Tauro & Tauro - [2023] FedCFamC2F 1672

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tauro & Tauro [2023] FedCFamC2F 1672

File number(s): MLC 4394 of 2022

Judgment of: JUDGE A. HUMPHREYS

Date of judgment: 21 December 2023

Catchwords: FAMILY LAW – PARENTING – two children aged eight and ten – parties agree to equal shared parental responsibility – father seeks orders for children’s time spent with him to progress to equal time – mother seeks a reduction in the time the children spent with the father, from five to four nights per fortnight – mother contends father’s mental health and alcohol consumption poses a risk of harm to the children and affects his parenting capacity – where father minimises prior alcohol consumption and demonstrates a lack of insight into the impact of his conduct on the mother and children – injunction restraining father’s consumption of alcohol – orders made for the children to continue to spend time with the father for five nights each fortnight.

Legislation:
Evidence Act 1995 (Cth) s 140

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

Cases cited:
Blinko & Blinko [2015] FamCAFC 146

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 2

Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93–405; [2009] FamCAFC 92

Division: Division 2 Family Law

Number of paragraphs: 286

Date of hearing: 24, 25 & 29 August 2023

Place: Melbourne

Counsel for the Applicant: Ms Goldthorp

Solicitor for the Applicant Freeman Family Law

Counsel for the Respondent Ms Smallwood SC

Solicitor for the Respondent Carew Counsel Solicitors
ORDERS

MLC 4394 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TAURO

Applicant

AND:
MS TAURO

Respondent

ORDER MADE BY:

JUDGE A. HUMPHREYS

DATE OF ORDER:

21 DECEMBER 2023

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.

Parental responsibility
2.The parties have equal shared parental responsibility for the children:
(a)X (born in 2013); and
(b)Y (born in 2015),

("the children").

Children’s care arrangements
3.The children live with the mother.
4.The children spend time with the father during school term periods on a rotating fortnightly basis:
(a)In week 1, from the conclusion of school on Thursday (or 3.30 pm on a non-school day) until the commencement of school on Monday (or 9.00 am on Tuesday if Monday is a non-school day); and
(b)In week 2, from the conclusion of school on Thursday (or 3.30 pm on a non-school day) until the commencement of school on Friday (or 9.00 am on a non-school day).

5.The children spend time with each of the parties for one half of each school holiday at times to be agreed and failing agreement:
(a)During the term 1, 2 and 3 school term holidays, with the father as follows:
(i)In 2024 and each alternate year thereafter, for the first half of the holidays, commencing from the conclusion of school on the last day of the school term;
(ii)In 2025 and each alternate year thereafter, for the second half of the holidays, concluding at the commencement of school the following term,

with changeovers that do not take place at school to occur at 12 midday on the middle day of the holidays (and if there is no middle day, then the following day) and otherwise with the mother; and
(b)During the long summer school holidays, with each parent on a “week-about” basis, commencing at the end of school on the last day of the school year and concluding at the start of school on the first day of the new school year:
(i)In the 2023/2024 holidays and each alternate year thereafter, with the father in the first week (for seven consecutive nights) and each alternate week thereafter, and otherwise with the mother; and
(ii)In the 2024/2025 holidays and each alternate year thereafter, with the father in the second week (for seven consecutive nights, commencing on the seventh day of the school holidays) and each alternate week thereafter, and otherwise with the mother,

with all changeovers that do not take place at school to occur at 12 midday.

6.The children spend time with each of their parents on occasions of particular significance to the children and of special significance to their parents, at times to be agreed in writing and failing agreement:
(a)During Christmas, as follows:
(i)In even numbered years:
A.With the mother from 12 midday on Christmas Eve until 12 midday on Christmas Day; and
B.With the father from 12 midday on Christmas Day to 12 midday on Boxing Day; and

(ii)In odd numbered years:
A.With the father from 12 midday on Christmas Eve until 12 midday on Christmas Day; and
B.With the mother from 12 midday on Christmas Day to 12 midday on Boxing Day;

(b)The children spend time with the father on Father’s Day from 5.00 pm on the Saturday immediately before Father’s Day until 5.00 pm on Father’s Day, if Father’s Day falls on a weekend the children would otherwise be living with the mother;
(c)The children spend time with the mother on Mother’s Day from 5.00 pm on the Saturday immediately before Mother’s Day until 5.00 pm on Mother’s Day, if Mother’s Day falls on a weekend the children would otherwise be spending time with the father;
(d)On the children’s birthdays, the children spend time with the parent whom the children are not otherwise living/spending time with pursuant to these orders as follows:
(i)If the birthday/s falls on a weekend or non-school day, from 1.00 pm until 6.00 pm; and
(ii)If the birthday/s falls on a school day, from the conclusion of school until 6.00 pm;

(e)On the father and mother’s birthday, the children spend time with the parent whose birthday it is, if they are not otherwise living/ spending time with that parent on the birthday:
(i)When the birthday falls on a weekend or non-school, day from 1.00 pm until 6.00 pm; and
(ii)When the birthday falls on a school day from the conclusion of school until 6.00 pm; and

(f)At such further and/or other times as may be agreed between the parties in writing from time to time.

7.For the purposes of re-establishing the fortnightly schedule of time the children spend with the father following the conclusion of all school holidays, unless otherwise agreed in writing, the children resume spending time with the father each term pursuant to order 4 as if the school holidays did not occur.
8.In the event that the father or mother is unable to personally care for the children at times the children are to be in their care pursuant to these orders, for more than 24-hours in duration at a time, that parent provide the other parent with the first option of caring for the children before making alternate arrangements.

Communication
9.Each parent facilitate the children communicating with the other parent by telephone or Facetime:
(a)Every third night the children are in their care, with calls to be placed between 7.00 pm and 7.30 pm IT BEING NOTED there is no expectation the children will speak for 30 minutes on each occasion, only for as long as they feel comfortable;
(b)At such further or other times as the parties may agree in writing; and
(c)At all other reasonable times requested by the children.

10.If the children will be unavailable to communicate with a parent in accordance with order 9(a) on any given occasion due to other commitments, the parent with the care of the children notify the other parent with as much notice as possible and the call instead take place at the same time the following day, unless otherwise agreed in writing.

Changeover
11.For the purposes of the children moving between the parties’ care pursuant to these orders, changeover take place:
(a)To and from school where practicable; and
(b)Where changeovers do not take place at school each parent (or their agent) collect the children from the other’s home at the commencement of the children’s time with them.

Injunctions
12.The father be and is hereby restrained by injunction from consuming alcohol for 24-hours prior to the children spending time with him and at all times the children are in his care.
13.Each of the father and the mother, by themselves, their servants and agents are hereby restrained from:
(a)Making any derogatory comments about the other parent and/or his or her relatives; and
(b)From commenting, discussing or referring to any part of family law communications, negotiations or proceedings,

to or in the presence of or within the hearing of the children and from allowing any other person to do so.

Sharing of and access to information
14.The parties notify each other of any changes to their telephone numbers, email addresses or residential addresses within 24 hours of such a change.
15.The parties keep each other informed as soon as practicable of any significant injury or significant medical condition suffered or treatment undergone by the children while they are in their respective care and the parties are each permitted to liaise directly with the children’s treating medical practitioner, dental or other health specialist in relation to the children’s health and welfare.
16.The parties advise the other of any medical or health issues relating to the children including, but not limited to providing particulars of any medication that has been prescribed to the child and ensuring that the medication is provided to the other party, at changeover.
17.Each of the father and the mother is at liberty to attend the children's school and extra-curricular activities that parents would ordinarily be able to attend including but not limited to parent teacher interviews, concerts, and competitions.
18.Each of the father and the mother be authorised to receive directly from the children’s school(s), copies of all school notices, information, newsletters and school reports, details of parent/teacher interviews and be at liberty to arrange same by telephone, copies of school photographs and order forms and any information which is relevant to the children’s education at the requesting parties expense.
19.Except in the event of an emergency when the parents are to communicate via telephone, the parties utilise the app “Talking Parents” (or such other parenting communication tool as they may agree in writing) to communicate in relation to the children, at their joint expense.

Provision of court documents
20.The father and the mother are each authorised and encouraged to provide a copy of the family report of Dr B along with a copy of these orders to any psychiatrist, psychologist or counsellor attended by them and/or any psychologist or counsellor attended by the children.
21.The father and the mother are each authorised to provide a copy of these orders to any school, provider of medical or health care, childcare, extra-curricular or sporting activities attended by the children.

Obligations, consequences of contravention and assistance with orders
22.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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 A. HUMPHREYS:
INTRODUCTION

These proceedings concern the children, X (a ten year old girl) and Y (an eight year old boy) (“the children”).
The children’s parents agree on a number of important matters, including that it is in the children’s best interests for them to have equal shared parental responsibility. It is a credit to the parties that they have been able to reach agreement on this and other issues. However, they disagree on the children’s future care arrangements and a small number of other matters.
The father seeks the children spend more time with him, gradually progressing to an equal shared care arrangement. He submits this will allow the children to benefit from meaningful relationships with both parents.
The mother seeks the children live with her and spend four nights each fortnight with the father. This would see a reduction in the time the children currently spend with him, from five nights each fortnight. Of particular concern to the mother is the impact of the father’s mental health and alcohol use on his parenting capacity and the risk of the children being exposed to family violence by the father. She also advocates against an increase in time the children spend with the father on the basis that the corresponding reduction in time the children spend with her would not be in the children’s best interests.
THE ISSUES
The parties identified the documents they relied upon in their case outlines filed prior to the commencement of the final hearing. They each provided a detailed minute of final orders sought by them. Helpfully, a document identifying the orders agreed upon and orders in dispute was also tendered (“the consolidated minute”).[1]
[1] A jointly tendered document, marked as Exhibit “J1”.
From the parties’ court documents, the consolidated minute and discussions with counsel, I identified the following issues require determination:
(a)The amount of time the children should spend with the father;
(b)The frequency and arrangements for telephone and video communication between the children and the father;
(c)If an injunction restraining the father’s alcohol consumption is appropriate for the welfare of the children?
(d)If an order should be made requiring the parties to attend family therapy; and
(e)If an order should be made that the parties continue to attend upon their treating psychologists and for each party to be authorised to obtain information from the other’s psychologist, as has been the case under interim orders.
Determination of some of these issues requires:
(a)An assessment of risk, where the mother alleges the father’s untreated mental health, alcohol use and his diabetes place the children at risk of harm;
(b)How any identified risks to the children can be ameliorated;
(c)Consideration of the father’s parenting capacity in the context of his mental health and alcohol use; and
(d)An assessment of the parties’ capacity to cooperatively co-parent to the extent required to support an equal shared care arrangement.
BACKGROUND & PROCEDURAL HISTORY
The applicant father, Mr Tauro, is aged 48. The respondent mother, Ms Tauro, is aged 44. I refer to them as the father and the mother in these reasons without intending any disrespect to them.
The parties commenced a relationship and began living together in or around 2010 or 2011, married in 2012 and separated on 17 January 2022. They are not divorced.
It is common ground the mother was the children’s primary carer during the parties’ relationship and the father worked in full time employment.
Upon the breakdown of the parties’ relationship, the father moved from the former family home to live with his sister, Ms D, and her three teenage children (the children’s paternal aunt and cousins). The mother remained living in the family home with the children.
The father deposed that shortly after separating, the parties agreed upon an equal shared care arrangement for the children. The mother disputes she consented to this arrangement and said it was imposed upon her by the father. In any event, this arrangement was in place for only a short period of time, the mother deposed approximately two weeks, part of which was during the school holidays.
The mother deposed that at the commencement of the school year in 2022, X was experiencing sadness including at the sudden death of a student at her school (the sister of one of her friends). X expressed to school teachers that she was missing the mother. The mother gave evidence that in early 2022, X became upset and stated to her three times, “I want to kill myself”. X said to the mother, she wanted to “curl up in an egg and never come out.” The mother informed the father of this the following day. She said he initially minimised X’s comments, suggesting it was a normal reaction to a fight with her brother.
On 3 February 2022, the mother proposed a reduction in the children’s time spent with the father, to four nights per fortnight. On 4 February 2022, she organised family dispute resolution (FDR) which the father agreed to attend.
In February 2022, the mother overheard the father communicating with the children by phone, making disparaging remarks about her and her family, and formed the view he was drunk. Following this incident, the mother informed the father the children could spend time with him for dinner only each Wednesday pending mediation. The father deposed the mother thereafter made the children available to spend time with him on ad hoc basis.
On 15 February 2022, the father’s solicitor first corresponded with the mother, alleging she was undermining the children’s relationship with the father.
In early 2022, X suffered an illness and was hospitalised. The mother deposed a paediatrician and a specialist informed her X’s illness could have been attributable to fatigue or stress. X was referred to a psychologist. She does not have any ongoing health concerns arising from this incident.
In March 2022, the parties attended FDR mediation in relation to parenting matters.
In a letter from her lawyer to the husband’s lawyer dated 29 March 2022, the mother alleged the father has a “long-standing history of alcohol abuse” and sought his agreement to a restraint on his alcohol consumption prior to and during the children’s time with him. She proposed the children spend time with the father on an interim basis for three nights each fortnight and that a family report be prepared. In response, the father proposed the children spend five nights with him per fortnight. He did not agree to a total restraint on alcohol consumption as requested by the wife but agreed not to “drink to excess” while the children were in his care.
On 7 April 2022, the father agreed to the children spending three nights per fortnight with him and not to consume alcohol 24 hours before and during the children’s time with him. He foreshadowed commencing court proceedings. The mother requested via her lawyers that the father undertake a hair follicle test within 24 hours. The request was not complied with.
The children spent time with the father for Easter 2022, from 14 April to 19 April.

On 28 April 2022, the father issued parenting proceedings, filing an Initiating Application, seeking interim and final parenting orders. He sought his application be listed with urgency, expressing concern about the mother’s mental health and anxieties impacting her decision-making in respect of the children and having a negative impact on them.
In May 2022, the husband provided the results of a hair follicle test. The test reported no illegal drug use and that his alcohol consumption was in the low to moderate range.
On 6 June 2022, interim orders were made by consent (“the June orders”) confirming the arrangements then in place for the children to live with the mother and spend time with the father for three nights each fortnight. Other orders included an injunction restraining the father from consuming alcohol for 24 hours prior to and during the children spending time with him, requiring him to undertake a further hair follicle test and providing for a family report to be prepared.
The initial family report prepared by single expert psychologist Dr B dated 12 July 2022 (“the initial family report”) reported that X described separation anxiety relating to school and that X missed both of her parents when at school. She said “I want to stay with mum” and “[I] miss mum.” At the same time, X expressed a desire to “spend a bit more time with dad” noting she and Y “spend more time with mum during the week.”
The initial family report included recommendations to support and improve the parties’ co-parenting relationship and concluded with the following recommendations:[2]
a) that there is little to conclude that the children are at an unacceptable risk in the care of either parent, however, should the court have further concern regarding the respondent mother’s claims regarding family violence and the applicant father’s alcohol use, the court may need to decide appropriate measures; b) the father should abstain from alcohol use for at least 24 hours prior to providing care for the children; c) that, there is a stronger clinical argument for the children to remain in the primary care of their mother; d) any changes or increase in time with the father should be gradual; e) [The father], would benefit from psychological support to support his wellbeing, and f) that both parents are consistent with the recommended psychological interventions between households as suggested by [X]’s treating psychologist.
[2] As summarised by the family report writer in the family report dated 1 June 2023
On 21 July 2022, an interim defended hearing was conducted by a Senior Judicial Registrar. Orders made on that day (“the July orders”) included increasing the children’s time with the father from three nights per fortnight to four nights per fortnight. Orders made by consent included an extension of the injunction restraining the father’s consumption of alcohol, for the father to undertake a further hair follicle test and for each party to seek psychological support from a psychologist who was to be provided with a copy of the initial report. The orders authorised each party’s lawyer to obtain information from the other party’s psychologist regarding diagnosis, prognosis, treatment plan and adherence to treatment.
In late 2022, the father obtained rental accommodation nearby to the mother’s home.
In late 2022, the father provided the results from a second hair follicle test. It reported no illegal drug use and that his alcohol consumption was in the low to moderate range.
On 6 December 2022, a further interim defended hearing was conducted by a Senior Judicial Registrar. Orders made on that day (“the December orders”) included an order increasing the children’s time with the father from four nights per fortnight to five nights per fortnight, for the children to spend time with the parties on a “week about” basis over the long summer school holidays and extending the existing injunction restraining the father’s consumption of alcohol. Other interim parenting orders were made by consent. These arrangements have subsequently remained in place and the children continue to spend time with the father pursuant to the December orders.
Over the 2022/2023 summer school holidays, the children spent time with the parties in alternate weeks, pursuant to the December 2022 orders.
Throughout 2023, the children have continued living with the mother and spending time with the father in accordance with the December orders. During school term periods, they spend five nights with the father per fortnight – in alternate weeks, from the conclusion of school on Thursday until before school on Monday; and in the intervening weeks, from the conclusion of school on Thursday until before school on Friday. They have also spent time with him during school periods (for seven nights each term holiday period) and for special occasions.
An updated family report was prepared by Dr B, dated 1 June 2023 (“the family report”).
In mid-2023, the father provided the results of a third hair follicle test. Again, the test reported no illegal drug use and that his alcohol consumption was in the low to moderate range.
The parties’ current circumstances
The father continues to reside in a rental property a short distance from the mother’s home and the children’s school.
He is employed full-time, working for a company. He deposed he works approximately half of the week from home and that the flexibility in his work has enabled him to attend all important events, appointments and activities for the children.
The father admitted having struggled with his mental health during the relationship and subsequently. He deposed that he had sought assistance with his mental health when required. The father also suffers from diabetes which he deposed is well managed by his endocrinologist and general practitioner (GP). I will return to consider these matters in more detail, given the mother has raised concern about them impacting the father’s capacity to safely care for the children.
The mother resides in the former family home, which she retained pursuant to final property orders made by consent on 8 December 2022. Her home is in close walking distance to the children’s school.
She is employed in two roles: as a part-time educator, working approximately five to seven hours per week over Tuesdays and Thursdays during school term periods; and as an administrative officer, working three-and-a-half days per week. The mother deposes to working school hours, being personally able to care for the children before and after school, and to having a great deal of flexibility to support her parenting role.
The mother was diagnosed with a medical condition in late 2021, a chronic condition which she said “can best be described as severe pain”. She deposed the condition is treated by way of antidepressant medication, naturopathic medicine and attending a psychologist.
Pursuant to the July and December orders, the father has been attending upon Ms C, psychologist and the mother has been attending upon Ms E, psychologist. The mother informed the family report writer she is also linked in with a family violence counsellor through F Centre.
Each of the parties informed the family report writer they had not re-partnered.
The children’s current circumstances
X is presently completing grade 4 at G School and the parties agree she is progressing well at school and socially.
X attended upon a psychologist on a regular basis from March 2022 to May 2023. She has expressed a desire to no longer attend and that is supported by her psychologist. The parties support her returning to attend upon her psychologist if she wishes to.
Y has been in grade 2 this year, also at G School. Y has been diagnosed as having autism which is well managed. He is progressing well socially and at school, save that he requires some assistance with his reading and from a speech therapist. The mother deposed to Y recently engaging in physically violent behaviour towards her and X and that he has at times been argumentative and oppositional after returning to her care. The parties have agreed to seek assistance for Y from a child psychologist. It appeared from the parties’ affidavits there was a dispute about the psychologist Y would attend. However, their counsel advised this was not an issue requiring determination, the parties being confident it is something they can resolve themselves.
X and Y each suffer from asthma which is managed well. The children are otherwise in good health.
Both children enjoy various sporting and extracurricular activities. The parties each attend those activities, including at times the children are in the care of the other parent. They work together cooperatively to transport the children to their activities on occasions there are clashes in the children’s schedules.
Both children enjoy good friendships and close relationships with cousins and neighbours, all of whom they spend time with regularly.
The parties each gave evidence about the children’s personalities and the activities they enjoy. I had the very clear impression the children are loved, well cared for and supported by both of their parents to enjoy a diverse range of relationships and experiences.
THE FINAL HEARING
The final hearing was conducted over two days, on 24 and 25 August 2023. Closing submissions were heard on 29 August 2023. The mother was represented by senior counsel and the father by counsel.
Both parties and the single expert family report writer, Dr B, were cross examined. The mother’s psychologist, Ms E, was cross-examined briefly.
THE EVIDENCE
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject‑matter of the proceeding; and
(c)       the gravity of the matters alleged.
In assessing the evidence, I have applied the balance of probabilities as the standard of proof.
I have read all affidavits upon which the parties have relied and the documents tendered on their behalf, including the annexures to the affidavits relied upon. I have also had the benefit of observing the appearance and demeanour of the parties in court and when giving their evidence.
It has not been possible to include every aspect of each of the parties’ evidence in these reasons. However, I have taken all the evidence into account. Statements of fact in these reasons constitute findings of fact. In making my findings I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings.
General observations
I will make some preliminary observations in relation to the evidence of the parties and witnesses before considering their evidence in more detail as relevant to each of the issues requiring determination.
The father
The father was repeatedly deflective and avoidant when asked questions about his mental health, alcohol consumption, behaviour when intoxicated and allegations of family violence, being the key areas of concern to the mother. I observed the father appeared uncomfortable, fidgeting and sighing, when being asked questions about incidents which took place on occasions it was alleged he was intoxicated. In relation to his alcohol consumption, there were inconsistencies in his own evidence and inconsistencies between his evidence and his reports to the family report writer and in subpoenaed records. As explained later in my reasons, I find that when giving his evidence, the father minimised the effects of his consumption of alcohol and the impact on others of his behaviour while under the influence of alcohol.
The mother
The mother was at times defensive when cross-examined. For example, in relation to the symptoms of her medical condition , minimising her symptomatic behaviour towards the father and children and the likely impact of her behaviour on them. She was also reluctant to acknowledge examples of cooperative coparenting between her and the father. She cried and shook her head when the father’s counsel pointed in closing submissions to positive aspects of the parties’ co-parenting relationship. However, she ultimately made appropriate concessions when pressed in cross-examination and I found her evidence to be generally credible.
Ms E
The mother relied on an affidavit from her treating psychologist, Ms E. Ms E deposed the mother has attended upon her “for psychology sessions and counselling to assist her in dealing with her ex-husband… as well as seeking advice on how best to support the children.”
Ms E’s affidavit annexed a letter dated 7 October 2022. At the time that letter was prepared, the mother had attended six appointments with Ms E.
Ms E reported she does “not have a diagnosis for [the mother] other than ongoing levels of stress due to having to deal with the abusive communications from her ex-partner and his family members, that she is concerned she will have ongoing challenges with into the future.” She did not consider the mother requires further counselling, although the mother had further appointments scheduled and deposed she continues to see Ms E from time to time.
The letter from Ms E did not refer to the mother’s medical history, including depression and a medical condition. It did not refer to the initial family report which the July orders required was to be provided to the psychologists attended by the parties.
Ms E was cross-examined only briefly. She gave evidence that she could not recall receiving a letter from the father’s lawyers in November 2022. She gave evidence that does not recall anything from last year and said, “I don’t have a memory of most of what goes on in my work because I have a different client every hour of the day”.
In light of the above, aside from her evidence that she is providing counselling support to the mother, I found Ms E of little assistance. I do not give any weight to her opinion of the mother’s parenting given her role as a treating psychologist providing counselling to the mother.
Family report writer
Ms B (“the family report writer”) is a consultant psychologist. Dr B was engaged by the parties as a single expert. She prepared two expert reports – the initial family report and the family report relied on at trial. Her curriculum vitae was annexed to her affidavits along with her reports.
At the time the family report was prepared, the children were living with the mother and had been spending time with the father “in a 5/9 arrangement” since December 2022.
In relation to the children’s care arrangements, the ultimate recommendation made by Dr B in the family report was:
That, while it is currently in the best interests of the children to remain in their mother’s primary care, the Court may consider an increase in the children’s time with the father in the new year pending improvements in the co-parenting relationship, and the father seeking support for his mental health and parenting skills
The family report writer was cross-examined by counsel for both parties. She considered information provided to her by counsel from the parties’ trial material and their evidence under cross-examination and provided further professional opinion where she was asked and able to do so. I observed an emphasis in her cross-examination on the adverse impact on children of parental conflict, including where there is a lack of consistency and communication between parents, and the potential impact of change for X and Y where they have already experienced a lot of change.
I will refer to the evidence of the family report writer and other recommendations made by her as I turn to each of the matters requiring my consideration.
LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains the statutory provisions applying to the making of parenting orders.
Objects and principles
The objects and principles from which the provisions of Part VII are to be applied are set out in section 60B of the Act as follows and I have had regard to them:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Best interests of children
Section 65D provides the court with power to make such parenting order as it thinks proper, subject to some conditions. Section 60CA makes clear that in deciding whether to make a particular parenting order, the court must regard the best interests of a child as the paramount consideration.
Section 60CC requires that in determining what is in a child’s best interests, the court must consider particular matters which are identified as primary and additional considerations. The objects and principles of Part VII referenced above provide the context in which the considerations in section 60CC are to be examined, weighed and applied in each individual case.
Section 60CG(1) provides that in considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure the orders is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.
In making my decision, I have considered all of the relevant sections of the Act. I am not required to specifically address each provision in my reasons and just because I have not mentioned a specific provision does not mean I have not considered it.
PRIMARY CONSIDERATIONS
The primary considerations are set out in section 60CC(2) as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying and balancing those primary considerations, section 60CC(2A) requires greater weight to be given the second consideration, namely the need to protect the children from harm. However, a careful evaluation and balancing of all considerations is required.[3]
[3] Blinko & Blinko [2015] FamCAFC 146 at [30].
The benefit to the children of having a meaningful relationship with both parents

In Masson v Parsons,[4] the High Court noted that the focus of the objects of Part VII of the Act was on "ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child".
[4] [2019] HCA 21 at [8].
In McCall & Clark,[5] the Full Court approved the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright.[6] In that case, her Honour proceeded on the basis a meaningful relationship is one which is “important, significant and valuable to the child” and that this is a qualitative assessment not a strictly quantitative one.
[5] [2009] FamCAFC 92.
[6] [2007] FamCA 520 at [26].
It is not in dispute that the children enjoy and benefit from a meaningful relationship with both of their parents. The father seeks the children spend more time with him during school term periods, progressing to equal time, so they can further develop and maintain a meaningful relationship with him. The mother submits a meaningful relationship will be maintained by the children spending four nights with the father each fortnight. I am satisfied the children will maintain a meaningful relationship with both parents either way.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In relation to the mother, the father states clearly in his affidavit in reply, “[the mother] is not a risk to the children. She is a loving capable parent.”
In relation to the father, the mother contends in her case outline her case outline:
[…] the Father’s long-standing issues concerning the abuse of alcohol, his poor mental health which pre-existed the relationship, his ongoing need for support for his mental health and to improve his well-being and develop further stress management strategies, and the past incidents of alcohol fuelled family violence perpetrated by the Father towards the Mother in the presence of the children at times, impacts on the Father’s parenting capacity and judgement at times which places the children at risk.
Senior counsel for the mother submitted that where the father attributed his prior problematic behaviour to stress and the single expert gave evidence that the children spending more time with the father would likely increase his stress, the children spending more time with him would expose them to a risk of harm.
In particular, the single expert recommended in her family report:
[…] the Court may wish to consider a graded increase to shared-care arrangements in 2024. This would allow more time for the co-parenting relationship to improve, [the father] to make gains in his parenting skills, seek support for his mental health and the children and [the father] to further consolidate their relationships. Given that the father is seeking a 50/50 arrangement, this is likely to present some practical challenges in addition to an increase in parenting stress for [the father]. In light of the father’s historical difficulties with stress management, it is imperative that he seek consistent support to develop appropriate coping strategies should the children be in his care in an equal shared-care arrangement. The Court is welcome to re-refer the parties for a review of the progression of the children’s time with the father in early-mid 2024.
The mother submits the father has failed to demonstrate he has sought the required assistance and made the necessary gains to support his parenting capacity and, in turn, an equal shared care arrangement.
The mother’s allegations in relation to the father’s mental health, alcohol consumption and family violence are interrelated and my consideration of those matters overlap.
Allegations of family violence
Perpetrated by the father
The mother alleges the father engaged in family violence towards her during their relationship, when under the influence of alcohol, including in the presence of the children.
To the family report writer, the mother described the father’s family violence towards her as follows:
… instances on a “daily basis; put downs; belittled; eggshells; the anger. Anything I did was wrong – it didn’t matter what I did; decisions to do with the kids; constantly living in state of blame – became a norm of absorbing all that. Physical intimidation…he never punched me, but he definitely intimidated me physically and stepped in front of me when he was drunk; stand over me…I was physically shaking…
She deposed the father often yelled at her, belittled her and was verbally abusive towards her. She said he often swore at her in front of the children, saying things like “go fuck yourself.”
The mother’s allegations were supported to some extent by the children’s interviews as described in the family report. For example, X recalled the father “used to get mad” and “me and Y used to be scared of dad, now he’s really good.”
In response to the mother’s allegations he perpetrated family violence towards her, the father deposed:
…the relationship was a fraught and unhappy one. We argued frequently. As deposed, I admit that I raised my voice at her on occasion which I accept was wrong. Although she has denied same, she would frequently ‘lose it’ and yell and scream. This persisted through the relationship and was one of the reasons she continued to seek answers resulting in a diagnosis of [a medical condition] late in the relationship.
In his case outline, the father submitted:
The children were at times exposed to family violence namely verbal arguments between the parents during the relationships. The father has admitted his involvement in this whereas the mother alleges the father was the perpetrator and denies any responsibility.
Perpetrated by the mother / co-violence
When cross-examined by counsel for the father the family report writer shared her opinion that, if true, the mother yelling and swearing at the father may be characterised as co-violence (violence perpetrated by both parties). She explained the context of conflict is important and this was consistent with her concerns around the parties’ dysfunctional co-parenting relationship and the children having been exposed to interparental conflict.
In her trial affidavit, the mother deposed:
In regard to [the father’s] claims … that during the relationship I suffered from “ anger management” , I was “often” verbally abusive towards him and often while the children were present, I deny such claims. Such claims are not true. It was unusual for me to yell during the course of the relationship. … I do not suffer from anger management issues. I would describe myself as calm, self-contained, polite and amiable. While my mood was impacted by [a medical condition] from time to time, I say that this usually led to me being teary, withdrawn and of low mood as opposed to angry and verbally abusive as claimed by [the father]. I admit I was irritable from time to time.
In contrast, the mother’s subpoenaed medical records recorded the mother reported to health professionals in 2013 and 2014 fluctuating mood swings characterised by verbal outbursts, yelling and screaming, poor sleep, agitation, irritability, flat mood and exhaustion with reduced energy. A “flippant remark of self harm” was recorded. In 2014, her GP recorded the mother had reported she “has been snappy and teary and under stress at work with new boss”, that she “takes it out on husband” and that she is not happy with this as a coping strategy. To her GP, the mother said her mood swings were bad, she was really irritable and she could not control her temper at home.
When cross-examined in light of the subpoenaed medical records, the mother admitted she yelled, including “probably” at the father. She admitted calling him an “arsehole”. She said she probably used the “f word” but can’t recall.
The mother admitted her symptoms would have been challenging for the father and created a stressful home environment. She denied the father had tried to understand and cope with her moods but when questioned about a note made by her GP that the husband was “supportive”, she agreed he was supportive but maintained he was not understanding.
Notes taken by the mother’s GP in 2020 recorded the mother had described struggling with her mood and with home schooling, was finding herself yelling. When cross-examined about these notes, she admitted to yelling at the children.
Findings in relation to verbal abuse
I find both parties engaged in family violence during their relationship, in the form of verbal abuse. The children were exposed to this conduct during the parties’ relationship. The parties’ separation has brought an end to this form of conflict between them.
I have addressed the above allegations separately to what I regard as more serious family violence alleged by the mother to have been perpetrated by the father while he was affected by alcohol. I now turn to those allegations.
Father’s alcohol consumption
The mother deposed that early in the parties’ relationship, the father “would binge drink every few week-ends” and that he was verbally abusive and aggressive to her and others. She said that when the children were babies, he didn’t drink as much. However, approximately seven years ago when he started his current job, he began drinking excessively again on Friday and Saturday nights with work colleagues. Approximately four years ago, he began drinking every night, attributing his drinking to stress at work.
The mother identified several significant incidents as examples of the father’s aggressive and abusive behaviour while intoxicated. The evidence in relation to those incidents is addressed below.
Incident in 2012
The mother deposed that in 2012, the father had been drinking and kicked in the front door of his sister Ms D’s home because she would not let him in her house in his drunken state. The mother was inside the house with Ms D and Ms D’s three children. The mother deposed the father was trying to get his car keys (his car was parked at Ms D’s house), and Ms D and the mother refused to give them to him because he was intoxicated. While trying to get his keys from Ms D, the father squashed Ms D against the bench and caused an injury. The police were not called.
The first family report recorded the father’s account of this incident as follows:
[The father] also stated that previous marital conflict had led to [his] conduct which resulted in his siter being “hurt”. [The father] stated that: “[the mother] had called me like 500 times…which led to a massive argument…this is where my sister got hurt…couple of days later I was on the top of a building…” [The father] acknowledged he was intoxicated during this incident and there was an escalation of aggression between the former couple, however, denied he had physically injured his sister beyond her being “[sore]”. [The father] was vague around the details regarding how his sister was hurt. It is noted [the father’s] narrative did not acknowledge wrongdoing on his part.
The father gave the following account of this incident in his affidavit in reply to the mother’s trial affidavit:
Although I deny [the mother’s] version of events, I acknowledge I acted inappropriately on this occasion. I admit [the mother] and I engaged in a verbal argument at [Ms D]’s home. We were verbally abusive to each other and acted inappropriately. [Ms D] told us both to leave then tried to physically move me backwards out of the house to diffuse the argument. [The mother] followed me and we continued shouting at each other. I admit that [Ms D] fell and hurt herself. This was purely an accident. I deny that she sustained ‘[injuries’] or I ‘squashed’ her. I deny being in a ‘drunken state’ although I had consumed alcohol in excess of what was normal for me. We had attended the [H Venue]. [Ms D] and I have a close and loving relationship. I apologised to her and she forgave me. I am remorseful for this and have learned from it.
When cross-examined, the father admitted he “regrettably forced himself into [Ms D’s] house”. He said Ms D tripped over and hurt herself. He admitted he was involved in the altercation but it was not his fault, he didn’t push Ms D and he didn’t intentionally throw her or push her to the ground. The father gave evidence he was trying to get his phone rather than his car keys, that he was going to walk and catch a cab.
The father was cross-examined in relation to his alcohol consumption on this day as follows:
Senior counsel: […] and you were drunk weren’t you?
Father:           I’d said I had been drinking–
Senior counsel: Oh look you’ve been picked up so many times on that it’s tiresome.
Father:           Okay.
Senior counsel: You say in your affidavit I deny being in a drunken state, of course you were drunk, or is that what you do when you’re not drunk? Which is it, your choice?
Father:We had an argument, I went there, we had an argument and it was emotional, it was very emotional for both of us–
Senior counsel: No, I’m talking about whether you were drunk or not, not about the argument.
Father:           Sorry.
Senior counsel: I’m not talking about the argument, I’m taking about, once again, I’ve asked you this question and I know a thousand, well not a thousand, maybe five times – were you or were you not drunk in your view on that occasion?
Father:I said I’ve been, it’s a hard one to answer and the fact I know I’d been drinking, I didn’t think–
Senior counsel: Ok well that’s your answer ‘it’s a hard one to answer’, okay because it appeared from what you earlier said, from when you were trying to pretend – when you were trying to convince the court – that you weren’t after your car keys, that you were going to take a cab or walk home, so you must have thought you were drunk.
Father:Well I knew I wouldn’t be able to drive because I had been drinking, yes.
Senior counsel: Thank you, okay.
Given the vague, deflective and inconsistent accounts given by the father, his failure to adequately explain how Ms D was hurt, the admissions made by him of aspects of this incident but not of any significant wrongdoing on his own part, and where the mother’s evidence was not inherently unreliable or improbable, I accept the I accept the mother’s evidence in relation to this incident.
I find the father sought to minimise his alcohol consumption on this occasion by refusing to admit he was drunk when cross-examined notwithstanding he:
(a)Had previously given evidence “I had consumed alcohol in excess of what was normal for me”;
(b)Had informed the family report writer he “was intoxicated during this incident”; and
(c)Acknowledged drinking to the extent he knew he would not be able to drive.
I also find the father minimised his responsibility for his behaviour on this occasion, including seemingly to attribute blame to the mother for calling him repeatedly, leading to an argument and Ms D then being hurt. The father deposed he “acted inappropriately” but didn’t say how. He gave evidence that he was remorseful and has “learned from it” but didn’t say what he was remorseful for and what he learned from the incident. Accordingly, I am not satisfied he truly accepts responsibility for this incident, is genuinely remorseful or has learned from what occurred and made meaningful changes to his behaviour.
Incident while driving with Ms D in 2017
The mother deposed that in or about 2017, Ms D was driving the father from one function where he had been drinking to another. He was drunk and became verbally abusive in the car, so Ms D pulled over and asked him to get out. He then thumped on the windscreen and was verbally abusive. Ms D called the police. No charges were laid. Neither the mother nor the children were present on this occasion. In response to this paragraph of the mother’s trial affidavit, the father responded only, “I deny this occurred.”
When cross-examined, the father was presented with a referral letter dated mid-2017 from his GP, Dr J, to the K Clinic triage service, in support of a request for outpatient therapy for him. That letter referred to the father as presenting with “recent depression with suicidal ideation without intent.” The letter included the following information:
Last weekend he got drunk and was with his sister with whom he has a close relationship. He began threatening her and was on the bonnet of her car in a rage such that she had to call the police. He would agree that he is an ugly drunk and that this behaviour can never happen again. I believe there have been similar instances in the past.
When cross-examined, the father acknowledged he was thinking of killing himself and that he had been diagnosed with depression. When asked about the above account of the incident involving his sister, the father said the description was inaccurate as he was not on top of Ms D’s car, he was leaning against it, and he did not bang on the windscreen, he banged on the bonnet. When asked if he was drunk, the father answered “Yes, I’d been drinking.”
The father was then taken to Dr J’s surgery consultation which recorded, “last week overdrank then was out of control on his sisters bonnet wanting to get to her -She had to call police.”
The father admitted he had been drinking and said he was upset about the parties’ relationship. He demonstrated in court that he had gestured to Ms D, shaking his hands up towards his shoulders, clenching his fists. When asked if Ms D told him to get out of the car, he said he got out at the lights himself. She pulled over, he walked into the distance and she called the police. When asked again if he was drunk, he answered “Yes, I’d been drinking. You call it drunk, yes”.
When asked why he denied this incident in his trial affidavit, the father said he didn’t punch Ms D’s windscreen but he hit the bonnet. When asked about the reference to “similar instances in the past” in the referral letter from his GP, the father said there had not been other incidents like that.
I find this incident likely occurred as described in the medical records put to the father in cross-examination, that account having been recorded by the father’s GP approximately one week after the incident. Again, I find the father was evasive in giving evidence about this incident, initially by simply denying it, and then when providing his account of what occurred, minimising the extent to which he was affected by alcohol, downplaying his behaviour and failing to take responsibility for and show remorse for his actions.
Threat to take his life in 2021
The mother deposed that in or about 2021, the father was drunk and yelled at her. She described that he was downstairs in their home and she was upstairs with the children, having just put them to bed. The children were scared. The mother and children huddled in X’s bed while the father was screaming and banging around. The mother deposed she opened the door and the father was on the stairs, with a rope around his neck. He yelled at her, “you make me want to kill myself” and “you’re a cunt of a thing”. The mother deposed she had to get the children out of the house but did not want to leave the father alone. She called his mother to come over and she and the children left and spent the night at Ms D’s home. In respect of the impact of this incident on the children, the mother gave evidence X has commented to her on occasions subsequently, “remember that night we had to go and stay at Aunty Ms D’s?” The mother deposed there was not a lot of remorse form the father or insight into how he had terrified the children on this occasion.
The family report writer described the father’s account of this incident in the first family report as follows:
[The father] stated that he had experienced previous suicidal ideation, which he attributed to relationship stress (“thought about ending my life because of the pressure of the relationship”, that he had “put [an object] on my neck…sat there…I was bawling…I heard the kids…I admit it…I lost it a bit…I was yelling…I can’t do this anymore). …

In his affidavit in reply, he deposed:
This occurred after I came home from [a sports match]. Although I admit I had had some drinks with my friends I was not drunk. We had another argument as we often did. This was towards the end of a long period of unhappiness in our marriage. Our marriage was ‘dead’. As previously deposed [the mother] was verbally abusive and at times controlling. There were other times she ignored me completely for extended periods. This was one of those occasions. I felt overwhelmed. The incident was a cry for help. This was an isolated incident. The children did not see this incident. It has never been repeated and never will be. I am much happier. As previously deposed the constant conflict during our relationship did not assist and both [the mother] and I are much happier since separation.
The father did not deny the mother’s account of what occurred in his affidavit. He instead appears to attribute blame to her for having ignored him, the unhappiness in their marriage and their argument, without accepting responsibility for his own actions. Whilst he says the children did not “see” this incident, the mother’s evidence is they heard it and were afraid. This evidence was not challenged. Again, the father admitted drinking but denied he was drunk. He did not give evidence of how much he had to drink and over what period of time to support his assertion.
When cross-examined, the father admitted he put a rope around his neck, although later in his cross-examination he said it was a cord. He said the mother did not see it around his neck. Rather, he told her that is what he did, that “this is where [he] got to”. He admitted he called the mother a “cunt of a thing”. When it was put to him that X heard him on this occasion, he answered she could not see. He admitted the mother and children spent the night at Ms D’s after this incident.
I find the father yelling and threatening to take his own life constituted family violence, which the children were exposed to by hearing him yelling (even if they did not see or hear him threaten to take his life), witnessing the distress of the mother and one another (being huddled in a bed together) and having to leave the home to seek refuge at Ms D’s home.
When asked what effect he thought this incident had on the mother, he said “to come and help me and understand where I was at mentally, with our relationship. She consoled me.”
I find the father again minimised the effect of alcohol on his behaviour on this occasion. He minimised his behaviour and responsibility for his behaviour by deflecting blame to the mother, or at least on the circumstances of their relationship. He failed to acknowledge the seriousness of this incident and failed to demonstrate genuine insight into the impact of his conduct on the mother and children.
The father did not depose to seeking treatment and support following this incident. However, the family report writer recorded in the first family report:
[The Father] stated that he spoke with his [GP] following the incident in 2021, who suggested antidepressant medication. [The father] stated that he wanted to explore social support, exercise and self-care strategies instead. [The father] stated that he is currently supported by a life coach, “[Ms D]” [surname unknown], and has attended four sessions thus far; that the sessions are monthly but was unable to provide further details regarding therapy goals.
The father commenced these proceedings approximately one year later, not referring to this incident or his own mental health issues, yet sought an urgent hearing raising concern about the mother’s mental health. He did not refer to any of these incidents in his affidavit of evidence in chief.
Father’s failure to call Ms D
The father did not call Ms D to give evidence on his behalf notwithstanding their close relationship and her prior involvement in the proceedings, being named as a second respondent for the purposes of the final property orders. When asked why the father didn’t call Ms D to give evidence on his behalf, the father answered, “I’m not sure, I never discussed it with my lawyers”.
Senior counsel for the mother put to the father that he didn’t call Ms D because he knew she would have been asked awkward questions about each of the above incidents, including the mother’s attendance with the children at her home following the father’s threat to take his own life in 2021. The father denied this but failed to provide an explanation as to why he did not call Ms D.
The principle commonly expressed as the “rule in Jones v Dunkel” was summarised by the High Court in Kuhl v Zurich Financial Services Australia Ltd[7] as follows (citations omitted):
… the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. … The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn…
The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. …
[7] [2011] HCA 11 at [63]–[64].
Consistently with the rule in Jones v Dunkel,[8] where the father did not provide a reasonable explanation for not calling Ms D to give evidence about these three incidents, each of which involved her and in respect of which she would have been able to give evidence, I infer Ms D’s evidence would not have assisted the father.
[8] (1959) 101 CLR 298.
Other incidents involving alcohol
The mother deposed to the father mistakenly urinating in the children’s bedrooms and cupboards after returning home drunk and disorientated. The father denied this in his affidavit. However, he admitted in cross examination that he did wake up one night and went into Y’s room but he did not know if he urinated in there. He admitted he urinated in rooms and cupboards. I find it improbable that he would have done so if not drunk and disorientated as alleged by the mother.
The mother gave evidence of an incident in or about 2019 when the father came home drunk and was screaming from the front door for the mother to open the front door, that X woke up and said, “Mum, why is Dad angry at you?” She deposed the father often thumped walls while drunk and the children would ask her what he was doing. She deposed to trying to protect the children from the father’s behaviour while drunk by putting them to bed before he came home and trying to keep him out of their rooms. The father did not respond specifically to this allegation in his affidavit in reply. The mother was not cross-examined about it. I therefore accept this aspect of the mother’s evidence.
The mother deposed that in or about early 2021, the father turned up to a school movie night drunk. On their way home, the father urinated in someone’s yard. Y asked, “Mum, why is Dad weeing in their front yard?” When cross-examined, the father said the mother was not lying but was overreacting. He gave evidence he had a “few mid-strength beers” and that he had urinated behind a tree on the way home. I find this supports the mother’s evidence of the father acting inappropriately when under the influence of alcohol, including in the presence of the children.
Phone call with the children –February 2022
The mother deposed to overhearing the father being drunk while on a telephone call with the children in early 2022. She gave evidence he made several sarcastic and disparaging comments about her and her mother to the children, including as follows:
“well she’s changed”(about me) after the children told him they had eaten treats with sugar and he said to [Y] (in reference to my mother giving him $25 for his birthday) “What, your Nan couldn’t even be bothered going and getting you a present? Well that was really big of her. Wow, what a Nan”. He then continued along those lines of belittling my Mum. The children became uneasy at hearing their Father’s comments.
In his trial affidavit, the father denied that he was “drunk as alleged.” In his affidavit in reply to the mother’s affidavit, he deposed “I admit that I had consumed alcohol but deny that I was intoxicated.”
When cross-examined, the father again denied he was drunk during this call. He initially denied making the comments deposed to by the mother. Senior counsel for the mother then presented the father with copy text messages consistent with the mother’s evidence[9] and his own earlier affidavit in which he acknowledged and expressed regret about making an inappropriate comment during this phone call. The father then sought to explain and justify his comments rather than deny them.
[9] Annexure -2 to his own affidavit filed on 13 July 2022.
I find the father did make disparaging comments about the mother and maternal grandmother to the children over the phone while under the influence of alcohol in February 2022. The father’s response to these allegations was again evasive and deflective and demonstrated a lack of insight into the impact on the children of him denigrating the mother and maternal grandmother in this way.
Father’s attitude towards his drinking
In response to the mother’s allegations about his alcohol use, the father responded in his affidavit in reply:
I refer to [the mother’s] allegations about my alcohol consumption specifically at paragraphs 30 – 50 and elsewhere in her Affidavit. As deposed, I have completed three hair follicle tests provided voluntarily that show I do not consume alcohol to excess. Since separation in January 2022 (19 months) there have been no incidents of concern while the children are in my care. The single incident of concern as alleged by [the other] is a phone call I made to the children in February 2022 while they were in her care. I admit that I had consumed alcohol but deny that I was intoxicated.
In any case, since separation I drink less and drink less frequently. This has had health benefits for me. I have complied with the complete ban on alcohol consumption when the children are with me and 24 hours prior, and drink less at other times.
In relation to the specific indents described by the mother in which she alleged he was drunk, he responded:
[…] I deny drinking to this level […] and deny the incidents described.
During cross-examination, the father was asked if he has a long history of alcohol abuse. He did not directly answer the question, responding, “Did I have a drink? Yes I did. I don’t deny having drinks and drinking.”
A letter from Mr L of the M Health Centre dated 7 January 2013 to the father’s GP, Dr J, recorded “There also may be an occasional issue with alcohol. Mostly he does not drink much but has occasional weekend binges.” When asked to confirm he had told the specialist he had weekend binges, the father answered, “yes”. When asked if he told the specialist this because it was true, he answered obliquely, “I told him I would go to a barbeque on the weekend and drink”. Whilst this letter is from more than ten years ago, I find this evidence significant given the way in which the father minimised his historical drinking behaviour, even when confronted with a record he acknowledged was accurate account of what he had told his doctor.
In the initial family report, the family report writer recorded:
Regarding concerns raised by [the mother] regarding alcohol misuse, [the father] acknowledged these claims, however, similarly, attributed this to marital discord and that he is now a “different person”; [the father] stated, “if I have the kids I don’t drink”. [The father] appeared to acknowledge that alcohol use had previously led to emotional dysregulation. [The father] stated that he has not sought support for his alcohol use difficulties.
For the updated family report, the father informed the family report writer that he was not currently engaged in any substance use except for social drinking and that there was “no drinking at home” or while the children were in his care.
Each of the three hair follicle test reports annexed to the father’s trial affidavit record in respect of alcohol testing, “positive: low to moderate consumption”.[10] A note on the first report records:
The hair sample submitted is moderately damaged and therefore the hair EtG level may underestimate the subject’s consumption. A damaged hair may have a lower EtG than that established for the estimated consumption.
[10] Annexure T-2.
In the absence of expert evidence analysing these test results, I am not satisfied these test results rule out the father engaging in occasional excessive consumption of alcohol (binge drinking).
Ms C’s first letter dated 3 May 2023 records the aims of counselling included “[t]o assess [the father’s] use of alcohol and support any changes required.” The letter reported “[The father has participated fully in the therapeutic process. [The father] has reported limited drinking socially, and never when he is in care of the children.” In her second letter, dated 17 August 2023, Ms C reported “I understand issues of alcohol abuse have been previously raised during the family law proceedings. [The father] has not reported any concerns about dependency on alcohol. He reports consuming low levels of alcohol when not in care of the children. [The father’s] self-regulation demonstrates a mindful and healthy relationship with alcohol.”
In the absence of a more detailed report field on affidavit and Ms C being made available for cross-examination, I am not confident the father has provided Ms C with accurate information about his alcohol consumption and conduct he has engaged in while under the influence of alcohol, to enable her to make an accurate assessment and provide him with the support and assistance he may require.
Father’s mental health
The mother deposed that the father has denied any mental health issues for which he requires ongoing treatment throughout these proceedings. She also deposed that she therefore has no faith that he will obtain appropriate mental health supports from a treating professional into the future, including to address his ability to cope with stress which is one of the preconditions identified by the family report writer before any increase in the time the children spend with the father is considered.
The father deposed in his trial affidavit:
I do not have any chronic or acute mental health conditions. I have been forthcoming about my mental health. I am appropriately supported and will continue to seek support in future as required.
The father deposed to seeking psychological support at various points in his life, including obtaining mental health care plans and referrals to other health professionals. He contended his history of engaging with his GP when required to obtain mental health plans and referrals demonstrated his propensity seek support. However, he did not give evidence of any diagnosed mental health conditions or recommended treatment and did not adduce a report from his general practitioner or from health professionals he had been referred to for mental health treatment and support.
When cross-examined, the father acknowledged that whilst he had raised the mother’s mental health when commencing these proceedings, he did not inform the court of his own history of mental health issues until subpoenaed records revealed that history. He said this was because he wasn’t receiving treatment at the time.
After being presented with subpoenaed records, the father admitted a mental health care plan prepared for him by his GP in 2008, recording that he had been diagnosed with mixed anxiety and depression and had experienced suicidal ideation in the past. He admitted a further mental health plan from 2012 recorded that he had been prescribed medication for depression but gave evidence it had been prescribed “as an option” and he didn’t take it. He admitted that document recorded his alcohol consumption as “occasional” and that he “has had angry outburst due to frustration Needs to improve communication with wife.” When asked by senior counsel for the mother if these records demonstrated the evidence given in his affidavit filed on 29 November 2022 that “I have not been diagnosed with any mental health condition or prescribed any medication” was a lie, the father answered “Well, yeah”.
Subpoenaed surgery consultation notes produced by the medical clinic attended by the father, included a note recorded by his GP, Dr J, on 6 June 2017 that the father “declined antidepressants”, “scared of them”. The father said he did not recall that conversation but it “sounded like” he might have said that to Dr J.
More recently, a letter dated 24 August 2021 from N Hospital Clinical Neuropsychology addressed to the father’s GP, Dr J, recorded that the father “finds his work is inherently stressful, and admits to persistent feelings of depression”.
Pursuant to the July 2022 orders, the father obtained a referral to Ms C, psychologist, and he attended upon her from August 2022, every four to six weeks. In relation to his intentions for counselling with Ms C, the father deposed in his affidavit filed on 13 July 2022:
I will adopt the recommendations proposed [in the family report] to obtain professional support in the interim to prioritise the children’s needs. By doing so I will engage a psychologist to assist in regulating stress or anxieties that have been associated with the separation and assist in managing this, if issues to arise in the future.
The father gave evidence Ms C’s counselling was non-reportable and she therefore provided only attendance letters rather than a report. I have doubts about that evidence given the terms of the July and December orders which provided:
The parties shall authorise their psychologist to provide all information sought by the other party and/or their legal representative regarding their diagnosis, prognosis, treatment plan and adherence to treatment.
The letters from Ms C dated 3 May 2023[11] and 17 August 2023[12] confirmed the aims of the counselling she has been providing to the father (around his use of alcohol and supporting a positive co-parenting relationship and environment) but did not refer to his mental health history, reference a diagnosis, prognosis or recommendations for treatment. The letters from Ms C did not confirm she had been provided with a copy of the family report as required by the orders. Ms C’s letters did not mention working with the father to manage stress or to support his mental health.
[11] Annexure T-1 to the father’s trial affidavit.
[12] Annexure T-BA, to the father’s affidavit in reply.
In relation to the father’s engagement with Ms C, the family report writer opined in the family report:
[…] this engagement appears limited, inconsistent, and he does not have any future appointments scheduled. I am concerned regarding his level of genuine engagement in seeking support for his mental health, and he appears to minimise difficulties with stress management, his health, and substance use.
The father deposed he does not accept the mother has genuine concerns about his mental health or that she believes him to be a risk to the children. At the final hearing, he pointed to her not seeking any information from Ms C as permitted by the July and December orders in support of this submission.
I do not accept the order permitting the mother and/or her lawyers to contact Ms C and obtain particular information from her alleviated the need for the father to put evidence before the court of his positive engagement with Ms C given the issues the subject of these proceedings and recommendations made by the family report writer.
I was not satisfied by the father’s evidence that he has engaged meaningfully with Ms C to the extent of developing genuine insight into his alcohol consumption, mental health difficulties and the impact of his conduct when under the influence of alcohol on the mother and children, including family violence behaviour.

The family report recommended the court may consider an increase in the children’s time with the father in the new year pending improvements in the co-parenting relationship, and the father seeking support for his mental health and parenting skills. In particular, she shared her expert opinion as follows:
Given the recency in changes to the parenting arrangements in December 2022, it is my view that a week-about arrangement for [X] and [Y] would mean significant change and adjustment for [the father] and the children at this time. It is promising that the children and their father have been able to forge a closer relationship and I hope that this can continue with the current arrangements.
… should the Court consider an increase in the children’s time with their father, it is important that this is in the “context of improved coparenting; that the time allocation is feasible for [the father] with his work and extracurricular commitments; and it would be important that the parents have clear communication about the children’s routines and boundaries in each home to maintain stability and avoid confusion for the children” and that “a graded approach” would be best. It is necessary to consider the impacts of cumulative change for these children in the past few years.
[…]
As it stands, the parties have been unable to establish a functional co-parenting relationship. Rather, it appears that there have been some issues where both parties have clearly adopted different parenting approaches, which has caused the children confusion, apprehension, and instability. These are not optimal conditions for the children to commence an even shared care arrangement between homes. My concern is that this will likely present further co-parenting challenges that will ultimately be to the detriment of the children’s wellbeing and development. The children require a seamless transition between homes, where the parties have established consistent conditions, rules, and expectations to provide a sense of emotional safely and stability.
With all the above considered, the Court may wish to consider a graded increase to shared-care arrangements in 2024. This would allow more time for the co-parenting relationship to improve, [Mr Tauro] to make gains in his parenting skills, seek support for his mental health and for the children and [Mr Tauro] to further consolidate their relationships. Given that the father is seeking a 50/50 arrangement, this is likely to present some practical challenges in addition to an increase in parenting stress for [the father]. In light of the father’s historical difficulties with stress management, it is imperative that he seek consistent support to develop appropriate coping strategies should the children be in his care in an equal shared-care arrangement.
Taking into account the expert evidence of the family report writer and balancing all of the considerations explored in my reasons, I am not satisfied an equal shared care arrangement is in the best interests of X and Y. Of those considerations, the key matters weighing against an equal shared care arrangement in my view include:
(a)The emphasis given by the family report writer on avoiding further change for the children;
(b)The father’s failure to readily acknowledge his prior mental health issues and difficulties with alcohol and to seek appropriate supports in respect of those issues. I am concerned about the potential impact on the children of increasing their time spent with the father, with a corresponding increase on the stress that is inevitably experienced as a working parent, when those issues have not been acknowledged or addressed by the father as recommended by the family report writer;
(c)The differences identified by the family report writer and from the parties’ evidence in the in the parties’ parenting styles, which will not provide consistency across their two homes;
(d)Notwithstanding significant improvements in the parties’ communication and co-parenting relationship, there remains ongoing difficulties in that relationship;
(e)As the family report writer observed, the parties’ differing perceptions of their co-parenting relationship is also problematic;
(f)The lack of evidence to demonstrate the required improvement in the father’s attitudes towards parenting and his parenting capacity, including evidence of meaningful engagement in counselling and improved insight into his prior conduct on the mother and children and his role in conflict between the parties;
(g)Evidence of the father continuing to blame the mother for difficulties in their co-parenting relationship;
(h)The lack of trust between the parties as evident from their interactions around the conduct of Mr O; and
(i)The lack of evidence adduced by the father to support the flexibility required in his employment to share the children’s care equally compared with the mother’s evidence that she works only school hours and is available to continue to care for the children before and after school, as she has been doing.
In relation to the father’s work commitments:
(a)The father described to the family report writer adapting his current work routine and schedule to care for the children, stating his place of employment is flexible in supporting this;
(b)The mother disputed this. She deposed that during the parties’ relationship the father was engaged in the same role and that it was a demanding professional role. She said he was required to leave home between 6:00 am and 7:00 am and returned home anywhere from between 5:00 pm and 7:00 pm;
(c)The father’s work has previously been a cause of significant stress to him, as confirmed in subpoenaed medical records;
(d)The mother referred to the father’s contract of employment from 2017 (pursuant to which he worked the long hours she described in her affidavit) and a letter from his work colleague, Mr Q produced by way of disclosure, confirming he remains employed on a full-time basis and that his “current role permits flexibility within the organisation and his ordinary hours (38 hours per week) may differ week to week”;
(e)The mother also pointed to the initial family report, where the children reported being cared for by extended family members when spending time with the father; and
(f)Whilst the father gave evidence in his trial affidavit that he has flexibility in his employment to enable him to care for the children on an equal shared care basis, he did not provide details of that flexibility or of how he would meet that level of care for the children. In his affidavit in reply, he gave evidence that since he started in his role, his team has acquired an additional four team members but that his contract had not been updated to reflect this.
In the absence of evidence to support the father’s assertions, from his employer and psychologist, I am not confident in his capacity to readily accommodate an increase in the time the children spend with him, in the context of his employment or to do so without increasing stress to him.
I considered making an order increasing the children’s time with the father, conditional upon him addressing my key concerns, including attending further targeted counselling. However, given he has failed to acknowledge the difficulties identified during the course of these proceedings and to proactively seek assistance to address those concerns even after receipt of the family report, I cannot have confidence he will actively engage with further supports in the future, in a way to effect meaningful change. Such an approach risks further litigation, in the event of a dispute about conditions being fulfilled or effecting the intended changes. Accordingly, I am not satisfied it is in the children’s best interests to make provision in final parenting orders for a gradual or conditional increase in their time spent with the father.
Consideration of substantial and significant time
I do consider it is in the children’s best interests to spend substantial and significant time with the father.
Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)      the time the child spends with the parent allows the parent to be involved in:
(i)        the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The children’s current care arrangements meet these requirements, providing the children with the benefits of spending time with the father mid-week and on weekends, during school holidays and on special occasions. The father has the opportunity to be engaged with the children at school by collecting them from school on three occasions each fortnight and delivering them to school on three occasions each fortnight and I find this is of benefit to the children, enriching their relationship with him.
The family report assesses the children have responded well to this arrangement. The children are reported by both parents to be doing well, save for the mother’s reports of some dysregulation. When cross-examined the mother confirmed she finds the children are tired with the current arrangements, on Mondays in particular. She described the current arrangement (the extension of time from four to five nights per fortnight) to be “destabilising”. She pointed to Y’s recent behaviour and the parties’ agreement for him to see a psychologist. However, she conceded this is not necessarily referable to the children spending an additional night with the father per fortnight and could be, for example, another stage adjusting to the separation. She acknowledged the children are doing well socially and academically.
I do not consider it in the children’s best interests to reduce the time they spend with the father as proposed by the mother. Her proposal would see the children spend Thursday nights with the father only in alternate weeks, rather than every Thursday. This would in my view diminish the children’s experience of sharing days with the father that do not fall on weekends and the benefits of him being actively involved in their schooling and activities on those days and the benefit to the children identified by the family report writer of spending more routine time with the father, as well as “fun” time. I also see a benefit to the children in spending time with the father on the same day (Thursday) each week, so the father can establish a regular routine for them on that day if he wishes to.
I am not persuaded by the mother’s evidence that the children are too busy when in the father’s care, causing them to be tired. This may happen occasionally, for example when playing Sunday sports tournaments as deposed by the mother, but I accept the father’s evidence there are significant benefits to the children of being involved in events like that from time to time. That the father was reluctant for Y to attend a sports activity on Thursday nights as proposed by the mother so he and the children could spend “stand alone” time together demonstrates he too is mindful of the children having some down time, to relax with him. Whether or not the children attend an activity with the father on Thursdays, I find it is unlikely the children spending five nights per fortnight with the father rather than four as proposed by the mother is likely to have a significant impact on how tired they are.
In relation to the configuration of time, the family report writer recommended time in alternate weeks so the children have time to “touch base” with each parent each week. The orders I make, consistent with the children’s current care arrangements, will provide for that.
Maintaining the children’s current arrangement also means the “gap” between the children spending time with the father from week two to week one is six days, rather than seven days on the mother’s proposal. I find this preferable given both children reported to the family report writer missing both parents when not with them.
These arrangements have been implemented for almost one year pursuant to the December orders and have been shown to be reasonably practicable.
In relation to the alternate weekends the children spend with the father, I consider it is in the children’s best interests for that time to be extended to include Monday night if Monday is a public holiday or another non-school day, such as a curriculum or student-free day if the father can accommodate that with his work. I consider changeover on Fridays should remain at 9:00 am if Friday is a non-school day so the children can also benefit from occasional long weekends with the mother.
OTHER ORDERS
School holidays
The father’s proposal was for an equal shared care arrangement, on a “week about” basis, continuing through school holiday periods. The mother proposed the children spend the first seven nights with the father during each school holiday period.
The mother was asked in cross-examination if she would agree to the children spending half of the school holidays with the father. In this context, it was explained to her that given school term holiday periods include three weekends, so are usually 16 days long, this would be eight consecutive nights. The mother said she would need time to think about that and didn’t answer the question put to her. I was troubled the mother felt she had to think about whether it would be in the children’s best interests to spend even one additional night with the father during the school holidays, without explaining why.
The difference is small, one night for most term holidays, but might be greater where Easter extends the school holidays or if the children later attend a school with term holidays of three weeks. Whilst the children reported missing both parents when not with them, no concern was raised about the children spending extended periods of time away from either parent during school holidays under the interim orders. I therefore see no reason why the children should not benefit from spending half of each school holiday period with each parent.
In respect of the long summer school holidays, the mother proposed the agreed alternate week arrangement always commence with the children spending time with the father and concluding with the children returning to her care at 12 midday the day before school resumes in the new year. It was put to the mother that the return to school is an exciting time of the year and she was asked why it was in the children’s interests to spend that time with her every year. She gave evidence the children are usually tired and in need of emotional support. When asked if she thinks the father can see and manage that, she answered he “does the opposite” of settling them before school but did not raise any particular concerns impacting the children’s welfare.
I consider it would be of benefit to the children to share the experience of both the end of school term and the start of school term with each of their parents. Accordingly, I will make the orders providing for the children to spend time with the father for half of each school term holiday period, alternating between the first and second half of the term holidays. I will also provide for the children’s “week about” time with the parents over the long summer school holidays to alternate in alternate years and to continue until the commencement of the first day of school. This will ensure it is not always the children’s time with one parent interrupted by Christmas or other occasions that coincide with school holidays and that the children are able to share with both parents the experiences of end of school term and beginning of the school year.
Telephone and video communication
The father seeks an order that the children communicate with the other parent each third day they are not in their care, between 7:00 pm and 7:30 pm. The mother seeks an order that the children communication with each parent upon their request.
The mother gave evidence in respect of the interim order governing the children’s phone and video communications with the father, that the children sometimes do not wish to speak to him for thirty minutes, because they are eating dinner, tired or have homework commitments but that the father insists the calls run for 30 minutes. The mother deposed the father’s rigidity has resulted in the children being reticent to phone him. She gave examples where the phone calls and communications around the phone calls have been problematic and resulted in the children being upset. It was also submitted on her behalf that the children see both parents regularly at their sporting activities, when the care of the other parent, and that this reduces the need for regular scheduled telephone communication between the children and each parent.
I don’t consider seeing a parent at a sporting activity in the presence of other children and parents and in the flurry of activity provides the same opportunity for communication with a parent as a conversation by phone or video. I do consider it is in the children’s best interests to have a scheduled opportunity to touch base with their parents when spending extended time away from them.
I will make an order for the children to communicate with each parent as proposed by the father but making it clear there is not an expectation the children are required to communicate for 30 minutes on each occasion and only for as long as they are comfortable and interested to do so. Otherwise, there is a high prospect the children will not enjoy and benefit from the calls. I will also make provision for the calls to take place the following day if the children are expected to be unavailable to communicate with a parent on any given occasion, unless otherwise agreed, in the hope of avoiding disputes over rescheduling of calls. That being said, it is my expectation that the parent with care of the children will prioritise and encourage these calls.
First option to care for the children
I do not consider it is contrary to the children’s best interests for the father to seek occasional assistance from his family to enable him to attend work, or other commitments. It is not in dispute the children have a close relationship with their extended family members. The mother acknowledged the parties relied on this support during their relationship and I consider it appropriate and in the interests of the children if the father’s family continues to assist him from time to time. Likewise in respect of the mother and her family.
Nevertheless, I will make an order providing for the parties to afford one another the first opportunity to care for the children if they are unable to care for the children for more than 24 hours because it has been agreed by them. However, this order is not to preclude the parties from arranging sleepovers or time away for the children with friends and other family members, which I consider to be of benefit to the children and important in maintaining those relationships and fostering the children’s independence.
Resumption of time each term
The mother seeks an order providing for the resumption of the children’s time with the father each school term, with that time to continue as if the school holidays did not occur. I find it is in the children’s best interests to make such an order, to apply in default of an agreement to the contrary, to ensure there is no dispute about resumption of the children care arrangements each term. I find the benefit to the children of avoiding conflict between the parents about such matters outweighs the potential disadvantage to them of this arrangement resulting in the children spending an extended block of time with one parent and a corresponding extended absence from the other parent if the parties are unable to sensibly make alternate arrangements by agreement.
Family therapy

The family report writer recommended the parties may benefit from family therapy to improve their co-parenting relationship. The father seeks an order requiring the parties to attend family therapy with Ms R, another agreed therapist or failing agreement a therapist nominated by the family report writer.
When I asked the mother about the possibility of family therapy, she expressed concern that because of his lack of acceptance and responsibility for his own conduct, the father would see the family therapy as aimed at “working on” her. She also expressed concern that it would be too difficult for her, given the impact of the father’s past behaviours on her.
In the absence of agreement and given the mother’s evidence, I do not make an order compelling the parties to attend family therapy. This may be something they wish to explore in the future if the father has attended further individual counselling and is able to demonstrate greater insight into the impact of his conduct on the mother and children and the mother feels reassured about attending.
Individual therapy
In his case outline the father proposed an order that the parties continue to attend upon their treating psychologists and that each party be authorised to obtain information from the other’s psychologist.
I consider it would be of benefit to the children for both parties to seek further counselling from their psychologists following the finalisation of these proceedings. However, I will not mandate it on the basis that further counselling is unlikely to be of utility unless voluntary. I will make an order authorising the parties to provide a copy of the family report and the final orders I make to their treating professionals if they elect to pursue that further support.
I invited submissions in relation to the father attending targeted drug and alcohol counselling. Senior counsel for the mother submitted that even if the father agreed to such an order, the court should have no faith in his commitment to want to change given the evidence before the court. I agree with that submission. The father has had ample opportunity during the course of these proceedings to acknowledge the impact of his alcohol consumption on his behaviour and to seek professional assistance. Again, I consider it would be of benefit to the children if he was to take responsibility for his prior actions and voluntarily seek that assistance but I will not mandate it, finding the children’s safety will be adequately safeguarded by his compliance with the injunction I have made restraining his consumption of alcohol prior to and during the children’s time with him.
Provision of documents
I will also make an order authorising the parents to provide a copy of these orders to any school and provider of childcare, sporting or extracurricular activities so there is no doubt they may do so, and a copy of the family report and the orders to any psychologist or counsellor attended by the children to assist in their support.
CONCLUSION
For all of the above reasons, I am satisfied the orders set out at the commencement of these reasons are in the best interest of the children and make orders in those terms.

I certify that the preceding two hundred and eighty-six (286) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys.
Associate:
Dated: 21 December 2023

File number(s):	MLC 4394 of 2022
Judgment of:	JUDGE A. HUMPHREYS
Date of judgment:	21 December 2023
Catchwords:	FAMILY LAW – PARENTING – two children aged eight and ten – parties agree to equal shared parental responsibility – father seeks orders for children’s time spent with him to progress to equal time – mother seeks a reduction in the time the children spent with the father, from five to four nights per fortnight – mother contends father’s mental health and alcohol consumption poses a risk of harm to the children and affects his parenting capacity – where father minimises prior alcohol consumption and demonstrates a lack of insight into the impact of his conduct on the mother and children – injunction restraining father’s consumption of alcohol – orders made for the children to continue to spend time with the father for five nights each fortnight.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA, 65DAC
Cases cited:	Blinko & Blinko [2015] FamCAFC 146 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 2 Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93–405; [2009] FamCAFC 92
Division:	Division 2 Family Law
Number of paragraphs:	286
Date of hearing:	24, 25 & 29 August 2023
Place:	Melbourne
Counsel for the Applicant:	Ms Goldthorp
Solicitor for the Applicant	Freeman Family Law
Counsel for the Respondent	Ms Smallwood SC
Solicitor for the Respondent	Carew Counsel Solicitors

MLC 4394 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR TAURO Applicant
AND:	MS TAURO Respondent

ORDER MADE BY:	JUDGE A. HUMPHREYS
DATE OF ORDER:	21 DECEMBER 2023