Yan & Sing

[2024] FedCFamC2F 24

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

Yan & Sing [2024] FedCFamC2F 24  

File number:	MLC 10082 of 2022
Judgment of:	JUDGE RILEY
Date of judgment:	18 January 2024
Catchwords:	FAMILY LAW – parenting – interim orders – whether children should continue to have overnight time with their father – father’s alcohol use – father’s mental health.
Legislation:	Family Law Act 1975, ss. 60B, 60CA, 60CC, 61DA, 65DAA
Division	Division 2 Family Law
Number of paragraphs:	64
Date of hearing:	11 December 2023
Place:	Melbourne
Counsel for the Applicant:	Christopher Dunlop
Solicitor for the Applicant:	Forte Family Lawyers
Counsel for the Respondent:	Anna Goldthorp
Solicitor for the Respondent:	Blackwood Family Lawyers

ORDERS

MLC 10082 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS YAN Applicant
AND:	MR SING Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	11 DECEMBER 2023

THE COURT ORDERS BY CONSENT THAT:

1.The matter be adjourned for a compliance and readiness hearing before Judge Bender on 8 May 2024 at 10am.

THE COURT ORDERS THAT:

2.Pursuant to s.68L(2) of the Family Law Act 1975, an independent children’s lawyer be appointed for X, born in 2013 (“X”) and Y, born in 2017 (“Y”).

3.Victoria Legal Aid be requested to make arrangements as soon as possible for appropriate representation for Y and X and forthwith upon such appointment, the independent children’s lawyer file a notice of address for service.

4.The court advise Victoria Legal Aid of this order forthwith.

5.Leave be granted for the affidavit of Ms B affirmed on 16 March 2023 to be released to the independent children’s lawyer.

6.Leave be granted for the affidavit affirmed by Mr D sworn on 23 November 2023 to be released to the independent children’s lawyer.

7.Leave be granted to the independent children’s lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter and/or as is reasonably requested by a party.

8.No party issue a subpoena to the Department of Families, Fairness and Housing without the prior leave of the court.

THE COURT ORDERS BY CONSENT THAT:

9.The parents do all things necessary to obtain an updated family report from Ms B at their equal shared expense following the provision of the father’s psychiatric report by Dr C.

10.The independent children’s lawyer be at liberty to provide to Ms B copies of:

(a)Dr C’s report;

(b)any court orders in this proceeding; and

(c)any documents produced under subpoena, subject to any objections to inspection.

11.The parents each provide to Ms B and Dr C all documents they have filed in this proceeding.

THE COURT ORDERS THAT:

12.Until further order, Y and X spend time with their father as follows:

(a)during the school term, in a fortnightly cycle as follows:

(i)in week one:

A.from the conclusion of school on Tuesday until 7pm;

B.from the conclusion of school on Friday until 7pm;

C.on Saturday from 9am until 7pm;

D.on Sunday from 9am until 4pm;

(ii)in week two:

A.from the conclusion of school on Wednesday until 7pm; and

(b)during the summer school holidays from 2023 to 2024, each alternating consecutive three day period from 9am until 7pm on the following dates:

(i)Friday 15 December 2023;

(ii)Saturday 16 December 2023;

(iii)Sunday 17 December 2023;

(iv)Thursday 21 December 2023;

(v)Friday 22 December 2023;

(vi)Saturday 23 December 2023;

(vii)Wednesday 27 December 2023;

(viii)Thursday 28 December 2023;

(ix)Friday 29 December 2023;

(x)Tuesday 2 January 2024;

(xi)Wednesday 3 January 2024;

(xii)Thursday 4 January 2024;

(xiii)Monday 8 January 2024;

(xiv)Tuesday 9 January 2024;

(xv)Wednesday 10 January 2024;

(xvi)Sunday 14 January 2024;

(xvii)Monday 15 January 2024;

(xviii)Tuesday 16 January 2024;

(xix)Saturday 20 January 2024;

(xx)Sunday 21 January 2024;

(xxi)Monday 22 January 2024;

(xxii)Friday 26 January 2024;

(xxiii)Saturday 27 January 2024; and

(xxiv)Sunday 28 January 2024.

(c)During the 2024 school term holidays, each alternating consecutive three day period from 9am until 7pm, commencing on the first Monday of the school holiday period.

THE COURT ORDERS BY CONSENT THAT:

13.Y and X spend time with their father on Christmas Day, 25 December 2023, from 11am until 4pm.

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

14.Y and X’s time with their father be conditional upon:

(a)the father providing the mother with a blood alcohol content (“BAC”) test result and a simultaneous photograph evidencing him taking the BAC test, showing a blood alcohol reading below 0.009 within 30 minutes of the commencement of time with Y and X; and

(b)the father providing the mother with a BAC test result and a simultaneous photograph evidencing him taking the BAC test, showing a blood alcohol reading below 0.009 between 8.30pm and 9.00pm during any overnight time with Y and X.

15.In the event the father fails to provide the BAC test results or such results provide a reading of above 0.009 the mother is at liberty to either collect Y and X immediately or not provide them for the contact session. Time is to recommence at the next spend time period in accordance with these orders.

16.For the purposes of the BAC testing to be performed by the father prior to and throughout his time with Y and X:

(a)the father use the RBT Mini Smartphone Breathalyser or an equivalent device which enables him to undertake BAC testing while a photograph is simultaneously taken of him undertaking the test with both test results and photograph to be uploaded to the corresponding mobile phone application (“the app”);

(b)the father do all acts and things necessary to ensure that the mother receives notifications via the app; and

(c)in the event that the mother is unable to receive such notifications via the app, the father is to send his BAC result and a contemporaneous photograph of him using the breathalyzer to the mother using the application Our Family Wizard.

17.The father undertake supervised blood tests to identify the level of carbohydrate deficient transferrin (“CDT”) in the his blood (“CDT testing”) and such testing occur as follows:

(a)by 4pm on 18 December 2023 and monthly thereafter;

(b)at a laboratory accredited by the National Association of Testing Authorities Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse;

(c)collection by a qualified and certified collector;

(d)chain of custody procedure is to be applied to the sample;

(e)the father is to do all acts and things and sign all documents to authorise the testing laboratory to release the test results directly to the mother and her solicitors; and

(f)the costs of the CDT testing are to be met by the father.

18.The father undertake supervised blood tests to identify the level of phosphatidylethanol (“PEth”) in his blood (“PEth testing”) and such testing occur as follows:

(a)by 4pm on 18 December 2023 and monthly thereafter;

(b)at a laboratory accredited by the National Association of Testing Authorities Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse;

(c)collection by a qualified and certified collector;

(d)chain of custody procedure is to be applied to the sample;

(e)the father is to do all acts and things and sign all documents to authorise the testing laboratory to release the test results directly to the mother and her solicitors; and

(f)the costs of the PEth testing are to be met by the father.

THE COURT ORDERS THAT:

19.In the event that the father fails, refuses or neglects to comply with order 14 of these orders or he returns a CDT test result of 2.3% or greater, then Y and X’s time with him in accordance with these orders be immediately suspended until such time as he produces a CDT test result of less than 2.3% or the parents otherwise agree in writing that time should recommence in accordance with these orders.

20.In the event that the father fails, refuses or neglects to comply with order 15 of these orders or he returns a PEth result of 200ng/mL or greater, then Y and X’s time with him in accordance with these orders be immediately suspended until such time as he produces a PEth test result of less than 200ng/mL or the parents otherwise agree in writing that time should recommence in accordance with these orders.

21.The father attend as soon as possible upon a psychiatrist nominated by the independent children’s lawyer at the father’s expense for the preparation of a psychiatric assessment and report which the father is to file and serve in affidavit form within seven days of its receipt.

22.Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A.An independent children’s lawyer has been appointed on the basis that there are allegations of physical or psychological child abuse.

B.Victoria Legal Aid has been given access to the file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.

C.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of these orders are set out in Attachment A.

D.If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation, but any such application must be made at least 12 weeks prior to the final hearing.

F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

G.If s.102NA of the Family Law Act 1975 applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the court.

H.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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 RILEY:

INTRODUCTION

1. This is an application for interim parenting orders in respect of X, born in 2013 (“X”), and Y, born in 2017 (“Y”). X is now 10 years old and attends grade 4 at E School. Y is now six years old and attends prep at E School.

2. The matter came before the court on 11 December 2023. On that day, certain orders were made by consent and other orders were made by the court. At the time, the court gave brief reasons for the orders that were not made by consent, but said that more full and formal reasons would be provided upon request. The father requested more full and formal reasons. These are those reasons.

3. The main issues in the proceeding were:

   (a)whether the father should be psychiatrically assessed in circumstances where:

   (i)according to the mother, he had admitted in writing that he had been diagnosed with a mental health condition;

   (ii)the family consultant said that he displayed narcissistic traits; and

   (iii)the father allegedly had a serious problem with alcohol; and

   (b)whether Y and X should spend overnight time with their father.

   BACKGROUND

4. The mother is a professional and works part-time. The father is a self-employed professional and works from home full-time.

5. The parents met as university students in 2002. They commenced cohabitation in 2009 or 2010. They were married in 2012, and had X in 2013 and Y in 2017. The parents separated in October 2021. On that day, the police served the father with an interim intervention order which required him to vacate the family home. A final intervention order was made in early 2022. It lasted for 12 months.

6. The mother has continued to live in the former family home. The father initially rented accommodation but now lives in the parties’ investment property, contrary to the mother’s wishes. The parents have an ongoing property dispute.

7. The father conceded to the family report writer that:

   (a)he had two affairs during the marriage;

   (b)on one occasion, when he was angry with the mother, he threw a bottle and it damaged a table;

   (c)he threw an iPad which X was using and it broke;

   (d)he became extremely upset in late 2022 when he discovered that an item of jewellery that had been in his family for a very long time was missing; and

   (e)on that occasion, he had been drinking and yelled at the wife.

8. Since separation, X and Y have lived with their mother. They did not see their father for a few weeks, but then began having dinner with him and spending time together on weekends. Pursuant to orders made on 10 October 2022 by a registrar by consent, X and Y spent time with their father:

   (a)in week 1 during school term:

   (i)after school on Tuesday; and

   (ii)from after school on Thursday until 4pm on Sunday; and

   (b)in week 2 during school term, from after school on Wednesday until before school on Thursday; and

   (c)equal time in school holidays.

9. That works out to four overnights per fortnight during school term.

10. However, on 29 March 2023, the father was ordered by consent to undertake a hair follicle test within seven days. He did not undertake the hair follicle test until three weeks later. In mid‑2023, the father provided to the mother the results of the hair follicle test. They showed his EtG level was 38.1pg/mg, when anything above 30 is described as excessive alcohol use. The mother then suspended X and Y’s time with their father until appropriate safeguards were put in place.

11. On 16 June 2023, the parents consented to orders as follows:

    5.That the children’s time with the father pursuant to paragraph 11 of the Orders dated 10 October 2022 be conditional upon:

    (a)The father providing the mother with a breath test result by Our Family Wizard (breath test result and photo) taken by a device with auto‑dating and Bluetooth capability for photo purposes evidencing him taking the test, and showing a blood alcohol reading below 0.009 within 30 minutes of the commencement of time with the children;

    (b)The father providing the mother with a breath test result by Our Family Wizard (breath test result and photo) taken by a device with auto‑dating and Bluetooth capability for photo purposes evidencing him taking the test and showing a blood alcohol reading below 0.009 between 8:30pm and 9:00pm during any overnight time with the children.

    6.In the event the father fails to provide the breath test results or such results provide a reading of above 0.009 the mother is at liberty to either collect the children immediately or not provide the children for the contact session. Time is to recommence at the next spend time period in accordance with the parties’ usual arrangements pursuant to the 10 October 2022 Orders, as varied by these Orders.

    7.That the father undergo a hair follicle test for alcohol usage only in the week commencing Monday 14 August 2023 and every three months thereafter, with collection to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:

    (a)The father is restrained from cutting his head hair to a length shorter than 4 centimetres and from bleaching, dyeing or otherwise altering his hair;

    (b)Each party is at liberty to provide the collection service with a copy of these orders;

    (c)The father attend at the collection service and submit to the supervised collection of a hair sample;

    (d)The father notify the mother in writing of his appointment time and location;

    (e)The father provide the collector with photographic identification to be recorded before the hair collection and authority, with this order also hereby authorising the collection service, to provide the results of the test to both parties and their legal representatives upon receipt of such test results;

    (f)       The testing shall be for the detection of alcohol; and

    (g)       The costs of the testing are to be met by the father.

    …

    9.That the father be restrained by injunction from consuming alcohol at all times during which the children are in his care.

    10.For the purpose of the June 2023 short term school holiday period, the children will spend the first four consecutive nights with the mother, following which the children will spend time with the parties in an alternating cycle of three consecutive nights until the conclusion of the school holiday period.

    THE MOTHER’S NOTICE OF RISK

12. In her notice of risk filed on 8 September 2022, the mother stated:

    I first raised my concerns about the Respondent's mental health through our respective lawyers after I had a message from the Respondent translated from [F Language] into English. The English version states:

    …

    … I was recently informed and diagnosed with [a mental health condition] in the way I have dealt with work and family member, because I have never come out of the shadow of losing my mother. …

    …

    The Respondent has since denied that he suffers from [a mental health condition] but I remain concerned as the Respondent has hidden his mental health diagnosis from me and initially refused to tell me what prescription medication he was taking. The Respondent also had a hospital attendance while the children were in his care about which he is being secretive. I was concerned that the children were not properly supervised during the hospital visit.

    The Respondent’s lawyers have recently advised that the Respondent has been has been (sic) attending upon his treating psychologist fortnightly since March 2022 for counselling and treatment for depression and that he has been prescribed long-term anti-depressant medication, by his general practitioner, as suggested by his psychologist.

    …

1. At the hearing on 11 December 2023, counsel for the father said that his alleged admission that he had been diagnosed with a mental health condition was a translating error. I asked counsel for the father what the correct translation was. After some time, counsel advised the court that she was instructed that the father had never been diagnosed with anything except depression.

   THE FAMILY REPORT DATED 3 MARCH 2023

2. Ms B prepared a family report dated 3 March 2023. She said:

   9.The mother said that the father was always angry, shouting, and “dumping on [her]”. She reported that the father was sometimes verbally abusive towards her in the presence of the children. She accused him of damaging property and throwing objects, including smashing a bottle on [a] table and [X]'s iPad in [late] 2020. She said that [X] witnessed his iPad being smashed and shook in fear, yet the father never apologised to him. She did not allege that he was physically violent towards her or the children, aside from allegedly pushing her into a door frame on one occasion. She said she called family violence hotlines whilst locked in her car but did not involve the police until the incident at separation.

   10The father acknowledged verbal conflict, throwing items, damaging property, and releasing his anger, but said he never threatened the mother or physically harmed her. He claimed that he never involved the children though acknowledged that they would have overheard arguments. He admitted that he “threw a […] bottle” as he was “angry at [the mother]” and that it broke and damaged [a] table. He seemed to minimise the incident as the children were not involved. It is noted that in his affidavit, he deposed that he “put a bottle down on the table too forcefully” and makes no mention of [it] being thrown in anger.

   11The father's account of the incident in which he broke [X]'s iPad when [X] was present was that the mother was yelling at [X], so he became angry and yelled at her. He said that the mother is “so impatient with the children and yells at them”. He said he “threw [the iPad] to the back”, yelling “don't use it”, as it was the iPad that was making her angry. It is noted that this account differs from that deposed in his affidavit in which he said, “[Ms Yan] pulled the iPad away from [him] and it fell on the floor”.

   …

   15The mother raised concerns about the father's mental stability. She said she contacted the [G Hospital] around 2014 as the father had said he wanted to crash his car and die. She said that the [G] Hospital called him, but he denied suicidal thoughts and stated that he was just angry. She also said he saw a GP who referred him to a psychologist for anxiety but only the (sic) attended once and that he started to tell people that he suffered from depression “to get attention”. She claimed that he had a panic attack in a car once and stated that he had been diagnosed with [a mental health condition] in a message to her, though no such diagnosis exists. His GP [Dr H] indicated he presented with stress, anxiety, and some degree of depression initially, though largely resolved. The father minimised his mental health difficulties during the current evaluation.

   …

   17The mother reported violence to the police [in late] 2022 after the father threw an empty box at her in anger during an argument. The father claimed that his father had given her the [item of jewellery] at their wedding, and it had been passed down by his late mother who had bought [it many years ago]. He said he approached the mother to ask if she had seen the [item] and she said she had misplaced it and not seen it since 2012. He admitted that he became extremely upset that that (sic) they had never looked for it and that he yelled at her in anger. He acknowledged he had been drinking but denied that he was “smashed”. The following day she reported the incident to police. She said the father made roaring sounds downstairs afterwards and she feared for her safety and those that of the children. The father believed that separation had been in the back of her mind for a long time.

   18Victoria Police applied for a full exclusion Interim IVO against the father that listed the mother and children as protected persons, and the father was required to leave the home.

   …

   22The parents both indicated that their communication continues to be problematic. The mother said that she wants to co-parent effectively and is using the parenting app My Family Wizard, but the father is not reading messages on time and does not return items to her, so she must purchase them again. The father said that the mother demands that they communicate through lawyers. He reported that [X] had left his [jacket] under his bed on Wednesday, and he received a hostile, accusatory letter from the mother's lawyers suggesting that [X] was cold and almost became sick. He stated that the mother could have simply messaged him, and he would have looked for the [jacket] and dropped it off to her. He said he simply was unaware that the [jacket] had not been packed. He said that incidents like this make him concerned about the mother's hostile attitude and lack of common sense, and question whether they will be able to co-parent effectively moving forward.

   23[Ms Yan] raised concerns about the lack of routines and boundaries at the father's home. She indicated that the children report going to bed very late and sleeping in the same bed as the father. Whilst both parents indicated that the children are ready for bed around 7:30 PM with lights off by 8:30 PM, [X] confirmed the mother's concerns. The mother said that the father snores in the same bed and that the children are often tired. She is also concerned that the children can turn on the [social media] channel on the father's smart TV, and that there is a lack of supervision and boundaries with regard to screen time. The father said he does not allow screen time on weekdays and only half an hour at most at any time, but [X] stated that there are no rules regarding bedtime or screen time at the father's home.

   24[Ms Yan] said that the father had left belongings at her home, and on inspection, she found a in (sic) imitation [weapon], white powder and rolled up note, and naked photos of women. He stated that the [weapon] was made from plastic and purchased from a two-dollar shop. He said the rolled up note belong to [a friend], and he intended to give back. He denied there was any substance that is not aware of anything being handed to police. He stated that the photos were of his girlfriend from [years ago]. The mother said that police informed her that they cannot act after 12 months, and the property had been in her possession for 13 months at the time of her enquiry.

   …

   31       The children engage in numerous extracurricular activities:

   •Monday - [X] attends [F Language school] from 6 PM to 7 PM

   •Tuesday - [X] has [music] classes and [Y] has [music] classes at school

   •Wednesday – free

   •Thursday - both children have [sports] lessons ([Y] from 4 PM to 4:30 PM; [X] from 4:45 PM to 5:30 PM)

   •Friday - both children have [sports] lessons ([Y] from 4 PM to 4:45 PM; [X] from 4 PM to 5:30 PM)

   •Saturday - Y attends [sports] classes from 9: 15 AM to l 0 AM, [hobby] classes in the afternoon, and [F Language school] from 5 PM to 6 PM; [X] attends [music] classes from l0 AM to l1 AM

   •Sunday - both children attend [sports] lessons from 9 AM to 9:30 PM; Y attends [F Language school] classes from 5 PM to 6 PM.

   The mother said that it feels like the children are doing too much but they are keen to engage in everything and are able to stop if they wish to, though she does not want them to give up music lessons.

   …

   34The children currently live with the mother and spend time with the father according to a two week cycle during school term:

   •during week one, from the conclusion of school on Tuesday/2:20 PM to 7 PM and from the conclusion of school on Thursday/3:15 PM to 4 PM Sunday (parents each arrive early on Tuesdays to school to take Y to her [music] lesson)

   •during week two, from the conclusion of school on Wednesday/ 3:15 PM the commencement of school on Thursday/ 9 AM.

   35The parents spend equal time with the children during school holidays. During term holidays, the children alternate between each parent's home every three days. During the summer holidays, the same routine is maintained before Christmas and then the children alternate between each parent on either a three- or five-day basis in January according to a specific schedule.

   36Changeover occurs at school when possible or otherwise, each parent collects the children from the other parent's home. The father will wait on the street and the mother will bring the children to him at her home and she will drive into the father's carport and wait for the children to come out.

   …

   125In terms of antisocial behaviour, the father has a history of traffic and drink‑driving offences. His blood alcohol reading was over the limit [in] 2005 and 2007 and he lost his license to (sic) 18 months. He was charged with unlicensed driving [in] 2009 and four (sic) driving without an interlock device [in] 2013 and [in] 2014. He used [illicit substances] whilst at university, and said that he last used illicit substances in 2008 when he had cigarettes laced with [illicit drugs]. He denied ever having an alcohol problem, though admitted to occasional binge drinking and being alcohol affected during the incident that led to the separation and IVO. He typically consumes three bottles of wine per week. He believes that his alcohol consumption is well-controlled as he rarely drinks more and does not drink on Mondays or Tuesdays. He denies other forms of addiction and said he has never been accused of violence in any other context.

   126[Mr Sing] indicated that he has never been diagnosed with a psychiatric condition though he thought he was depressed. He now believes that he was just irritated and frustrated by the legal process. However, his GP [Dr H] indicated that he was suffering from stress, anxiety, and some degree of depression that has largely resolved. He was prescribed an antidepressant around [mid]-2022 but stopped taking the medication the medication (sic) after 30 days. He denied contact with community mental health services, but his GP said that he was taken to hospital on one occasion, likely due to stress and anxiety. He does not present with any major physical health issues and denied a history of self-harming behaviour or suicidal ideation.

   127[Mr Sing] does not present with a diagnosable disorder according to the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition - Text Revision (DSM-5-TR), but he presents with personality difficulties including narcissistic traits. He lacked empathy and self-critical reflection and presented with elevated positive impression management. Intellectually, he functions in the high average range by estimate. (emphasis added)

   …

   138Based on the balance of strengths and needs on the FSNA, the likelihood that the children will be exposed to neglect or abuse in [Mr Sing]' s care was rated as low. Protectively, the father presents a strong social network, and an ability to meet the children's basic needs. It is noted that if problematic drinking is confirmed, the father’s rating would likely be in the moderate range. (emphasis added)

   …

   140[X] seemed extremely nervous and uncomfortable being interviewed, though he was very polite. He repeatedly cleared his throat and made odd sounds which improved somewhat after the assessor gave him a drink. He spoke with a lisp and was reluctant to speak ill of his father. His eyes welled up with tears from time to time and he began to cry when speaking negatively about the father. It was evident that he is very sensitive and does not like being involved in the parents’ dispute. The mother explained that he had been anxious about the current evaluation.

   …

   143     [X] said he likes the current time arrangements, as “it feels even”.

   …

   154[Y] said she likes spending time with mum more than dad. She said she plays more with mum as dad works a lot. [Y] likes the current time arrangements but said she wants more time with her mother.

   155[Y] said the best thing about her father is his bed and that she sleeps there every day. She said the best thing about her mum is her bed also and that she sometimes sleeps there. She could not think of anything bad about either parent. She said she is never scared or worried with either parent.

   …

   164The father acknowledged messaging and meeting with women and engaging in two affairs during the relationship. He lacked empathy and understanding for the distress his behaviour caused the mother and the severe somatic complaints she experienced due to stress at the time. He said, “I came home every day” when the topic was raised, as if to question why the mother was complaining. The mother said he made no effort to hide his womanising. The mother continues to resent the father for his infidelity and lack of caring for the distress it caused her. She fears the father modelling his [dis]respect for women to the children.

   165Similarly, the father spoke of throwing items, damaging property, yelling, and releasing his anger as if entitled to do so, with little regard for the impact this had on the mother and children. He minimised the behaviour as it was mostly verbal, not directed at the children and he never physically harmed or threatened the mother. He justified throwing and breaking [X]'s iPad by blaming the mother as she was allegedly yelling at [X] and downplayed his behaviour in affidavit material. He did not apologise to [X], though [X] was highly distressed and unable to communicate with his friends during lockdown after his iPad was broken. He failed to recognise his own violent behaviour and poor parenting patterns.

   166[X] began to cry when he spoke to the assessor about this incident and seemed reluctant and fearful about speaking ill about his father. Whilst the father raised concerns about [X] being emotional, he failed to consider that his aggressive behaviour may have contributed to [X]'s emotional sensitivity and distress.

   167The father does not believe that his alcohol consumption has ever been problematic. It is possible that the mother is highly sensitive to alcohol use as she does not consume alcohol at all, and it has been 16 years since the father was charged with drink-driving. However, alcohol use seems to have been a feature during several major incidents between the parents, including that which triggered the separation and IVO. It is recommended that the father undergoes testing to assess whether the father engages in persistent heavy alcohol consumption, and that he commits to maintaining a blood alcohol concentration below .05% when the children are in his care. (emphasis added)

   …

   171Whilst a secure attachment was observed between the children and the mother, the father's interaction raised concerns about his capacity and/or willingness to adapt his behaviour to the children and engage in appropriate play. Whilst it is recognised that the interaction observed was brief, parents typically magnify their engagement with the children to impress the assessor, and the father's presentation was consistent with the mother's descriptions. The father seemed more focused on his own needs and interests, and only superficially attuned to those of the children. It is also noted that he is co-sleeping with the children which does not support the development of resilience and independence and typically compounds separation anxiety issues, which is of concern as the father says that [Y] is clingy and both children struggled to engage with the assessor. Whilst the father has been highly engaged in a practical sense, cooking for the family and transporting the children to day programs and extracurricular activities, he would benefit from building his parenting skills to include improved emotional attunement, fostering autonomy and independence, instilling a sense of security and safety in the children, and engaging in age-appropriate play.

   172Neither parent presents with a diagnosable disorder according to the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition - Text Revision (DSM-5-TR), but both parents present with personality difficulties and the father previously struggled with anxiety and depression. The mother presented as naive and submissive, with low self-esteem, whereas the father presented with narcissistic traits, superficial charm, and elevated positive impression that reflected both a lack of insight into his own difficulties and a desire to present more positively than is likely to be accurate. (emphasis added)

   173At the age of nine years, [X] presented as a somewhat anxious, sensitive, and shy child who seemed worried to speak ill of his father, yet distressed about his father's previous behaviour, including anger, yelling, and breaking his iPad. It is unfortunate that he feels somewhat triangulated in his parent’s dispute and important that he engages with a child psychologist. [X] needs to be given a safe space in which to openly discuss his struggles without repercussion or report to the Court. It was concerning that the father lacked insight into his son’s difficulties. [X] expressed that he likes the current arrangements but there was also a sense he did not want to be involved in decision-making regarding time arrangements.

   174[Y], at the age of five years, though shy and clingy, has been less impacted by the separation and exposure to conflict and tension between the parents, and did not present with developmental concerns. She has formed a secure, primary attachment to the mother and is seeking even more time with her mother.

   175Neither child's views were given significant weight due to their levels of maturity, young ages, limited understanding of the parents' dispute and the long-term consequences of their proposals, and [X]'s fear of upsetting his parents.

   176In summary, both parents are capable of meeting the children's basic needs and neither presents with significant issues of risk, provided that it is established that the father's drinking is not problematic, and he engages in the recommended treatment and programs. However, there is a significant difference between the depth of each parent’s parenting skills, their understanding and responsiveness to the children’s interests, and emotional attunement to the children. The father is highly materialistic and struggled to engage in play. It is evident that the children have a closer bond with the mother. However, both parents are devoted to the children, the father’s aggression during the relationship does not appear to be present since separation, and the father’s mental health has improved with treatment. It is important that both parents have sufficient time to strengthen and nurture their relationships with the children. (emphasis added)

   RECOMMENDATIONS

   In the absence of evidence to the contrary, the following recommendations are respectfully made:

   1.        The parents have equal shared parental responsibility for the children.

   2.        The children live with the mother.

   3.        If children spend time with the father: (emphasis added)

   i)        during school term,

   a.during week one of each fortnight, from the conclusion of school on Thursday (or 3:15 PM on a non-school day) until the commencement of school on Monday (or 9 AM Tuesday if a non-school day);

   b.during week two of each fortnight, from the conclusion of school on Wednesday (or 3:15 PM on non-school days) to the commencement of school on Thursday (or 9 AM on non‑school days).

   ii)During the term holidays of 2023, the children spend equal time with the parents for two weeks according to a 4-3-3-4-night arrangement so that each parent has time over a weekend (and otherwise according to the school term arrangement, with consideration given to the equal division of time at Easter).

   iii)School holidays occur according to a week-about arrangement starting from the 2023/2024 summer holidays.

   …

   8.The father discontinues co-sleeping with the children to promote resilience and independence. This may require a period in which the father resettles the children in their beds if they get up in the night. (emphasis added)

   …

   10.The father undergoes alcohol testing, both a CDT blood test and a hair follicle drug screen (specifying the inclusion of alcohol).

   11.The father maintains a blood alcohol concentration of .05% or below whilst the children are in his care.

   12.[X] engages with a psychologist fortnightly for a minimum six months. It is recommended that therapy is nonreportable so that [X] feel secure and is not triangulated in the parents’ dispute.

   13.The father engages in therapy to address personality difficulties, including narcissistic traits, and a copy of this report is provided to the treating clinician. It is appropriate for the father to engage in such treatment with his current therapist, mental health social worker [Dr J], if [Dr J] has expertise in the treatment of personality difficulties.

   14.The father engages in a Tuning into Kids Program, such as those offered by [K Centre], and [L Program] such as that offered by [M Centre], unless previously completed. (emphasis added)

   …

   THE MOTHER’S AFFIDAVIT OF 3 OCTOBER 2023

1. The mother’s affidavit affirmed on 3 October 2023, which was filed in support of her application in a proceeding in which she sought orders for X and Y to spend daytime only with their father until further order, included or referred to documents showing that:

   (a)the father’s bank records showed that, between late 2020 and late 2021, he spent on credit card an average of $413 per week at alcohol retailers, which did not include purchases at bars and restaurants or by cash;

   (b)the father’s bank records showed that, between late 2021 and mid-2023, he spent on credit card an average of $195 per week at alcohol retailers, which did not include purchases at bars and restaurants or by cash, and he had also increased his cash withdrawals from the bank;

   (c)the father’s first hair follicle test on 18 April 2023 showed the father’s EtG was 38.1pg/mg, when 30pg/mg reflects excessive alcohol use;

   (d)the father’s second hair follicle test on 14 August 2023 showed his EtG had increased to 58.1pg/mg;

   (e)the father’s third hair follicle test on 13 September 2023 showed his EtG was 30pg/mg, while a blood test the same day showed that his PEth was 520ng/ml, where a level above 200ng/ml indicates excessive alcohol consumption;

   (f)the father’s driving criminal record consists of a number of charges from 2005 to 2016 that included exceeding the prescribed concentration of alcohol; driving while unlicensed; breaching an alcohol interlock device licence condition; and a number of other traffic offences.

   THE PHARMACOLOGIST’S AFFIDAVIT OF 19 OCTOBER 2023

2. The father obtained an affidavit affirmed on 19 October 2023 by a pharmacologist, Dr N. Dr N said that:

   1.3.All of the above tests evaluate the average alcohol ingestion patterns that have occurred in the respective time periods represented by the repective (sic) sample.

   1.4.That is, the hair samples eveautae (sic) the average pattern of alcohl (sic) consumption in the approximate 3 to 4 months prior to the collection of the respective hair sample.

   1.5.The PEth results, represents the ingestion of an amount of alcohol in the day or days prior to the collection of the sample.

   1.6.None of the above tests are able to decipher on which days alcohol was or was not ingested and as such it is reasonable that [Mr Sing] did not ingest alcohol when he was restricted by the orders (4 nights and one dinner per fortnight) and consumed an amount of alcohol on days when he was permitted to ingest alcohol (presumably 9 to 10 nights).

   1.7.There is no evidence from these results, including the provided breath test results, that [Mr Sing] is consuming and/or under the influence of alcohol while the children are in his care.

   1.8.The provided hair and blood results are consistent with the breath test results for the period 17 May 2023 to 12 September 2023.

   …

   3.1.Given the current orders allow [Mr Sing] to consume alcohol when not caring for the children, PEth testing and hair testing for EtG are not suitable to assess compliance to (sic) the orders.

   3.2.The only testing regime that would be suitable to detect the use of alcohol by [Mr Sing] is the ongoing breath testing regime that detects alcohol in the breath at the relevant times.

   THE FATHER’S AFFIDAVIT OF 20 OCTOBER 2023

3. In his affidavit affirmed on 20 October 2023, the father claimed at paragraph 20 that:

   I usually consume up to 3 bottles of wine per week:

   (a)During the marriage, I typically consumed alcohol 4 days per week (usually abstaining on Monday, Tuesday and one other day). I usually drank up to 4 glasses of [wine] over the course of an evening between about 4.30 pm while I was preparing dinner and bedtime.

   (b)From October 2022 to May 2023, I usually consume between 2-3 bottles of [wine] per week

   (i)I did not usually drink alcohol on Wednesdays, Thursdays or Sundays while the children were in my care.

   (ii)Some Friday and Saturday evenings when the children were in my care, I drank alcohol. I typically [drank] 2-3 glasses of [wine] with dinner and after dinner either at home or at a restaurant with friends.

   (iii)Other Friday and Saturday evenings when the children were in my care, I did not consume any alcohol at all.

   (c)From 12 May 2023, I usually consume between 2-3 bottles of wine per week, although I did not consume any alcohol between late June 2023 and 14 August 2023. I have not consumed alcohol on the days the children are in my care.

   AFFIDAVIT OF THE NEUROPHARMACOLOGIST

4. On 23 November 2023, a neuropharmacologist, Mr D, swore an affidavit saying that:

   It is not possible to determine a precise level of average daily alcohol consumption on the basis of either EtG or PEth tests but the results do suggest general ranges.

   All test results suggest [Mr Sing] consistently engages in regular, excessive alcohol consumption. EtG results from all tests from 18 April 2023 indicate excessive alcohol consumption. This likely equates to daily ingestion of more than 3 - 4 standard drinks per day, each day, but could be much more. Since hair grows at approximately 1 cm per month, this represents a total period of alcohol consumption from around January 2023 to the date of the last sample collection on 13 September 2023. A concentration greater than 7 pg/mg in a proximal scalp hair suggests but does not prove repeated alcohol consumption. A concentration > 30 pg/mg EtG in the proximal scalp hair strongly suggests chronic excessive alcohol consumption (Luginbiihl et al., 2019).

   It should be noted that there is some uncertainty in interpretation of EtG hair testing. It is well established that hair treatments and use of some shampoos can greatly reduce EtG content of hair, particularly those sold by online sites to reduce risk of positive drug test results (ibid.). The interpretation of results below should be considered in light of this uncertainty. (emphasis added)

   [Mr Sing]' s EtG test result from 18 April 2023 (38.1 pg/mg) is well above the threshold of excessive alcohol consumption suggesting he consumed, on average more than 3 – 4 standard drinks per day. The higher result on 14 August 2023 (58.l pg/mg) strongly suggests [Mr Sing]'s average consumption of alcohol increased further overall in the 3 – 4 months prior to collection of that sample and may have been much greater than 3 – 4 drinks per day. This is despite claimed abstinence for much of the period, nearly two months prior to sample collection (or nearly one half of the representative period), during which no accumulation of EtG would occur. The lower test result of 30 pg/mg from the sample collected voluntarily on 13 September 2023 suggests possible decline of average alcohol consumption after 14 August 2023 but this interpretation is inconsistent with the his blood PEth result of 520 ng/mL at the same time, which indicates very high alcohol consumption in the month before 13 September (see below). [Mr Sing]'s PEth blood test result from 13 September 2023 (520 ng/mL) is well above the threshold considered to reflect excessive alcohol consumption. PEth levels above 300 ng/L) are considered to be a marker of chronic excessive alcohol consumption roughly in the month prior to collection of the sample (e.g. Isaksson et al., 2011; Hahn et al., 2016). This strongly suggests he was consistently consuming more than an average of 3 - 4 standard drinks per day.

   …

   Quantity consumed: Consumption of 2 - 3 bottles of wine (18 - 24 standard drinks) per week equates to 2 - 3 standard drinks per day if [Mr Sing] drank every day. All test results suggest average consumption of much more than this and perhaps at least double the quantity, or 4 - 6 bottles of wine per week.

   Period of abstinence: Abstinence from late June to 14 August 2023 is not consistent with [Mr Sing]' s higher EtG test result on 14 August 2023 unless his consumption in the period from 15 April to late June (roughly two months) was much greater than the 3 – 4 months prior to April. The result (58.1 pg/mg) suggests a considerable average escalation in alcohol consumption overall in the April to August period versus the January to April period. If nearly two months of abstinence is interposed then his daily consumption from April to June likely escalated to over 10 standard drinks per day if he drank every day.

   Abstinence while caring for children from 12 May: If [Mr Sing] did not consume alcohol on any of the days the children have been in his care then his consumption of alcohol on other days must have been much higher than estimated above. The periods of care represent a third to one half of each week on average so his estimated average consumption of alcohol during days children were not in his care must have been nearly double those estimated above and much greater (more than double) his claimed level of consumption considered in the points above.

   …

   As discussed in 1.1 and 1.2 above, it is very likely that [Mr Sing]'s alcohol consumption increased after taking the first hair follicle test, before taking the second hair follicle test.

   …

   As discussed in 1.1 and 1.2 above, if [Mr Sing] was abstinent between late June 2023 and 14 August 2023, a time when his EtG test result almost doubled from the earlier test, it is very likely that his alcohol consumption was much more than double that reflected by the results of the first hair follicle test that approximately represents January to April 2023.

   …

   Some of [Mr Sing]'s claims about his alcohol consumption patterns are very unlikely to be true, as discussed above. Although quite uncertain, his reduced EtG test result in September, that still reflects excessive alcohol consumption, could have been due to use of a shampoo or other hair treatment to reduced EtG test levels because the fall is very inconsistent with the highly elevated PEth test in September. For monitoring long term use blood test markers are more reliable than hair tests. PEth testing, perhaps combined with CDT (carbohydrate deficient transferrin) testing of blood on a regular basis (monthly to two monthly) may be needed to monitor what is clearly a pattern of very heavy, ongoing excessive alcohol consumption. (emphasis added)

   …

   A more reliable process of enforcing compliance with breath testing such as regular evidence of calibration of the instrument and a better method to ensure communication of compliance (video recording of process and result rather than snapshot) could improve evidence of compliance with orders. Occasional random collection of urine for alcohol testing on days [Mr Sing] is with children, e.g. prior to collection from school would overcome any concerns about breath test evasion or tampering with breath testing equipment.

   …

   THE CURRENT APPLICATION

5. The mother filed an application in a proceeding on 3 October 2023 to discharge order 11 of the interim orders made on 10 October 2022 and order 5 of the interim orders made on 29 March 2023. Those orders respectively allowed for X and Y to spend overnight time with their father during school terms and school holidays. The mother proposed that, instead of those orders, X and Y spend daytime only with their father. The father proposed that the existing orders continue.

6. Order 11 of the interim orders made on 10 October 2022 is as follows:

   The children spend time with the Husband as follows:

   (a)During the school term, the children spend time with the Husband in a fortnightly cycle as follows:

   (i)        In week 1:

   1.From 2.20 pm (or 3.15 pm if a non-school day) on Tuesday until 7.00pm; and

   2.From the conclusion of school or 3.15pm (if a non-school day) on Thursday until 4.00pm on Sunday;

   (ii)       In week 2:

   1.From the conclusion of school or 3.15pm (if a non-school day) on Wednesday until the commencement of school or 9.00am (if a non-school day) on Thursday.

   (b)During the short-term school holidays, the children spend time with the parties in an alternating cycle of three consecutive nights, commencing from the conclusion of school on the last day of term, until the conclusion of the school holidays when the usual fortnightly regime resumes, as if not interrupted by the school holidays, with the first three consecutive nights to be with the Father.

   (c)During the long summer school holidays in December 2022 / January 2023, the children spend time with the parties as follows:

   (i)Until 11.00am on 24 December 2022, in the fortnightly cycle provided for in paragraphs 10 and 11(a) of these Orders;

   (ii)With the Mother from 11.00am on Christmas Eve until 11.00am on Christmas Day;

   (iii)With the Father from 11.00am on Christmas Day until 11.00am on Boxing Day;

   (iv)With the Mother from 11.00am on 26 December 2022 until 11.00am on 29 December 2022;

   (v)With the Father from 11.00am on 29 December 2022 until 11.00am on 1 January 2023;

   (vi)With the Mother from 11.00am on 1 January 2023 until 11.00am on 6 January 2023;

   (vii)With the Father from 11.00am on 6 January 2023 until 11.00am on 11 January 2023;

   (viii)With the Mother from 11.00am on 11 January 2023 until 11.00am on 16 January 2023;

   (ix)With the Father from 11.00am on 16 January 2023 until 11.00am on 21 January 2023;

   (x)With the Mother from 11.00am on 21 January 2023 until 11.00am on 24 January 2023;

   (xi)With the Father from 11.00am on 24 January 2023 until 11.00am on 27 January 2023; and

   (xii)With the for fortnightly cycle provided for in paragraphs 10 and 11(a) of these Orders to resume as and from 27 January 2023.

   (d)Such further or other times as may be agreed between the parties in writing.

7. Order 5 of the interim orders made on 29 March 2023 is as follows:

   During the short term school holidays, the children spend time with the parties in an alternating cycle of three consecutive nights, commencing from the conclusion of school on the last day of term until the day before the following school term resumes, with the children to spend the first three consecutive nights with the Husband in the April 2023 school holidays and with the Wife in the June 2023 school holidays and alternating in each short term school holiday period thereafter.

   MATERIAL RELIED UPON

8. The mother relied upon:

   (a)the application in a proceeding filed on 3 October 2023;

   (b)her affidavit affirmed on 3 October 2023;

   (c)her Notice of Child Abuse, Family Violence or Risk filed on 8 September 2022;

   (d)the family report by Ms B dated 3 March 2023;

   (e)the affidavit sworn by Mr D on 23 November 2023; and

   (f)the mother’s case outline filed on 7 December 2023.

9. The father relied upon:

   (a)the response to application in a proceeding filed on 20 October 2023;

   (b)his affidavit affirmed on 20 October 2023;

   (c)the affidavit affirmed by Dr N on 19 October 2032;

   (d)the affidavit affirmed by the father on 22 November 2023;

   (e)his affidavit affirmed on 4 December 2023; and

   (f)his case outline filed 8 December 2023.

   ORDERS BY CONSENT

10. At the interim defended hearing on 11 December 2023, the parents consented to the following orders:

    THE COURT ORDERS BY CONSENT THAT:

    1.The matter be adjourned for a compliance and readiness hearing before Judge Bender on 8 May 2024 at 10am.

    …

    9.The parents do all things necessary to obtain an updated family report from [Ms B] at their equal shared expense following the provision of the father’s psychiatric report by [Dr C].

    10.The independent children’s lawyer be at liberty to provide to [Ms B] copies of:

    (a)       [Dr C]’s report;

    (b)       any court orders in this proceeding; and

    (c)any documents produced under subpoena, subject to any objections to inspection.

    11.The parents each provide to [Ms B] and [Dr C] all documents they have filed in this proceeding.

    …

    13.[Y] and [X] spend time with their father on Christmas Day, 25 December 2023, from 11am until 4pm.

    …

    THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

    14.[Y] and [X]'s time with their father be conditional upon:

    (a)the father providing the mother with a blood alcohol content (“BAC”) test result and a simultaneous photograph evidencing him taking the BAC test, showing a blood alcohol reading below 0.009 within 30 minutes of the commencement of time with [Y] and [X]; and

    (b)the father providing the mother with a BAC test result and a simultaneous photograph evidencing him taking the BAC test, showing a blood alcohol reading below 0.009 between 8.30pm and 9.00pm during any overnight time with [Y] and [X].

    15.In the event the father fails to provide the BAC test results or such results provide a reading of above 0.009 the mother is at liberty to either collect [Y] and [X] immediately or not provide them for the contact session. Time is to recommence at the next spend time period in accordance with these orders.

    16.For the purposes of the BAC testing to be performed by the father prior to and throughout his time with [Y] and [X]:

    (a)the father use the RBT Mini Smartphone Breathalyser or an equivalent device which enables him to undertake BAC testing while a photograph is simultaneously taken of him undertaking the test with both test results and photograph to be uploaded to the corresponding mobile phone application (“the app”);

    (b)the father do all acts and things necessary to ensure that the mother receives notifications via the app; and

    (c)in the event that the mother is unable to receive such notifications via the app, the father is to send his BAC result and a contemporaneous photograph of him using the breathalyzer to the mother using the application Our Family Wizard.

    17.The father undertake supervised blood tests to identify the level of carbohydrate deficient transferrin (“CDT”) in the his blood (“CDT testing”) and such testing occur as follows:

    (a)by 4pm on 18 December 2023 and monthly thereafter;

    (b)at a laboratory accredited by the National Association of Testing Authorities Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse;

    (c)collection by a qualified and certified collector;

    (d)chain of custody procedure is to be applied to the sample;

    (e)the father is to do all acts and things and sign all documents to authorise the testing laboratory to release the test results directly to the mother and her solicitors; and

    (f)the costs of the CDT testing are to be met by the father.

    18.The father undertake supervised blood tests to identify the level of phosphatidylethanol (“PEth”) in his blood (“PEth testing”) and such testing occur as follows:

    (a)by 4pm on 18 December 2023 and monthly thereafter;

    (b)at a laboratory accredited by the National Association of Testing Authorities Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse;

    (c)collection by a qualified and certified collector;

    (d)chain of custody procedure is to be applied to the sample;

    (e)the father is to do all acts and things and sign all documents to authorise the testing laboratory to release the test results directly to the mother and her solicitors; and

    (f)the costs of the PEth testing are to be met by the father.

    SPEND TIME ORDERS SOUGHT BY THE MOTHER

11. In her outline of case filed on 7 December 2023, the mother sought the following spend time orders:

    17.      Until further order, the children spend time with the Husband as follows:

    (a)       During the school term, in a fortnightly cycle as follows:

    (i)        In week 1:

    (1)From the conclusion of school on Friday until 7.00pm;

    (2)       On Saturday from 9.00am until 4.00pm;

    (3)       On Sunday from 9.00am until 4.00pm.

    (ii)       In week 2:

    (1)From the conclusion of school on Wednesday until 7.00pm.

    (b)During the summer school holidays 2023/2024, each alternating consecutive three day period from 9.00am until 4.00pm commencing on the first Saturday of the school holiday period (being 9 December 2023), as follows:

    (i)        On Saturday 9 December 2023 from 9.00am until 4.00pm;

    (ii)       On Sunday 10 December 2023 from 9.00am until 4.00pm;

    (iii)      On Monday 11 December 2023 from 9.00am until 4.00pm;

    (iv)      On Friday 15 December 2023 from 9.00am until 4.00pm;

    (v)       On Saturday 16 December 2023 from 9.00am until 4.00pm;

    (vi)      On Sunday 17 December 2023 from 9.00am until 4.00pm;

    (vii)     On Thursday 21 December 2023 from 9.00am until 4.00pm;

    (viii)     On Friday 22 December 2023 from 9.00am until 4.00pm;

    (ix)      On Saturday 23 December 2023 from 9.00am until 4.00pm;

    (x)       On Wednesday 27 December 2023 from 9.00am until 4.00pm;

    (xi)      On Thursday 28 December 2023 from 9.00am until 4.00pm;

    (xii)     On Friday 29 December 2023 from 9.00am until 4.00pm;

    (xiii)     On Tuesday 2 January 2024 from 9.00am until 4.00pm;

    (xiv)     On Wednesday 3 January 2024 from 9.00am until 4.00pm;

    (xv)     On Thursday 4 January 2024 from 9.00am until 4.00pm;

    (xvi)     On Monday 8 January 2024 from 9.00am until 4.00pm;

    (xvii)    On Tuesday 9 January 2024 from 9.00am until 4.00pm;

    (xviii)   On Wednesday 10 January 2024 from 9.00am until 4.00pm;

    (xix)     On Sunday 14 January 2024 from 9.00am until 4.00pm;

    (xx)     On Monday 15 January 2024 from 9.00am until 4.00pm;

    (xxi)     On Tuesday 16 January 2024 from 9.00am until 4.00pm;

    (xxii)    On Saturday 20 January 2024 from 9.00am until 4.00pm;

    (xxiii)   On Sunday 21 January 2024 from 9.00am until 4.00pm;

    (xxiv)   On Monday 22 January 2024 from 9.00am until 4.00pm;

    (xxv)    On Friday 26 January 2024 from 9.00am until 4.00pm;

    (xxvi)   On Saturday 27 January 2024 from 9.00am until 4.00pm; and (xxvii)     On Sunday 28 January 2024 from 9.00am until 4.00pm;

    (c)During the school term holidays, each alternating consecutive three day period from 9.00am until 4.00pm commencing on the first Monday of the school holiday period.

    SPEND TIME ORDERS SOUGHT BY THE FATHER

1. In his case outline filed on 10 October 2023, the father sought the following spend time orders:

   2.During the long summer holidays in December 2023/January 2024, the children spend time with the parties as follows:

   (a)Until 11 am on 24 December 2023, in the fortnightly cycle provided for in paragraphs 10 and 11(a) of the 10 October 2022 Orders.

   (b)With the Father from 11 am Christmas Eve until 11 am Christmas Day.

   (c)With the Mother from 11 am Christmas Day to 11 am Boxing Day.

   (d)With the Father from 11 am on 26 December 2023 to 11 am 29 December 2023.

   (e)With the Mother from 11 am 29 December 2023 to 11 am 1 January 2024.

   (f)With the Father from 11 am 1 January 2024 to 11 am 6 January 2024.

   (g)With the Mother from 11 am 6 January 2024 to 11 am 11 January 2024.

   (h)With the Father from 11 am 11 January 2024 to 11 am 16 January 2024.

   (i)With the Mother from 11 am 16 January 2024 to 11 am 21 January 2024.

   (j)With the Father from 11 am 21 January 2024 to 11 am 24 January 2024.

   (k)With the Mother from 11 am 24 January 2024 to 11 am 27 January 2024.

   (l)From 11 am 27 January 2024, in the fortnightly cycle provided for in paragraphs 10 and 11(a) of the 10 October 2023 Orders.

   BEST INTERESTS OF THE CHILD

2. Part VII of the Family Law Act 1975 (“the Act”) deals with the court’s power to make orders in respect of children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   (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).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)       to maintain a connection with that culture; and

   (b)       to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)to develop a positive appreciation of that culture.

   (4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

3. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. Section 60CC(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

5. The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

6. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

7. I will address the relevant considerations in order.

   Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

8. There was no dispute that it would benefit both X and Y to have a meaningful relationship with both of their parents.

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

9. In the family report, Ms B said at paragraph 138 that:

   Based on the balance of strengths and needs on the FSNA, the likelihood that the children will be exposed to neglect or abuse in [Mr Sing]'s care was rated as low. Protectively, the father presents a strong social network, and an ability to meet the children's basic needs. It is noted that if problematic drinking is confirmed, the father’s rating would likely be in the moderate range.

10. In other words, the risk of X and Y being exposed to neglect or abuse in the father’s care was assessed as moderate if it transpired that his alcohol consumption was at problematic levels.

11. In addition, Ms B recommended that X and Y stop co-sleeping with their father, to promote their independence and resilience.

12. The mother also alleged that the father frequently failed to get X and Y to school and their other commitments on time. This allegation was not supported by documentary evidence, such as school records of attendance, so it is difficult to place weight on it at an interim hearing.

    Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

13. X told Ms B that he liked the arrangements that were in place in January 2023. Y told Ms B that she wanted more time with her mother than she was having in January 2023. Both children are too young for the views to be given very much weight.

    Section 60CC(3)(b) the nature of the relationship of the child with:

    (i)each of the child’s parents; and

    (ii)other persons (including any grandparent or other relative of the child)

14. Ms B considered that X and Y have a closer bond with their mother than with their father.

    Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long-term issues in relation to the child; and

    (ii)to spend time with the child; and

    (iii)to communicate with the child

15. Both parents have:

    (a)been involved in making decisions about;

    (b)spent time with; and

    (c)communicated with,

    X and Y.

    Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

16. It appears that both parents have contributed to the maintenance of X and Y.

    Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

17. It is not proposed that there be a complete separation of X and Y from either parent. The proposal is to reduce their overnight time with their father to daytime only.

18. This would have the benefits for X and Y of:

    (a)ensuring that they do not co-sleep with him, thus promoting their independence and resilience; and

    (b)reducing the risk of them being abused or neglected by their father, which, on Ms B’s appraisal, would be a moderate risk, in view of the various tests that the father has undertaken showing his excessive alcohol use.

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

19. This factor was not put to the court as a relevant factor in this case.

    Section 60CC(3)(f) the capacity of:

    (i)each of the child’s parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs

20. As described by Ms B, the mother seems to be well able to provide for the needs of X and Y. The father’s capacities in this regard may be somewhat hindered by what Ms B described as his narcissistic traits. Additionally, if the father is continuing to use alcohol to excess, particularly when X and Y are in his care, as the mother alleges and the father denies, he would be impeded in caring for them. For example, if the father was unfit to drive safely, and X or Y needed to be rushed to hospital, the father would be unable to fulfil this basic parental responsibility.

    Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

21. The mother is of Country F heritage and the father is of Country O heritage.

    Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)the likely impact any proposed parenting order under this Part will have on that right

22. This factor does not apply.

    Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

23. The mother has demonstrated an admirable attitude to the responsibilities of parenthood.

24. It appears that the father may have narcissistic personality traits, and an over reliance on alcohol, which may impact on his attitude to the responsibilities of parenthood.

    Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

25. Family violence has been discussed above.

    Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

    (i)the nature of the order;

    (ii)the circumstances in which the order was made;

    (iii)any evidence admitted in proceedings for the order;

    (iv)any findings made by the court in, or in proceedings for, the order;

    (v)any other relevant matter

26. A final intervention order was made on 21 February 2022. It lasted for 12 months.

    Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

27. The proceeding is at an interim stage. This proceeding will need to be finalised before any others are instituted.

    Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

28. I do not consider that there are any relevant facts or circumstances, other than those mentioned elsewhere in these reasons for judgment.

    EQUAL SHARED PARENTAL RESPONSIBILITY

29. Section 61DA of the Act provides as follows:

    (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

    Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

    (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

    (b)family violence.

    (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

    (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

30. The parents consented to an order for equal shared parental responsibility on 10 October 2022. That order has remained in force and is not challenged.

    TIME WITH THE FATHER

31. Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:

    Equal time

    (1)… if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

    (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

    (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

    (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

    Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

    Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

    Substantial and significant time

    (2)      … if:

    (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

    (b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;

    the court must:

    (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

    (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

    (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

    Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

    Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

    (3)For the purposes of subsection (2), 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.

    (4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

    Reasonable practicality

    (5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

    (a)how far apart the parents live from each other; and

    (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

    (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

    (d)the impact that an arrangement of that kind would have on the child; and

    (e)such other matters as the court considers relevant.

    Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

32. Neither party proposed that X and Y spend equal time with each parent.

33. The mother’s proposal provides for X and Y to spend substantial and significant time with their father, save that it does not provide for them to spend overnight time with him. That means that, for the time being, the father would not be involved in X and Y’s entire daily routine. Nor would X and Y be able to co-sleep with their father, as recommended by Ms B.

34. It seems to me that, until other enquiries can be undertaken, it is in X and Y’s best interests to spend daytime only with their father in accordance with the mother’s proposal. This will still amount to a good deal of time between X and Y and their father, which will allow their relationship to progress. It will also allow an independent children’s lawyer to be appointed, a psychiatric report to be prepared in relation to the father, and an updated family report to be prepared with the benefit of more information about the father’s alcohol use than Ms B had at the time of her first family report.

    PSYCHIATRIC REPORT

35. While Ms B did not recommend that a psychiatric report be obtained in respect of the father, she did not have the information that the court now has about the father’s alcohol use. Substantial evidence of excessive alcohol use can be an indicator that a psychiatric assessment may be helpful. Moreover, Ms B noted the father’s narcissistic personality, which is sometimes considered enough by itself for a psychiatric report to be warranted. In addition, in this case, there is the claim that the father admitted that he had been diagnosed with a mental health condition. The father said that that was a mistranslation. Ms B did not find any evidence of the father having a mental health condition. However, on the father’s own case, he has required medication for depression, which he did not take for very long, and he had an unexplained hospital admission.

36. Ms B recommended that:

    The father engages in therapy to address personality difficulties, including narcissistic traits, and a copy of this report is provided to the treating clinician. It is appropriate for the father to engage in such treatment with his current therapist, mental health social worker [Dr J], if [Dr J] has expertise in the treatment of personality difficulties.

1. There was no evidence before the court about Dr J’s expertise with personality difficulties.

2. In my view, the combination of circumstances in this case makes it desirable for a psychiatric report on the father to be prepared prior to any updated family report, which both parents sought.

   CONCLUSION

3. For these reasons, in addition to the orders made by consent on 11 December 2023, orders were made by the court as follows:

   THE COURT ORDERS THAT:

   12.Until further order, [Y] and [X] spend time with their father as follows:

   a.        during the school term, in a fortnightly cycle as follows:

   i.        in week one:

   A.       from the conclusion of school on Tuesday until 7pm;

   B.        from the conclusion of school on Friday until 7pm;

   C.        on Saturday from 9am until 7pm;

   D.       on Sunday from 9am until 4pm;

   ii.        in tweel two:

   A.from the conclusion of school on Wednesday until 7pm; and

   b.during the summer school holidays from 2023 to 2024, each alternating consecutive three day period from 9am until 7pm on the following dates:

   i.        Friday 15 December 2023;

   ii.        Saturday 16 December 2023;

   iii.       Sunday 17 December 2023;

   iv.       Thursday 21 December 2023;

   v.        Friday 22 December 2023;

   vi.       Saturday 23 December 2023;

   vii.      Wednesday 27 December 2023;

   viii.     Thursday 28 December 2023;

   ix.       Friday 29 December 2023;

   x.        Tuesday 2 January 2024;

   xi.       Wednesday 3 January 2024;

   xii.      Thursday 4 January 2024;

   xiii.     Monday 8 January 2024;

   xiv.     Tuesday 9 January 2024;

   xv.      Wednesday 10 January 2024;

   xvi.     Sunday 14 January 2024;

   xvii.     Monday 15 January 2024;

   xviii.    Tuesday 16 January 2024;

   xix.     Saturday 20 January 2024;

   xx.      Sunday 21 January 2024;

   xxi.     Monday 22 January 2024;

   xxii.     Friday 26 January 2024;

   xxiii.    Saturday 27 January 2024; and

   xxiv.    Sunday 28 January 2024.

   c.During the 2024 school term holidays, each alternating consecutive three day period from 9am until 7pm, commencing on the first Monday of the school holiday period.

   …

   19.In the event that the father fails, refuses or neglects to comply with order 14 of these orders or he returns a CDT test result of 2.3% or greater, then [Y] and [X]'s time with him in accordance with these orders be immediately suspended until such time as he produces a CDT test result of less than 2.3% or the parents otherwise agree in writing that time should recommence in accordance with these orders.

   20.In the event that the father fails, refuses or neglects to comply with order 15 of these orders or he returns a PEth result of 200ng/mL or greater, then [Y] and  [X]'s time with him in accordance with these orders be immediately suspended until such time as he produces a PEth test result of less than 200ng/mL or the parents otherwise agree in writing that time should recommence in accordance with these orders.

   21.The father attend as soon as possible upon a psychiatrist nominated by the independent children’s lawyer at the father’s expense for the preparation of a psychiatric assessment and report which the father is to file and serve in affidavit form within seven days of its receipt.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       18 January 2024