent the children be in the mother’s care from the conclusion of school (or 3:00pm if a non-school day) until 7:00pm.
10. Telephone Contact
10.1That, whilst the children are spending time with the father, the father shall facilitate the mother speaking with the children by telephone at such time as may be agreed and in default of agreement each Monday, Wednesday, Friday and Saturday between 7:00pm and 7.30pm by the mother telephoning the children on the father’s mobile telephone;
10.2That, whilst the children are in the mother’s care, the mother shall facilitate the father speaking with the children by telephone at such time as may be agreed and in default of agreement each Monday, Wednesday, Friday and Sunday between 7:00pm and 7.30pm by the father telephoning the children on the mother’s mobile telephone; and
10.3The parties shall do all things necessary to facilitate the children contacting the other party when the children reasonably request to do so.
Handovers
11.Where handover does not occur at the children’s school, then it shall be effected by the parties collecting and returning the children to the paternal grandparent’s’ residence at [D Street, Suburb E] or at such other place as agreed between the parties.
Other Matters
12.That the father be restrained and an injunction granted restraining him from consuming alcohol whilst the children are spending time with him and five (5) hours prior to same.
13.That the parties are each restrained from denigrating the other party to or in the presence of the children and from allowing any other person to do so.
14.That each of the parties is restrained from taking the children out of the Commonwealth of Australia without the written consent of the other or an Order of this Court, such consent not to be unreasonably withheld provided that the travelling party:
14.1Provides no less than twenty-eight (28) days written (by email or sms text message) notice to the other party of their intention to travel with the children; and
14.2Provides to the other party a full and complete itinerary including flight numbers, flight times, accommodation and telephone contact numbers.
15.The mother shall hold the children’s passports and shall provide them to the father:
15.1within forty-eight (48) hours of request for same being made for the purpose of obtaining visas for the children with the passports to be returned to the mother within forty-eight (48) hours of the visa having been obtained; and
15.2no less than seven (7) days prior to travel for the purpose of the travel, with the passports to be returned to the mother within seven (7) days of return from travel.
16.That each party notify the other as soon as practicable in the event of any serious injury or illness in relation to either of the children and provide the other party with details as to their condition and any hospital at which they have or will attend.
17.That in the event that either child has been hospitalised then both parties are entitled to attend at the hospital during the period of that child’s in-patient status.
18.Each party is to provide the other with details as to the names and locations of any medical professionals consulted in relation to the children and authorise such medical professionals to release to the other parent any details regarding the children’s health.
19.That the parties shall notify each other as soon as practicable should their email address or mobile phone number change.
20.That each party be at liberty to obtain the school reports, newsletters and other information normally available to parent’s from the children’s school at their own cost.
21.That each party be at liberty to attend at any school events including sports days, parent teacher interviews, concerts and the like to which parent’s normally are invited.
22.That each party be at liberty to attend either of the children’s sporting activities and ensure the children’s attendance at same when in their care respectively.
23.If for a continuous period of no less than twenty-six (26) hours during the school term the mother is unable to personally care for the children whilst they are to be in her care pursuant to these Orders, then the father will have the first option to care for them.
24.That in the event that due to illness of the children or either party, the children will not attend their sporting commitments on any Saturday whilst the children are in either parties’ care, the other party shall contact the other party by mobile telephone, no less than one (1) hour prior to the children or either of them being due to attend and facilitate the other party speaking to the children.
25.All extant applications be otherwise dismissed.
The second tranche of the proceedings commenced by way of the mother filing an Initiating Application with respect to parenting issues on 19 June 2019. On an interim basis, she sought a suspension of the time spending orders between the children and their father contained in the final order of 12 October 2016, and on a final basis she sought to particularise the orders she was intending to seek, “following further information about the father’s mental health and alcohol consumption being available.” By the time of the filing of that second Initiating Application, the original final orders had been in place for some two years and eight months. They were filed at a time when the father had, unbeknown to the mother and the children, entered a rehabilitation clinic in Victoria as a result of seriously struggling with his alcohol addiction.
That tranche of the proceedings was finalised by way of the parties entering into a consent order on 6 May 2021, following upon a family report being independently obtained by the parties from Ms H. The order provided for the children to commence attending at C School at the commencement of the 2022 school year, with notations acknowledging the cost of same to be met by the paternal grandparents’. It continued the parent’s equal shared parental responsibility for the children, continued the children’s primary living arrangement with their mother, extended the alternate weekend time to the commencement of school on Tuesday or 9:30am if a non-school day, continued the children’s sharing of their time equally with their parent’s during school holidays and provided for special occasion time with each parent.
The order was otherwise unremarkable in terms of handover arrangements, telephone contact, a continuation of the existing alcohol restraint on the father when the children were in his care, a continuation of mutual non-denigration orders, provision for communication between the parties, the children’s sporting arrangements, travel, passports, medical issues and the discharge of the order appointing the Independent Children’s Lawyer.
There was no requirement under the terms of the order for the children’s time with their father to be supervised. Order 33 however provided that in the event of concerns about the children’s wellbeing in the father’s care, either of his parent’s were at liberty to suspend the time the father spent with the children, in which case the children were to be returned to the mother for the remainder of the period.
This order was consented to by the father in circumstances where, on his case in this tranche of the proceedings, the children had been seeking assistance from Kids Helpline both by way of email and telephone communication arising from feelings of being unhappy and unsafe in the care of the mother because of her and her partner Mr O’s regular excessive consumption of alcohol and emailing and complaining that she was frequently drunk, essentially did not look after them properly, and wanting to be in the care of their father where they felt safe. The mother was not subject to any injunction with respect to her alcohol consumption whilst the children were in her primary care.
I am unaware from the evidence in these proceedings of there being any requests made of the mother during that tranche of the proceedings to have any form of testing with respect to levels of alcohol in her system from time to time or at all.
THE CURRENT PROCEEDINGS
Less than 12 months after the finalisation of the second tranche of the proceedings with the consent of both parties, on terms supported by the Independent Children’s Lawyer as being in the best interests of the children, the litigation was reignited. By this time X was aged 14 and Y was aged almost 12 years.
The Initiating Application filed by the father on 26 April 2022 sought the following orders:
1.That the father, [Mr Amstal], have the sole parental responsibility of the children, [X] (“[X]”) born [in] 2008 (aged 13 years) and [Y] (“[Y]”) born [in] 2010 (aged 12 years).
2.That the children live with the father.
3.That the mother spend such time with the children as deemed appropriate by this Honourable Court.
On 30 August 2022 the father filed an Amended Initiating Application in the following terms:
1.That the parties
father, [Mr Amstal],havethe soleequal shared parental responsibility of the children [X] (“[X]”) born [in] 2008 (aged 13 years) and [Y] (“[Y]”) born [in] 2010 (aged 12 years).2.That the children live with the father.
3.That the mother spend such time with the children as deemed appropriate by this Honourable Court.3.That during the school terms the children spend time with the mother each alternate week, from the conclusion of school on Friday (or 4pm if a non-school day) until the commencement of school on Tuesday (or 8:30am if a non-school day).
4.That during school holiday periods the children spend time with the mother for half of all school holiday periods as follows:
4.1 In respect of the Term 1 and Term 3 school holidays-
4.1.1if the children would ordinarily spend time with the mother pursuant to paragraph 3 herein on the first weekend of the school holidays then the children shall be in the mother’s care for the first week of the school holidays (commencing after school on the first Friday of the school holidays (or 5pm if a non-school holiday day) and concluding at 5pm on the middle Friday of the school holidays) NOTING THAT the children’s time with the mother pursuant to paragraph 3 herein resumes on the last weekend of the school holidays;
4.1.2if the children spent time with the mother pursuant to paragraph 3 herein on the last weekend of the school term then the children shall be in the mother’s care for the second week of the school holidays (commenting at 5pm on the middle Friday of the school holidays and concluding at 5pm on the last Friday of the school holidays) NOTING THAT the children’s time with the mother pursuant to paragraph 3 herein resumes on the first weekend of the school term;
4.2 In respect of the Term 2 school holidays –
4.2.1if the children would ordinarily spend time with the mother pursuant to paragraph 3 herein on the first weekend of the school holidays then the children shall be in the mother’s care for the first half of the school holidays with handover to take place at 12pm on the middle Wednesday with the children to otherwise be in the care of the father NOTING THAT the children’s time with the mother pursuant to paragraph 3 herein shall resume on the first weekend of the school term;
4.2.2if the children spent time with the mother pursuant to paragraph 3 herein on the last weekend of the school term then the children shall be in the mother’s care for the second half of the school holidays commencing at 12pm on the middle Wednesday and concluding at the commencement of school on the following Tuesday (or 9:30am if a non-school day) with the children to otherwise be in the care of the father NOTING THAT the children’s time with the mother pursuant to paragraph 3 herein shall resumes [sic] on the second weekend of the school term.
4.3 In respect of the Term 4 school holidays-
4.3.1In 2022/2023 (and each alternate year thereafter) the children shall spend time with the mother as follows-
4.3.1.1From 4pm on 17 December 2022 until 4pm on 24 December 2022;
4.3.1.2From 4pm on 3 January 2023 until 4pm on 10 January 2023;
4.3.1.3From 4pm on 17 January 2023 until 4pm on 24 January 2023;
NOTING THAT the children are otherwise in the care of the father during the Term 4 school holidays;
4.3.2In 2023/2024 (each alternate year thereafter) the children shall spend time with the mother as follows –
4.3.2.1From 4pm on 10 December 2023 until 4pm on 17 December 2023
4.3.2.2From 4pm on 24 December 2023 until 4pm on 3 January 2024;
4.3.2.3From 4pm on 10 January 2024 until 4pm on 17 January 2024;
4.3.2.4From 4pm on 24 January 2024 until 4pm on 31 January 2024;
NOTING THAT the children are otherwise in the care of the father during the Term 4 school holidays;
5.That the above orders be suspended at Easter time such that:
5.1In 2023 and each alternate year thereafter the children shall be in the mother’s care from the conclusion of school on Maundy Thursday (or 10am if a non-school day) until the commencement of school on the following Tuesday (or 10am if a non-school day);
5.2In 2024 and each alternate year thereafter the children shall be in the father’s care from the conclusion of school on Maundy Thursday (or 10am if a non-school day) until the commencement of school on the following Tuesday (or 10am if a non-school day);
6. That the above orders be suspended on special occasions such that:
6.1The children spend time with the father from 10am on the day before Father’s Day until the commencement of school on the following Monday (or 10am if a non -school day);
6.2The children spend time with the mother from 10am on the day before Moher’s Day until the commencement of school on the following Monday (or 10am if a non -school day);
6.3On the father’s birthday from the conclusion of school (or 10am if a non-school day) until the commencement of school the following day (or 10am if a non -school day);
6.4On the mother’s birthday from the conclusion of school (or 10am if a non-school day) until the commencement of school the following day (or 10am if a non -school day);
6.5On the children’s birthdays with the parent who does not have the care of the children overnight on their birthdays from after school until 7pm (or in the event the birthday falls on a non-school day from 3pm to 7pm).
7.Where handover does not occur at the children’s school then it shall occur at the paternal grandparent’s residence at [D Street, Suburb E], or at such other place as agreed between the parties in writing.
8.While in the father’s care the father shall facilitate the children speaking to the mother by telephone or Facetime each Sunday, Wednesday and Friday between 7pm and 7:30pm by the mother contacting the father on the father’s mobile or on the children’s mobile telephones.
9.While in the mother’s care the mother shall facilitate the children speaking to the father by telephone or Facetime each Sunday, Wednesday and Friday between 7pm and 7:30pm by the father contacting the mother on the mother’s mobile or on the children’s mobile telephones.
10.That the parties shall do all things necessary to facilitate the children contacting the other party by telephone or Facetime when the children request to do so.
11.That the parties be restrained and an injunction granted restraining the parties from:
11.1Consuming alcohol while the children are in their presence and five (5) hours prior to the same and from allowing any other person to do so;
11.2Denigrating the other parent to or in the presence of the children and from allowing any other person to do so;
11.3Denigrating the other parent to any member of the [C School] community or any other person to do so.
12.That all communication between the parent’s occur directly between them by text message or email unless in the case of an emergency.
13.That the parent’s shall notify each other forthwith should their email address or mobile telephone numbers change.
14.That each parent notify the other prior to the commencement of school on a school day if either of the children or both children will not be in attendance on that day or for part of that day.
15.That each parent shall be at liberty to obtain the school reports, newsletters and other information normally available to parent’s from the children’s schools at their own cost.
16.That each parent shall be at liberty to attend any school events including sports days, parent teacher interviews, concerts and the like to which parent’s normally are invited.
17.That each parent shall be at liberty to attend any of the children’s sporting activities (save for training sessions which may only be attended by the parent with the care of the children pursuant to these Orders) and ensure the children’s attendance at same when the children are in their care respectively.
18.That in the event that due to illness of the children or either parent the children will not attend their sporting commitments on any Saturday (or any day) whilst the children are in either parent’s care, the parent with the care of the children shall contact the other parent by mobile telephone no less than one (1) hour prior to the children or either of them being due to attend to facilitate the other parent taking the children to that sporting event (in the event of a parent’s illness) and enable the other parent to speak with the child or children (in the event of a child’s illness).
19.That each of the parties is at liberty to travel within Australia with the children during their scheduled time with the children provided that they first advise the other parent of the travel destination(s) and duration of the travel.
20.That each of the parties is restrained and an injunction granted restraining them from taking the children out of the Commonwealth of Australia without the written consent of the other or an Order of this Court, with such consent not to be unreasonably withheld, provided that the travelling party:
20.1Provides no less than 28 days written notice to the other party of the intention to travel with the children overseas; and
20.2Provides to the other party a full and complete itinerary including flight numbers, flight times, accommodation and telephone contact numbers.
21. The father shall hold the children’s passports.
22.That each party shall notify the other as soon as practicable in the event of any serious injury or illness in relation to either of the children and provide the other party with details as to their condition and any hospital and/or medical practice at which they have or will attend.
23.That in the event that either child has been hospitalised then both parent’s are entitled to attend at the hospital during the period of that child’s in-patient status.
24.Each party is to provide the other with details as to the names and locations of any medical professionals consulted in relation to the children and authorise such medical professionals to release to the other parent any details regarding the children’s health.
25.Each parent do ensure that the other parent is nominated as the ‘contact parent’ at all associated medical (including but not limited to a general practitioner, optometrist, psychologist, psychiatrist, counsellor, therapist, physiotherapist, chiropractor) and hospital attendances.
26.That the Order for the appointment of the Independent Children’s Lawyer be discharged.
27. That all matters be removed from the pending cases list as finalised.
Essentially, the Amended Initiating Application sought a reversal of the existing order of 6 May 2021 such that the children would spend four nights in every two weeks with the mother, and the remaining time with the father, with school holiday time and special occasion time being shared. He proposed a continuation of the earlier specific issues orders save and except that the provision enabling his parent’s to return the children to the care of the mother if they were concerned about his capacity to care for them, as provided for in paragraph 33 of that order, was not included in the orders sought by the father.
Within approximately three weeks of the filing of the fresh Amended Initiating Application an order was made by a Registrar in chambers re-appointing an Independent Children’s Lawyer for the children.
On 11 May 2022 the mother filed a Response to the father’s Amended Initiating Application seeking the following orders:
1.That the Respondent have sole parental responsibility for the children of the marriage [X] born [in] 2008 and [Y] born [in] 2010.
2.That the children live with the Respondent.
3. That the children spend such time with the Applicant as the Court may order.
4.That paragraphs 9, 10, 25 (insofar as it related to the Applicant), 26 and 27 of the Order made on 6/5/21 be discharged.
5.That the Applicant be restrained from removing the children from the Commonwealth of Australia.
On 21 September 2022 leading up to the commencement of the trial the mother filed an Amended Response in the following terms:
1.That all previous parenting Orders be discharged.
2.That the Respondent have sole parental responsibility for the children [X] born [in] 2008 and [Y] born [in] 2010 (“the children”).
3.That the children live with the Respondent.
4.That there be no Order for the children to spend time with the Applicant.
5.That the Applicant be restrained and an injunction be granted restraining him from:
(a)Attending or remaining within 100 metres of the home of the children at [P Street, Suburb Q] or wherever else they may from time to time reside;
(b)Attending at or remaining within 100 metres of [C School] or any other school at which the children or either of them may from time to time attend;
(c)Approaching the children or contacting them by any means or causing or permitting any other person to do so on his behalf (including by telephone or electronic means);
(d)Causing or permitting any person to remove the children from the Commonwealth of Australia.
6.Costs.
which was the position promoted by her at the commencement of the trial.
Prior to the resumption of the trial in late 2023, the mother filed a Further Amended Response on 10 November 2023 in the following terms:
1.That the parties do have equal parental responsibility for the children of the marriage, [X] ("[X]") born [in] 2008 and [Y] ("[Y]") born [in] 2010 (collectively "children"), save that the mother do have sole parental responsibility with respect to the children's health and medical matters.
2.That the children live with the mother.
3.That during school terms, the children spend time with the father each alternate week, from the conclusion of school on Friday (or 4:00pm if a non-school day) until the commencement of school on Tuesday (or 9:30am if a non-school day).
4.That during school holiday periods, the children spend time with the father as follows:
4.1During the school term holiday periods the children's time with the father pursuant to paragraph 3 above shall continue and shall be extended to conclude on Friday at 5:00pm;
4.2In the event that a school term holiday is for a period of three weeks then during that holiday period:
4.2.1the children shall remain in the care of the parent whose care they are in during the first weekend of the holiday period (pursuant to the rotation in accordance with paragraph 3 above) until 12 noon on the middle Wednesday of the holiday period and then be in the care of the other parent for the remainder of the holiday period;
4.2.2in the event that the children are spending time with the father in the second half of the holiday period, then the children's time with the father shall conclude at the commencement of school on Monday and if not a school day then the commencement of school on Tuesday (or 9:30am if a non-school day).
(Upon noting that the children's time with the father pursuant to the paragraph 3 above, shall recommence in the school term upon the same rotation as if it had continued through the school holiday period.)
4.3During the Christmas school holidays:
4.3.1in 2023-24 and each alternate year thereafter:
4.3.1.1from the conclusion of the final day of the school year until 5:00pm on 10 December (and in the event that the final day of the school year falls on 10 December, then this sub-paragraph is suspended);
4.3.1.2From 5:00pm on 17 December until 5:00pm on 24 December; and
4.3.1.3from 5:00pm on 3 January until 5:00pm on 10 January and each alternate week thereafter;
4.3.2in 2024-25 and each alternate year thereafter:
4.3.2.1from 5:00pm on 10 December until 5:00pm on 17 December (and in the event that the final day of the school year falls on 10 December, then from the conclusion of school that day);
4.3.2.2from 5:00pm on 24 December until 5:00pm on 3 January; and
4.3.2.3from 5:00pm on 10 January until 5:00 pm on 17 January and each alternate week thereafter.
(Upon noting that the children's time with the father pursuant to the paragraph 3 above, shall recommence in the school term upon the same rotation as if it had continued through the Christmas school holiday period.)
Easter
5.That the above Orders be suspended such that:
5.1in 2024 and each alternate year thereafter, the children shall spend time with the father from the conclusion of school on Maundy Thursday (or 10:00am if not a school day) until the commencement of school on Tuesday (or 10:00am if not a school day) and
5.2the children be in the mother's care during the 2025 Easter period and each alternate year thereafter from the conclusion of school on Maundy Thursday (or 10:00am if not a school day) until the commencement of school on the following Tuesday (or 10:00am if not a school day).
Other Special Occasions
6. That the above Orders shall be suspended such that:
6.1the children do spend time with the father on Father's Day from 10:00am until the commencement of school on the following Monday (or 10:00am on the Monday if a non-school day);
6.2the children do spend time with the mother on Mother's Day from 10:00am until the commencement of school on the following Monday (or 10:00am on the Monday if a non-school day);
6.3on the father's birthdays (if the father is the non-residential parent) the children do spend time with the father from the conclusion of school (or 10:OOam if a non-school day) until the commencement of school the following day (or 10:00am if a non-school day);
6.4on the mother's birthdays (if the mother is the non-residential parent) the children be in the mother's care from the conclusion of school (or 10:00am if a non-school day) until the commencement of school the following day (or 10:00am if a non-school day);
6.5on the children's birthdays:
6.5.1if the father is the non-residential parent the children shall spend time with the father from the conclusion of school (or 3:00pm if a non-school day) until 7:00pm; and
6.5.2if the mother is the non-residential parent the children be in the mother's care from the conclusion of school (or 3:00pm if a non-school day) until 7:00pm.
Handovers
7.Where handover does not occur at the children's school, then it shall take place at the mother's residence (currently at [P Street, Suburb Q]) or at such other place as agreed between the parties.
Telephone Contact
8.That the parties shall allow and facilitate the children contacting the other party by telephone or other electronic means when the children reasonably request to do so.
Injunctions
9.That the parents are each restrained and an injunction granted restraining them from denigrating the other parent to or in the presence of the children and from allowing any other person to do so.
10.That the parents are each restrained and injunction granted restraining either of them from denigrating the other to any member of the [C School] community or allowing any other person to do so.
11.That the parents are each restrained and injunction granted restraining them from discussing these proceedings with the children.
Communication Between the Parties
12.That all communication between the parent’s occur directly between each of them by text message or email unless in the case of an emergency.
13.That the parents shall notify each other forthwith should their email addresses or mobile telephone numbers change.
14.That in the event that the father is admitted to hospital or a rehabilitation facility, the father shall notify the mother of the admission or intended admission, tell her for how long the father expects to be admitted and tell her forthwith when he is discharged.
15.That the parties are each restrained from setting up and/or operating on behalf of the children or either of them a social media account, including but not limited to Facebook and Instagram accounts, without the written consent of the other parent having first been obtained.
Education
16.That each parent notify the other prior to the commencement of school on a school day if either of the child or children will not going to be in attendance on that day or for part of the day.
17.That each parent be at liberty to obtain the school reports, newsletters and other information normally available to parents from the children's school at their own cost.
18.That each parent be at liberty to attend at any school events including sports days, parent teacher interviews, concerts and the like to which parent’s normally are invited.
19.That each parent be at liberty to attend at any of the children's sporting activities (save for training sessions, which may only be attended at by the custodial parent) and ensure the children's attendance at same when in their care respectively.
20.That in the event that due to illness of the children or either parent, the children will not attend their sporting commitments on any Saturday (or other day) whilst the children are in either parent's care, the other parent shall contact the other parent by mobile telephone, no less than one (1) hour prior to the children or either of them being due to attend to facilitate the other parent taking the children to that sporting event and enable the other parent to speak with the sick child or children.
Travel
21.That each of the parties is at liberty to travel within Australia with the children, provided that they first advise the other parent of the travel destination(s) and duration of the travel.
22.That each of the parties is restrained from taking the children out of the Commonwealth of Australia without the written consent of the other or an Order of this Court, such consent not to be unreasonably withheld provided that the travelling party:
22.1Provides no less than twenty-eight (28) days written (by email or sms text message) notice to the other party of their intention to travel with the children; and
22.2Provides to the other party a full and complete itinerary including flight numbers, flight times, accommodation and telephone contact numbers.
Passports
23.The mother shall hold the children's passports and shall provide them to the father:
23.1within forty-eight (48) hours of request for saying being made for the purpose of obtaining visas for the children with the passports to be returned to the mother within forty-eight (48) hours of the visa having been obtained; and
23.2no less than seven days prior to travel for the purposes of the travel, with the passports to be returned to the mother within seven (7) days of return from travel.
Medical
24.That each party notify the other as soon as practicable in the event of any serious injury or illness in relation to either of the children and provide the other party with details as to their condition and any hospital at which they have or will attend.
25.That in the event that either child has been hospitalised then both parents are entitled to attend at the hospital during the period of that child's in-patient status.
26.Each party is to provide the other with details as to the names and locations of any medical professionals consulted in relation to the children and authorise such medical professionals to release to the other parent any details regarding the children's health, noting that the father will not arrange any such consultations save and except in the case of medical emergency.
27.That each party be at liberty to obtain the school reports, newsletters and other information normally available to parent’s from the children's school at their own cost.
Other
28.In the event of concerns about the children's wellbeing in the father's care, either of his parent’s shall be at liberty to suspend the time that the father spends with the children, in which case the children will be returned to the mother for the remainder of the period.
29. That the mother shall provide a copy of these Orders to the father's parent’s.
30.That Order for the appointment of the Independent Children's Lawyer be discharged.
31. That all previous parenting Orders be discharged.
32. That all matters be removed from the pending cases list as finalised.
33.That the father do pay the mother's costs upon such basis as the Court shall determine.
THE LAW
These proceedings and the associated trial commenced prior to the 2024 amendments to the Family Law Amendment Act 2024 (Cth) and accordingly must be determined under the provision of the Act prior to those amendments.
Part VII of the Act provides the legislative framework within which the Court determines the parties competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards to children's orders, namely to ensure that the best interests of the children are met by:
(a)ensuring that the children have the benefit of both of their parent’s having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parent’s fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the objects are set out in section 60B(2) of the Act and provide that, except when it is or would be contrary to the child's best interests:
(a)children have the right to know and be cared for by both their parent’s, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parent’s and other people significant to their care, welfare and development (such as grandparent’s and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order.[4] To determine the best interests of a child the Court must consider the factors set out in s 60CC(2) and (3) of the Act.
[4] s 60CA of the Act.
Section 61DA of the Act provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child's parent’s to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with that parent, has engaged in abuse of the child or family violence, and may be rebutted if the court is satisfied that it would not be in the child's best interests for the child's parent’s to have equal shared parental responsibility.[5]
[5] ss 65DA(1), (2) and (4) of the Act.
In the event that an order is made for equal shared parental responsibility, the court must consider whether it is in the child's best interests to spend equal time with each of his or her parent’s and whether it is reasonably practicable for this to occur.[6]
[6] s 65DAA(1) of the Act.
If the Court determines that such an order is not in the child's best interests, it must consider whether it would be in the child's best interests to spend substantial and significant time with each parent and whether that is reasonably practicable.[7]
[7] s 65DAA(2) of the Act.
The Act defines what is meant by substantial and significant time,[8] and specifies that the court must have regard to certain issues when deciding whether orders are reasonably practicable.[9]
[8] s 65DAA(3) of the Act.
[9] s 65DAA(5) of the Act.
All of those issues must be considered against the backdrop of the requirement that the parenting order the court makes must be in X’s and Y’s best interests, as determined in accordance with the provisions of section 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.
EVIDENCE
The father
At the commencement of the trial the orders sought by the father remained those set out in his Amended Initiating Application filed on 30 August 2022.
The father relied on his trial affidavits filed on each of 30 August 2022, 13 September 2022 and 20 September 2022 together with the affidavits of each of his parents, Mr and Mrs B Amstal, both sworn on 31 August 2022. The father also relied on evidence from his psychiatrist Dr K, Dr R, a general practitioner, and Mr S and Ms T, both staff of C School.
The father’s evidence in chief and in cross-examination primarily consisted of a litany of complaints regarding the mother including:
·Her persistently drinking alcohol to the state of drunkenness and that conduct engendering fear in the children
·The children constantly complaining to him about their mother being drunk, them being scared in her care, she and her partner drinking together and fighting, and their desperate desire to live with him
·Her conduct resulting in the children’s desire to tell police, child protection authorities, Kids Helpline, counsellors at school, family report writers and Ms J about the mother’s inappropriate behaviour as a parent, and their wish to live with their father
·The mother defaming him to the children’s school and other parent’s
·The mother being a liar and deceitful
·The mother and her partner being physically abusive to the children
The children not being safe with the mother, other than on a limited basis, perhaps constituting spending time with her on a Friday and Saturday night every second week
·The mother being jealous of his relationship with the children
·The mother being bitter and resentful of his financial position, and what she received upon property settlement
·The mother having no morals in her lifestyle and generally not being a moral person
·The mother using anything she can to get away with what she wants to do
·The mother having a problem with her lifestyle as regards to regular attendances at hotels and restaurants
·The mother letting Y stay home from school for reasons of sickness, but then wanting to take him to extracurricular activities after school
·The mother putting her interests ahead of the interests of the children and, for example, not feeding them adequately and not listening to or taking into account their concerns about her conduct.
The father conceded in cross-examination:
·He thinks the boys love their mother and enjoy time with her
·To a certain extent he agrees it is good for them to spend time with the mother
·That the mother was a positive influence on the boys to a certain extent, apart from taking them to places and buying things for them
·The observations recorded by Ms H in her report of 19 February 2020 regarding interaction between X, Y, the mother and Mr O, did not suggest any level of fear on the part of the children
·There appeared to be a good relationship between the children and the adults as observed by Ms H, but it was his belief that the relationship was strained between them
·He thought the children would be safe in the care of the mother would perhaps be on a Friday and a Saturday night in every second week
·Such a position was not his case before the court at the time of trial but he was “going by legal advice” in proposing more time in the orders he proposed
·That he and the children, X in particular, engaged in regular message communications on various social media effectively “behind the mother’s back,” at times involving a code unknown to the mother, and which communications were mostly deleted by he and the children
·That he thought it was unfair that the mother had been successful in obtaining orders for primary care of X and Y at all times since separation
·That he thought it was now fair for him to have primary care of the children, but there were also problems in the mother’s home creating a toxic environment for the children there
·That it was his belief that everything the children had said to him about their life in the mother’s household was absolutely true
·That all of the expert reports during the history of the proceedings had praised the mother’s parenting
·That consenting to previous final orders in their terms was inconsistent with the children having told him for a long time prior to those orders that they were frightened of the mother, but he did not know how bad the problems were
·That he thought he would receive support from SAPOL, the Department for Child Protection and the school when he retained the care of the children in April 2022
·That X refers to the mother’s partner Mr O as a “wanker”, as does he
·He did not support the children seeing Ms J and that Ms J had spoken of her concerns about the children being alienated from the mother in her report of June 2022
·That after receipt of and reading of Ms J’s 2022 report, he and X exchanged over 200 messages at a time when the children were in the care of the mother and that such a level of messaging was excessive
·That the messages that he and X exchanged whilst X was in the care of his mother, including sarcasm and inflammatory comments was not healthy, that the tone of the messages was very inappropriate, including referring to the mother’s partner as “a wanker,” but Mr O “does not help himself”
·That it was his wish to have 24/7 care of X and Y
·That the police had not taken any action with respect to allegations of assault by the mother or her partner against either of the children
·That he wanted to delete messages between he and X so that mother could not read them
·Agreed that X had told Ms J that he wished to spend 60% of his time with his father and 40% of his time with his mother
·That he had threatened the principal at C School to “lawyer up” when the school did not support him retaining the children in his care in 2022
·That he picked X up from school if contacted by the school and advised that X wanted to go home
·That X suffered bullying at school
·That he has never pulled X up for calling Mr O “a wanker” or “a leech”
·That the name on his telephone for Mr O is “freeloader”
·That it is possible that X and Y have a “skewed” perception regarding the question of an appropriate consumption of alcohol
·That he is anxious about the welfare of the children and worries about them all the time
·That he still has both a historical and current concern that the mother will physically abuse X
·That the children know that he and the mother are arguing about their living arrangements and they know he thinks the mother has a drinking problem and that she is critical of him and that they do not get on
·That he has told the children that wine is bad and not good for them, and that he has not differentiated between drinking too much or drinking at all in those conversations
·That the welfare of the children is a topic he feels anxiety about, that he has an anxiety problem beyond a normal range of anxiety, but the medication he is prescribed helps with that
·That he does not trust the mother and assumes the worst of her from his experience
When asked by the court what the father considered the mother’s good qualities to be he said:
·They are properly dressed for school
·She washes their clothes
·She cooks dinner for them
·She gets the children to sport
·She helps them with their homework
·She ensures she complies with whatever the school asks from both parents
·She takes them to a proper health centre if the boys are unwell
·She takes X to his orthodontist
·In general, she loves her sons
When being cross-examined about the mother’s concern that he engages in conduct, designed to alienate X and Y from her, the father conceded that he and the children, X in particular, had regular message communications on various social media effectively “behind the mother’s back” and at times involving a code unknown to the mother.
Cross-examination about all of these issues went on for a period of some 10 days. The father conceded that on the days that he collected the boys from school, he would spend up to two hours before the end of the school day on the school grounds, sometimes waiting in the car but at times, obvious on the school oval in an attempt to alleviate X’s anxiety.
During cross-examination the father also told the court that:
·He and the children are not interested in the mother’s lifestyle and the morals, value and principles are very different in the mother’s family
·The level of messaging between he and X after receipt of Ms J’s 2022 report were excessive but X was sending messages and he replied to all of them because unfortunately X cannot talk with his mother, he just wants to be heard, the mother had told him that she hoped he could talk to her one day regarding all of his feeling and he had told her that would never happen
·That although it was his wish to have 24/7 care of X and Y, in his affidavit he just asked for the existing time orders to be reversed, that the children need their mother and he was absolutely hoping and praying that reports from the police, the Department for Child Protection and the school would have the mother look in the mirror and see that she should have to change
·The reason that he and X wanted to delete messages between them was that if the mother had access to them she may misconstrue the messages which were not put downs but ordinary messages as X had such confidence in him
As I have already said, I do not intend to set out the evidence about each and every complaint made by the father against the mother. I accept that the father suffers from long term serious anxiety as described to the court by his treating psychiatrist Dr K. It was clear from the father’s evidence that the children X and Y are the focal point of his life.
When asked why he thought the children would be safe with the mother for two nights a fortnight in light of the level of his concerns, he said that the children needed their mother to the extent of some type of relationship with her that was just normal. When asked why two nights a fortnight would be appropriate as opposed to for example three nights, he replied that come Monday, if in his care, the boys would be at school on time, their homework would be done and they would not be subjected to late Sunday nights. When asked what he considered the risk factors in the mother’s household were, he said that he would hope that on the Friday and Saturday nights the mother would ease up on her alcohol consumption, and that their homework would be done early but that it doesn’t get done in her household.
When asked if he thought the mother could drink on the Friday or Saturday night, or at any time, it was the father’s view that hopefully by orders such as Friday and Saturday night time every two weeks, the mother would come to a conclusion to change her ways and to try and gain trust, loyalty, love and respect from the children if she can be present for the children and be there for them, because at the moment in his opinion she was not such a mother.
He expressed the view that the children could see and have trust in him but not with their mother. He expressed the view that the mother should stop drinking entirely and he would know because the boys would tell him. He denied that he was saying X and Y would police her, but that they would just tell him that she was not drinking.
The father’s presentation in the witness box, noting that the experience would likely have been more difficult for him that it may be for people who do not suffer a serious anxiety disorder, was often intense, agitated, and some of his evidence as to the mother’s failings and the impact on the children of those failings boarded on an obsessional presentation.
The father told counsel for the Independent Children’s Lawyer that he had never told the children about the high level of conflict between he and their mother, but then conceded that he had talked of court orders with the children, that the children knew he was angry about the living arrangements under existing court orders, that he thought the mother had a drinking problem and that he and the mother do not get on.
Throughout the very extensive cross-examination he was loath to make any concessions at all as to any negative impact on X and/or Y arising from:
·his intensive telephone and social media interaction with them, unknown to the mother
·his alleged refusal to engage in conversation with the children about aspects of life in their mother’s household and their mother’s relationship with Mr O
·his aiding and abetting the children’s interactions with police and the Kids Helpline, noting his initial denial that he had anything to do with assisting the children in contacting the Kids Helpline, or that he was present during any of their interactions with that organisation
Other than on one or two minor occasions, the father was adamant in cross-examination that he believed everything the children had to say to him about life with their mother including the level of her consumption of alcohol, her lifestyle, her relationship with her partner Mr O and their frequent and vehement views expressed to him as to the capacity of the mother to properly parent them and to keep them safe.
Notwithstanding all of the above I am satisfied that the father dearly loves both X and Y, but his presentation and the content of his evidence caused me to have some concern as to his parenting capacity, particularly with respect to his capacity to provide for the children’s emotional needs to which I will refer later in these reasons.
The mother
The evidence adduced by the mother indicated that there were two issues of serious concern for her, namely:
·The father’s ability to maintain his sobriety
·What she perceived to be the concerted effort on the part of the father to alienate X and Y from her
The cross-examination of the mother occupied some seven days of the hearing. As in the case of the father, little of the evidence adduced in cross-examination had significant bearing on the matter to be determined by the court, namely what parenting arrangements would be in the best interests of the children such that they could maintain a meaningful relationship with both parents, be free from any risk of physical or psychological harm in the care of either parent and be free to pursue a close and loving relationship with each of their parents.
During cross-examination, the mother conceded:
·That she had told Ms H, Ms J, Dr R, “people” at C School and police officers that the children wanted to spend more time with the father
·That she deliberately did not ask the children whether they had told the father they wanted to spend more time with him when she was away for work
·That her parent’s cared for the children when she was away at work
·That she could not entertain the possibility of the children wanting to stay with the father or the paternal grandparents while she was away for work
·That it was her position that the children did not mean what they were saying about their living arrangements
·That she had not initiated discussions with the children after the publication of Ms H’s report, and that the only view that they had articulated to her regarding their living arrangements was wanting things to stay the same
·That the children had provided information to Ms J in 2022 to the effect of wanting more time with and to live with their father
·That while she has a view that the children’s articulated views are not consistent with their true feelings, she had not explored that with either child and nor to her knowledge had her partner
·That following the 2016 consent orders time spending arrangements until 9 May 2019, when the father failed to collect the children for time with them, was “not too bad”
·That when she issued proceedings in court on 19 June 2019, she told the court that whatever was going on it was likely to be alcohol related and she was seeking the order for time spending to be suspended
·That she had rejected a request by the father to resume time spending with the children under the supervision of his parent’s on 20 June 2019
·That she promoted time spending between the children and their father being supervised by the father’s parent’s from 29 July 2019 to 6 May 2021
·That it was her position that the father’s alcohol issues and associated behaviour put the children at risk
·That she was a social person
·That she and the father did not know each other well prior to the unexpected pregnancy with X, and that they had not lived together for long
·That X had problems forming close friendships but that he and the school had done a lot of work on conflict resolution and that X was becoming incredibly independent
·That the father’s use of alcohol was a significant issue for her and in her view impacted on the father’s capacity to care for the children
·That she understood the father’s allegation that her use of alcohol impacted on her capacity as a parent
·That she was concerned the father did not behave in a manner that was a safe for the children at times
·That following upon the father’s attendance at U Clinic, the father had been successful in abstaining from alcohol use
·That there was no solid evidence that he had been drinking since August 2019
·That she had not alleged in her trial affidavit that the father had consumed alcohol since 2019
·That if there had been any hint of him doing so, it would have appeared in her trial affidavit
·That on page 11 of Ms H’s report dated December 2019 she reported that the three wishes of the children proposed to her were to spend time with their father without supervision, to spend more time with their father and to receive more attention from their mother
·That from 2019 to 6 May 2021 the children’s time with their father continued to be subject to a level of supervision and that she was not prepared to have that requirement released
·That when X was upset with her in relation, for example, to an issue of discipline, he had said to her that he would go and live with the father
·That between 2019 and 2021 she had no discussions with the children regarding the requirement of supervision for their time with their father
·That she may be wrong to reject what the children told Ms H as to their views and perceptions in the absence of any discussions as between she and the children
·That the children report that alcohol safety is an issue for them as it is for her regarding the father
·That the father had raised her use of alcohol as a problem since 2013
·That she had continued to consume alcohol since that time and that, on her case, it was at an appropriate level
·That in April 2019 she had advised the father by text message that drinking and making alcohol at home and working in the hospitality industry did not make her an alcoholic
·That she told Ms J something like her alcohol use being moderate and not impacting on her like it does on the father
·That Ms G had suggested in her 2013 report that all adults in the life of the children check their use of alcohol
·That she made alcohol at home and, depending on the vintage, drank some of it at home
·That the children had expressed a view that alcohol use by someone caring for them may mean they are not safe but she did not believe it was in fact their view
·That it was her evidence that the children were vigilant about making observations as to her alcohol use and reporting it to the father
·That the children had told Ms H they were concerned as to her level of alcohol consumption
·That the children told Ms J that she was getting drunk all the time and made them feel unsafe but that she was saying it was absolutely not true
·That she had not countenanced the possibility that her drinking 4 nights per week makes the children feel unsafe regardless of whether or not their concerns are reasonable
·That that since 2019 the father’s evidence, both written and oral, had put her use of alcohol front and centre of the matter
·That that she did not accept the concerns expressed by the children consistently about her alcohol use are genuine concerns
·That it was her view that when X spoke to Ms J in 2022 about not feeling safe, it was not a true reflection of his concern
·That even if Y expressed being fearful of she and Mr O being drunk and swearing at them, she did not believe that to be a genuine fear
·That X had expressed at C School that she drank so heavily she was unable to respond to his needs, but that she did not believe it was X’s actual thoughts
·That it was possible that in 2022 Y and X thought she and Mr O were alcoholics but that was because of the level of coercion from the father and his family
·That the children, at the time of trial, were still reporting to external people about the issue of her consumption of alcohol
·That it was her position that Mr O did not “manhandle” Y into the pool fence and in fact did not lay a hand on Y
·That she had not seen the incident but believed what Mr O had told her
·That she had told Ms H, during a second interview in December of 2019, that X was fixated on getting more time with his father
·That the children are protective of and close with each other
·That she had told the father in text messages that he was a “sad pathetic human being” and that he make her “physically sick”
·That she had discussions with staff at C School at the commencement of the 2022 school year mentioning the father’s history of alcohol abuse and litigation between the parties
·That in making an application for an intervention order in early 2022 that some wording used by her exaggerated the circumstances of the matter
·That the effect of what she said in her affidavit in support of her private application for an intervention order was that she wanted the Magistrates Court to think that the father’s behaviour was so bad that he had to have supervised time with the children
·That the father had done nothing to breach the intervention order that she had obtained at that time
·That she should have stated in her trial affidavit that since 2019 the father had not been drinking to her knowledge
·That during the incident when the father retained the children in his care and the mother applied for an intervention order, in early to mid 2022, that the children were saying that they wanted stay where they were (i.e. with the father)
·That the police attending at the father’s home was unnecessary and caused distress, that what had happened was unpredictable for the children and what she wanted to do was have the police remove the children and return them to her care
·That when the police returned again later in the day to the home of the paternal grandparents, the children were exceptionally distressed. They refused to go into her care and that two police attendances in one day was extremely distressing for the children
·That the children were distressed when she attended to collect the children at C School after the incident
I do not find on any of the evidence given by the parties and their witnesses in this matter, that either X or Y have ever been objectively neglected or been subject to any family violence.
I am however concerned that both children have been subjected to and exposed to psychological harm as a result of many years of high level conflict between their parents’. Their father had a long difficult history of alcohol abuse and social anxiety. It was to his credit that by the time the trial commenced in 2022 and throughout the entirety of the following 2 years there was no evidence of him having succumbed to the need to use alcohol.
X and Y’s parents’ have nothing in common other than their children. Their relationship was short lived, the children were born very early in the relationship before they had lived together for any significant time, and their personalities are entirely different. The mother is a frequent user of alcohol. I am satisfied that in her evidence and her answers in cross-examination, on occasion she understated the extent of her use of alcohol.
Nevertheless, there was no evidence including from Dr W or Dr Z, that is suggestive of the mother having a dependence on alcohol. I find that she and her partner Mr O are very socially active and their socialisation frequently includes the consumption of alcohol. I also find that notwithstanding the mother’s very clear knowledge of the children’s propensity to complain about her use of alcohol to many and varied people, she did nothing to attempt to discuss the children's concerns with them to try to assist them to consider an alternate narrative to that in respect of which they were continuously encouraged by their father and their paternal grandmother.
It was an extraordinary feature of the mother’s evidence that at no time did she ever have meaningful conversations with X and Y or either of them as to their concerns about her lifestyle, the difference between her lifestyle and that of their father, and what she could do to ameliorate their feelings of helplessness and confusion arising from being constantly caught in conflict between she and their father, as illustrated by their involvement in court proceedings of which the children were well aware.
I find on the father’s evidence that, taking into account his overwhelming desire to have the children in his full time care, he encouraged the children to become involved in the proceedings by failing to appropriately ameliorate the distress and agitation expressed by the children to him about their mother’s lifestyle and level of care for them and to help bring some balance into their thoughts.
I am satisfied that his deep seated criticism of her lifestyle, drinking habits and morals clearly expressed in the witness box during cross-examination, are likely to have their genesis in the contrasts he sees with his challenging lifestyle.
The use by the father and the paternal grandparents’ of the mother’s first name in discussions with the children, rather than referring to her as “mum,” and their acceptance and encouragement of the children to refer to her in that manner when they only refer to their father as “dad” clearly illustrates to the children the level of contempt in which she is held by their father and grandmother in particular.
The mother’s disdain of the father, aided and abetted by Mr O as evidenced in numerous text messages to the father, is intended to belittle him and sends a message to the children that he is the source of derision to their mother and her partner.
After all the years that the children have been subject to these damaging behaviours on the part of both of their parent’s, it is to the children’s credit that both X and Y have managed to progress through school, form friendships and maintain meaningful relationships with both sides of their family. I find that reflects the very real likelihood that there are significant periods of their life where there is respite from their parent’s conduct that has been of benefit to them and protective of them.
Nevertheless, I find that the children have both suffered psychological harm from being subjected to or exposed to abuse in the form of the long standing conflict between their parent’s, which exposure has significantly impacted both children but more particularly X, who is overall of a more anxious disposition than Y.
It is unlikely that a court order will protect them from that behaviour in the future. It is more likely that a concerted effort to monitor their own inappropriate behaviour on the part of both of their parent’s will protect them from that exposure. The history of this matter however and the previous warnings given by the court give me little confidence that that will occur.
Additional Considerations
s 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
I find on the evidence that this is an exceedingly important factor in this matter.
At the time of trial X was aged nearly 16 years and Y nearly 14 and a half years.
It was clear from the evidence of the father as well as material contained in:
·Various exhibits including material subpoenaed from Kids Helpline for the period January 2019 to January 2021
·Annexure M10 being parental notifications to the Department of Child Protection between November 2017 and April 2022
·Exhibit ICL-6 being the co-located SAPOL material concerning the father, the mother and the children
·Exhibit F10 being the interview notes of Ms H with the mother and Mr O
as well as the evidence adduced by the father in chief and in cross-examination, that X and Y had made an extraordinary amount of complaints about the mother’s use of alcohol and their safety in her household over a number of years prior to the consent order being made by the court on 6 May 2021 which granted the responsibility for the primary care of the children to the mother.
At the time of trial there was no evidence before the court to satisfy me that the mother consumed alcohol to such a level that she was unable to properly carry out her parenting duties, or to suggest that the children were at any level of risk in her care.
Notwithstanding I find that to be the case, that was clearly not the perception of either X or Y, whose complaints were whole heartedly accepted, encouraged and what could only be enthusiastically joined in with by the father.
I find that the father’s diagnosed social and general anxiety, together with his belief that the orders were unfair in that the children spent more time with their mother than with him, led to a situation whereby his overwhelming desire to have the children live with him led him to encourage the children to assist him achieve his outcome.
It was unclear on the evidence whether that was a deliberate course of action on his part or whether it was borne out of an extreme level of anxiety exacerbated by what he considered to be an unsatisfactory parenting arrangement for the children and their safety in the care of the mother.
In any event, although I do find that it is a very important factor, I am mindful of their ages, I must also take into account the impact of the father’s conduct in embroiling the children in the dispute to the level that was evident in his evidence. It follows that I have concern as to the reliability of the children’s wishes as expressed by them to so many people.
I am satisfied that the children were well and truly aware of the father’s view of their living arrangements with their mother, and that they love their father dearly and were desperate to do what they could to help him to feel less anxious and happier.
I am equally satisfied that the children’s compliance over many years, particularly in more recent teenage years, with the orders of the court, are evidence that they have a close and loving relationship with their mother. It also gives cause to reflect on the validity and reliability of the views expressed by the children.
The failure of the mother to embark on any course of gentle discussion with the children from time to time about how they were feeling about their living arrangements and her use of alcohol, I find was unhelpful in assisting the children to feel more confident of their feelings.
s 60CC(3)(b) – The nature of the relationship of the child with:
(i) each of the child’s parent’s; and
(ii) other persons (including any grandparent or other relative of the child).
I have already referred to the relationship X and Y have with each of their parents as meaningful relationships.
I find on the evidence that an element of the children’s relationship with their father is a perceived need to support and protect him.
The father has not had employment for many years and there was no evidence of any significant social life outside of time with the children and his parents’ who are clearly and appropriately supportive of their son. I find that the children are the absolute focal point of the father’s life.
Both X and Y clearly love their paternal grandparents and have a very close relationship with them, particularly their paternal grandmother.
Notwithstanding the children’s complaints about their maternal side of the family, there was no evidence to satisfy me that the children have anything other than a meaningful relationship with their maternal family, including grandparents’, aunts, uncles and cousins. The maternal grandparents played a significant role in caring for X and Y whilst the mother was absent interstate and overseas with work commitments over a period of time and there was evidence supporting holiday and other activities with the extended maternal family.
Much of the time they spend with their father, even though supervision is not required, is actually spent in the home of or in the company of the paternal grandparents. It is of significant concern that both the paternal grandmother and paternal grandfather are of the view that the mother has no positive qualities, either as a successful working woman, or as a parent.
I have rarely heard more scathing evidence from a grandparent towards a parent of their grandchild than emanated from the paternal grandmother over a period of several days. The evidence raised serious concerns about her capacity to guide her grandchildren X and Y through the conflict they have had to endure for many years, and her encouragement for the children to communicate with Kids Helpline including assisting in that contact, being present during that contact on occasions and encouraging X to record a session with Ms J, raised serious alarm bells.
The paternal grandfather’s evidence in cross-examination suggesting that X putting nails in a car tyre was funny cast a shadow over how he saw the role of a caring, loving and responsible grandfather.
s 60CC(3)(c) – The extent to which each of the child’s parent’s has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child.
I am not satisfied that that is a factor of particular relevance in this case, notwithstanding issues that have arisen from time to time with respect to the conveying of information each between the other of them, including the father taking the children to C School for a tour without the knowledge of the mother. There is no evidence that these issues have resulted in any significant impact on the children and the major issues have ultimately been resolved by the parties.
s 60CC(3)(ca) – The extent to which each of the child’s parent’s has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Notwithstanding the mother’s complaints, it is perfectly clear that the father, with the assistance of his parent’s, has made significant contribution towards the maintenance of both X and Y, including the grandparents bearing the significant cost of expensive private education for both children.
I accept the father’s lack of personal capacity to contribute towards the maintenance of both children in light of his long term unemployment is genuine but overcome with the assistance of his family.
s 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parent’s; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
I find that both X and Y will likely view any order that provides for them to spend additional time with their father as confirmation that their numerous complaints about their mother have had substance and that the court has finally heard them and listened to their views.
Such a circumstance may well, particularly if it results in significant extra time with their father, result in a perception on their part that their life will be much happier and that their problems will be solved.
It is perfectly clear from the evidence in this case that unless both of their parent’s significantly change the means by which they interact and view the other of them no change to living arrangements is going to provide the children overall with a better quality of life and a greater sense of happiness. As I have said previously in these reasons this matter is less about the children but more about their parent’s conduct and conflict, particularly that of the father aided by his own parents.
The impact of that behaviour has been exacerbated by the lack of capacity on the part of the mother to help her children navigate the dangerous seas on which they have found themselves drifting for so long.
In the short term, the ability to spend extra time with their father will be something that I am satisfied the children will manage perfectly well, but I am concerned that an overcorrection in the children’s current circumstances will significantly reduce any sense of balance in the children’s relationship with each of their parents, or assist with them acquiring a greater sense of perception regarding the impact on them of their parent’s conduct.
s 60CC(3)(e) – The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parent’s on a regular basis.
I do not consider this factor to be relevant in the circumstances of this case.
s 60CC(3)(f) – The capacity of:
(i) each of the child’s parent’s; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that both parents can provide adequately for the children’s physical needs and their intellectual needs.
I have already referred at length to my serious concerns about the capacity of both parents, but particularly the father, to provide for the children’s emotional needs. I find on the evidence that the father has encouraged what could best be described as a “false narrative” in the children, namely that alcohol is not a problem for him but is a serious problem for their mother. There is no doubt the father’s efforts in maintaining an alcohol free lifestyle since 2019 however is to his credit. It is however unfortunate that the period of sobriety has not come with greater insight into the issues concerning his children.
I have already referred to the mother’s more social lifestyle and her regular consumption of alcohol.
I am satisfied, taking into account the evidence of Dr W and Dr Z in particular that the mother’s alcohol use is frequent, that it is part of what might best be described as a very social lifestyle, including frequent social outings both during the week and on weekends, which often and certainly on weekends usually involve consumption of alcohol. I do not however accept the father’s evidence or that of his parents’ that her level of alcohol use exposes the children to any risk.
It is understandable that an aversion to alcohol use is a feature of the father’s presentation and that of his parent’s, taking into account the very serious impact it had on his life from at least the early 2000’s to 2019. The level of his alcohol use as described to Dr K, and to doctors at U Clinic indicates the impact that would have not only on him but also on his parents, who clearly took a significant role in assisting to care for him.
As I have already said, the mother could well have had meaningful discussions with her children over many years about their complaints concerning her use of alcohol, could have helped them understand the differences between the household’s attitudes to and reasons for their differences to the use of alcohol and the factors that lead to that, could have ameliorated her own alcohol use in consultation with the children without the need to dramatically cease that use altogether when the children were present, and greatly assisted the children with their anxiety, rather than giving them the impression that the father was a source of derision to her, her family and her partner and that their views and perceptions were not matters for discussion.
It is to be hoped that following upon these proceedings and the children attaining adulthood, within a period of 18 months in the case of X and in approximately three years in the case of Y, both parents and their respective extended families will have adopted a dramatically different approach to the resolution of any differences that arise between them with respect to the children, such that they will help instil in their children patterns of behaviour and ways to manage conflict that are of benefit in their grown up lives, which may well involve the normal stressors and strains to be expected in families of their own in due course.
s 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parent’s, and any other characteristics of the child that the court thinks are relevant.
X and Y are effectively now young men. It is not surprising that they may want to spend more time with their father with whom they enjoy an intense interest in sport, as well as the cultural aspects of life in his side of the family with Country AA heritage.
There was no evidence to suggest that X and Y have other than a functional and pleasant relationship with Mr O, but it is clearly not comparable to the depth of the relationship they enjoy with their father.
s 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parent’s.
I am satisfied that both parent’s love X and Y dearly and both have overall attended diligently to the responsibilities of parenthood.
The exception to the second of those comments however is the concern arising from the evidence suggesting the total rejection by the father of the mother’s capacity as a parent, and his clear and openly stated opinion to that effect, conveyed to the children on a constant and regular basis. The father has consistently and openly denigrated the mother to or in the presence of the children, and encouraged the children to do the same. I have no doubt that the father would interpret that as him being a loving parent listening to his children’s desperately expressed wishes, but the reality is, I find he has adopted the children’s complaints for his own purposes and then assisted those complaints to grow in intensity, such that they effectively became used as a weapon against the children’s mother.
One of the significant responsibilities of parenthood is, other than in rare circumstances, to be able to encourage and support children to have a respectful and meaningful relationship with the other parent without the burden of being exposed to conflict and disloyalty.
I find that the father’s conduct, particularly in the years from 2019 to the time of this trial, has reflected behaviour in complete contrast to that expected of a responsible parent.
The mother’s attitude towards the father’s conduct is one of contempt and disdain, which is well known to both X and Y. Nevertheless, I am not satisfied that there is any evidence before the court that would support a finding that she has worked in any way to interfere with the children’s relationship with their father or indeed his parents, or to affect their love and affection for him. To the contrary, by taking the unhelpful stand of failing to have serious discussions with the children about matters concerning life in each household from time to time, this has perhaps, with the assistance of the father, encouraged the children to feel it necessary to express negative views about her.
s 60CC(3)(j) – Any family violence involving the child or a member of the child’s family.
and
s 60CC(3)(k) – If a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter.
I am not satisfied that there is any evidence before the court that would suggest family violence is a matter of significance, other than to the extent to which I have referred in my consideration of s 60CC2(b) of the Act.
s 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is to be hoped that there will be no further proceedings with respect to X or Y, taking into account the trauma they have experienced in their life to date and their respective ages. I would like to say I am confident that will not occur, and in making the orders I intend to make I trust that they will be reflective of the evidence I heard in this matter over a long period of time. My intention is to give some relief to X and to Y by taking into account to the extent that I consider is in their best interests, wishes expressed by them over a period of time. I am unable however to make orders that are fully reflective of their wishes because taking into account the evidence overall, I am not satisfied that those orders are in their best interests and indeed I am concerned that they may seriously impact on what to date has been a close and loving relationship with their mother, the parent with whom they have spent the majority of their life.
Ultimately, it is less than two years before X attains the age of 18 years, and approximately 18 months thereafter until Y attains the same age. Both of the parents must find it in their hearts to do everything within their power, to make the balance of the boys childhood a time where they can enjoy life with both of their parents, without feeling that they have to take sides.
CONCLUSION
In drafting orders I have attempted to give effect to the children’s wishes to spend more time with their father as well as removing elements from the final orders of 6 May 2021 that may give rise to contravention proceedings or worse still, further Initiating Applications. The matters to which I refer in particular are:
·Paragraph 3 which extends the children’s time with their father on alternate Fridays if it falls on a non-school day such that they commence at 9:30am rather than 4:00pm and by extending the children’s time with their father to six nights out of every 14 nights rather than the existing four nights out of 14 nights
·Removing any provision for agreement for telephone contact time in paragraphs 8 & 9 but rather specifying that time to be on Sunday, Wednesday and Friday of each week but with the children to be at liberty to otherwise contact whichever parent they choose, by any means they choose, such that the children take responsibility for that communication and there is no need for either parent to monitor same
·Noting the courts intention with respect to the parties refraining from denigration of each other, family members or members of the school community rather than subjecting either of them to injunctive orders with the intention that each party take responsibility for their behaviour
·Removing the ability of the father’s parents to suspend the children’s time with him if they are concerned about their wellbeing in his care in circumstances where the children are now of an age where they are completely capable of doing that themselves, where their father’s residence is closely proximate to their grandparents with whom they have a close and loving relationship and where perhaps their grandparents can be relieved from what must have been from their perspective very onerous responsibilities over many years.
For these reasons I make the following orders.
I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 13 June 2025
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