Sinistra and Sinistra

[2010] FMCAfam 272

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINISTRA & SINISTRA [2010] FMCAfam 272

FAMILY LAW – Parenting – father’s time with the children – father has been spending time with the three children of the relationship since separation nearly three years ago but has not spent overnight time with them – allegations about alcohol consumption, family violence and the father’s parenting capacity – whether there should be an order for sole parental responsibility or equal shared parental responsibility.

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

Amador & Amador [2009] FamCAFC 196
Chappell & Chappell (2008) 39 Fam LR 627
Oakley & Cooper [2009] FamCAFC 133

Applicant: MS SINISTRA

Respondent: MR SINISTRA

File Number: SYC 6794 of 2007

Judgment of: Walker FM

Hearing dates: 1 & 2 March 2010

Date of Last Submission: 19 March 2010

Delivered at: Sydney

Delivered on: 28 July 2010

REPRESENTATION

Counsel for the Applicant: Mr Millar

Solicitors for the Applicant: Christopher Mackay Lawyer

Counsel for the Respondent: Mr Connor

Solicitors for the Respondent: Pitcher Walton & Co

THE COURT ORDERS THAT:

1. The children, [X] born 2001, [Y] born 2003 and [Z] born 2005 (“the children”), are to live with the mother. 

2. The mother is to have sole parental responsibility for the children. 

3. Unless otherwise agreed, the father is to spend time with the children:

   (a)Each Wednesday from 4.00pm until 7.00pm commencing the first Wednesday following the date of these orders. 

   (b)Each alternate Saturday from 10.00am until 5.00pm. 

   (c)Provided the father shows evidence to the mother that he has completed a Triple P parenting course prior to November 2010, commencing from the first Saturday that he would be spending time with the children in November 2010 he is to spend time with them from 10.00am Saturday until 4.00pm Sunday on each of the second Saturdays when he would be seeing the children. 

   (d)Commencing from November 2011, and provided the father has spent at least nine occasions for overnight time with the children pursuant to the above order, he is then to spend time with the children each alternate Saturday from 10.00am to 5.00pm each Sunday commencing on the first Saturday he will be spending time with them in November 2011. 

   (e)Commencing in January 2012 the father is to spend two block periods of one week each with the children each year.  Unless otherwise agreed, the father should spend a week with the children commencing on the first Saturday in January and a week with the children in the first week of the mid year school holidays commencing also on the first Saturday of the school holidays. 

Special days

1. Unless otherwise agreed the following shall be the arrangements for special days:

   (a)The father shall spend time with the children on Christmas Day each year from 9.00am until 12noon. 

   (b)On Father’s Day if the children are not otherwise in the father’s care they are to spend time with him from 10.00am until 6.00pm. 

   (c)On Mother’s Day if the children are not otherwise in the mother’s care they are to spend time with her from 10.00am until 6.00pm. 

   (d)On the birthday of each of the parents the children should spend at least three hours with the parent with whom they would not otherwise be spending time.

   (e)The parent with whom the children would not otherwise be spending time is to spend at least three hours with each of the children on their respective birthdays. 

2. For the purposes of facilitating the father spending time with the children the father is to collect the children from the mother at the local mall bus stop at the commencement of his time with them and the mother is to collect the children from the father’s residence at the conclusion of his time with them. 

3. The father be restrained by injunction:

   (a)From consuming alcohol within twenty four hours before spending time with the children and during any time spent with the children;

   (b)From entering the premises of the home of the mother;

   (c)From harassing or abusing the mother;

   (d)From denigrating or speaking in any derogatory or belittling way about the mother or members of her family within the presence or hearing of any of the children;

   (e)From discussing with the children these proceedings and any orders arising from these proceedings. 

4. Each of the parents is to keep the other informed of their current residential address and of a current mobile telephone number.

5. Unless otherwise agreed the mother is to ensure that the children are available to speak with their father on the mobile number referred to in order 7 above on each Tuesday, Thursday and Saturday between 6.00pm and 6.45pm when the children would not be spending time with their father on those days. 

6. Each parent should facilitate the children contacting the parent with whom they are not spending time by telephone on any other occasion when any of the children wishes to speak with that parent. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6794 of 2007

MS SINISTRA

Applicant

And

MR SINISTRA

Respondent

REASONS FOR JUDGMENT

1. This is a matter where the parents are in dispute about how much time the father should spend with their three young children and whether there should be an order for sole parental responsibility in favour of the mother.  The mother has concerns about the father’s capacity to care for the children and his time with them since separation has not included overnight time.  

Background

1. The parents are both aged in their forties.  They married in 1999.

2. Their daughter, [X], was born 2001.  She is now almost nine years of age. 

3. In 2003, difficulties arose in the relationship, the mother obtained an Apprehended Violence Order and the parties separated for some months. 

4. They then had two further children, [Y] who was born 2003 and is now aged six, and [Z] born 2005 who is now aged four. 

5. The parents separated again in mid 2007 and the father left the family home on about 31 July 2007. 

6. An Apprehended Violence Order was made in favour of the mother on 13 September 2007.  The orders made included an order that the father not approach the mother or her premises within 12 hours of consuming intoxicating liquor and that he not remove the children from their school or child care centre.  When the orders were made the Court noted an agreement between the parties that the father was to spend time with the children one weekend day each fortnight and each Wednesday between 4.30pm and 6.30pm. 

7. In about October 2007 the father commenced a relationship with Mr C.  The father and Mr C have lived together since that time. 

8. Consent orders in relation to property proceedings between the parents were made on 4 September 2008.  The father raised parenting issues on that occasion and orders were made for the father to file documents and for parenting proceedings to be listed before the Court. 

9. Interim orders were made on 13 October 2008 providing for the children to live with their mother and spend time with their father each second Saturday from 10.00am to 3.00pm with the mother to deliver and collect the children from the father’s residence.  The father was to pay the mother $50.00 per week for travel expenses.  Orders were also made about telephone communication and the Court noted the father’s undertaking not to consume alcohol within 24 hours of spending time with the children. 

10. On 15 December 2008 the mother obtained an order for an extension of the Apprehended Violence Order for a period of 12 months. 

11. The parenting proceedings were listed for final hearing on 2 and 3 March 2009.  The hearing date was vacated and orders were made for the father to file documents for a subsequent hearing.  In November 2009 there were issues again in relation to readiness and the hearing date was vacated and listed for 1 March 2010.  

12. The father at present is self employed.  The mother does some casual work but is predominantly occupied in the care of the children.  She has not re-partnered.

The proposals

1. The mother proposes essentially that the present arrangements for the children to spend time with their father continue.  She proposes that as well as the children spending each alternate Saturday with their father they also be able to spend one afternoon during the week with him.  The mother seeks an order that she have sole parental responsibility for the children and that the father be the subject of various restraints including that he not consume alcohol 24 hours before seeing the children and that he not enter her premises. 

2. The father proposes in his Amended Response filed 28 October 2009 that he spend time with the children each alternate weekend from 6.00pm Friday to 6.00pm on Sunday, each Wednesday from 4.00pm to 7.00pm and for half of the school holidays.  He seeks an order for equal shared parental responsibility. 

The evidence

1. The father relied on his affidavits sworn and filed on 11 November 2009 and 25 February 2010, on an affidavit by Mr C, sworn and filed on 18 March 2010, during the course of the proceedings, and on an affidavit by Mr H sworn on 10 February 2010 and filed on 25 February 2010.

2. The mother relied on her affidavit sworn on 10 November 2009 and filed on 11 November 2009 and that of Mr S sworn on 9 February 2010 and filed on 1 March 2010.

3. There were two reports prepared by a Family Consultant. The first of these was dated 23 February 2009.  Mr Sinistra had not attended on the day the family consultant’s interviews with the children were scheduled.  He explained that he was sick.  Although he was able to be interviewed by the consultant he was not able to be seen with the children for the first report.  He was, however, observed with the children for the preparation of the second Family Report which was dated 18 November 2009. 

4. The father’s counsel was critical of aspects of the evidence of the family consultant, including the basis for her opinion about the father’s consumption of alcohol and about family violence by the father.  These matters will be discussed later.The father’s counsel made other criticisms of the evidence of the family consultant.  Certainly, the family consultant had mistaken the day on which she was required to give evidence. She initially complained that she was required to give evidence without notice when she had interviewed the children some three months ago.  Subsequently, she agreed that notice had been given.  She acknowledged that she had not had the father’s affidavit filed on 11 November 2009 when she prepared her report.  It was not included in the list of documents which she had read in the report which was dated 18 November 2009.  The family consultant’s evidence, however, was that she had read the affidavit prior to finalising her report but omitted to include it in the list of documents which she had read.

5. In some respects, the family consultant appeared defensive in the way she gave parts of her evidence.  This may have reflected the fact that she was not expecting to be cross-examined on the day.  However it was evident during cross-examination that the family consultant had a good knowledge of the content of her reports.  It was not suggested that she had reported inaccurately what the father had said to her. 

6. It was evident that the father interpreted the family consultant’s referral to certain behaviour of his which she described as “morally corrupting” as indicating a bias which she might have arising from the fact that the father had been in an intimate relationship with another man since some months following separation from the mother.  The family consultant denied that this was the case.  It may be noted too that although her report was very critical of the father, she had some positive things to say about the father’s partner, Mr C.  The court did not form the view that the family consultant had any bias against the father because of his sexual preferences.

The issues

·Whether the father should be able to spend overnight time with the children. 

·Whether the father consumes excessive amounts of alcohol. 

·Whether any behaviour of the father places the children at risk of psychological harm. 

·Whether the father has a capacity to care for the children for extended periods of time. 

·Whether the father’s behaviour towards the mother can be characterised as constituting family violence. 

The relevant law

1. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.

2. Section 60CC sets out the matters which the Court must take into account in determining what is in a child’s best interests.

Primary Considerations

Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child's parents

1. There is no dispute that the mother was the primary carer of the children during the relationship.  The father acknowledged that the mother was “a very loving mother.”  The family consultant described a “comfortable affectional bond” between the children and their mother.  She observed the mother to be sensitive and responsive to the children.  There is no doubt that the children benefit from a meaningful relationship with their mother.

2. Although the father asserts that he was more involved in the care of the children than the mother acknowledges, he also says that because of his working hours he was not as available as she to spend time with the children.  He told the family consultant in the interview for the preparation of the first  report that he blamed the mother for his more limited role in day to day care of the children because of her insistence in maintaining a routine for the children that involved them often being in bed by the time he returned home.[1]  This tendency of the father to blame the mother was reflected in much of his evidence.  At the time of separation the children were very young.  [X] was barely six, [Y] was three and [Z] was not yet two years of age.  It is difficult to see how the mother could reasonably be criticised for having a bedtime routine for them. 

   [1] Family Report dated 26 February 2009 at paragraph 37

3. Since separation, the orders have provided for the father to spend relatively limited time with the children.  The mother also says the father has not spent the time with the children that the orders of their earlier agreement would have provided for.  The orders provided for the father to spend up to five hours with the children on Saturday of each alternate weekend.  He was also able to spend Wednesday afternoons with them under the agreement initially negotiated between the parents.  The father says that his work commitments and the logistics of transport meant that he was not able to spend the Wednesday afternoons with the children. He also says the mother has often reduced or cancelled the time the children spend with him.  The mother asserts that the reason for the father not spending the full amount of time he could spend with the children arises because he has often sought to reduce or cancel his time with them.  The father asserts that the reason is that the mother has changed arrangements.  This issue will be discussed further.  It is not disputed, however, that the father has spent less time with the children than provided for in the orders or in the agreement about Wednesday afternoons that was noted when the Apprehended Violence Order was made.  It seems on the basis of what the mother told the family consultant that she agrees that the father has spent more time with the children in 2009 following the release of the first family report than was the case in 2008.  She told the family consultant that the father had made fewer adjustments to the Saturday time although she said he still often spent less than five hours on Saturday with the children.[2] 

   [2] Family Report dated 26 February 2009 at paragraph 19

4. The father says that while he feels that he has a good relationship with the children, he would like to be able to know them better.  He says that it is hard to spend quality time with three children individually when he only spends time with them for five or six hours each fortnight.  He says that they all want to be with him and that one of the reasons he wants more time is so that he can have individual time with each child.  He told the family consultant that he wanted to be an “active father.”   

5. In her first report the family consultant had spent time with the two older children and observed [Z].  She had not of course at that time had an opportunity to observe them with their father.  She expressed the opinion in that report that each of the children had a different relationship with each of their parents.  She considered that [X] at the time of separation, had had the opportunity “to develop a substantial relationship” with each of her parents.  She thought that she felt “secure in her love and connection” and expressed delight in her relationship with each of them.[3]  Her view in that report was that the time [X] then spent with her father was “probably not sufficient to develop their relationship in a way that best supports her future psycho-social development.”[4]  She also noted that [X] was spending less time with her father than was provided for in the orders. 

   [3] Family Report dated 26 February 2009 at paragraph 65.

   [4] Family Report dated 26 February 2009 at paragraph 66.

6. The family consultant also expressed concerns about the impact on [X] of ongoing disappointment if her time with her father was to be frequently cancelled given that she had clearly expressed her “significant affectional bond with her father.”  The other concern she expressed was [X]’s position in the conflict between her parents. 

7. [Y] was just three years of age at separation.  The family consultant observed when she wrote the first report that [Y] experienced some difficulty in talking about his father.  Her opinion was that this was a sign of what she describes as “ambivalence” in the attachment relationship between [Y] and his father.  She considered that [Y] experienced love for his father but also uncertainty about his father’s availability for him.[5]  She thought that this was not a psychologically comfortable position for any child.  [Z] was still an infant at the time of separation and had not therefore experienced any continuity in care giving from the father.  The family consultant thought that this could be undermining of the “important process of developing a secure attachment relationship with her father.”[6] 

   [5] Family Report dated 26 February 2009 at paragraph 70.

   [6] Family Report dated 26 February 2009 at paragraph 74.

8. The family consultant observed the children with their father in November 2009 for the preparation of the second report.  She described the children as being “delighted to see their father, all three spontaneously running to him for a cuddle.”[7]  She says that “the children were keen to engage their father in play, and [X] and [Y] quickly organised their father to join their activity and supported his learning of the rules of the game.  [Z] sat contentedly on her father’s lap while he chatted to her and also kept up the game with [X] and [Y].”[8] 

   [7] Family Report dated 20 November 2009 at paragraph 59.

   [8] Family Report dated 20 November 2009 at paragraph 60. 

9. The family consultant described the children’s behaviour with their father when seen for this second report as appearing to her to be both “restrained” and “desperate.”  She said it was “restrained in the sense that the children were remarkably coordinated in their sharing of their father’s attention” and seemed to be taking turns in obtaining their father’s attention.  She described the father as supporting this well and “responding very positively and charmingly to the children’s games and overtures for attention.”  She considered that at the same time, the children appeared somewhat “desperate” in “their desire to keep his attention and maintain physical proximity to him, especially [Z] and [X].”  She described [Y] as “more contained.”  Her opinion was that “as clear as it was that the children enjoyed spending time with their father, their behaviour also lacked a feeling of comfortable and predictable routine and the children’s behaviour conveyed a sense of uncertainty or insecurity.”[9]

   [9] Family Report dated 20 November 2009 at paragraph 61

1. The family consultant says that the children love and enjoy spending time with their father.  In cross-examination she said that the children adored their father and relished the opportunity to spend time with him.  At the same time, her evidence, and also what the father has said, indicates that the time the children have spent with their father to date has not supported the development of a meaningful relationship with him.  The family consultant observed that the primary objective of the children spending overnight and holiday time with their father would be to provide a benefit for them through the development of the nature and quality of their relationship with him.  She expressed the view, however, that this time could only be beneficial for the children if the relationship did not confer additional risks on the children’s physical or psychological well being.  The important consideration in this matter is whether an increase in the children’s time with the father to include overnight and holiday time would be of benefit to them or potentially expose them to risks to their physical and psychological well-being. 

Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. It is fair to say that the family consultant raised concerns in her second report which were more significant than those referred to in her first report.  She observed a difference in the presentation of the two older children.  She reported on an escalation of the conflict between the parents. 

2. The family consultant was advised by both of the parents that one major reason for the increase in conflict between them was the mother’s wish to take the children on a holiday with other family members to Thailand and the father’s refusal to give his consent to this until after the mother instituted Court proceedings.  The father told the family consultant “she says no to any holiday (with me) so I say no to her.” Conflict also centred on activities of the children on Saturdays which the father said decreased his time with them.  

3. The family consultant considered that there were several issues which posed what she described as “substantial risk to the physical and psychological well-being of the children”.[10]  She specifically identified three risks. The first related to matters flowing from what she described as the father’s “enduring character problems.”[11]  The second related to what she described as a pattern of family violence perpetrated by the father.  The third related to the father’s alcohol use. 

   [10] Family Report dated 20 November 2009 at paragraph 84. 

   [11] Family Report dated 20 November 2009 at paragraph 85. 

Alcohol

1. The father’s alcohol consumption is a significant issue in the proceedings.  The concern of the family consultant in considering the risks posed by the father’s consumption of alcohol was the effect of any alcohol intake on the father’s ability to manage his behaviour.  It is the mother’s case that the father’s level of consumption of alcohol affects his functioning.  She says that he behaves more impulsively and erratically when under the influence of alcohol, that his behaviour towards her is abusive and that this causes an escalation in the family conflict.  The mother alleges that the father continues to misuse alcohol which she says is evident to her because of the abusive phone calls which he has made to her in what she describes as a state of inebriation. 

2. The father acknowledged that he was convicted of driving with a high range prescribed concentration of alcohol in the past.  When asked if this was in March 2003 he responded that he had had more than one conviction and could not remember which one was in the high range.  He thought that one conviction may have been 19 years ago and another 14 or 15 years ago.  Documents were tendered confirming the conviction for high range PCA in March 2003.  The father was asked whether he had ever been to an Alcoholics Anonymous meeting.  He said that he had once, many years ago.  He said that he could not remember when but attended because he had been convicted of drink driving.  The father acknowledged to the family consultant that in 2003 at the mother’s request he attended upon Ms Z, clinical and consulting psychologist “to prove that I didn’t have an alcohol problem.”  Ms Z was contacted by the family consultant and was reported as saying that she recalled that the father saw her for a drinking issue and wanted to try a controlled drinking program.  The family consultant concluded that the attendance pattern of five sessions between August and November 2003, including two sessions attended by the mother, reflected such a program. 

3. The father acknowledged that he had read what was written about Ms Z in the family report.  He initially denied that he had ever had counselling about alcohol abuse.  He then recollected that he had seen a man, an “old chap”, in Sydney.  He could give few other details.  When asked about Ms Z, the father said that he thought she was a marriage counsellor because he and the mother used to see her.  He said that he and the mother had been to see her about six times.  When pressed as to whether he had seen Ms Z for alcohol issues the father responded that one meeting was about this and that the others were about marriage counselling.  These consultations appear to follow the father’s conviction for high range PCA.  It is difficult in the circumstances to draw any conclusion other than that issues related to the father’s drinking were a significant part of these consultations. 

4. The mother relied on an affidavit sworn by Mr S, the managing director of [omitted] between 2001 and 2009, to support her assertions as to the father’s drinking and the impact that this has on his behaviour.  Mr S, who was overseas, was cross-examined by telephone.  He said that the father had worked in various roles in the business. His evidence was that there were times when he had noticed the father smelling of alcohol in the office. He said that on these occasions he observed the father to be very drunk in and around the office and that on occasions he would meet the father off site where he was meeting with a client and observed the father to be intoxicated.  He said that he observed that the father slurred his words and would not make sense of the conversation.  He said that in the last two years of the father’s employment with the firm he had observed him in a state which he described as very drunk on about ten occasions.  Mr S also said that the father used abusive language around the office.  He said that the father was given several warnings about his consumption of alcohol.

5. Mr S acknowledged that the father’s job had been to bring in clients and entertain them.  He stated, however, that this could be done without becoming intoxicated.  He said that he had met with the father and the mother at their home to discuss the father’s behaviour.  This was consistent with evidence given by the mother.  

6. The mother said that she believed that the father had been dismissed from his employment in 2007 because of his abuse of alcohol.  Mr S said that he could not be certain of actions taken in relation to the father’s employment in 2007 without the personnel file.  He said that to the best of his recollection he had changed the father’s status from full-time employee to consultant in 2007 and that during that year the father voluntarily left the firm.  He acknowledged that on 21 November 2007 he sent an email announcing the departure of the father from the firm in which he described the father as “a stalwart member of the team” who had “successfully negotiated a number of significant contracts.”  He said that he had written the email in these terms because he did not want to alienate the father at that time and because he wanted him to leave in a reasonable and decent way. 

7. It is evident that the relations between the father and Mr S broke down from some time in 2008.  This appears to be related to the father leaving the firm to work with a competitor and taking actions which Mr S asserted were a breach of certain restrictive covenants.  Mr, S acknowledged that he had sent an email to Mr Sinistra on 12 January 2010 stating “I will be there.  Don’t you doubt it.  I will also join forces with Mr G and Ms Sinistra to hound you for whatever they want.”  The Court assumes that “Mr G” and “Ms Sinistra” as referred to, are the mother and her step father, Mr G. 

8. The father’s counsel submits that reliance should not be placed on the evidence of Mr S because he had so clearly aligned himself with the mother’s case.  Certainly this is something which the Court needs to take into account in considering the weight which should be given to Mr S’s evidence.  Counsel for the mother submitted that reliance could be placed on certain documents relating to aspects of the father’s employment which date to a period before the apparent falling out between the mother and Mr S which occurred after the father left the [omitted].

9. Documents relating to the father’s employment with the [omitted] were in evidence in the proceedings.  A document titled “Staff Performance Review” dated 17 February 2005 related to the father who was described in the document as “[omitted]”. Mr S, as reviewing manager, is recorded as commenting “his behaviour in and around the office is poor and his drinking and social skills must be improved.”  The father acknowledged that he signed the document. He said he did not agree with the comments and that for this reason he had written in the employee’s comment section “Let’s hope that we can all improve.”

10. The father was asked whether he was given warnings about his drinking while he was working for the [omitted].  He responded that he and Mr G, presumably referring to Mr S “talked about drinking as friends.”  He elaborated that he could not think “at this stage” of any written warnings about his drinking but that “we would have talks.”  He said that “Mr G said maybe you can cut back” but that he never said that he had a drinking problem but just agreed that he should “maybe try to cut back sometimes.”

11. In an Employee Self Appraisal Form dated 24 January 2005 the father includes as one of his goals for the year to “cut back on booze.”  Under any other comments he writes “Not wanting to feel that I will get the sack every week and no bruises.”

12. In an email dated 13 June 2006 to the father Mr S states in part “Last week I noticed (as did everyone else) that you came to work under the influence of alcohol.  We have already agreed that you would not present yourself to work under the influence of alcohol.  Let this be the last time I have to tell you.”  The father was asked about this email and responded that he could not remember it. 

13. In a Staff Performance Review dated 20 February 2007 the manager comments by Mr S included “Mr S needs *structure *reduce drink consumption....” The father acknowledged that this document was signed by him although not dated. 

14. The Employee Self Appraisal Form completed on the same date by the father included the comment “Although I have cut back on the booze I could do better.  I would like to go to a proper quack to see the underlying problem.”  The father was asked if he had said to Mr S that he would be prepared to go and see a quack.  He said “no” but then added that “Mr G sent me to see some lady.” 

15. These documents give support to Mr S’s evidence at hearing.  They indicate that he had raised what he perceived to be the father’s drinking problem with him over a period of some years as well as a concern he had about the father’s behaviour in a social context. The father acknowledged that Mr S sent him to see someone about his drinking.  This also lends weight to the evidence of both Mr S and the mother that Mr S had visited the Sinistra home to discuss, at least in part, the father’s drinking.  While the father in his affidavit denies that Mr S ever attended the family home to discuss his position in the company, he acknowledges that in about June 2007 Mr S came to the home one evening and had a discussion with the mother which was not held in his presence. 

16. Mr H, the Chief Executive of the firm where the father commenced working in late March 2008 swore an affidavit in the proceedings.  Mr H had sent an email to the father on 3 March 2009.  This was written in the context of the father leaving that employment.  In the email Mr H asserted that the father had spent many afternoons out of the office drinking and “often drunk.”  In his affidavit Mr H says that he sent this email in anger at the time of the father’s resignation from the company and that it was unfairly critical in that he never observed the father drinking alcohol during working hours.  In cross-examination Mr H acknowledged that he had heard about the father drinking alcohol.  He said that the comment in the email was “speculation.”  Overall, the evidence of Mr H does not assist one way or another in relation to the issue of whether the father drank alcohol to excess.

17. The mother told the family consultant that the father’s drinking was a significant factor both in their relationship breakdown in 2003 and in their final separation in 2007.  2003 was the year when the father was convicted of driving with a high range PCA.  It was also the year in which the mother obtained an Apprehended Violence Order and the year in which the father attended upon Ms Z. 

18. In her affidavit the mother sets out her evidence about the father’s behaviour around the time of separation in mid 2007 and subsequently.  She says that the incident which led to the final separation occurred on 19 June 2007 when the father returned home at approximately 5.00pm and said that he had been at lunch and got into a fight with the mother’s step father, Mr G.  She says that the father’s breath smelled of alcohol and that his speech was slurred.  The mother says that the father during this time in the presence of the children called her a “fucking bitch”, “mad cow” and “dumb tart.” 

19. The mother refers to an occasion shortly after when she says the father returned home and she believed that he had been drinking.  She said he threatened to wake [X] to tell her that her grandfather (Mr G) “fucks Asian sluts.”  She says that she took the father by his t-shirt to pull him back and that the t-shirt was torn.  She says that the father went into [X]’s room the following day when she believed that he had also been drinking.  The father denies the mother’s version of events.  The mother says the police were called to two incidents.  The father says that on one of these occasions the mother scratched him.  There are no corroborating police records.  The father consented to an Apprehended Violence Order being made for the mother’s protection on 13 September 2007.  The orders included a restraint on the father approaching the mother or her home within 12 hours of consuming intoxicating liquor. 

20. The mother says the father continued to telephone her.  She says the father has phoned her and called her obscene names.  She gives details of dates in 2008 when she says the father said to her on the phone “I’ll let the kids know what an evil bitch you are.”  The mother says that in 2009 she had continued to receive phone calls from the father when, because of the slurring of his speech, she believes that he was drunk and when during various phone calls he called her “a fucking bitch” and “dumb bitch.”  It seems from what the mother told the family consultant that many of these calls occurred in the period from March to July 2009 when the parents were in conflict about the children’s trip to Thailand.  She says that since June 2009 she had tried to avoid speaking to the father on the phone because of his verbal abuse. 

21. The father says that the fact that the mother was prepared to leave the children in his care at night during the relationship when she undertook courses, is inconsistent with what she says about his drinking.  At the hearing, the mother said she did this a “couple” of times although when pressed, she acknowledged that there were a number of occasions rather than just a couple of occasions.  She said that the children were bathed and put to bed before she left.  She was asked how this was consistent with her evidence that the father had a drinking problem throughout the relationship.  She said that on some occasions when he came home she could see that he was affected by alcohol and would not go out and on other occasions she considered that he was able to look after the children.  There is no reason not to accept this.

22. The father told the family consultant when he saw her for the first report that he did not drink alcohol every night but that when he did he would drink two to three glasses of wine.  He said that he may also drink some alcohol at work lunches held every second Monday with his colleagues but noted that he had to return to work and did not become inebriated.  When seen in November 2009 for the second report he described his alcohol use as sharing a bottle of wine with Mr C each night, his “usual bender” once a week with his business associates on Monday, which he described as a lunch between 1.00pm and 4.00pm, and a regular monthly get together with associates on a Wednesday when he consumed alcohol. 

23. Mr C’s evidence is that he does not think that the father has a problem with alcohol.  He acknowledged that he had seen him drunk in the last 12 months.  He said that this was at a party in January 2010, about two months prior to the hearing. Mr C was asked about his comments to the family consultant that he had only seen Mr Sinistra “really tanked” once or twice.  He acknowledged that this would have been prior to the January occasion which he referred to in cross-examination. Mr C said that he felt one of the occasions may have been when the father called Mr G one night.  Otherwise he said he could not specifically recall the times when the father had been drunk.  He said that it did not happen so often – usually when the father had won an account or something like that and was out celebrating.  

24. The father was asked about his recent alcohol consumption.  He said that on the previous day he had gone to the local sporting club where he is a member and that he had shared a bottle of wine with two other people and then had a “couple of single wines.”  He said he could not tell how many glasses of wine he had because he never counted his drinks.  The father says that he does not drink very often on the weekends and never when the children are present.  He says that during the week he might have two glasses of wine at lunch on average, sometimes three or four and then go back to work and that “then we may go back later on after work, at about 5 o’clock, for another two and then go home.”.  He said that if Mr C was home they would share a bottle of wine over dinner.  He said that if he has been out to lunch Mr C might have three glasses of wine and he might have two.  The father said that he did not have a pattern of drinking as such during the week and that it really depended on whether he was seeing clients. 

25. When asked if he had ever been really “tanked”, he said “occasionally, yes.”  He said the last occasion this occurred was at a birthday party around the end of January 2010. 

26. One of the recommendations of the family consultant’s first report was that if the Court was satisfied that it is likely that the father has problems with alcohol, the children spending overnight time with him could place them at risk.  The Court made detailed orders on 23 November 2009 for the father to undertake blood testing to identify excessive alcohol consumption.  The orders are set out below: 

    1. The father is to attend upon a Medical Practitioner to obtain a referral to a pathology centre to undertake the following blood tests:

    (a) A CDT test to be analysed using the HPLC analysis method.

    (b) A Liver Function Test specificially measuring GGT, MCV levels, as well as AST and ALT levels.

    2. That the referral provided by the medical practitioner for such blood testing is to request that a copy of the results be sent to Dr A.

    3. That the father attend upon a pathology centre to undertake such blood testing by no later than 12 December 2009.

    (a) That upon attendance on the pathology centre for testing, the father provide a current UK passport with photo identification confirming his identity as Mr Sinistra born 1965 at [omitted], UK.

    (b) That a sealed copy of this Order be provided to the pathology centre at the time of such testing. 

    (c) That a receipt be provided by the pathology centre confirming receipt of a sealed copy of this Order and the sighting of the passport of the father confirming his identification, as the person referred to in the Order.

    (d) That a copy of such receipt be sent to Christopher Mackay Lawyer.

    4. That the father be responsible for any costs associated with undertaking CDT testing and the testing generally referred to in Order 1 above.

    5. That the results of such testing be analysed and a Single Expert report prepared pursuant to Regulation 15.09 of the Federal Magistrates Court Rules 2001 by Dr A, Pharmacologist, in relation to Mr Sinistra, born 1965 at [omitted], UK and that in preparing his report to the Court, Dr A be requested to report on whether the results of the blood tests as ordered in Order 1 above provide any indication that:

    (a) The father (Mr Sinistra) has in the past or is presently consuming alcohol;

    (b) To what extent, if any, the father has consumed alcohol in the past; and

    (c) Whether any alcohol consumption by the father is suggestive of excess alcohol consumption;

    (d) Any other relevant matters.

    6. The father be liable for the costs of Dr A’s report.

1. The father’s evidence is that he did not seek the referral from a medical practitioner until some time after Christmas and did not attend the pathology centre until 1 February 2010.  His evidence was also that he did not obtain a receipt as specified by the orders.  The father made various excuses for his non compliance with the time specified in the orders, including that he could not locate the pathology centre and that the mother’s solicitor had given him the wrong phone number. 

2. The orders had provided for a careful timetable in relation to the testing.  The report of Dr A was not available until the eve of the hearing.  It was admitted into evidence, despite the initial objections of the father.  Dr A was cross-examined by telephone.

3. Dr A reported that the carbohydrate deficient transferrin test (CDT) was the most specific of the tests which were requested in the assessment of alcohol use.  He said that the CDT results were obtained using what he described as the high performance liquid chromatography method which he said was the reference method.  Dr A concurred in the interpretation of his associate pathologist Dr C that the result showed a CDT of 2.7% and that “the raised CDT indicates probable excessive alcohol intake.”  He noted that the “probable excessive alcohol intake” applied to the interval embracing two to three weeks prior to the time of sample collection.  A liver function test and haematology report had also been received by Dr A by the time he gave his evidence.  He said that while the father’s liver function test indicated a normal CDT and did not therefore support excessive alcohol intake, in 30% of patients the test would never indicate excessive alcohol intake.

4. Dr A agreed with the proposition put to him by the father’s counsel that a diagnosis of chronic alcohol abuse should always be made on a clinical background.  A reason he said for the importance of an assessment of clinical status was that approximately 50% of people who drink at the level of five to six standard drinks a day, the level set as being the threshold of excessive alcohol intake, would not have a raised CDT because of different levels of tolerance to alcohol.  Dr A agreed that the CDT result without knowledge of the father’s alcohol intake was a probability statement.  He also agreed that a reliable assessment should not be made on a single CDT value.  He said that if a result is unexpected, or likely to be challenged, he would like to have a second test performed to confirm the elevation.  Nevertheless, he said that the first result stood on its own feet.  In cross-examination he said he adhered to the interpretation in Dr C’s analysis of “probable excessive alcohol intake.”

5. In submissions, the father’s counsel acknowledged the expertise of Dr A.  At the same time, he submitted that the report of Dr A was inconclusive in relation to the issue of excessive alcohol consumption by the father essentially because Dr A did not have a clinical history and there was only one test result which applied just to a limited period prior to the test.  The mother’s counsel submitted that while Dr A referred to the desirability of having a second test, the results of the tests conducted were consistent with the evidence before the Court.  

6. Given the totality of the evidence set out above, it is difficult to find otherwise than the father has a longstanding problem in relation to consuming alcohol to excess.  The father does not accept this and historically has not accepted that he has such a problem, even in circumstances where the Court finds that the problem, and the adverse impact that it had on his work situation, was discussed with him by his manager at times when there was not the present level of hostility between the men.  Prior to the recording of these concerns by his former employer, the father, of course, had convictions for drink driving, in particular a conviction for high range PCA in 2003.  In this same year, the parents separated for a time and an Apprehended Violence Order was taken out for the protection of the mother.  The father, at the mother’s request, saw a counsellor who, he was reluctant to acknowledge, gave him counselling for his drinking problem. 

7. The Court generally accepts the mother’s evidence.  It is consistent with other evidence before the Court.  The Court also accepted her as a truthful and reliable witness.  The Court accepts that the mother has a genuine concern about the father’s drinking and the potential impact it could have on his capacity to care for the children.  The Court accepts that it was this concern that led her to place a particular responsibility on [X] to care for [Z] when the children were with the father. 

8. The Court also accepts the mother’s evidence about the extremely abusive telephone calls from the father and her belief that the father was intoxicated when he made these calls.  The father, of course, denies making telephone calls to the mother when he was intoxicated.  Mr C, who in his evidence was clearly supportive of the father, corroborated the phone call made to Mr G’s home when the father was intoxicated.  The fact that the father was drinking may mean he was less likely to recall these telephone conversations. 

9. The father’s evidence is that he does not drink when the children are with him.  [X] told the family consultant in November 2009 that her mother thought that her father could not look after [Z] on his own “because he drinks.”  She told the family consultant that she had not seen her father drink but that her mother had told her that he does.  The family consultant said in cross-examination she did not believe that the father drank while the children were with him.  Certainly, the father had been spending time with the children reasonably regularly since separation, if not as often or as long as the orders allowed.  Usually the mother has delivered and collected the children.  She makes no reports of observing the father under the influence of alcohol during changeovers. 

10. The mother says that the father spends only five hours during the day with the children and she is concerned that he is more likely to drink in the evening which could impact on the children if they spent time with him overnight.  The father on his own report has a history of lunch time drinking, at least with work colleagues.  The mother told the family consultant when she saw her in January 2009, that the father drank every day from about lunchtime during their relationship.  It nevertheless appears that he has not been drinking when the children are with him on Saturdays over what has now been quite a significant period of time.  The mother’s case is that the risk of the father’s drinking impacting on his capacity to care for the children would increase if he spent time overnight with them.  This will be considered later in the judgment.

Psychological harm

1. The family consultant identified other risks to the children in what can only be described as quite strong terms.  In particular she referred to what she described as the father’s “enduring character problems” which she said were reflected in what she described as the father’s hostile attitude towards the mother, his tendency “to focus on his own needs and blame Mrs Sinistra for them not being met”, his difficulty in considering the perspective of the children, his “fixation/preoccupation with Mr G’s pursual” of him, and his presentation of “demonstrably false information” to her.[12] 

   [12] Family Report dated 20 November 2009 at paragraph 85.

2. The most significant piece of false evidence given by the father to the family consultant was his statement to her in the context of the interviews on 16 January 2009 for the first family report that he was not in an intimate relationship.  The father was asked about this in cross-examination.  He acknowledged that he had been untruthful about this but attempted to excuse himself by saying that he and Mr C had only just met when he saw the family consultant and that “it wasn’t really intimate anyway.”  When pressed in cross-examination the father acknowledged eventually that he had been in a relationship with Mr C for at least a year at the time he denied the existence of the relationship to the family consultant.  He said that he was embarrassed about the relationship and thought that it may stop him seeing his children and did not want that to happen.  While the Court accepts that the father may have felt some embarrassment, his denial nevertheless must be of concern to the Court in that it clearly indicates that the father is willing to be untruthful if he perceives that this will assist his case.

3. It is evident that the father’s evidence has not been reliable in some other respects as indicated elsewhere in the judgment.  The family consultant, after the father made particular assertions about his contact with the children’s school, contacted the school manager and was told a quite different version of events.  She certainly had reason to believe that the father gave her false information about certain matters.

4. The family consultant gave considerable weight to what she understood to be the relationship between the father and Mr G although she conceded that she was not aware of the specifics of the incident between the two men when it is alleged that Mr G struck the father.  It appears that the mother does not dispute that such an incident occurred.  There is no doubt that issues between the father and Mr G are relevant in the matter.  Mr G did not file an affidavit.  The mother says that it is natural that Mr G who is her stepfather and whom she sees in a fatherly role, would be concerned about her interests.  The email from Mr S in its apparent reference to Mr G seems to indicate that he was of the view that Mr G was playing a significant role in the dynamics of what was occurring.  It may be that the family consultant was not aware of all the background to the relationship between the two men.  It seems though that this was not a major reason for her forming the view she did.

5. The family consultant said that her key concern in relation to the father’s character was whether he was able to prioritise “the emotional, developmental and physical needs of the children over his own goals.”[13]  She referred to what she saw as the father’s strongly entrenched conflict with the mother and his “almost oppositional behaviour.”  She expressed concern that the father had used the children to further his conflict with the mother and in particular that he had tried to influence them to say things to her about the issues in dispute and had induced them to verbally abuse their mother. 

   [13] Family Report dated 20 November 2009 at paragraph 87. 

6. The family consultant reported [X] saying that her father “often talks” about wanting the children to stay with him and told the family consultant that “he’s been giving us a lot of things to make us stay with him.”  The family consultant reported that [X] thought that her father would give her $40.00 when she saw him at the appointment.  She observed that [X] asked her father for this money both during and after the session.  [X] said that her father had discussed the interview to be held and had told her what he wanted her to tell “the lady” (the family consultant).  The family consultant also said that [X] told her about an occasion when the father had told the children to say “mean things” to their mother.  She said that she would not do as the father asked but that [Y] did.  She said that her father had also said “mean” things about her grandfather.  The mother referred to an incident which she said occurred on 14 October 2009 when the father telephoned to speak to the children.  She said she could hear [Y] speaking to his father and that she could hear [Y] say at least three times “No, Daddy, that’s rude.”  And that then [Y] shouted to her “get a life Mummy.”  She said that when the telephone call ended [Y] ran to her in tears and said “Sorry Mummy, Daddy made me say it.”  She said that [Y] appeared upset and repeatedly said to her that he was sorry for what he did. 

7. The family consultant said in her November 2009 report that the presentation of the two elder children, [X] and [Y] was “anxious and flat” in contrast to the initial interview that she has had with them earlier in the year.  In her view this was related to the bind in which the children found themselves because of the conflict between their parents.  She said that they were too young to understand the father’s manipulation of them.

8. The father denied much of what was described above by the family consultant.  He denied telling the children to say mean things to their mother.  He said that the family consultant had spoken about what [X] said but he did not know where [X] had got it from.  He denied that he had been giving things to the children to stay with him.  He denied that he told [X] what to say to the family consultant. The family consultant did not doubt what [X] told her. It is consistent with the mother’s evidence. There is reason to doubt aspects of the reliability of some of the father’s evidence and the Court accepts that the father has said these things to the children as reported.

9. The family consultant referred to this aspect of the father’s behaviour as a form of emotional abuse.  She described it further as “morally corrupting behaviour that undermines a child’s sense of self and their security in their parenting relationships.”[14]  The family consultant’s comments about the father’s behaviour in involving the children in the dispute between himself and the mother are certainly very critical of the father.  At the same time they are based on her observations as set out in her report.  The Court accepts the family consultant’s observations and finds that there is a risk that the father’s behaviour in the context of the conflict between the parents, could be psychologically harmful to the children. 

   [14] Family Report dated 20 November 2009 at paragraph 89.

Family violence

1. The other risk which the family consultant identified was family violence.  The mother’s counsel submitted that there was plenty of evidence that the father engages in non physical abuse of the mother and that, accordingly, there is a need for the children to be protected from such behaviour. 

2. The father’s counsel said that he could not understand the submission about family violence.  In part this seemed to relate to the absence of allegations of physical violence.  He also referred to what he described as the mother’s failure to seek an extension of the Apprehended Violence Order when it expired in December 2009.  The mother’s response was that she sought a restraining order in these proceedings. 

3. The mother’s evidence of verbal abuse has been set out previously.  The family consultant reported that at the interview on 5 November the mother said that the father continues to regularly abuse and harass her over the telephone in disregard of the Apprehended Violence Order in force.  The family consultant expressed a particular concern that “by the mother’s report the content of many of those communications are targeted to both attack the self esteem of Ms Sinistra with on-going verbal and emotional abuse and to evoke Ms Sinistra’s fear and protective responses towards her children.”  She said in the report that “this pattern of family violence appears to be ongoing, and exacerbated around issues of disagreement in relation to the parenting matters.  The pattern of violence Ms Sinistra has described is consistent with a coercive-control form of family violence.”[15] 

   [15] Family Report dated 20 November 2009 at paragraph 92.

4. In the family consultant’s view the pattern of violence was likely to continue into the future “because a driver of this behaviour is likely to be Mr Sinistra’s negative view toward Ms Sinistra (and her family) and his beliefs about his rights and entitlements.  It is consistent with this pattern of family violence that legal proceedings are used to harass and punish the other parent after separation.”  She thought that there was “a high risk of these children being involved in ongoing, vexatious litigation.”  Her opinion was that “an additional risk with this pattern of violence is that interaction with the father may become so onerous for the mother that it erodes her well-being and/or she is unable to sustain the substantial role she plays in supporting the children’s relationship with their father.” [16]

   [16] Family report dated 20 November 2009 at paragraphs 94 and 95.

5. The father was asked if he spoke to the mother in an abusive way.  He responded “I try not to.  She can be very frustrating.”  He said the mother “is very clever at getting me angry.”  He said that she did this by not having the children turn up on time and by “always cancelling on me.”  He said that it was the mother’s fault that he got angry.  He was asked when he became angry if he used offensive names for the mother and responded “I don’t think so.”  He said that he had never harassed and abused the mother.  When pressed he said that he had never abused and harassed the mother in front of the children.  He said that he would not describe his behaviour to the mother as “harassment and abuse” but rather would call it “getting frustrated with the mother.”  The father was asked whether he had called the mother “dumb bitch” or “evil mother.”  He responded “dumb bitch rings a bell, but I can’t remember.”  The father used offensive language in describing the mother as recently as at the end of 2009 in his comments to the family consultant during his interviews for the second family report. 

6. There can be little doubt that the evidence in this matter supports the mother’s allegation in relation to verbal abuse.  It also lends support to the opinion of the family consultant about the father’s lack of insight into his behaviour and into the effect it has on the mother and children.  It is supportive too of the family consultant’s opinion that the father fails to take responsibility for his actions and instead blames the mother. 

7. The family consultant in her evidence referred to the language which the father had used to describe the mother during the interview.  She said that the father presented with a somewhat angry and disparaging attitude towards the mother and that he referred to her as a “mad cow” and “bitch.”  There is no doubt that the father’s presentation and manner and the use by him of such language have influenced the opinion of the family consultant.  She said in cross-examination that the father used terms about the mother in her presence which she found offensive.  When asked if she found the words personally offensive she said she found them to be offensive in the context of an interview and that such derogatory expressions in an interview were not appropriate. 

8. The father’s counsel questioned what the family consultant meant by use of the term “coercive family violence.”  The family consultant did not give a definition of what she meant by the term in the report.  She did say that consistent with a pattern of violence she described was the use of the litigation process as a form of harassment and pursuit of the other parent.  This is not a matter though where the father’s behaviour in the litigation to date would easily be seen as that of a vexatious litigant.  In many ways he has been tardy in the conduct of the proceedings.  Certainly one adjournment of the hearing was caused because of lack of preparation of the father’s documents.  Possibly the term used by the family consultant is not so helpful in this matter.  This of course does not meant that the mother has not felt intimidated by the extremely abusive telephone calls which she has received from the father.  Given the evidence before the Court the Court finds that the language used by the father to the mother has been offensive and intimidatory and that the mother might well be apprehensive about her personal well-being or safety as a result of the father’s verbal abuse.  This reflects the definition of family violence in the Family Law Act.  The definition does not contain a specific reference to physical violence.  The Court expects that the mother reasonably continues to fear the father’s abusive behaviour.  The fact that she did not seek an extension of the Apprehended Violence Order when it expired in December 2009 does not signify that she is no longer apprehensive about her personal well-being or safety.  She has sought restraining orders in these proceedings. 

1. The Full Court in Amador & Amador [2009] FamCAFC 196 has said that it is necessary for the Court to make findings about family violence where the evidence enables that to be done. The Court finds that the verbal abuse of the father towards the mother constitutes family violence as defined in the Act for the reasons set out above. It is especially significant that such behaviour of the father occurred while an Apprehended Violence Order was in force.

The protection of the children

1. The mother wished the Court to make a number of orders which would restrain the father in various ways.  She seeks an order that the father be restrained from consuming alcohol within 24 hours before spending time with the children and during any time he spends with them.  She seeks an order that he be restrained from entering the premises where the mother and children reside.  She seeks an order that he be restrained from harassing or abusing her and from denigrating her, or members of her family, to the children and a further order that the father be restrained from discussing the proceedings with the children. 

2. The mother’s evidence was that she had a conversation with the father since the expiry of the Apprehended Violence Order and that he had said to her that he wanted to collect the children from the home in which they reside with the mother. The mother’s evidence was that she told the father she would meet him at the bus stop and the father responded “you can’t stop me.  The AVO is finished.” 

3. The father was asked whether he would be agreeable to an order being made restraining him from entering the premises at which the children reside with the mother.  His evidence in response was not clear.  He said that he did not mind because he did not want to go into the house.  When asked if he had any reason to attend the property he said “at the moment, no.”  He said that on one occasion he felt the need to go to the house and collect the children and that he may need to do so in the future.  When asked if the mother might find it stressful dealing with him in the home, the father responded that if the mother found it stressful, she brought it upon herself by bringing the children on time. 

4. The father was asked if he intended to drink alcohol in the presence of the children.  He said that he “would never do that.”  He said that he felt the present restraint was that he could not drink 12 hours before seeing the children.  Nevertheless, he said that an order restraining him from drinking 24 hours before he saw the children would not be a problem for him. 

5. It appears from this evidence and also from the submissions by the father’s counsel that the father does not oppose these particular restraints, although the position might not be so clear cut in relation to the Brookvale premises.  In any event the restraint the mother seeks is fairly specific in that it seeks to restrain the father specifically from entering into the premises.  This is a matter where the Court has found that the behaviour of the father has constituted family violence.  The restraints the mother seeks in relation to the father entering the premises and that he not harass or abuse her are reasonable in the circumstances of this matter and certainly may assist in protecting the children from exposure to the conflict in the matter, which on the evidence of the family consultant, which the Court accepts, is harmful to them.  The Court proposes to make the restraints sought by the mother.    

6. The family consultant’s evidence was that the issues which she identified individually and cumulatively pose a risk to the children’s well-being[17] which, she said, was magnified by the children’s young ages.  The current orders provide for the father to see the children on each alternate Saturday.  It is not suggested by the mother or the family consultant that this change, or, for example, that the father’s time with the children be supervised.  The family consultant’s recommendation in her report was that the father should continue to see the children one day each alternate weekend, she thought from 10.00am to 4.00pm and that the father also should spend time with them from after school until 6.00pm one afternoon each week. 

   [17] Family Report dated 20 November 2009 at paragraph 99.

7. In cross-examination the family consultant adhered to her recommendation that there be no provision for the children to spend overnight time with their father.  She said that the principal reason for this was the escalation of conflict that had appeared to occur in the last months, referring presumably to the period up to the report in November 2009.  She considered that the children’s well being had declined during this time.  The family consultant identified the point of the conflict, or the key issue of the conflict that the mother was putting in place measures that she feels are protective of the children and that the father was “railing” against the mother’s decision.  She said that “it’s not open slather conflict, I think, based on one parents’ bloody mindedness.”  The family consultant agreed in cross-examination that “the father’s frustration about the restrictions on his time with the children were contributing to his anger.” 

8. Her opinion was that the children’s exposure to the conflict over time could be most deleterious to their well being.  She said that she did not suggest that the father never spend overnight time but that in her opinion it was not appropriate “at this time.”  She said she was unable to predict when it might be appropriate.

9. The family consultant when questioned further about this pointed to two recommendations which she had made.  One was in relation to the children’s time with their father and other opportunities to develop their relationship with their father and the other was in relation to the father’s development of what she described as “his own parent’s skill set.”  She said that if those two things were to happen simultaneously the risk for the children would change.  However, she said it was difficult to predict what might be possible and when it might be desirable for the children to spend overnight time.  She said that if the father was to gain the support he needs to improve his parenting capacity “that would change the situation of risk for the children.” 

10. The mother in cross-examination said that she would be happy for the children to spend longer hours with their father on Saturdays.  She was asked whether she would be willing for the children to spend eight or nine hours on a Saturday with their father.  She said she would be willing to have it a bit longer.  She said that 8.00am on Saturday morning through to 6.00pm would not be a problem although she also said that late in the afternoon would be a time when the father would be more likely to start drinking.  She also said that it would be disruptive for the children coming home late as the two younger children were in bed by 7.30pm. 

11. The mother referred to what she described as the father’s “obsession with overnight time”.  She said that he has just got an obsession with them sleeping over at his home and that she was happy for him to come and watch sporting events.

12. The father said in cross-examination that he accepted the mother’s proposed restraining order on his drinking.  The evidence is that he has not consumed alcohol while the children have been in his care for a period of over two years.  As indicated, the Court proposes to make an order restraining the father from abusing or harassing the mother.  

13. A particular issue of concern to the family consultant related to the level of conflict between the parents and what she described as the father’s “almost oppositional behaviour.”  She linked this to what she saw as the father’s lack of acknowledgment of, or ability to prioritise the needs of such young children. 

14. The Court has found that the father has involved the children in the conflict.  The family consultant described this behaviour by the father as emotional abuse of the children.  The Court accepts her evidence about this supported as it is by her observations of the children and has found that the father’s behaviour could be psychologically harmful to the children. 

15. The children are currently seeing their father during the day and both the mother and the family consultant support the continuation of this.  The family consultant was asked how the issues she identified particularly related to the issue of the children spending overnight time with their father.  Her response was that overnight time was a time when children are especially vulnerable to needing their parents to be responsive to them when they need them to be.  She thought that there was not so much difference between overnight time and regular time for an older child who is capable in self care but that “for young children who are still waking in the middle of the night and needing support and toileting and the like, I think there is an additional risk for these children.” 

16. The family consultant acknowledged that these considerations did not apply equally to all the children given that they were at different stages of development.  She said that she did not think that it would be supportive of the sibling dynamic to have different orders in place for the children.  She said that she had thought about this very carefully when she formulated her recommendations because “obviously” [X] was moving to an age where overnight time would be more feasible.  The family consultant then added that there was room to consider separate arrangements when [X] was at a stage when she did not feel she had to be a party to either parent’s conflict.  She thought because of, what she described as “family violence level conflict” different arrangements for [X] would not be “advantageous for the dynamic.” 

17. When asked what would have to change for her to think differently, the family consultant identified that the father would need to receive further education in relation to children’s matters.  She recommended in her report of November 2009 that the father should be required to attend a parenting/child development program such as the Triple P program, and that there should be consistency in the current arrangements in that the father should spend the specified period of time with the children on the weekends provided for in the orders.  She considered that education was the key to enhancing the father’s parenting capacity.  The family consultant said that she did not know if the father would be responsive to that recommendation. 

18. The father acknowledged that the family consultant had suggested a number of courses to him.  However he said that he had not undertaken any of these courses.  He went further in his evidence by saying “I don’t need to go on parenting courses.  My kids love me.  I have a great time with them.”  The father misconceives the purposes of such programs.  The Court is of the view that attendance by the father at a course recommended by the family consultant would assist in addressing some of the issues identified in the matter. 

19. The Full Court in Oakley & Cooper [2009] FamCAFC 133, a matter in which it had been found that the parties had engaged in verbal and physical abuse, identified the importance of the Court considering conditions which should be complied with by a party in whose favour it is proposed that an order be made. The Full Court in particular identified referral to suitable counselling or attendance at post separation programs as a condition of parenting orders in circumstances where a report writer in that matter had also given evidence, accepted by the Court, of the impact of particular behaviour on the children.

20. In this matter, the Court is of the view that the restraints which are proposed to be made, together with attendance at such a program would be an appropriate response to the level of risk which has been identified in this matter and that these measures would mean that the children would not be exposed to unacceptable risk.  Attendance at such a program would be the basis for a graduated introduction of the children spending some overnight time with their father.  It would allow them to benefit from a meaningful relationship with him.  However, the responsibility of moving towards this lies with the father. 

Additional considerations

Section 60CC(3)(a) requires the Court to consider 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

1. The family consultant in her first report expressed the opinion that the children appear to be healthy and competent children.  The Court has referred to her evidence about the impact on the children of the increased conflict between their parents.  [X] told the family consultant at the second interview that if she stayed with her father she would make her mother upset and that if she stayed with her mother she would make her father upset.  The mother told the family consultant that the children all love their father and that she thought that they would like to spend more time with him.[18] 

   [18] Family Report dated 20 November 2009 at paragraph 18.

2. [X] said to the family consultant that although she would like to spend “maybe a little bit more” time with her father than she does now, she thinks she is too young to make the decision about where she stays. 

3. The children want to see their father. The evidence about this has been discussed.  The question is about their overnight time with their father.  [X], who is the eldest of the two children, does not want to make a decision about this.  This is a matter where these views need to be considered in the context of the other findings made by the Court. 

Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons including any grandparent or other relative of the child

1. The relationship of the children with their parents has been discussed.

2. There is no reason to think that the children have other than a good relationship with their maternal grandmother and step-father.

3. The mother said that the children speak positively of the time that they share with Mr C.  The family consultant observed that the children have a sense that Mr C is a special person in their father’s life and that they also seem to enjoy his company.[19] 

   [19] Family Report dated 20 November 2009 at paragraph 101.

4. The father’s parents live in Spain. To date they have had very little involvement with the children. 

Section 60CC(3)(c) requires the Court to consider the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. The father says the mother has been unwilling to facilitate the children’s relationship with him.  He said in his affidavit the first time he saw the children following separation was in September 2007.  An agreement about the father’s time with the children was made in conjunction with the Apprehended Violence Order made on 13 September 2007.  This agreement provided for the father’s time to be on alternate Saturdays and Wednesday afternoons.  

2. The father says that since the agreement was made he has been unable to see the children each Wednesday afternoon because of his work commitments and lack of transport.  The father does not have a motor vehicle.  He does not have a current drivers licence.  The father told the family consultant during the preparation of the first report that he is currently licensed to drive a motor vehicle using his British drivers licence.  At hearing the father acknowledged that he did not have a licence which enabled him to drive a motor vehicle.

3. Following orders made on 13 October 2008 the father has been paying the mother the sum of $50.00 dollars to transport the children to and from his residence so that he can spend time with them.  There was a period when the father was unemployed when he said he found it difficult to pay this sum and so for a time the children travelled by public transport to spend time with him.  

4. The father says in his affidavit sworn 11 November 2009 that he tried to see the children each fortnight except for two occasions when he was unwell or had work commitments which could not be rescheduled.  He said that the mother changed quite a number of the Saturdays and that this was the main reason why he spent fewer Saturdays with the children than as provided for in the agreement and in the subsequent orders.  

5. The mother gave evidence of a significant number of occasions when the father was not able to see the children or when he saw them for a reduced period of time because of the father’s involvement in activities relating to his work and the entertainment of clients on the weekends.  This evidence of the mother was detailed and the Court accepts her evidence about these particular occasions.  

6. The evidence is that both parents have sought to change arrangements at particular times and that there have been occasions when work involvement by the father has meant he has been unable to see the children or has seen them for a shorter period of time.  

7. The father said that there have been problems when he is speaking to the children by phone as required by the orders.  The mother in cross-examination acknowledged that this was so but said the problem arose because sometimes she and the children were not at home or that the phone was engaged.  This is a matter where it is clear that significant issues have arisen around the orders for telephone time and it is obvious this needs to be addressed in the orders which the Court proposes to make. 

8. The parties have now been separated for over two years.  The children were positive about wanting to spend time with their father in January 2009 and in November 2009.  It was the opinion of the family consultant, which the Court accepts, that this positive attitude of the children to the father indicated that the mother has been doing a reasonable job in promoting the father’s role in their lives.  The Court does not find that the mother is unable or unwilling to encourage the relationship between the children and their father.  She has imposed a tight structure around the time that they have spent with him but that Court does not consider her actions in doing this to have been unreasonable given the findings about the father’s alcohol use and the verbal abuse of the mother. 

9. The father himself needs to take steps which will further his relationship with the children. 

Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living)

1. The issues arising from this consideration have been discussed.

Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This is not a relevant consideration in this matter.  

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and 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.

1. The mother told the family consultant that the father had very little experience in providing care to the children before separation.  She said this was because of the father’s frequent late work, social commitments and alcohol use.  The father said that he had spent more time caring for the children than the mother acknowledged.  The mother agreed that on occasion she had left the children in the father’s care while she attended various activities.  When cross-examined she said that a condition of this was that the children were in bed before he left.  She was not challenged about this.  The family consultant considered that the mother had considerable anxiety about the father’s capacity to provide appropriate care for the children in anything other than what she described as “the fairly tightly controlled context” reflected in the current parenting orders. [20]

   [20] Family Report dated 26 February 2009 at paragraph 20.

1. The family consultant in cross-examination said that [X] was now more relaxed when spending time with her father.  She said that she is more relaxed about her father caring for her and her sister.  This she attributes to the mother following her advice to not place responsibility on [X] for [Z]’s care while the children were spending time with their father.  At the same time, this observation appears to indicate that particular issues have not arisen in relation to the father’s care of the children in the admittedly short period of time they spent with him on alternate Saturdays, apart, of course, from what the father has been saying to the children.  Certainly, the mother has not referred to any untoward incidents, apart of course, what the father has been saying to the children.  The evidence indicates that what concerns [X] is the conflict between the parents rather than her father’s care of her.  The father’s verbal abuse of the mother reflects on his parenting capacity as does his involvement of the children in the issues between the parents.  The language he used to the family consultant in describing the mother reflects adversely on his own judgment and ability to contain himself.  These are matters which reasonably led the family consultant to question the father’s parenting capacity and to express her opinion that he has difficulty in prioritising the needs of the children above his own.  The Court accepts this evidence of the family consultant and finds that at this time there are deficits in the father’s capacity to provide for the emotional needs of the children. 

2. The family consultant’s recommendation is that the father attends a parenting course to enhance his parenting capacity if he wishes to spend time with the children overnight.  The Court, given the evidence in this matter, agrees with this recommendation. 

Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. Many of the issues which arise in this consideration have been discussed at length in the judgment.  The Court has found that the father has been denigrating of the mother and very abusive towards her including at times when he has been intoxicated.  The Court has also found that he has involved the children in the dispute between he and the mother. 

2. For her part, the evidence of the family consultant was that the mother had inappropriately involved [X] in the care of [Z] when the children were spending time with their father.  The Court accepts that this was because of her anxiety about the children in the father’s care.  The evidence is that when this was brought to her attention by the family consultant during the interviews for the first report, she ceased involving the child in this way.  That she had done this was consistent with the observations of the family consultant. 

3. The father wishes to enhance his role in the life of the children.  Indeed the family consultant acknowledges that the father’s frustration and anger about not being able to spend more time with the children, and specifically overnight time, was contributing to what she described as “his state.”  

4. The father, however, does not seek to take any significant responsibility for the care of the children.  He accepts that the mother is and will remain their primary carer.  However, his actions towards the mother which have been described in the judgment does not support her in role as a parent.  This does not reflect well on the father’s attitude to the responsibilities of parenthood.  

Section 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child's family and Section 60CC(3)(k) requires the Court to consider any family violence order that applies to the child or a member of the child's family, if  the order is a final order; or the making of the order was contested by a person;

1. Issues of family violence have been previously discussed in the judgment.   

Section 60CC(3)(l) requires the Court to consider 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;

1. This is problematical in this matter.  The family consultant saw the potential for further litigation as a form of harassment of the mother by the father.  However, her recommendation that there be no provision for overnight time at this stage, is likely to lead to further proceedings in the matter.  This is of particular concern given the family consultant’s evidence about the impact of the escalating conflict between the parents on the children.  The Court finds that this is a factor to be taken into account in the orders which the Court proposes to make in the matter. 

Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the court thinks is relevant.

1. Relevant circumstances have been discussed. 

Section 60CC(4) requires consideration of the extent to which the child’s parents have taken the opportunity to participate in decisions about the major long term issues in relation to the child and the extent to which the parent has facilitated or failed to facilitate the other parent’s participation in making such decisions or in being able to spend time with the child or communicating with the child.

1. Participation in long term decisions relating to the children in this matter is to be discussed later in the judgment.  

2. The father does not pay child support for the children.  He says his business cannot afford that.  He says that if there was money to spare he would give it to the mother.  The mother points to the discrepancies between the father’s lifestyle and the fact that he is not paying any child support.  The father acknowledged that previously his tax refund cheque in the sum of $7900.00 was taken by the child support agency.  He said he expected at that time that this would happen and that he did not wait to lodge his tax return but rather rushed it through his accountant.  He said he just “wanted to give the money to her.”  In the context of this matter, and the father’s obvious hostility to the mother, the Court finds it difficult to accept this evidence from him, or to accept that he has fulfilled his obligation to maintain the children. 

Parental responsibility

1. Section 61DA(1) states 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 for the child’s parents to have equal shared parental responsibility for the child

2. Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted if there is evidence which satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them.

3. This is a matter where the Court has made a finding that the father has engaged in family violence.  To this extent the presumption does not apply.  The mother proposes that there should be an order for sole parental responsibility. 

4. The father’s counsel submitted that the parents in this matter are capable of a joint approach to the children.  The father gave evidence at hearing of a relatively recent SMS communication about the change of arrangements for the children, which he said showed that the parties could communicate reasonably.  The further evidence, however, was that communication on that particular occasion broke down.  The father said at hearing that the mother was “very stubborn”.  He said “she won’t talk” and that “she won’t listen.”  This evidence was given in the context of a discussion of matters such as a choice of school or medical issues which may impact on the children.  The father said “I can’t communicate with her” and he continued to use extremely derogative words in describing the mother to the family consultant in November 2009.  The father’s hostility to the mother is evident. 

5. This is a matter where the likelihood of deadlock in decision making is an important factor.  This was a consideration thought significant by the Full Court in Chappell & Chappell (2008) 39 Fam LR 627. The mother has been the primary carer of the children. She will remain the primary carer of the children. In the circumstances of this matter, the Court will make an order for sole parental responsibility in her favour.

6. Issues relevant to the father’s time with the children have been discussed in some detail in the judgment.  The Court has found that the children enjoy spending time with their father.  The Court proposes to increase the time the children spend with the father on alternate Saturdays so that they spend time with him from 10.00am until 5.00pm on that day.  The mother’s evidence is that she does not object to this.  However, for the reasons discussed, it is not in the best interests of the children that an order for overnight time be made unless certain restraints are imposed and certain conditions can be satisfied.  In particular, the father should be required to show evidence that he has completed the Triple P program as recommended by the family consultant.  Completion of this program on the evidence of the family consultant is likely to assist the father in identifying the needs of the children and giving priority to those needs.  Completion of the program would also indicate commitment on his part and an ability to accept responsibility himself for his actions.  The evidence is clear that the father’s tendency to blame others, in particular the mother, for his shortcomings has contributed significantly to the conflict which is so detrimental to the children.  

7. The Court also gives weight to the evidence of the family consultant of the significance of the very young ages of the children and the importance of not having different arrangements for example for [X] compared to the two younger children.  The Court is also mindful of the fact that it is not in the best interests of the children to make orders that might make it more likely that the matter will come back before the Court.  

8. [Z], the youngest of the three children, will be aged five in October 2010.  The Court proposes to make an order providing that if the father gives written confirmation to the mother prior to November 2010, of having completed a Triple P parenting course, that overnight time be introduced commencing from the first Saturday that the father would be spending time with the children in 2010.  The father’s time with the children would then be from 10.00am Saturday till 4.00pm Sunday on each of the second Saturdays when he would be seeing the children.  Effectively then he would spend one overnight Saturday with the children each four weeks.

9. It is important that the father shows a commitment to this and that he does not schedule work activities when the children would otherwise be spending time with him.  The proposed arrangements should continue until November 2011.  Provided the father has spent at least nine occasions for overnight time with the children pursuant to the orders in the twelve month period, he should then spend time with the children overnight each alternate Saturday from 10.00am to 5.00pm each Sunday.  The father in his orders also seeks to spend time with the children each Wednesday from 4.00pm until 7.00pm.  The mother does not oppose these orders.  Such time was also recommended by the family consultant.  It would provide an opportunity for the father to be involved in activities of the children.  The Court proposes to make such an order.

10. The father also seeks to spend time with the children from the first of half of all school holidays every alternate year commencing 2009 and the second half of all school holidays every other year. The father has given evidence that his work arrangements are more flexible than previously and for this reason he will be able to spend the Wednesday time with them. The father has not given evidence about his capacity to spend such periods of time with the children during school holidays. Indeed when he saw the family consultant for the purposes of the first report in January 2009 he proposed that the children spend a one week block of holidays with him every year. Certainly the father at that time was employed at [omitted]. He now essentially conducts his own business. For the reasons discussed the Court is of the view that the introduction of longer periods of time between the children and the father should proceed cautiously. Commencing in January 2012 the father should spend two block periods of one week each with the children each year. Unless otherwise agreed, the father should spend a week with the children commencing on the first Saturday in January and a week with the children in the first week of the mid year school holidays commencing also on the first Saturday of the school holidays.

11. The Court will also make orders for the father to spend time with the children on special days including from 9.00am till 12 noon Christmas Day each year unless otherwise agreed.  

12. The mother proposes that the father collect the children from her at the local mall bus stop at the commencement of his time with them and that she collect the children from the father’s residence at the conclusion of contact.  In the circumstances of this matter, given the restraining order that will be made on the father in relation to the mother’s premises, the Court will make that order.

13. The Court proposes to make orders which potentially will allow for the children to spend increasing amounts of time, including overnight time with their father in the future.  Whether this occurs will depend very much on the father himself. 

I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Walker FM

Date:  28 July 2010