Brownbill & Wiltshire
[2022] FedCFamC1F 113
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Brownbill & Wiltshire [2022] FedCFamC1F 113
File number(s): BRC 11296 of 2020 Judgment of: CAREW J Date of judgment: 3 March 2022 Catchwords: FAMILY LAW – CHILDREN – UNACCEPTABLE RISK – FAMILY VIOLENCE – s102NA mandatory ban –Undefended Hearing – Sole Parental Responsibility –Where the mother alleges the father poses an unacceptable risk of physical harm to the children – Where the mother no longer believes the father posed an unacceptable risk of sexual harm to the children – Where the father elects not to participate in the proceedings up to the date of trial but was given leave to make submissions – Where the Independent Children’s Lawyer submits the evidence does not support a finding of unacceptable risk against the father as alleged – Where the mother has a history of substance abuse addiction – Where the mother was twice been committed to a mental health facility – Where there is no option other than the mother to care for the children – Where the Department of Children Youth Justice and Multicultural Affairs (Qld) elected not to intervene - Where the Court orders the mother have sole parental responsibility and the children live with the mother – Suite of protective measures put in place – Where Independent Children’s Lawyer to remain for six months. Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) FLC 93-637 Number of paragraphs: 58 Date of hearing: 3 March 2022 Place: Brisbane Counsel for the Applicant: Mr Taylor Solicitor for the Applicant: Lander Solicitors Qld Solicitor for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Oakley Solicitor for the Independent Children's Lawyer: Pippa Colman & Associates Law Practice Pty Ltd ORDER
BRC 11296 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BROWNBILL
Applicant
AND: MR WILTSHIRE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
3 MARCH 2022
THE COURT ORDERS THAT:
Parental Responsibility
1.The mother have sole parental responsibility for the children.
Time Arrangements
2.The children shall live with the mother.
Alcohol Testing
3.Within twenty-four (24) hours of receiving a written request from the Independent Children’s Lawyer the Mother is to attend upon B Pathology Service (or other such reputable pathologist) for the purpose of undertaking a liver function blood test for alcohol abuse and for such purpose:
(a)The Independent Children’s Lawyer is at liberty to request such testing no more than once every four (4) weeks;
(b)Both the Carbohydrate Deficient Transferring (CDT) levels and Gamma-Glutamine Transference (GGT) levels are to be assessed;
(c)The mother is to provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the Independent Children’s Lawyer immediately upon its completion;
(d)The mother is to be solely responsible for the costs associated with her individual testing;
(e)A copy of any test result received is to be provided to the Independent Children’s Lawyer within 24 hours of receipt of same.
Hair Test
4.Within seven (7) days receiving a written request from the Independent Children’s Lawyer the Mother shall undergo hair testing through C Testing Services (CTS) or nominee for drug testing purposes and the following shall apply:
(a)Collection is to be conducted by a qualified and certified collector;
(b)Chain-of-custody procedures is to be applied to the sample;
(c)Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;
(d)Either head or body hair may be collected for testing;
(e)The Mother is required to maintain her head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut (less than 4 centimetres), bleached or dyed between the date of this Order and the time of collection of hair;
(f)The Mother is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorizing CTS or nominee to provide the results of each test to all parties, and/or their legal representatives upon receipt of such test results;
(g)The hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites;
(h)CTS is required to utilize the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognized international standard ISO/IEC 17025:2005 by the relevant National Accreditation body and CTS’s selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost and time required for results to be made available;
(i)The cost of the hair drug test is to be borne by the Mother; and
(j)The Mother is to provide the results of the testing to the Father and Independent Children’s Lawyer within 24 hours of the results being received by her, or her nominee.
Programs
5.The Mother shall within seven (7) days of the date of this Order do all things necessary to enrol in and complete a Triple P Parenting Program, and a Post Separation Orders Program.
6.Within seven (7) days of the date of this Order the Independent Children’s Lawyer shall complete the online referral form with Family and Children Connect.
7.The Mother shall speak with any representative of Family Connect that subsequently contacts her, and do all necessary things to engage with Family and Children Connect.
8.The Mother shall obtain from her treating General Practitioner or Mental Health Practitioner a referral to complete a program or receive counselling in respect of Domestic and Family Violence.
9.The Mother shall do all things necessary to ensure that the children continue to engage with Ms D, or any other practitioner recommended by Ms D from time to time in respect of their mental health, and follow all reasonable directions of such practitioner.
10.The Mother shall within seven (7) days of the date of this Order, enrol in a program to address detoxification and rehabilitation as recommended by Dr E.
11.The Mother shall continue to attend with her counsellor, Ms F at H Health Service, and shall provide evidence of the provision of a copy of this Order and the report of Dr E.
12.The Independent Children’s Lawyer and the Mother are granted leave to provide a copy of this Order to the children’s school.
13.The Independent Children’s Lawyer and the Mother are granted leave to provide a copy of this Order along with the Family Report of Ms G dated 28 July 2021 and Dr E’s Report dated 23 June 2021 to the following:-
(a)Ms F at H Health Service;
(b)Ms D;
(c)Any medical practitioner that the children or the mother or father engage with, including any mental health practitioner.
Discharge of Independent Children’s Lawyer
14.The Independent Children’s Lawyer be discharged after six (6) months from the date of this Order.
NOTATION
A.It is noted that the Mother is no longer seeking a finding that the father represents an unacceptable risk of harm to the children by virtue of sexual abuse.
B.It is further noted that this Order is made with the consent of the Mother and the Independent Children’s Lawyer and without opposition from the Father.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Brownbill & Wiltshire has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J.
Ms Brownbill and Mr Wiltshire have two children together. X is eight years of age and Y is seven years of age. I will refer to Ms Brownbill as the mother and Mr Wiltshire as the father and collectively as the parents, not to indicate any disrespect, but to assist with the anonymisation of this judgment. X and Y will be collectively referred to as the children for the same reason.
Until the commencement of this hearing, the mother opposed the father spending time with the children other than under supervision, and that was because of her concerns and, indeed, belief that the father posed an unacceptable risk of harm to the children, in particular, by reason of what she believed was a history of failure to protect the children from sexual abuse from third parties, and also an allegation that the father had kicked X in the cheek.
At the commencement of the trial, Mr Taylor, counsel for the mother, placed on the record that the mother no longer believed that the father posed an unacceptable risk to the children of sexual harm.
Ms Oakley, representing the independent children’s lawyer (“ICL”), submitted that the evidence before me simply could not have supported a finding of unacceptable risk (sexual or physical) as alleged against the father. I have had the benefit of Exhibit 2, which is a very comprehensive chronology, admitted into evidence by consent, and helpfully gives details not only of the allegations, but investigations and findings by authorities in relation to the allegations made by the mother.
Since the trial directions were made on 5 November 2021, the father elected not to take any further part in the proceedings. He failed to attend a directions hearing on 3 February 2022 and failed to attend a compliance hearing on 18 February 2022 and did not file any material, nor any response upon which he relied in the matter. On 5 November 2021, both parents attended and were self-represented. The mandatory ban against cross-examination of the parties personally, applied to this case because of an existing family violence order made for the protection of the mother against the father, which is in place until 2026. Accordingly, the parties were able to access independent legal representation at the expense of the taxpayer. The mother did so. The father did not.
When the father failed to attend at the compliance hearing on 18 February 2022, the matter was listed before me today as an undefended hearing, and the duration of the listing was reduced from four days to two days. The reason that it was allocated two days, despite it being an undefended hearing, is because of the very serious allegations and, indeed, evidence that indicated that these children have had a very compromised life as a result of actions and decisions by both of their parents.
At that 5 November 2021 hearing, with the assistance of the parents and the independent children’s lawyer, the following issues were identified as issues requiring determination:
(1)Does the father pose an unacceptable risk of harm to the children by reason of any of the following:
(a)sexual abuse or exposure to sexual abuse;
(b)physical abuse of the children or a child;
(c)alcohol and/or drug abuse; and/or
(d)exposure to family violence.
(2)Does the mother pose an unacceptable risk of harm to the children by reason of any of the following:
(a)mental illness;
(b)alcohol and/or drug abuse; and/or
(c)making false allegations against the father.
(3)If one of the parents is found to pose a risk of unacceptable harm, can that risk be ameliorated by supervision and if so, is long term supervision a realistic option?
(4)Do the parents or either of them require ongoing family support from outside agencies and if so, what support is available?
(5)If both parents pose an unacceptable risk of harm to the children is there a third party who would be suitable and willing to provide long term care for the children?
(6)Should the mother be at liberty to relocate with the children at some unspecified time in the future to enable her to study or work overseas?
A notation to that order included a concession by the parents that they had each engaged in family violence in the past and, accordingly, the presumption of equal shared parental responsibility did not apply.
The father indicated, it seems, by email to the ICL yesterday at some time that he intended to appear today and communicated such intention to the Court by email today at about 9.10 am when the matter was due to commence at 10 am. At the commencement of the hearing, the mother was granted leave to participate in the proceedings electronically. Leave was granted without opposition. The father was granted leave to participate in the proceedings to a limited extent by telephone. I ruled that while he could not cross-examine any witnesses, (there being only the mother in the mother’s case, but some expert witnesses in the ICLs case), he could make any submissions he wished to do, despite this proceeding being an undefended matter. Reasons for that ruling were provided at the time.
Ultimately, the matter proceeded before me on the basis of submissions only, and the ICL recommended a proposed a minute of order (Exhibit 4).
Although the matter proceeds on a limited basis Part VII of the Family Law Act 1975 still applies.
WHAT LAW GOVERNS THE DETERMINATION OF PARENTING DISPUTES?
Every parenting decision requires the application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, 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 and any other fact or circumstance considered relevant (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[2]
[2] Banks & Banks (2015) FLC 93-637.
BACKGROUND
Just by way of brief background, the parents appear to have commenced a relationship some time in about 2009, although I note that the mother informed Dr E that the relationship commenced in 2011. Not much turns on that. They had a separation in about 2012 for maybe 12 months, and they separated on a final basis in or about 2017. They did not marry, but cohabitated for a number of years.
Both the parents are currently 35 years of age, and they have two children together. X was born in 2013, and Y was born in 2015. The children have not seen the father since August 2020.
The mother has another child, W, who was born in 2005. W, it seems, has had minimal contact with his father, although there is some evidence to suggest that he lived with his father from February 2018 until February 2020, coinciding with the mother’s mental health challenges.
The mother was employed in administration until she lost her job in 2019 or 2020, and her sole source of income is now Centrelink payments and, I understand, some child support. The mother and children live in rental accommodation in J Town, and the mother has been there for about three or so years. The mother is not currently in a relationship.
The father is employed as a manager on a two week on, two week off roster. He also lives in rental accommodation in L Town and shares a flat with a Mr K. The father has also lived in that accommodation for some years.
Until May of 2021, X and Y attended the M School, where they were in grades 3 and 1 respectively. There were certainly some concerns flagged by the school about possible neglect, at least of X, with evidence indicating that he may have made his own way to school on occasion and was not collected by his mother on other occasions, and when the mother did arrive, apparently she was dishevelled and indicated that she had just woken up. I also note that the school raised concerns about X falling asleep during the day. On one occasion, at least, police were involved. However, those concerns seem to have been raised in about 2020, and there is no evidence before me of this being a continuing issue.
In May of 2021, the children changed school to N School. The mother says that occurred because it would sometimes take her up to six hours travelling on public transport from J Town to L Town. Although not a significant distance, no doubt difficulties with public transport meant that at times, transport was a difficult. That seems like a reasonable reason to change the children’s school to somewhere that is now in close proximity to her home. Nevertheless, for semester 2 in 2021, X was absent for a total of 17 days, and Y was absent for a total of 14 and a half days. Mr Taylor gave some evidence from the Bar table at my invitation that the mother explained the difficulty as being that, on occasion, when one child was sick and because she was without a vehicle, she was unable to get the other child to school. I do not know that that is an entirely satisfactory explanation but it provides some relevant information. I do however note that despite the unsatisfactory number of day’s absence, none of the absences were unexplained and that is a good sign.
There have been numerous protection orders made in this case. The current protection order was made for the protection of the mother and children on 29 June 2021 and it will remain in force until 28 June 2026.
Historically, the mother has also been the respondent to a protection order for the protection of the father.
There have been very serious allegations of violence alleged by the mother against the father including that he attempted to strangle her on numerous occasions. The mother formally withdrew some of her allegations of that nature against the father to police in the past.
The mother also alleges that the child, X, was kicked in the face by the father in August 2020 but this allegation was not substantiated as the father and his flatmate gave an account that the child had tripped and hit his cheek on a coffee table. X gave conflicting accounts of the incident to police and there was a suspicion that the mother had coached the child.
The mother became upset when told by the police that they were not intending to charge the father in relation to that allegations and swore at the police stating that the father was part of a paedophile ring and that he permitted the children to be sexually abused by others.
In 2018, when the mother reported similar allegations, she was shortly thereafter committed to a mental health facility as an involuntary patient on 5 September 2018. The mother remained an inpatient until 12 September 2018.
The perpetrator of alleged sexual abuse of the children was not the father but a former flatmate of his (or as contended by the father, a former flatmate of the mother’s). This person submitted his phone to police for inspection and no videos or photos of the child, Y, were present, contrary to the allegations by the mother. The mother had videoed the child allegedly making a disclosure but police noted that the mother asked leading questions and the child denied she had been touched on the vagina contrary to what was alleged by the mother.
As a consequence of the mother’s allegations, the children were subjected to genital examination which were “normal”.
On review of the case by the Suspected Child Abuse and Neglect Team (“SCAN”) it was noted that the mother’s questioning of Y was:
Highly coercive with multiple suggestive, repetitive closed questions used in conjunction with reinforced praise when the child answered in a manner the mother deems correct. The questioning also alludes to needing a disclosure to stop abuse happening to her and to protect other girls.
The mother was again admitted to a mental health facility on 1 September 2019 for about two weeks. The mother had persecutory themes of delusional intensity and the main risk identified by the mental health facility at that time was assessed to be one of inadvertent harm to her children from her paranoia. It also appeared that the mother was not adhering to her prescribed medication regime. There is evidence of the mother abusing not only illicit substances but also a prescribed medication, namely, Diazepam in 2018.
The children have been subjected to numerous section 93A interviews with police, X twice in 2020, Y and X in 2018. On 30 August 2019 the mother was irate and abusive to police in front of X (at least) and he was observed by police to be distressed and he ran from the police station.
In 2020, the mother was sentenced for obstructing and assaulting police and dangerous operation of a motor vehicle while adversely affected by intoxicating substances in late 2019. She was fined $3000 and disqualified from driving for 15 months.
In 2020 the mother was charged with driving without a licence, driving without due care and attention, and failure to comply with duties of a driver involved in a crash. The children were in the car with the mother at the time. She crashed the car and fled the scene at speed.
Up to August 2020, the children were living in a week-about arrangement between the parents. That order was formally suspended on 29 September 2020 following the allegation about the father kicking X in the face. I should observe that there was a previous final parenting order made in this matter on 5 April 2019, and that was the order that provided for alternate week-about care.
The mother and children participated in interviews for a family report on 2 June 2021. As the father failed to attend on that date, another time was made available for him on 21 June 2021, but because of the impact on the children of missing school and the uncertainty about whether the father would attend the rearranged date, there was no observation undertaken of the children with the father, which is, of course, regrettable, but understandable in the circumstances.
With the history as recounted above, the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) were invited to intervene in the proceedings because of a very real prospect, as identified in November 2021 when I listed this matter for trial, of the children being placed in the care of a foster family or third parties. Regrettably, the Department elected not to intervene in the proceedings on the basis that there had been “no further child protection history recorded in relation to the children since 15 April 2021”.
DR E’S ASSESSMENT OF THE MOTHER
Dr E, who was retained by the ICL to undertake a mental health assessment of the mother, opined that in 2018 the mother experienced a “nervous breakdown as a result of various factors including the use of ICE which triggered a delusional disorder with paranoia.”
Dr E assessed the mother in June last year, and he had available to him material produced to the Court which, as I say, has been summarised in Exhibit 2. He also had affidavits from both the father and the mother and, of course, he interviewed with the mother. Of the mother’s history, Dr E says the following:
Her history about substance use supports the following contentions, in my view:
(1) she presents a serious history of minimising her need to turn to the use of these sorts of illicit drugs;
(2) she has a significant history of using illicit drugs in her life;
(3) she has a mindset that is opposed to conventional medical and psychiatric expert opinion about the adverse mental health issues that are associated with Ice use.
Dr E opined that while the mother’s condition was in remission, he remained concerned about relapse particularly if the mother is using cannabis which I think she admitted to when she saw him on 9 June 2021. I also note the mother’s admissions to Dr E that she was did not comply with her prescribed medication regime and self-administered in 2020 with what she described as “medicinal cannabis”. It was not medicinal in the sense of being under the guidance or supervision of a medical practitioner but rather the mother buying her own supply of cannabis which she seemed to think was an excellent way to deal with her significant mental health problems. Dr E certainly expressed some understandable concern about the mother’s approach. In any event, the current evidence would indicate that the mother’s mental illness is in remission.
OTHER RELEVANT FACTORS
The children have been performing well at their current school, N School, since May 2021. The ICL who has, I must say, performed an excellent job in this case of obtaining all possible information about these children’s safety, indicates that their current school raises no significant issues about the children’s presentation.
It is also of some comfort that the mother has ensured the children’s regular attendance upon a psychologist, Ms D who has seen the children 42 times between November 2019 and December last year. Ms D seems to have a positive view of the mother and appears to accept the children’s statements indicating sexual abuse and physical abuse while in the care of the father. I should say that Ms D quite rightly points out that it is not her role to test the veracity of information with which she is provided, but rather, to provide therapy on the basis of matters which she is informed about, and it seems that she has been of some assistance to the children, but from my perspective, the importance, in particular, of Ms D is that she is another pair of eyes on these children. Ms D appears also to have provided professional services to the mother, which is less than ideal, although it may be that she only saw her briefly at the commencement of the children’s therapy.
No further child protection history has been recorded in relation to the children since 15 April 2021. Again that is a positive thing. The children are visible to a degree in the community. They attend school. They see Ms D. They live in a fairly small town. So I take some comfort by the fact that there is no recent notification, but there is still reason to be concerned.
THE MINUTE OF ORDER PROPOSED BY THE ICL
The proposed order not only includes an order for sole parental responsibility to the mother and for the children live with the mother, but puts in place a suite of protective measures requiring the mother to undergo testing for alcohol abuse and drug use; to undertake various parenting programs; to contact and engage with Family and Children Connect; and to continue her engagement with her counsellor, Ms F, who is to be provided with a copy of the report of Dr E. Importantly, it is the intention of the ICL to remain involved for a further six months to provide a level of support and protection for these children in circumstances where I am informed that Legal Aid would not fund the ICL to do so. That is a very commendable approach for the ICL to take, who is meeting her obligations in, I must say, an exemplary manner.
The family report writer, Ms G, provided a very helpful report in this matter and Exhibit 4, which is consented to by the mother, is largely informed by Ms G’s evaluation and recommendations. Mr Wiltshire does not oppose any of the orders that are being recommended by the ICL. Whilst he does not go so far as to consent to the order, his reticence only seems to relate to the failure to include any provision for the children to be able to spend time with him. It is regrettable that Mr Wiltshire has taken the position that he has i.e. of largely disengaging in the Court process. No doubt, he has his reasons, but when there is no evidence before me about his current circumstances; where he has failed to submit to the requests issued by the ICL (pursuant to court order) that he undergo drug and alcohol testing; where he has failed to undertake the recommendations made by the family report-writer in about July last year to engage with a mental health practitioner and to undertake various courses, then I simply cannot consider making any order that would see the children spending time with the father. Even though the mother has withdrawn from her position that he presents an unacceptable risk of sexual harm to the children there remain many other issues that were raised in this case.
So it is at the father’s election that he has not participated any further in this case and put evidence before the Court upon which I might have been able to make some limited order or, indeed, some order about time, but I think Mr Wiltshire appreciates how my hands are tied in that regard.
It has been indicated to the father during my exchange with the ICL’s counsel that, in the event, the father were to do the things that he was required to do and obtain reports from a psychologist that indicate his engagement with them and addressing the matters that are contained in the family report, then it is not beyond the realms of possibility – and that is all I can say – that at some future point, there might be some order made that the children are able to exercise their right to have a meaningful relationship with both parents in a safe way. Now, that, of course, is not an indication of my determination in any respect about whether or not that is an appropriate order to make in the future, but it is an indication to the father that if he were to undertake certain tasks that he has been ordered to do or recommended to do, then that may be a possibility.
CONCLUSION
I remain very concerned about the children, although there is certainly some reason to be hopeful. The children have endured a very unsatisfactory, to say the least, life to date, and their parents, of course, have been responsible for that. I can only hope that they will turn their lives around and focus on their children’s welfare in the future. I dismissed an application by Mr Taylor on behalf of the wife to amend her application to seek an order for sole parental responsibility when that was not included as part of her case and, therefore, was not part of the case that the father thought was before the Court, despite him not participating in the proceedings between November and today. However, it was clear that the matter was listed for a final hearing today and the father elected not to be involved by putting evidence before the Court.
In every case concerning parenting matters in which an ICL is involved, they generally make recommendations to the court about what order would be in the best interests of the children, and in this case, it includes an order that the mother have sole parental responsibility for the children. There was some exchange between myself and both counsel as to why I should make that order and not simply leave it, that each of the parents retain parental responsibility that they can exercise without consultation or agreement with the other, as provided for in the Act. It has nevertheless been urged upon me by the ICL to make an order for sole parental responsibility, in circumstances where this Order will be provided to a number of third parties who may not understand the intricacies of the Family Law Act and the difference between parental responsibility under the Act and by order, and ultimately, I have been persuaded that I should make that order in addition to the balance of the orders Exhibit 4 in their entirety.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew delivered on 3 March 2022. Associate:
Dated: 3 March 2022
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