Buckley and Charmers (No. 2)

[2018] FamCA 1106

FAMILY COURT OF AUSTRALIA

BUCKLEY & CHARMERS (NO. 2) [2018] FamCA 1106

FAMILY LAW – CHILDREN – Interim Hearing – Where the parties sought interim parenting orders following the adjournment of the trial – Where the parties are in disagreement as to the extent of time which the father should spend with the children pending the resumption of the trial – Where the Court cannot be satisfied on an interim basis that the father poses any real risk of harm to the children – Children’s best interests – Where orders are made for the children to spend time with the father at times during the Christmas school holidays, school terms and school holidays.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
Harridge & Harridge [2010] FamCA 445
Goode & Goode (2006) FLC 93-286
Salah & Salah [2016] FamCAFC 100

APPLICANT: Mr Buckley

RESPONDENT: Ms Charmers

INDEPENDENT CHILDREN’S LAWYER: Ms Falcomer

FILE NUMBER: TVC 728 of 2017

DATE DELIVERED: 20 December 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns via video link to G Town

JUDGMENT OF: Tree J

HEARING DATE: 10 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lyons

SOLICITORS FOR THE APPLICANT: Rennick Lawyers

COUNSEL FOR THE RESPONDENT: Ms Buckley

SOLICITORS FOR THE RESPONDENT: Lee Turnball & Co

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Pack

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Spina Kyle Waldon

Orders

IT IS ORDERED THAT, UNTIL FURTHER ORDER:

1. X and Y (“the children”) live with the mother.

2. From the date of these orders until Tuesday, 29 January 2019, the children spend time with the father on a fortnightly cycle as follows:

   (a)In week 1, from 9:00am on Wednesday until 4:00pm on Thursday, and from 10:00am until 4:00pm on Saturday; and

   (b)In week 2, from 9:00am on Friday until 4:00pm on Sunday.

3. For Christmas in 2018, the children spend time with the mother from 3:00pm on Christmas Eve until 3:00pm on Christmas Day, and with the father from 3:00pm on Christmas Day until 3:00pm on Boxing Day.

4. From Wednesday, 30 January 2019 onwards, the children spend time with the father on a fortnightly basis as follows:

   (a)In week 1, from 9:00am Wednesday until 4:00pm on Thursday, and from 10:00am until 4:00pm on Saturday; and

   (b)In week 2, from after school or day care on Friday until 4:00pm on Sunday.

5. In term 1 and term 2 school holidays, the children shall spend time with the father as follows:

   (a)In week 1, from 9:00am Wednesday until 4:00pm, on Thursday, and from 10:00am until 4:00pm on Saturday;

   (b)In week 2, from 9:00am on Wednesday until 4:00pm on Sunday

6. Where possible and when available the paternal grandmother is to conduct out changeovers with the mother.

7. Notwithstanding any contrary orders, the children shall spend time with the mother on special occasions as follows:

   (a)On Mother’s Day from 9:00am until 5:00pm;

   (b)On the mother’s birthday from 3:00pm until 7:00pm;

   (c)When the children are otherwise with the father they will spend time with the mother on each child’s birthday from 3:00pm until 7:00pm with both children to attend.

8. Notwithstanding any contrary orders, the children shall spend time with the father on special occasions as follows:

   (a)On Father’s Day from 9:00am until 5:00pm;

   (b)On the father’s birthday from 3:00pm until 7:00pm;

   (c)When the children are otherwise with the mother they will spend time with the father on each child’s birthday from 3:00pm until 7:00pm with both children to attend.

9. That both parents have telephone communication with the children at all reasonable times as agreed between the parties when the children are in the care of the other parent.

10. Neither parent consume alcohol in excess of the legal driving limit whilst the children are in their care.

11. Neither parent consume or be under the influence of any illicit substances whilst the children are in their care.

12. This order shall be sufficient authority for all school, medical practitioners, general and special dentists and other special persons dealing with the children to provide to the parents any and all information, including but not limited to school reports, newsletters, school photographs, order forms sought by them and effect their request at their individual expense (if any).

13. The mother and father shall keep each other informed of their contact telephone number and addresses and will advise each other within forty-eight (48) hours when there is a change to such details.

14. For the purpose of communicating about the children the parents will:

    (a)Utilise the Talking Parents Website to communicate about the children and will share the costs of the site (if any) equally.  For the purposes of this order the parents will register with the Talking Parents Website within 48 hours;

    (b)Use text message in the event of an emergency.

15. Pursuant to s 122(9) of the Family Law Act, both the mother and the father are permitted to provide a copy of the Family Report dated 8 March 2018 of Ms C to their general medical practitioner and treating mental health practitioner.

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 Buckley & Charmers (No. 2) 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 CAIRNS VIA VIDEO LINK TO G TOWN

FILE NUMBER: TVC728/2017

Mr Buckley

Applicant

And

Ms Charmers

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 10 December 2018, the final trial of the competing parenting proposals of the parties was listed to commence before me.  However, for reasons given on that day, I acceded to an application to adjourn that hearing by Ms Charmers (“the mother”) and directed that the trial commence on Monday 17 June 2019 instead.  That was because the evidence of the Family Report writer was that she had only recently became aware of certain matters which caused her to, firstly, strongly recommend that a psychiatric assessment be undertaken of both parties, and secondly, to state that absent such an assessment, she was unable to make any recommendations to the court, or to otherwise provide any meaningful assistance to me.

2. In large part, that was because of the report writer’s concerns in relation to the mental health of Mr Buckley (“the father”).  Particularly she was troubled that if, as she supported, the mother were to relocate to Country B with X, and Y, (“the children”), the impact on the father’s mental health may, at least according to the affidavit of the paternal grandmother, see the father unable to cope, and hence disengage with the children, who would thereby lose any relationship with him.

3. However consequent upon the adjournment of the trial, the father pressed for a suite of interim orders which, in substance, would see his time with the children incrementally increase between now and June 2019.  The mother opposed that application.  Save with one exception I shall detail shortly, she proposed that the present interim regime (accepting that it is not entirely by way of order, but partly also by agreement) between the parties continue.  The Independent Children's Lawyer supported neither parties’ position.  She proposed a quite different regime of orders, on quite different justifications, to those of the parties.

4. I heard the parties’ submissions in relation to the interim application on 11 December 2018 and reserved my decision.  This is that decision and the reasons for it.

BACKGROUD FACTS

1. The father was born in South Australia in 1970, and hence is presently 48 years of age.  He had a troubled childhood.  He was conceived and born outside of wedlock, and was only born in South Australia so as his mother, who was then living in Western Australia, could conceal her pregnancy, because of the social stigma which would have attached to it in those days.  The father’s biological father had nothing to do with him as a child, and indeed the father did not meet him until he was 17 years of age.

2. The maternal grandmother re-partnered, however the father says that man was violent towards him, to the point of injuring him.  Further, when the father was about 10 years of age, he was groomed, and ultimately sexually abused, by a teacher and an accomplice.  The grooming involved the father being plied with illicit drugs (presumably marijuana) and alcohol.  Since then the father has had ongoing problems with illicit drugs, and, at least according to the mother, alcohol.

3. The mother was born in E State, Country B in 1983, and hence is presently 35 years of age.  When 27, she travelled to Australia with a friend, and met the father on 11 June 2011 at F Town, where the father was working.  It seems as though the father was then involved with illicit drugs.  The mother says that she first became aware of that early in their relationship, which led to her leaving the father in July 2011, when she returned to Country B.  However she again travelled to Australia and recommended her relationship with the father, in February 2012.  The parties later moved to G Town in October 2012, where the father’s mother was then living.

4. It seems as though the father may not ceased his involvement with illicit drugs when he left F Town, and the mother says that he continued to use hard drugs in G Town.

5. The parties’ first child, X, was born in 2014 in G Town.  She is now four years of age.  In 2015, the parties’ second child, Y, was born.  He is therefore now presently three years of age.

6. The parties finally separated on 3 July 2017, on which day a domestic violence application and protection order in relation to the mother was made.  The father commenced these proceedings on 7 July 2017, principally because of his fear that the mother would otherwise take the children with her to Country B and not return.

7. Interim parenting orders were made by Judge Coker in the Federal Circuit Court in G Town on 31 July 2017.  They provided for the mother to have sole parental responsibility for the children, and conditional upon the father submitting to and not testing positive to drugs in a urinalysis test, for him to spend unsupervised day time with the children each Tuesday, Thursday and Saturday for a period of six hours.  In the event that the father tested positive for drugs, that time was to be supervised.

8. It appears as though the father has enthusiastically availed himself of that time, and both parties have complied with the orders of Judge Coker.  Further, in July 2018, the parties agreed that both children would spend additional time with the father each alternate weekend, from 10:00am Saturday until 4:00pm on Sunday.  However, in fact, on occasions the father has spent additional periods of time with the children beyond that which the orders or the parties’ general agreement would otherwise have afforded him.  For instance, recently in the week of 15 November 2018, the father spent a block of four consecutive overnights (ie five consecutive days) with the children, and in addition to his usual night with the children in the week commencing 22 November, also spent a night with the children on the week of 29 November.  The four night period was agreed because the mother had friends from Country B who were visiting, and the overnight in the week of 29 November was because the mother was grieving for the death of an uncle.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (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).

2. Section 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

3. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Risk assessment in parenting matters

1. In Harridge & Harridge [2010] FamCA 445 Murphy J, proceeded to adopt the following list of inquiries in relation to risk assessment:[2]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [2] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

2. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

Interim parenting proceedings

1. In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)      identifying the issues in dispute in the interim hearing;

   (c)      identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

2. In Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:

   [36]It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286". A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):

   68. ... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

   [37] In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:

   18. ... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

   [38] The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.

   [39] In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:

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

   [40] The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue" (see SS v AH).

THE COMPETING PROPOSALS

1. An analysis of the parties (quite complex) competing proposals, reveals that in fact they disagree in relation to only three matters.  The first is the time which the children should spend with the father between the date of these orders, and the commencement of the Queensland school year on 29 January 2019.  For her part, the mother proposed that in any fortnight between now and then, the father should spend one overnight, and five periods of day time with the children.  The father proposed that he spend three overnights, and one period of day time per fortnight.  The Independent Children's Lawyer proposed that the father spend two overnights, and two periods of day time with the children.  It can therefore be seen that all parties are agreed that there should be at least four occasions per fortnight when the father spends time with the children, but are not agreed as to either the number of occasions, or the mix of overnights and day time.

2. The second matter of dispute relates to the amount of time that the father should thereafter spend with the children during school terms.  As ultimately formulated, the mother proposed that per fortnight, the father should spend two overnights, and two periods of day time with the children.  For his part, the father proposed that he spend four overnights per fortnight, and one period of day time.  The Independent Children's Lawyer proposed that the father spend three overnights per fortnight with the father, but no periods of day time only.  Therefore it can be seen that the parties are again in dispute as to firstly, the number of occasions per fortnight that the father should spend time with the children, and secondly, the extent to which there should be overnight time.

3. The third matter in dispute related to the extent of time that the children should spend with the father during the holidays for term 1 and 2 (accepting that the trial will take place shortly before the term 2 holidays).  As to that, the mother proposed that the children should spend time with the father for six hours on Tuesday and Thursday of each week of the holidays, and on the first Saturday.  On the second weekend, the father would spend from 10:00am on Saturday until 4:00pm on Sunday with the children.  For his part, the father proposed that the children should spend the second half of each of the school holidays with him, but otherwise be with the mother.  The Independent Children's Lawyer proposed that the school holiday regime should be as per the school term regime, save that there be an additional six hours each Tuesday during the school holidays.  Therefore it can be seen that the parties are again not agreed as to the number of occasions that the father should spend with the children during holidays, and the mix of overnight and day time.

THE ISSUES IN DISPUTE IN THE INTERIM HEARING

1. As can be seen from a review of the competing proposals, the issues in dispute relate exclusively to the amount of time which the father should spend with the children between now and the trial.  In turn, those are informed by, essentially, two matters as identified by the parties.  The first is the extent to which the father poses a risk to the children, and the second is the appropriate rate of increase of the father’s time with the children, given their ages and the asserted risk which the father poses.

THE AGREED OR UNCONTESTED FACTS

1. In the background facts I have attempted to set out what I understand to be uncontroversial matters.  However I should emphasise that:

   ·Both parties have a diagnosis of depression, and both have sought and continue to be treated for that condition;

   ·The father has a history of illicit drug use, although he contends that it is not current;

   ·The parties separated in July 2017, and since then the father has been spending time with the children, initially exclusively pursuant to orders of Judge Coker, but more recently pursuant to a mix of the operation of those orders, and general and ad hoc agreements between the parties.  That time has extended to blocks of up to four overnights last month.

RISK OF HARM TO THE CHILDREN POSED BY THE FATHER

1. The mother contended that the father poses a risk of harm to the children by virtue of his admitted past domestic violence, his risk of abusing illicit drugs, and his mental health issues.  That said, the mother does not contend that the father’s time should be supervised, accepts that it should extend to over nights, and as recently as last month, indicated that extensive periods of time, to as much as four consecutive overnights, were acceptable to her.

2. Although counsel for the mother occasionally referred to the father as posing an “unacceptable risk,” it is plain that her case is not that the father poses an unacceptable risk of harm to the children, as that would be inconsistent with the orders she seeks.  Rather I infer that she says that the risk which the father poses to the children is proportionate to the amount of time which he spends with them.

3. Turning firstly to the risk of exposure of the children to domestic violence, the father concedes there was domestic violence during the course of the relationship, and both parties accept that the children were exposed to their arguments, and not shielded from the domestic violence that occurred.  That said, the mother concedes that the father never struck her, although she says he threatened to do so.

4. The father also levels allegations of family violence against the mother, but they are not conceded by her.  The mother does, however, accept that there were arguments and strong language, to which the children were exposed.

5. That said, it does not appear as though there has been any family violence to which the children have been exposed since July 2017, although there has been conflict between the parties at changeovers in front of the children.  Fortunately that has largely been able to be managed by the paternal grandmother undertaking changeovers in lieu of the father, as she is able to conduct herself in a way that does not involve the children being exposed to conflict.

6. Neither party has re-partnered; there is therefore no suggestion that either party is at the risk of perpetrating family violence in the presence of the children.  Certainly I could not be persuaded, on an interim basis, that the father presently poses a risk of harm of any magnitude to the children, from exposing them to family violence.

7. The next species of risk is said to be from the father’s drug use.  The father does not concede that he is presently using any form of illicit drug, and indeed has, on the occasions that has been required to be, or voluntarily has been, tested, submitted to urinalysis which shows that he is free of drugs.

8. That said, somewhat concerningly, on at least one occasion the father has been required to submit to hair follicle testing, but did not present with a sufficient length of hair to enable a sample to be taken.  The mother says that was not consistent with the father’s grooming habits during the relationship, whereas the father appears to contend to the contrary.  Therefore there is some suspicion in relation to the father, but that is not an issue which I can resolve in an interim hearing such as this.

9. Further, although the mother has had the benefit of orders which enabled her to require the father to submit to random drug tests, she has not availed herself of them.  Additionally, as I have already noted, she has permitted the children to be in the father’s care, as recently as last month, for four consecutive nights.  None of that speaks to any real level of concern that she then had in relation to the father’s ingestion of drugs, or even if he were ingesting them, the exposure of the children to a risk of harm when in his care.

10. The evidence would not permit me, on an interim basis, to conclude that the father presents a material risk of harm to the children from drug abuse.

11. The final risk which the father is said to pose arises from his mental health.  Particularly, the Family Report writer, Ms C, had concerns in that regard, which led to the adjournment of the trial, in order that the parties could be psychiatrically assessed.

12. As to that, the father has a diagnosis of depression, and conceded to Ms C in his interview that as a child he had been physically abused by his step-father.  However since then, he has sworn an affidavit deposing to extensive sexual abuse as a child, and the associated commencement of drug and alcohol taking from the age of 10.  Further, of particular concern to Ms C, was evidence given by the paternal grandmother in her trial affidavit which described the children as the father’s “anchor” and a “stabilising influence upon him.”  She then went on to say at [77] “.. if the children did not live in G Town, I am concerned that [the father] would not cope at all well with the loss of seeing the children regularly.  I am concerned that [the father] may be come withdrawn and cease communicating with the children altogether.  In those circumstances, [the father] would not be able to maintain a long-distance relationship with the children in Country B.”

13. Unsurprisingly, given that Ms C tentatively supported the mother relocating with the children, she thought that a psychiatric assessment of the father was warranted.    

14. For her part, the mother appears to construe Ms C’s evidence as speaking to a risk of harm to the children in the father’s care.  That is not my impression of Ms C’s concerns.  Rather I am satisfied that, at least at the time she gave evidence before me, she was particularly troubled about the prospect of the father not being able to cope with any relocation of the children, which might therefore effect a virtual termination of the children’s relationship with him.  True it is that Ms C was also troubled about the lack of insight demonstrated by the father in, amongst other things, intemperate communications with the mother, but I did not understand that to inform any risk which the father thereby posed to the safety of the children when they are in his care.

15. Moreover, the father appears to have had the children regularly in his care now since July 2017, without adverse effect upon them.  Whilst I note that the mother says the children had some difficulty coping with the four consecutive nights in November 2017, other than a submission to that effect from the bar table, there is nothing to support that in the evidence before me.

16. I am not persuaded that the father presents a risk of harm to the children of any moment arising from his depression, or whatever ultimately be the diagnosis which prevails in relation to him.  Ms C did say that the father, by virtue of having been physically and sexually abused himself, may be more vigilant than other parents to signs of potential abuse in the children, but that does not appear to have been a significant feature in this case to date, save that the father is troubled that the mother may be striking the children in disciplinary ways.  Thus far, any increased vigilance of the father does not seem to have demonstrated itself as a risk of harm to the children.

17. Therefore for the purposes of this interim determination, it is not possible for me to conclude on the evidence that the father poses a risk of harm of any real moment to the children.  I am somewhat comforted in that conclusion by the mother’s own proposal, and indeed her recent conduct in permitting the father to care for the children for a block of five days.

APPROPRIATE EXTENT AND RATE OF INCREASE OF CHILDREN’S TIME WITH FATHER

Overview

1. I have already observed that the parties are in dispute in relation to three matters.  The first is as to the time which the children spend with the father between now and the commencement of school next year.  The second is the time which the children should spend with the father during school terms.  The third is the time which the children should spend with the father over school holidays other than the present Christmas holidays.

2. In resolving those disputes, I need to determine what is in the children’s best interests, as informed by a consideration of the relevant s 60CC factors.  I have had regard to those factors, but in my view, the matter largely falls to be determined by a consideration of the likely impact on the children of the various competing proposals.

3. The resolution of this dispute is not particularly assisted by the report of Ms C, in that her recommendations are not mirrored in any party’s proposal.  In the Family Report at paragraphs 110 to 111, she recommended that between now and the commencement of school on 2019, the children should spend no overnights with the father, but rather spend six periods of day time with him per fortnight, being a block of six hours on every Tuesday, Thursday and Saturday.

4. As to school term time, she recommended that the children spend every Friday night with the father, returning to the mother’s care on Saturday afternoons.  She further recommended that if the father remains unemployed, Y spend a block of six hours with him each Tuesday.

5. However the extent to which those recommendations continued to prevail in light of Ms C’s requirement for a psychiatric assessment of the parties, was not explored in cross-examination of her.  Moreover, her report is dated 8 March 2018, and since then the parties have by agreement increased the father’s time to include overnight time, even as I have noted, for four consecutive overnights last month.

Father’s time until school commences 2019

1. The mother proposes that the children would spend each alternate Saturday night with the father, together with six hour blocks every Tuesday, Thursday and on alternate Saturdays.  The father proposes that the children spend Wednesday night with him in week one, and Friday and Saturday nights in week two, together with a further six hour block on Saturdays in week one.  The Independent Children's Lawyer proposed each Thursday night from 5:00pm on Thursday afternoon until 5:00pm on Friday, together with a six hour block every Tuesday.  Thursday night was said to be desirable because the children would establish a routine that Thursday night was their night with the father.  However that notion did not appeal to either the mother or the father; the father wanted Friday nights in week two, with the mother offering one Saturday night.

2. In my view the mother’s proposal is too parsimonious, and the Independent Children's Lawyer’s selection of Thursday likely to prove inconvenient (especially given that the father takes the children to swimming lessons every Saturday).  As has been demonstrated recently, it appears as though the children can comfortably cope with at least two consecutive overnights in the father’s care, and likely more.

3. Although there is no clear answer to this dispute, upon balance I am satisfied that the father’s proposal reflects recent history, is not overly ambitious, and is likely to see him spend sufficient time with the children so as to cement his already good relationship with them.  Therefore there will be orders in relation to the father’s time with the children until 29 January 2019 as he proposes.

School terms

1. The mother proposes that during school terms, the father should spend two overnights with the children (being Wednesday night in week one, and Saturday night in week two) together with a six hour block of day time on the Saturday in week one, and on Wednesday in week two.  The father proposes four overnights per fortnight, and one block of six hours during the day on Saturday in week one.  The Independent Children's Lawyer proposes three overnight periods per fortnight, including every Thursday night.  I have already observed that Thursdays did not appeal to either the mother or the father.

2. It will be appreciated that the father’s proposal seeks to increase the number of overnights from those which he will have during school holidays, notwithstanding the fact that X will need to adapt to going to school.  To that extent his proposal seems to me to be perhaps more reflective of his desires, rather than being truly child focussed.  The mother’s proposal would see a reduction of the amount of time that the father spends with the children from that which I propose to order in the school holidays, and hence again, in my view, is too parsimonious.  In my view the appropriate solution here is to adopt the father’s proposal, save that in week two, the children should come into his care on Friday afternoon, but return to the mother’s care at 4:00pm on Sunday in week two, rather than Monday.  I am satisfied that it is likely to be more successful for X to always start the school week from her mother’s home.  On the other hand, she will get to experience the father taking her to school on Thursday mornings in week one.  Therefore with that modification, there will be orders in the form sought by the father.

Term holidays

1. The mother seeks a perpetuation of the Christmas holiday regime in the term one and term two holidays.  As has been seen, in my view that proposal is not in the children’s best interests, as it is too parsimonious.  For his part the father proposes that he spend the second half of the school holidays with the children ie, seven consecutive nights, or more if the Easter period is longer than two weeks.  The Independent Children's Lawyer proposed that the three overnight regime per fortnight during school terms continue, but be augmented by a further block of six hours of day time each Tuesday.

2. In my view no party’s proposal is ideal, in that the mother’s is again too parsimonious, the father’s overly ambitious, and the Independent Children's Lawyer’s remains focussed on Thursday nights, which appeals to neither party.

3. Doing the best I can, it seems to me as though a continuation of the school term regime, save that the children should go into the father’s care on the Wednesday in week two from 9:00am, and return to the mother’s care at 4:00pm on the Sunday afternoon, is the appropriate regime, and I will so order.

OTHER MATTERS

1. As I understand it, the parties are otherwise in agreement in relation to the children’s time with the parties on Christmas day, for the paternal grandmother to continue to undertake changeovers instead of the father, for the children to spend time with the parties on special days, for the parties to communicate using a particular App, and for each party to have liberal telephone communication with the children when they are not in their care.  There will therefore be orders in those terms.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 December 2018.

Associate:

Date: 20 December 2018