Sloane and Lyon

[2019] FCCA 945

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLOANE & LYON [2019] FCCA 945

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D, 65L

Applicant: MS SLOANE

Respondent: MR LYON

File Number: SYC 6598 of 2013

Judgment of: Judge Newbrun

Hearing dates: 11, 12, 13 February 2019

Date of Last Submission: 13 February 2019

Delivered at: Parramatta

Delivered on: 12 April 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Cook

Solicitors for the Applicant: Mahony Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr Moore

Independent Children’s Lawyer: Robertson Solicitors

ORDERS

1. That the Orders dated 3 February 2014 shall be discharged.

2. That the mother shall have sole parental responsibility for the children, namely, [X] born … 2006 and [Y] … born … 2008.

3. That the children shall live with their mother.

4. That the children shall spend time with their father as follows:

   (a)For 3 months, for 2 hours each fortnight during such 3 month period, supervised by the CatholicCare Children’s Contact Service at Suburb A (“the Contact Service”);

   (b)Thereafter for six visits, for 3 hours each fortnightly Saturday, from 10:00 am until 1:00 pm unsupervised in a public place, with changeover to occur at the Contact Service;

   (c)Thereafter for a further six visits, each fortnightly Saturday from 10:00 am until 4:00 pm unsupervised in a public place, with changeover to occur at the Contact Service;

   (d)Thereafter for a further six visits, each alternate weekend from the conclusion of school Friday until 6:00 pm Saturday; and

   (e)Thereafter, for a further six visits, each alternate weekend from the conclusion of school Friday until 6:00 pm Sunday; and

   (f)Thereafter, each alternate weekend, from the conclusion of school Friday until the commencement of school Monday.

5. That commencing 2020 the children shall spend time with the father for four consecutive nights during the New South Wales short school holidays and for this purpose, the father’s time shall commence at the conclusion of school on the last day of the school term and conclude at 6.00pm five days later.

6. That the children shall spend time with the father for two block periods of seven consecutive nights during the NSW Christmas school holidays commencing 2020 and for this purpose, such periods shall be as agreed between the parents and failing agreement as follows:

   (a)From 10:00 am Boxing Day 2020 until 6:00pm 2 January 2021; and

   (b)From 10:00 am 16 January 2021 until 6:00pm 23 January 2021.

7. That commencing 2020 the children shall spend time with the father for Easter from 6:00 pm Easter Saturday until 4:00 pm Easter Monday.

8. That commencing 2020 the children shall spend time with the father on Father’s Day from 6:00 pm on the evening before Father’s Day until 6:00 pm on Father’s Day.

9. That notwithstanding any other order, if Mother’s Day falls on a day when the mother does not otherwise have care of the children, the mother will have care of the children from 6:00 pm on the evening before Mother’s Day until 6:00 pm on Mother’s Day.

10. That commencing from, and including, the first NSW short school holidays in 2021 the children shall spend time with the father for half of all NSW school holidays with such periods to be as agreed between the parents, and failing agreement as follows:

    (a)In odd-numbered years with the mother for the first half and with the father for the second half; and

    (b)In even-numbered years with the father for the first half and with the mother for the second half.

11. That for the purpose of facilitating these orders, school holiday periods shall be deemed:

    (a)To commence at the conclusion of the last day of the school term.

    (b)To conclude at the commencement of the first day of school attendance.

    (c)To reach the ‘halfway’ point at 6:00 pm on the middle Sunday of the school holiday period.

12. That changeover shall occur on a school day, by the father collecting the children from and returning the children directly to their school.

13. That changeover shall occur on a non-school day, at the Contact Service and in the event the Contact Service is not available for changeover, changeover shall occur at McDonalds Suburb A, unless otherwise agreed to in email or text message between the parents.

14. That within 7 days of the date of these Orders, if they have not already done so, each party shall contact the Contact Service and do all things necessary to facilitate the father’s time with the children at the Contact Service, including but not limited to attending an intake assessment, and otherwise follow all reasonable directions of the Contact Service.

15. That on each of the children’s birthdays and upon the children commencing supervised time with their father, the children shall have telephone communication with their father between 7:30 am and 8:00 am and for this purpose the father shall place a call to a telephone number nominated by the mother and the mother shall ensure that the children are available to speak with their father.

16. That on the father’s birthday and upon the children commencing supervised time with their father, the children shall have telephone communication with their father between 5:00 pm and 5:30 pm and for this purpose the mother shall place a call to a telephone number nominated by the father and the mother shall ensure that the children are available to speak with their father.

17. That on the mother’s birthday, if the children are not otherwise in her care, the children shall have telephone communication with their mother between 5:00 pm and 5:30 pm and for this purpose the father shall place a call to a telephone number nominated by the mother and the father shall ensure that the children are available to speak with their father.

18. That within 7 days of the date of these Orders, the mother shall provide a copy of these Orders to the children’s school and any school which they may attend from time to time, which shall be deemed as authority for the father to communicate with the schools and receive all such documents, including but not limited to newsletters, invitations, school photographs, reports and the like at the father’s cost.

19. That upon the children commencing supervised time with their father, the father shall be at liberty to attend all school functions and activities that relate to the children which parents are ordinarily invited to attend.

20. That the parents shall notify each other in writing of the names and addresses of any treating medical or health practitioner or hospital the children may attend and authorise such organisation or individual, to provide to the other parent at his/her request and expense, any information or reports concerning the children.

21. That in the case of an emergency occurring involving the children whilst they are in either parents respective care, the parent shall notify the other immediately and provide the details of the emergency and any health professional the children have attended upon.

22. That both parents shall keep each other advised by text message of their telephone number and any changes to the number within 48 hours.

23. That both parents are injuncted from denigrating the other parent, or members of the other parent’s family, to the children or in the presence of or hearing of the children, and each parent shall take all reasonable steps to ensure that no third party denigrates the other parent in the presence of the children. 

24. The father shall not allow the child [X] to eat foods that he is allergic to, including dairy products, when this child is spending time with him.

25. Should the child [X] be required to take any medically prescribed medication when spending time with the father, the father shall take all necessary steps to ensure that this child is administered such medication in a timely fashion.

26. The father shall not drink alcohol and not be affected by alcohol whilst the children are spending time with him.

27. The father shall not allow the children to remain unsupervised whilst the children are in his care.

28. The father shall not allow the children to come into contact with Mr B whilst the children are in his care.

29. Pursuant to section 65L of the Family Law Act 1975 (Cth), the Court requires a family consultant, appointed by the Director Child Dispute Services, to give the mother such assistance as is reasonably requested by the mother in relation to her compliance with, and the carrying out of, the above Orders relating to the children spending time with the father, for a period of three months.

30. Pursuant to section 65L of the Family Law Act 1975 (Cth), and the above Order, the Court requires the above appointed family consultant to meet with the above children as soon as possible to explain to them the above Orders relating to the children spending time with the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 6598 of 2013

MS SLOANE

Applicant

And

MR LYON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This final parenting hearing related to the children [X] born … 2006 and [Y] born … 2008.

Proposals

1. The mother, in her Initiating Application filed 11 February 2016, inter alia, seeks Orders that she have sole parental responsibility for the children; that the children live with her; and that the children spend no time with the father.

2. The father, in his Case Outline document dated 5 February 2019, seeks final parenting Orders, inter alia, that the parties have equal shared parental responsibility for the children; that the children live with the mother; and that the children spend time with the father, initially for a period of three months for two hours each week, supervised by a contact service at Suburb A, and thereafter, on a graduating basis, spend increasing unsupervised time with the children, ultimately leading to the children spending time with the father each alternative weekend, from the conclusion of school Friday until the commencement of school Monday.

Material relied upon

1. The mother relied upon the following documents:

   a)Initiating Application filed 11 February 2016;

   b)Affidavits of Ms Sloane filed 16 January 2019 and 30 January 2019;

   c)Affidavit of Ms C filed 16 January 2019.

2. The father relied upon the following documents:

   a)Amended Response filed 21 January 2019;

   b)Affidavit of Mr Lyon filed 18 January 2019;

   c)Affidavit of Ms D filed 21 January 2019.

3. The following exhibits were relied upon:

   a)Family Report of Ms E (Exhibit A);

   b)Child Inclusive Conference Memorandum dated 18 November 2016 (Exhibit B);

   c)Independent Children’s Lawyer’s Proposed Minute of Order (Exhibit C);

   d)Letter addressed to Dr F from Ms G dated 22 September 2014; letter addressed to Dr H from Dr F dated 6 May 2014 (Exhibit D);

   e)Narrative 2 of 3 – 22 June 2016 (Documents produced under subpoena by NSW Police) (Exhibit E).

Evidence

1. Any reference to facts in these Reasons should be regarded as a finding of fact unless a contrary intention is clear from the context. The Court does not propose to set all the evidence given in these proceedings. The Court may also refer to facts in its discussion under section 60CC of the Family Law Act 1975 (Cth) (“the Act”), which are not presently referred to.

2. The father was born on … 1964.  The mother was born on … 1976.

3. The parties’ relationship commenced in about … 2005 when they married. 

4. During the parties’ marriage, the father drank alcohol heavily on and off.  When the mother tried to talk to him about his alcohol consumption, the father would become angry and start to yell.  This would happen often in front of the children. 

5. During their marriage, the father was regularly verbally abusive to the mother. 

6. In about the early 2000s the father started attending Alcoholics Anonymous meetings. 

7. The parties separated in about mid 2007.  Following the separation the father spiralled into depression and started drinking alcohol. 

8. The mother has eight other children from previous relationships and her current relationship, including four children with her current partner Mr J aged six, five, three, and two.

9. The mother has been the primary carer of the subject children during the parties’ relationship and to date.

10. Throughout 2007 and 2008 the father would visit the child [X] for a couple of hours on Saturdays.  In 2008 the father spent time with [X] every Saturday from about 10 am until 4 pm.  From about October 2009 this time changed to every Saturday from about 9 am until 5 pm.  During this latter period the mother became concerned with the father’s drinking of alcohol.

11. In 2009 the father was disqualified from driving for three years for drink driving.

12. On about 20 February 2010, following an argument between the parties in relation to the father’s consumption of alcohol, the father left a telephone message on the mother’s answering machine stating that, inter alia, if the mother did not bring the child [X] to his residence, then he was going to come down to the mother’s residence and kick the door.  The father was significantly intoxicated when this threat was made.

13. At about this time the mother made a decision to stop taking [X] to the father’s home.  From March 2010, the father saw the children at Catholic Care for a couple of hours every second weekend.

14. In March 2010 a final Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother.  This was a one year order. 

15. The mother commenced proceedings in the Federal Magistrates Court of Australia in 2010 and in July 2010 consent Orders were made, inter alia, that the mother have sole parental responsibility for the children; that the children live with the mother; and that the children spend time with the father on days to be determined by Catholic Care Suburb A.  A Notation to those Orders stated that the father was to commence a residential rehabilitation program to address his alcohol addiction.

16. In August 2010 the father commenced a rehabilitation program for alcohol consumption at WHOS.  Prior to his admission to this program, at its greatest, he was drinking alcohol every day.  Originally he intended to stay at WHOS for three months but he chose to extend the rehabilitation program to twelve months, being a live-in program.  During this program and for eighteen months afterwards he received education for alcohol relapse prevention. 

17. The mother completed a Keeping Kids in Mind program at Catholic Care in March 2011.

18. Consent parenting Orders were made in the Local Court of NSW at Suburb A in December 2011 providing for the parties to have equal shared parental responsibility for the children; for the children live with the mother; and for the children spend time with the father, initially supervised by the mother, and thereafter unsupervised time during the daytime, on a graduating basis.  The father commenced spending unsupervised time with the children in about March or April 2012. 

19. In about June 2013 the father sent a text message to the mother threatening to drop the children off at her front gate if the maternal grandmother did not pick up the children from Suburb K McDonalds instead of the agreed place at Suburb A McDonalds.  The mother responded to the father by stating that he was not welcome at her home and that he was not to come to her home.  The mother was very scared, stressed and sick at the thought of the father coming to her place.

20. On 3 February 2014, consent parenting Orders were made in this Court providing, inter alia, that the parties have equal shared parental responsibility of the children; that the children live with the mother; and that the children spend time with the father on a graduating basis leading to from after school on Friday to the commencement of school on Monday every second weekend.  The father spent time with the children pursuant to those Orders consistently from February 2014 until August 2015, on alternate weekends and for half of the school holidays.

21. The father had been abstinent from drinking alcohol, after leaving the WHOS program in 2010, until September 2014 when he began to drink alcohol again, albeit moderately, he having broken up with his girlfriend.

22. The father told the family consultant at the Child Inclusive Conference on 17 November 2016 that he had three to four beers on some occasions when he had the care of the children, but was never intoxicated.  The Court accepts this evidence.

23. In about December 2014, when the children were spending time with the father, the father left them alone at night time in his upstairs unit for some minutes while he took a DVD back to the local shop.

24. The mother received text messages from the father, stating words to the effect that he still loved her, up until about July 2015.  He also sent the mother abusive and inappropriate text messages up until about April 2016.

25. Prior to about May 2015, Mr L and his son Mr B, then aged about eighteen, came to stay one Saturday night at the father’s unit when the children with there.  The father found [X] in Mr B’s bed.  Mr B was not asleep and neither was [X].  The father told [X] to get back into his bed, which he did.  Half an hour later the father again checked in on [X] and found that he was back in Mr B’s bed again.  [X] was again told by the father to return to his bed, which he did.  The next day [X] kept talking about “boners”, being an apparent reference to an erection.  The father assumed that Mr B told [X] this word.  He told [X] to stop talking that way.

26. Some time later the father took the children to the Mr L residence where Mr B lived with his parents.  The father was friends with this young man’s parents.  The father left the children with Mr B in his bedroom.  At some point in this bedroom Mr B requested the child [X] to lick a dog’s genitals, and he so complied.  This was done in the presence of the younger child [Y].  When the mother discovered what had occurred, she reported the incident to the authorities.  ADVO proceedings were commenced against Mr B for the protection of the children and an order was made for their protection.  The children had sexual assault counselling from August 2015 and up until about January 2016.

27. In about late August 2015, when the children were spending time with the father, the child [X] punched [Y] very hard in his stomach.  The father intervened and, with the child [X]’s back towards the father, grabbed the top of [X]’s shoulders, forcibly taking him to his room, where he was confined for about twenty minutes as a disciplinary measure.

28. The father’s last regular time with the children was in about late August 2015.  The mother at this time sent the father a text message stating that she was very worried because the children had told her that he was drinking when they were with him.  The Court does not accept that the father was drinking alcohol at such times. The mother asserts that she stopped complying with the Court Orders because she was extremely concerned and fearful for the children’s safety.

29. Thereafter, the father’s alcohol consumption spiralled out of control, with the father beginning to consume whiskey and vodka, always at his residence on his own.  He went into a detoxification program in August 2015 at Suburb M Hospital for about a week.  The father had called an ambulance. Following his discharge from hospital, the father recommenced his consumption of alcohol.

30. In January 2016 the father was again admitted to Suburb M Hospital at his own instance.  He was taken there by ambulance.  He was in hospital on this occasion for about two weeks.  He received physical treatment and also preventative care in relation to alcohol consumption.  Upon being discharged, the father immediately recommenced consumption of alcohol, drinking alcoholic spirits on a daily basis.

1. In March 2016 the father was again admitted to hospital, initially … Hospital, and then the detoxification unit at Suburb M Hospital.  The total length of his stay in hospital at this time was about ten days.

2. The father had admitted himself to hospital in August 2015, January 2016, and March 2016 because he recognised that he was struggling to maintain his commitment to his addiction recovery and needed the assistance of the detox service.

3. The father asserts he has not touched alcohol since his discharge from Suburb M Hospital in March 2016.  The Court accepts this evidence.   The father’s reasons for ceasing drinking at this time were, inter alia, that he wanted to spend time with the children and to avoid drink driving.

4. The father returned a normal CDT test in September 2017 December 2017, March 2018, November 2018, and December 2018, indicating a lack of excessive alcohol intake.

5. The father recognises that as an alcoholic he needs to be aware of the risk of relapse and actively seek out and follow through with strategies to reduce the risk of relapse.  He asserts that if he was concerned that he was going to relapse, he would raise this with his support network, including psychotherapist Ms N, and friends from church.  He also asserts that if he was concerned that he was going to relapse, he would also stop visits with the children.The Court accepts this evidence.

6. The father, on his discharge from Suburb M Hospital in March 2016, commenced the Smart Recovery rehabilitation program in relation to alcohol consumption. Although he does not have a sponsor at Smart Recovery, there are plenty of people there he can talk to if he is thinking of drinking alcohol.  Since March 2016 he has attended this program every week.  The father’s attendance at this program is confirmed by the letter from Mr O dated 14 March 2018.

7. The father saw the child [X] in about February 2016 when the father went to see this child play sport.  The father at this time had a brief conversation with this child. 

8. In about late June 2016 the father saw the children at their school briefly.  A complaint was made to the police in relation to the father’s attendance upon the children at this time.  An allegation had been made that the father had verbally threatened the children.  The police interviewed the father.  Exhibit E is a part of a police written narrative relating to the interview with the father by the police.  Inter alia, the narrative states:

   With all the evidence at hand police have decided not to pursue criminal charges and have been decided against the application for an AVO.  The opinion being formed due to conflicting versions and doubts of version given by a 10-year-old victim who police feel may have been prompted into his version.  This being apparent due to the stalking and intimidation being repeated by 10-year-old boy who police believe does not have the mental capacity to use such words.  This being apparent when asked by police how did you get to school today to which blank replied “safely”.  Police would be reluctant to put the victim before the court in order to give evidence in the matter given his age and doubts.

9. The Court does not accept that the father threatened the children on this occasion.

10. The child [X] was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) – hyperactivity and asthma in May 2010.  He was diagnosed with severe Oppositional Defiance Disorder (“ODD”) (in the home context only) in about November 2013.  He also has an anaphylactic allergic reaction to egg, peanuts, tree nuts, and milk.  He was prescribed an EpiPen in June 2014.  In December 2014 the father sent the mother a text message asserting that the child [X] was not allergic to dairy any more.  He had tested this child on certain food items containing dairy products with the child not adversely reacting.

11. The child [Y] has been diagnosed with Kawasaki disease.

12. The child [X] receives ongoing care for his anaphylaxis, allergies, asthma and behavioural issues.

13. The child [X] has been seeing a psychologist at Forward Momentum at Suburb A from about November 2017 and is currently still seeing her on a mental health care plan.

14. From 2017 onwards the father has sent to the children birthday cards and Christmas cards wishing them well, and giving them $50 as a gift.   He has never received a response.

15. The mother gave oral evidence and was cross-examined.

16. The mother stated she does not accept that the father has stopped drinking alcohol.  She suggested that the father might have been drinking alcohol in between alcohol test results.  She stated that no one could guarantee the children’s safety.

17. The mother stated that if the Court was to make Orders for the children to spend time with the father, although she did not agree with the children seeing the father, she would have to obey the law.  However, she could not physically make the children see the father.  The mother stated that if the Court was to make Orders for the children to spend time with the father, she would tell the children the Orders and tell them that she has to obey the Orders.  The mother stated that she would try and take the children (to spend time with the father) but if they refused she could not “drag them”.  The mother stated that she would tell the children that the law had to be obeyed.

18. The mother stated that the child [Y] had been to the Anchor program and his time there had finished.

19. In cross examination, the mother’s attention was drawn to the Family Report, in which the Family Report writer states that the mother presented as highly anxious during the Family Report assessment process, and that she may benefit from engaging the services of a psychologist to assist her with stress management and emotion regulation strategies.  The mother was asked whether she had engaged a psychologist.  The mother confirmed that she had not engaged a psychologist for herself.  She asserted that she did not need to see a psychologist, stating, “we’re here because of the father”.

20. The mother was asked whether she had thought of engaging the services of a family therapist, for herself.  The mother asserted that she did not see the need to, stating that she was “not here” for what she had done.

21. The mother confirmed that she breached Court Orders in 2015 because of what the children had experienced.  She stated that she had done what she had to do to protect the children.

22. The mother did not see any impact on the children if the current arrangement, whereby they do not spend time with the father, was to continue.  The mother asserted that she held this view given what had happened in the past.  The mother stated that the child [X] loves sports.  The mother stated that [X] loves sports and playing sport at school.

23. The mother confirmed that the child [X] was presently in Year 8.

24. The mother stated that the child [Y] has been treated for his Kawasaki disease.  He took medication for a period but has since stopped such medication and has been given the all clear.  He does not need to see a specialist for this condition.

25. The mother stated that prior to August 2015, she sent text messages to the father about what he needed to know regarding the children.

26. The mother asserted that looking into the future she could not talk to the father.  She stated that if there was information regarding the children that the father needed to know she could communicate such information to him.

27. The mother acknowledged that she had consented to past parenting Orders, knowing the father’s alcohol consumption and domestic violence.  She acknowledged that the allegations in paragraph 37 (a) to (e) of her Affidavit filed 16 January 2019 had allegedly occurred before the Court’s parenting Order of February 2014.

28. The mother stated and alleged that following the February 2014 Court Orders there was an incident involving Mr B, the children and the dog; the father exposed his genitalia to the children; the children were left unsupervised whilst the father went to a video store; the father exposed the children to pornography; and the father had drunk alcohol.

29. The mother was not sure if she had allowed the children to spend time with the father after the incident involving Mr B, the children and the dog.  She acknowledged that she became aware of this incident in about May 2015.

30. The mother stated that she has never sought medical attention in relation to the physical sickness she alleged she experienced for months prior to having to go to Court and be in the presence of the father.  She asserted that she feels nervous and feels sick in the stomach.  She acknowledged she is still able to care for the children in these circumstances.

31. The mother stated that if the Court made an Order for the children to spend time with the father, she would obey the law even if she felt sick.  She would have to put aside how she felt.

32. The mother confirmed that from about March 2012 to August 2015 the children’s time with the father was unsupervised.

33. The mother confirmed that she has received no psychological assistance for herself since the father spent time with the children post separation or after August 2015, when the father saw the children briefly on two occasions.

34. The father gave oral evidence and was cross-examined.

35. The father confirmed that he has never spoken to the mother properly since the parties’ separation and divorce.  He confirmed that the parties do not have any ability to communicate or have a civil conversation.  He does not talk to the maternal grandmother.  Any communication with the mother would have to occur via text message.

36. The father stated that in order to fix the relationship between himself and the children, there is nothing he could do but show unconditional love and be able to see them.

37. The father confirmed that he once left the children unsupervised in his residence for a short period to return a DVD to a DVD shop so as to avoid a late fee of about $8.  He asserted that he asked his next door neighbour to the watch out for the children while he went to the DVD store.  He stated that this incident has been blown out of all proportion by the mother.

38. The father stated that he did not accept that the child [X] suffered from the allergies that the mother asserts he suffered from.  He stated that this child has eaten dairy products in his presence which did not affect him adversely. He confirmed his statement in his earlier Affidavit that he had acted “slightly irresponsibly” by having the child eat further dairy products as an allergy test.  He stated that he always had this child’s EpiPen with him and that he has read the instructions for the EpiPen. 

39. The father acknowledged that he had verbally abused the mother.

40. The father read in Court (to himself) paragraph 54 of the Family Report, in which it is stated that the mother reported that the child [X] had been diagnosed by his previous paediatrician Dr F with ADHD, ODD and Mild Autism.  Having read paragraph 54, he stated that he only accepts to a small degree what is stated there.  He clarified that he accepts that this child suffers from autism, and he stated he does not know what ODD is.

41. The father stated that, in relation to [X]’s behaviour, if [X] does not get his way, he will act up.

42. The father acknowledged becoming very angry when on one occasion [X] punched the child [Y] very hard on the stomach.  He grabbed the child [X] by his shoulders and marched him to his room.  Whilst he did this, the child [X] was resisting.  The father stated that [X] was left in his room until he came out and apologised to [Y].  He stayed for fifteen to twenty minutes in his room.  This incident occurred in about 2014 or 2015.

43. In relation to seeing the psychotherapist Ms N, the father stated that his goal in seeing this person was long term sobriety.

44. The father stated that after becoming aware that Mr B had pulled back the skin of his dog’s genitalia to show the children, he verbally chastised Mr B, and Mr B told him he would not do that again, but thereafter he had not been vigilant with the children spending time with Mr B.  He stated that, having verbally chastised Mr B, he did not see a need to inform the mother of the incident, as he had dealt with the situation.  He stated that the children adored Mr B.  He stated that Mr B regarded himself as an uncle.

45. The father stated that he had been very angry with [X] for being so gullible in complying with Mr B’s request in relation to the dog.

46. The father stated his belief that the mother regards … Church as a cult.  He stated that he wishes to take the children to this church on weekends.

47. The maternal grandmother gave oral evidence and was cross-examined.

48. The maternal grandmother stated that she found it very hard to take the children to McDonalds restaurant at Suburb A for the changeover during school holidays, which she carried out for the majority of the time to help out.  She was scared and stressed the whole time that she was taking the children to these visits.  She asserted that the father had not been very nice to her on at least two occasions at changeovers, in June 2013 (after the father sent text messages to the mother stating that if the maternal grandmother was not at the changeover place, he was going to drop the children off at the mother’s front gate) and in June 2015.

49. The maternal grandmother stated in oral evidence that she had nothing complimentary to say about the father.

50. She acknowledged that it was possible that she told the children about an alleged hair pulling incident involving the parties, but she did not recall.  She stated that she and the mother were “big” on telling the truth and that she may have told the children what the mother had told her.

51. Ms D gave oral evidence and was cross-examined.

52. Ms D is a friend of the father.  She met him at the … in about 2011.  She observed the children at church with the father.  She asserts that the children appeared happy, well behaved and cared for in the presence of the father at the church.  She stated that her last recollection of seeing the children with the father was in about mid-2015.

53. Ms D confirmed that the father had not shown her any Court documents relating to these parenting proceedings.

Child Inclusive Conference of 17 November 2016

1. The family consultant stated that given the admissions made by the father (the Court observes that the father had admitted to the family consultant that he had a twenty year history of problems with alcohol abuse) both children appeared realistically aligned with the mother’s views rather than alienated from the father.  In this context the family consultant stated, “[t]hough this is not to say, that [the mother] has not made negative comments about [the father].”

Family Report

1. Ms E, family consultant, prepared a Family Report dated 5 June 2018.  Ms E will be hereinafter referred to as the Family Report writer.

2. The Family Report writer conducted interviews with the parties, children and other persons on 3 May 2018.  A direct observation of interaction between the father and the children was not able to be conducted.

3. The Family Report writer observed that the mother lived at Suburb P, with the father living in a two bedroomed community housing unit in Suburb Q.  She observed that the father was not in a relationship, that he was not in paid employment and that he volunteered at the … for eight hours per week.  She observed that the children attend School R.

4. The Family Report writer observed that the parties lived about 50 kilometres from each other, being about a 55 minute drive.  The father told the Family Report writer that if he was to spend time with the children he would continue to provide the transportation for the children when they spend time with him. 

5. The father admitted to experiencing difficulties with alcohol in the past.  He reported to the Family Report writer that he had attended detoxification programs, received individual psychotherapy, and participated in a self-help group on a weekly basis.  He stated that he had been abstinent since March 2016.

6. The mother told the Family Report writer that she had to manage the children’s fears and uncertainties relating to spending time with the father.

7. The father admitted that on one occasion in 2010 he became particularly intoxicated and telephoned the mother, threatening to kick her door in.  He described his behaviour as the wrong thing to do.

8. The father reported that the parents had engaged in arguments and called each other names during the relationship.

9. The father told the Family Report writer that Mr B, then eighteen years old, had admitted during a police interview that he had forced the child [X] to lick Mr B’s pet dog’s genitals.  The father denied to the writer that he had exposed the children to pornography or his genitals, as alleged by the mother.

10. The mother alleged that the children disclosed to her that they had been left unattended by the father in his unit and at a swimming pool attached to the unit complex.  She further alleged that the children reported to her that the father would drink beer.  This caused her to have concerns regarding the father’s ability to administer the child [X] is EpiPen if he was heavily intoxicated.  The mother also expressed concerns that the father did not believe that the child [X] had serious allergies.

11. The father reported that he had been seeing a psychotherapist once or twice per fortnight for seven years (and see the letter from Ms N dated 2 March 2018, which refers to this person, a psychotherapist, providing therapy to the father; she states that the father’s main goals in therapy were “his sobriety and around skills to managing his anxiety better supporting him in remaining sober”).  He told the Family Report writer that he had voluntarily admitted himself to a detoxification program on three separate occasions: August 2015, January 2016 and March 2016.  He attended the Smart Recovery self-help group on a weekly basis.  The father asserted to the Family Report writer that he has now developed a greater understanding of his triggers that might lead to a relapse.He stated that he has submitted results from two CDT tests which have both been negative.

12. The mother reported that the child [X] had been diagnosed, by his previous paediatrician Dr F, with ADHD, ODD and mild autism.  He was being treated with Catapres and Risperidone, prescribed by his paediatrician, and received therapeutic support from a psychologist at the Forward Momentum practice.

13. The Family Report writer observed that there was no functional co-parenting relationship between the parties.  She observed that the co-parenting relationship after separation had been acrimonious, with a high level of conflict resulting in several Court proceedings for parenting arrangements.  She stated that there had been no communication between the parents since the children stopped spending time with the father in August 2015.

14. The mother described the child [X] to the Family Report writer. She described [X] as having behavioural outbursts at home.  She said that his behaviour had improved over the years but that he continued to find following the rules difficult.  He had some difficulties in appropriately managing his anger and conflict between him and his siblings.  The mother said of [X], “I have been through the wringer with him”, he was “always hurting [Y], hitting and spitting”, stating that he “worries about a lot of things” and that he benefited from consistency in his routine.  The mother also said that [X] could be a very intense person.

15. The mother told the Family Report writer that [X], in addition to accessing support from Forward Momentum, participated in the Jigsaw program provided by Uniting.  The mother was positive about the program and said that she thought [X] found it helpful.

16. The father told the Family Report writer that [X], although impulsive, generally behaved well when he spent time with the father. 

17. Mr Sloane reported to the Family Report writer that [X] had behavioural issues but had improved, stating that this may have been due to a combination of his maturity and the support of medication.  He stated that the child [Y] would get a bit stressed at times and he was supportive of this child’s attendance at counselling. 

1. At the Family Report interview, the mother reported no medical or developmental concerns for the child [Y].  The issue reported in the mother’s Affidavit of the child [Y] having Kawasaki disease was not explored further at the Family Report interview.

2. The children were interviewed by the Family Report writer.

3. The child [X] presented as anxious during his interview with the family consultant. 

4. The child [X] told the Family Report writer that he thought the mother was the one making the children say that they did not want time with the father.  The child explained to the Family Report writer that the mother had told him about an alleged threat of the father and the father pulling the mother’s hair.

5. The child [X] appeared to the Family Report writer to be resistant to the prospect of spending any time with the father.  This child said that he would not feel comfortable and that he did not like to see someone who was hurting the mother and drinking “and hurting us”.

6. [X] told the Family Report writer that he would get grounded or sent to his room because he bullied people.

7. The child [X] was re-interviewed by the family consultant following the children observing the father from the observation room.  The child [X] noted some of the physical changes in the father since he had last spent time with him.  [X] did not appear to outwardly show any negative emotion towards the father, but restated that his preference was to spend no time with the father.

8. The child [Y] presented as an anxious and timid child, though he engaged in conversation with the Family Report writer.

9. [Y] said that [X] hurt him sometimes.  He stated that the children got sent to their bedrooms and grounded when they fought.

10. When discussing his relationship and experiences with the father, [Y] said that he would be scared to see the father.  He explained that the father would yell at them or drink beer, and he further stated that the father might hurt them.  When recalling his time with the father, [Y] also stated that the father would yell and “[X] would get scared and we would jump, [the father] would tell me to go to my room”.

11. During the interview, [Y] said that the mother did not like the father to be around them.  He further stated that the mother did not like the father, and that “because he is mean [he] pulled my Mum’s hair and threw her on the couch.  Nan told me.”

12. Following the observation of the father’s interview with the Family Report writer, [Y] was reinterviewed.  He stated that he found the experiences scary, and when he was asked to elaborate on his experience he reflected back his stated, past experiences of the father “drinking beer” and “doing bad things”.

13. The Family Report writer stated that information provided by the children indicated that they had a close relationship with the maternal grandmother.

14. There was no observation session with the children and father together.  The children had reported to the Family Report writer that they were fearful of seeing the father.  The Family Report writer had encouraged the children and provided a number of supportive alternatives.  However, the children maintained that they were unwilling to participate.  The Family Report writer stated that given the children’s reported level of distress and unwillingness to participate in the observation, the Family Report writer was unable to conduct the observation.

15. Again, the children had observed the Family Report writer’s interview with the father.  The Family Report writer stated that the children seemed anxious before commencing the observation, they each having asked several times if the father would be able to see them.

16. The child [Y] appeared very anxious during the observation of the father.  He held his hands to his mouth, wedged himself between the wall and the Family Report writer, and seemed afraid to stare for too long at the father.  When the Family Report writer suggested that perhaps the children could go briefly, with the Family Report writer, to say hello to the father, [Y] shook both hands and repeated quickly “no no no no”.  The child [X] appeared more willing to consider the possibility of going into the observation room with the father, but once [Y] stated his unwillingness to do so, [X] said that he would not go into the room either. 

17. Under the heading “Evaluation”, the Family Report writer stated that during the interview, both children presented as strongly aligned with the mother and strongly rejecting a relationship with the father.  She stated that it would appear that the children held fear regarding their safety, and the safety and well-being of the mother, in relation to the father.

18. The Family Report writer stated that it appeared likely that the children’s fear and attitude towards the father had been unduly influenced by the mother and maternal grandmother, and were contributing negatively to their relationship with and views of the father.  It was also likely that the time that had passed since the children had spent time with the father might have adversely impacted their connection with any positive recall of a lived experience of a positive or enjoyable relationship with him.  The Family Report writer stated that, accordingly, and with regards to the children’s ages, developmental stages and ability to provide meaningful and reason views, it was recommended that little weight be given to the children’s stated views.

19. The Family Report writer stated that the children’s relationship with the father could not be assessed during observation for the assessment.  She stated, however, that it would appear that the children were unable to tolerate the possibility of a relationship with the father.  She stated that [Y], in particular, presented as heightened in anxiety and appeared to find the process of the assessment highly stressful.

20. The Family Report writer stated that significant concerns regarding the children’s safety and well-being were identified in the assessment.  She stated that the alleged sexual assault incident, as described by the parents, raised concerns about the father’s capacity to appropriately supervise the children and act in a child focused manner in the face of possible risks to the children’s well-being.  She stated it was unclear that the father would act in the children’s best interests in relation to their medical and psychological needs, as he stated that he believed the children’s issues were fabricated by the mother.

21. The Family Report writer stated that children with emotional and behavioural difficulties, when not appropriately identified and treated, may be at risk of developing poor emotional regulation skills, difficulties in relationships with peers and others, and difficulties in their academic performance.

22. She stated that during the interview [X] presented as an anxious child, and it was reported that he was being treated with medication for a number of psychological disorders.  She stated that it would be seen as important that [X]’s mental health needs continue to be monitored and supported by his treating paediatrician and psychologist Natasha at the Forward Momentum practice.  She stated that the child [Y] may benefit from accessing the support of a psychologist to address his level of anxiety and enhance his self-confidence.

23. The Family Report writer stated that children who are exposed to parental alcohol misuse might be at risk of adverse developmental outcomes.  The Family Report writer stated that it would appear that the father had established and long-term relationships with therapeutic services, which might assist in mediating any possible risks of relapse, and therefore minimise any risk to the children.

24. The family report writer stated that the mother presented as highly anxious during the assessment process.  She stated that “if this is reflective of her mental health state, generally, then it is likely that this will impact the children’s emotional well-being.  (Court’s emphasis)  (The mother) may benefit from engaging the services of a psychologist to assist her with stress management and emotion regulation strategies.

25. The Family Report writer stated that it appeared that the parents had a conflicted and acrimonious post separation parenting relationship, and that since separation they had required several court proceedings to negotiate parenting arrangements for the children.  She stated that since the mother unilaterally ceased the children spend time arrangements with the father, it would appear that there had been no communication between the parents for a number of years and there appeared to be considerable distrust between them, particular in relation to the children.  Ongoing exposure to parental conflict might place the children at risk of adverse developmental outcomes.  It was therefore recommended, as a means of protecting the children from further conflict, that Orders be made providing that the parent that the children live with have sole parental responsibility.

26. The Family Report writer stated that both parents reported that they had engaged in the Keeping Kids in Mind program, [Y] had attended the Anchor and both children participated in the Jigsaw program.  She stated that the mother continued to be strongly unsupportive of the children’s relationship with the father, and it was not clear that any additional support service or therapy would contribute to an improvement in the relationship between the children and the father.However, if the Court was minded, the parties could engage the services of a qualified family therapist who has experience working with separated families who present with high levels of conflict.  The success of such family therapy was likely to be dependent on the willingness of the adults of this assessment to engage in this type of therapy.

27. The Family Report writer stated that if the Court is satisfied that the children were not at an unacceptable risk of harm when in the care of the father, it could consider the children spending time with him.  (Court’s emphasis)  In this instance it would be seen as important that the father’s alcohol misuse remains stable and well-managed.  Similarly, the Court would need to be satisfied that the father could ensure the children’s safety and protect them from harm.

28. The Family Report writer stated that high levels of cooperation, respect and trust between the parties is required for the spend time arrangements to be safe and meaningful for the children.  She stated that the mother stated views regarding the father and the children’s time with him appear fixed.  She stated that the mother was likely to experience the children spending time with the father negatively, and this “may” impact her emotional well-being and mental health, which then “may” negatively impact her parenting capacity.

29. The Family Report writer stated that the children presented as highly attuned to the mother’s emotional well-being, and are therefore likely to experience high levels of emotional distress and/or pressure if their time with the father is reinstated.  It is likely that this will have a negative impact on their mental health, which might then impact other areas of their development and overall functioning.  Therefore, in order to protect the children from further emotional difficulties, it was recommended that it might be in the children’s best interests, and the least detrimental alternative, that there be no Orders for time between the children and the father.  However, it was noted that if the children do not spend time with the father, it is likely that this will deprive the children of an opportunity to have a relationship with the father.

30. The Family Report writer recommended that the mother have sole parental responsibility for the children; that the children live with the mother; and that, unless evidence before the Court suggests otherwise, the children spend no time with the father.

31. The Family Report writer was cross-examined.  Aspects of her oral evidence are referred to, below, under the need to protect primary consideration.

Relevant legal principles

1. Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

2. In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

3. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

4. 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: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).

5. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

6. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

7. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The children have a meaningful relationship with the mother and would benefit from a continuance of that relationship.

2. There is no present relationship between the children and the father.  His last significant time with the children was in about August 2015.  He had fleeting time with them at an unannounced school visit in June 2016.

3. The children would benefit from a meaningful relationship with the father in the future, provided that they are not exposed to any significant risk of physical or emotional harm when spending time with him. 

4. Should the children begin to spend regular supervised time with the father for about 3 months, graduating to unsupervised time (initially during the daytime and then overnight time), there is a significant prospect that the children’s former meaningful relationship with the father can be re-established in a timely fashion.

5. Should the children spend such above time with the father, the children’s meaningful relationship with the mother should not be detrimentally affected.

6. Should the children continue to not spend time with the father, there is a significant prospect, if not a likelihood, that the children’s relationship with their paternal family will be severed, which, accepting the evidence of the Family Report writer in this context, is of significance.  The Family Report writer stated that the key long-term consequence for the children if the Court orders no time between the children and the father is the loss of connection to the father and the link to the paternal family.  The Family Report writer stated that “it’s about children’s identity and their connection to their family that is the key”.  The Family Report writer stated that such loss of connection to the father and the paternal family may cause difficulties for the children in terms of their identities, moving forwards in the world, and in terms of understanding who they are and where they belong.  She stated that there was also the issue of access to medical records and the like, and the general possibility that the children might suffer psychological or psychological problems as a result.

7. The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The Court is not persuaded there is an unacceptable risk of harm posed to the children in spending time with the father.

2. At the outset the Court makes the following findings:

   a)The Court is not satisfied that the father dragged the mother by her hair along the floor.

   b)The Court is not satisfied that the father assaulted the mother’s other children during the parties’ relationship.

   c)The Court is not satisfied that the father made a verbal threat to kill the mother in 2006, as alleged by her.

   d)The Court is not satisfied that the father exposed the children to pornography or exposed his genitals to them.

   e)The Court is not satisfied that the father, when spending time with the children between February 2014 and August 2015, became significantly intoxicated.

3. As to the father’s parenting capacity of the children in circumstances in which the father does not accept [X]’s anaphylactic reaction to foods he is allergic to, the Court observes that the father stated that he always had this child’s EpiPen with him (when this child was spending time with him) and that he had read the instructions for the EpiPen.  The Court is satisfied that the father will obey a restraining Order that the father not allow [X] to eat foods that he is allergic to, including dairy products, when this child is with him.

4. As to [X]’s diagnoses of ADHD and ODD and the father’s failure to fully accept these diagnoses, should the child be required to take medication when in the father’s care, again the Court is satisfied that the father will obey an Order that the father take all necessary steps to ensure that this child is administered his required medication.  The father told the Family Report writer that [X] “had a few behavioural issues and that he was on medication”.  There is no evidence that the father has in the past deliberately failed to have [X] take his medication for ADHD and ODD.  The Court is satisfied that the father can appropriately deal with any anti-social behaviour that [X] might display, including towards his younger brother.

5. As far as the father’s alcohol issue is concerned, the father has been abstinent from alcohol since March 2016.  He has returned CDT test results in September 2017, December 2017, March 2018, November and December 2018 which do not support excessive alcohol intake.  His psychotherapist Ms N speaks positively of the father’s determination to rehabilitate himself from the effects of alcoholism and a stroke he suffered in 2016.  She asserts her belief that he is clean and sober.  She refers to the main goals of his therapy being finding ways to strengthen and maintain the father’s ongoing sobriety and developing skills to better manage his anxiety.  The father himself refers to the coping strategies that he works on with Ms N to manage his stress, anxiety and depression.  The father has significant insight into his alcohol issue.  The Court is satisfied that the father will likely obey a restraining Order that he not drink alcohol and not be affected by alcohol whilst the children are in his care.

6. The children are oppositional to, and appear to be fearful of, spending time with the father.  The child [Y] appeared particularly anxious at the Family Report interviews when observing the father.  However, the Court finds that it is likely that the mother and maternal grandmother have significantly contributed to the children’s fear and attitude towards the father. For example, the child [X] told the Family Report writer that the mother had told him that the father had threatened to burn the house down, although this child had not heard such alleged threat, and the child [Y] had told the Family Report writer that the maternal grandmother had told him that the father had thrown the mother onto the couch.  Further, the Court refers to Exhibit E.  The Court does not accept that the children’s lived experience with the father (which the court acknowledges probably included witnessing the father’s anger and yelling on occasion) adequately explains their present opposition to spending time with the father and their fear of him.  It is not without relevance, in this context, that the mother did not cease the children’s time with the father in August 2015 because of the children’s opposition or fears in spending time with the father (the Court observes in passing that there is no evidence that the children were oppositional or fearful of spending time with the father by August 2015) but rather because of the mother’s concerns for the children’s safety.

1. Accordingly, in the above circumstances, the Court would accept the opinion of the Family Report writer that little weight be given to the children’s views.

2. In the view of the Court, there is a real prospect that should the children be reintroduced to the father, in a gradual fashion, within the confines of a contact centre, having been previously explained the Court’s Orders for the children spending time with the father by a family consultant, in conjunction with supervision by a family consultant of the Courts Orders and an order requiring such family consultant to give the mother such assistance as is reasonably requested by her in relation to compliance with, and the carrying out of, the Courts Orders relating to the children spending time with the father (see below), the children will not experience significant emotional harm. Following about three months of supervised time with the father, with such time permitting the children to grow accustomed to and confident in spending time with the father, both physically and emotionally, there is a real prospect that the children will be emotionally ready to commence unsupervised time with him.

3. The Court does not accept the Family Report writer’s evidence that, if the children spend time with the father, again commencing in a supervised manner and not progressing to unsupervised time until after three months of supervised visits, it is likely that the mother will experience significant anxiety such that her parenting capacity will be adversely affected (for example, by not being able to manage the children’s own emotional responses to spending time with the father), and with the children reacting adversely to such anxiety of the mother.

4. The Court observed the mother carefully over the course of this three day final parenting hearing, in which she acted for herself without a lawyer.  At no time did she lose her composure (including when she was being cross-examined) or display any signs of significant anxiety.   She was able to cross-examine the father and the Family Report writer, albeit in a non-legally trained manner.  She made intelligible submissions to the Court and could at all times be understood by the Court.  She regularly had access to her own Court documents in front of her at the bar table and made notes during the course of evidence.  At no time did she seek permission to leave the Court because she was feeling ill or unwell.  She was firm in her oral evidence that she did not need to engage a psychologist (or family therapist) for herself when her attention was drawn to the Family Report writer’s suggestion that the mother might engage the services of a psychologist to assist with stress management and emotional regulation strategies.  It is not without relevance, in this context, that the mother has managed, to date, to care for eight children, four of whom (with her new partner) are aged six, five, three and two.

5. Further, in oral evidence the mother stated that she would obey any Court Order for the children to spend time with the father (albeit stating that she could not physically force the children to spend time with the father), that that she would inform the children of the Court Orders and tell them that she had to obey the Court Orders, the law having to be obeyed.  She stated that she would try and take the children to spend time with the father in the face of a Court Order.

6. Again, contrary to the evidence of the Family Report writer, in the view of the Court, there is a real prospect that with the assistance of the family consultant (appointed pursuant to section 65L of the Act; see the Court’s discussion above and below), and the mother, consistent with her oral evidence, being prepared to facilitate the children’s time with the father if ordered to do so by the Court, the children will proceed without significant opposition to spend time with the father, initially supervised. It is not without relevance in this context that the children were well behaved when attending church with the father in about mid 2015, as attested to by the father’s witness Ms D.

7. The Court observes that the children have been receiving positive psychological and counselling treatment from health professionals.  No evidence was placed before the Court from such treating practitioners indicating that there would be a real risk of psychological harm posed to the children if they were to resume spending time with the father, as proposed by him.

8. As to the Family Report writer’s view that the children are likely to be caught in their parents’ “poor dynamic” if time with the father is to be reinstated (the Family Report writer having referred to the parties’ significant history of mistrust, poor communication and lack of mutual respect), in the view of the Court, there is a real chance that the children can spend positive and meaningful time with the father, in the absence of conflict between the parties, if changeovers occur at a contact centre (or at a public place such as McDonalds, Suburb A as proposed by the father if changeover is to occur on a day when the contact centre is not open), and if the Court makes a restraining Order, applicable to both parties, relating to non-denigration of a parent when the children are in the care of the other parent (and with the relevant parent taking all reasonable steps to ensure that no third party denigrates the other parent in the presence of the children).

9. The Court refers to the body of evidence before the Court relating to incidents involving the children and Mr B, the father leaving the children unattended for a short period whilst he returned a DVD, and the father briefly leaving the children physically unattended at a swimming pool.  Although the father could have exercised greater care in relation to these incidents, in terms of his supervision of the children, the Court is satisfied that the father has now been sufficiently apprised, particularly through these parenting proceedings, of his parental responsibilities to adequately and appropriately care for and supervise the children when they are spending time with him.  Acting cautiously and conservatively, the imposition of an Order by the Court restraining the father from leaving the children unsupervised will minimise the risk of potential harm to the children in this context. A further Order restraining the father from allowing the children to come into contact with Mr B will also assist in minimising the risk of potential harm to the children in this context.

10. In relation to all the safety concerns that the mother contends exist in these parenting proceedings, it is not without relevance that she consented to interim parenting Orders in December 2011 (pursuant to which the children’s time with the father were initially supervised and then graduated to unsupervised time during the daytime) and February 2014 (those parenting Orders permitted unsupervised overnight time, and were facilitated by the mother from February 2014 up to August 2015) in the face of the father’s known alcoholic issue, alleged family violence and anti-social behaviour.  The Court does not accept the mother’s assertion that she was forced into consenting to these Orders.  The Court reiterates that the mother did not cease the children’s time with the father in August 2015 by reason of any perceived opposition or fearfulness in the children; rather, it was due to the mother’s asserted safety concerns, which the Court has addressed above.

Section 60CC(3) additional considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The Court refers to its discussion above under the need to protect primary consideration.

(b) 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 children would appear to have positive relationships with their stepsiblings, the maternal grandmother and stepfather.  

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parties would appear to have taken such opportunities.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Although the father would appear not to have paid formal child support for the children post separation, the Court takes into account the fact that he has been on a disability pension for some time.

(d) 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 Court refers to its discussion above under the need to protect primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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. Not relevant.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The Court refers, inter alia, to its discussion above under the need to protect primary consideration relating to the children, including their treatment by health professionals, the Family Report writer’s observations of the children, and the medical reports within Exhibit D.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not relevant.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The mother has demonstrated appropriate attitudes towards the children and to the responsibilities of parenthood.  As for the father, the Court refers to its discussion above under the need to protect primary consideration, but also observes that at times both during the relationship and post separation the father demonstrated appropriate attitudes towards the children and to his responsibilities of parenthood.

(j) Any family violence involving the child or a member of the child's family

1. The Court refers to its discussion above under the need to protect primary consideration.  The Court observes that during the relationship the father admits to having made threatening phone calls to the mother which ended with the father being the subject of an ADVO.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. See the additional consideration immediately above.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The Court refers to its discussion above under the need to protect primary consideration.

m) Any other fact or circumstance that the Court thinks is relevant

1. Pursuant to section 65L of the Act, it will be in the best interests of the children that the Court make an Order requiring a family consultant to give to the mother such assistance as is reasonably requested by her in relation to her compliance with, and the carrying out of Orders of the Court relating to the children spending time with the father. And finally, again pursuant to the above section, and taking into account the above considerations, it will be in the best interests of the children that the Court order the above family consultant to meet with the children as soon as possible to explain to them the Court’s Orders relating to the children spending time with the father. In this context, the Court noting that the ICL supports the mother’s proposed Orders that the children spend no time with the father, it is important to have an independent person explaining such Orders to the children; the Court intends no disrespect to the ICL in stating this view.

2. The Court has considered the father’s proposed Orders for weekly time between the children the father.  The Court is of the view that fortnightly time will better enable the children to be reintroduced to the father and spend positive time with him, taking into account the lengthy period of time that they have not spent time with the father.

3. The Court has considered the father’s proposed Orders for telephone time between the children and the father.  In the view of the Court, such Orders should not be made in the present circumstances, where the children have not spent time with the father for some considerable time.  The parties should focus on the children spending positive time with the father, initially supervised, and later unsupervised on a graduating basis.  Ultimately it is hoped that the children will eventually choose to make telephone contact with the father on a regular basis, in addition to their time with him.

Parental responsibility

1. The mother seeks an Order for sole parental responsibility in relation to the children.  The father seeks an Order for equal shared parental responsibility.  As stated by the Family Report writer, there is presently no functional co-parenting relationship between the parties.  There have been no communications between the parties since about April 2016.  Whilst there is a real prospect that the parties will be able to communicate with each other by text message, the parties appear to remain distrustful of each other.  In view of their present relationship, there is probably no real prospect of the parties being able to reach agreement in a timely fashion in relation to major decisions affecting the children.  It is common ground between the parties that the children should live with the mother.  It will be in the best interests of the children to order that the mother have sole parental responsibility for the children.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:

   (1)That the Orders dated 3 February 2014 shall be discharged.

   (2)     That the mother shall have sole parental responsibility for the children, namely, [X] born … 2006 and [Y] born … 2008.

   (3)That the children shall live with their mother.

   (4)That the children shall spend time with their father as follows:

   (a)     For 3 months, for 2 hours each fortnight during such 3 month period, supervised by the CatholicCare Children’s Contact Service at Suburb A (“the Contact Service”);

   (b)Thereafter for six visits, for 3 hours each fortnightly Saturday, from 10.00am until 1.00pm unsupervised in a public place, with changeover to occur at the Contact Service;

   (c)Thereafter for a further six visits, each fortnightly Saturday from 10.00am until 4.00pm unsupervised in a public place, with changeover to occur at the Contact Service;

   (d)Thereafter for a further six visits, each alternate weekend from the conclusion of school Friday until 6.00pm Saturday; and

   (e)Thereafter, for a further six visits, each alternate weekend from the conclusion of school Friday until 6.00pm Sunday; and

   (f)Thereafter, each alternate weekend, from the conclusion of school Friday until the commencement of school Monday.

   (5)That commencing 2020 the children shall spend time with the father for four consecutive nights during the New South Wales short school holidays and for this purpose, the father’s time shall commence at the conclusion of school on the last day of the school term and conclude at 6.00pm five days later.

   (6)That the children shall spend time with the father for two block periods of seven consecutive nights during the NSW Christmas school holidays commencing 2020 and for this purpose, such periods shall be as agreed between the parents and failing agreement as follows:

   (a)From 10:00am Boxing Day 2020 until 6:00pm 2 January 2021; and

   (b)From 10:00am 16 January 2021 until 6:00pm 23 January 2021.

   (7)That commencing 2020 the children shall spend time with the father for Easter from 6:00pm Easter Saturday until 4:00pm Easter Monday.

   (8)That commencing 2020 the children shall spend time with the father on Father’s Day from 6.00pm on the evening before Father’s Day until 6.00pm on Father’s Day.

   (9)That notwithstanding any other order, if Mother’s Day falls on a day when the mother does not otherwise have care of the children, the mother will have care of the children from 6:00pm on the evening before Mother’s Day until 6:00pm on Mother’s Day.

   (10)That commencing from, and including, the first NSW short school holidays in 2021 the children shall spend time with the father for half of all NSW school holidays with such periods to be as agreed between the parents, and failing agreement as follows:

   (a)In odd-numbered years with the mother for the first half and with the father for the second half; and

   (b)In even-numbered years with the father for the first half and with the mother for the second half.

   (11)That for the purpose of facilitating these orders, school holiday periods shall be deemed:

   (a)To commence at the conclusion of the last day of the school term.

   (b)To conclude at the commencement of the first day of school attendance.

   (c)To reach the ‘halfway’ point at 6:00pm on the middle Sunday of the school holiday period.

   (12)That changeover shall occur on a school day, by the father collecting the children from and returning the children directly to their school.

   (13)That changeover shall occur on a non-school day, at the Contact Service and in the event the Contact Service is not available for changeover, changeover shall occur at the McDonalds Suburb A unless otherwise agreed to in email or text message between the parents.

   (14)That within 7 days of the date of these Orders, if they have not already done so, each party shall contact the Contact Service and do all things necessary to facilitate the father’s time with the children at the Contact Service, including but not limited to attending an intake assessment, and otherwise follow all reasonable directions of the Contact Service.

   (15)That on each of the children’s birthdays and upon the children commencing supervised time with their father, the children shall have telephone communication with their father between 7:30am and 8:00am and for this purpose the father shall place a call to a telephone number nominated by the mother and the mother shall ensure that the children are available to speak with their father.

   (16)That on the father’s birthday and upon the children commencing supervised time with their father, the children shall have telephone communication with their father between 5:00pm and 5:30pm and for this purpose the mother shall place a call to a telephone number nominated by the father and the mother shall ensure that the children are available to speak with their father.

   (17)That on the mother’s birthday, if the children are not otherwise in her care, the children shall have telephone communication with their mother between 5:00pm and 5:30pm and for this purpose the father shall place a call to a telephone number nominated by the mother and the father shall ensure that the children are available to speak with their father.

   (18)That within 7 days of the date of these Orders, the mother shall provide a copy of these Orders to the children’s school and any school which they may attend from time to time, which shall be deemed as authority for the father to communicate with the schools and receive all such documents, including but not limited to newsletters, invitations, school photographs, reports and the like at the father’s cost.

   (19)That upon the children commencing supervised time with their father, the father shall be at liberty to attend all school functions and activities that relate to the children which parents are ordinarily invited to attend.

   (20)That the parents shall notify each other in writing of the names and addresses of any treating medical or health practitioner or hospital the children may attend and authorise such organisation or individual, to provide to the other parent at his/her request and expense, any information or reports concerning the children.

   (21)That in the case of an emergency occurring involving the children whilst they are in either parents respective care, the parent shall notify the other immediately and provide the details of the emergency and any health professional the children have attended upon.

   (22)That both parents shall keep each other advised by text message of their telephone number and any changes to the number within 48 hours.

   (23)That both parents are injuncted from denigrating the other parent, or members of the other parent’s family, to the children or in the presence of or hearing of the children, and each parent shall take all reasonable steps to ensure that no third party denigrates the other parent in the presence of the children.  

   (24)The father shall not allow the child [X] to eat foods that he is allergic to, including dairy products, when this child is spending time with him.

   (25)Should the child [X] be required to take any medically prescribed medication when spending time with the father, the father shall take all necessary steps to ensure that this child is administered such medication in a timely fashion.

   (26)The father shall not drink alcohol and not be affected by alcohol whilst the children are spending time with him.

   (27)The father shall not allow the children to remain unsupervised whilst the children are in his care.

   (28)The father shall not allow the children to come into contact with Mr B whilst the children are in his care.

   (29) Pursuant to section 65L of the Family Law Act 1975 (Cth), the court requires a family consultant, appointed by the Director Child Dispute Services, to give the mother such assistance as is reasonably requested by the mother in relation to her compliance with, and the carrying out of, the above Orders relating to the children spending time with the father, for a period of three months.

   (30) Pursuant to section 65L of the Family Law Act 1975 (Cth), and the above Order, the Court requires the above appointed family consultant to meet with the above children as soon as possible to explain to them the above Orders relating to the children spending time with the father.

I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 12 April 2019