Walter & Stiller
[2024] FedCFamC1F 575
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Walter & Stiller [2024] FedCFamC1F 575
File number(s): SYC 7851 of 2022 Judgment of: BOYLE J Date of judgment: 30 August 2024 Catchwords: FAMILY LAW – PARENTING – Where the child lives with the father and spends time with the mother – Where each of the parents seek that the child live with them on a final basis – Where there is a risk to the safety of the child arising from the mother’s husband’s abuse of alcohol, and the consequent pressure that places on the mother’s capacity to parent – Mitigation of risk – Where the court finds that it is in the child’s best interests for her to reside with her father and spend time with her mother subject to injunctions - Where the child is of Aboriginal heritage– Where orders are made to ensure her connection to her culture. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61D, 61DAA
Mental Health Act 2007 (NSW)
Cases cited: Isles & Nelissen (2022) FLC 94-042
M v M (1988) 166 CLR 69; [1988] HCA 68
Division: Division 1 First Instance Number of paragraphs: 160 Date of hearing: 14, 15, 16, 21 August 2024 Place: Sydney Counsel for the Applicant: Ms Meares Solicitor for the Applicant: FB Legal Counsel for the Respondent: Mr Juhasz Solicitor for the Respondent: Gad & Co Lawyers Counsel for the Independent Children's Lawyer: Mr Clack Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 7851 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WALTER
Applicant
AND: MR STILLER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Decision making
2.The parties shall have joint decision-making responsibility for all major long-term issues for the child, X, born 2016.
3.The father shall, within 7 days from the date of these orders, make an appointment for the child to see a paediatrician, and the parties shall ensure that the child attends that appointment and the parties follow all recommendations made by the paediatrician.
4.Both parties shall ensure that X attends upon her counsellor Ms B or such other counsellor as Ms B may recommend, as reasonably directed by the counsellor.
Live with
5.X shall live with her father.
Spend time school terms
6.Subject to the injunctions contained in Order 25, X shall spend time with the mother during the school terms in alternate weeks as follows:
(a)From 10.00 am on Saturday 31 August 2024 until 5.00 pm on Sunday 1 September 2024.
(b)From the conclusion of school (or 3.00 pm) on Thursday 5 September 2024 until the commencement of school (or 9.00 am) on Friday 6 September 2024.
(c)From the conclusion of school (or 3.00 pm) on Friday on 13 September 2024 until 5:00 pm on Sunday 15 September 2024.
(d)From the conclusion of school (or 3.00 pm) on Thursday 19 September 2024 until the commencement of school (or 9.00 am) on Friday 20 September 2024.
(e)From the conclusion of school (or 3.00 pm) on Friday 27 September 2024 until the commencement of school (or 9.00 am) on Monday 30 September 2024.
(f)Thereafter, the mother shall spend time with X as follows:
(i)In week one, from Thursday after school (or 3.00 pm) until Friday before school (or 9.00 am).
(ii)In week two, from Friday after school (or 3.00 pm) until Monday before school (or 9.00 am).
(iii)At such other time as may be agreed in writing between the parties.
School holidays
7.The school holiday period shall be defined as commencing at the conclusion of school on the last day of term and concluding at the commencement of school on the first day of the following term.
8.Subject to the injunctions contained in Order 25, X shall spend time with the parties during the Term 3 school holidays in 2024 in accordance with Order 6(f).
9.Subject to the injunctions contained in Order 25, commencing Term 4 in 2024, X shall spend time with the parties during the school term holidays:
(a)X shall spend time with the mother for one half of the school holidays at the end of Term 1, 2 and 3 as agreed, and failing agreement, for the first half being from the conclusion of school on the last day of term until 4.00 pm on the middle day of the holidays (or if there are two middle days, on the earlier of the two).
(b)Until X reaches 10 years:
(i)In even numbered years, X shall spend time with each of the parties for one half of the Christmas school holidays at the end of Term 4 as agreed, and failing agreement as follows:
A.For the first 14 days, from the conclusion of school on the last day of term, with the mother;
B.For 14 days with the father;
C.For 7 days with the mother;
D.For the remainder of the school holiday period with the father, until the commencement of school on the first day of term.
(ii)In odd numbered years, X shall spend time with each of the parties for one half of the Christmas school holidays at the end of Term 4 as agreed, and failing agreement as follows:
A.For the first 14 days, from the conclusion of school on the last day of term with the father;
B.For 14 days with the mother;
C.For 7 days with the father;
D.For the remainder of the school holiday period with the mother, until the commencement of school on the first day of term.
(iii)For the purposes of Orders 9(b)(i) and 9(b)(ii), changeover shall occur at 4.00 pm at the conclusion of each spend time with period.
(c)After X reaches 10 years, X shall spend time with the mother:
(i)In even numbered years, for one half of the Christmas school holidays at the end of Term 4, as agreed, and failing agreement, for the first half being from the conclusion of school on the last day of term until 4.00 pm on the middle day of the holidays (or if there are two middle days, on the earlier of the two).
(ii)In odd numbered years, for one half of the Christmas school holidays at the end of Term 4, as agreed, and failing agreement for the second half being from 4.00 pm on the middle day of the holidays (or if there are two middle days, on the earlier of the two) until the commencement of school on the first day of term.
Special Occasions
10.Subject to the injunctions contained in Order 25, X shall spend time with the parents on special occasions as follows:
(a)If Mother's Day falls on a day when X would otherwise spend time with the father pursuant to these Orders, the mother shall spend time with X from 5.00 pm on the day before Mother's Day until the commencement of school (or 10.00 am if a non-school day) the day after Mother's day.
(b)If Father's Day falls on a day when X would otherwise spend time with the mother pursuant to these Orders, the mother's time shall be suspended from 5.00 pm the day before Father's Day until the commencement of school (or 10.00 am if a non-school day) the day after Father's day.
(c)On X's birthday, the father shall make X available to spend time with the mother from the conclusion of school until 7.30 pm to enable the mother to enjoy a meal with X and then return X to the father. If X's birthday falls on a weekend then such arrangement shall take place from 3.00 pm until 7.30 pm.
(d)If the mother's birthday falls on a day when X would ordinarily be in the care of the father, the mother shall spend time with X from the conclusion of school (or 3.00 pm if there is no school) until 7.30 pm.
(e)If the father's birthday falls on a day when X would ordinarily be in the care of the mother, the father shall spend time with X from the conclusion of school (or 3.00 pm if there is no school) until 7.30 pm.
(f)At such other times as may be agreed from time to time by the mother and father in writing.
11.Should J’s birthday fall on a weekend when X would ordinarily spend time with the mother pursuant to these Orders, the mother’s time shall be suspended from 5.00 pm until 9.00 am on on the relevant weekend.
Changeover
12.Unless otherwise agreed in writing, where changeover does not occur at school, changeover shall occur at McDonalds Family Restaurant on C Street in City D NSW.
Culture
13.The father and mother shall ensure that X's cultural identity is facilitated and that she attends cultural events including NAIDOC day celebrations, ATSI Kids day, Sorry Business and Invasion Day.
14.Both parties shall engage with X to support her Indigenous identity, attending community events, cultural events, activities, and programs and facilitating learning in relation to her cultural identity.
Communication
15.Unless otherwise agreed, X shall have telephone/Facetime communication with the mother each Monday and Wednesday between 6.00 pm to 6.30 pm with the mother to initiate such communication by calling the father's telephone as advised and the father shall ensure that X is made available to communicate with the mother.
16.Unless otherwise agreed, X shall have telephone/Facetime communication with the father during all school holiday periods each Monday and Wednesday between 6.00 pm to 6.30 pm with the father to initiate such communication by calling the mother’s telephone as advised and the mother shall ensure that X is made available to communicate with the father.
17.Both parties shall facilitate X contacting the other parent at any reasonable time she may request.
18.To facilitate Orders 16 and 17, each parent shall ensure X has access to a working telephone or iPad.
19.Other than for the purpose of complying with Orders 16 and 17, communication between the parties shall occur as follows:
(a)The parties communicate with each other through the "Our Family Wizard" application.
(b)Each parent is responsible for payment of the Our Family Wizard application on their own device.
(c)In the event the Our Family Wizard application is not working, the parties shall communicate by text or email.
(d)In the event of emergencies, the parties shall communicate directly by phone.
20.Both parties shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other party within 48 hours of any change to either their residential address or telephone number.
21.Each party is permitted to communicate directly with X's schools, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about X's progress and this Order shall constitute sufficient authority for such communication.
22.Both parties shall keep the other advised of the health of X including any serious illness, medication that may be prescribed from time to time, or hospitalisation of X as soon as reasonably practicable and to allow the other party to visit X if hospitalised.
23.Each party is at liberty to attend events to which parents are ordinarily invited at X's school and extra-curricular organisations notwithstanding the event may fall within the other parent's time with X.
Injunctions
24.Both parties are restrained by injunction from:
(a)Denigrating the other parent or members of the other parents' family in the presence of hearing of X, and the parents shall each do all acts and things reasonably necessary to prevent any other person doing so.
(b)Discussing these proceedings or any issues arising out of these proceedings with or within the hearing of X or permitting any third party to do so, or showing X any document filed in these proceedings.
(c)Making critical or derogatory remarks on social media, such as Facebook, X (formerly known as Twitter) or Instagram in relation to each other, the other's family, or referring in any way to the proceedings.
(d)Physically chastising X.
(e)Consuming illicit substances while caring for X.
(f)Passing messages to the other parent through X.
25.The mother is restrained by injunction from:
(a)Allowing X to be in a car which is being driven by Mr Walter born in 1988.
(b)Allowing X to be in the presence of Mr Walter if he has consumed any alcohol up to 12 hours prior to or during the period X is in her mother's care.
(c)Until the commencement of Term 1 in 2025, allowing Mr Walter to be present in the home between the hours of 8.00 pm and 7.00 am during any time that X spends in her care pursuant to these orders.
26.That until 30 August 2027, the father may request that the mother provide to him the results of carbohydrate-deficient transferrin ("CDT") tests undertaken by Mr Walter on up to five (5) occasions each year, and for this purpose:
(a)The mother shall request that Mr Walter undertake a CDT test within 24 hours of a request being made by the father.
(b)The mother shall provide to the father the results of the CDT test 14 days after a request being made.
27.Should the CDT test results provided by Mr Walter in accordance with Order 26 provide a result that exceeds 1.8%:
(a)The mother shall be restrained by injunction from allowing Mr Walter being present in the home between the hours of 8.00 pm and 7.00 am if X is staying overnight with the mother pursuant to these Orders.
(b)The mother shall provide to the father CDT test results provided by Mr Walter once per month for a period of at least three months.
(c)The injunction in Order 27(a) shall remain in force until:
(i)the mother provides to the father two consecutive monthly CDT test result provided by Mr Walter that are less than 1.8%; and
(ii)the mother provides to the father documentation from a rehabilitation facility confirming that Mr Walter has completed a rehabilitation program.
28.The father shall complete a Men's Behaviour Change programme within 12 months from the date of these orders and provide a copy of the certificate of completion to the mother.
THE COURT NOTES THAT:
A.Through counsel for the mother Mr Walter agreed to undertake CDT tests as required.
B.The parties agree that a negative CDT test result is anything that is less than 1.8%.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walter & Stiller has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BOYLE J:
These are parenting proceedings with respect to the one child of the parties, X aged 8 years.
X presently lives with her father in City D and spends supervised time with the mother for a period of two hours each week at E Family Services in City D.
There are a number of concerns raised by each of the parents with respect to X’s safety in the care of the other parent.
The father seeks orders for sole decision making authority for X. He seeks orders that she live with him and spend time with the mother if she lives in City D on alternate weekends from Friday to Monday, half of the term school holidays, and 14 days in January each year. The father’s proposed orders for the mother’s time are predicated on injunctions with respect to the mother’s husband Mr Walter, restraining her from allowing X to be in a car driven by him; allowing X to be in his presence if he is consuming alcohol, or within 12 hours of him doing so; that he not be in the house between 8:00 pm and 7:00 am until X is 12 years; that X is not alone with him until she is 12 years.
The mother seeks orders for sole decision making authority for X and that she live with her. She seeks orders that she be permitted to relocate with X to City F. The mother proposes that X spend time with the father for half the school holidays. The orders sought do not specify any time with the father during the school terms but provide an option to the father to request that X be made available to spend time with him. The mother proposes that if she is not permitted to relocate with X to City, that X live with her and spend time with the father each alternate weekend from Friday until Monday.
The Independent Children’s Lawyer seeks orders that the father have sole decision making authority, but that he be required to consult with the mother with respect to decisions concerning major long term issues for X. The Independent Children’s Lawyer seeks orders that X live with the father and there be a progression of the mother’s time with her, with an end point of alternate weekends from Friday to Monday. The Independent Children’s Lawyer sought orders in the same terms as the father with respect to school holidays and the restrains on Mr Walter as set out above.
The parties agree on orders that the father may request the mother provide to him carbohydrate‑deficient transferrin (“CDT”) tests from Mr Walter. The mother proposes that testing occur on two occasions each year for the next three years. The father proposes that testing occur on three occasions each year for the next two years. Should the test provide a result of over 1.8% on the mother’s orders, Mr Walter must be absent the home between 8:00 pm until 7:00 am whilst X is in her care, for three months, and he shall provide a CDT test every month for three months.
BACKGROUND
The mother is 32 years old, and the father is 31 years old.
The parties met in 2015 when living in City F. They commenced a relationship shortly thereafter. They began cohabitating in Town G. They were married in 2016.
There is one child of the parties, X who is 8 years old. The mother is an Aboriginal woman, and X is an Aboriginal child sharing her mother’s heritage.
The mother spent time in state care as a child. Her family was disconnected from their culture. She continues to explore her Aboriginal heritage as an adult. She wants to travel on country with X, and connect her to elders and the stories of her people so that X can experience her culture in a real and tangible way. Prior to X living with her father, the mother and X have engaged in these experiences. The mother has provided X with written words and phrases in language, which the father has assisted X display in her bedroom.
The mother’s evidence is that the parties separated in January 2020; the father’s evidence suggests March 2020. Nothing turns on the discrepancy in dates.
Post-separation, the father resided with his parents in Town G for several weeks with X. The mother was residing in City D. This occurred at the start of the COVID-19 pandemic, when not much was known about the virus. I accept that the parties agreed that X would be safe there.
After a period of some weeks, X was spending time in a shared care arrangement between her parents. This varied but was largely four nights per week with her mother, and three nights per week with her father.
The parties both started new relationships following separation. In 2020, the father commenced a relationship with Ms H. They are engaged. They have a child J, now aged one.
In August 2020, the mother commenced a relationship with Mr Walter.
In mid-2020, the father moved back to City D. The parties continued a shared care arrangement, with generally more time for X with the mother. In mid-2021, Final Consent Orders were made in the City D Local Court in relation to parenting. The Orders provided for X to live with the mother, and spend six nights each fortnight with the father. The parties were restrained from relocating with X to City F unless agreed, or with leave of the court.
In late 2021, the mother and Mr Walter started living together. They married in 2022.
The mother was diagnosed with post-traumatic stress disorder (“PTSD”) and attention deficit hyperactivity disorder (“ADHD”) in 2022. A short time later, she was diagnosed with autism spectrum disorder (“ASD”).
On 7 November 2022, the mother filed an Initiating Application seeking to discharge the Final Orders. She sought Orders to relocate X to City F. Mr Walter has family in City F, and the mother has previously lived there.
On 23 January 2023, the matter was before the Court. Orders were made granting leave to the mother to proceed with the application.[1]
[1] Rice & Asplund (1978) 6 Fam LR 570; [1978] FamCA 84.
In mid-2023, Mr Walter was admitted to K Hospital for mental health issues, including alcohol abuse. The mother contacted the father and advised that Mr Walter had been caring for X, and driving her in a motor vehicle after consuming alcohol. The mother told the father that Mr Walter had threatened to kill the father and himself.
The father retained X in his care. The parties’ relationship deteriorated, and has been poor ever since. The mother regards the father as exploiting her honesty about the situation with Mr Walter. The father regards his behaviour as protective of X.
A series of interim orders were made thereafter altering X’s time between her parents. From 16 June 2023 the mother has been restrained from bringing X into contact with Mr Walter.
From 21 July 2023 X lived with her mother pursuant to interim orders, and spent time with her father six nights each fortnight.
In February 2024, the mother dropped X off to the father’s home with her belongings. Mr Walter had relapsed at this time.
On 22 March 2024, Interim Orders were made for the father to have sole parental responsibility for X, and for X to live with him. Orders were made for the mother to spend supervised time with X. The mother was restrained from bringing X into contact with Mr Walter.
In early 2024, Mr Walter started attending the N Program. This is a men’s behaviour change programme.
DOCUMENTS RELIED UPON
The mother filed a Case Outline Document identifying the documents relied upon:
(a)Minute of Orders filed 12 August 2024.
(b)Affidavit of Ms Walter filed 26 July 2024.
(c)Affidavit of Mr Walter filed 26 July 2024.
(d)Notice of Risk filed 6 November 2022.
The father filed a Case Outline Document identifying the documents relied upon:
(a)Amended Response to Final Orders filed 3 April 2023.
(b)Affidavit of Mr Stiller filed 18 July 2024.
(c)Notice of Child Abuse, Family Violence or Risk filed 28 November 2022.
(d)Affidavit of Ms H filed 18 July 2024.
The Court was assisted by a Family Report prepared by Regulation 7 Family Consultant Ms L dated 11 March 2024. Ms L was cross-examined by all parties.
Each of the parties were cross-examined. The mother’s husband Mr Walter was cross‑examined. The father’s partner Ms H was not required for cross examination.
On 27 August 2024, the father filed an Application in a Proceeding seeking to re-open the evidence in this matter. He sought to rely upon documents annexed to his affidavit filed in support of that application, being a letter from the M Health Centre dated April 2024, an email from the Local Health District dated August 2024, a letter from the Local Health District dated April 2024 and a letter from the Local Health District dated August 2023. The Independent Children’s Lawyer supported the application.
The mother opposed the application. I admitted those documents into evidence on the basis that they provide a more complete picture of X’s paediatric assessment, there is no negative inference to be drawn about the mother and she is not prejudiced by the admission of the documents. They put into context the criticism levelled at the father for not following up orders requiring a further paediatric assessment.
A number of documents were tendered, and marked as exhibits. I have read and had regard to those documents as well as the material relied upon by each of the parties.
THE LAW
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the matters to be considered in determining what is in a child’s best interest:
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—
also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views;
(iii) to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
In considering what orders would promote the safety of X, the assessment of risk is relevant.[2] The analysis requires consideration of past conduct to assess whether there is a risk to X in the care of either of her parents and the magnitude of that risk. The assessment of risk is an “evidence based conclusion”.[3] The court must then consider whether that risk is capable of being mitigated.
[2] M v M (1988) 166 CLR 69; [1988] HCA 68, Isles & Nelissen (2022) FLC 94-042
[3] Isles & Nelissen (2022) FLC 94-042.
I will refer to, and make findings about, the other relevant matters set out under s 60CC of the Act as they arise in these reasons.
The parties are in dispute as to who should hold decision making authority for X. Section 61D of the Act provides:
Parenting orders and parental responsibility
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long‑term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision‑making in relation to all or specified major long‑term issues.
Section 61DAA of the Act provides:
(1)If a parenting order provides for joint decision‑making by persons in relation to all or specified major long‑term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
That issue will be dealt within these reasons.
ISSUES
I consider the issues to be determined in this matter are:
·What risks, if any, exist in the mother’s household for X?
·What risks, if any, exist in the father’s household for X?
·Can any of the risks for X be ameliorated?
·What orders will promote X’s right to enjoy her Aboriginal culture?
·What live with and spend time with orders are in X’s best interests?
·Are the parents able to reach decisions together for X?
What risks, if any, exist in the mother’s household for X?
The mother has been diagnosed with several mental health issues. In 2022 she was diagnosed with PTSD, ADHD and ASD level one. She sought out these diagnoses, and actively engages with assistance through regular contact with a psychologist and psychiatrist.
The mother has been under extraordinary pressure due to Mr Walter’s alcohol abuse, and mental health issues. Mr Walter’s issues are longstanding, although the extent of his alcohol consumption was not known by the mother, on her evidence, until mid-2023.
Mr Walter has consumed alcohol on a daily and excessive basis since he was 17 years old, that is almost 20 years. On his evidence there have been a couple of occasions of about a month, prior to 2023, when he abstained from alcohol. His evidence is his consumption has been between 15 and 30 standard drinks each day. I accept that whether it was 15 or 30 standard drinks, he was drinking at a level that would have left him intoxicated, unable to drive a motor vehicle, and unable to care for X.
Mr Walter took steps to conceal his consumption of alcohol from everyone; as he put it in his oral evidence, “I kept it as private as I could”. He did not use a joint bank account for alcohol purchases. He bought alcohol regularly, so it was not stock piled in the home. He put the bottles into the recycling bin, and was the person responsible for the recycling. Most of his daily consumption occurred after the mother and X were in bed, from about 9:00 pm.
In 2023 Mr Walter started drinking in the afternoons, and did so around driving X home from school, and to and from extracurricular activities. The mother was home from work at about 5.30 pm. He agreed that by 4.00 pm he would have had three or four beers. It is unclear on the evidence how much he drank whilst X was in his sole care, although it is clear he consumed alcohol.
Mr Walter conceded that he would likely be affected by alcohol in the mornings from the previous night. On his evidence he did not consider at the time how intoxicated he may have been in the mornings. It is significant that he gave this no thought, as he regularly drove a motor vehicle in the mornings, and sometimes drove X to school.
Neither the mother nor Mr Walter’s affidavits relied on in this hearing provide any narrative of what occurred in early 2023 leading up to the revelations about his drinking, and hospitalisation. The mother’s chronology in her Case Outline Document refers to them separating at that time due to his alcohol use. Mr Walter’s mental health deteriorated from early 2023, and his drinking increased. He has reported suicidal ideation, which includes taking risks when driving a motor vehicle. He had a sense of hopelessness and did not care if he died. He agreed he drove with X in the car in this state.
In mid-2023 Mr Walter completed a mental health assessment. He was scheduled under the Mental Health Act.[4] He was admitted to hospital in City D from the emergency department. The records described him as being in “a distressed state with worsening suicidal ideation on background of alcohol abuse and social stressors”.[5] He had attended the O Hospital in City F for outpatient detox the day before, after the intervention of friends. He disclosed having driven intoxicated with X in the car, and having thoughts of harming the father. One friend who also knows the father, told him that if he did not tell the father then the friend would. Mr Walter became extremely distressed and suicidal.
[4] Mental Health Act 2007 (NSW).
[5] Exhibit F3.
Mr Walter described his alcohol misuse worsening over the past three years. The hospital notes record him experiencing over the past months:
“Chronic suicidal ideation, becoming harder to control. He admits to risk taking behaviour such as drink driving, not caring if he has an MVA [motor vehicle accident]. He also has a plan that if he gets pulled over by police he will attempt to get their weapon and either kill himself, or have ‘death by cop’. [Mr Walter] has also considered murdering [Ms Walter’s] ex-partner before killing himself as he feels that she and her 7year old daughter [X] would be better off without them both”.[6]
[6] Exhibit F3.
The mother was present at some point during this assessment in mid-2023. She denied that she was there. I accept it was extremely stressful and that memory in those circumstances can be imprecise. The notes refer to the mother becoming extremely distressed and being unable to communicate with those undertaking the mental health assessment of Mr Walter. She gave them her mother’s contact number. The notes record information provided by the maternal grandmother:
“[Mr Walter] has become increasingly difficult for [Ms Walter] to manage, he is unpredictable and verbally aggressive at times, as well as physically rough, e.g. when [Ms Walter] hides the car keys so that he cannot drive drunk. [Mr Walter] is constantly threatening suicide, and [Ms W] [maternal grandmother] is concerned that he will relapse into drinking and take more risks. She is also very concerned about [Ms Walter] and [X’s] welfare at the moment due to [Mr Walter’s] erratic behaviour”.[7]
[7] Exhibit F3.
I accept that the mother provided hospital staff with contact details for her mother, which makes clear she was present as the notes suggest.
In mid-2023 the mother advised the father of Mr Walter’s admission for alcohol dependency and suicidal thoughts, and that he had cared for and driven X in a car after consuming alcohol. It is clear on the evidence that the mother was aware of Mr Walter’s problems with alcohol and suicidal ideation for a period prior to her advising the father. Given the information provided by the maternal grandmother, it is clear the mother had been aware of the problem prior to the admission. I accept the mother received support from her mother over this period which included her attending at the mother’s home. In her evidence she minimised support available from her mother in the future. The mother did not provide any affidavit from her mother about support she had received or may receive in the future.
The mother agreed that her mother spoke to those assessing Mr Walter. She said there was one occasion she withheld the keys so that he would not drive drunk, and her mother was present. She found out that he had driven with X after consuming alcohol. She did not accept he was verbally aggressive towards her, but conceded he was “very cranky”. She agreed she hid the keys when he wanted to get more alcohol, and that there was an argument about that. I accept that the mother sought to minimise Mr Walter’s aggressive behaviour towards her at this time.
Although Mr Walter has been engaged with a psychologist since 2019, he was not being treated for alcohol abuse. Mr P provided two reports. He notes Mr Walter “admitted to constant alcohol use to help him manage his mental health and other daily concerns”.[8] The report of Mr P annexed to Mr Walter’s affidavit, refers to him using alcohol in the first half of 2023 to manage what he saw as the unresolved stressors related to X’s care.[9] It is not clear from either of the reports that Mr P is aware that Mr Walter has abused alcohol for the whole of his adult life.
[8] Exhibit F2.
[9] Affidavit of Mr Walter filed 26 July 2024, annexure “A”.
Mr P refers to therapeutic strategies being “ambushed by [Mr Walter’s] alcohol use and consequently it has resulted in our carefully configured psychotherapeutic interventions being inoperable”.[10] I accept that Mr Walter has not been frank about his long-term alcohol abuse, and relapses, with the person who has been helping to manage his mental health issues over four years. Mr P diagnosed Mr Walter with a number of mental health issues. It heightens concerns about Mr Walter’s abuse of alcohol and potential relapse, that he kept it secret from a psychologist he consulted regularly, and may not have been honest about the extent of his use of alcohol even after the issue surfaced. This is because it is unclear how he may engage in treatment in the future, which adds to the risk of relapse.
[10] Affidavit of Mr Walter filed 26 July 2024, annexure “A”.
Mr Walter entered the Q Rehabilitation Centre in mid-2023. He was due to remain there for six weeks, and stayed three weeks. He exited, and went to a halfway house in mid-2023 before starting at R Rehabilitation Centre two weeks later. His evidence is that his intention on leaving Q Rehabilitation was to return to City F where he would be able to start drinking again. He remained at R Rehabilitation Centre until mid-2024, for a period of about two weeks. There is no issue that he left without completing rehabilitation through that service.
In late 2023 Mr Walter was again drinking 20 to 30 drinks per day. On 18 December 2023 the mother filed an application seeking to lift an injunction, restraining her from allowing him to be present with X. He agreed in cross examination that he would have advised her about his consumption of alcohol at that time. The mother’s application suggests she was not able to prioritise X’s safety over Mr Walter.
Mr Walter consulted with Mr S in early 2024. His evidence is he did so because he understood he needed psychological help due to having he had another relapse. On the evidence there was no course of treatment provided by Mr S, rather he provided recommendations for future treatment.
Mr Walter had been through detox approximately two months before in City F. Following that he commenced a two week mental health and substance use program, however, only completed one week of the program. He referred to financial difficulties, the ongoing family law litigation, and resorting to alcohol when he felt overwhelmed and depressed as contributing to the relapse.
Mr Walter reported to Mr S:
“a recent relapse triggered by strong feelings towards friends who he perceives as having contributed to the past year being the worst of his life. This emotional trigger was further exacerbated by reminders of his wife’s ex-husband, who he feels has made the last three years incredibly difficult. In response to these feelings, he sent aggressive and descriptive text messages to these individuals, which led to a visit from the police”.[11]
[11] Exhibit ICL4.
On his report he was still experiencing despair and occasional suicidal ideation. He had also missed two to three days of his medication for anxiety.
Mr S made a number of recommendations. These were that Mr Walter undertake programs, therapy, other treatments, ongoing drug and alcohol counselling, long-term therapy once stable and development of a safety plan with the mother and other backups. Of the recommendations, Mr Walter has followed up with fortnightly drug and alcohol counselling, and cognitive behavioural therapy from Mr P every three weeks on average. He has not had a medication review as an inpatient or otherwise, and he does not have a safety plan with the mother. He has been advised by his general practitioner that mental health is not his specialty, and he did not feel qualified to alter Mr Walter’s medication. Mr Walter has failed to follow all of Mr S’s recommendations.
Mr Walter has annexed to his affidavit two letters from the drug and alcohol counselling service he has attended for fortnightly appointments since early 2024.[12] I accept that whilst the information from his counsellor is positive, it is early days in his recovery.
[12] Affidavit of Mr Walter filed 26 July 2024, annexure “A”.
Mr Walter has relapsed on a number of occasions since mid-2023. It appears that he has been sober since early 2024, which is supported by two CDT tests. It is concerning in these circumstances, that he has not followed all the advice of Mr S. Mr Walter did not address why he failed to follow the recommendations. There is no evidence about the availability of treatment in City D. This does not create confidence about Mr Walter putting in place all things possible to guard against relapse.
The level at which Mr Walter was consuming alcohol makes it difficult to understand that the mother could have been completely ignorant of it. There is evidence of finances being stretched in the mother’s household, and complaint about lack of child support paid by the father. From that perspective it is difficult to understand how Mr Walter’s spending on alcohol could have gone unnoticed. Given his evidence of the amount of alcohol consumed, the number of empty bottles in the recycling bin would have been large. The mother indicated she did not ever notice him to slur his words, or have alcohol on his breath in the mornings. Counsel for the father referred to the mother turning a blind eye to her partners’ drinking, or otherwise because of her own issues not being aware of it. I do not regard the evidence as supporting a finding that she ignored his alcohol abuse. I accept that she told the father reasonably soon after becoming aware of it.
The mother argues that now that she is aware of the problem, alcohol use could not be hidden from her in the future. Her evidence is that she was completely unaware of his alcohol problem for the whole of their relationship until early 2023. I accept that her evidence that she was unaware of his alcohol consumption adds to the future risk for X, because if he were to recommence drinking he may again be able to hide it from her.
The mother has been concerned in the past about Mr Walter’s parents enabling his use of alcohol, and his mother having a high degree of co-dependency.[13] They are family support the mother says is available in City F, to support her case to move there with X. She says now his family are aware of the extent of his problems their attitude has changed. There is no evidence from any of Mr Walter’s family before the court to support that.
[13] Exhibit F4.
The mother described growing up in T Centre, U Centre, and that it took a long time for her mother and adoptive father to gain sobriety. She described it as being of assistance to them to know who they were getting sober for. She regards this as similar for Mr Walter, that the strength of his relationship with X will assist his sobriety. X’s need for safety and stability is what matters, not any role she may play in Mr Walter gaining sobriety.[14]
[14] Family Law Act 1975 (Cth) s 60CC(2)(d).
The diagnosis for Mr Walter is a number of mental health issues and disorders. The mother accepts that Mr Walter is at risk of relapse, and that he has a disease that will require work for the rest of his life. She and Mr Walter have a relapse prevention plan.
The relapse prevention plan does not detail what would happen should Mr Walter relapsed. Rather it refers to triggers for him to be aware of. One of those triggers is the father. On all parties’ cases the father will remain involved with the mother and her household through his involvement with X. I accept that neither the mother nor Mr Walter have properly considered what would happen if he relapsed use of alcohol and X was in their full-time care. The mother’s evidence is that she would not seek the father’s help again, as she feels he has exploited her honesty. This removes a significant safety net for X were she living with the mother.[15]
[15] Family Law Act 1975 (Cth) s 60CC(2)(a).
On the mother’s application they would be living in City F where support is available from Mr Walter’s family. There is no evidence before the court about their attitude towards assisting with X’s care, nor any other matter.
When the mother is functioning well I have no doubt she is a capable parent. Unfortunately the evidence suggests that she has not been able to function well since at least early 2023. The mother does not acknowledge the toll on her parenting capacity of Mr Walter’s mental health and alcohol abuse. Her capacity to parent X has been dramatically affected. I do not regard this as simply a concern about her emotional dysregulation, as put by counsel for the mother. It goes to her capacity to provide parenting to X that is consistent and stable.[16]
[16] Family Law Act 1975 (Cth) s 60CC(2)(d).
The Family Report writer described the mother exhibiting rapid changes or adjustments to her feelings and emotions of loss, sadness, anger, frustration, and anxiety within quick succession during interview.[17] On 12 February 2024 she emailed the father that she wanted to relinquish care of X because “she has nothing left”. She has complained in these proceedings that her disability has been weaponised against her by the father, and that this has exacerbated her mental health issues.
[17] Family Report prepared by Regulation 7 Family Consultant Ms L dated 11 March 2024 (“Family Report”), paragraph 19.
The mother’s behaviour in February 2024 in packing a bag for X and taking her to her father’s, described by her as “relinquishing” X’s care, would have been extraordinarily distressing to X. The mother did not suggest to the father nor X how she would spend time with her thereafter. The mother has blamed the father for this crisis, caused by him using her disability against her which caused a decline in her mental health. Her evidence does not grapple with the role that Mr Walter’s alcohol use played in her inability to cope. The mother regretted her actions in taking X to her father, and sought her return. I accept that this supports the observation of the report writer of the mother’s rapid emotional changes at interview. The mother has referred to her emotional dysregulation at times. I also accept that the father retaining X in his care was the only course available that was protective of X’s emotional and psychological needs.
The mother found it very difficult to recognise the effect on X’s emotional well being, of her emotional dysregulation.[18] That X was delivered to her father with no indication from her of when X would be seeing her exacerbated X’s distress. Her father could not reassure X about what would happen with regard to seeing her mother, because there was no plan in place. The mother continues to blame the father for her conduct at this time.[19]
[18] Family Law Act 1975 (Cth) s 60CC(2)(d).
[19] Mother’s affidavit filed 26 July 2024, annexure “D”.
The mother has criticised the father for his failure to promote X’s relationship with her, and controlling her time with X. Whilst I accept there is some basis to that, that does not mitigate her own role in X’s distress.
The mother described her reliance on Mr Walter for support due to her disability, health and mental health challenges. She is concerned that any order that would require him to be absent overnight from the home would not be realistic. She described it as not fair for their family to be split. I accept that both the mother and Mr Walter have minimised the impact of his behaviour on their family, and the importance for X not to be exposed again to the risks of his excess alcohol consumption. This is in terms of the physical risk for him driving a motor vehicle and being responsible for her care, and the psychological risk of erratic and dysregulated behaviour.[20] Both of them have referred to the father causing pressure on the family, exploiting their difficulties, and contributing to Mr Walter’s relapses.
[20] Family Law Act 1975 (Cth) s 60CC(2)(a).
I accept that Mr Walter is the only person responsible for his conduct, and to the extent others are blamed serves to highlight that his recovery is in early days. The threatening texts sent by Mr Walter to Mr Stiller and his family earlier this year are indicative of that: “fuck you, I hope your misery kills you”, “well, looks like you and your fat, ugly homewrecking slut of a girlfriend win. I hope you are miserable with a fat cunt to fuck and an ugly baby to neglect”.[21]
[21] Father’s affidavit filed 17 July 2024, annexures “A” and “B”.
The mother has denied any incident of physical violence by Mr Walter towards her. She concedes an incident where she hid the car keys, and they yelled at each other, as referred to previously. Her evidence is he did at times talk very loudly. She denied that she had ever locked him out, or been locked out by him.
Mr Walter was cross examined on an intake form completed for the men’s behaviour change program. He agreed that he had behaved in an intimidatory way towards Ms Walter and a previous partner. This included yelling and screaming, slamming doors, speeding in the car, and that he punched a window out. He agreed in cross examination that he was staying at a friends’ house late last year, and the mother attended. He locked her out of the house and punched a small pane of glass and threw a shard of glass in her direction. He has threatened to her that he would commit suicide.
I accept that the mother has minimised Mr Walter’s abusive behaviour towards her in her evidence. His admissions with respect to his conduct as set out above indicate that he has engaged in family violence. I accept that as a member of the household X would have been exposed to yelling, screaming and tension between Mr Walter and the mother.[22]
[22] Family Law Act 1975 (Cth) s 60CC(2)(a).
Mr Walter has commenced a men’s behaviour change program, and has completed 10 weeks of the 20 week program. It involves weekly sessions of two and a half hours. It is a positive step that he has engaged with this program.
I accept that the mother has shared information with X’s that is unhelpful to her and caused her distress and confusion. X helped her mother pack her bag when she was taken to her father’s. When the mother delivered X to her father, she said to him in front of X “you don’t deserve to be happy, I hope you get hit by bus.” This was at the time she was placing X in his care, from X’s perspective possibly for ever. She did not demonstrate any insight into the impact of this on X.[23]
[23] Family Law Act 1975 (Cth) s 60CC(2)(c).
Since X has lived with her father she has at times been inconsolable after telephone calls with her mother. I accept that X misses her mother, and wants to see more of her. I also accept that when Ms Walter is distressed during phone calls, she would not be able to manage X’s distress.
The first two reports from the contact centre show X very distressed, and her mother similarly so. This is hardly surprising given the gap in them spending time together, and does not reflect negatively on their relationship. All the other reports demonstrate extremely positive interactions. There can be no issue that X and her mother share a close relationship.[24] I accept that an element of X’s distress is her fears and concerns for her mother. She has been parentified in her mother’s household to be concerned for her mother.
[24] Family Law Act 1975 (Cth) s 60CC(2)(e).
What risks, if any, exist in the father’s household for X?
The mother reports her relationship with Mr Stiller as involving family violence. She complained to the Family Report writer that the father was verbally abusive, manipulative, and controlling.[25] She regards him as having a relationship with her friend, his current partner, whilst they were still a relationship. This is denied by the father.
[25] Family Report, paragraph 32.
The mother asserts that the father dismissed X’s medical needs when younger. These involved not seeking medical treatment for X when she was being treated with wart removal treatment by her mother. The mother provided the treatment to the father who continued to use it, despite X having a burn due to the treatment. He failed to take her to a doctor when she was complaining of stomach pain. He thought she was lying about it. It subsequently transpired that she had parasites and required treatment. On another occasion the father thought she had an infected mosquito bite, which turned out to be school sores.
Following separation, the father, by agreement between the parents moved to his parents’ home in Town G. X lived with him there for a short period. This was at the commencement of the COVID-19 pandemic which I accept was a factor in the parent’s decision for X to be in Town G. Shortly thereafter the father returned to live in City D, as did X, and she recommenced moving between her parents’ households. The father conceded that she generally spent more nights of the week with the mother, in what was a shared care arrangement.
In mid-2021 the parties entered into Final Consent Orders in the City D Local Court providing for the father to spend time with X six nights each fortnight, half the school holidays, and special days. Although X has lived the majority of her time with her mother since separation, she has lived with her father for a significant time involving both weekends and weekdays and holidays.
I accept that, whatever concerns the mother may have had about the father, she was satisfied that the father was capable of caring for X, and that she was safe in his care for extended periods.
The mother has had limited communication with X since she has been living with the father. The father has not agreed to any additional time outside the Orders. She requested, for example, a phone call on Mother’s Day. The father did not make this happen. It is unclear why that was so, or what risk could have been occasioned to X in speaking to her mother. During the course of the hearing the father did not permit X to speak with her mother. His evidence is that he was not there to monitor the calls, as the order provides.
These matters suggest that the father does not fully understand X’s need for a relationship with her mother, and her distress at not being able to communicate with her. There were other options available to the father, such as another person to monitor the call, or him joining the call so that all three of them were on the line together.
The father has engaged in parenting courses including the Tuning into Kids program and the Parenting After Separation course. Engagement in these courses will help to ameliorate the risk that X’s relationship with the mother will not be supported by the father.
The father has not completed a Men’s Behavioural Change program as required by the orders made on 22 March 2024. He is currently on a waitlist.
The mother is concerned that X may have ADHD, and that the father does not take her concern seriously. In early 2022 X was taken by her mother to Y Psychologists in City D. X was seen by a ‘provisional psychologist’ through the practice, who provided a report dated 13 July 2022 to her general practitioner.[26] The father was not involved in these appointments. Where there is a reference to observations of ‘parents’ it would appear from the report that refers to mother and step father. This is not a concern shared by the school, her counsellor Ms B, nor her father. Ms B sees X regularly.
[26] Exhibit M4.
Orders were made on 22 March 2024 for the father to obtain a referral for X to undertake a paediatric review by her treating paediatrician. X was taken by both parents to Dr V in mid‑2023. The mother raised behavioural concerns for X. Dr V noted she presented with “some symptoms that are suggestive of some emotional dysregulation”.[27] There was a request for further information from the school, and that she will have ongoing reviews and assessments with Ms B.
[27] Exhibit F8.
The father obtained a referral from the general practitioner but did not follow it up. It was his evidence that he understood the general practitioner would forward the referral to the paediatrician. He took no further steps. It appears from the documents tendered when the matter was reopened that Dr V has “little to add to the letter following the consultation […]”.[28] He was unable to offer X another appointment as he had hundreds of children on the waiting list. The father did not receive the letter of early 2024, which was sent to the general practitioner and the mother’s address. The father did not take any steps to follow up the referral. It would be helpful if an ADHD assessment was conducted so that the parents have a common understanding on any diagnoses and what may assist X reach her potential.
Can the risks for X be ameliorated?
[28] Exhibit F8.
Mitigation of risks in the mother’s household
The main risk for X arises from Mr Walter’s alcohol abuse and mental health. The impact of these matters on the mother’s capacity form part of that risk.
Mr Walter is in the early stages of abstinence against a background of alcohol abuse since he was 17 years old. He has been consistently sober for six months as I read the reports of Mr S and Mr P.
I accept that Mr Walter intends to continue sobriety. I also accept that relapses commonly occur following long term alcohol abuse. His abuse of alcohol has occurred in circumstances where he has kept it secret from those close to him, and those treating him. I accept that this exacerbates the risk to X if he relapses, because the mother may not be aware of it.
Although his progress since early 2023 is encouraging, the history outlined in these reasons makes it clear there have been many backward steps. This is to be expected with relapse and recovery from long-term substance abuse, but these are not matters that X should be subjected to. She has already endured a great deal of instability and more is not in her interests.
CDT tests that are proposed, and consented to by Mr Walter, provide objective evidence of his abstinence. The parties agree test results would be given to the father. The proposals for tests to occur on two or three occasions each year for two to three years do not address the issue adequately in my view. The mother and through the mother’s counsel Mr Walter, agree to testing more regularly, such as five times each year. This would provide a greater level of oversight of Mr Walter’s progress, particularly over the next three years on the time frame proposed by the mother.
Mr Walter’s conduct has placed stress on the mother, including him behaving towards her aggressively such as when she attempted to hide the keys, and when he broke a window and threw a shard in her direction at a friend’s home. On her own evidence she has not coped well emotionally since early 2023. I accept that has been coupled with the stress of litigation, which she initiated. The mother has blamed the father for her stress, and I accept would not reach out to him for assistance. This removes a safety net which previously existed for X.
The mother’s evidence is that were Mr Walter to relapse, she would have him leave the home and enter rehabilitation. The difficulty with this position is that she made an application in December 2023 to lift injunctions so he could return to the home, when on evidence now available he had relapsed. The evidence of risk to X’s safety, physical and emotional, were she to live with her mother and Mr Walter is significant.[29] I accept that the mother has not been able to prioritise X’s needs over Mr Walter’s.[30]
[29] Family Law Act 1975 (Cth) s 60CC(2)(a).
[30] Family Law Act 1975 (Cth) s 60CC(2)(d).
I accept submissions by the Independent Children’s Lawyer and counsel for the father that the risks in the mother’s household cannot be mitigated were X to live most of the time there. Mr Walter’s behaviour when consuming alcohol poses a high risk to her physical and emotional safety.[31] This is due to the level of emotional dysregulation in Mr Walter and the mother, arguments between them, and exposure of X to family violence.
[31] Family Law Act 1975 (Cth) s 60CC(2)(a).
Mr Walter’s pattern of alcohol abuse has occurred mainly at night. This is the time of greatest risk of relapse as the Family Report writer noted. Mr Walter is on any view at an early stage of recovery. The Independent Children’s Lawyer and father seeks orders that prevent him from spending overnights in the home until X is 12 years old. I accept that this would be difficult to manage on such a long term basis.
If the mother is required to provide three further CDT test results to the father, from the start of the school term in 2025, I accept Mr Walter could be in the home overnight. This would mean that he has been consistently abstinent for almost 12 months. It should not start over school holiday, but over the shorter period of term time. It means that when that commences X has the additional support of school, and access to her counsellor were she to have any concerns. This would assist in mitigating risk to her.
Mitigation of risk in the father’s household
The risks in the father’s household are that X’s relationship with her mother will not be adequately supported, that he is not as across her health needs as the mother, and that may create risk for X.
I accept that the father has not been attentive to X’s medical needs in the past. There is nothing in the evidence otherwise to suggest that he is a negligent or inattentive parent. Were he to have sole decision making this could pose a risk for X. Orders that give both parent’s decision making ameliorate this risk. The mother is prepared to communicate with the father. Her emails demonstrate that she can do so in a civil manner. The father needs to participate in the communication.
The father has followed orders with respect to X’s time with her mother, other than at times of crisis with Mr Walter. I accept that he has acted protectively of X as his first priority. Thereafter he has followed orders for time between X and her mother. It is unfortunate he has done so rigidly, without being as flexible as X’s needs many have required. This does however lend confidence to him complying with orders for time into the future, so that X’s relationship with her mother is supported.
There is no evidence of violence in the father’s relationship with his partner and son. Although following separation X has spent more time with her mother, she has always been in her father’s care for significant periods each week or fortnight. He has taken her to school, spent time on weekends and holidays, and she is very familiar with his household. He is used to managing her day to day routines.[32] These factors mitigate risk for X in living with her father.
[32] Family Law Act 1975 (Cth) s 60CC(2)(d).
How will X’s right to enjoy her Aboriginal culture best occur?
The lands of the mother’s people are near City F. The mother is currently learning her language. She is in touch with an Aboriginal elder who lives in the City D region to assist her connection.
The mother’s evidence is that she has always known she was of Aboriginal heritage. She obtained a certificate of Aboriginality after investigating her family background. Her family of origin carry intergenerational and cumulative trauma from the removal of her ancestor as part of the stolen generation. This is carried down through her family, and her own removal from her mother’s care to state care.
She wants to take X to country. She reads to X and shares her knowledge, but this in her view only provides a limited connection to culture. The local community in City D is different from the mother’s, with different cultural practices, and language.
The days of national celebration are important to her, and X, such as NAIDOC week, ATSI kids day on 4 August, Invasion Day on 26 January, and her country saltwater and freshwater days. She is aware that the community run cultural camps for children. There are also language learning days available within the community.
The mother’s evidence is that it is important for her to be able to access country, so that she and X can live their culture rather than just visit it. There will be days of significance that arise from time to time such as for Sorry Business when someone in the community dies.
There have been other events important to her family, such as a relative marching as an Aboriginal member of the military on Anzac Day in 2024. The father did not permit her to take X to the service. The orders at that time provided for supervised time. The father did not consider whether he could deliver X to the mother at the march to allow X to experience this important event. I accept this was a missed opportunity for X.
The father presents as generally supportive of X being able to experience her culture. When he and the mother were together she did not talk to him about her Aboriginal culture and people. Understandably, he did not have much information about it. Since X has been in his care it is concerning that he has made no effort to inform himself. Despite previous orders of 22 March 2024 for him to ensure that X attends aboriginal cultural events within her community and school he has not done that. He has not taken any steps to meet with the indigenous liaison officer at X’s school.
The area around City D is not X’s country. Nonetheless it is important for her to be connected to other Aboriginal people living within her community. Her father could have assisted with that by involving her through the school. He has not done so. Doing this does not answer X’s need for connection to kin, culture, country and language. The only person able to give X access to those things is her mother.
I accept that X needs to spend time with her mother that permits travel to country, experience of her culture there, and involvement with the community. Those things will assist X grow to be a proud young Aboriginal woman with an understanding of her background.
X
The family report writer described X as an “energetic, curious and inquisitive young child who has a caring disposition”.[33] Both her parents describe her in similar terms. Her school reports are positive across living with both her mother and her father, despite behavioural outbursts at times towards other students.
[33] Family Report, paragraph 113.
X has a close relationship with her baby brother J. X was positive about her father, his partner and J being “happy and kind towards her”.[34]
[34] Family Report, paragraph 116.
When seen by the family report writer it was clear she had close relationships with both her parents, and their respective partners. She has been burdened by her parents’ dispute. She told the report writer “my mum does not have a job and money and she said to pack my bags and go to dad’s house”.[35] She understood from her mother that may be for a short time or a long time. She was clear in her view that she wanted to be able to speak with her mum, that she missed her and wanted to spend time with her.[36]
[35] Family Report, paragraph 115.
[36] Family Report, paragraph 115.
X’s parents separated when she was three years old.She was been living in a house with her mother and Mr Walter, with whom she has a close relationship, for three years. The entire time X shared a house with Mr Walter he has hidden the extent of his alcohol abuse and mental health problems, as detailed in these reasons. The revelations about that have caused an extraordinary disruption in her day-to-day life.
Since she moved to live with her father in February 2024, she has had supervised time with her mother. The records of the supervision demonstrate the close and loving relationship between them. The orders limited communication and time with her mother, which no doubt exacerbated her distress. The father has not agreed to any additional communication, or alternate ways the telephone communication could be monitored, around the orders. She has also not seen Mr Walter with whom it is agreed she has a good relationship. The ‘Tool Box’ completed by X confirms that she misses both her mother and Mr Walter.[37]
[37] Exhibit M12.
X is a child who has experienced significant disruptions caused by the adults responsible for her care. Her parents’ relationship broke down. She has experienced her mother and Mr Walter argue and separate, and reconcile. She has provided emotional support for her mother when she has been dysregulated. X has become emotionally dysregulated, and hit other students. She is usually a capable and engaged student.
X did not express a view about her living arrangements to the report writer.[38] I accept that X wishes to spend time with both her parents. Her brother J is much loved by her, and an important relationship into the future. She has a close relationship with the partners of both her parents. It is in her interests to continue those relationships in ways that promote her safety.[39]
[38] Family Law Act 1975 (Cth) s 60CC(2)(b).
[39] Family Law Act 1975 (Cth) s 60CC(2)(e).
What live with and spend time with orders are in X’s best interests?
The mother seeks orders that X live with her, and she be permitted to relocate with X to City F. I accept that City F is a bigger town than City D, and provides greater access to services such as health, educational opportunities for X, and has easier access to X's country. Set against the removal of X from proximity to her father, brother, school, those advantages of City F fall away. Further I am not satisfied on the evidence that the risks to X's safety in the mother's household can be ameliorated by way of orders as can the risks in the father's house. The mother does not propose moving to City F without X. She will remain in City D.
The father's evidence is that he may move to City F if there were orders permitting the mother to relocate her there. I do not accept that it would be in X's interests to return to live with her mother for the majority of time. I do not need to make further findings about relocation proposed by the mother.
I accept that it is in X's best interests that she reside with her father. He is able to provide her with stable care in a loving household. A strength of the father's household is his partner, and their child J. X has a close, supportive relationship with Ms H, and loves her baby brother. Although X has previously spent more time living with her mother, she has spent significant time with her father across school days, weekends and holidays. X is well established as part of that family. I accept the evidence of the Family Report writer that risks in the mother's home are not as easily ameliorated as in the father's home.[40]
[40] Family Report, paragraph 125.
The father and Independent Children's Lawyer seek an order that for any overnight time of X in the home Mr Walter should be absent between 8.00 pm and 7.00 am until X attains 12 years. They argue removing Mr Walter from the home for overnight time between X and her mother would ameliorate the risk from him, given the longstanding pattern of abuse of alcohol at night. The mother argues that this is unrealistic, unsustainable and unnecessary.
I accept that time between X and her mother should immediately move to overnights. This is supported by the evidence of the court child expert. The Independent Children’s Lawyer’s proposal for a gradual progression in the weekend time will assist in ensuring that the mother can cope. I accept that a graduated increase is helpful, although with a quicker progress than that contained in the Independent Children’s Lawyer’s orders. There has now been a significant period of supervised time, which has gone extremely well.
I accept that Mr Walter is in the early stages of recovery. He has been sober for six months against a history of alcohol abuse for almost 20 years. In my view he should remain absent from the house overnight for a period to allow more time for him to get the help required, and learn to live sober. The Family Report writer’s evidence is that the more times that passes with sobriety, the more confident one can be of recovery. This is consistent with common experience of these issues.
CDT testing provides a safety net against the risks to X of possible relapse of Mr Walter. It removes the risk that he could hide use of alcohol in the future. It provides transparency for both the father and mother. When the question of more testing than the three per year proposed was raised the mother, through her counsel, the mother agreed to that and indicated that Mr Walter did as well. Although orders will bind the mother, it provides confidence about the efficacy of orders that Mr Walter is in agreement.
Until the commencement of Term one in 2025, orders will exclude the mother from permitting Mr Walter to be in the home overnight when X is present. Thereafter orders will permit him to be present, including overnight, but on the basis that for the next three years he undertakes CDT testing on five occasions each year. These orders will assist ameliorate the risk to X from Mr Walter's abuse of alcohol, and the consequent pressure that places on the mother’s capacity to parent. It is a balance of risk and it is incumbent on the mother to be vigilant with respect to Mr Walter's alcohol use.
The mother agrees that if any CDT test is above the agreed level of 1.8% Mr Walter is required to be absent the property overnight. The orders I propose making are that he return two negative tests, and confirmation that he has completed a rehabilitation programme, before he can return to reside at the home overnight. The requirement for the mother to provide the father with correspondence from a rehabilitation programme that he has completed a course of rehabilitation, and have two CDT tests within the agreed range, provides assurance that he is back on track before returning to live in the home with X.
I note that Mr Walter is engaged with a drug and alcohol counsellor, which assists ameliorate the risk of relapse. He receives ongoing assistance from Mr P. The mother, his broader family and friends are now aware of the problem. This assists in having others in the mother and Mr Walter's lives alert to the possibility of his relapse, and providing him with support.
The mother is also engaged with counselling on an ongoing basis. This assists ameliorate against the risk of her emotional dysregulation under relationship or other pressures.
X's need for communication with her mother and time with her mother is dealt with by orders for time and communication.[41] The mother's continuing involvement and decision-making, will assist in ensuring that medical matters and educational matters are dealt with for X.
[41] Family Law Act 1975 (Cth) s 60CC(2)(e).
The orders provide for a Friday to Monday weekend, and a night in the other week for the mother and X. This is because it gives X the benefit of time with her mother each week. It continues the important role her mother has in supporting her education. It makes changeovers take place to and from school, which avoids issues of conflict or stress at changeovers for X.
I accept that the mother and father should equally share in all school holidays, including Christmas. The mother's proposal of alternating Christmas is a practical one for X. It acknowledges that each of the parties have family who reside outside City D, and may wish to spend Christmas away. I accept that until X reaches 10 years of age, the time at Christmas should be split between the parents in a block of two weeks and one week each so that X is not too long out of either of her parent's care. Thereafter, X should spend time with her parents in three week blocks. The orders give the mother opportunities to take X on country regularly.
I accept that X should be able to celebrate J’s birthday in her father’s home. I accept this is important both due to her love for J and in securing her role as his sister.
There should be regular communication between X and each of her parents. I accept that should be twice each week for the mother during school terms, and for both parents during the school holidays.
All parties accept there should be restraints on Mr Walter driving with X in the car, and not spending time with X for 12 hours after consuming any alcohol.
Both her parents should be able to attend significant appointments, such as the paediatric appointment that the father will be required to make pursuant to these Orders. They can also both attend school events and extracurricular activities.
There is an agreement between the parties that should changeovers not occur to or from school, it should occur at McDonald's, C Street.
The Independent Children’s Lawyer proposed orders for the parties to attend mediation prior to starting further litigation. The parties have obligations with respect to obtaining a section 60I certificate prior to commencing litigation under the Act. It may be helpful for the parties to attend mediation if issues arise about which they disagree. I do not propose making an order about that, as the parents may have a variety of ways they resolve disputes and mediation is one they are aware of.
The mother sought orders for a passport and overseas travel. Neither party made any submission, nor cross examined on that area. In those circumstances I do not propose making orders about that.
There is an order previously made for the father to complete a Men’s Behaviour Change programme, and he is on a waitlist. He is willing to complete the course. I propose making an Order so that he completes such a course.
The father sought a variety of orders with respect to Mr Walter. I do not propose making those orders because the problem to be addressed is his abuse of alcohol. The orders do that. The offensive and threatening texts sent by him were in the context of relapse. Further orders of the type sought do not go to the root cause of the problems. If Mr Walter is admitted to hospital that should not necessarily trigger any restraint on the mother’s time, given he could be admitted for any problem. The orders are too broad to be helpful given the issues.
Are the parents able to reach decisions together for X?
Prior to the difficulties arising in mid-2023 the parents were able to make arrangements and agreements for X. I accept that the pressure of litigation coupled with the revelations about Mr Walter have largely caused the problems of communication between them.
In January 2024 the mother refused to permit X attend a family holiday with the father. She raised concerns about his driving record. I accept that in doing so the mother was not considering X's needs, and rather was engaging in a dispute with the father.
From X entering her father's care in February 2024, the father has been unresponsive to communication by the mother. The emails that are in evidence show the mother being civil in her communication, and wanting to be involved with X's care. Mr Stiller evidence is that he was concerned responses by him would simply lead to an escalation of correspondence between them which would not resolve matters for X. He did not try and communicate; he simply did not respond. It is unsurprising that this caused the mother to continue to send emails because she had no answer, and matters were not resolved.
The mother regards decision-making with respect to X's culture as being indivisible from other major issues for X. The Family Report writer supported that perspective. The mother sees the father as not valuing her input, so that any order that did not give her equal status to him in decision-making would be ignored by the father. The father's conduct since February 2024 in failing to respond to her emails supports this submission.
The mother has been very involved in X's health care and education throughout her life. I accept that the mother's knowledge and engagement in those matters means that she has much to offer in having a role in long term decision making for X. The parties have been able to reach decisions for her prior to these proceedings. Litigation has not assisted their communication, which is not surprising.
With distance from the litigation I anticipate they can return to a functional level of communication between them. Clearly both parents have much to offer in terms of decision making about X. They agree to use of a parenting communication application which should assist avoid excessive communication, and provide them with an opportunity to reflect on the content before a message is sent.
CONCLUSION
The parties have common ground with respect to their love for their daughter. They have previously been able to reach agreements with respect to X. Some distance from litigation may assist them regain perspective as to the importance of the other parent in X’s life. They both have a great deal to offer X.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 30 August 2024
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