Beale and Beale
[2011] FMCAfam 305
•2 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEALE & BEALE | [2011] FMCAfam 305 |
| FAMILY LAW – Parenting orders – real concerns about the capacity of both parents to provide for the needs of the children – risk minimisation exercise. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 91B |
| Applicant: | MS BEALE |
| Respondent: | MR BEALE |
| File Number: | SYC 1888 of 2010 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 7 & 8 March 2011 |
| Date of Last Submission: | 8 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carr |
| Solicitors for the Applicant: | Verekers Lawyers |
| Counsel for the Respondent: | Ms Barker |
| Solicitors for the Respondent: | Heard McEwan Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Macpherson |
| Independent Children’s Lawyer: | Rebecca Bailey & Associates |
ORDERS
The parents have equal shared parental responsibility for the children [X] born in 2005 and [Y] born in 2008 ("the children").
Each parent shall have the sole responsibility for making decisions about the children's day to day, care and development during times the children live with them respectively.
Each parent shall ensure the other is kept informed as soon as is reasonably practicable for:-
(a)Any medical problems or illnesses suffered by the children whilst in their care.
(b)Any medication that is being prescribed for the children.
(c)Any specialist medical appointments with any doctor, psychologist, psychiatrist, counsellor or therapist regarding the children.
(d)Any social, school or religious functions which the children are to attend.
(e)The residential address of each parent.
(f)The details of any person with whom each parent may be residing (including full name and date of birth)
(g)The telephone contact number of each parent.
(h)Any other matter relevant to the welfare of the children.
For the purpose of facilitating Order 1 and 3 herein, the parents shall communicate in the absence of the children (presence or hearing) by way of telephone.
Each parent be entitled to attend all events involving the children including but not limited to sporting functions, extracurricular activities that allow for parental attendance or participation, school functions and events that allow for parental attendance or participation, and the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child's transportation to and from the event unless otherwise agreed between the parents.
The children live with the Father.
The children spend time with the Mother as follows:
(a)Both children:
(i)From 10.00am to 4.00pm each Saturday until 1 March 2012
(ii)From 1 March 2012, each alternate weekend from 2.00pm Saturday to 10.00am Sunday until 1 September 2012
(iii)From 1 September 2012 each alternate weekend from 10.00am Saturday to 3.00pm Sunday until 1 January 2013
(iv)From 1 January 2013 each alternate weekend from 4.00pm Friday to 3.00pm Sunday until 1 January 2014
(v)From 1 January 2014, each alternate weekend from after school on Friday to 3.00pm on Sunday.
(vi)From 10.00am to 4.00pm on Mother's Day
(vii)In the event that the children's birthday falls on a weekend, then from 2.00pm to 5.00pm
(viii)From 2.00pm to 6.00pm on 25 December 2011 (Christmas Day)
(ix)From 2.00pm on Christmas Eve to 2.00pm Christmas Day in 2012 and in each even numbered year thereafter;
(x)From 2.00pm Christmas Day to 2.00pm Boxing Day in 2013 and in each odd numbered year thereafter;
(xi)By way of telephone with the mother to call the Father's mobile telephone number between 5.00pm and 6.00pm on each Tuesday and Thursday evening and the Father shall ensure is phone is fully charged and make the children available to speak with the mother immediately upon the Mother identifying herself as the caller.
(b)With [Y] alone (until she commences primary school) from 9.30am to 2.00pm each Wednesday
For the purpose of facilitating Order 7 above:
(a)For a period of twelve months, changeover shall take place at the [omitted] Contact Centre and the parties shall forthwith submit their application to use that service and comply with the intake process as required by that service;
(b)Thereafter or on occasions where the Contact Centre is not available, changeover shall take place at the school where the children attend where possible but otherwise from the playground at the [omitted] McDonalds.
For the purpose of implementing these Orders, each party must:
(a)Contact the Contact Service within 7 days of the date of these Orders to arrange an appointment for assessment of the suitability for the time with the children to be supervised;
(b)Attend the assessment;
(c)Comply with all reasonable rules of the Service; and
(d)Comply with all reasonable requests or directions of staff of the Service.
The children's time with the Mother be suspended as follows:
(a)From 10.00am to 4.00pm on Father's Day;
(b)After 1 September 2013, in the event that the children's birthday falls on a weekend, then from 2.00pm to 5.00pm
(c)From 2.00pm 24 December 2011 to 2.00pm 25 December 2011;
(d)From 2.00pm on Christmas Eve to 2.00pm Christmas Day in 2013 and in each odd numbered year thereafter;
(e)From 2.00pm Christmas Day to 2.00pm Boxing Day in 2014 and in each even numbered year thereafter;
That the Mother shall have telephone contact with the Children as follows:
(a)Each Wednesday from 5:00pm to 6:00pm;
(b)At such other times as requested by the Children;
(c)The Mother is to provide the Father with a residential landline number or a mobile telephone number and the Father is to facilitate the telephone contact by telephoning the number provided.
The Mother ensure that she provide appropriate bedding for the children when they spend over night time with the Mother. In the event that the Mother is not able to provide appropriate bedding then the children shall spend time with the Mother from 10.00am to 4.00pm each alternate Saturday until such time as she is able to comply with this Order.
At all times until [Y] reaches the age of 18, the mother must consult with and comply with the advice (including the scheduling of and attendance at appointments and taking of prescribed medication) of her General Practitioner, psychologist, psychiatrist and any other medical or allied health professional to whom she has been referred by her General Practitioner or with whom she consults.
The Father shall ensure that the child [Y] attends at the [omitted] Day Care Centre (or such other preschool or Day Care Centre in which she may be enrolled from time to time) at least two days a week and subject to the availability of the Centre until she commences primary school.
Each party be restrained from passing information or messages through the children to any other person.
Both parents shall refrain from making critical or derogatory remarks about the other parent or their family in the presence or hearing of any of the children and that both parents shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of any of the children.
Each parent be restrained from consuming alcohol during any period of time that the children are in their care.
That the Father forthwith do all things necessary to engage with a Child and Family Psychologist on behalf of the children who will provide therapy for the children in consultation with the Father and the Mother for such period as is recommended by the Psychologist.
That within seven (7) days of the making of this Order, the father shall ensure that both children shall attend upon their general medical practitioner for the purpose of seeking to obtain a referral for the children to consult with a child psychologist or psychiatrist (treating specialist) to engage in therapy. On receipt of any such referral, the father shall:
(a)Cause the children to attend such appointments and undertake such therapeutic activities or interventions as the treating specialist determines to be appropriate or prescribes;
(b)Cause his legal representative to provide the name and contact details of the treating specialist to the mother (or her legal representative if represented) and the Independent Children’s Lawyer;
(c)Authorise the treating specialist to discuss the therapy with both parents (including diagnosis, treatment, prognosis and progress);
That the Independent Children's Lawyer be granted leave to provide a copy of the Expert Report to the Psychologist.
That the Independent Children’s Lawyer not be discharged for a period of six months from the date of these Orders.
That the Independent Children’s Lawyer has liberty to apply on 7 days notice.
IT IS NOTED that publication of this judgment under the pseudonym Beale & Beale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1888 of 2010
| MS BEALE |
Applicant
And
| MR BEALE |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is not about what is in the best interests of two young children, because that result is not achievable. It is about making orders that, hopefully, minimises the risks that these children will face whilst in the care of either parent. Thus, in reality, this is a case about what is the least of the worst alternatives. Whatever the decision the Court makes the children will be exposed to risk.
[X] is five years old and her sister [Y] is two years old. Both children live with the father, who is the respondent in these proceedings. He is 38 years old and is in receipt of Centrelink benefits and lives in [suburb omitted], New South Wales. The applicant in these proceedings is the children’s mother. She is 33 years old, is currently in a relationship, and also expects to receive Centrelink benefits. She too lives in [suburb omitted], New South Wales. The mother has another child [Z], who is 12 years old. Whilst [Z] has been in the mother’s care from time to time, that is not the case at the moment. This case is about where [X] and [Y] will live and how much time they will spend with the other parent.
Background
Even though the parents commenced cohabitation in 2004, it is common ground that they have known each other for a long time before then. They married in 2005 and moved into a villa which they rented from the mother’s parents. After each child was born the mother suffered from postnatal depression. She continues to suffer depression today. The father also has quite a long history of suffering depression even though he initially denied that before the Court. The parents separated on a final basis in March 2010, but this appears to be the latest of a series of separations and reconciliations that have occurred for as long as the parents have been cohabiting.
Despite all the concerns that each parent seems to articulate about the other and to which reference will be made below, the parents resumed their relationship in the past, or entrusted each other with the care of the children. Before the final separation, and during the course of their relationship, the father spent times away from the family and worked in places such as Queensland and New South Wales. The mother and the child or children as the case may be often followed him. When they lived in [suburb omitted], it was in accommodation that was provided for by the maternal grandparents, but on the basis that the parties paid rent.
Indeed a strong impression formed from the evidence is that the maternal grandparents have provided a level of support, residential and otherwise, that supported and probably kept intact this family over the years. Immediately prior to the final hearing of this matter that residential support was withdrawn in circumstances that I will need to consider below.
The concerns that the mother has against the father are eloquently summarised in the Part 15 Expert’s Report of Dr H, a psychologist. The mother alleges that the father was abusive towards her throughout the relationship, was physically violent on one occasion, that he consumes large amounts of alcohol and uses marijuana daily. The father alleges that the mother suffers from severe depression and that in March 2010 took an overdose of tablets in the course of a suicide attempt in which she blamed her own family, and her children, for what was happening to her.
The father asserts that the mother is unable to properly care for the children in the post separation period and has not been able to provide them with adequate food and a hygienic home. Moreover he asserts she has no stability in her residential accommodation which is linked to a very new relationship that she has formed. As will be seen below, Dr H has even more serious concerns about each of the parents and their capacity to care for the children.
On 4 February 2011, I made an order under section 91B of the Family Law Act requesting the Director General of the Department of Human Services to intervene in these proceedings. I authorised the release of a copy of Dr H’s report to the Director General. On 4 March 2011 the Director General advised, through one of its offices, that the Department had decided not to intervene in the proceedings at this time. The reasons are expressed as follows:
The reason for this decision is that while concerns regarding the children’s welfare and well being have been raised with the Director-General, those concerns have not met the threshold for investigation. The concerns raised in Dr H’s report would not warrant the prioritisation of these children over other infants and children, who have already been assessed as at risk of significant harm. Accordingly, we are unable to intervene.
The first orders in relation to the children appear to have been made on 30 March 2010. By consent the parents agreed that [X] would remain with the father and spend time with the mother, and [Y] remain with the mother and spend time with the father. An Independent Children’s Lawyer was appointed on that date. Whilst that is the first and only order that has been made so far in relation to the children, it does not necessarily represent the arrangement that the parents themselves have implemented.
The mother’s proposal at the final hearing was that orders be made in accordance with the mother’s application filed on 26 March 2010. Until the last few hours of the hearing the mother’s position had consistently been that she have sole parental responsibility, that the children live with her, and that the father spend supervised time with the children at a contact service. It was not until the closing submissions by the mother’s Counsel Ms Carr, when I pressed the mother to provide me with an alternative proposal to supervised contact should I order that the children live with her, that the mother then proposed through her Counsel that the children spend time with the father each second weekend from Friday to Sunday plus one overnight in the alternate week, plus half the school holidays.
The father’s proposal is contained in a detailed minute of proposed order that I reproduce at Schedule A to these reasons. In effect, he proposes that the parents have equal shared parental responsibility, that the children live with the father, and that the mother’s time with the children take place in two stages with the first stage in the first nine months, and the second thereafter. During the first stage the mother would spend time with the children in a supervised contact centre for not less than two hours twice weekly.
Thereafter, subject to the progress of the first stage, and contingent upon the mother’s health, the mother’s time would increase to 3:00pm Friday to Sunday in each alternate week. The orders proposed by the father include a detailed provision about restraints on both parents and engagement with support services. It is important to note that, whilst that was the father’s proposal at the hearing (and was clearly influenced by Dr H’s report) his proposal up until that point in time was contained in his Response filed 30 June 2010 in which he proposed, in substance, an equal time arrangement.
The Independent Children’s Lawyer’s proposal is contained in a Minute of Proposed Order which I reproduce at Schedule B to these reasons. The Independent Children’s Lawyer proposed equal shared parental responsibility, that the children live with the father, and spend time with the mother as specified in the order. Changeovers would take place at a contact centre.
At the close of submissions on 8 March 2011 I made a number of interim orders, pending final order. Obviously I had heard all of the evidence, but had not yet had the opportunity to review the subpoenaed documents that had been tendered, or to reflect on the evidence and the submissions. Nonetheless, I was very concerned that the mother had not spent any time with the children for several weeks, and the evidence certainly indicated to me that the parents lacked the capacity to be able to agree to some form of contact arrangement without court intervention.
Interim orders were thus necessary to ensure that the mother spend time with the children. Accordingly, I made orders for equal shared parental responsibility, for the children to live with the father, and for the mother to spend time with the children as follows: -
7. The children spend time with the Mother as follows:
a. Both children:
i.From 10.00am to 4.00pm each Saturday until 1 March 2012
ii.From 1 March 2012, each alternate weekend from 2.00pm Saturday to 10.00am Sunday until 1 September 2012
iii.From 1 September 2012 each alternate weekend from 10.00am Saturday to 3.00pm Sunday until 1 January 2013
iv.From 1 January 2013 each alternate weekend from 4.00pm Friday to 3.00pm Sunday until 1 January 2014
v.From 1 January 2014, each alternate weekend from after school on Friday to 3.00pm on Sunday.
vi. From 10.00am to 4.00pm on Mother's Day
vii.In the event that the children's birthday falls on a weekend, then from 2.00pm to 5.00pm
viii.From 2.00pm to 6.00pm on 25 December 2011 (Christmas Day)
ix.From 2.00pm on Christmas Eve to 2.00pm Christmas Day in 2012 and in each even numbered year thereafter;
x.From 2.00pm Christmas Day to 2.00pm Boxing Day in 2013 and in each odd numbered year thereafter;
xi.By way of telephone with the mother to call the Father's mobile telephone number between 5.00pm and 6.00pm on each Tuesday and Thursday evening and the Father shall ensure is phone is fully charged and make the children available to speak with the mother immediately upon the Mother identifying herself as the caller.
The orders I made substantially adopted the orders proposed by the Independent Children’s Lawyer. The reasons that I provide at this time, also adequately explain why I made the interim orders.
The Evidence
The evidence in this case consisted of the Part 15 Expert’s Report by Dr H. She was cross-examined during the hearing. In the father’s case he relied on his Affidavit filed 1 March 2011. In the mother’s case she relied on her Affidavits filed 26 March 2010 and 28 February 2011 together with an Affidavit filed 8 March 2011 by Mr Richard, the mother’s partner. The father, mother, and her partner were all cross-examined. Documents were produced on subpoena by [omitted] Hospital, [omitted] Medical Centre, and New South Wales Police.
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(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.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(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.
(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.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
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.
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; and
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.
(3) 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.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) 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).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
The Issues
The issues in this case commence with a consideration of whether there is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in the household of either parent. There are also issues about the willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent, as well as issues of the capacity of each parent to provide for the needs of the children, including emotional and intellectual needs. I think there are some relevant issues about the nature of the children’s relationship with each of their parents, and also in relation to parental attitudes about the responsibilities of parenthood.
The Expert’s Evidence
The Expert’s evidence in this case is particularly important because of what I will find to be the general inadequacy of the evidence given to me by both of the parents, on relevant issues. Indeed, I found that the evidence of both parents contained in their Affidavits was quite sketchy. I am not sure that either parent has presented their circumstances fully and frankly. Interestingly, they actually appear to have told more about themselves to Dr H then they do in their respective Affidavits.
Dr H commences her report by recording that each parent alleges reasons for child safety concerns (alcohol abuse, mental health problems, residential instability and inadequate care and supervision of children) in the care of the other parent. I have already referred to each parent’s summary of the concerns they have about the other in the background to these reasons. One of the issues in this case is about the mother’s residential stability, or instability as the case may be. It seems that on Christmas Eve 2010 the mother’s father gave an eviction notice, requiring her to leave the premises by 31 January 2011.
I have already recorded that for most of the period of these children’s lives they have lived in accommodation which appears to have been generously provided by the mother’s parents either on a rent free basis, or on what appears to have been less than market rates. At paragraph 14 of her report, Dr H notes in relation to the eviction:
14. She was not able to give any adequate explanation of why her father may have wanted to do this. She said that the reason he gave was that the house was very dirty but claims that her family support worker is a witness to the fact that they had cleaned the house.
I make the observation at this point that it must have been clearly apparent to the mother, and to those who advised her, that the issue of the mother’s residential instability was going to be a major one. It is hard to understand why the mother’s evidence about the eviction and its basis is so inadequate. It is hard to understand why, for example, the mother would refer to her family support worker as a witness, but then not provide evidence from that person.
Dr H records the mother’s main concerns about the father at paragraph 19 of her report:
19. Ms Beale’s main concern about children being in the care of Mr Beale relates to his alcohol consumption. She claims he goes to the [omitted Hotel] every day at midday, drinks until the late afternoon, goes home, cooks [X]’s dinner and then falls asleep. She does not believe that he would be so alcohol affected as to neglect to feed [X] or get her to school on a daily basis. However, she believes that as he falls asleep on the couch early each evening [X] is left to her own devices. She believes this would be a very unsafe situation for [Y]. In an emergency [X] could make her needs known to other people, make a telephone call etc. but at her young age [Y] does not have that capacity, and is also more accident prone.
It is clear that the mother’s concerns were expressed as a present and continuing concern, rather than a past concern. In the father’s evidence, he acknowledges he has had past problems with alcohol consumption, but not that he has a current one.
At paragraph 20, Dr H records the mother assuring her that she was quite certain that the father would never harm his children, and that she had never believed that the father had sexually abused [Y]. There had been what was veiled allegation against the father in this regard in the mother’s Affidavit. Having regard to the mother’s statement to Dr H I no longer regard this as an issue in this case.
The mother expands on her concerns about the father to Dr H, who records this at paragraph 21:
21. Ms Beale asserts that she heard on Christmas Day that Mr Beale was so drunk that he could not stand and had to be assisted. She is concerned therefore about his ability to safely supervise children in that state. She also alleged on 24 January 2011 that Mr Beale was about to be evicted from his unit because he was behind with the rent. She also understood he had unpaid power bills. She believes that this is because he uses all of his money on drink. Ms Beale asserts that in addition to the Centrelink payments that Mr Beale receives (of which he has to pay only $120 per week rent) he also does cash in hand jobs which are found for him by his Uncle [P], but still needs to borrow regularly from her and his other friends. She asserts that he is attempting to get [Y]’s custody because he wishes to increase his Centrelink payments by having two children in his care. Ms Beale also asserted that due to Mr Beale’s low literacy achievements he would not be able to not assist [X] with her homework or learning to read and write.
At paragraph 24 of her report Dr H noted the mother’s tendency to blame everyone else (her father, the father in these proceedings, and her daughter [Z]) for the circumstances in which she currently finds herself. Dr H notes that she could acknowledge no action on her own part which could have lead people to feel justified in intervening to remove [Z] from her care. Dr H also noted that the mother gave:
Contradictory and varying accounts of her estimation of Mr Beale as a hazard – hazard to women and children.
The example was given of the mother agreeing to let [Y] stay with the father at times over and above that provided for in the contact orders despite her concerns about his alcohol consumption and the impacts of this on a very young child.
At paragraph 30 Dr H records the father’s concerns about the mother’s residential instability:
30. Mr Beale mentioned Ms Beale’s eviction notice. He informed me that Ms Beale’s parents [T] and [Q] are “lovely people" although they are not very expressive of their feelings. He said they are concerned about their grandchildren and want the best for them. He believes that his father-in-law has now realised the error of his ways in supporting Ms Beale “no matter what.” He believes that his father-in-law has finally lost patience with Ms Beale’s maltreatment of her children e.g. not providing them with adequate nutrition and hygienic home conditions. He asserts that there had been an epidemic of mice, fleas and cockroaches in her house.
Again, given the centrality of this issue it is hard to understand why the maternal grandfather was not required to give evidence in this case. I can understand why, from the mother’s perspective, she might not want this evidence to come before the Court. It is somewhat harder to understand, however, why the father, or even the Independent Children’s Lawyer, might not want to call this evidence.
At paragraph 31 of the report Dr H records the father’s explanation of the incident that seems to have lead to [Z] returning to the care of her father:
31. Mr Beale described the incident at preschool last year which Ms Beale had mentioned. He said that Ms Beale had been “up and down” for several months and had finally gone "completely off the rails". According to Mr Beale, at the preschool graduation in late 2010 he asked [Z] how things were at home, including if Mum had any food in the house. [Z] gave him a discouraging report of her home conditions. As a result Ms Beale spoke to [Z] in a very abusive way - such that the teachers overhearing her seemed shocked. He took [Z] [sic] home with him and later asked his father-in-law to drive [Z] to the [suburb omitted] home of her natural father, Mr Tate. Mr Beale has lost his licence so he was not in a position to drive. He also gave an account of Ms Beale’s visit to his house at Christmas and said that she created a nasty scene when he asked her to mop up a spill she caused. When we were discussing these matters [X], who was drawing at a table in another part of the room, chipped in by saying yesterday she was crying for [Y] and Mum and [Z] [sic], adding that Dad had also been crying so she cuddled him. Then he fell asleep and she watched TV. It seemed from what [X] said that she often sleeps in Dad’s bed.
Again, I find it hard to understand why there was no evidence in this case from Mr Tate, [Z]’s father, and why the records of the preschool were not in evidence so that there might be an attempt at corroborating a party’s version of what is alleged to have happened.
Dr H also noted the inconsistency between the father’s concerns about the mother’s capacity to properly care for the children and keep hygienic conditions in the home, but the fact that he had returned [Y] to the mother’s care in the New Year because he felt sorry for her for missing [Y], and sorry for [Y] because she was missing her mother.
It should, by now, become apparent that an underlying theme of this case is the dissonance between the stated concerns of each parent against the other, and their actions.
Dr H administered a number of psychological tests on each parent. She found, for example, that both parents scored very highly on the child abuse potential scale. She also screened for mental health issues using a very basic form of screening and found that the father’s score was at the upper end of the normal range, which means that he has not reported greater potential for emotional/behavioural problems than most community adults would report. The mother’s score was moderately elevated, indicating greater psychosocial maladjustment than is typical in community adults.
In relation to the mother, she noted peaks in the mother’s profile for health problems and suicidal thinking followed by psychotic features, social withdrawal, alienation and anger control and hostility control. In this regard, Dr H states at paragraph 46 of her report:
46. Given the brevity of this screening instrument these PAS results only bear cautious interpretation. Nonetheless Ms Beale’s elevation on Suicidal Thinking is very concerning as most community adults (even those with mild symptoms) do not score at all on this element. The PF element reflects persecutory thinking. In the absence of other symptoms of psychosis an elevated PF score indexes a tendency to blame others for personal problems, and may point to psychological maladjustment generally. Overall, Ms Beale's PAS profile fits with other indications that she is an unhappy, socially isolated person who feels beleaguered, has difficulty controlling negative reactivity and whose thinking is confused. Case history suggests to me that Ms Beale displays more serious psychological maladjustment than can be explained by a diagnosis of reactive depression. She shows some features of a Cluster B Personality Disorder – a diagnostic speculation which these PAS results tend to support but cannot substantiate conclusively.
In terms of substance abuse the testing she administered indicated a low probability for each parent of having current substance dependence issues, but a high probability of former substance dependence issues.
I believe that a significant part of Dr H’s report deals with the children’s attachment behaviour. These observations and conclusions are informative and are found at paragraphs 63-67:
63. In interaction with her mother 17/1/11 I observed [Y] to behave in ways which suggests she relies on coercive strategies for drawing adult attention. She raised her arm to hit her mother (or me) when we were talking and not paying attention to her. On several occasions she pulled the belt of my jacket and attempted to get the metal stud on the end of it between her teeth. Her mother did little or nothing to structure the environment or direct the child pro-socially, and was reactive rather than pre-emptive. [Y] clamoured continually for adult attention on that occasion in ways which struck me as unusually aggressive – even making allowances for the fact that [Y] is only two and was in a bare room with no means of entertaining herself while adults chatted. Her mother did not bring any toys or snacks to interview – only the child’s milk bottle. The behaviour I observed is what I would expect from a child whose mother is only intermittently responsive (e.g. due to lethargy associated with physical incapacitation, mood disorder, extreme self-absorption or drug use).
64. On 24/1/11 I observed [Y] playing in the park with [X], Mum and Dad. While I was sitting on a bench with Mr Beale I noted that [Y]’s initial approaches seeking attention were coercive but when Mr Beale demanded [Y] behave in more pro-social, cooperative ways (e.g. thank her father, sit down while he assisted her with her drink) she did so about 80% of the time. I observed an interesting interaction suggesting the child perceives the potential to play both ends against the middle. [Y] demanded her father open a drink bottle according to her wishes and would not conform to his pre-requisite demand to sit down. Instead [Y] ran off to ask her mother. As her mother was otherwise occupied (she was taking a dirty nappy to the bin, if I remember rightly) [Y] returned to her father and meekly complied with Dad’s rules. He said “She is always like this at my place” (referring to her cooperation not her defiance).
65. [Y]’s immediate response to any overture seems to be “No” – for example she that is how she responded to me when I offered friendly greetings or eye contact on both occasions on which we met, and also how she replied to a little boy in the park who tried to help her lift the dolly’s pram over a cement edge. “No” is the way two year olds typically try to assert their will and their newly found ability to influence others by language – but it is usually in response to being thwarted rather than a blanket response to all social approaches. Likewise approaching an adult with a raised fist is an unusual response to the stress of being with a stranger in a strange place in the presence of mother (normally assumed to provide a secure base) which suggests to me the child feels threat is ever-present and meets it head-on with behaviour which could be described by the maxims “Attack is the best defence” and “Always paddle your own canoe”.
66. [X] was friendly and cooperative when I first met her with her father. She behaved trustingly and affectionately towards her father, asking politely but directly for her needs to be met (something to do, somewhere to lie down, a jacket over her etc) and snuggling up against him to fall asleep for the last hour of the interview. [X] joined in the adult conversation confidently - but relevantly and on topic. She did not try to divert the conversation onto a topic of her choice. For example when she heard me discussing contact with [Y] and her mother [X] said “I cry for Mummy and [Y] ([Y]’s nickname) and [Z]” ([Z] = [Z]’s [sic] nickname). She added “Last night Daddy was crying too.” In the conjoint family observation [X] showed friendliness and cooperation towards her mother, although it was to her father she mostly turned for permission or assistance. She seems not to be a whingey, clingy child and seems more confident that adults will be kind and helpful to her if she asks politely than [Y] does.
67. Attachment security and exploration behaviour are directly related in young children. [X] played happily and independently on the playground equipment for most of the time I observed the family in the park. [Y] shadowed her sister at times, but I noticed she never let her mother out of her sight for very long. [Y] went with Dad quite happily when I asked him to take the children away for a short period so I could speak to Ms Beale privately. This would be close to normal exploratory and attachment behaviour in a pre-school child, and does not suggest aversion to Dad.
Dr H’s evaluation commences, as regards these parents, from paragraph 86. As this clearly sets the foundation for her recommendations, I reproduce paragraphs 86-90 inclusive:
86. The sketchy autobiographies I was able to elicit under sub-optimal conditions for self-disclosure give rise to the working hypothesis that due to disrupted and disordered early attachments the development of normal self-capacities was impeded in both Mr Beale and Ms Beale. Consequently they are prone to serious emotional dysregulation under stress – as manifested, for example, in their highly conflictual family relationship and emotional outbursts in public, Ms Beale’s physical incapacitation, social withdrawal and serious weight loss in December 2010, Mr Beale’s suicide attempt at 19 following a rejection and his (alleged) daily drinking now.
87. Moreover, Mr and Ms Beale cannot insulate their children from their own conflict as they have difficulty either uniting or separating permanently. Both parents appear to be very needy people who dread and fear abandonment. Threat activates the attachment system. In strife-ridden marital relationships there is a lot of threat. Fierce hostility may also co-exist (or rapidly alternate) with affectional bonds. Hence a vicious circle of torture-comfort may operate. Aggression is followed by withdrawal followed by pursuit (fuelled by remorse, compassion, fear of abandonment). Renewed proximity soothes briefly but rapidly leads to renewed conflict of interests which explodes into hostility da capo al fine.
88. Despite the likelihood that during this assessment both parents have minimized or denied the scope of their problems of accommodation/financial pressure (both), mental health (mother) and substance abuse (father) aggregated information from case history, observations at interview and the results standardised measures supports the conclusion that the parenting capacity of both these parents is significantly impeded by their intrinsic characteristics, furthermore that these impediments are very resistant to change at both the intrapersonal and interpersonal level due to the hostile-enmeshed nature of their relationship. Bad mental health outcomes are reported for children whose parents remain in high conflict yet substantially share care (McIntosh et al 2010)
89. Ms Beale loves her children and may have made some recent efforts to comply with service providers, but nonetheless she is not a “good-enough” mother. Good–parents function as external stress regulators for neurologically immature children. Ms Beale is too enfolded in her own distress and too emotionally dysregulated herself to be kinder, wiser and stronger than her children under normal parenting stress (let alone in a crisis). Reports of her insensitive treatment of her oldest daughter [Z] [sic] and the outcomes for [Z] [sic], suggest that rather than engaging in soothing sequences of communication with a distressed child, Ms Beale expresses hostile attributions which make the child’s bad situation worse.
90. The inference is that a child in Ms Beale’s care will be at serious risk of emotional harm in the long term. There is evidence of an increased risk of post-divorce clinical symptomatology in children of a parent with mental health problems, and worse risks for those whose parents have borderline or narcissistic personality disorders (McIntosh and Long 2006). Each of the subject children has adapted to the previous chaotic home life in her way and according to her developmental capabilities. [X]’s strategy appears to be ready compliance, [Y]’s automatic defiance. As it seems [Z] was previously scapegoated (by both parents but particularly her own mother), the appeal to [X] of being Daddy’s Little Princess is clear. If the price of that privileged position in the family is adaptability to her father’s moods and needs it probably seems well worth it to [X], considering the alternative. Compulsive compliance limits a child’s capacity for the fullest expression of personhood, but human plasticine is usually more readily tolerated in social groups than human dynamite. Hence the long term outlook for making a good social adjustment looks worse for [Y], particularly if she remains with her mother. [Y] is young enough to counter-condition with normal child-rearing. [Y] has been able to organize an attachment strategy (albeit not a secure attachment). So if removed from the care of her parents she would be capable of forming a new attachment to kindly, reliable long-term carer, albeit after an inevitable period of grief and heightened attachment anxiety.
A number of major things emerge. The first one is that the parents cannot insulate their children from the parental conflict and relationship instability. Dr H clearly has significant concerns about the parenting capacity of both the mother and the father. The parental relationship is described as a hostile-enmeshed one. From Dr H’s perspective, the mother is not a “good enough” mother, she is too enfolded in her own distress, and too emotionally disregulated to adequately parent under normal circumstances, let alone in a crisis. She believes that a child in the mother’s care will be at serious risk of emotional harm in the long term.
At paragraph 91, Dr H explores the issue of the mother’s residential instability:
91. The most pressing concern about [Y]’s care is that Ms Beale will be without a roof over her head as of 31/1/11. Sending [Y] to her father for respite care may not be an acceptable solution to the accommodation crisis for several reasons. Mr Beale denies current problem drinking, although he admits previous heavy use. Ms Beale insists he drinks daily and passes out early evening. So far Mr Beale has been able to keep a five year old alive, clean, neat and healthy. His attention to [Y]’s personal grooming speaks well of his capacity to meet her physical care needs. However, if Ms Beale’s reports of his alcohol-induced incapacitation in the late afternoon evening are accurate, he would be an inadequately protective carer for a two year old. Ms Beale asserts that Mr Beale is seeking parental responsibility for [Y] as a matter of income security and that he is in debt due to the cost of maintaining his daily alcohol consumption. These are questions which it is beyond the scope of this assessment to investigate, but which need to be comprehensively addressed empirically before it would be safe to consider placing [Y] with her father (or indeed leaving [X] there).
Clearly, at the time of writing her report, Dr H did not regard the father as the suitable alternative care provider for the children notwithstanding the mother’s residential instability.
Dr H concludes as follows at paragraph 95-99:
CONCLUSION AND RECOMMENDATIONS
95. These parents and children display mutual affectional bonds. Nonetheless, neither parent seems able to consistently and reliably prioritize children’s needs over their own emotional needs. Therefore it is not possible to confidently recommend the placement of both children with either parent. Ms Beale’s capacity to meet minimum community standards of child care is more seriously deficient than Mr Beale’s due to her chronic mental health disorder, her imminent homelessness and her lack of social support. However, the possibility that Mr Beale’s alcohol consumption seriously compromises his adequate parental protectiveness has not been excluded during this evaluation. The type and level of intervention the subject children need falls more within the remit of the statutory child protection authority than with the family courts. Accordingly it is recommended that:
96. The Department of Human Services should be asked to intervene as a matter of urgency to address the issue of imminent homelessness for [Y] (and [X]?).
97. Further investigation is required regarding the father’s residential stability, daily alcohol consumption and income security.
98. Serious consideration should be given to taking [Y] into temporary care pending the outcome of such enquiry.
99. If the evidentiary material should show that Mr Beale is also at imminent risk of losing his accommodation [X] should also be taken into care.
Of course, the reality is that the Department of Human Services was not prepared to intervene in these proceeding, and so the focus of Dr H’s oral evidence before the Court was on what her recommendations would be if the Court had to chose between two parents whose parenting capacity she was clearly both concerned about. Dr H’s oral evidence left me in no doubt that in her professional opinion if the Department of Human Services would not intervene, that the both children were better off in the father’s care, and this was notwithstanding the mother’s assertions about a new relationship, and the new level of residential stability that this brought about.
Dr H stated unequivocally that the issues before the Court were child safety issues, and that issues such as the children’s ability to cope with change, either in their residential arrangements or in terms of relationships with parents were subservient to the issue of child safety. Dr H did acknowledge, however, that there were unresolved issues in relation to the father and that if possible orders provide for the father’s engagement with service providers who are mandated reporters of risks of abuse to children.
Counsel for the mother sought to impugn Dr H’s recommendation on a broad front. She challenged what Counsel perceived to be Dr H’s assumption as to the accuracy of the allegation about the mother not keeping a clean house, and that this was the reason why she was evicted. I accept Dr H’s explanation that her views were based on not just what the father asserted, but also on the mother’s own statements including one to the effect that, even the mother asserted that her father took the view she ought not to have the children in her care.
In any event, and with respect to Counsel for the mother, it was the mother to establish precisely why she had been evicted. The mother had plainly failed to do so, for reasons not adequately explained to the Court. Counsel also sought to impugn Dr H’s recommendations by getting Dr H to acknowledge that both parents have problem relating to their parenting capacity, but Dr H summarised the dilemma quite concisely when she said words to the effect:
No matter how bad the father is, it does not make the mother any better.
Counsel for the mother gave the Dr H an opportunity to expand more about the implications of the observations about the children. Dr H explained that even though her observations were not a proper attachment assessment, what she had seen was indicative of anxious disorganised attachment between the mother and [Y].
It is interesting to note that in cross-examination by Counsel for the mother, Dr H insisted that any contact with the mother should be supervised. In the absence of knowledge about the mother’s partner, or their accommodation arrangements, Dr H was convinced that the past was the best predictor of the future and thus the mother’s history of chaotic upsetting relationships, and poor parenting did not augur well in this regard.
Overall, the cross-examination of Dr H did nothing to undermine her report, modified as it was in view of the Department’s inability to intervene. Dr H clearly foreshadows concerns about the nature of contact between the mother and the children and whether it should be supervised. She also emphasised the need to ensure that, even after final orders are made, that there be some form of monitoring put in place of the father’s parenting by requiring the family to be involved with a helping professional who has a charter to monitor child risks and is a mandated reporter.
As it turns out, neither the Independent Children’s Lawyer, nor the Court in its interim orders, have taken the view that the mother’s time with the children should be supervised. The reasons for this will need to be explored below. I accept Dr H’s evidence.
The Mother’s Evidence
The mother relied on her two Affidavits which between them attempt to set out her history of care of the children and her concerns about the father’s care of the children. As I have indicated above, the mother gives hardly any relevant information about the circumstances in which she was evicted from her accommodation. I find it interesting that the mother annexes to her Affidavit a letter from Family Services [suburb omitted], being a letter from the support worker who the mother sees each week. It acknowledges that the mother has been receiving assistance with parenting skills since June 2010, as well as assistance to address domestic violence issues. The letter also states:
Ms Beale has been linked with a psychologist to address her mental health issues.
Indeed, the mother admits in her Affidavit that she has been seeing her psychologist each fortnight. And yet the Court is provided with no evidence from the mother’s psychologist, even in the face of a case where her mental health was clearly one of the main issues.
It was only in the mother’s evidence-in-chief, pursuant to leave I granted, that the mother was able to explain more about the circumstances of the eviction notice. The mother links the eviction notice to the problems she had at [X]’s preschool graduation on 19 December and a consequent disagreement she had with her father about some aspect of this. It is by no means clear from the evidence what happened.
The mother gives evidence about the relationship that she entered into with Mr Richard since January 2011. I think the real significance of this relationship is not necessarily or primarily about what role Mr Richard might play in the children’s lives, but rather the focus is on how this relationship might provide the mother with greater residential security. The mother was of course cross-examined about this. She and Mr Richard met online and had been dating online since November 2010, but met in January 2011. They must have commenced living together almost immediately after that. It was apparent from the mother’s cross-examination that she was clearly dependent on him for her accommodation. However, she could not indicate whether this was a long term relationship, though she did not propose to have children with him, and was not pregnant at the time of the hearing.
My impression of the mother’s evidence as to her relationship with Mr Richard is that it did not necessarily involve a high level of commitment. It is interesting that in cross-examination she described it as a boyfriend/girlfriend relationship, whereas in his Affidavit Mr Richard describes himself as the mother’s partner. I formed the strong impression that this was a new and fragile relationship.
The mother was cross-examined about an occasion in March 2010 when she took an overdose of her Zoloft antidepressant tablets. Her evidence is that she did not go to hospital, that the mental health team attended her home, and that she subsequently contacted Beyond Blue after her recovery.
No evidence was tendered from any of these sources, despite the obvious assistance that that would have provided to the Court. In cross-examination, the mother strenuously denied that she made comments attributing her overdose to her own family circumstances, the problem she was having with [Z], and the children. In the absence of any corroborating material, I cannot make findings against the mother about what she is alleged to have said. What remains, however, is that she clearly attempted self-harm by way of an overdose about 12 months ago in circumstances where there was then, and continues to be today, unresolved issues about her mental health.
It was apparent at the hearing of this matter that, for some unexplained reason, the mother had had no contact with the children at all for at least two weeks. True it is that [Y] was taken by the father at a time coinciding with the mother’s eviction, and it is also true that there were clearly communication difficulties between the mother and father for reasons that I will explore below in the context of the father’s evidence. Notwithstanding this, when challenged in cross-examination by Counsel for the Independent Children’s Lawyer about a number of issues occurring at about this time, the mother clearly stated to the Court, on two occasions, that she was “emotionally distressed”.
This merely confirms the Court’s concern about the mother’s unresolved mental health issues. The Court unequivocally accepts that the mother’s eviction, and the circumstances in which [Y] went into the father’s care, was stressful for the mother but the mother’s ability to cope with stressful situations is one of the relevant considerations for this Court to consider, and the mother has done little or nothing to provide evidence to this Court of a reassuring nature in this regard.
The Mother’s Partner
Pursuant to leave I granted, the mother’s partner, Mr Richard, swore an Affidavit on 8 March and filed the same in court. He gave evidence. It is interesting that in paragraph 91 of the mother’s Affidavit of 28 February 2011, she spells her partner’s surname as “[omitted]”. I think this reflects the recency of the relationship. In any event, the Affidavit of Mr Richard sets out in details their current residential arrangements including who lives in the property, his involvement in the mother’s children, his present employment and plans for his life. He states that he will support the mother in her application to have the children live with her and that he looks forward to helping her with the care of the children.
He was cross-examined. Based on the comparatively short period of time he spent in the witness box, I formed the impression that he was well meaning, and genuine in his efforts to support the mother. It was clear, however, that if the children went to live with the mother in the home that they presently occupy, it would mean that between eight and 10 people would be occupying a four-bedroom split level home. In any event, Mr Richard explained that they intend to get their own accommodation which they would rent. Whilst he is presently working, he intends to return to TAFE next year to complete year 12. He will be in receipt of Centrelink benefits as would the mother, and this would fund the payment of the rental.
The fragility of the relationship between Mr Richard and the mother became apparent in some of the answers he gave to questions about the children. His descriptions of [Y] could only be based on, at most, one or two meetings with her, and not the half a dozen times that he asserts, contrary to the mother’s own evidence about this. The evidence of Mr Richard was of limited assistance to me. He is a well meaning man who is in a very new and fragile relationship with the mother and who does not seem to me to fully understand the mother’s background and her past problems with the father and children. I doubt very much whether he fully understands the extent of the mother’s mental health issues.
However, he is genuine, means well, and for his part may well continue to provide the mother with accommodation in the short to medium term, but the evidence does not inspire confidence that the children will be adequately housed in the longer term, should they reside with the mother.
The Father’s Evidence
The father’s Affidavit was sworn 28 February 2011 and was filed on 1 March 2011. His evidence is more detailed than that of the mother’s, but certainly not without its problems, as I will discuss below.
The father explains that in March 2010 he had separated from the mother and that during the course of that month he had received a telephone call from the mother’s friend [R] who said, in effect, that the mother had overdosed on some pills. He says that he arrived at her house at about 9:00pm and called the Poisons hotline, and the mobile psychiatric unit. He says he received some advice by telephone from the former. He checked the mother’s heartbeat and breathing and he asserts that he spent the night with the mother.
He says that the next morning a person from the mobile psychiatric unit attended on the mother and that he overheard a conversation between the worker and the mother in which the worker asked:
Why did you do this?
And the mother responded, according to the father:
My family, my daughter, her attitude.
The mother denies this. I must say that I am mystified as to why the father did not ring an ambulance, or did not take the mother to hospital, particularly if the situation was as serious as he subsequently asserted? There is no doubt in my mind, for example, that this overdose attempt is one of the key events on which the father relies to raise doubts about the mother’s mental health. If the event was that serious, therefore, why didn’t the father take her to hospital, or call an ambulance?
The father deposes in paragraph 26 of his Affidavit to having a conversation with the mother, presumably in relation to the overdose incident, about two weeks later in which he asserts she said:
Next time I do this the little cunts can do this too so they won’t need to live on this shitty earth anymore.
This event also forms part of the father’s basis for concerns about the mother’s mental health. I am unable to make a finding about whether the mother in fact said these words. What is significant, however, is that even if the mother did say these words, how did the father act to protect the children? Did he report this to, for example, the Department of Human Services?
At paragraph 27 of his Affidavit he refers to involvement with the department, but says nothing about making a disclosure to them. He himself gives evidence about the final separation occurring in March, but there is no evidence whatsoever of how he acted on his concerns or about what he asserts was clearly a threat to the welfare of the children. I can only infer from the evidence that the father wasn’t concerned under the circumstances. Regrettably, this is yet another example of the inconsistency between the concerns that these parents have so forcefully expressed about the other, and the actions they actually take to protect the children.
The 30 March 2010 consent orders provided for [X] to live with the father and [Y] to live with the mother, and with each child spending regular time with each other, and each parent. The father was clearly not so concerned about the events deposed to above that he would not agree to [Y] living with the mother. In any event, he says that the consent orders worked well until about October 2010. Indeed, he asserts, and the mother does not really disagree, that the children in fact spend more time with each other, and with the father, then provided for in the orders. Indeed, Annexure A to the father’s Affidavit sets out a record of the additional time that he spent with [Y] for the period from September 2010 onwards. As there was no challenge to the accuracy of this document, I accept what the father says in this regard.
The father records that on or about 21 June 2010, while he was at the doctor’s surgery with the mother, she said to him that she had not been taking her antidepressant medication for about two or two and a half months.
From October 2010, the father deposes to becoming increasingly worried about the welfare of the children in the mother’s care. Interestingly, this concern was not based upon mental health issues but rather that the mother deposed to the father that she went out partying each weekend, leaving the children in the father’s care, and with [Z] to be babysat by friends or by the mother’s parents. Indeed, the father goes on to depose to conversations that the children had with him explaining that the mother had different boyfriends coming home. At the same time, the children were spending almost every weekend in the father’s care.
At paragraph 62 of the father’s Affidavit, he states as follows:
I have no objection to Ms Beale spending time with her friends or starting a new relationship. I am, however, concerned that she is out partying and drinking with strangers and might be involved in inappropriate sexual behaviour in the presence of the children, including inviting men to her home while the children are there.
One cannot but help get the impression that if the father had any mental health issues about the mother, or any other concerns about her capacity to care for the children, these were clearly confined his mind to concerns about the mother’s social life. On the father’s own evidence the children were in his care whilst the mother was enjoying her social life.
In any event the father explains that it was about Christmas Eve 2010 when the mother informed him that she was about to be evicted from the home, and that the maternal grandfather explained to the father that the eviction was as a result of the filthy state of the house. Curiously, the father’s first evidence in his Affidavit about the dirty state of the house occurs at paragraph 63 of his Affidavit, and coincides with the father’s evidence about what the maternal grandfather said to him. If the father had concerns about the state of the mother’s home before then, it clearly was not significant enough to warrant a mention in his Affidavit.
In any event, the imminent eviction of the mother and [Y] resulted in the father taking [Y] into his care. Indeed, the father describes it in these terms at paragraph 66:
In view of Ms Beale’s mental health issues, and the seriousness of my concerns to both children while in her care, I decided to keep [Y] in my care following 8 February 2011 court date.
The father then says that there was no communication between the mother and the children for a period of about two weeks and then from about 20 or 21 February she resumed communicating with the children.
The father was robustly cross-examined by the mother’s Counsel in relation to his drinking habits. Whilst the father categorically denied consuming excessive alcohol, it was interesting to note that the general descriptions of the father’s drinking habits given both by the mother, and the father are not dissimilar except as regards the extent of the father’s drinking. I formed the strong impression that the father was minimising the extent of his drinking. In paragraph 75 of his Affidavit, the father states:
In 2010, it was usual for me to drink two or three schooners of full strength beer about three times per week. This generally coincided with going out for lunch or dinner with Ms Beale and the children to the [omitted Hotel] in [suburb omitted].
In cross-examination, however, it was suggested that he sometimes drank at least three schooners and the father agreed that this was the case “If I had been working, and if I had money”. He agreed that how much he drank depended on how much he had been working, and how much money he had.
He agreed in cross-examination, and even in his own evidence-in-chief, that he had been working at times in 2010. Sometimes he worked one, two or three days of the week, but not five days of the week. He agreed, however, that he would still drink one or two long necks even when he wasn’t working and he agreed that at least on some weekends he would go to the [omitted Hotel] with the mother and children. But this is a very different picture to that described in paragraph 75 where the father draws no link between his consumption of alcohol and either working, or having money. Indeed, he later agreed in cross-examination that in the past he could drink up to four schooners of beer which, in the father’s opinion, would not interfere with his parenting capacity. I found the father’s evidence about his drinking habits to be unconvincing and, in all likelihood, understated.
The father was cross-examined about why the mother had had such limited telephone communication with the children in the weeks leading up to the hearing. He explained that he has no credit on his phone, and thus could not make calls though he could receive calls. He gave evidence that it would cost him $30 to charge his mobile phone, but he didn’t have this money because of the expenses associated with his household and caring for the children. Nonetheless, the father’s own evidence is that his Centrelink entitlement is at $733 per fortnight. I do not accept that the father did not have the financial capacity to pay $30 in order to get a credit on his phone to make calls on behalf of the children so that they could speak to their mother. It is far more likely, in my opinion, and based on the evidence overall in this case, that the father did not consider this telephone contact to be a priority.
The father was cross-examined as to the truthfulness of his statements to Dr H, particularly as to the extent of his contact with all of his previous children from previous relationships. It was painfully obvious from his answers to question that he had not been accurate in what he told Dr H, and had substantially exaggerated the level the contact he was having.
The father’s cross-examination about his depression was perhaps the most useful insight into his character, and credit generally. In a case where the father expresses such serious concerns about the mother’s mental health, it should have been obvious to the father that his own mental health might be relevant. It was put to him that he himself had consulted doctors in the past about depression. He denied depression, but agreed that he had told doctors about feeling tired and run down. He was then taken through medical records that indicate he consulted doctors about depression in 1995, 1997, 2000, and that again as recently as 3 October 2010 he had been prescribed antidepressants.
He purported not to recall any of this. All of these matters are corroborated from documents produced on subpoena. The father is clearly not telling the truth about these matters and indeed the objective evidence suggests that he has been prescribed antidepressants, and probably continues to suffer from depression himself.
In cross-examination, he agreed that he himself had attempted suicide many years ago, and this was related to excessive consumption of alcohol.
Nonetheless, despite the clear concerns I have about the father’s credibility, I was left in no doubt that he offered the prospect of much more stable accommodation than the mother and, even though I found him to be disingenuous about his own depression, it is likely that he still presents a lesser risk to the children than the mother, particularly having regard to Dr H’s evidence.
The Section 60CC Considerations
I now consider what are the implications of the evidence discussed above, in terms of assessing the section 60CC considerations on the facts of this case.
Issues of meaningful relationship do not figure prominently in this determination. I am satisfied that the level of contact that is proposed by each of the parties and the Independent Children’s Lawyer will provide the basis for the existing meaningful relationship, and attachments, to be continued.
As Dr H indicated, issues of the safety of these children are foremost. The mother clearly continues to have unresolved mental health issues. At the very least she suffers from depression. There has been a self-harm attempt in the last 12 months. There are unresolved issues about her capacity to adequately care for the children and to avoid them being neglected. There are unresolved, and insufficiently addressed issues about the mother’s residential stability. I have concerns about whether her current accommodation is suitable for the care of the children on a long-term basis or even overnight for that matter, and it seems quite clear from her evidence and that of Mr Richard, that this accommodation is not long term anyway.
There are clear issues about safety of the children in the father’s care as well. He too may well be suffering from depression. He has minimised his consumption of alcohol. Nonetheless, the evidence indicates that he can provide greater residential stability for these children, at least in the short to medium term.
Dr H described parenting in this case in terms of whether it is “good enough” rather than, by contrast I presume, to optimal parenting. Dr H was clearly of the view that the mother could not provide good enough parenting and whilst I am not satisfied on the evidence that the father will provide good enough parenting, in the stark circumstances where the mother and the father represents the only choices available, I am satisfied that he will provide better parenting than the mother.
The start reality of this case is that it is a risk minimisation exercise and that, in reality, nothing can be done within the available alternatives to remove, or even substantially mitigate, the risk that these children have of being abused or, more likely neglected.
The views of the children play no role in my determination. Each of the girls has a good relationship with both parents though Dr H appeared to have some concerns about the quality of attachments, particularly as between [Y] and the mother.
I have some concerns about the father’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and their mother. Recent events, including his lack of willingness to facilitate telephone contact, create a doubt in this regard.
The Act requires me to consider the likely effect of changes in the children’s circumstances but, as Dr H pointed out, that is one of the lesser considerations in the context of a case where safety issues are predominant. In any event, the Independent Children’s Lawyer’s proposal is the one that brings about the least change.
As should be clear from what I have said above, I have lingering doubts about the parenting capacity of each parent, but those doubts are qualitatively and quantitatively higher as regards to mother, in comparison to the father.
One of the greatest difficulties I have with this case, however, is the inconsistency between the stated concerns of each parent, and yet their willingness to allow the other to have contact with minimal or no restrictions. It is for this reason that I reject the father’s proposal for the mother’s time to be supervised with the children, at a supervised contact centre. The fact is that within the last two months, even after the mother was evicted the father has allowed the mother to have unsupervised time. The fact is that, in the circumstances of this case, I cannot hold each of the parents accountable for each of the times that they have failed to adequately protect the children from the very circumstances that they are so quick to identify and attribute to the other parent. Either the concerns that each parent has articulated about the other are exaggerated, or are not genuinely held, or they are actually true but the parent has acted in total disregard to the children’s needs anyway.
The concerns that I have about the mother are such that I would not be prepared to allow overnight time for at least a year during which there might be some monitoring of the mother’s engagement with services, along the lines of that suggested by the Independent Children’s Lawyer.
The mother’s proposal that the children live with her is simply unacceptable on the evidence before me. Her proposal for the father’s contact, formulated as it was at the last moment, again demonstrates the dissonance between her stated concerns and what she is prepared to subject the children to. Clearly she must not be that concerned about the children in the father’s care if, in consultation with her solicitor and Counsel, and after hearing all of the evidence of the case, they proposed unsupervised alternating weekend time plus one night in the alternate week and half the school holidays.
The mother proposes sole parental responsibility in her favour, but for the reasons I have articulated above that cannot possibly be in the children’s best interests. The Independent Children’s Lawyer proposes equal shared parental responsibility, as does the father. That is the order I intend to make, though I do note the reservations that Dr H had about this at paragraph 92 of her report. She seemed to express serious concerns about the capacity of either parent to exercise parental responsibility but, in the circumstances of this case, the Court simply has no other alternatives.
Of course, the application of the presumption of equal shared parental responsibility means that I must consider equal time or substantial and significant time. In the circumstances of this case, particularly the safety issues that apply to both parents, neither equal time, nor substantial and significant time is in the best interests of the children, nor would it be reasonably practicable in circumstances where the capacity of each parent generally, and specifically in relation to communication, is so limited.
I therefore intend to make the interim orders that I made on 8 March 2011, being the orders proposed by the Independent Children’s Lawyer, on a final basis. The mother’s time with the children will increase subject to her satisfactory engagement with services. As the years go by, the children’s own protective capacities will increase, particularly [X]. Changeovers at the [omitted] Contact Centre will spare the children from exposure to the parental conflict. Paragraph 12 requires the father to forthwith engage with the child and family psychologist on behalf of the children, for therapy purposes and order 13 supplements this. It is necessary for any person who provides therapy to this family to have the benefit of Dr H’s report, and the proposed orders address this.
As I have some doubts about the father’s capacity to engage in services, I intend to order that the Independent Children’s Lawyer not be discharged for a period of six months, for the purposes of ensuring that orders 12 and 13 are in fact implemented. I will give to the Independent Children’s Lawyer leave to re-list on seven days notice, during this period, should there be the need to do so.
The orders proposed by the Independent Children’s Lawyer, however, do not necessarily address the mother’s mental health and accordingly I propose to make a further order in terms of order 5 proposed by the father in his minute of order. This requires the mother to attend on and comply with the advice of her treating professionals.
In addition, the orders proposed by the Independent Children’s Lawyer do not address telephone communication. I can see no reason why there should not be some mid-week telephone contact, between the weekend visits. I will therefore make an order that enables the mother to speak with the children by telephone between 5:00pm and 6:00pm each Wednesday evening, as well as requiring the father to facilitate this contact, as well as any other telephone contact between the children and the mother at times requested by the children.
Notwithstanding all of these matters, the Court must frankly concede there are still unaddressed risk issues in relation to these children. These orders only go some way towards mitigating these risks. One can only hope that this family will come into contact with therapeutic professionals who are also mandatory reporters and thus, if the need arises, and if the need is serious enough, the Department of Human Services will intervene.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 2 May 2011
Schedule A
Father’s Minute of Proposed Order
That all previous orders in these proceedings be discharged.
That the mother and father have equal shared parental responsibility for the children, [X] (born in 2005) and [Y] (born in 2008) in relation to the long term care, welfare and development of the children.
Time spent with mother for first 9 months from date of orders
That the children live with the father.
For a period of 9 months from the date of these orders:
4.1The children spend time with the mother on two occasions per week for a period of no less than two hours with all such time to be supervised by the staff of the [omitted] Children’s Contact Service (the Service).
4.2The father must not himself cause or permit or cause or permit any other person from bringing the children into contact with the mother except in accordance with Order 4.1 above.
4.3That in the event that the Service offers supervised time only at times that are less regular than those specified in Order 4.1, then the time the children spend with the mother shall occur at times that are offered by the Service.
4.4That for the purpose of giving effect to Order 4.1, the each party must:
(a)Contact the Service within 7 days of the date of these orders to arrange an appointment for assessment of the suitability for the time with the children to be supervised;
(b)Attend the assessment;
(c)Comply with all reasonable rules of the Service; and
(d)Comply with all reasonable requests or directions of staff of the Service.
4.5That for the purpose of giving effect to order 4.1, the father must deliver the children to and collect them from the Service in relation to each visit.
Mother’s health
At all times until [Y] reaches the age of 18, the mother must consult with and comply with the advice (including the scheduling of and attendance at appointments and taking of prescribed medication) of her General Practitioner, psychologist, psychiatrist and any other medical or allied health professional to whom she has been referred by her General Practitioner or with whom she consults.
For a period of 9 months from the date of these orders, the mother must take all reasonable steps to cause her treating psychologist Ms W to provide a written report outlining the mother’s current treatment regime and overview of her mental health status every three months. The mother must provide a copy of each such report to the ICL and father (or his solicitor, if legally represented) within seven days of its receipt.
Time spent with children at conclusion of first 9 months after date of orders
Subject to any party or the Independent Children’s Lawyer filing and serving a Statement of Issues addressing the precise basis on which each identified issue is alleged to have arisen together with a précis of the salient points of evidence that such party proposes to lead in support of each issue identified raised in the Statement of Issues and an Outline of Submission by no later than 5.00 pm on Monday, 9 January 2012, the Court will make the orders contained in Orders 8 to 12 on a final basis.
The children live with the father.
The children shall spend from 3pm on Friday to 3pm on Sunday with the mother in each alternate week.
During such times as the children are spending time with the mother, the father shall not be present.
In addition to the times identified in Order 8, the children shall spend the following time with the mother:
11.1From 10am to 4pm on Mother’s Day (the first such occasion to be no earlier than Mother’s Day 2012);
11.2For not less than 3 hours on each child’s birthday;
11.3From 2 pm on Christmas Eve to 2pm on Christmas Day in each odd numbered year; and
11.4From 2pm on Christmas Day to 2pm on Boxing Day in each even numbered year.
The father must not cause or permit or cause or permit any other person from bringing the children into contact with the mother except in accordance with Orders 9 to 11 above.
Schooling
Each party must ensure that [X] attends school five days per week other than in circumstances where she is genuinely unwell and unable to attend school on the days that [X] is in that party’s care.
Each party must ensure that [Y] attends [omitted] Day Care (or such other preschool or day-care centre in which she may be enrolled from time to time) on one day per week (or as per the enrolment days offered) than other than in circumstances where she is genuinely unwell and unable to attend preschool on the days when [Y] is in that party’s care.
Telephone contact
The mother may telephone the children between 5 pm and 6 pm each evening with the father to provide the mother with a residential landline telephone number or mobile telephone number and to ensure that the children are available to take such calls.
Restraints
Each party is restrained from making critical or derogatory remarks about any other party or any member of the children’s maternal or paternal family in the presence or within the hearing of the children.
Each party will use his/her best endeavours to ensure no other person makes any critical or derogatory remarks about any other party or any member of the children’s maternal or paternal family in the presence or within the hearing of the children or via any form of communication likely to come to the attention of the children.
Each party is restrained from passing information or messages through the children to any other party.
Each party is restrained from discussing these proceedings (including any orders made pursuant to these proceedings) with the children or with any other person while in the presence or hearing of the children.
On a without admissions basis, that each party be restrained from:
(a)Being under the influence of illicit drugs or alcohol in the presence of the children;
(b)Bringing the children into contact with any other person under the influence of illicit drugs or alcohol or exposing the children to drug paraphernalia; or
(c)Exposing the children to violence, including verbal threats or intimidation, whether such violence, threats or intimidation are directed at the children, the other party or any other person; or
(d)Using physical discipline in any form with the children and will take all reasonable steps to ensure that no other person uses physical discipline with the children.
Engagement with services
Each party shall engage with all social and community services as may be reasonably recommended to him/her by the ICL and/or the Department of Human Services directly or indirectly relating to the parenting and welfare of the children (including without limitation services which address the needs of the parties).
Exchange of information between parties
Each party is to inform the other as soon as reasonably practicable of:
(a)any medical problem or illness suffered by any of the children while in that party’s care;
(b)any medication that has been prescribed for any of the children while in that party’s care;
(c)any medical, dental or allied health appointments which are scheduled to occur for any child while the children are in that party’s care;
(d)any religious functions or religious events to which they propose to take or send any of the children while the children are in that party’s care;
Each party will inform each other party of any communication with the second respondent father within 48 hours of such communication occurring or coming to the attention of the party.
Each party will provide each other party with no less than 28 days notice of any intention to change their residential address and the details of the new address.
Each party will inform each other party of any changes to their mobile telephone number, house telephone number and email address (such as are applicable to each party) within 24 hours of such change occurring.
By this order, each party authorises any school, pre-school or extracurricular activity attended by any of the children to provide to the other party information about the children’s education progress and involvement in the activity.
The father shall inform and keep informed the mother of the names and contact details of any doctor, dentist or allied health professional that treats or attends on any of the children.
By this order, each party authorises any medical, dental or allied health practitioner who treats or attends on any of the children to provide such information as they are lawfully permitted to provide about the children to the other party.
Dispute resolution
Each of the parties must do all things necessary to participate in family dispute resolution with a person authorised under the Family Law Act in the event that they cannot reach a joint decision about:
(a)any major long term issue involving the children; or
(b)the interpretation, implementation or enforcement of these Orders.
That before an application is made to a Court for a variation of these Orders, to take account of the change in needs or circumstances of the children or of the parties, each of the parties must:
(a)do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act;
(b)participate in family dispute resolution with a person authorised under the Family Law Act.
ICL
That the Independent Children’s Lawyer is not to be formally discharged before 9 January 2012
Schedule B
Orders Sought by Independent Children’s Lawyer
That the parents have equal shared parental responsibility for the children [X] born in 2005 and [Y] born in 2008 ("the children").
That each parent shall have the sole responsibility for making decisions about the children's day to day, care and development during times the children live with them respectively.
That each parent shall ensure the other is kept informed as soon as is reasonably practicable for:-
3.1Any medical problems or illnesses suffered by the children whilst in their care.
3.2Any medication that is being prescribed for the children.
3.3Any specialist medical appointments with any doctor, psychologist, psychiatrist, counsellor or therapist regarding the children.
3.4Any social, school or religious functions which the children are to attend.
3.5The residential address of each parent.
3.6The details of any person with whom each parent may be residing (including full name and date of birth).
3.7The telephone contact number of each parent.
3.8Any other matter relevant to the welfare of the children.
That for the purpose of facilitating Order 1 and 3 herein, the parents shall communicate in the absence of the children (presence or hearing) by way of telephone.
That each parent be entitled to attend all events involving the children including but not limited to sporting functions, extracurricular activities that allow for parental attendance or participation, school functions and events that allow for parental attendance or participation, and the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child's transportation to and from the event unless otherwise agreed between the parents.
That the children live with the Father.
That the children spend time with the Mother as follows:
7.1Both children:
i.From 10.00am to 4.00pm each Saturday until 1 March 2012
ii.From 1 March 2012, each alternate weekend from 2.00pm Saturday to 10.00am Sunday until 1 September 2012
iii.From 1 September 2012 each alternate weekend from 10.00am Saturday to 3.00pm Sunday until 1 January 2013
iv.From 1 January 2013 each alternate weekend from 4.00pm Friday to 3.00pm Sunday until 1 January 2014
v.From 1 January 2014, each alternate weekend from after school on Friday to 3.00pm on Sunday.
vi.From 10.00am to 4.00pm on Mother's Day
vii.In the event that the children's birthday falls on a weekend, then from 2.00pm to 5.00pm
viii.From 2.00pm to 6.00pm on 25 December 2011 (Christmas Day)
ix.From 2.00pm on Christmas Eve to 2.00pm Christmas Day in 2012 and in each even numbered year thereafter;
x.From 2.00pm Christmas Day to 2.00pm Boxing Day in 2013 and in each odd numbered year thereafter;
7.2 With [Y] alone (until she commences primary school) from 10.00am to 2.00pm each Wednesday
That for the purpose of facilitating Order 7 above:
8.1For a period of twelve months, changeover shall take place at the [omitted] Contact Centre and the parties shall forthwith submit their application to use that service and comply with the intake process as required by that service;
8.2Thereafter or on occasions where the Contact Centre is not available, changeover shall take place at the school where the children attend where possible but otherwise from the playground at the [omitted] McDonalds.
That the children's time with the Mother be suspended as follows:
9.1From 10.00am to 4.00pm on Father's Day;
9.2After 1 September 2013, in the event that the children's birthday falls on a weekend, then from 2.00pm to 5.00pm
9.3From 2.00pm 24 December 2011 to 2.00pm 25 December 2011;
9.4From 2.00pm on Christmas Eve to 2.00pm Christmas Day in 2013 and in each odd numbered year thereafter;
9.5From 2.00pm Christmas Day to 2.00pm Boxing Day in 2014 and in each even numbered year thereafter;
That the Mother ensure that she provide appropriate bedding for the children when they spend over night time with the Mother. In the event that the Mother is not able to provide appropriate bedding then the children shall spend time with the Mother from 10.00am to 4.00pm each alternate Saturday until such time as she is able to comply with this Order.
That the Father shall ensure that the child [Y] attends at the [omitted] Day Care Centre (or such other preschool or Day Care Centre in which she may be enrolled from time to time) at least two days a week and subject to the availability of the Centre until she commences primary school.
That the Father forthwith do all things necessary to engage with a Child and Family Psychologist on behalf of the children who will provide therapy for the children in consultation with the Father and the Mother for such period as is recommended by the Psychologist.
That within seven (7) days of the making of this Order, the father shall ensure that both children shall attend upon their general medical practitioner for the purpose of seeking to obtain a referral for the children to consult with a child psychologist or psychiatrist (treating specialist) to engage in therapy. On receipt of any such referral, the father shall:
13.1Cause the children to attend such appointments and undertake such therapeutic activities or interventions as the treating specialist determines to be appropriate or prescribes;
13.2Cause his legal representative to provide the name and contact details of the treating specialist to the mother (or her legal representative if represented) and the Independent Children’s Lawyer;
13.3Authorise the treating specialist to discuss the therapy with both parents (including diagnosis, treatment, prognosis and progress);
That the Independent Children's Lawyer be granted leave to provide a copy of the Expert Report to the Psychologist.
That each party be restrained from passing information or messages through the children to any other person.
That both parents shall refrain from making critical or derogatory remarks about the other parent or their family in the presence or hearing of any of the children and that both parents shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of any of the children.
That each parent be restrained from consuming alcohol during any period of time that the children are in their care.
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