Holder & Adams [2022] – Court Upholds Parenting Time Amid Family Violence and Alcohol Concerns

JUDGE MURDOCH

INTRODUCTION

1. These proceedings were initiated by the mother on 17 February 2022 seeking interim and final parenting orders with respect to the two children of the relationship:

(a) X born in 2010, currently 11 years and 10 months of age (“X”); and(b) Y born in 2012, currently 10 years and 1 month of age (“Y”).

2. The matter came before a Senior Judicial Registrar on 24 May 2022 for interim hearing. On that date, the parties were able to resolve a number of issues on an interim basis and interim Orders were made by consent. The matter proceeded to an interim defended hearing on the unresolved issues.
3. Orders were made and judgment delivered as to the outstanding issues by the Senior Judicial Registrar on 30 May 2022 (“the current interim Orders”). An Application for Review of the current interim Orders was filed by the mother on 20 July 2022 (“the Review Application”).
4. All parties including the Independent Children’s Lawyer seek to vary the current interim Orders. The mother seeks the same orders sought by her before the Senior Judicial Registrar. The father and the Independent Children’s Lawyer now both seek a different regime for time between the children and the father during school terms than that originally sought before the Senior Judicial Registrar.
5. The Review Application was listed for hearing before me on 8 August 2022 (“the review hearing”). In the context of the issues in dispute requiring determination both parties filed extensive material and made lengthy submissions in support of the relief sought by them. The review hearing consumed almost the entire day and in those circumstances judgment was reserved.
6. This is the reserved judgment. For the reasons that follow, orders will be made as sought by the father and the Independent Children’s Lawyer.

THE COMPETING PROPOSALS

7. The Orders sought to be reviewed are Orders 2, 3, 4 and 5 made on a defended basis on 30 May 2022 which are:-
   2. The children shall spend time with the father as agreed between the parents and failing agreement as follows:
      1. From after school or 3:00pm each Tuesday until the commencement of school or 9:00am Wednesday.
      2. Each alternate weekend from after school or 3:00pm Friday until before school or 9:00am Monday.
      3. For one half of the terms 1, 2 and 3 school holiday periods being the first half in even numbered years and the second half in odd numbered years with the first half commencing from after school on the children’s last day of attendance of the school term until 5:00pm on the middle Saturday and the second half shall commence at 5:00pm on the middle Saturday and conclude before school or 9:00am on the first day of the new school term.
      4. During the term 4 school holiday period in weeks 1, 3 and 5 in even numbered years and weeks 2, 4 and 6 in odd numbered years with changeovers occurring at 5:00pm Fridays during the school holiday periods.
   3. Changeover shall occur at the children’s school on a school day and on non-school days the father shall collect the children from the mother’s residence at the commencement of time and the mother shall collect the children from the father’s residence at the conclusion of his time or as otherwise agreed between the parents in writing.
   4. Within forty-eight (48) hours of receiving a request from the Independent Children’s Lawyer, at such times and frequency as requested by the Independent Children’s Lawyer, but no more than once every two calendar months, the mother is to attend upon a Pathology Centre to undertake blood testing, as follows:

a. A CDT test to be analysed using the HPLC analysis method; and

2. A Liver Function Test specifically measuring CGT, MCV levels as well as AST and ALT levels.

5. For the purpose of complying with blood testing pursuant to the previous order:

1. Within seven (7) days of these Orders, the mother is to attend a Medical Practitioner to obtain a referral to a Pathology centre to undertake blood tests as provided for in the previous order;
2. The mother is to instruct her medical practitioner that the referral for blood testing is to include a request that a copy of the results be sent to her medical practitioner.
3. The mother is to instruct his/her medical practitioner that the referral provided by the medical practitioner for such blood testing is to include a request that a copy of the results be sent to the Independent Children’s Lawyer and to the other parent or their legal representative (if represented).

8. Further, the mother by way of her Case Outline further seeks to discharge Orders 1, 2 and 3 made by consent on 22 March 2022 which are as follows:-
   1. On a without admissions basis, that the Mother attend to carbohydrate-deficient transferrin (CDT) testing within 72 hours upon the request from the Father’s legal representatives until the Independent Children’s Lawyer files a Notice of Address for Service and thereafter the Independent Children’s Lawyer, and each month thereafter pending further Order.
   2. The parties be equally liable for the Costs associated with the compliance of Order 1, with the father to reimburse the mother one half of the costs incurred within 72 hours of the mother providing the father the tax invoice from the GP appointment to obtain the referral for the CDT test and the Laboratory who has undertaken the CDT test by payment directly into the mother’s ANZ bank account BSB …66 Account # …02.
   3. The Mother provide to the Father’s solicitor and the ICL a copy of the CDT testing results within 72 hours of them being made available to her.
9. The further discharge of orders sought by the mother in her Case outline was not raised as an issue by the father or the Independent Children’s Lawyer at the review hearing. In circumstances where these Orders also relate to the mother undertaking carbohydrate-deficient transferrin (“CDT”) testing I am satisfied that the father and Independent Children’s Lawyer are not prejudiced by me dealing with this aspect of the mother’s application. It is appropriate if I vary or discharge Orders for the mother to undertake testing that all such Orders be varied or discharged.
10. In lieu of these Orders the mother seeks broadly that:-

(a) during school term, the children spend time with the father from Friday afternoon to 5:00 pm. Sunday each alternate weekend and each Tuesday from the conclusion of school to 6:30 pm;(b) during the New South Wales short school holiday periods for five consecutive nights;

(c) during the New South Wales long school holiday period for two separate periods of seven consecutive nights;

(d) that changeovers between the parties occur at either the children’s school or at the mother’s residence; and

(e) that the Orders made on 22 March 2022 with respect to CDT testing be discharged.

11. The father seeks to vary the current interim Orders made for time during the school term so that the children spend time with the father in one block period each alternate Friday from after school until the commencement of school the following Wednesday. He does not seek to change the current interim Orders made for school holiday time or for the mother to undertake CDT and liver function testing. During the course of the interim hearing the father proposed that changeover of the children during school holiday periods occur at the McDonald’s at Suburb B.
12. The Independent Children’s Lawyer agrees with the positon of the father and seeks orders in the same terms.

EVIDENCE

13. The mother in this matter sought to rely on an affidavit totalling 133 pages (including annexures) together with further documents to be tendered. The father’s affidavit, whilst significantly shorter at 37 pages, was also not in compliance with the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth). These rules are to ensure the appropriate allocation of court resources to all litigants before the Court.
14. Leave was granted to the parties to rely on the substantive portion of their respective affidavits, however the parties were advised that I would not read any documents attached to affidavits as annexures or contained within tender bundles unless they were directly referred during the course of submissions or individually tendered. Only a small portion of the parties’ documents were tendered or specifically referred to during the course of submissions. The mother tendered two documents and the father one. The parties are reminded of their mandatory obligation pursuant to r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to conduct proceedings in a manner consistent with the overarching purpose of the Court; being the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
15. In this matter I have read the following documents relied upon by the mother:-
    • the Application for Review filed 20 July 2022;
    • The affidavit of the mother filed 3 August 2022;
    • The Child Impact Report of Ms C dated 15 April 2022 (“the CIR”);
    • The mother’s Outline of Case filed 4 August 2022; and
    • Documents referred to during the course of submissions and/or tendered on her behalf.
16. I have read the following documents for the father:-
    • Response to Initiating Application filed 21 March 2022;
    • Affidavit of the father filed 5 August 2022;
    • Notice of Child abuse, Family Violence, or Risk filed 21 March 2022;
    • the CIR;
    • the father’s Outline of Case filed 5 August 2022; and
    • Documents referred to during the course of submissions and/or tendered on his behalf.
17. The Independent Children’s Lawyer relied upon the CIR and the Outline of Case filed on 6 August 2022.

BACKGROUND

18. The mother was born in Country D in 1970 and is currently 52 years of age. She has a child from a prior relationship, Mr E. He is 30 years of age and does not live with the mother. The mother is currently employed as a allied health professional and works in Sydney CBD or Suburb F.
19. The father was born in Country G in 1986 and is currently 35 years of age. He works full-time as a finance professional in Suburb H, a 10 minute drive from Suburb J where the children’s school is located. He lives in Suburb K with his current partner, Ms L together with their child M (almost 3 years) and Ms L’s child from a prior relationship N who is 6 years of age.
20. It is uncontested that the relationship between the mother and Ms L is strained.
21. The parties commenced cohabitation in 2008.
22. X was born in 2010 and is in year 6 at J School. The school is within walking distance of the mother’s home. X has been diagnosed with Autism Spectrum Disorder, Level 2, and is in receipt of support through the National Disability Insurance Scheme. He has teacher support in the class room.
23. Y was born in 2012 and is in year 5 at J School. Y has been diagnosed with ADHD and Oppositional Defiance Disorder (ODD) and takes Ritalin daily. She attends upon a psychologist.
24. Both children attend a number of extra-curricular activities including swimming, dancing and various other sports. Sport O is on a Tuesday evening near the father’s home.
25. The parties separated on 14 January 2017. The father vacated the home in Suburb P and the children continued to live in the former matrimonial home with the mother. The father lived in close proximity to the mother.
26. A Parenting Plan was entered into between the parties on 13 June 2017. Pursuant to this plan during school terms the children spend 9 nights a fortnight with the mother and 5 nights a fortnight with the father. The children are to spend half of each school holiday period with each party.
27. The father re-partnered in November 2018.
28. The parenting arrangements were confirmed and continued by the parties at a subsequent mediation between them in July 2019.
29. M, the child of the father and his current partner, was born in 2019.
30. On 28 October 2019, an interim Apprehended Domestic Violence Order was made for the protection of the mother and children and restricting the behaviour of the father. The father was charged with threatening, stalking and harassing the mother. The father entered a plea of guilty and he was sentenced to a Conditional Release Order for a period of 9 months.
31. The parties attended a further mediation in 2021 but were unable to reach agreement as to the parenting arrangements for the children.
32. A dispute arose between the parties with respect to the time the children were to spend with each of them over the 2021 Christmas period. The arrangement was for the father to return the children on 27 December 2021. The father did not return the children to the mother until 2 January 2022. The father alleges his retention of the children arose from his concerns as to the mother’s consumption of alcohol. The mother alleges it arose from the dispute over the children’s time with the father over the Christmas period.
33. On 9 January 2022 the father, Ms L, N and M relocated to Suburb K. The father’s home is now approximately 40 minutes drive from the mother’s home and the children’s school. The father’s place of employment is approximately 10 minutes drive from the children’s school.
34. The children spent no further time with the father until after the commencement of the new school year in February 2022.
35. The children subsequently spent time with each party in accordance with the arrangements set out in the 2017 parenting plan until the current interim Orders, the subject of review, were made.

ISSUES BEFORE THE COURT

36. The issues for determination by the Court are:
    • The time arrangements for the children with the father during the school terms. The mother seeks that there be no overnight time during the school week.
    • The length of time the children spend with the father during school holiday periods.
    • The location of changeover of the children between the parties’ households.
    • Whether the current Orders for testing of the mother’s alcohol use should continue.

THE LAW

37. Pursuant to rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) “the Rules” a party may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days of the Registrar’s decision. This Review Application was filed 51 days after the making of the current interim Orders. In circumstances where no objection was taken to the late filing of the application and each of the parties seek a variation of the orders, leave will be granted to extend the time for filing the Review Application.
38. Rule 14.07 of the Rules states that the hearing of an Application for Review of a Registrar’s decision is an “original hearing”; that is, the Court will hear the whole matter afresh rather than determining whether the original decision was in error. The Court may receive further evidence in addition to the evidence before the Registrar: rule 14.07(2).
39. The Full Court in Salah & Salah (2016) FLC 93-713 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286. It also affirmed that the procedure for making interim orders would continue to be a truncated process in which the Court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.
40. Pursuant to s 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) subject to certain sections, a Court may make such parenting order as it thinks proper. In deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration. The children’s best interests are ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC of the Act.
41. The primary considerations as set out in s 60CC(2) are:

(a) the benefit to the children of having a meaningful relationship with both of the children’s parents; and(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

42. In balancing these considerations, the Court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence.
43. Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 said that:

[100] …Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

44. The assessment of risk thus requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event: Dieter & Dieter [2007] FamCA 608. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M (1988) FLC 91-979. The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances, bearing in mind of course the inherent limitations of an abridged hearing.
45. The Court must also consider the Full Court’s statement in Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 namely, that where risk is alleged in interim proceedings, a conservative approach is warranted.
46. As this is an interim hearing I may give my reasons is short form and I am only required to address the relevant considerations as presented by the parties through the evidence and presentation of their case.

SECTION 60CC CONSIDERATIONS

47. Turning now to the primary considerations.

Meaningful Relationship

48. A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. The Full Court in McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, 83,476 at [118]-[119]; adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:

[118] …should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

49. It is conceded at least on an interim basis that the children will continue to live with the mother. Both parties acknowledge having regard to their prospective proposals that it is in the children’s best interests to spend regular time with the father.
50. The mother’s proposal will decrease the time the children are currently spending with the father during school terms. She does not propose any overnight time with the father on school nights.
51. The father’s proposal will vary the time the children are spending with him to one block period in each two week period.
52. The parties agree that the children will spend holiday time with the father. The mother’s proposal is more limited than the father’s proposal with respect to this time.

Risk of Harm

53. Whilst both parties raise serious allegations as to the conduct of the other party, both parties and the Independent Children’s Lawyer agree at this interim stage of the proceedings that the children should live with the mother and spend regular, unsupervised overnight time with the father. The father submits that the risks he alleges with respect to the mother’s alcohol misuse is sufficiently ameliorated by the mother’s continued alcohol use testing.
54. Of significant concern for the Court at this stage of the proceedings is the risk of psychological harm these children may have already suffered as a result of the parties’ own conceded behaviour.

Family violence

55. Both parties make very serious allegations of family violence being perpetrated by the other party. Despite these serious allegations, as set out above, both parties agree that the children will spend unsupervised time with the other party.
56. The father pled guilty to the charges of stalk, threaten and harassment and on 9 December 2019 the father was convicted and sentenced to a Conditional Release Order for a period of 9 months. A final Apprehended Domestic Violence Order was made protecting the mother and restricting the behaviour of the father. This Apprehended Domestic Violence Order has now expired. There are no recorded breaches by the father of the Apprehended Domestic Violence Order. The allegations made by the mother in her affidavit that purportedly gave rise to this conviction is concerning. The mother deposes that on or about 28 October 2019 the father “chased me down the street” and threatened to kill her in the presence of X.^[1]
57. The mother further alleges that the father has occasioned family violence upon the children including yelling at them and destroying property in their presence. She alleges that Y told her on 21 November 2019 that “daddy hit me on Wednesday morning.”^[2] The mother deposes that on 12 July 2019 Y told her that the father had smacked her six or seven times on her legs the previous night as she had accidentally kicked X.
58. The father raises serious allegations with respect to the mother’s conduct including physically assaulting and verbally abusing him in front of the children and physically assaulting the children. An interim Apprehended Violence Order listing the mother as the defendant was subsequently withdrawn in 2019.

Alcohol Use

59. The father alleges that the children are at risk of harm in the mother’s care as a result of her misuse of alcohol. It is the father’s position that ongoing testing as to the mother’s alcohol use on an interim basis provides the mechanism whereby the mother will not drink to excess and thus adequately protects the children.
60. The mother seeks to discharge all Orders made on an interim basis for her to undergo testing as to her alcohol consumption. The mother refutes the allegations as to excessive alcohol consumption and deposes that ongoing questioning by the father of the children has caused them to report events inaccurately. She deposes that she is not dependant on alcohol and does not binge drink. The mother submits that the Court should attach little weight to the father’s allegations in circumstances where he has acted inconsistently with his stated concerns. He did not, it was submitted, raise any issue as to the mother’s alcohol misuse until he filed his Response in these proceedings.
61. It was inferentially submitted that the father is potentially raising these issues in response to an issue arising between the parties over the Christmas 2021 holiday period and that it was only in the midst of this dispute between the parties that the father requested a welfare check of the children on 24 December 2021. The mother submitted that the alleged events giving rise to the father’s email setting out his concerns with respect to the children’s allegedly reporting to him the mother’s misuse of alcohol could only have occurred on 29 December 2021 but the email was sent by him on 27 December 2021. The mother alleges that the father has manufactured his concerns to support his unilateral retention of the children for the purposes of having a holiday with them.
62. The mother alleges that the father has involved the children in making allegations as to the mother’s drinking problem – an example of this being a suggestive text message sent to Y this year as follows: –

[Ms Holder] is doing the wrong thing and I’m sorting this out. Hope she’s now stopped drinking at least…

Drinking a lot still?^[3]

63. The mother further submitted that having orders made for CDT and liver testing is an embarrassment for the mother in circumstances where the children’s schools are provided with copies of the Orders. Whilst this might be a consideration it certainly bears little weight in the consideration of the orders to be made in the best interests of the children on an interim basis. In any event, it is probable that the prior Orders as to alcohol testing have already been provided to the children’s school rendering such an argument otiose.
64. The mother further submitted that the father may be exaggerating allegations to continue a pattern of coercive and controlling behaviour.
65. The mother has undertaken 6 CDT tests this year. The CDT test results are:-
    • on 24 February 2022 a reading was returned of 1.9%. This is in the middle of the range of possible results which is inconclusive but not indicative of probable excessive alcohol use.
    • on 24 March 2022 the test returned a reading of 1.4%;
    • on 1 April 2022 the test returned a reading of 1.5%;
    • on 29 April 2022 the test returned a reading of 1.3%;
    • on 26 July 2022 the test returned a reading of 1.5%.; and
    • with leave being granted to re-open her case and adduce further evidence by consent, a further test result of 5 August 2022 produced a reading of 1.2%.
66. During submissions in reply the mother tendered a letter from her family practitioner, Dr Q dated 31 January 2022. It is addressed “To Whom It May Concern” and states that the mother has had liver function tests checked in the context of routine check-ups on four occasions in the last 2 ½ years and that “All liver function tests…have always been completely normal and show no evidence of harmful alcohol consumption.”^[4] The actual tests are not annexed to this letter nor are they in evidence. I am unable to determine what the doctor’s opinion is as to “normal” and “harmful alcohol consumption.” The purpose of such correspondence is unknown. I accept the submissions of the father that I should place little weight on this correspondence in those circumstances.
67. The mother submits that the tests undertaken by her and the evidence of Dr Q would satisfy the Court that the testing of the mother has served its purpose.
68. The father submits that the circumstances of the readings decreasing are proof that the ongoing testing of the mother’s alcohol use is having a protective effect whilst the proceedings are at an interim stage. The Independent Children’s Lawyer submitted that there has been no evidence given by the mother to explain why there has been a decline in her CDT testing ranges which is cause for concern.
69. The father rejects the assertions that his bona fides are not legitimate. The father submits that without any insight or treatment by the mother the only protective measure that exists for the Court on an interim basis is testing and the mother’s inconvenience or embarrassment is not sufficient reason to discharge the Orders.
70. The father submitted that it is not the case that the father’s concerns were only raised subsequent to these proceedings commencing. Attached to the father’s affidavit is an email from the father to the mother dated 18 January 2016 which includes the following sentences: “Tonight we went to our neighbours, we had a few drinks, it was a good night but you kept on going for [more] and more drinks. I asked you to leave for a long time…”^[5] Later in this email to the mother the father alleges that the mother physically assaulted him and advises her that he will seek lawyers to obtain a divorce. The father ends the email correspondence by stating: “[For the] sake of our co-parenting relationship, please quit alcohol.”^[6] The mother does not appear to dispute that this email was sent.
71. Annexed to the father’s affidavit is an apparent text message from the mother to the father dated 4 September 2019 which states “I’m working out whether it’s best overall to stay alive or not. It’s a practical decision.”^[7]
72. On 27 January 2022, prior to the commencement of these proceedings, a request was made to the mother by the father via the parties’ legal representatives that the mother undertake not to drink alcohol whilst the children are in her care. The mother refused to give such an undertaking.
73. Both X and Y were spoken to by Ms C for the purposes of the Child Impact Report. Both children are reported as being very clear and articulate in their responses to her. The mother submits that the children’s reporting has been effectively “tainted” by the father’s engagement with them with respect to his allegations, Ms C reports that:
    66. Questioning a child about their recall of specific incidents (for example, relating to the mother’s use of alcohol) may often result in the child providing an answer designed to satisfy the questioner. Asking leading questions may well result in inaccurate recall of events and if these stories are then repeated to another person in the child’s presence, memories can be altered. Children who are asked to monitor a parent’s drinking and report back to the other parent may also become hypervigilant. Young children are rarely capable of discerning the difference between social drinking and alcohol misuse.
74. Whilst I accept Ms C’s concerns, both X and Y are reported as saying negative things about both parents and the current situation they find themselves in. I am satisfied in those circumstances that I can place some weight on their reported statements to Ms C.
75. The children are reported as providing to Ms C specific examples of times where it appears the mother may have drunk alcohol to excess. I cannot of course find that this was a regular occurrence or indeed that the mother has issues with her consumption of alcohol. What I do place weight on is X reporting to Ms C his feelings. He is reported as stating that he feels “kind of sad” when his mother is drinking, and that “I find it not nice, I just want to whack it out of her hand.”^[8] He is reported as stating that the testing of alcohol usage the mother is currently undertaking “takes the pressure off.” ^[9] It is of course a concern that X has been made aware of such testing requirement of the mother.

The Children’s Travel

76. The mother seeks as set out above to reduce the children’s time with the father from five nights a fortnight that has been the arrangements for the majority of the time subsequent to the parties’ separation to two nights a fortnight. She seeks that overnight midweek time be reduced to a few hours after school. Some of the reasons relied upon by the mother to ground such a reduction in time between the children and the father is set out in paragraph 81 of her affidavit which states:-

My proposal for the children’s time with [Mr Adams] is a reduction in the children’s time with him. In January 2022 [Mr Adams] moved from [Suburb R] to [Suburb K] to live with his partner and I believe that the additional travel before and/or after school on school days, particularly with the children’s health issues, makes that problematic for the children. I believe that the children should return to my care at 5.00pm Sunday, particularly with [X] Autism and [Y]’s ADHD and ODD, will allow them to transition to school each Monday more rested and without having had a lengthy journey in peak hour traffic, which will benefit them both being able to engage with their school teacher, schoolwork and classmates and friends at school. The same applies to any midweek times and is why I do not think overnight midweek time is best for the children.

77. The mother asserts that the additional travel time is problematic for the children in circumstances where X gets carsick. She deposes that the travel of approximately 40 minutes for the children each way to and from the father’s residence before and after school is causing difficulties for the children. She deposes that the children have told her that X “vomits on many of the drives to and from school.”^[10]
78. The father in contrast deposes that it has only been twice since the move to Suburb K that X has become sick on the journey to and from school. The father deposes that he has taken steps to limit this possibility by not allowing X to use technological devices in the car.
79. The issue as to travel time for the children between the father’s residence and school is dealt with in the Child Impact Report. The children do report that it is an issue for them. X is reported as stating that he “always feels sick in the car and even gets motion sickness when travelling by train, regardless of whether he is watching something on his device or not.”^[11] He is reported as saying that it is “annoying” that he has to get up early to be able to drive to school from the father’s house knowing that he is going to get car sick and could have slept in if he was leaving from the mother’s home. Y is reported as confirming that X often gets car sick. I cannot make a finding at this stage of the proceedings.

The Father’s Care of the Children

80. The mother deposes as to several incidences in her affidavit that she says epitomises the difficulties and disorganisation that has arisen in the father’s household since he moved with his partner to Suburb K. The mother alleges that the children are missing dance and swimming lessons, they are being dropped off too early to school with one incident resulting in them standing in the rain, and that the father has neglected to pack adequate food for the children for the school day.
81. The father disputes that his household is disorganised. He does concede on one occasion Y missed ballet however that was because she was isolating due to Covid-19. The father submits that the purported incidences of the father’s disorganisation in his home are all one off instances. The father concedes there was one incident when the children were dropped off to school 13 minutes early. On this occasion he realised that X had forgotten to take his lunch that day and had gone to purchase some lunch for him. The mother in the meantime had arranged for another lunch and therefore X ended up with two lunches on that day. The father deposes that X has also told him that he has forgotten to take his lunch from the mother’s household.
82. The father disputes that he refuses to take the children to their appointments or has stopped Y from seeing her psychologist.

Needs of the children

83. The mother asserts that the children have special needs and they therefore need routine, organisation and reliability. The mother submits that the children are already struggling at school and if the children’s time with the father is not reduced then the children’s problems will manifest themselves into more obvious problems.
84. The mother asserts that the maximum amount of time the children have spent away from her has been six nights. The mother submits that her proposal is a graduating regime in circumstances where the current interim Orders are “too much too quickly.”

Changeover Issues

85. The mother alleges that there has been a number of problems with respect to changeover of the children between the parties’ households. She asserts that such problems have arisen from the father’s misinterpretation of Court Orders.
86. It is clear that issues have arisen between the parties at contact changeover. In those circumstances the mother seeks orders that changeover occur during school terms at her home at the end of the children’s time with the father as well as at her home during school holiday changeovers. The mother submitted that this would reduce the interaction between the mother and the father’s partner.
87. The father and the Independent Children’s Lawyer both propose that changeover of the children on non-school days occur at the McDonalds at Suburb B which it was submitted was a public place half way between the parties’ respective homes.

Psychological Harm

88. Both parties agree that their relationship has become highly conflictual. It is clear, even at this interim stage, that these children have unfortunately been exposed to and proactively brought into the conflict between their parents. The father’s conduct in calling the mother by her first name to the children does him little credit. The father raising directly with Y the mother’s alcohol use is inappropriate and places Y in an invidious position.
89. Ms C reports at paragraph 50 of the Child Impact Report, “Y said that her mother is always “talking bad about Papa” and “when we are with Papa he is the same about her”. Y finds this quite upsetting and hurtful and would like it to stop.”
90. X is reported as saying that when his parents try to talk to him about their conflict and the Court proceedings it makes him feel “sick in my tummy and very stressed.”^[12]

The Additional Considerations: section 60CC(3)

91. I will now refer briefly to the s 60CC(3) considerations as are relevant.
92. The mother alleges that since 2019, both the children have said to her on occasions that: –
    • the father has threatened to hit them if they did not obey him;
    • they are both scared of the father; and
    • that in 2021 Y told the mother that “I was so upset at Daddy’s that I called the Children’s Helpline to talk to them. I’m scared of daddy.”^[13]
93. The mother alleges that the children have been upset “on nearly every occasion” that they have returned to her care after spending time with the father both of a weekend and overnight midweek. She deposes that Y told her on 23 February 2022 that “My voice is sore from crying on the weekend when I was at Papa’s.”^[14] She alleges that in July 2022 X said to her “I’m glad not to have been at Ms L’s place last weekend and this weekend. I feel calmer and more comfortable and happier here”^[15] and “I don’t want to go to Daddy’s but I’ll go because otherwise Daddy will just whine at me.”^[16]
94. The evidence of the mother as contained in her affidavit is in stark contrast to the reported statements made by the children to Ms C. As stated earlier in these reasons, I give these reported views weight. The children are obviously very articulate and are able to clearly express their wishes and desires.
95. X is reported as stating that:-
    • He likes things the way they are at the moment;
    • He would like to keep seeing both of his parents;
    • He has no concerns in either of the parties’ households;
    • He would like to be able to have more of a say if he wanted to change arrangements if something special was happening; and
    • Having a plan would be good and it is important for him to have it “all written down”.
96. Y is also reported as stating that she has no concerns in either of the parties’ households. Y is clear in her reporting to the Court Child Expert that she feels that the other siblings in her father’s household are favoured.
97. Both of the children reported that their siblings (M and Mr E), their step sister N and stepmother are significant people in their lives. It is reported that Y stated that she doesn’t believe in calling her brothers or N “half or step” and “we are all just brothers and sisters.”
98. I have significant concerns based on the uncontested evidence before me as to the current capacity of each of these parties to provide for the children’s needs. Both parties have engaged in inappropriate conduct both with each other, to the children and in front of the children.
99. The father calling the mother by her first name in texts to the children is inappropriate. The father engaging the children in suggestive questions as to the mother’s use of alcohol is inappropriate.
100. The mother’s texts to the father with respect to his current partner and new child were unnecessary and do her little credit.
101. The apparent engagement by both of these parties with the children in these proceedings is unfortunate. It is unknown what psychological consequences of the parties past behaviours have already had on their children to date and will continue to do so in the future.
102. It is hoped that both parties have carefully read the Child Impact Report by Ms C and will obtain whatever assistance they might need to reflect on the report and how they may change their behaviour in the children’s best interests moving forward. I repeat what X is reported to have said to Ms C:

35. … he gets so tired of this sort of point scoring and wishes they would both just stop doing it. [X] said that his advice to his parents would be to stop fighting over their children and to start enjoying them instead.

103. The mother accepts the children need stability and regularity in circumstances where on the mother’s own application she seeks a change to the current regime.

PARENTAL RESPONSIBILITY

104. In this matter no orders are sought as to parental responsibility on an interim basis. No submissions were made as to this issue. I am satisfied that it is in the best interests of the children that I make no order as to parental responsibility at this stage of the proceedings. Accordingly, each of the parents will continue to have parental responsibility for each of the children.
105. As no order has been made as to parental responsibility I am to make such orders in my discretion that are in the best interests of the children.

DISCUSSION

Alcohol Testing

106. It appears that the issues as to the mother’s use of alcohol was raised by the father well prior to the commencement of these proceedings. It has been a live issue throughout the proceedings to date. Despite the father’s evidence and allegations the mother refused to provide an undertaking that she would not consume alcohol whilst the children were in her care. She has chosen to continue consuming alcohol despite the allegations raised by the father. The tests undertaken by her appear to show that her consumption of alcohol has been decreasing over time.
107. I must act conservatively when weighing up the potential risks to the children of the mother consuming excessive alcohol as against the inconvenience and potential embarrassment caused to her by mandatory testing orders of her alcohol consumption. I am satisfied that on an interim basis it is in the children’s best interests that there be oversight as to the mother’s consumption of alcohol pending a final hearing in the matter. I will not discharge the orders made for such testing made by the Senior Judicial Registrar as sought by the mother.

Time with the Father during School Terms

108. The mother seeks to significantly decrease the time the children will spend with the father from five nights to two nights a fortnight during school terms. The father and the Independent Children’s Lawyer seek to continue the five night a fortnight arrangement that was in place prior to the current interim Orders; albeit in one block period each fortnightly cycle.
109. Counsel for the father made the important point that the mother’s application seeking to significantly curtail the time the children spend with the father was filed prior to any of the alleged instances she has deposed to in her affidavit to ground the relief sought by her. The mother in her final relief seeks orders that the children spend time with the father from Friday through to Monday so, at least on a final basis, the mother says that it is appropriate for the children to go to school from the father’s home.
110. I am not satisfied that the issues raised by the mother in these proceedings justify curtailing the period of time these children spend with the father as sought by her. Whilst both parties appear to have engaged in inappropriate conduct potentially causing irreparable harm to the children, it is clear on each parties’ proposals that neither of them assert that the children are at an unacceptable risk in the care of the other party.
111. The possibility that the father’s household is not as organised as the mother’s does not raise for me a risk of harm that would justify there being a significant decrease in the time the children spend with the father as sought by the mother.
112. The evidence of X’s propensity to get car sick is in dispute. He is reported as stating that it is an issue for him. Despite this however, X is clearly reported as stating that he wishes for the current arrangements (which at that time were 5 nights a fortnight with the father) to continue. I am satisfied that, whilst not optimal if it is found that X is throwing up on each and every occasion that he travels in the car to and from the father’s home, X’ relationship with the father and his siblings outweighs at this interim stage this potential inconvenience.
113. I am not satisfied as submitted by the mother that children travelling 40 minutes to get to and from school is especially onerous for children of X and Y’s age. As submitted by Counsel for the Independent Children’s Lawyer there is no evidence to suggest that any purported tiredness by the children is as a result of their travelling to school from their father’s home. X will in any event be attending high school next year and the travel time that will entail is unknown in circumstances where the parties currently do not agree as to which high school he will be attending.
114. Both children identified to the Court Child Expert that their siblings in their father’s household are significant people in their lives. These are important relationships and should be allowed to develop in a meaningful manner.
115. Both the mother and Ms C report that X and Y feel that their siblings are favoured over them in the father’s household. I agree with the submissions made on behalf of the father that decreasing the children’s time with the father in this context may hinder the ability of X and Y to adapt to a new blended family and may increase their feelings of their siblings being favoured. This is clearly not in their best interests.
116. There is no independent evidence from the children’s school as to any difficulties the children are currently experiencing. There is no evidence that any difficulties the children may be experiencing as alleged by the mother are caused by their current parenting arrangements.
117. There is no evidence before the Court as to how the children would cope with a significant reduction in their time with the father.
118. It is clear that a significant risk factor for these children at this stage is the risk of psychological harm from being exposed to the toxic and conflictual nature of their parents’ relationship. It is unfortunate that it appears that neither of these parties have been able to prioritise the mental health and safety of X and Y above their own perceived needs and wants.

As stated by Ms C:

77. The children have shared their experiences and voiced their concerns about being exposed to the parental conflict and have made it quite clear that they do not wish this situation to continue. It is suggested that the arrangement that will work best for the children is one where they are able to move easily between the two homes without being exposed to further conflict, to enable them to get what they need in terms of a relationship with each parent.

119. Despite the mother’s assertion that the CIR demonstrates the need for structural orders which remove the children from conflict, I am not satisfied that her proposal achieves this. The mother’s proposal will have the children moving between households on six occasions each fortnight and will involve the parties coming into contact with each other on three of those occasions. The proposal of the father and the Independent Children’s Lawyer will involve two changeovers a fortnight and will not involve the parties coming into contact at all when the children move between the respective households during the school term.
120. It is clear that it is in the best interests of these children that these parties come into contact with each other as little as possible until they are able to be more child focused in their interactions with each other. The proposal of the father and Independent Children’s Lawyer that the children during school terms commence and conclude their time with the father at school will decrease the opportunity for these parties to interact. Further, changeover occurring at the children’s school during school terms means that there can be no argument as to when the children’s time is to commence or conclude – there can be no arguments between the parties as the children will be required to be collected from school, the conclusion of school and returned by the commencement of school. Failure to ensure this happens will form part of the school records and the issue addressed again if required at the final hearing.
121. Further, the children spending block periods of time in each household will allow them time to settle into each household. It requires less movement of the children’s belongings between the households which was reported as being an issue raised by X with Ms C. It allows the children to experience block periods of time with their siblings in their father’s household and means that both parties experience and are responsible for the more mundane aspects of parenting such as the supervision of homework.

School Holiday Time

122. The mother seeks orders reducing the time the children will spend with the father during school holiday periods. I agree with submissions made by the father and the Independent Children’s Lawyer that there is no “magic” between the children spending five nights in the school holiday period as sought by the mother and seven nights as sought by the father. I agree that the Court should not arbitrarily limit school holiday time when there is no evidence that such limitations are in the children’s best interests. The mother seeks that the school holiday period be shared equally on a final basis. There is no evidence to support a graduating regime of school holiday time as submitted by the mother. I decline to vary the Orders made by the Senior Judicial Registrar as I am satisfied that they are in the children’s best interest.
123. Changeover of the children between the parties’ households is an issue during school holiday periods. Again the mother seeks that this occur at her home. The father and the Independent Children’s Lawyer propose that changeover occur at a public place, being a McDonald’s halfway between the parties’ homes.
124. I am not satisfied that changeover occurring at the mother’s home will sufficiently reduce the risk that these parties will continue to come into conflict with one another in front of the children. No orders are sought restraining the parties from allowing other persons to be present at changeovers. There is no evidence as to why the mother’s residence as the changeover location would negate the potential for conflict. Changeover occurring at a public place is a practical and reasonable solution to the problem. It should give both parties some comfort as well as importantly the children, that interactions between the parties may be more civil in a public place. Orders will therefore be made on that basis.

Ancillary Orders

125. The issue as to the parties taking the children to their extra-curricular activities was raised during the course of the interim hearing. I do not need to make any orders in this regard as Order 6 made by consent on 30 May 2022 requires both parties to take the children to all their extra-curricular and sporting events whilst the children are in their care.

CONCLUSION

126. I reiterate that it is hoped that both parties have read carefully and reflected on Ms C’s report. The children are reported as being very clear in what is causing them distress. As Ms C states:
     81. Both parents need to address those behaviours that have been identified as causing stress to the children. In order to reach their full potential, [X] and [Y] will need their parents to step up and do a better job of co-parenting…

127. For the reasons set out above, I am satisfied that the orders sought by the father and the Independent Children’s Lawyer are in X and Y’s best interests and I make orders accordingly.