Cavan and Cavan

[2018] FamCA 403

FAMILY COURT OF AUSTRALIA

CAVAN & CAVAN [2018] FamCA 403

FAMILY LAW – CHILDREN – PARENTING – Variation of interim orders – Suitability of supervisor – Continuing supervision – Whether or not expedition be granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Cavan

RESPONDENT: Mr Cavan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Campbelltown

FILE NUMBER: SYC 3461 of 2017

DATE DELIVERED: 31 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 10 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton, SC

SOLICITOR FOR THE APPLICANT: Southern Waters Legal

COUNSEL FOR THE RESPONDENT: Mr Schonell, SC

SOLICITOR FOR THE RESPONDENT: Gordon & Barry Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Pursuant to Division 15.5.2 of the Family Law Rules 2004 that Ms F, Clinical and Forensic Psychologist, be appointed as a Single Expert Witness (“the Court Expert”) to report upon matters relating to:-

   1.1.Ms Cavan born … 1973 (“the Mother”);

   1.2.Mr Cavan born ... 1972 (“the Father”);

   1.3.X born … 2004;

   1.4.Y born … 2006;

   1.5.Z born … 2011.

2. The parties do all things necessary to facilitate the preparation of the Report including attending upon the Court Expert and making arrangements for the children to attend upon the Court Expert when required.

3. The Court Expert interview the parties and any other relevant persons for the preparation of the Report including but not limited to any other persons that may reside from time to time in the home of the Mother and the Father and any person who has significant involvement with the children at home and also to include treating professionals for the Mother and the Father and the children.

4. In preparing the Report for the Court, the Court Expert be requested to consider the following matters as it pertains to the assessment of the Father:-

   4.1.An assessment of the Father’s alcohol use / misuse;

   4.2.If there are any identified issues pertaining to the Father’s alleged alcohol use/misuse what recommendations are to treatment and time frames for such treatment.

   4.3.If there are any identified issues in relation to the Father’s alleged alcohol use/misuse recommendations as to mechanisms to monitor the Father’s treatment in addressing such alcohol abuse problems and time frames for such monitoring to be in place.

   4.4.An assessment of the Father’s alleged alcohol use / misuse on his parenting capacity.

5. For the purposes of the assessment, the Father within 48 hours of the date of these Orders the shall submit to urinalysis for the screening of alcohol EtG at his own expense and for the purpose of such testing:

   5.1.The provision of the urine sample is to be in accordance with the chain of custody protocol specified in AS/NZ4308:2001; and

   5.2.Immediately upon the result being made available, the Father shall provide a copy to his solicitor and the Independent Children’s Lawyer.

6. For the purposes of the assessment, the Father shall do all acts and things necessary to undertake at his own expense, a liver function test and Carbohydrate Deficient Transferrin (‘CDT test’) with such testing to take place within 24 of the following dates:-

   6.1.6 July 2018;

   6.2.20 July 2018;

   6.3.3 August 2018;

   6.4.17 August 2018;

   6.5.31 August 2018;

   6.6.14 September 2018;

   6.7.28 September 2018;

   6.8.12 October 2018.

7. For the purposes of assessment, the CDT tests:-

   7.1.Are to be analysed using the High-Performance Liquid Chromatography (“HPLC”) analysis method; and

   7.2.The Father shall instruct his general practitioner that the referral of blood testing is to include a request that a copy of the results be sent to Dr E.

8. Upon receipt of results from CDT and liver function testing the Father shall ensure that a copy of the results are provided to his solicitor and the Independent Children’s Lawyer.

9. Upon the Independent Children’s Lawyer receiving any urinalysis or CDT or liver function test result from the Father, the Independent Children’s Lawyer shall ensure that the a copy of the results is sent to the Court Expert.

10. The Court Expert additionally be requested in preparing her Report to the Court, to consider the following matters:

    10.1.whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;

    10.2.any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

    10.3.the relationship between the children and each other and with each of their parents and any other relevant person;

    10.4.the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent;

    10.5.the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;

    10.6.the capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;

    10.7.the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);

    10.8.any matters relating to parental alcohol use and misuse and the capacity of each parent or any other person to provide for the needs of the children in these circumstances;

    10.9.the effect on the children of any family violence to which they may have been exposed;

    10.10.the effect on the children if spending equal time, or substantial and significant time, with each parent having regard to parent’s current and future capacity to:

    10.10.1.implement such an arrangement, and

    10.10.2.communicate with each other and resolve difficulties that might arise;

    10.11.the mental state of the both parents in so far as it is relates to parenting issues;

    10.12.the mental health/special needs of each of the children and any recommendations into the future as to how the needs of the children are best met;

    10.13.your opinion concerning the allegations made by the paternal uncle against the Father in Country K and the impact, if any as it relates to the parenting issues;

    10.14.any other matter the Court Expert considers relevant.

11. Each of the parties be jointly liable of the cost of the Court Expert’s report and within 21 days of receiving notice of such fees each of the parties pay one half of Ms F’s estimate of fees into the Trust Account of Legal Aid NSW for payment to the Court Expert upon completion of her Report.

12. In the event that there remain monies available subsequent to the receipt of the memorandum of fees from the Court Expert these monies are to be returned to the Father and the Mother in equal shares.

13. In the event that there is a shortfall the father and the mother are to pay such additional sum to meet the costs of the Court Expert within 21 days of a request by Legal Aid NSW.

14. In the event that any of the parties request the Independent Children's Lawyer to make arrangements for the attendance of the Court Expert in this matter, the parties shall be equally responsible for Ms F’s costs in respect of such attendance.

15. Leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to the Court Expert and that the fees in respect of that photocopying be waived.

16. Liberty to apply on 14 days notice in respect of the implementation and compliance with these orders.

Notation

1. It is noted that Ms F, the Court Expert has availability to meet with the parties on 23 October 2018 for interview.

Parenting

1. The Orders made 27 September 2017 continue.

2. Orders 2.1.1, 2.1.2 and 2.3.1 of the Orders made 27 September 2017 be discharged and that during school terms, commencing the next Wednesday after the date of these orders, the children spend time with the Father from after school Wednesday to before school Thursday each week.

3. The Father be restrained by injunction from consuming alcohol 12 hours prior to caring for the children and during any periods that the children are in his care.

4. In addition to order 3 of the orders made 27 September 2017, Ms H provide a further written undertaking to the court in the following terms:

   21.1.I will notify the Mother immediately, if she observes the Father to be consuming or under the influence of alcohol whilst the children are in his care or for the 12 hours immediately preceding the children coming into his care and if the Mother requires will immediately facilitate the return of the children to the care of the Mother or her nominee.

   21.2.I will not consume alcohol beyond the legal driving limit during all periods when the children are in the Father’s care.

5. Orders 4 and 5 of the Orders made 27 September 2017 be discharged.

6. Both the Mother and the Father keep the Independent Children’s Lawyer informed in relation to the investigation and/or proceedings relating to the sexual allegations made by the paternal family against the Father.

7. The children be permitted to have telephone communication with the other parent at all reasonable times in accordance with their wishes.

8. Each parent shall ensure that the other parent is notified forthwith of the following things by telephone or text:

   25.1.Any serious medical problem or illness suffered by the children;

   25.2.Any medical emergency;

   25.3.Any occasion that the children are hospitalised or due to be hospitalised; and

   25.4.Any medication that has been prescribed for the children; including any treatment regime.

9. In the event that either parent has provided notification to the other parent in accordance with order 25, each parent is to provide the following details where applicable:

   26.1.The nature of any serious medical problem, illness or medical emergency;

   26.2.The name of any hospital the child/ren is due to attend or has attended and where known, the name of any doctor or specialist who has provided treatment to child/ren in hospital;

   26.3.The name, telephone number and address of any medical practitioner, specialist or other health professionals who has provided treatment to the child/ren outside of hospital; and

   26.4.Any diagnosis or prognosis received in relation to the child/ren or any treatment provided to the child/ren.

10. Each parent shall be authorised to receive from the children’s school or educational facility relevant information about the children and copies of any school reports, invitations, school circulars or newsletters, school photograph order forms and any other school notice usually provided to parents.

11. Each parent shall be entitled to attend the following events in relation to the children:

    28.1.sporting activities;

    28.2.extra-curricular activities that allow for parental attendance or participation;

    28.3.parent-teacher interviews;

    28.4.school functions and events that allow for parental attendance or participation.

School holidays

1. The children spend time with their father:

   29.1.During school holiday periods at the end of Terms 1, 2 and 3:

   29.1.1.From the conclusion of school on the last day of school term until 12 noon on the ninth day thereafter (that is, for avoidance of doubt, for 8 nights) provided that in the July school holidays the children will be with their mother in the week which includes 13 and 15 July 2018;

   29.2.In the Christmas school holidays:

   29.2.1.commencing in years ending in an even number, from 9 am on the first Saturday of the school holidays for a period of 3 weeks;

   29.2.2.commencing in years ending in an odd number, for 3 weeks commencing on the first Saturday in January.

   29.3.This time shall be supervised by Ms H in accordance with the undertaking she has given the court.

2. This matter is to be placed in my judicial docket and the matter is to be listed before me after the release of the Chapter 15 report.

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 Cavan & Cavan 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 3461  of 2017

Ms Cavan

Applicant

And

Mr Cavan

Respondent

REASONS FOR JUDGMENT

1. In these further interlocutory proceedings, the father, mother and Independent Children's Lawyer all seek to vary orders made on 27 September 2017 after a contested hearing before the Senior Registrar (which was not reviewed).

2. The parties commenced cohabitation in 1997, married in 1998 and separated on a final basis in March 2015.

3. There are three children of the marriage; X born in 2004; Y born in 2006; and Z born in 2011.

4. Following separation the children remained living with the mother and spent time with their father.

5. The mother commenced proceedings on 6 June 2017, seeking orders in relation to financial matters only.

6. Initially, the parties had an informal arrangement in relation to the care of the children.

7. On 27 July 2017, the mother says she became aware of historical child sexual abuse allegations made against the father by the father’s brother. The alleged incidents are said to have occurred between 1986 and 1990 in Country K in Europe. The father and other persons are alleged to have sexually assaulted the brother when the father’s brother was aged between 4 and 8. The father was between 15 and 19 at the time.

8. The alleged assault is currently the subject of a police investigation in Country K. The statement made by the father’s brother include allegations that the father had anally raped him at the age of 5, that the father watched as he, then aged 4, was made to perform oral sex on their cousin, and the father made him masturbate him while in bed at the age of 7 or 8.

9. The mother also alleges in the Notice of Risk that the father sexually abused his sister. The father says he is unaware his sister has made such a claim and denies that he has ever done any such thing to his sister. 

10. These allegations, once explored, could potentially lead to a finding that the father poses an unacceptable risk to the children if he is alone with them. It was in that context that the Senior Registrar made the following orders:

    2.Pending further Order, the children [X], [Y] and [Z] shall live with the Mother and spend time with the Father as follows:

    2.1 During school term:

    In Week 1 of a two week cycle:

    2.1.1from after school Wednesday to 8.00 pm

    In Week 2 of a two week cycle

    2.1.2from after school Wednesday to 8.00pm, and

    2.1.3from after school on Friday until the commencement of school Monday.

    2.2  During school holiday period at the end of Term 3 2017:

    2.2.1From 9.00 am on 3 October 2017 and conclude at 5.00 pm on 8 October 2017

    2.3 In the Christmas school holidays:

    2.3.1the time for the children to spend with the father during school terms will continue during the Christmas school holidays save that it will be suspended for the periods set out in paragraphs 2.3.2 and 2.4.1 of this order; and

    2.3.2from 9.00am on 2 January 2018 to 9.00am on 16 January 2018.

    2.4 On Christmas Day as follows:

    2.4.1In odd numbered years from 2.00 pm on Christmas Day until 2.00 pm on 27 December.

    3.That the time the children spend with the Father pursuant to Order 2 herein shall be supervised by [Ms H] and such time is conditional upon [Ms H] executing a written undertaking in the following terms:

    “I, [Ms H] of … New South Wales, undertake as follows:

    1.Subject to paragraph 2 below, I will be present at all times that the children [X], born … 2004, [Y], born … 2006, and [Z], born … 2011 (“the children”) spend with their Father [Mr Cavan], born … 1972 (“the Father”).

    2.I may occasionally but not routinely be absent attending to personal business or chores during the time the children spend with the Father. Each of such periods will not exceed one hour and shall not occur more than once during any one occasion when the children are spending time with the Father.

    3.If, before the children spend time with the Father, I am aware that I will be unable to be present during such time or that I will be absent for more than one hour during such time, I will notify the Mother, [Ms Cavan], born … 1973 (“the Mother”), prior to the children spending time with the Father.

    4.If, during the time the children spend with the Father, I become aware that I will be unable to continue to be present during such time or that I will be absent for more than one hour during such time, I will notify the Mother accordingly and, if she so requires, immediately return the children to the care of the Mother.”

    4.That the father shall have telephone contact with the children no more than four days per week and no more than one time per day at times to be agreed between the parties and failing agreement as follows:

    4.1. each Monday between 7.00 pm and 7.30 pm,

    4.2 each Wednesday between 7.00 pm and 7.30 pm (only in the event the father is not spending time with the children on this day),

    4.3 each Friday between 8.00 pm and 8.30 pm, and

    4.4 each Saturday between 4.00 pm and 5.00 pm.

    5.That for the purposes of Order 4 the father shall telephone the children on the mother's home phone or mobile or on [X's] mobile telephone and in the event the children miss the father's call the mother shall do all acts and things necessary to ensure the children return the father's call that same day.

    6.That both parties are restrained from making any disparaging or negative remarks or comments about the other and/or the other's partner or family, either to the children or in the presence of the children or within their hearing.

    7.That both parties are restrained from discussing these proceedings either to the children or in the presence of the children, or within their hearing and undertake to remove the children from the presence or hearing of any third party commenting on these proceedings.

    8.That the father will keep the mother informed in relation to the investigation and/or proceedings relating to the allegations against him in [Country K].

    9.That within seven (7) days the father do all things and acts to deliver up to the mother's solicitor the children's Australian Passports.

    10.Pursuant to Section 68L of the Act an Independent Children’s Lawyer be appointed for the children:

    ·[X] born … 2004,

    ·[Y] born … 2006, and

    ·[Z] born … 2011

    11.Legal Aid NSW is requested to make arrangements as soon as practicable for the appropriate representation for the children.

    12.The solicitor for the mother/father is to advise the Senior Solicitor, Family Law Litigation Section of Legal Aid New South Wales of this Order within seven days.

    13.Each party make available to the Legal Aid NSW, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

    14.Leave is granted to either party or the Independent Children's Lawyer to re-list the matter before me on 14 days' notice on a date before 17 March 2018.

1. Basically, the orders were that the children be with their father on Wednesday afternoons until 8 pm in week one, and in week two from Friday after school until Monday mornings, on the condition that the father’s current partner supervise. Although the Senior Registrar’s orders do not specifically require Ms H to give an undertaking to supervise, rather just be present, the actual undertaking that Ms H gave went further than that and require her to be “vigilant as to the safety and welfare of the children when in the company” of the father.

2. The mother now has also raised concerns in relation to the father’s use of alcohol and also Ms H’s use of alcohol.

3. The mother seeks to vary the current interim parenting orders in terms set out in her Application in a Case filed 15 March 2018, by discharging orders 2, 3 and 5 made by Senior Registrar Campbell on 27 September 2017, and by making an order that the children live with their mother, and pending further order and subject to the availability of a supervisor as provided for in the orders, the children spend time with their father as follows:

   13.1.Each Wednesday from 4pm to 8pm;

   13.2.Each alternate weekend as follows:

   13.2.1.Saturday from 12 noon to 5pm;

   13.2.2.Sunday from 12 noon to 5pm; and

   13.2.3.Other times as agreed.

   13.3.The mother proposes that supervision no longer be done by Ms H but rather at a contact centre (which was not pursued as a realistic option) or with a private supervisor.

4. The father also sought a substantial review of the orders and sought that the provision for supervision be removed from the orders. He sought that during school term in week 1 of a two week cycle, the children be with him from Wednesday after school until Thursday before school and in week 2 of a two week cycle, from Wednesday after school to Thursday before school and from after school Friday until the commencement of school on Monday (that is a change in the existing orders by providing two extra nights a fortnight to the father).

5. The Independent Children's Lawyer proposed that the current interim arrangements be changed in terms of the times that the children spend with their father. She supported the father’s application that the children be with him overnight on Wednesday nights in school term. She sought that the orders made by the Senior Registrar for electronic communication be discharged. The Independent Children's Lawyer did not support the father’s application to remove supervision but she also did not support the mother’s application to have Ms H removed as the supervisor.

6. As a response to the mother’s assertions that the children were at risk arising from the father’s abuse of alcohol and his driving a motor vehicle whilst under the influence when he has the children, the Independent Children's Lawyer proposed that orders be made requiring the father to submit to urinalysis, liver function testing and CDT testing.

7. The father agreed to those orders but sought in addition that the mother be required to undertake similar testing. The Independent Children's Lawyer did not support that application by the father.

8. The orders of the Senior Registrar provided for some holiday time in term 3 2017 and Christmas school holidays but there is no ongoing order for holiday time.

9. The father in his Response to an Application in a Case filed 3 May 2018 seeks an order that during school holiday periods at the end of terms 1, 2 and 3, the children be with him from the conclusion of school on the last day of school term until 12 noon on the ninth day thereafter (that is, for avoidance of doubt, for eight nights) and in the Christmas school holidays an order commencing in years ending in an even number from 9am on the first Saturday of the school holidays for a period of three weeks and commencing in years ended in an odd number, for three weeks commencing on the first Saturday in January. The father also seeks orders in relation to special days.

10. The mother proposed that the children’s time with their father continue during school holidays (without any block time and be supervised by a professional service). Senior counsel for the mother said that in the event that Ms H is considered to continue to be a suitable supervisor, and subject to Ms H being available to supervise block periods, the father’s proposed orders for school holiday time were not opposed. The children have an extra-curricular commitment on 13 to 15 July 2018 and should be with their mother in that week of the school holidays. 

11. The Independent Children's Lawyer submitted that she is not opposed to block periods but would ask that those block periods be on the proviso that Ms H is available.

12. The parties had agreed on the appointment of a Chapter 15 expert to provide a report to the court.

THE MOTHER’S NEW CONCERNS ABOUT THE FATHER’S USE OF ALCOHOL

1. One reason that the mother seeks the orders of Senior Registrar Campbell varied, is that at the time of the hearing she was not aware of the father’s drink driving offences and the requirement imposed upon the father for him to have an interlock device fitted on his vehicle.

2. The mother says that she was first informed about the device on 24 October 2017, when one of the children mentioned that their father had to blow into something in order to start the car. The mother’s solicitors wrote to the father’s solicitors on three occasions until they received a reply on 16 November 2017 stating that the children and mother had been aware of the device since July 2016 and it had been fitted to allow an employee to drive the vehicle.  The mother, not accepting this, instructed her solicitors to file subpoenas to the NSW Police and NSW Department of Justice and Roads and Maritime Services. Subsequently, on 17 November 2017, the father’s solicitors wrote to the mother’s solicitors stating that the father had been charged with a high range drinking driving offence in December 2015, and he had been ordered on 23 July 2016 to have an interlock device fitted to his car for a period of 24 months.

3. This was confirmed in the subpoena material from the NSW Police report which shows that the father had veered off the road, crashed into an embankment and was found by police asleep in his vehicle. He returned a breath analysis reading of 0.187.

4. The mother says she is concerned about the interlock device and the licence restrictions, especially considering that she says she has witnessed the father driving his partner’s vehicle on a number of occasions and that the father was usually driving his partner’s car whenever he came to the house at changeover. The father denies ever driving his partner’s car while the restrictions applied.

5. I do not accept the submission by senior counsel for the father that because the mother knew about three drink driving offences, the last of which was in 2002, the mother should not be concerned about the drink driving offence in 2015. It was obviously serious enough for a local magistrate to require the father to install a device in his motor vehicle.

6. The mother also expresses concern over the father and his partner’s consumption of alcohol at the girl’s dance performance on 17 March 2018. She alleges that both the father and his partner had a number of drinks, and because of this, she was forced to drive the girls to the father’s home herself. The father and his partner deny drinking excessively, with the father’s partner stating that she only had one drink. This is confirmed by the affidavits of Mr and Ms J who state that they had both observed the father’s partner consume one beer.

7. In the context of this interim hearing, I am not satisfied that the mother’s concerns about the drinking habits of the father’s partner have been established.

8. I am satisfied that concerns that the mother has arising out of what she has found out about the father’s recent drinking are adequately addressed by the orders that are sought by the Independent Children's Lawyer and are agreed to by the father in terms of ongoing testing.

9. I accept senior counsel for the mother’s submission that the application by the father that the mother also be required to undergo testing for alcohol is a “tit for tat” response and is not founded in the same incontrovertible and serious evidence that the application in respect of the father is founded.

SHOULD SUPERVISION BE REMOVED ENTIRELY?

1. The father denies the allegations of sexual abuse.

2. The Country K police themselves have not interviewed the father. The Country K police have not described him as a person of interest.

3. The father has not been charged with any offence nor is there any evidence at this stage that would indicate that he may be charged. The father voluntarily attended upon NSW Police at M Town to conduct an interview. There was an issue between the parties as to whether or not the document (a DVD), which recorded that interview, could be made available to the mother. The mother had requested that document be provided to her, and the father, up until this point, had resisted doing so. The father asserted it was on the basis that it was his understanding that the Country K police did not want that information shared. It may well be that in the future this court has to give some consideration to whether or not that document, which is in the possession of the father, should be made available to the mother. At this stage, no representative of the police force either here or in Country K has sought to claim public interest immunity in respect of that document.

4. The father says that the mother has not made clear what she believes the risk is arising from the allegations. That submission is made in the context of the mother giving no evidence of any inappropriate sexual behaviour observed by her during the marriage or post separation. The allegations, however, are of a serious nature and include the rape of a child as young as 4.

5. Senior counsel for the father submitted that the case is getting very much out of hand and the continued requirement for supervision in this matter is simply a hook that the mother can use to make all types of allegations about the failure of supervision and that that, in turn, leads to escalating litigation which is not in the children’s best interests.

6. Serious allegations have been made in this case. Pending a final hearing where allegations can be aired and tested fully, an overriding principle is to do no harm and it is a usual course that the risks involved will be managed by the use of supervision (unless it is a case where that is totally inappropriate because of the nature of the risks involved). In this case, balancing the benefit of the continuing relationship at this point between the children and their father, with the serious nature of the allegations that have been made, a supervised order is the appropriate order.

IS MS H STILL A SUITABLE SUPERVISOR?

1. Senior counsel for the mother submitted that there are a number of considerations that must be taken into account in determining the suitability of the father’s partner as a supervisor of his time with the children. I have already dealt with above the allegation of her drinking alcohol to excess while in the presence of the children.

2. The second point senior counsel for the mother makes is that the court should determine that the Ms H is financially and emotionally intertwined with the father. The mother says that she only became aware recently that the father advanced to his partner an amount of $750,000, and this calls into doubt the impartiality of the observations that she might make and the vigilance that she might show if she observes anything untoward.  

3. At the time the orders were made by the Senior Registrar, the mother knew that Ms H and the father were living in a de facto relationship and I would infer she would have assumed at that time that they had a close emotional relationship. Ms H was an employee of the father since 2014 and employed as the office manager since January 2015 (although the mother says she did not find out about that until 2 March 2018). The new information provided by the mother adds little and certainly is not in the nature of a significant change that would cause me to review the Senior Registrar’s assessment of the appropriateness of Ms H as a supervisor.

4. The Independent Children's Lawyer indicated that she had had a conversation with Ms H at court. The Independent Children's Lawyer did not support Ms H’s removal as supervisor. The Independent Children's Lawyer said that whether or not she is an independent person, Ms H is a person without any history with the police and is a person of standing in the community. She said Ms H and the mother seem to be able to correspond in their day to day arrangements and Ms H assured the Independent Children's Lawyer that she would comply with the additional undertakings that were sought by the Independent Children's Lawyer. The additional undertaking sought by the Independent Children's Lawyer related to the new issue raised by the mother in respect of the father’s use of alcohol. The undertaking sought was that Ms H would notify the mother immediately if she observes the father to be consuming or under the influence of alcohol whilst the children are in his care or for the 12 hours immediately preceding the children coming into his care, and if the mother requires, will immediately facilitate the return of the children to the care of the mother, or her nominee, and a further undertaking that Ms H herself would not consume alcohol beyond the legal driving limit during all periods when the children are in the father’s care.

5. I find that Ms H remains a suitable supervisor. It follows that any restrictions on the children’s time with their father, that the mother suggests are necessitated by the constraints of using a professional supervising service, are not ones that need to be made.  I accept senior counsel for the father’s submission that on balance the advantages for the children in having extended time with their father (under supervision) are outweighed by any risks that that supervision by Ms H may be less than diligent.

6. I accept the Independent Children's Lawyer’s submission that given the conflict that exists between the parties, it would be of benefit to the children to reduce as far as possible the parties’ face to face interaction. The Independent Children's Lawyer indicated that she had had a recent conversation with the elder two children. They had both expressed the view to her that they found the current Wednesday afternoon arrangement quite “rushed”.

7. For that reason, I find it is in the best interests to change the Wednesday afternoon orders so that the children are picked up from school on Wednesday afternoon and delivered back to school on Thursday morning.

FORM OF ORDER

1. The father wanted a modification of the order in relation to alcohol testing so that he had the test done within 24 hours and the Independent Children's Lawyer agreed to that condition. It was also agreed that order 10(m) proposed by the Independent Children's Lawyer have the word “sexual” in front of the word “allegations” because of the width of other allegations that may have been made in Country K. The report writer is to be limited just to sexual abuse allegations. 

EXPEDITION

1. The issue was also raised as to whether or not the matter should be expedited and I have given some consideration to that question. The problem, in this case, is the extant criminal investigation against the father which may not come to a conclusion any time soon. It is going to be difficult to hear this case until we have some far better information about what the Country K authorities intend to do in relation to the allegations that have been made. 

2. In my view, it is premature to consider whether or not the final hearing of this matter should be expedited. The parties have agreed to the appointment of a Chapter 15 expert and the delivery of a report. The parties are also continuing to make inquiries to the Country K Authorities as to the likely future course of the investigations and any charges flowing from those investigations. It was suggested that the matter be taken into my docket. I am of the mind to do so. I was informed that the interviews for the expert report will be in October so I would expect that I would review what is happening in this matter by the end of the year. I will defer making any decision about expedition until the court is provided with the best evidence about the current state of the criminal investigation in Country K.

SPECIAL DAYS

1. Whilst the father’s application sought a detailed suite of orders in relation to special days, no submission was made in support of that application and the matter was not otherwise discussed. I would expect that the parties make appropriate arrangements in relation to special days. If that expectation fails, and at an appropriate time, I will consider defining those entitlements.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 31 May 2018.

Associate: 

Date:  31.5.18