Tamblyn & Calandra - [2023] FedCFamC2F 1018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tamblyn & Calandra [2023] FedCFamC2F 1018

File number(s): SYC 6350 of 2021

Judgment of: JUDGE MORLEY

Date of judgment: 27 July 2023

Catchwords: FAMILY LAW – parenting – application for final orders – assessment of unacceptable risk – where Father seeks no overnight time between Mother and children – where Mother and ICL seek graduated overnight time regime paired with extensive suite of alcohol testing orders – where it is in the best interests of the children to spend graduated regime of time including overnight time with the Mother

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68L, 117

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FamCAFC 104

Grella & Jamieson [2017] FamCAFC 21

Harridge and Anor & Harridge [2010] FamCA 445

Isles & Nelissen [2022] FedCFamC1A 97.

Johnson & Page [2007] FamCA 1235

M & M (1988) 166 CLR 69

Napier & Hepburn [2006] FamCA 1316

Division: Division 2 Family Law

Number of paragraphs: 239

Date of hearing: 22 to 24 May 2023

Place: Sydney

Counsel for the Applicant: Ms Dart

Solicitor for the Applicant: De Saxe O’Neill Family Lawyers

Counsel for the Respondent: Ms Petrie

Solicitor for the Respondent: Court Legal

Counsel for the Independent Children's Lawyer: Mr Maddox

Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd
ORDERS

SYC 6350 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TAMBLYN

Applicant

AND:
MR CALANDRA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

27 JULY 2023

THE COURT ORDERS THAT:
1.That the parents have equal shared parental responsibility for the children X born in 2008 and Y born in 2014 (“the children”).
2.That the children live with their father.
3.That the children spend unsupervised time with their mother as follows:
(a)each Sunday from 10 AM until 5 PM, and each Thursday from the end of school until 8:15 PM for a period of one month from the date of these orders;
(b)thereafter, for a period of 3 months, from 6 PM on Saturday until 10 AM on Sunday each alternate weekend, and each Thursday from the end of school until 8:15 PM, in both school terms and school holidays;
(c)thereafter, for a further period of 3 months, from 10 AM on Saturday until 5 PM on Sunday each alternate weekend, and each Thursday from the end of school until 8:15 PM, in both school terms and school holidays;
(d)thereafter, for a further period of 3 months, from the end of school on Friday until 5 PM on Sunday each alternate weekend, and each Thursday from the end of school until 8.15 PM, in both school terms and school holidays;
(e)thereafter, from the end of school on Friday until the start of school on Monday each alternate weekend during school term time, and from after school on Thursday until before school on Friday each week during school term time;
(f)commencing from the school holidays at the end of Term 2 in 2024, for half of the school holidays at the end of Terms 1, 2 and 3, being for the first half of those school holidays commencing in even-numbered years and for the second half of those school holidays commencing in odd-numbered years, with changeover occurring at 5 PM on the middle Saturday of such school holiday; and
(g)commencing from the Christmas school holidays at the end of Term 4 in 2024, during the Christmas school holidays for each alternate week, with the mother to have the first week when such holidays commence in an even-numbered year and the father to have the first week when such holidays commence in an odd-numbered year, with changeovers to occur at 5 PM on the last day of each such week.

4.That notwithstanding any other order herein, the children shall be in their mother’s care as follows:
(a)on each of the children’s birthdays if the children are not otherwise spending time with their mother on that day, for a period of 4 hours as agreed between the parents and failing agreement from the end of school until 7:30 PM if a school day or from 2 PM until 6 PM if not a school day;
(b)on the mother’s birthday if the children are not otherwise spending time with their mother on that day, from 4 PM until 8 PM if a school day or from 9 AM until 1 PM if not a school day;
(c)on Mother’s Day from 9 AM until 5 PM;
(d)from 12 noon on Christmas Eve until 12 noon on Christmas Day in even-numbered years, and from 12 noon on Christmas Day until 12 noon on Boxing Day in odd-numbered years;
(e)from 12 noon on New Year’s Eve in even-numbered years until 12 noon on New Year’s Day, and from 12 noon on New Year’s Day in even-numbered years until 12 noon on 2 January;
(f)at Easter from 5 PM on Holy Thursday until 5 PM on Easter Saturday in even-numbered years, and from 5 PM on Easter Saturday until 5 PM on Easter Monday in odd-numbered years.

5.That notwithstanding any other order herein, the children shall be in their father’s care as follows:
(a)on each of the children’s birthdays if the children are not otherwise spending time with their father on that day, for a period of 4 hours as agreed between the parents and failing agreement from the end of school until 7:30 PM if a school day or from 2 PM until 6 PM if not a school day;
(b)on the father’s birthday if the children are not otherwise spending time with their father on that day, from 4 PM until 8 PM if a school day or from 9 AM until 1 PM if not a school day;
(c)on Father’s Day from 9 AM until 5 PM;
(d)from 12 noon on Christmas Eve until 12 noon on Christmas Day in odd-numbered years, and from 12 noon on Christmas Day until 12 noon on Boxing Day in even-numbered years;
(e)from 12 noon on New Year’s Eve in odd-numbered years until 12 noon on New Year’s Day, and from 12 noon on New Year’s Day in odd-numbered years until 12 noon on 2 January;
(f)at Easter from 5 PM on Holy Thursday until 5 PM on Easter Saturday in odd-numbered years, and from 5 PM on Easter Saturday until 5 PM on Easter Monday in even-numbered years.

6.That the mother is restrained from consuming alcohol for a period of 48 hours before the children, or either of them, come into her care, and the mothers further restrained from consuming alcohol whilst the children, or either of them, are in her care.
7.That the mother is restrained from taking any prescription medicines other than in compliance with the prescription for a period of 48 hours before the children, or either of them, come into her care, and the mother is further restrained from taking any prescription medicines other than in compliance with the prescription whilst the children, or either of them, are in her care.
8.That the mother shall;
(a)undertake a test for carbohydrate deficient transferrin (CDT) every 2 weeks until 31 December 2023, at the father’s expense, the first such test to occur within 4 days of the date of these orders, the mother to provide a copy of the result of the test to the father within 24 hours of its receipt by her;
(b)from 1 January 2024 until 31 December 2024 undertake a CDT test as requested by the father, but not on more than 6 occasions during that year, such request to be in writing by way of SMS to the mothers mobile telephone, and such request not be made at any time when the mother is travelling away from Sydney, with the mother to attend for such CDT test within 72 hours of her receipt of the request from the father, the father is to meet the costs of such testing, and the mother to provide a copy of the result of the test to the father within 24 hours of its receipt by her;
(c)until such time as Y commences her High School attendance, undertake a breathalyser test immediately (and not more than 15 minutes) prior to the commencement of her time with the children and shall immediately following the test result, text message and/or email the result to the father;
(d)undertake hair follicle testing in accordance with the Australian Standards AS/NZS4308:2008 and AS4760:2006 or any subsequent approved standard, at the father’s expense, for a period of 4 years from the date of these orders, in accordance with the following procedure:
(i)each three months, the mother shall contact the Drug Detection Agency to arrange for an appointment to submit to the collection of a hair sample sufficient to allow testing for the previous 3 month period;
(ii)for the purpose of hair follicle testing for the prescribed period, the mother shall not cut her hair shorter than 3 cm and not bleach, dye or treat her hair with any chemicals in any way;
(iii)the mother shall attend for the appointment referred to in (i) and submit to the hair strand collection;
(iv)each test shall be for the detection of opiates and prescription drugs and in relation to any use of alcohol;
(v)the mother shall direct the testing clinic to supply a copy of the test results to the father via email as soon as the results are available and otherwise within 3 days of the results becoming available after the test has been conducted.

9.That in the event that any of the tests referred to in order 8 produce a result that indicates the use of alcohol or of drugs other than on and in accordance with prescription by the mother, then all of the mother’s time with the children will be suspended until the mother provides to the father a CDT test result of less than 1.8% and a hair follicle test result negative for the use of drugs other than on and in accordance with prescription and showing that the mother has not used alcohol for a period of one month, and upon production of those test results the mother’s time with the children will resume in the manner in which it had been taking place under order 3 at the time of the suspension.
10.That within 7 days of the date of these orders, the father shall provide to the mother an email address for the purpose of receiving the test results referred to in order 8.
11.That in the event that the mother presents at a hospital in relation to a mental health issue and/or in relation to any consumption of alcohol, she is to notify the father in writing as soon as practicable and in any event prior to the children or either of them next coming into her care, and the mother is to provide to the father a copy of any discharge report within 7 days of receipt.
12.That as a condition of the mother spending unsupervised time with the children in accordance with these orders, the mother shall continue to consult with Dr B, consultant addiction specialist, as and when recommended by him, and follow all treatment directions made by him.
13.That any changeovers at the start or finish of the children’s time with their mother that do not occur at the children’s school or schools shall occur at the mother’s home.
14.That the parents shall communicate with each other via text messages or by use of the Our Family Wizard app, or any other agreed app, except in cases of emergency involving the children.
15.That the father shall, at his expense, provide and maintain a mobile telephone to each of the children to be in the possession of each child at the home of each parent, and each of the parents shall do all things necessary to ensure that the children’s mobile telephones remain charged, operational and accessible to the children at all reasonable times and, for the mother, at all times when the children or either of them are spending time in her care.
16.That each of the parents shall do all things necessary to enable each of the children to contact the other parent, including by use of that child’s mobile telephone, at all reasonable times.
17.That each parent may have telephone communication with the children on the children’s mobile telephones at any time between 7 PM and 7:45 PM every second day that the children are not spending time with that parent.
18.That the parents shall do all things necessary to enable the children to continue their counselling with Ms C or such other counsellor as may be nominated by Ms C if she is unavailable, until such time as Ms C or the other nominated counsellor advises that such counselling is no longer of benefit to the children or either of them.
19.That each of the parents is restrained from moving either the children from their current schools until 31 December 2025.
20.That each of the parents will notify the other parent of any change of residential address at least 7 days prior to such change occurring, and any change of contact details immediately upon such change occurring.
21.That the Independent Children’s Lawyer shall explain these orders to the children, after which the Independent Children’s Lawyer is discharged, and each of the parents shall do all things necessary to have the children available as and where and when required by the Independent Children’s Lawyer for this purpose.
22.That the mother is authorised to obtain from the children’s schools copies of the children’s school reports, school photos and such information as we may relate to the children’s progress and development.
23.That the mother is permitted to attend at all of the children’s school activities and extra-curricular activities to which parents are normally invited, and in the event that the mother does intend to attend any such school activities or extra-curricular activities then the mother shall notify the father no later than 24 hours prior to the event that she proposes to so attend.
24.That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of either of the children.
25.That each of the parents is restrained from allowing either of the children to remain in the presence of, or within either of the children’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
26.That each of the parents is restrained from discussing these proceedings with or in the presence of or within the hearing of either of the children and each the parents is further restrained from showing to either the children or allowing either of the children to have access to any of the documents filed in or in evidence in these proceedings.
27.Within 3 months, the Father pay a sum of $3898.50 as contribution toward the ICL’s costs of the proceedings, such payment to be made to the Legal Aid Commission of NSW.
28.The Mother pay the sum of $1500 as contribution toward the ICL’s costs of the proceedings, such payment to be made to the Legal Aid Commission within 9 months of today’s date.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:

These are the Reasons for Judgment that were delivered verbally and ore tenus on 27 July 2023. They have been settled herein in written form. Grammatical errors and accidental errors in reference have been amended for ease of comprehension. Legal citations have been included in full and incorporated into these Reasons.
These are oral Reasons in relation to a final hearing on parenting issues between Ms Tamblyn as the applicant mother and Mr Calandra as the respondent father that took place on 22, 23, 24 May 2023. The subject children are X, born in 2008, and Y, born in 2014. At the time of the final hearing, X was 14 years and eight months of age, and Y nine years and five months of age. An order had been made during the currency of the matter appointing an Independent Children’s Lawyer (“ICL”) to represent the interests of X and Y in the proceedings. The ICL appointed was Ms Glennis Court, solicitor. At the final hearing, the mother was represented by Ms Dart of Counsel, the father by Ms Petrie of Counsel, and the IICL by Mr Maddox of Counsel.
As background, the parties met in either 1993, as asserted by the father, or 1994, as asserted by the mother. They commenced cohabitation in 1994 – the mother asserts in 1994 – married in 2003 and separated on 1 April 2020, remaining living under the same roof until March 2022, when the mother moved out to reside at Suburb D and the father remained in the home at Suburb E with the children. At the time of hearing, X was attending F School at Suburb G in Year 9, and Y was attending E School in Year 4.
Materials relied upon
The mother relied at hearing on the following materials:
(a)An Outline of Case document filed 21 May 2023, attached to which was the mother’s minute of orders sought as at the commencement of the hearing;
(b)An Amended Initiating Application filed 12 May 2023 as a moving document;
(c)A Notice of Child Abuse, Family Violence or Risk filed 1 February 2022;
(d)The mother’s affidavit of 11 May 2023, filed 12 May 2023;
(e)The affidavit of Dr B of 9 May 2023, filed that day; and
(f)By the end of the hearing, the mother relied on a minute of proposed orders that is exhibit 2 in the proceedings.
The mother filed a costs notice in compliance with the rules on 21 May 2023.
In the proceedings, the father relied upon:
(a)A Case Outline document;
(b)A Further Amended Response to Initiating Application filed 15 May 2023 as his moving document, and that document contained the orders he sought;
(c)A Notice of Child Abuse, Family Violence or Risk filed 9 November 2021;
(d)The father’s affidavit of 12 May 2021, filed that day; and
He filed a costs notice in compliance with the Rules.
The ICL relied upon:
(a)A Case Outline document prepared by Mr Maddox of Counsel and filed 18 May 2023;
(b)An affidavit by Ms C of 19 May 2023, being the children’s psychologist; and
(c)At the end of the hearing, the ICL relied upon an amended short minute of order sought by the ICL, which is exhibit ICL3 in the proceedings.
The ICL provided a Costs Notice in compliance with the Rules.
Various documents were admitted as exhibits in the course of the proceedings, and I refer principally to exhibit ICL1, which is an Expert’s Report prepared by Dr H dated 26 July 2022. That document itself does not give the actual dates of the interviews conducted with the parties and children for preparation of the Report, but the indications from the evidence are that there were some interviews in May and then further interviews in June. I also refer to exhibit ICL2, which is a Child Impact Assessment prepared by Ms J, child and family consultant, and dated 3 December 2021. The exhibits in the matter are listed in the Court’s Record of Exhibits document, and I incorporate the detail of the Record of Exhibits document as to the exhibit number and the description of the exhibit into these Reasons being:
(a)ICL1 – Dr K’s Expert Report dated 26 July 2022;
(b)ICL2 - Child Impact Report of Ms J of 3 December 2021;
(c)R1 - COPS entry dated late 1998 in relation to breath test offence paginated as page 468;
(d)R2 - Dr B consultation notes dated 21 September 2019 paginated as page 260 to 261 inclusive;
(e)R3 – L Hospital ED Nursing Assessment in relation to admission in 2019 paginated as pages 502 to 503;
(f)R4 – L Hospital Discharge Summary in relation to admission in 2019 paginated as pages 505 to 506;
(g)R5 - Ambulance Electronic Medical Record dated 2019 paginated as page 509;
(h)R6 - L Hospital ED Nursing Assessment in relation to admission in 2019 paginated as page 513 to 514;
(i)R7 - L Hospital ED Nursing Assessment in relation to admission in early 2020 paginated as pages 520 to 521;
(j)R8 - L Hospital ED Nursing Assessment in relation to admission in early 2020 paginated as pages 527;
(k)R9 - L Hospital Confidential Clinical Notes in the Mother’s name summary of admissions paginated as page 486;
(l)R10 - Ambulance Electronic Medical Record dated 12 February 2020 paginated as page 48;
(m)R11 - NSW COPS entry dated mid-2020 paginated as pages 458 to 460;
(n)R12 - NSW COPS entry dated late 2020 in relation to the incident in mid-2020 paginated as page 463;
(o)R13 - NSW Police Force Criminal History Report paginated as page 472;
(p)R14 - L Hospital record in relation to admission in mid-2020 paginated as page 536;
(q)R15 - Ambulance Electronic Medical Record dated July 2020 paginated as page 540;
(r)R16 - DCJ Helpline Assessment dated 4 August 2020 paginated as pages 300 to 301;
(s)R17 - DCJ Safety Assessment Decision Report dated 21 August 2020 paginated as page 329 to 326;
(t)R18 - DCJ Risk Assessment Report dated 10 September 2020 paginated as pages 333 to 339;
(u)R19 - Ambulance Electronic Medical Record dated late 2020 paginated as page 554;
(v)R20 - NSW Health section 20 Mental Health Act NSW Ambulance assessment of the Mother dated late 2020 paginated as page 559;
(w)R21 - L Hospital Discharge Summary in relation to admission in late 2020 paginated as page 448;
(x)R22 - COPS entry paginated dated late 2020 paginated as pages 452 to 453;
(y)R23 - Dr B clinical notes dated 16 October 2020, 20 November 2020 and 18 December 2020 paginated as page 266;
(z)R24 - DCJ Helpline Assessment dated late 2020 paginated as pages 351 to 353;
(aa)R25 - DCJ Safety Assessment Decision Report dated 22 January 2021 paginated as pages 388 to 393;
(bb)R26 - DCJ Helpline Assessment dated late 2020 paginated as page 368 to 375;
(cc)R27 - Handwritten consultation note in relation to the Mother on M Psychology letterhead dated 26 April 2021 paginated as page 598;
(dd)R28 - Dr B consultation notes dated 23 July 2021 and 21 January 2022 paginated as page 270;
(ee)R29 - Dr B consultation notes dated 21 January 2022 paginated as page 170;
(ff)R30 - DCJ Helpline Assessment dated late 2021 paginated as pages 425 to 428;
(gg)R31 – N Contact Centre supervised contact report dated 7 April 2022 paginated as pages 34 to 35;
(hh)R32 – N Contact Centre supervised contact report dated 10 April 2022 paginated as pages 36 to 37;
(ii)R33 - L Hospital Discharge Summary in relation to admission in 2022 paginated as pages 576 to 577;
(jj)R34 - N Contact Centre supervised contact report dated 17 April 2021 paginated as pages 39 to 41;
(kk)R35 - L Hospital Discharge Summary in relation to admission in 2022 paginated as pages 583 to 584;
(ll)R36 - Dr B consultation notes dated 6 May 2022 paginated as page 271;
(mm)R37 - N Contact Centre supervised contact report dated 8 May 2022 paginated as pages 46 to 47;
(nn)R38 - Dr B consultation notes dated 10 June 22, 22 June 2022 and 15 July 2022 paginated as pages 272 to 273;
(oo)R39 - Ambulance Electronic Medical Record attendance note dated 23 June 2023 paginated as pages 171 to 172;
(pp)R40 - NSW Police report notes in relation to 23 June 2023 paginated as paginated as page 199;
(qq)R41 – O Hospital assessment documents dated paginated as pages 177 to 180;
(rr)R42 - O Hospital Discharge Referral Notes in relation to Mother’s admission in 2022 paginated as page 194;
(ss)R43 - Letter from P Law Firm to Court Legal dated 1 July 2022 paginated as page 257;
(tt)R44 – Q Pathology CDT test results in Mother’s name paginated as page 130;
(uu)R45 – Q Pathology CDT test results in Mother’s name paginated as pages 478;
(vv)R46 – Q Pathology CDT test results in the Mother’s name dated 12 July 2022 paginated as page 131;
(ww)R47 - N Contact Centre supervised contact report dated 10 September 2022 paginated as pages 75 to 77;
(xx)R48 - Photograph of medical certificate not itself dated for the Mother for admission to O Hospital for the period late 2022 paginated as page 120;
(yy)R49 - Photograph of L Hospital Discharge Summary dated early 2023 paginated as 121;
(zz)R50 - Email correspondence from Mother’s solicitors to Father’s solicitors dated 10 May 2023 paginated as page 481;
(aaa)R51 - Correspondence from Court Legal to P Law Firm dated 1 November 2021 paginated as page 687 to 688;
(bbb)A1 - Letter of P Law Firm to Court Legal dated 17 August 2022;
(ccc)R52 – Helpline Assessment notes dated November 2020 paginated as pages 362 to 364.
(ddd)R53 – Document entitled Engagement: … paginated as pages 376 to 379 inclusive;
(eee)R54 - Discharge summary for the Mother in relation to admission in 2018 paginated as pages 487 to 490 inclusive;
(fff)R55 - Ambulance clinical notes dated 15 April 2019 paginated as page 497;
(ggg)ICL3 - Minute of Orders sought by the ICL; and
(hhh)A2 – Amended Minute of Orders sought by the Mother.

At the conclusion of the evidence, oral submissions were made on behalf of the ICL by Mr Maddox of Counsel, on behalf of the father by Ms Petrie of Counsel, and on behalf of the mother by Ms Dart of Counsel, with short submissions in reply for the father by Ms Petrie and very short submissions in reply on behalf of the ICL by Mr Maddox.
The mother was cross-examined by Counsel for both the father and the ICL. The father was cross-examined by Counsel for both the mother and the ICL. Dr B was cross-examined by Counsel for the ICL and for the father. Dr K was cross-examined by Counsel for the ICL, the mother and the father.
In preparing for these oral Reasons, I have carefully considered all of the material that I have referred to as relied upon by the parties, including all of the exhibits. I have carefully considered the submissions made on behalf of the parties, both the notes taken and from reference to the audio transcript of the proceedings.
The proceedings
The short detail of the history of the proceedings begins with the filing of the Initiating Application relating to property matters only by the mother on 31 August 2021, with the father filing his Response addressing both property and parenting issues on 9 November 2021. On 6 December 2021, at the first return date before a Judicial Registrar, the matter was set down for an interim hearing to take place on 9 February 2022. The order was made under section 68L appointing the ICL, and orders were made under section 69ZW for provision of information to the Court by NSW Police and the NSW Department of Communities and Justice.
The interim hearing took place on 9 February 2022 before a Judicial Registrar, and a raft of parenting orders were made by consent, including that the children live with their father and that they spend time with their mother supervised by R Contact Centre, a commercial supervision agency, for four hours on a Sunday, with the father paying the cost of that supervision. Various orders were made addressing the element of risk, as will be made plain in this matter, being the mother’s problem with abuse of alcohol, including an injunction restraining the mother from consuming alcohol for 24 hours prior to her spending time with the children or during spending time with the children, and requiring the mother to undertake a breathalyser test prior to spending time with the children and Minute of Orders sought by the ICL to send the results to the father. Provided that the result was not clear of use of alcohol, then she would not be spending time with the children.
An order was made for the mother to have telephone communication with the children every second day that they are not with her, between 7.00 and 7.45 pm for about 15 minutes. An order was made for the mother to undergo CDT testing fortnightly at the father’s expense, and if it returned a reading of over 1.8 per cent, then the mother was not to spend time with the children until her reading became less than 1.8 per cent. The mother was ordered to continue her consultations and treatment with Dr B, who is a consultant addiction specialist medical practitioner and with Ms S, at that time her clinical counsellor. An order was also made by consent for the mother to undergo hair follicle testing at three-monthly intervals. An order was made by the learned Judicial Registrar, not by consent, that the mother vacate the former matrimonial home by 9 March 2022 and that the father enrol in and complete an anger management men’s group course with T Counsellors.
On 11 April 2022, an order was made appointing Dr H as the Single Expert Witness, giving rise ultimately to the Expert’s Report I referred to. On 5 September 2022, the parties were able to reach a final agreement in relation to the financial issues, and final orders were made between them by consent settling property issues. On 16 December 2022, the matter went to Call-Over and was set down for a hearing from 22 to 24 May 2023. Between that time and the hearing taking place, the matter went before a Judicial Registrar, and by consent a series of orders were made, superseding the previous interim orders that had been made by consent on 9 February 2022. I incorporate into these Reasons paragraphs 1 to 18 inclusive of the orders made by consent by the Judicial Registrar on 10 February 2023 being:
1That all previous parenting Orders be discharged.
2That the children, [X] born [in] 2008 and [Y] born [in] 2014 (“the children”) live with the father.
3That the children spend time with the mother as follows:
aSupervised by [N Contact Centre] on Sunday, 12 February 2023;
bFrom Sunday 19 February 2023 to Sunday 16 April 2023, unsupervised time each Sunday from 10.00am to 2.00pm;
cFrom 23 April 2023 onwards, unsupervised time each Sunday from 10.00am to 5.00pm;
dOn the Mother’s birthday, unsupervised time from 11.00am to 3.00pm;
eAt such other times as agreed between the parties in writing.
4That prior to the mother commencing unsupervised time with the children, at each visit, the mother undertake breath analysis and send a copy to the father between thirty (30) and fifteen (15) minutes prior to the commencement of the children’s time with her with the Father to provide and the Mother to use a [breathalyser] device that gives date and time test information to the Father and should the result show that the Mother has consumed alcohol, the children’s time with the Mother shall be suspended until she provides a CDT result of less than 1.8%.
5That the mother be restrained from consuming alcohol or illicit substances twenty-four (24) hours prior to and during her time with the children.
6That the mother shall:
a. Undertake a test for carbohydrate deficient transferrin (CDT) every two (2) weeks, at the Fathers expense and the Father shall pay forthwith all costs associated with the Mother undertaking such test with the first test to occur from the date of these Orders two (2) weeks from the last test prior to these Orders;
bUndertake hair follicle testing in accordance with the Australian Standards AS/NZS4308:2008 or any subsequent approved standard, at the Fathers expense and the Father shall pay forthwith, in accordance with the following procedure:
i. Each three (3) months the Mother shall contact the Drug Detection Agency to arrange for an appointment to submit to the collection of a hair sample sufficient to allow testing for the previous three (3) month period, with the next test to occur three (3) months after the last test prior to the commencement of these Orders;
iiFor the purposes of hair follicle testing for the prescribed period as per Order 6.b.i., the mother shall not cut her hair shorter than three (3) centimetres and not bleach, dye or treat her hair with any chemicals in any way;
iii. That the mother shall attend to the appointment referred to above and submit to the hair strand collection;
iv. Each test shall be for the detection of opiates and prescription drugs including but not limited to heroin and morphine;
vThat the mother will direct the testing clinic to supply a copy of the test results to the Father and Independent Children's Lawyer via email as the results are available and otherwise within three (3) days of the test having been conducted;
cThat prior to commencing unsupervised time with the children, the mother shall obtain from [Dr B] a report as to the likely impact of the mother’s medication and any impact in terms of her capacity to care for the children in an unsupervised contact and to drive the children;
dThat the mother shall continue to consult with [Dr B], Consultant Addiction Specialist as and when recommended by him and follow all treatment directions made by him;
eThat the mother or her solicitor shall provide to [Dr B], the Father and the Independent Childrens Lawyer all results of tests conducted pursuant to these orders as soon as same are available;
fThe Mother shall continue to consult with and comply with reasonable recommendations and directions of her psychologist including but not limited to taking medication as prescribed; attending appointments and complying with treatment plans.
7That should the CDT test result be 1.8% or above, the Mother’s time with the children shall be suspended until the Mother is able to provide a CDT result less than 1.8%.
8 That following the Mother’s compliance with Order 7 herein, the Mother’s time with the children shall recommence and proceed per subsequent orders adopting the same orders for the progression of time.
9That the father is responsible for all costs associated with the supervised service.
10That changeover in relation to unsupervised time shall take place at the Mother’s home at the commencement and conclusion of the children’s time with her.
11That the parties shall communicate with each other via text or Our Family Wizard app or any other app as agreed between the parties in writing except in cases of emergency involving the children.
12That in the event that either party proposed a variation of time arrangements then such communication shall be in writing via email.
13That without admissions, the Mother and Father shall be and are restrained from the following:
a. Denigrating the other party or members of the other party’s family in the presence or hearing of the children and each party shall do acts and things reasonably necessary to prevent any other person doing so; and
bDiscussing the court proceedings in the presence or hearing of the children.
14 That the Independent Children's Lawyer explain the orders to the children.
15That this order shall act as an authority for the mother to obtain copies of the children’ school reports, school photos and such information as may relate to the childrens progress and development.
16That the Mother shall forthwith notify the Father and Independent Children's Lawyer in writing in the event of her being hospitalised for any alcohol or substance abuse issue or mental health issue and within twenty-four (24) hours of any discharge and shall forthwith provide to the Father and Independent Children's Lawyer a copy of her discharge letter.
17That both parties be at liberty to attend functions to which parents are ordinarily invited and the Mother shall provide the Father with at last twenty-four (24) hours’ notice of her intention to attend school activities.
18That the Mother be restrained from attending any school activities in a capacity as a supervisor, including school excursions and group activities.
It emerged in evidence during the hearing that the parties attended a mediation on 5 May 2023, and whilst of course anything occurring at that mediation, as it was in the nature of a family dispute resolution mediation, could not come into evidence, as a result of that mediation, there was an agreement between the parties put into practice prior to the hearing that the mother would also spend time with the children on Thursdays from 5.00pm until 8.15 pm.
The hearing took place on 22 to 24 May 2023, and at the end of that hearing, some orders were made by consent between the parties, principally that on an interim basis:
(a)The children would spend time with their mother on each of 7, 8, 9 and 10 July 2023 from 10.00am to 5.00pm, with changeover as already provided for in the orders of February 2023; and
(b)Formalising the mother spending time with the children each Thursday from 5.00pm to 8.15pm during school term time, but only on the basis that both X and Y were attending such time with the mother together.
An order was made granting liberty to the ICL to provide a copy of Dr K’s Expert Report dated 26 July 2022 to Dr B and also to Ms C and to Ms M. Ms M, the evidence showing, was the psychologist assisting the mother. The orders sought by the mother following completion of the evidence in the ~~interim~~ final hearing are the orders set out in Exhibit A2, the mother’s minute of order.
I incorporate into these Reasons the whole of the orders sought by the mother, from order 1 to order 27 in that document being:
1.        The parties shall have equal shared parental responsibility for the children;
(i)        [X] (“[X]”) born [in] 2008, aged 14
(ii)       [Y] (“[Y]”) born [in] 2014, aged 9
2.        From the date of these Orders for a period of 3 months;
(a)The children live with the father;
(b)The children spend time with the Mother as agreed between the parties and failing agreement, as follows;
Week 1
2.1.      From after school on Thursday until 8.15pm;
2.2       From 9.00 am until 5.00pm on Saturday;
2.3      From 9.00am until 5.00 pm on Sunday;
Week 2
2.4 From 5.00pm Thursday until 8.15pm.
3.        Following the time pursuant to Order 2, and for the following 3 months;
3.1 The children live with the father;
3.2The children spend time with the Mother as agreed between the parties and failing agreement as follows;
Week 1
3.2.1    From after school on Thursday until 8.15pm
3.2.2    From 9.00am Saturday until 5.00pm on Sunday;
Week 2
3.2.3    From after school on Thursday until 8.15pm.
4.        Following the time pursuant to Order 3, and for the following 3 months;
4.1 The children live with the father;
4.2 The children spend time with the Mother as agreed between the parties and failing agreement as follows;
Week 1
4.2.1 From after school on Friday until 5.00 pm on Sunday;
Week 2
4.2.2 From after school on Thursday until before school on Friday.
5.        Following the time pursuant to Order 4 and for the following 3 months;
5.1the children live with the father;
5.2 The children spend time with the Mother as agreed between the parties and failing agreement as follows;
Week 1
5.2.1    From after school on Thursday until 5.00pm on Sunday;
Week 2
5.2.2    From after school on Thursday until before school on Friday;
6.        Following the time pursuant to Order 5;
6.1The children live with the father.
6.2The children spend time with the Mother as agreed between the parties and failing agreement as follows;
Week 1
6.2.1    From after school on Thursday until before school on Monday;
Week 2
6.2.2    from after school on Thursday until before school on Friday.
School Holidays
7.The children live with each of the parties on a week about basis throughout all school holidays as agreed and failing agreement, in Week 1, with the Mother from the conclusion of school (or 3:00pm) on Friday until 5.00pm the following Friday; and:
7.1Recommencing 5:00pm the following Friday and until before school (or 9:00am) the first day of the following school term in short school holidays; or
7.2each alternate week thereafter for the Christmas school holidays.
Mother restrained from consuming alcohol and illicit substances and to consent to testing before any time spent with the children pursuant to these orders;
8.The Mother is restrained from consuming alcohol or illicit substances.
9.For the purposes of the time the children spend with the Mother pursuant to order 2,3,4,5,6,7,19 - 22, the Mother shall;
9.1undertake a test for carbohydrate deficient transferrin (CDT) every 2 weeks, until 31 December 2023, at the Fathers expense of all costs associated with the Mother undertaking such test, with the first test to occur within 4 days of the date of these Orders;
9.2 From 1 January 2024 until 1 January 2025, the mother undertake a CDT as follows:
9.2.1As requested by the father on not more than 6 occasions per year;
9.2.2.Such request to be in writing by way of SMS to the mother’s mobile phone;
9.2.3Such requests not to be made at a time when the mother has travelled away from Sydney;
9.2.3The mother to attend for a CDT test within 7 days of a request from the father;
9.2.4the father to meet the cost of such testing.
9.3undertake a breathalyser test immediately (and not more than 15 minutes) prior to commencement of her time with the children and will immediately, following the test result, text message and/or email the Father with that result; such testing to continue until [Y] commences high school.
9.4undertake hair follicle testing in accordance with the Australian Standards AS/NZS4308:2008 and AS4760:2006 or any subsequent approved standard, at the Father’s expense, from the date of the orders for 4 years in accordance with the following procedure;
9.4.1each three months, the Mother shall contact the Drug Detection Agency to arrange for an appointment to submit to the collection of a hair sample sufficient to allow testing for the previous 3 month period;
9.4.2for the purpose of hair follicle testing for the prescribed period as per Order 9.4.1, the Mother shall not cut her hair shorter than 3 cm and not bleach, dye or treat her hair with any chemicals in any way;
9.4.3That the Mother shall attend to the appointment referred to above and submit to the hair strand collection.
9.4.4Each test shall be for the detection of opiates and prescription drugs including but not limited to heroin and morphine.
9.4.5That the Mother will direct the testing clinic to supply a copy of the test results to the Father via email as the results are available and otherwise within 3 days of the test having been conducted.
10.If any of the test referred to in Order 9 produce results which indicate alcohol use or drug use other as prescribed to the mother, then the Mother’s time with the children pursuant to Orders 2-7 and 13-19 above shall be suspended, and
10.1The Mother’s time with the children shall remain suspended until the Mother is able to provide three consecutive clear tests proving she has been alcohol free for more than one month.
10.2The Mother shall continue to undertake testing pursuant to Order 9 from the time of the last test, using the same intervals stipulated in Order 9.
10.3The Mother shall continue to undertake breathalyser testing notwithstanding the suspension of her time with the children, and shall send the results to the Father not more than 15 minutes prior to when her time would occur pursuant to Order 2 above;
10.4Following clean CDT and breath tests, and the Mother’s time with the children shall recommence as per Order 2 and proceed per the subsequent orders adopting the same intervals for the progression of time.
11.That within 7 days of the date of these orders, the father to provide the mother with an email address for the purpose of receiving the test results referred to above and thereafter the mother shall email such results to the father within 72 hours of receipt of such results.
12.That in the event that the mother presents at a hospital in relation to a mental health issue and/or in relation to any consumption of alcohol:
12.1 She is to notify the father in writing as soon as practicable and in any event prior to the children or either of them next entering into her care;
12.2 Provide to the father a copy of any discharge report within 7 days of receipt.
Communication
13. That except as otherwise provided in these orders, that the parties shall communicate with each other via the Our Family Wizard parenting application, or such other application agreed between the parties in writing, except in cases of emergency involving the children
14. In the event that either party proposes a variation of time arrangements then such communication shall be pursuant to Order 13 above.
15. That the parties are to do all acts and things to ensure that the children’s mobile phones remain charged, operational and accessible to the children and each of them at all reasonable times, including at all times that the children are spending time with the mother.
16. That the children be at liberty to contact either parent at any time of their choosing.
17. That each parent is to ensure that any electronic device, including any watch or mobile phone, capable of initiating and receiving calls and/or text messages, contains the phone number of the other parent at all times and that each parent has the contact number for all such device.
18.That either parent be at liberty to telephone the children on their mobile telephones between 7.00pm and 7.45pm every second day that the children are not spending time with them.
Special Occasions
19.On the children’s birthdays, the children shall spend time with the non-resident parent for a period of 4 hours as agreed and otherwise from after school until 7.30pm if a school day or from 2.00pm – 6.00pm if not a school day and that any provision of time under this order that is inconsistent with this paragraph be suspended.
20.On Father’s Day, the children shall spend time with the Father from 9:00am until 5.00pm and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
21.On Mother’s Day, the children shall spend time with the Mother from 9.00am until 5.00pm and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
22.On each of the Mothers and the Fathers birthdays, the children shall spend time with that parent from 4:00pm to 8:00pm if on a school day, or from 9:00am to 1:00pm if on a non-school day.
Christmas
23.   Unless otherwise agreed, the children shall spend time with the Mother;
23.1In years ending in an even number from 12.00pm on Christmas Eve until 12.00pm on Christmas Day; and
23.2in years ending in an odd number, from 12.00pm on Christmas Day until 12.00pm on Boxing Day.
New Year’s Eve
24.       Unless otherwise agreed, the children shall spend time with the Mother;
24.1in years ending in an even number, from 12.00pm on New Year’s Eve until 12.00 pm on New Year’s Day, and
24.2in years ending in an odd number, 12.00pm on New Year’s Day until 12.00pm the next day.
Easter
25.Unless otherwise agreed, the children shall spend Easter with the Mother as follows;
25.1in years ending in an even number, from 5:00pm Holy Thursday to 5:00pm Easter Saturday; and
25.2in years ending in an odd number, from 5.00pm Easter Saturday until 5.00pm Easter Monday.
Restraints
26.      Each party shall be restrained from;
26.1Arguing with the other parent in the presence or hearing of the children;
26.2Denigrating the other party or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.
27.    Any other order this Honourable Court sees fit.

The orders sought by the father to the end of the final hearing were the orders set out in his Further Amended Response to Initiating Application filed 15 May 2023, and I incorporate into these Reasons those orders from paragraph 1 to paragraph 22 in that document being:
1That all previous parenting Orders be discharged.
2That the Father have sole parental responsibility for the children of the marriage [X], born [in] 2008 aged 14; and [Y], born [in] 2014 aged 9 (“the children”).
3That the children live with the Father.
4That the children spend time with the mother during school term as follows:
4.1Each alternate weeks both Saturday and Sunday from 10.00am to 5.00pm;
4.2Each Thursday from 5.00 pm to 8.15 pm; and 4.3. At such other times as agreed between the parties in writing.
5That the children spend time with the mother during school holiday periods in Terms 1, 2 and 2 for half of each school holiday period as follows:
5.1From 10.00 am to 5.00 pm Monday to Friday in the first week in odd numbered years commencing 2023; and 5.2. From 10.00 am to 5.00 Monday to Friday in the second week in even numbered years commencing 2024; and 5.3. At such other times as agreed between the parties in writing.
6That the children spend time with the mother during the school holiday period in Terms 4 for half of each school holiday period as follows:
6.1From 10.00 am to 5.00 pm Monday to Sunday in the third, fourth and seventh weeks in odd numbered years commencing 2023; and 6.2. From 10.00 am to 5.00 pm Monday to Sunday in the first, second and fifth weeks in even numbered years commencing 2024; and 6.3. At such other times as agreed between the parties in writing.
7That time pursuant to Order 6 be suspended for the Christmas special days and the children spend time with the Mother as follows:
7.1      From 10.00 am to 6.00 pm on Christmas Eve in odd numbered years;
7.2      From 10.00 am to 6.00 pm on Christmas Day in even numbered years;
7.3      From 10.00 am to 6.00 pm on Boxing Day in even numbered years.
8That the children spend time with the Mother during the Easter long weekend as follows:
8.1From 10.00 am to 6.00 pm on Friday and Saturday in even numbered years commencing 2024;
8.2From 10.00 am to 6.00 pm on Sunday and Monday in odd numbered years commencing 2025;
8.3At such other times as agreed between the parties in writing.
9That prior to the mother commencing time with the children, at each visit, the mother undertake breath analysis and send a copy to the father between thirty (30) and fifteen (15) minutes prior to the commencement of the children’s time with her with the Father to provide and the Mother to use a device that gives date and time test information to the Father and should the result show that the Mother has consumed alcohol, the children’s time with the Mother shall be suspended until she provides a CDT result of less than 1.8%.
10That the mother be restrained from consuming alcohol or illicit substances twenty-four (24) hours prior to and during her time with the children.
11That the mother shall:
11.1Undertake a test for carbohydrate deficient transferrin (CDT) every two (2) months, at the Father’s expense and the Father shall pay forthwith all costs associated with the Mother undertaking such test with the first test to occur from the date of these Orders two (2) months from the last test prior to these Orders;
11.2Undertake hair follicle testing in accordance with the Australian Standards AS/NZS4308:2008 or any subsequent approved standard, at the Fathers expense and the Father shall pay forthwith, in accordance with the following procedure:
11.2.1Each six (6) months the Mother shall contact the Drug Detection Agency to arrange for an appointment to submit to the collection of a hair sample sufficient to allow testing for the previous three (3) six (6) month period, with the next test to occur six (6) months after the last test prior to the commencement of these Orders;
11.2.2That the mother shall attend to the appointment referred to above and submit to the hair strand collection;
11.2.3Each test shall be for the detection of opiates and prescription drugs including but not limited to heroin and morphine.
12That the mother will direct the testing clinic to supply a copy of the test results to the Father and Independent Children's Lawyer via email as the results are available and otherwise within three (3) days of the test having been conducted;
13That should the CDT test result be 1.8% or above, the Mother’s time with the children shall be suspended until the Mother is able to provide a CDT result less than 1.8%.
14That following the Mother’s compliance with Order 13 herein, the Mother’s time with the children shall recommence.
15That the mother shall continue to consult with [Dr B], Consultant Addiction Specialist as and when recommended by him and follow all treatment directions made by him;
16That changeover in relation to unsupervised time shall take place at the Mother’s home at the commencement and conclusion of the children’s time or as otherwise agreed between the parties in writing.
17That the parties shall communicate with each other via text or AppClose, Our Family Wizard, or any other app as agreed between the parties in writing except in cases of emergency involving the children.
18That the Mother and Father shall be and are restrained from the following:
18.1Denigrating the other party or members of the other party’s family in the presence or hearing of the children and each party shall do acts and things reasonably necessary to prevent any other person doing so; and
18.2Discussing the court proceedings in the presence or hearing of the children.
19That this order shall act as an authority for the mother to obtain copies of the children’ school reports, school photos and such information as may relate to the childrens progress and development.
20That the Mother shall forthwith notify the Father in writing in the event of her being hospitalised for any alcohol or substance abuse issue or mental health issue and within twenty-four (24) hours of any discharge and shall forthwith provide to the Father and Independent Children's Lawyer a copy of her discharge letter.
21That both parties be at liberty to attend functions to which parents are ordinarily invited and the Mother shall provide the Father with at last twenty-four (24) hours’ notice of her intention to attend school activities.
22That the Mother be restrained from attending any school activities in a capacity as a supervisor, including school excursions and group activities.
The orders sought by the ICL at the end of the evidence are those set out in Exhibit ICL3, being the Amended Short Minutes of Order sought by the ICL, and I incorporate into these Reasons those orders sought, from paragraph 1 through to and including paragraph 29 being:
1.That all previous parenting orders regarding the children [X] born [in] 2008 and [Y] born [in] 2014 (“the children”) be discharged.
2.That the parties have equal shared parental responsibility for the children.
3.That the children live with the father.
4.That the children spend unsupervised time with the mother as agreed but if not agreed:
a)Each Sunday from 10am to 5pm and each Thursday from 5pm to 8.15pm for a period of three months from the date of these orders in both school terms and school holidays.
b)Thereafter for a further period of three months from 6pm Saturday to 10am Sunday on alternate weekends and each Thursday from 5pm to 8.15pm in both school terms and school holidays.
c)Thereafter for a period of a further three months, from 10am Saturday to 5pm Sunday on alternate weekends, and each Thursday from 5pm to 8.15pm in both school terms and school holidays.
d)Thereafter, for a period of a further three months, from 5pm Friday to 5pm Sunday on alternate weekends, and each Thursday from 5pm to 8.15pm, in both school terms and school holidays.
e)Thereafter, from 5pm Friday to 5pm Sunday on alternate weekends and from after school Thursday to before school Friday in school terms, plus in school holidays f)       From the end of Term II 2024, half school holidays at the end of Terms I, II and III, being the first-half in holidays commencing in even-numbered years and the second half in holidays commencing in odd-numbered years (with the changeover at 5pm on the middle Saturday), plus
g)In the Christmas holidays from the 2024-25 holidays onwards, for alternate weeks, with changeovers at 5pm one week after the last day of school, with the mother to have the first week in when Christmas is in an even-numbered year and the father to have the first week when Christmas is I an odd-numbered year.
5.Notwithstanding and taking precedence over Order 4, the children also spend time with the mother:
a)From 10am to 5pm on Mother's Day;
b)From noon to 8pm on Christmas Eve in odd-numbered years and 5pm Christmas Eve to 3pm Christmas Day in even-numbered years;
c)From 4pm to 7pm on each of the children’s birthdays.
6.Notwithstanding and taking precedence over Order 4, the children’s time with the mother is suspended:
a)From 10am to 5pm on Father's Day;
b)From noon to 8pm on Christmas Eve in even-numbered years and 5pm Christmas Eve to 3pm Christmas Day in odd-numbered years.
7.That, for a period of six months after the date of these orders, in the event that [X] is unable to spend with the mother, then [Y]’s with the mother is also suspended; thereafter, [Y] is to spend time with the mother irrespective of whether [X] is also spending time with the mother.
8.That prior to the mother commencing unsupervised time with the children, at each visit the mother undertake breath analysis and send a copy to the father between thirty and fifteen minutes prior to the commencement of the children’s time with her, with the father to provide, and the mother to use, a device that gives date and time test information to the father, and should the result show that the mother has consumed alcohol, the children’s time with the mother shall be suspended until she provides a CDT result of less than 1.8%, and in accordance with order 11.
9.That the mother be restrained from consuming alcohol or prescribed medication in other than prescribed doses,1twenty-four hours prior to, and during, her time with the children.
10.      That the mother shall:
a)For six months after the date of these orders, undertake a test for carbohydrate deficiency transferrin (CDT) every two weeks, at the father’s expense, and the father to pay forthwith all costs associated with the mother undertaking such tests, with the first test to occur two weeks after the last test prior to these orders;
b)Continue to consult with [Dr B], Consultant Addiction Specialist, as and when recommended by him, and follow all treatment directions made by him;
c)Provide to [Dr B], the father, and (if still appointed) the Independent Children’s Lawyer all results of tests conducted pursuant to these orders, as soon as same are available;
d)Continue to consult with and comply with reasonable recommendations and directions of her psychologist, including but not limited to taking medication as prescribed, attending appointments and complying with treatment plans.
11.That should a CDT test result be 1.8% or above, the mother’s time with the children shall be suspended for the later of 3 months, or until the mother is able to provide a CDT result of less than 1.8%.
12.That following the mother’s compliance with order 11 above, the children’s time with the mother shall recommence and proceed in accordance with order 4a-e above.
13.That, if not at school, changeovers in relation to the children’s time with the mother be at the mother’s home at the commencement and conclusion of that time.
14.That the parties shall communicate with each other via text or Our Family Wizard app or any other agreed app, except in cases of emergency involving the children.
15.That the father, at his expense, provide and maintain a mobile phone to each of the children, to be taken by each child to the home of each parent.
16.That each party do all things to facilitate each child contacting the other parent, including by use of that child’s phone, at all reasonable times.
17.That is either party proposes a variation of time arrangements, then such communication shall be in writing by email.
18.That each party do all things to have the children continue counselling with [Ms C] or her nominee.
19.That the parties be restrained from moving the children from their current schools until 31 December 2025.
20.That the parties notify the other party of any change of address and contact details at least 7 days prior to the change occurring.
21.      That, without admissions, each party is restrained from:
a)Denigrating the other party or members of the other party’s family in the presence or hearing of the children, and each party do all things reasonably necessary to prevent any other person from doing so;
b)Discussing the court proceedings in the presence or hearing of the children.
22.That the Independent Children’s Lawyer explain these orders to the children, after which the Independent Children’s Lawyer be discharged.
23.That this order shall act as an authority for the mother to obtain from the children’s school copies of the children’s school reports, school photos and such information as may relate to the children’s progress and development.
24.That the mother be permitted to attend all of the children’s school activities and extra-curricular activities to which parents are normally invited.
25.That the mother immediately notify the father and (if still appointed) the Independent Children's Lawyer in the event of her being hospitalised for any alcohol or substance abuse issue, or mental health issue, within 24 hours of any discharge and shall as soon as possible provide to the father a copy of her discharge letter.
26.That the mother notify the father within 24 hours if she varies the intervals between consultations with her psychologist, [Ms M].
27.That the mother notify the father within 24 hours if she proposes to attend any of the children’s school activities or extra-curricular activities.
28.That a copy of these orders and the Reasons for Judgment and [Dr K]’s expert report dated 27 July 2022 be provided to [Dr B] (mother’s Addition Specialist), [Ms C] (children’s psychologist) and [Ms M] (mother’s psychologist).
29.That the parties pay in equal shares within 3 months the ICL’s costs of $7,787.00, being $3,898.50 each.
Paragraph 29 is an order that each of the parties pay the ICL’s costs within three months, being an amount of $7,787 in full, so $3,898.50 by each party. I will consider the ICL’s oral application that the parties pay the ICL’s costs after I have made final orders in relation to parenting matters.
In relation to the evidence, as these are oral Reasons, I will be taking it by the parties in turn. Firstly the mother’s evidence, being her evidence-in-chief set out in her affidavit of 11 May 2023 and her oral evidence during cross-examination in the hearing.
THE EVIDENCE
The mother’s evidence-in-chief was particularly important, as it set out not quite in full but in fairly full detail the history of her difficulties with alcohol addiction, her efforts to overcome that alcohol addiction, periods of relapse and so on. In going through that evidence, the mother gives evidence that she is a qualified community worker. Her last permanent position was as a professional at U Company, a position she left in 2019. At the time of hearing, she was intending to re-enter the workforce, having established a small business. The father is a professional . The mother says in paragraph 10 of her affidavit:
I have a history of alcohol dependency and other mental health issues detailed below.
And in paragraph 11:
I have not drunk alcohol since mid-2022.
The father accepted that last evidence of the mother – that she had not drunk alcohol since mid-2022 – during his cross-examination by Ms Dart. He was asked:
Do you accept that the mother is presently sober?
To which he said:
Yes.
He was asked:
Do you agree she has been sober since mid-2022?
With which he also agreed. I should add, having given that evidence from his cross-examination, that he was next asked if he had formed a view as to how long would it take of the mother being sober to reduce his concern in relation to risk to the children, to which he responded that he will always have a concern of a relapse by the mother.
The mother gives evidence that she has suffered multiple mental health issues during her life, namely depression and anxiety, which have resulted in her struggling with an alcohol addiction since 2008. In relation to the difficulties she has experienced in life that have led to those circumstance, she refers to having been sexually abused from a young age, as well as her sister, by a male person with whom the mother and her sister were left alone, being a male colleague of her mother’s who shared a house with them. She was also sexually assaulted by a male. She says this occurred on many occasions until the death of that person, which occurred in her early teenage years. She started drinking to excess after the birth of X in 2008. His birth was medically quite traumatic for her, and she gives detail of the C-section operation and so forth that caused that to be traumatic for her.
In the father’s cross-examination, he agreed with the mother’s evidence that her difficulties with alcohol had begun after X’s birth, when he was a newborn. He says that when X was about six months old, she began to start drinking in secret, but after she had been drinking for some time, she decided to seek help and consulted in 2009 a psychiatrist at the V Centre and was diagnosed with Complex Post-Traumatic Stress Disorder based on the traumatic birth experience and the significant sexual traumas she suffered as a child. In about 2010, she was admitted to W Clinic for a period of two weeks and was diagnosed by attending psychiatrists with an alcohol use disorder. Her alcohol consumption was the highest it had ever been in 2010.
In 2011, she commenced attending Alcoholics Anonymous for about 35 weeks on a Sunday morning. In 2011, she was admitted to W Clinic for two weeks because of a relapse in her sobriety. In 2013, while she was pregnant with Y, she consumed too much alcohol on one occasion, which resulted in her being admitted to Z Hospital, and she fell over, caused herself an injury. In 2013, she commenced attending a support group at W Clinic each Monday night. She attended that group for a period of about 12 months. She remained sober for approximately 18 months prior to a family holiday to Country AA in 2015. Following that holiday, she relapsed again and began drinking. In 2017, she admitted herself to BB Hospital for 21 days for treatment for alcohol abuse. She recommenced attending evening support meetings, as she had realised that her alcohol intake was no longer manageable without some assistance, and she had developed a wish to get well.
In 2019, she had two admissions to L Hospital for rehabilitation. They occurred in 2019 for a period of seven days and in late 2019 for a two-week period. From cross-examination of the mother by Ms Petrie, in which a series of documents that became exhibits were put to the mother, and particularly from Exhibit 9 and various others, we know that she had further admissions in early 2020. The admission was a self-admission to hospital where she presented for detox from alcohol abuse, the same for the subsequent early admission. Those hospital admissions are not referred to in the evidence-in-chief.

In mid-2020, the mother was drinking wine at home and then drove her vehicle and was reported for having a collision whilst drinking driving in a car park at CC Shopping Centre. The police attended at the matrimonial home. This was an incident in which the children and the father were inside the house. The mother was being attended by a number of police, a number of police vehicles were present in the driveway of the property, and it resulted in the mother being charged with a mid-range drive under the influence charge. In mid-2020, the mother was taken to hospital via ambulance due to a mental health episode and intoxication. She commenced outpatient day therapy at L Hospital as treatment for substance abuse. Exhibits R14 and R9 indicate that the admission to hospital was from mid-2020 to late-2020.
In late 2020, the mother was again taken to L Hospital following drinking a large amount of alcohol. The mother was alone at the home at the time, the father and children being away, and she fell over and cut her head. She called a friend, who contacted police and ambulance. In late 2020, she was taken to hospital due to a deep laceration on her wrist which required plastic surgery. This was a self-harm episode, and she does not recall now any real detail of the incident, as she was in a very depressed state at the time. Tragically, thereafter, Y found some of the blood-soaked bandages that had resulted from the mother’s episode of self-harm. That admission into hospital is indicated in Exhibit R9 to have occurred in late 2020.
In early 2021, the mother appeared in the DD Local Court for sentencing in relation to her drink-driving charge. She lost her licence for a period of eight months and was required to use an interlock device on her car after that eight-month suspension period was over. That requires her to blow a blood alcohol reading of 0.00 before driving a car and to re-blow into the mouthpiece every 15 minutes whilst being filmed. The interlock device remains on her vehicle until December of this year, 2023. To ensure it is in working order, the mother must pay a service fee monthly at a cost of $2,400 per year.
In late 2021, the mother relapsed following 13 months of sobriety and drank alcohol for a period of between nine and 12 days while house-sitting for a friend, before then contracting COVID-19. Due to the seriousness of her COVID-19 symptoms, she was admitted to L Hospital COVID Isolation Unit for about 12 hours and then returned to the house she was house-sitting for a friend and remained sober and returned to the matrimonial home at Suburb E. Her relapse in late 2021 and the days following, was following her attending X’s confirmation ceremony, an occasion where she was upset by the course of events. At that time, she had neglected to fill her Antabuse prescription and had ceased taking her antidepressant medication.
Between that relapse in late 2021 and mid-2022, she was able to remain sober. However, in mid-2022, after the first set of interviews with Dr K for the Expert’s Report but prior to the second set, she again relapsed. There was an occasion where she was unwell and cancelled her time with the children under then prevailing orders. She became upset and drank for a period of three days before being admitted to hospital in mid-2022 after her former solicitor became worried, not being able to contact the mother, and organised a welfare check on the mother. She spent a night in hospital before being discharged. On 1 July and 8 July 2022, the mother completed CDT tests, which both came back with a reading higher than the recognised allowed level of 1.8 per cent. Her time with her children under then interim orders was stopped from 23 June until 19 July 2022, when she provided a negative CDT test – that is, one of 1.8 per cent or below.
As I said before, since mid-2022, the mother has not consumed any alcohol, and the father agreed with that evidence in his cross-examination. The mother says in paragraph 39 of her affidavit:
I feel confident that I will no longer return to drinking, as whilst I am aware that my illness is one that I will always live with, I have far too much to lose to drink again, nor do I want to subject the children to any further harm or distress.
Since 2022, the mother has used a real-time alcohol testing device to prove that she has not consumed any alcohol prior to spending time with the children. Coupled with the fortnightly CDT tests, which take about one to three hours each time, blood testing, which takes 24 hours, and three monthly hair follicle tests that take about three and a half hours, door-to-door. She has been able to remain sober since that relapse in mid-2022 and obtain clear test results on all those testing methods.
She attends regular appointments with Dr B, who is an addiction specialist who has been treating her since 2019. The mother attended weekly alcohol dependence program at L Hospital in 2020, and attended for a 12-week dialectical behaviour therapy at the hospital which commenced in 2021. She was attending fortnightly appointments with psychologist Ms M, which she said:
…has been essential in allowing me to develop the stress tolerance skills and still check in with her regularly for support.
At the time of the hearing, it came out in evidence that she was no longer having fortnightly appointments with Ms M. The mother gives evidence that her current support systems, in relation to assisting her to maintain her sobriety, consist of her mother, sister and many friends. She says she is also assisted by the support of her psychologist, her general practitioner and Dr B. She says that the last time that the children saw her in relapse was in mid-2020. It is important to note that in paragraph 47, the mother says:
I am very mindful of the effect that my past behaviour has had on the children, and that this behaviour has at times placed the children at risk.
She is currently prescribed various medications by her general practitioner and by Dr B, and she said she takes those within the normal limits. Due to her anxiety, her general practitioner, Dr EE, prescribed the mother with medication. She has been taking medication to manage her symptoms of anxiety since 2020, and checks with her general practitioner regarding the prescription once every two months, on average, for the last two years. She still takes medication to assist her in managing her anxiety, though she does not take it habitually and restricts her use to when it is absolutely necessary.
She says in her evidence, and it came out further in the evidence in the hearing, that she had an experience in mid-2022 when, over the course of the day, she took three pills following a supervised visit with the children. On that occasion, she was falling asleep during the visit with the children. She was asleep when attending at the theatre with her mother, couldn’t be awoken and, in fact, was conveyed to hospital and awoke in hospital and told that she had been unconscious for a period of one and a half hours.
The mother said she had not been drinking on that occasion, as her test results came back normal. That was the first and only time that she exceeded the recommended dosage of medication. The reaction on that occasion frightened her. It came out during the evidence during the cross-examination of the mother that she now uses a pill wheel to use her medications, with a pill wheel enabling a person to tell exactly how many pills they have had on a particular day.
She says that, currently, she takes one five milligram pill, if necessary, to address anxiety. The mother is prescribed medication by Dr B for restlessness and sleep. However, she no longer takes that medication, as she experienced an adverse reaction. That included, the mother asserts, an incident in mid-2022, when she fell over, cutting the side of her head and causing the admission to hospital. For her depression, the mother takes, by prescription, medication of 60 milligram, three 20 milligram pills each morning. She is prescribed medication, three tablets per day, for alcohol misuse disorder and muscle movement disorders.
She takes medication, which is a tablet prescribed especially to treat alcohol addiction, being two tablets daily. In early 2023, the mother was involved in a minor car accident, when she bumped into a car at a stoplight. No damage was caused to either vehicle and no injury. Two days later, she was involved in a more serious car accident and was admitted to FF Hospital, experiencing some confusion following the incident.
The mother indicates that it was 2012 when the parties purchased the former matrimonial home at Suburb E, and moved there to live.
The mother asserts in her evidence-in-chief that in mid-2013, the father grabbed her head and knocked it into the hallway. The mother asserts that in early 2014, the father banged her head against the bedhead three times, causing her head to hurt and the mother to cry. The mother says that in early 2014, the father moved to the downstairs bedroom in the property.
In early 2014, the father took X to Country GG for a holiday with him for a week, and left Y in the mother’s care at the home. At this time, the mother says the parents had been experiencing marriage difficulties, but on return of the father from the Country GG holiday with X, the mother decided to give the marriage another chance and the parties reconciled. In 2016, the father went on a holiday to Country HH for a week, and left both children in the care of the mother. On an occasion in 2016, the father took X camping for a weekend, and left Y at home in the mother’s care. In 2017, the father and mother began sleeping in different bedrooms.
The mother asserts that during the whole of their relationship, the father was financially controlling. She asserts, in 2017, that the father punched her and kicked her in the arm and leg, and broke a side mirror of her car. The mother asserts that at the time of their marriage breaking down and the separation under the one roof, she was subjected to controlling by the father, including months of silent treatment. In cross-examination by the ICL’s Counsel, the mother said that the children never witnessed any physical violence between the father and the mother, noting that X had made an assertion to that effect to Dr K during his interview.
In paragraph 76 of her affidavit, the mother says:
I am informed by my solicitor and believe that the children’s psychologist, [Ms C], told both my solicitor and [Mr Calandra]’s solicitor that the children do not seem to have been overtly affected by our dysfunctional and abusive relationship.
During cross-examination of the mother via the ICL, the mother was taken to that paragraph in her affidavit and asked if that was her view, if her view concurred with what was reportedly said by the children to Ms C, and the mother said in her evidence that she was dumbfounded by the assertion by Ms C that the children had asserted that they had not been overtly affected by the dysfunctional and abusive relationship.
The mother asserts that in late 2019, the father pushed her while she was intoxicated, causing her to fall and cut her head. She says that she was hospitalised as a result, and when she was discharged from hospital, she moved into a bedroom downstairs, where she remained until she moved out of the former matrimonial home, pursuant to the interim exclusive occupation order that was made. Having detailed that evidence, it is fair and proper to note here that all of those assertions of physical violence and family violence by the father against the mother were put to the father in cross-examination, and he denied during cross-examination each and every such occasion.
The mother says that the relationship between the parents ended in April 2020, when she sent an email to the father, to which he replied about five days later, agreeing that the parties should separate. The mother says that the parties recently started communicating through the MyFamilyWizard app, though their communication is still limited. The mother was cross-examined about the use of the app on behalf of the ICL. She said in her evidence in cross-examination that she regarded it as early days on the use of that app, and she had noticed that if things get testing, they revert to emails, but ideally she would like communication to be via that app.
The father was cross-examined about the use of that app, also by the ICL, and he was asked if the use between the parents of the FamilyWizard app was working, and he agreed that, on his view, their communication was improved by the use of that app.
The mother sets out from paragraph 98 of her affidavit her evidence in relation to the hands-on parenting of the children at the time of the birth of each of the children. She carries her evidence of the parenting through the period of their separation and after, and says that in 2020, it was she who organised regular psychology sessions for the children under the JJ scheme, with Ms C from KK Psychology Practice at Suburb LL.
She says in her evidence:
I was aware that my issues with alcohol and the tensions in my relationship with [Mr Calandra] would most probably have had an impact on their mental health.
She says that the children continue to see Ms C. When the mother vacated the matrimonial home in Suburb E in March 2022, she moved to a place to reside in the Suburb D area, which she says is about ten minutes’ drive away from that former matrimonial home. In paragraph 123, she says, on 23 April 2023, being the first day that she was able to spend time with the children without supervision, pursuant to the interim orders from February of this year, she and the children went to MM Store, attempting to purchase a desk for X so he could study while spending time with her. She says X diligently put it together and put it in his room in her home. She says they also bought a desk pad and a plush toy for Y to put in her room in the mother’s home.
In paragraph 125 of her affidavit, the mother says:
I am aware of the many moments that I have missed in my children’s lives due to my history of alcohol dependence.
Very early in cross-examination of the mother by Ms Petrie for the father, Ms Petrie asked the mother what impact she thought her alcohol abuse had had on the children. The mother replied:
Devastating. They have lost trust in me.
She was asked if it had resulted in the children having a hypervigilance for signs of her drinking, and she agreed it had. She was asked if there was always a risk of relapse in the future, and the mother agreed that there was. She was asked if there was a serious need to be aware of relapse in the interests of the children. The mother agreed that there was. She then gave evidence that her appointments with Ms M, her treating psychologist, had changed from fortnightly appointments referred to in her affidavit to once each three months or so.
The mother gave evidence that, at the time of the hearing, she was not engaging in any group therapy. The mother was asked by Ms Petrie how she planned to ensure that she had no future relapses. The mother replied in words to the effect that she had put in a lot of effort over the years, especially during 2022, and living without the children and the impact of her alcohol abuse on them brought her to:
…know that she would not relapse.
She gave evidence that she has terrific supports in place. She has had therapy for five to nine hours a week for two years. She has reflected on the impact her alcohol abuse has had on her children, and she does not want that to reoccur. Further, in her cross-examination by Ms Petrie, the mother was taken to paragraph 22 of her affidavit, and was asked if she agreed that an addiction to alcohol is an addiction for life, with which the mother agreed. She was asked if she was aware that there was a need to avoid any known triggers to alcohol abuse for her, to which the mother agreed.
The mother agreed that, tragically, the children had been exposed to significant arguments between father and mother, when the mother was in periods of intoxication. It was put to the mother in cross-examination by Ms Petrie that the children continued to be wary of the mother in relation to her drinking and abuse of alcohol, with which the mother agreed, and the mother asserted that that wariness is lessening over time, as her period of sobriety increases. The mother agreed during cross-examination that the children are well cared for in living with their father.
The mother was referred to the testing that was the subject of an order from earlier on in the proceedings, and again in February of this year, and proposed by both of the parents and the ICL in the orders at final hearing, and she was asked if she consented to that testing continuing, and she said yes. She was asked if she consented to it being a permanent order until Y is 18 years of age, to which she agreed.
The father, earlier in his affidavit, referred to the fact that the Suburb E home was being sold pursuant to the final property settlement orders made between the parties, and that settlement was expected to take place in mid-2023. Presumably, that has occurred between the end of the final hearing and delivery of these Reasons. The father gave evidence that he planned to purchase another home for himself and the children to live in:
Preferably, close to where the children will be attending school.
During his cross-examination for the mother by Ms Dart, he was asked if there was any chance that after the sale of the matrimonial home and him having to move place of residence, that either X or Y would move schools, to which he replied “no”. Also during the father’s cross-examination for the ICL, he was asked if he would consent to an order that the children stay in their current schools for the next two years, that would be until the end of 2025, to which he replied “yes”.
The father referred to some of the detail of the mother’s history with abuse of alcohol. He referred to her of having had multiple admissions to FF Hospital at Suburb NN, Z Hospital, L Hospital, the OO Rehabilitation Centre in Suburb PP , as well as BB Hospital at Suburb QQ. He said that she had also attended AA meetings. One of the exhibits, being Exhibit R9 that I have already referred to, was a list of admissions to hospital, both outpatient and inpatient admissions, for the mother, detailing admissions starting from late 2018 right through to one ending in early 2022, not long before the final hearing.
The father said that in 2013, when the mother was six months pregnant with Y, she was admitted to Z Hospital with a blood-alcohol level of around 0.35, borne out in the exhibits. He said that the mother often became abusive and, at times, threw objects at the children and at him, when she was drunk. The father gave no specific evidence of specific occasions of the mother throwing any objects at the children or at him, when she was drunk.
The father referred to the incident in 2020, when the mother was heavily intoxicated and, he asserts, had fallen over and received a cut on her head. The mother, of course, gave a somewhat different version, involving some family violence. The father called an ambulance. The police arrived at the house. The father called a friend, Mr RR, to come to the house. He says the children were scared, with police and ambulance officers in the house. X was interviewed by police. X was visibly shaken with being interviewed, and Y was very frightened. The police concluded there was nothing further required of them, and the ambulance took the mother to hospital, where she was admitted.
He says that in mid-2020, the mother had been drinking heavily during the day. She went out driving. The police followed her back, and that led to the incident that I have described from the mother’s evidence, fleshed out by the father’s evidence, of the father and children being inside the house, and the mother being out in the driveway of the property with a number of police officers, resulting in a charge for driving under the influence of alcohol.

Ms Petrie pointed to evidence of the mother’s non‑compliance with treatment and/or with medication. I find on all of the evidence, again, that there is no current risk to the children in relation to a non‑compliance of the mother with treatment and/or misuse of medication. The couple of occasions where the mother had difficulty with her medication are properly explained in the evidence and the mother has given evidence of her pill wheel system to make sure that she is aware of how many pills that can affect her cognitive abilities she has taken at any particular time in the day, and I find that that is not a risk to the children.
Ms Petrie refers to an unacceptable risk in the mother’s lack of insight into the psychological wellbeing of the children. That was certainly the case when the mother was having discussions with Ms C in 2020 when the children were embarking on their counselling with Ms C, as noted, properly, by Ms C, and it was also of concern to Dr K. But the whole of the evidence in the hearing and particularly the mother in cross‑examination, in her evidence‑in‑chief and her affidavit indicates that the mother has been made well aware, certainly by the contents of Dr K’s report and by the contents of Ms C’s report, that her abuse of alcohol and the children’s exposure to that and the children’s knowledge of her relapses has had a devastating effect upon the children and upon her relationship with the children.
The mother has suffered the extreme limits in her time with the children. The mother knows that that is caused by her own behaviour, her abuse of alcohol, and the mother has overcome her lack of insight into the psychological wellbeing of the children and I find that that is no longer a risk.
That leaves the unacceptable risk being the possibility of relapse of the mother with her alcoholism, and as I have said, that can be mitigated by appropriate orders. Of course, even then, in making appropriate orders, it has to have along with it an element, as the Full Court said as I read out from the Full Court’s decision in Eaby & Speelman, as per Grella & Jamieson at paragraph 18, “significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition”, which lead to a necessary trusting in the mother’s ability to maintain her sobriety and the mother’s knowledge that if she fails in her sobriety, it is going to show up pretty quickly in the tests and lead to a suspension of her time with her children.
On all of the evidence, particularly Dr B’s report and even the report from Ms J, the evidence of the parties in cross‑examination and their evidence‑in‑chief, there is a benefit to both of the children in having a meaningful relationship with both of their parents.
Despite the mother’s alcohol problems and the children’s exposure to it and their wariness and their hypervigilance as a result of their knowledge of it, there is a meaningful relationship between the children and their mother. It is a close and loving relationship, though there is a wariness. That wariness will drain away over time, as the two doctors have said, the longer the mother is able to maintain her sobriety.
The children have a meaningful, close and loving relationship with their father who is their primary caregiver and has been certainly since March of 2022 and for significant periods of time before that due to the mother’s intoxications.
The unacceptable risks to the children are being addressed by appropriate orders to mitigate the risks. The benefit of the children having a meaningful relationship with both parents dictates that both parents have sufficient time with the children and the children have sufficient time with each of their parents to allow that meaningful relationship to be maintained, and on the mother’s side, allow sufficient time for that to be developed whilst maintaining protection of the children from the risk.
Additional considerations
In relation to the additional considerations so far as they bear relevance in this matter, because, as I have said, it is not a live with/live with contest, it is a contest of the time the children should spend with their mother and on what conditions, there is no real and lasting question about the nature of the relationship of the children with each of their parents.
With their father, it is an entirely close, loving, meaningful and appropriate relationship. With their mother, it is a close, loving and meaningful relationship, but one tinged with wariness and hypervigilance on the part of the children, which time can cure, and that cure is entirely and wholly in the hands of the mother.
The views expressed by the children. In relation to X, he has expressed his views, of course, that he wants to have a relationship with both of his parents. With his mother, that relationship is dependent on his mother being able to maintain her sobriety and not letting him down so grievously again by relapsing, but he also expresses that he is at a certain age and he is going to want to spend his own time, have his own social life, attend to his studies and so forth.
In relation to Y, she is quite direct in wanting to have an increase in her time with her mother. She is aware that there are proposals that be daytime only, she is aware that there are proposals that go to overnight and she shows herself in expressing her views to Dr K to be open to those increases, but also, in giving those views, shows her awareness of her mother’s condition and her hypervigilance.
The consideration of the extent to which the parents have taken or failed to take the opportunity to participate in major long‑term decisions, spend time with and communicate. The only consideration I go to there is that the mother’s lack of communication with and time with her children over the time since March 2022 and the restriction thereon has been a consequence of her own actions in relation to her alcohol dependence.
That is not laying a blame, because the thing is far too complex to bring the word “blame” into it. The word “blame” does not belong there, but it has to be noted that the extent of the limit on the mother’s time with the children is not laid at the hands of the father. The father has acted at all times appropriately and protectively. It is a consequence of the mother’s actions.
Each parent has fulfilled their obligation to maintain the children. It was not an issue in the case.
The likely effect of any change in the children’s circumstances, likely effect of any separation from either of their parents points directly at the likely effect on the children of another separation, even a long separation from their mother in the event that their mother relapses into alcohol abuse and intoxication.
In that event, the relationship of the mother with X may be irreparably damaged. The relationship of the mother with Y will certainly be damaged, whether irreparably or not. The evidence does not allow me to predict, but certainly it will be damaged and the clock will be reset and in fact set backward, well behind where it is today in relation to the mother re‑establishing relationships and gaining the trust of the children in her ability to be an attentive and caring parent by refraining from intoxication.
There is nothing on all the evidence to be taken in the practical difficulty and expense of the children spending time with and communicating with their mother. The father, to his extreme credit – and he gains a lot of credit throughout this matter, despite the matters asserted against him in evidence at various times by the mother – he gains a huge amount of credit in relation to his conduct on behalf of the children through the matter.
I am not in a position to make findings about the assertions of he is not supporting the mother because the evidence does not go sufficiently far for me to be able to make findings in relation to that, but certainly the father’s readiness to fund the testing of the mother and so forth so as to provide the safeguards for his children in spending time with their mother, goes greatly to his credit on many levels.
Parenting capacity is a consideration. The father has shown entirely adequate parenting capacity to provide for the needs of the children, including emotional and intellectual needs. The mother in the past has shown a lack of parenting capacity, certainly by her relapses into alcoholism, and also for a period of time by her failure to properly realise the full effect of her alcoholism on her children and the damage that it was doing and has done to the children.
As I have found in relation to the evidence, that is no longer a risk, and inherent in that is that she gained sufficient insight to understand the effect it has had on the children and can in the future have on the children.
In that regard, I find that the mother also has sufficient capacity to provide for the needs of the children, but not on a long‑term basis in any short term way. By “long‑term basis”, I mean for periods up to one, two or three weeks at a time. It must be a gradual building as she redevelops the skills of her parenting capacity.
Maturity, sex, lifestyle and background of the children and the parents. Well, as I have already said, X is at an age where he is going to start making his own way, and of course, if orders are made that apply to both children equally in relation to the time they spend with their mother and so forth, the Court knows, and has known since the Family Court began to sit in 1976, that children reach a certain age short of 18 where they begin to make their own way.
It is part of their own development of their own personality establishing their independence. X is getting toward that point and it may very well be that X is going to start to make his own way and decide if he is or he is not going to do certain things that are in line with the orders that would be made as a result of these Reasons.
Y, at the hearing, was nine years of age. She is still of tender years. She still needs to be considered and protected, but going along with that, as a female child and soon to be a young lady to go into her teenage years, it is very important for Y, as expressed in Dr K’s report and by Ms J, to have the benefit of an ongoing, developing and broadening relationship with her mother based on a gradual increase in time so that she is able to spend sufficient time with her mother for her mother to be integrally involved in her day‑to‑day life.
The attitude to the children and the responsibilities of parenthood demonstrated by the parents. The consideration of that has already been covered in several of the other considerations. The father has displayed an appropriate attitude, a properly protective attitude. The mother in the past has displayed an inadequate attitude to the responsibilities of parenthood, but in the maintenance of sobriety she will show an appropriate attitude to the responsibilities of parenthood.
Family violence was an issue raised by the mother and I touched upon the occasions in her evidence‑in‑chief that she referred to incidents without her giving any detailed description of such incidents. The father was cross‑examined and denied them. I am not in a position on the evidence to make a finding on the balance of probabilities in relation to that, and I say that I am not satisfied in all the circumstances that there has been the perpetration of family violence so as affect the decision that I make for the proper parenting orders for these children.
It is not a contest of live with/live with in any case. The mother is not seeking to have the children live with her. It would be hopeless to do so. Family violence is an element that must be considered in relation to the presumption that is found in section 61DA, so it has to be considered here. As I say, I do not make the finding that there has been family violence. I have no evidence of a family violence order ever being between the relevant persons.
It would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the children and I intend to make such orders after the conclusion of my consideration of the matters on the legislative pathway. However, whether or not there is the institution of further proceedings rests in the main very much in the hands of the mother. If she maintains sobriety, the parties need never come near this place again. If she fails to maintain sobriety, then almost certainly the matter will end up back in Court for the protection of the children, whatever orders are made.
CONCLUSION
Turning to section 61D and the presumption of equal shared parental responsibility, as I am not satisfied that there are reasonable grounds to believe that either parent has engaged in abuse of the children or family violence, the presumption does apply. I have reviewed the evidence of Dr K in relation to his recommendation that there be an order for equal shared parental responsibility.
The father, of course, seeks that the order be that he have sole parental responsibility for the children. The mother and the ICL seek that orders be made that the parents have equal shared parental responsibility for the children.
The parents have communication difficulties, their relationship is very poor, but I am very mindful of the evidence of Dr K in cross‑examination that the benefit to the children of having the knowledge that both parents are involved in making decisions about their long‑term welfare in his view outweighs the consideration of the poor relationship between the parties. The parties are able to communicate and orders can be made in relation to the manner of their communication.
X is at high school. Y will have to go to high school. I find, on all of the evidence, that it is in the best interests of both children that the presumption be maintained and an order be made for the parents to have equal shared parental responsibility for the children. That being the case, I must consider the matters in section 65DAA which I have outlined earlier.
Is it in the children’s best interests to spend equal time with each of their parents? No. The evidence is plain and the unacceptable risk that I have found, even mitigated by orders, makes it plain it is not in the interests of either X or Y to spend equal time with each of their parents. That is not sought in any of the orders sought, even by the mother. It would be to the detriment of the best interests of both children, a serious detriment, if orders were suddenly made now for them to spend equal time with each of their parents.
Given the unacceptable risk that continues, even mitigated by appropriate orders, I find that it is not appropriate that orders be made as a result of these proceedings at all, that time between the mother and the children graduate to an equal time with the parents in the circumstance, and though it would be reasonably practicable taking into account some of the considerations set out in section 65DAA(5), others of those considerations being section 65DAA(d) the impact that an arrangement of equal time would have on the children, and section 65DAA(b) the parents’ current future capacity to implement and arrange for the children to spend equal time between their parents, lead to a finding that it is not reasonably practicable.
It might be reasonably practicable in a distance and time sense, but not in the sense of those other considerations I referred to. Consequently, I will not consider making an order for equal time.
Is it in the children’s best interests to spend substantial and significant time with each of their parents and is it reasonably practicable? First of all, at the moment, it is most definitely not in the children’s best interests to spend substantial and significant time with each of their parents. The mother’s ongoing sobriety must be tested by time. It has been tested up to the hearing by 11 months. It needs more testing of time.
The children’s relationship with their mother has been severely truncated as to time since the separation of the parties, and the interim orders provided only for very limited time between the children and their mother on a daytime only basis. It is very necessary that time between the children and their mother graduate so the relationships can be further developed and the children’s trust in their mother can be re-established, and importantly, that the father’s trust in the mother can begin to grow by the lengthening of her sobriety.
Accordingly, I find it is not in the children’s best interests that they spend substantial and significant time with each of their parents. For the same reasons that I read out from section 65DAA(5) before, it is also not reasonably practicable that they spend substantial and significant time with each of their parents. It is in a practical distance and expense sense, but not in relation to capacity to implement such an arrangement or impact on the children of such an arrangement.
Therefore, I will not consider making an order that goes to substantial and significant time from the start, but after the mother has established a significant period of time spending time with the children and maintaining her sobriety, establishing that with the father through the protective orders and so forth, then the time the mother spends with the children can approach the bottom edges of what is defined as substantial and significant time in subsection (3) of section 65DAA.
Accordingly, what orders should be made in the best interests of the children, with those interests the paramount consideration? In relation to the father’s proposal, he proposes that the time the children spend with their mother be confined throughout to daytime only, both during school term and during holiday time.
In his evidence, especially in cross‑examination, he indicated very clearly that he based those proposals on his concern that an ongoing risk to the children of the mother relapsing from her sobriety will always be there and he does not trust that same will not occur and expose the children to risk. Of course, the risk to the children is the same at two o’clock in the afternoon as it is at two o’clock in the morning.
I find that it is in the children’s best interests that their time with their mother begin to increase from daytime only through small steps of overnight time to end itself up at the bottom edge of substantial and significant time, and therefore I decline to make the time‑with orders as proposed by the father.
The father proposes a raft of orders in relation to the mother undergoing testing, CDT testing, hair follicle testing, alcohol testing on each occasion. He proposes that the testing continue until Y reaches 18 years of age.
The mother and the ICL both propose that there be a graduated scheme of time between the children and their mother, launching on from daytime only to overnight and multiple overnight and eventually incorporating time during school holidays, ending up at a week about basis during school holidays. I find that, in large, those proposals are appropriate and I find that my preference is for the regime as set out in the amended short minute of order of the ICL, being Exhibit ICL3.
In relation to the time the children spend with each parent on special occasions of birthdays, Mother’s Day, Father’s Day, Christmas, Easter, New Year’s and so forth, I find that the orders as proposed by the mother in her proposed orders, which are found in Exhibit A2, are appropriate orders as those orders contemplate overnight time on a fair basis between the parties with the children for those occasions.
Counsel for the father very helpfully went right through Exhibit ICL3, the orders proposed by the ICL, indicating those orders with which the father agreed and disagreed, and that is found in the transcript of the submissions, and I intend to make orders accordingly, as did, to an extent, the mother’s Counsel and there is some pairing between the ICL’s minute of order and the mother’s minute of order, though the ICL’s minute of order goes quite a bit further than the mother’s minute of order in relation to supplementary parenting arrangement orders, and I intend to make orders largely in accordance with the minute of order of the ICL in Exhibit ICL3.

A central issue is the father’s proposal that Y not spend time with her mother at all, or at least, from his evidence in cross‑examination, until she is about 13 or 14, unless X is there. That needs to be addressed.
I find on all of the evidence, particularly in relation to Y’s current age and the communication devices available to her, the mother’s 11 months of sobriety, the mother’s awareness of the consequences of a relapse of sobriety while the children are in her care, because a relapse in sobriety before they come into her care will show up for a period of time on the testing machine, would show up eventually in the CDT and hair follicle testing, but I find that it is not in Y’s best interest that her time with her mother be confined now or for any period of time going forward to only occasions when X is able to be with her.
I find the importance of Y’s relationship with her mother and her desire to pursue that relationship closely, coupled with X’s natural wish to start making his own way and his own arrangements, means that there is too much of a danger of extensive periods of breach in relationship between mother and daughter if that order is made. I find that the unacceptable risk that I have found is addressed sufficiently by the orders mitigating that risk to provide safety for Y in her mother’s care in terms of the spend time with regime that I have indicated I intend to make based upon the ICL’s orders.
ICL Costs
I should note that at the end of submissions, Mr Maddox, as Counsel for the ICL, properly made an application that the parties pay the ICL’s costs and an order to that effect is included at the end of the ICL’s minute of order, in terms, “that the parties pay in equal shares within three months the ICL’s costs of $7,787 being $3,898.50 each,” and I should consider that application after I have made final parenting orders, as costs considerations properly come after proceedings have been concluded, but I will return to that.
Turning to consider the ICL’s application for costs, during submissions it was indicated on behalf of the father that he consented to an order being made in terms sought by the ICL. Consent was not indicated on behalf of the mother.
I must consider the question of costs in light of section 117 of the Act, being an application for costs by the ICL. The general rule does not apply because that is a general rule between parties. Subsection 117(2) does apply. The Court may make an order for costs including the ICL’s costs if the Court is satisfied there are circumstances that justify the Court in doing so, and in making that decision the Court must consider the matters in section 117(2A). The Court also has to give attention, in relation to an ICL’s application for costs, to subsections (3), (4) and (5) of section 117.
There is nothing in the conduct of the mother that needs to be considered in relation to the ICL’s costs order. It is not necessitated by a failure of the mother to comply with any previous order. The mother has certainly not been wholly unsuccessful in the proceedings and it is not the subject of offers in writing.
The Court does not have any particular evidence in relation to the mother’s financial circumstances other than that she is embarking on conducting her own business after a period of unemployment. The mother’s financial circumstances are such that the father has been funding the cost of the testing, implying that the mother was not in a position to do so. The mother, as I say, has been out of employment since she left the last employment she refers to in her affidavit evidence, and she has a start-up business.
I do not have specific evidence to make a finding that the mother would suffer financial hardship if an order was made that she bear part of the ICL’s costs, but certainly her financial circumstances, so far as they are exposed in the proceedings, are a consideration for the Court.
The cited cases from the Full Court say that the parties should, in normal circumstances, contribute toward the funding of the ICL and that is a relevant consideration I keep in mind in relation to an order.
The amount sought from the ICL for each party is $3,898.50. I find that it is appropriate that an order be made that the mother contribute to the ICL’s costs and I find that the appropriate order is to fix an amount as a lump sum of $1,500. I find that the mother ought to have time to pay in excess of that consented to by the father given her financial circumstances
.

I certify that the preceding two hundred and thirty-nine (239) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 27 July 202

File number(s):	SYC 6350 of 2021
Judgment of:	JUDGE MORLEY
Date of judgment:	27 July 2023
Catchwords:	FAMILY LAW – parenting – application for final orders – assessment of unacceptable risk – where Father seeks no overnight time between Mother and children – where Mother and ICL seek graduated overnight time regime paired with extensive suite of alcohol testing orders – where it is in the best interests of the children to spend graduated regime of time including overnight time with the Mother
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68L, 117
Cases cited:	A & A & The Child Representative [1998] FamCA 25 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman [2015] FamCAFC 104 Grella & Jamieson [2017] FamCAFC 21 Harridge and Anor & Harridge [2010] FamCA 445 Isles & Nelissen [2022] FedCFamC1A 97. Johnson & Page [2007] FamCA 1235 M & M (1988) 166 CLR 69 Napier & Hepburn [2006] FamCA 1316
Division:	Division 2 Family Law
Number of paragraphs:	239
Date of hearing:	22 to 24 May 2023
Place:	Sydney
Counsel for the Applicant:	Ms Dart
Solicitor for the Applicant:	De Saxe O’Neill Family Lawyers
Counsel for the Respondent:	Ms Petrie
Solicitor for the Respondent:	Court Legal
Counsel for the Independent Children's Lawyer:	Mr Maddox
Solicitor for the Independent Children's Lawyer:	Chidiac Legal Pty Ltd

SYC 6350 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS TAMBLYN Applicant
AND:	MR CALANDRA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE MORLEY
DATE OF ORDER:	27 JULY 2023