Brayton and Brayton

[2017] FamCA 1032

FAMILY COURT OF AUSTRALIA

BRAYTON & BRAYTON [2017] FamCA 1032

FAMILY LAW – CHILDREN – Interim – Interim configuration of the time the children are to spend with each parent – Where the children have been drawn into the conflict – Where the children are spending limited time with one parent – Where there is no expert evidence to inform the Court

Eaby and Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286

Family Law Act 1975 (Cth)

APPLICANT: Ms Brayton

RESPONDENT: Mr Brayton

FILE NUMBER: SYC 5516 of 2017

DATE DELIVERED: 26 October 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 23 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Ryan QC

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

PENDING FURTHER ORDER OR UNTIL THE CONCLUSION OF COURT ON MONDAY 13 NOVEMBER 2017, WHICH FIRST OCCURS:

1. The father and mother each have equal shared parental responsibility for making all decisions in relation to the major long term issues concerning the children of the marriage C born … 2005 and D born … 2008.

2. The child C is to live with the mother at all times other than during the periods specified hereunder during which time she shall live with the father:

   ·Commencing on Sunday 29 October 2017 and each Sunday thereafter from 9.00 a.m. until 6.00 p.m.

   ·Commencing on Thursday 2 November 2017 and each Thursday thereafter from after school until 7.00 p.m. that day.

3. Unless otherwise agreed to in writing between the parents or their legal representatives, then, for the purpose of facilitating the time C is to live with the father on Sundays, as detailed in order 2 hereof, the parents shall meet in front of the … Cinema at Suburb T at both the commencement and conclusion of the time. For the purpose of facilitating the time the father spends with C each Wednesday pursuant to order 2 hereof, the father is to collect C from her school at the conclusion of the school day and deliver her to the mother’s residence at the conclusion of that time.

4. The child D is to live with the father at all times other than during the periods specified hereunder during which time he shall live with the mother.

   ·Commencing on Saturday 28 October 2017 and each Saturday thereafter from 9.00 a.m. until 6.00 p.m.

   ·Commencing on Wednesday 1 November 2017 and each Wednesday thereafter from after school until 7.00 p.m. that day.

5. Unless otherwise agreed to in writing between the parents or their legal representatives, then, for the purpose of facilitating the time D is to live with the mother on Saturdays, as detailed in order 4 hereof, the parents shall meet in front of the … Cinema at Suburb T at both the commencement and conclusion of the time. For the purpose of facilitating the time the mother spends with D each Wednesday pursuant to order 4 hereof, the mother is to collect D from his school at the conclusion of the school day and deliver him to the father’s residence at the conclusion of that time.

6. NOTATION: In case it not be apparent to the parents, it is here recorded that it is the intention of the court that the children are together on Saturday, Sunday, Wednesday after school and Thursday after school, albeit with a different parent on each day.

7. Each parent is to facilitate reasonable telephone time for C and D with the other parent.

8. Each parent is restrained from questioning either child about any aspect of the parenting dispute, the time each child wishes to spend with each parent; the child’s views about living with or spending time with either parent; any aspect of the other parents behaviour, actions or words spoken to the child. Should either child volunteer information about any of the above specified topics to either parent, that parent, is to listen to but not question the child about any such information. Neither parent is to record any conversation with a subject child.

9. Each parent is to use their best endeavours to ensure the children are not spoken to by any person other than a court appointed expert and the appointed Independent Children's Lawyer about any aspect of the litigation between the parents or any of the matters referred to in order 8 hereof.

10.Pursuant to section 68L(2) of the Family Law Act, the interests of the child C and the child D be independently represented by a lawyer and it is requested that the Legal Aid Commission of New South Wales make arrangements as soon as practicable to secure that independent representation of the child's interests.

11.Ms V or another suitably qualified person working at the Y Service and agreed to by the parties, be appointed as a single expert to prepare a short report to assist the court and which addresses the following topics if possible:

·  Any issues identified by the parties or the children;

·  An outline of the children including:

·A description of the children’s presentation and behaviour, their significant relationships, the impact of the conflict on the children, and any views expressed by them;

·an assessment of the children’s development and maturity, the anticipated effect of any proposed arrangements; and

·any comment in relation to their developmental needs; and any recommendations;

·   An outline of the parents’ presentation, including:

·identifying any risk factors and fears, and setting out any stated fears by the children or parents;

·a description of the parties’ proposals for the ongoing care of the children and how each sees the co-parenting relationship working;

·an assessment of the parents’ perspective and insight into the children’s needs;

·     Any recommendations the Reporter may have, particularly on an interim basis, as to the children’s future living arrangements;

·     Any other recommendations the Reporter may have related to the information received from the parties and children.

12.The cost of the provision of the report by the single expert is to be met by the father.

13.The matter is adjourned to the judicial duty list at 9.30 a.m. on 13 November 2017 for further hearing. (Noted at this time the Judge will be Justice Le Poer Trench).

14.The Independent Children's Lawyer has leave to issue any subpoena which the Independent Children's Lawyer considers may produce evidence to assist the court in the making of interim parenting orders on 13 November 2017 or thereafter.

15.The father has leave to issue subpoena to each of Dr F and Dr H for the production of documents. The subpoena are to be returnable on 13 November 2017 in the event of an earlier date not being available to the court.

16.The father’s application to issue a subpoena to the D School Counsellor/child psychologist is adjourned to 13 November 2017.

17.Each party and the Independent Children's Lawyer have leave to relist the matter before Justice Le Poer Trench on short notice should that be necessary prior to 13 November 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brayton & Brayton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5516/2017

Ms Brayton

Applicant

And

Mr Brayton

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application in a Case filed by the mother (Ms Brayton) on 9 October 2017. The mother had initiated proceedings in this Court seeking the Court set aside a Financial Agreement which had been entered into on 7 March 2005. She sought other consequential orders which might flow from success in the first endeavour. On 18 October 2017 the mother filed an amended Initiating Application which included parenting orders which she sought.

2. The Application in a Case filed by the mother on 9 October 2017 was accompanied by a “Notice of Child Abuse, Family Violence or Risk of Family Violence” and also an affidavit sworn by her on 9 October 2017.

3. The mother’s Application in a Case seeks parenting orders, including an order for equal shared parental responsibility and injunctions.

4. The father (Mr Brayton) opposes the orders sought by the mother, and filed in Court on 23 October 2017, a minute of the order he was seeking together with an affidavit sworn 23 October 2017. The father said he was presented from filing his documents at an earlier time because of “late service” upon him of the mother’s Application in a Case and supporting documents. The mother disputed the claim of “late service” and asserted she was prejudiced by the filing of the father’s material on the hearing date. She nonetheless (appropriately in my view) elected to proceed with the hearing of her application.

BACKGROUND

1. The mother and father are the parents of  C born in 2005 and D born in 2008. They are in dispute as to the care and living arrangements for the children.

2. An extensive Case Outline document prepared by the mother’s counsel sets out a chronology of predominantly uncontroversial events. The following events are noted by me in these reasons as emerging from the parties affidavit evidence.

3. The father is 46 years of age and the mother is mother is 38. The parties commenced cohabitation in about August 2002 and married in 2005. The cohabitation commenced in South Australia and in 2004 the parties moved to Sydney.

4. At the time of the birth of C in 2005 the parties were married, living in Sydney and had a permanent housekeeper who worked for them two days per week. The housekeeper is a relevant person in this proceeding as she is still employed by the husband and has had substantial interaction with the children during their lives. The housekeeper is Ms G.

5. The mother has not worked during the time the parties have lived in Sydney. The father is a business manager by occupation.

6. C is now 12 years of age and attends E School. The school is situated in the Eastern suburbs of Sydney.

7. The mother has suffered from illness since the birth of C, which the father says is significant in relation to the parenting dispute between them. The wife provided an unsigned letter purporting to be authorised by Dr F, consultant neurologist at the M Hospital. The document has two parts to it. The first is a copy of a letter from Dr F to Dr P dated 9 October 2017.  This letter confirms, as best Dr F can that there has been minor and non-specific changes in MRI studies of the mother’s brain. He informs that she has remained seizure free for many years.

8. The second document forming part of exhibit M1 is dated 17 August 2017 and states that he saw the mother in March 2015 and February 2016. He records the mother’s stated last nocturnal seizure was in July 2010. He records the stated history of medication the mother had been prescribed.

9. Both documents set out a diagnosis and those include “Bipolar affective disorder type 2”.

10. The parties’ separation occurred on 22 July 2017. At that time the mother left the former matrimonial home at K Street, Suburb N. The father currently occupies that property. The mother now resides at U Street, Suburb X. Both residences are situate in the Eastern suburbs of Sydney.

11. When the mother vacated the former matrimonial home in July 2017 she removed the children and they have resided, until recently, with her since that time.

The mother’s case

1. The mother’s case includes an assertion that she has been the primary care giver for the children since their birth. She asserts that the father has had “heavy work commitments” and has played a minimal role in the day-to-day care of the children. The father in his affidavit deposes to a more extensive involvement in the care of the children prior to separation. The traditional roles of each parent in the care of the children are probably less impacting now given the ages of each child. That, however, will be a matter for expert evidence.

2. It is common ground that there was a point of agreement reached between the parties for the initial care of the children post separation in July 2017. On 27 July 2017 the mother’s solicitor wrote to the father making an offer which the father accepted by email dated that same day. The proposal can be summarised as follows. The children were to be with the father from after school Friday until 7.30 p.m. Sunday each alternate weekend. Additionally, the children were to be with the father from after school on alternate Wednesdays until school time the next day. The mother also proposed restrictions upon the involvement of Ms G in the care of the children while they are in the care of the father.

3. As I said, the father accepted the offer, however, he professed a wish to spend more time with the children and requested the opportunity to speak with them on the telephone.

4. Somewhat surprisingly (for both parents no doubt) a further letter emanated from the mother’s solicitor, on the day after her offer had been accepted, without further negotiation, by the father. The letter informed the father that both children had refused to see the father as the mother had proposed. The mother then proposed that the children spend time with the father from 1.30 p.m. to 7.30 p.m. on Saturday or 9.00 a.m. to 5.00 p.m. on Sunday.

5. It is part of the father’s case that the mother has suffered (and possibly still is suffering) from a significant psychiatric condition. The mother annexed to her affidavit a copy of an email which she obtained from Ms J (her mother) in which the father had provided details of the mother’s health. That email is dated 4 August 2017.

6. The mother says that the children have spent time with the father during the day only. She says the children have claimed to be in fear of the father and do not want to stay overnight with him.

7. The mother says that the father has sought a reconciliation with her and she tendered many text messages she has received from him which variously seek she reconcile with him and at other times are critical of her.

8. The mother says the father has involved the children in the parental dispute. She said the children have reported to her that when they have spent time with him he was “crying and sad.” They said to her “You should spend more time with him.”

9. Notwithstanding the reluctance of the children to spend overnight time with the father the mother said that on 22 September 2017 she was due to travel to Melbourne for the weekend with the children. In the week leading up to that time the mother said D told her he did not want to accompany her on plane travel or stay in a hotel. The parents agreed D would stay with the father. The arrangement included that the mother would collect D upon her return on 25 September 2017.

10. The mother deposes that at the changeover D started to cry, however, she said to him “you will have a great weekend with Daddy.” Later that evening she spoke to D on the phone and he started to cry and said “I miss you mummy.”

11. The mother says that upon return from Melbourne on Monday 25 September 2017 she had dinner with “the family” (including the father ) and upon return to the former matrimonial home D requested to stay additional nights with the father. The mother was surprised by the request, however, she agreed to him staying longer with the father.

12. The mother referred to an “ugly exchange with Ms G” in paragraph 86 of her affidavit without providing any further details. She deposed however that “on 27 September 2017 I received a text message from D requesting to stay another night. Given the ugly exchange I had with Ms G, I text messaged D saying “I am very concerned about the amount of time you are spending with Ms G. Daddy knows I am very unhappy with her behaviour. I think one more night is ok, I think you should come back in the morning. I will pick you up at 9.00am and we can go for breakfast at Suburb L.” The mother said that D had messaged her back saying “that I stop confusing him.” The mother said she then rang D and there was distress and ultimately the father spoke to her and said she “you have now severely distressed D and he won’t stop crying.”

13. Whether she realised it or not it seems that the text message from the mother to D as above set out did draw him into matters of conflict between the parents and was a regrettable incident. From both parents accounts of what has occurred since it appears that some degree of polarisation has occurred within this family to the end that D appears to be opting to live with his father and C appears to be opting to live with her mother. The children’s respective maturity and ability to understand the consequences to themselves of being drawn into their parental conflict is not known, however, the Court appointed expert, who I propose to appoint, may be able to provide some evidence to assist the Court on such matters.

14. It is the mother’s case that the father has behaved in a controlling and manipulative manner towards her and the children. She says he has sent her many text messages “begging” her to reconcile with him if not for any other reason than for the sake of the children. The mother has set out detail of alleged violence perpetrated against her by the father. She deposes that proceedings were commenced against him seeking orders for her protection through the Local Court. The mother said she caused those proceedings to be withdrawn.

15. On 9 October 2017 the mother filed a “Notice of Child Abuse, Family Violence or Risk of Family Violence”. That document detailed allegations by the mother of abusive behaviour she said the father had exposed the children and the mother to. It also detailed family violence which the mother said occurred on 22 June 2017 on which occasion the mother called the police to attend the former matrimonial home.

16. In submission the mother drew the Court’s attention to pages 17, 22 and 23 of her affidavit and submitted that the child D appears to be dictating where the parents should meet. The mother also pointed to the event of 7 October 2017 where the father had informed her “D wished family to be reunited”.

17. The final concise submission of the mother is that the evidence which can be seen as uncontroversial between the parties does not put in issue that the mother has been the primary caregiver for the children thus far in their lives. The mother submits the best interests of the children would be best served by a continuation of that circumstance until the Court can hear the case on a final basis. It is submitted that the jurisprudence of the Court would support such a position.

The Father’s Case

1. The father swore his affidavit on 23 October 2017, the day of the hearing.

2. The father says the mother left the former matrimonial home removing the children without giving him any notice of her intention to do so. Nonetheless the father said he assisted the mother in the move.

3. The father occupies the former matrimonial home as does Ms G who he says has been the children’s nanny since their birth.

4. The father is employed by the Z Company. There is flexibility with work hours. He has the support of Ms G and his mother in caring for the children.

5. The father said “I have ongoing concerns about [Ms Brayton’s] mental and emotional health.” The father set out his knowledge of the mother’s health needs and history. He set out his observation of a seizure in August 2005. He said he observed the mother to have a second seizure in June 2007. The father set out other evidence about the mother’s mental health, however, as that history has been set out by the mother and in the exhibits I will not repeat it here. However, the father alleges that in early 2017 the mother “started to wean herself off medication saying to me: ‘I want to get off as much medication as I can”.  The father said he cautioned against that unless supervised by her medical practitioners. The father’s case is clearly that the mother’s mental health, untreated, or self-medicated (i.e. refusing compliance with medical advice) could/would carry risk for the children.

1. The father asserted a significant role on his part in the day-to-day care of the children as infants and until the date of separation. He acknowledged that the mother was primarily responsible for the care of C during the day when she was a baby.

2. In relation to C the father said she is progressing well at school, however, he has “serious concerns for her emotional well-being”. In relation to D the father said he had transitioned to a new school this year (D School) and had been the subject of bullying. He said that has now been addressed by the school, however, he said D still exhibits anxiety at drop off at school.

3. In his affidavit the father described aspects of the mother’s behaviour in the lead up to the separation which he clearly was concerned about. He described incidents which he said illustrated unjustified assertions by the mother of infidelity.  He said she withdrew from social or business occasions to which they had been invited.

4. In relation to the incident of alleged family violence on 22 June 2017 the father provided his version of what occurred. He said there was argument during which the mother accused him of infidelity. The father in reply to the specific allegation of the mother denied family violence and denied key aspects of the mother’s allegation. He said that he was the subject of a Provisional Apprehended Violence Order made on 23 June 2017, however, it was subsequently withdrawn. The parties continued to live at the former matrimonial home after 22 June 2017.

5. The father described what he said occurred on 23 June 2017. In effect he says the mother irrationally accused him of threatening and intimidating her. She called the police. No action was taken by the police in relation to that call although they attended the house and amongst others spoke to the children.

6. The father said that separation occurred on 22 July 2017 after what had been, on the father’s version, a pleasant and intimate relationship between the parties on 21 July 2017. At the point of separation the mother handed the father a letter from her lawyers.

7. The care arrangements for the children post separation were then set out by the father. He said the time he was permitted with the children did not include overnight time and the children were usually accompanied by the mother. He described some behaviour of the mother which caused him to return early from a business trip to China. He said the mother had informed him she wished to return to the home and consider reconciliation, however, rather than that she informed him she was signing a 12 month lease on a residential property. That event he said occurred on 18 September 2017.

8. The father described the care arrangements for the children post 22 September 2017. On that occasion he was informed by the mother that she and C were travelling to Melbourne, however, D did not wish to take that trip. The mother agreed for D to stay with the father during the time she was away.

9. When the mother returned on 25 September 2017 D requested to stay longer with the father. The mother agreed. Since that time D has told the father “I just want to stay with you. I don’t want to live with Mummy.” D has made other statements to the father which are really complaints about the parenting of him by the mother.

10. Since the time D has been living with the father he said he has arranged for D to spend time with the mother, however, he says D has refused to do so unless the father is also present. Consequently the meetings have been occasions when both parents and both children have been present.

11. The father set out details of interaction between the mother and D since September 2017. Some of that interaction is said to be inappropriate. He described a meeting with the mother and C on 22 October 2017 which included C asking D questions which were accusatorial of the father.

12. The father set out his concerns for the wellbeing of the children. He raised a concern that D had been exposed to a number of significant changes in important aspects of his life during 2017 and that had impacted upon him. He said the mother had inappropriately involved the children in or exposed them to the parental conflict. He raised a concern that the mother was engaging C as an ally in the parental conflict. He was concerned the mother’s mental state of health was deteriorating and that affected her behaviour, which behaviour had adverse consequences for the children.

13. The father’s counsel submitted that the mother was taking a stand in relation to the care of the children which was that the child C’s views were to be followed as to which parent she wished to live with yet the wishes of D were to be ignored or overborn.

14. It was submitted that the mother did not facilitate reasonable or proper time for the children and the father post the separation in July 2017 notwithstanding that she had proposed an alternate weekend time for the children to spend with the father which position had been immediately accepted by the father. She alleged the children were afraid of the father and therefore would not participate in staying overnight with him in their family home. It was submitted that the stated fear in D spending overnight time with the father did not prevent the mother allowing D to stay with his father on 22 September 2017.

15. The father submitted the mother still has not been able to provide time for C to stay overnight with him since the separation.

16. The father rejected the proposal of the mother for the involvement of Dr S in providing therapy for the children. He said he has had a problematic relationship with that medico.

17. The father urged that the Court proceed cautiously in the making of any interim parenting orders at this time given the history provided by the father in his evidence.

18. It was submitted that the Court would be concerned that the mother has not set out what she has said to D since 22 September 2017 when he commenced to live with the father.

19. It was submitted that the Court ought not make an order which requires D to be returned to the predominant care of the mother in the absence of expert evidence addressing the children’s emotional states of health. It was submitted the Court would be concerned as to why D is now so determined to remain living with the father and will not spend time with the mother unless he is accompanied by the father. Likewise there is concern about how embroiled the mother has caused or allowed C to become in the parental dispute.

20. Whilst conceding the mother has the capacity to provide for the physical needs of the children the father raises real concerns about her ability to provide a healthy emotional environment for them such that they are relieved of exposure to parental conflict.

21. The father denies any assertion by the mother that he is not the carer of D. The mother infers that Ms G and possibly the father’s mother are the primary carers for D.

22. In response to a request by me about what time would be proposed by the father for D to spend with the mother pending the return of the matter for further determination by the Court, the father submitted Friday between 6.00 and 7.30 p.m. and on Saturday for three hours at a time to be agreed. It is the mother’s case that D live with her and have alternate weekends with the father.

Determination

1. This is an interim determination. It is attended by an extraordinary set of facts. The family dynamic suggests that the subject children have significant power in the parental relationship. This is evidenced at least by the mother’s position that C should only spend time with the father which is consistent with her views. It seems that the father has also accepted that position, at least until October when the mother filed the application now under consideration.

2. The jurisprudence of the Court cautions against departure from a settled status quo for the care of children, when the Court is required to make interim parenting orders. In this case the mother argues that the status quo favours her in that she has been the parent who has had the greater role in caring for the children’s day to day care since their birth and both have lived with her since the parties separation in July of this year (at least until 22 September 2017).

3. The case has many aspects which are probably the product of the parties good fortune in being financially well off. The parties have had the presence of a housekeeper/nanny since 2005 at least. There seems little dispute that Ms G has been significantly involved in the care of the children. The mother now says Ms G is actively promoting/supporting the father in the parental dispute.

4. The father has raised concern about the mother’s mental health and the impact upon the children of the emotional environment she is able or willing to provide for the children. He accuses her of inappropriately involving the children in the parental dispute. He raises a concern that she has created an environment which has drawn C into the parental dispute as an advocate for the mother. He used the term “enmeshed” when raising a concern about the current state of the relationship between C and the mother.

5. The Act requires that the court address the matters specified in s 60CC.  So far as that is possible at such an early stage of proceedings and with limited ability to examine allegations and assertions made by the parties. I now do that without listing headings and to the extent the evidence allows any findings of fact. I will also consider specifically s 61DA and s 65DAA. The decisions of the Full Court which guide the approach of trial judges in hearing interim parenting cases can be found in the following decisions: Goode & Goode (2006) FLC 93-286; Eaby and Speelman (2015) FLC 93-654.

6. Addressing 61DA firstly, I note that the mother seeks an order for equal shared parental responsibility as an interim order. That is so although she raised allegations of domestic violence. The father is silent about any order for equal shared parental responsibility and therefore presumably does not oppose, or alternately, proposes the provision of s 61C ought continue to apply until an alternate order is made.

7. In framing interim orders I propose to make orders which will ensure the children have continuing relationships with each parent, albeit in a different configuration to that which each would desire. I will also ensure that protections are put in place to shield the children from continued involvement and exposure to the ongoing parental conflict to the extent that can reasonably be achieved.

8. There is no objective evidence upon which the Court could confidently predict what the views of the children are in relation to living with and spending time with each parent. I am concerned that the children have been so involved in the parental separation and the breakdown of the relationship between the parents that it has been quite impossible for the children to build an independent view of such matters even if their age and maturity permitted same. To that end I propose to appoint an expert to provide opinion evidence to the Court which may assist in this respect.

9. The parents have each provided evidence of statements made by the children to them which the parents have taken to be a true statement of views.

10. The nature of the relationship each child has with each parent and each significant other person cannot be confidently determined at this time. I consider that each parent has a basically good relationship with each child, however, I am concerned the mother reports the children expressed a fear of the father at about the time of final separation. This is a matter which requires examination by an expert.

11. Since the separation I am satisfied the father has taken the opportunity to spend time with the children to the extent the mother agreed to that occurring. Likewise the mother has taken up each opportunity offered by the father for her to spend time with and communicate with D.

12. The arrangements for the care of the children have seen them initially, post separation, both living with the mother and spending time with the father although not overnight until 22 September when D commenced spending overnight time with his father. As best I can see that has not occurred for C. Nonetheless, the parents have been able to make arrangements which have apparently largely seen the children being able to spend time with their father in a family-like activity such as dining out. That has changed since 22 September to a circumstance where the same types of family activities have occurred and which have enabled D to spend some limited time with the mother and for C to spend some limited time with the father. There has been, on the father’s evidence, an occasion since 22 September where C has spent an afternoon with the father and D at the former matrimonial home and absent the mother.

13. I conclude that to require any substantial change in the children’s care arrangements so as to order that D live with the mother, could have, at this time, consequences adverse to the best interests of D. Expert evidence is required to guide the courts hand on such a matter.

14. There is, however, no reason why the children should not be able to spend time together with each parent (separately) in a non-threatening time frame. That is time with each parent, however, not overnight at this time.

15. There is no evidence which satisfies me either child is at risk of physical abuse from either parent. I consider injunctions can be framed to protect the children from psychological abuse, which at this time appears largely to be about drawing the children into the parental dispute.

16. The evidence satisfies me that at this time each of the parents has the requisite capacity to attend satisfactorily to the children's physical requirements. I am not in a position to draw a considered conclusion about the capacities of the parents to provide for the emotional needs of each child.

17. Given that each parent appears to be supporting allegedly stated views of each child, it appears the culture within this family has been such as to elevate the level of respect for and adherence to stated opinions of each child Cn though they be only 11 and 9 years of age. It may be this has developed a form of pseudo adult maturity which is otherwise uncommon within Australian families with children of that age. It is important to have the benefit of expert evidence to provide opinion on such matters. It will be important to know whether either party can parent the children in a manner that permits and supports the children having a meaningful relationship with the other parent.

18. The evidence recited above details the allegations of the mother about family violence. Given that the allegations are denied by the father, that is a matter which will have to be determined at trial. One of the orders sought by the mother is to restrain the father from communicating with her. The mother produced in evidence a bundle of documents which were copies of text messages and emails under the hand of the father in particular. The father also attached to his affidavit copies of text messages. Each is aware now that their communication will probably be tendered in evidence against them should the opportunity for same arise. That, I consider, will be sufficient to deal with the mother’s concern. Should that not be proved correct I would reconsider such an application in the future. It is to be remembered that parents who share parental responsibility need to be able to communicate well and in a manner which does not disturb the emotional wellbeing of the other.

19. No final family violence order was made in this matter. The terms of the preliminary or temporary family violence order are not in evidence, however, from the evidence which has been provided it seems reasonable to conclude the order prevented the father from acting in any threatening or violent manner to the mother and may also have included the children.

20. I consider that it is prima facie in the children’s best interests that they each spend time with each parent in an unthreatening environment. That should allow each to be able to have a relationship with each parent outside of the “watchful eye” of the other, albeit for about a day on the weekend and sometime during each week. This might then assist the single expert in being able to form opinions which will assist the Court.

21. The circumstances in this case are so complicated that I conclude for the court to make interim orders which significantly change the care arrangements for the children without the assistance of a short report from a Court appointed expert may expose the children to serious psychological harm. The father has proposed that the parties engage an expert from the Relationship Space group to prepare a short report which might assist the court in formulating orders to operate as interim orders in this matter until a final hearing can take place. Although taken by surprise with that proposal, the mother’s counsel was able to obtain instruction and no objection was raised to the appointment of an expert for the stated purpose.

22. The application of s 65DAA to this determination does not allow the Court to consider in any meaningful manner the prospect of equal time nor the application of substantial and significant time for each child with each parent. The formulation of orders can only accommodate exposure of each child to each parent in a manner which does not challenge loyalties each child might feel for each parent or any other consideration which may be at play and which does not enable the children to be able to share significant and substantial time with each parent. The orders I propose will provide for a period of about three weeks and will enable the expert to prepare a bare bones report or alternatively provide the Court with oral evidence addressing the matters specified in the courts orders.

23. I propose that the children be separately represented. There are a number of facts which are set out in these reasons which support such appointment. Should time permit I would hope that the lawyer appointed to represent each child, will meet with the children and during that meeting, if the Independent Children's Lawyer thought it appropriate, explain to the children the orders the court has made. 

24. The orders the Court has made will attend to the courts view of the children's best interests and protect them from many manifestations of the parental conflict. The extent to which the children are protected will be determined by the resolve of each parent to obey the order or to ignore it.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench  delivered on 26 October 2017.

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