Denison & Ravenscroft

[2021] FCCA 1490

FEDERAL CIRCUIT COURT OF AUSTRALIA

Denison & Ravenscroft [2021] FCCA 1490

File number(s):

DGC 2148 of 2018

Judgment of:

JUDGE MCNAB

Date of judgment:

24 June 2021

Catchwords:

FAMILY LAW – parenting – final hearing adjourned – hearing converted to a mention – urgent oral interim application made during the hearing by the mother to vary the father’s spend time with the children – father’s mental health a prominent feature of the case – allegations the father has exposed the children to his mental health issues – psychological report released just prior to hearing – father to be psychiatrically assessed shortly – mother’s application brought in good faith – in the best interests of the children for the father to spend supervised time with the children each week.

Legislation:

Family Law Act 1975 (Cth) ss 60CA, 69ZL

Cases cited:

Briggs & Gerber [2017] FamCA 1126

Goode & Goode [2006] FamCA 1346

Meese & Meese [2018] FamCA 588

Number of paragraphs:

23

Date of hearing:

24 June 2021

Place:

Melbourne

Counsel for the Applicant:

Mr Moisidis

Solicitor for the Applicant:

Portelli & Co Lawyers

Solicitor for the Respondent:

Hartleys Lawyers

Counsel for the Independent Children's Lawyer:

Mr Easteal

Solicitor for the Independent Children's Lawyer:

Seawater Legal

ORDERS

DGC 2148 of 2018

BETWEEN:

MS DENISON

Applicant

AND:

MR RAVENSCROFT

Respondent

ORDER MADE BY:	JUDGE MCNAB
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS BY CONSENT THAT:

1.From the monies held in trust in the names of the parties by Portelli and Co, solicitors, there be paid to each of the Husband’s solicitors and the Wife’s solicitors the sum of thirty thousand dollars ($30,000) each with such payment to be characterised as a part property settlement.

2.That the Independent Children’s Lawyer has leave to inspect and to copy all documents returned pursuant to subpoena issued in these proceedings.

3.That upon the filing of the Undertaking set out below the Independent Children’s Lawyer has leave to provide to the legal representatives of the Applicant and the Respondent an electronic copy of all documents returned pursuant to subpoena issued in this matter and obtained by the ICL in compliance with Order 1 herein

PROVIDED ALWAYS THAT:-

(a)the legal representatives for the parties forthwith file an Undertaking that such documents are not to be provided to the parties themselves or any other person (with the exception of counsel briefed in these proceedings) unless permitted by an Order of this Court; and

(b)upon the conclusion of these proceedings, or the legal representative ceasing to receive instructions in these proceedings, any and all copies created of the documents be immediately destroyed.

4.The Father forthwith do all things necessary to attend upon Dr B on 13 August 2021, or such other psychiatrist as nominated by the Independent Children’s Lawyer (“the psychiatrist”) for the purposes of the preparation of a report providing an assessment of the Father’s psychiatric state and the following shall apply:

(a)each party will provide the psychiatrist with copies of all material filed by them in these proceedings;

(b)the Independent Children’s Lawyer has leave to provide the psychiatrist with a copy of any subpoenaed material released pursuant to these orders, any material filed in these proceedings including any responses from DHHS, and a copy of any orders made in these proceedings;

(c)the psychiatrist has leave to inspect any material produced under subpoena in these proceedings;

(d)the Father do all acts and things necessary to authorise the psychiatrist to communicate with any of the Father’s treating medical practitioners, including Mr C clinical psychologist, upon the psychiatrist's request;

(e)the psychiatrist be requested to address:

(f)the Father’s relevant medical history;

(g)the Father’s psychological, psychiatric and emotional health and functioning;

(h)any relevant diagnosis or description of his personality, presentation or functioning;

(i)the way in which the Father’s functioning may be relevant to his capacity to parent and meet the needs of the children;

(j)if appropriate, suggested treatment, management or recommendations and the likely prognosis;

(k)the Father is to bear the cost of the assessment and report; and

(l)the Father will file and serve an affidavit annexing the psychiatric report within 14 days of the report being released.

5.The parties do all acts and things for child X born in 2012 (“X”) to attend upon a paediatrician, Dr D at the E Children’s Clinic, and the following shall apply:

(a)the parties have leave to provide the paediatrician with a copy of the Psychological Report of X prepared by Dr F dated 30 May 2021;

(b)both parties are authorised to communicate with the paediatrician and may attend if directed by the paediatrician;

(c)the costs of the paediatrician be paid from the monies held in trust in the name of the parties by Portelli & Co. Lawyers & Consultants; and

(d)the parties will follow all reasonable recommendations of the paediatrician.

6.The parties do all acts and things necessary to cause X to undergo a cognitive assessment and achievement testing, and the following shall apply:

(a)if possible the assessment and testing be conducted by Assessments Australia through Suburb G Primary School, and if this is not possible by a practitioner as recommended by Dr F or the Independent Children’s Lawyer;

(b)the costs of such testing be paid from the monies held in trust in the name of the parties by Portelli & Co. Lawyers & Consultants; and

(c)the parties shall provide the Independent Children’s Lawyer with a copy of the testing result with 14 days of receipt.

7.The parties and Independent Children’s Lawyer engage in a mediation with Mr Dan Sweeney of counsel on 14 October 2021, or such other date as agreed between the parties and Independent Children’s Lawyer, and the following shall apply:

(a)the cost of the mediator be paid from the monies held in trust in the name of the parties by Portelli & Co. Lawyers & Consultants; and

(b)Victoria Legal Aid is requested to fund the ICL’s attendance at the mediation.

THE COURT ORDERS THAT:

8.That Order 7 of the orders of 7 December 2021 be suspended.

9.That the children of the marriage,  Y born in 2010 and X born in 2012 ( “the children”)  spend time and communicate with the Father as follows:

(a)Each weekend not more than 3 hours at a time at times and days recommended by Ms H in consultation with the parents.

(i)Supervised by H Family Contact Service.

(ii)The cost of supervision be paid by the Father.

(b)And at such other times by agreement in writing between the parents.

10.Not earlier than 23 August 2021, the Father will provide the Mother with a report by H Family Contact Service of the progress of the supervised visits and the cost of such report be paid by the Father.

11.Pursuant to s 62G(2) of the Family Law Act1975, the parties and the said children Y born in 2010 and X born in 2012 attend upon Ms J for the purposes of the preparation of an updated Family Report to be given to the Court by no later than 15 November 2021.

12.The Family Report to deal with the following matters:

(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

(b)the capacity of each of the parents to attend to the emotional, physical and intellectual needs of the children, with reference to any medical issues of the children;

(c)the willingness and ability of each of the parents to facilitate and encourage the children’s relationship with the other parent;

(d)the nature of the relationship between the children and the parents;

(e)the likely effect on the children if the Court were to make Orders in terms of the Father’s/Mother’s proposed orders;

(f)any family violence within the definition of the Family Law Act which impacts on the living arrangements and parenting capacity of each of the parents;

(g)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

(h)any other matters that the family consultant considers important to the welfare or best interests of the said children.

13.The parties send copies of all of their Court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.

14.If a party is not represented by a lawyer, then within 7 days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:

(a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

(b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

(c)any family violence intervention or restraining Orders currently in force.

15.For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

16.The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

17.If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 7 days prior to the Final Hearing.

18.Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

19.Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

(a)A Children’s Court;

(b)A child protection authority;

(c)A State or Territory legal aid authority; and

(d)A convener of any legal dispute resolution conference.

20.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

21.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 29 September 2021 at 9.45am for Mention.

22.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 8 December 2021 at 10.00am for Final Hearing, with an estimated hearing time of 2 days.

23.The parties have leave to amend their application and response PROVIDED the amended application or response is electronically filed and served no later than 14 days before the trial.

24.The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:

(a)The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the Final Hearing not later than 21 days prior to the trial; and

(b)The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the Final Hearing not later than 14 days prior to the trial; and

(c)The independent children’s lawyer electronically file and serve any further affidavits relied upon by the independent children’s lawyer at the Final Hearing not later than 7 days prior to the trial, (if applicable)

AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:

(d)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or

(e)the party has first obtained leave of the court.

25.Where each party has legal representation, not later than 2 days prior to the commencement of the trial the parties file a properly prepared document setting out:

(a)an agreed list of issues required to be determined by the court; and

(b)a statement of agreed facts relevant to the agreed list of issues.

26.Not later than two business days prior to the trial all parties do electronically file and serve an Outline of Case Document including the following:

PROPERTY

(a)     a list of the material relied upon;

(b)     a brief chronology listing significant events;

(c)     a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;

(d)     main contentions on disputes as to:

(i)     inclusion of items in the pool; and

(ii)     the value of times where the value is in dispute.

(e)     list of contributions claimed or contended for and the percentage assessment on contributions contended for;

(f)     list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;

(g)     other relevant contentions to determining a ‘just and equitable’ division of property; and

(h)     the actual orders sought.

PARENTING

(a)     a list of the material relied upon;

(b)     a brief chronology listing significant events;

(c)     a list of significant factual issues requiring determination;

(d)     a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (sec 60cc factors);

(e)     a list of the considerations relevant to the operation of s.65daa;

(f)     a list of other contentions relevant to the decision; and

(g)     the actual orders sought.

27.Each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.

28.No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court.

29.Each party must have available for their witnesses copies of all affidavits and all of their documents that those witnesses shall be referring to at the hearing.

30.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the  Family Law (Fees) Regulation 2012.

AND THE COURT NOTES THAT:

A.The matter proceeded this day as an adjournment of the Final Hearing and as an interim hearing initiated by the wife making and urgent oral application seeking the suspension of the existing orders which provided for the husband to have unsupervised time with the children of the marriage, Y and X.

B.The reasons of this day be provided by the Independent Children’s Lawyer to Dr B.

C.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

D.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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 under the pseudonym Denison & Ravenscroft is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)

Judge McNab:

INTRODUCTION

1. In this matter, I must make a decision on an interim basis in relation to parenting issues. In doing so, I will give short form reasons as I am able to do pursuant to s69ZL of the Family Law Act1975 (Cth) (“the Act”).

2. This matter was listed for Final Hearing today before her Honour Judge Boymal. However, as Judge Boymal has previously been involved in the case and has been in receipt of subpoena material at some time in the past, it is not appropriate that she continue to deal with the matter. Therefore the matter had to be allocated to another Judge of this Court, and it was initially allocated to his Honour Judge Burchardt for Final Hearing in April 2022. However, because of the nature of the matter, and the fact that it has been in the Court system for some time, it was convenient and appropriate that the matter be dealt with by me, both in terms of interim matters and for Final Hearing, which will occur on 8 December 2021.

3. As the matter was listed for a Final Hearing today that could not proceed, the hearing was converted to a Mention, so as to ascertain the views of the parties and whether any updated material would be required prior to the Final Hearing on 8 December 2021. For the reasons that are set out below, the Mother’s legal representatives made an urgent oral application during the course of the Mention, in respect of the Father’s spend time arrangements with the children who are the subject of these proceedings, and I gave reasons as to orders made by the Court. These are those reasons.

   BACKGROUND

4. In this matter, interim property orders have been made by consent.

5. Otherwise, this matter concerns two children of the parties, Y born in 2010 and X born in 2012. This matter has a long history before the Court, not necessarily because of delays in the Court system, but because of the nature of the matter.

6. One of the prominent features in the case has been the Father’s mental health and that issue is the subject of evidence from both parties. The Mother is of the view that the Father has poor mental health and has made reference to that, in particular, in her affidavit filed on 26 June 2018 and in her more recent affidavit filed on 17 June 2021.

7. The parties have agreed to orders being made by consent for, amongst other things:

   (1)there to be further medical evidence, by way of a cognitive assessment and achievement testing, in relation to the child X, as recommended by Dr F, Psychologist, in her report;

   (2)X to attend upon a Paediatrician;

   (3)the Father to attend upon Dr B, Psychiatrist, on 13 August 2021 for the purposes of a psychiatric assessment and the preparation of a report; and

   (4)an updated family report to be conducted prior to the Final Hearing on 8 December 2021.

8. The matter that is not agreed is how the children are to spend time with the Father in the interim prior to the Final Hearing. This is because, on 21 June 2021, the Father’s solicitors filed an affidavit of Mr C, Clinical Psychologist, who assessed the Father and prepared a diagnostic report, which is an annexure to the affidavit. In summary, the report provides that Mr C saw the Father initially in early May 2016 and that he undertook an assessment and a report was written in relation to his mental state.  The report states:

   Mr Ravenscroft said that in early December 2015 Mr Ravenscroft’s wife at that time, Ms Denison, had called the CAT Team because she was concerned about his mental health, specifically in relation to believing that he was being stalked. Mr Ravenscroft was admitted briefly and then discharged with minimal or no follow up. At the time of assessment in May 2016 Mr Ravenscroft was assessed as mentally stable although he did state that the process of being taken to hospital and treated as if he had experienced a psychotic break had been a traumatic experience.

1. The report then goes on to say:

   Mr Ravenscroft made contact again in April 2020. At our initial appointment Mr Ravenscroft disclosed that his life had unravelled over the past 4 years. Mr Ravenscroft said that the experience of being involuntarily admitted to hospital in 2015, the deterioration in his relationship with his now ex-wife Ms Denison and limited access to his children (as part of their separation) had left him disillusioned and traumatised. Mr Ravenscroft stated that his mental health had deteriorated and was having a significant negative impact on his daily functioning. He specifically said that his ability to function in a work environment had been severely compromised. The brief periods of employment through 2016 and 2017 had ended ostensibly due to poor work performance as a result of his reduced mental capacity.

   Some of the symptoms reported by Mr Ravenscroft when he re-engaged in treatment in 2020 included significant sleep disturbance, periods of uncontrollable crying with no apparent trigger, limited concentration, flashbacks, impaired memory, disorganisation, and significantly lowered confidence. Mr Ravenscroft reports that he experiences mood swings and has developed fears which impact on his ability to leave his house. Mr Ravenscroft also experiences significant difficulties interacting appropriately with others and as such has not been able to make new or sustain many of his older close friendships.

   Despite the treatment Mr Ravenscroft received between April and October 2020 Mr Ravenscroft’s symptoms remain severe, frequent and persistent. Given the pervasive and ongoing nature of his condition Mr Ravenscroft should strongly be considered for financial support through a disability support pension.

   The likelihood of Mr Ravenscroft successfully attaining employment is limited, and this in itself will most likely be at a level requiring specific skills and an environment that is sensitive to his current mental state. If Mr Ravenscroft does gain employment his current mental health condition suggests a reduced work (hour) schedule would be a more realistic fit for sustained employment. Currently he remains not fit for work.

2. As set out above, upon reading that report, the legal representatives for the Mother made an urgent oral application at the hearing today for the Father’s unsupervised time with the children to be suspended and that interim orders be made for the Father to spend supervised time with the children for two hours each week. 

3. In addition to the psychological report, I was told by Counsel for the Independent Children's Lawyer that he had inspected the subpoenaed records of Mr C and those records confirmed, and indeed amplified, some of the matters of concern raised in Mr C’s report. Mr C documented that, for an extended period, the Father raised rather extreme views involving COVID-19, various conspiracy theories that he had and also the notion that he is being stalked. The subpoena material indicated that the Father was clearly mentally unwell, had suicidal thoughts and was paranoid, a paranoia which expressed itself in behaviours including living in the backroom of his house in the dark and leaving the house in different ways in order to avoid being stalked. It is said that, as at August 2020, the Father was still making extensive references to being stalked by a gang as a result of a civil dispute involving his Father and a neighbour which was the subject of proceedings in 2015.

4. In addition, whilst it is not proven and I will therefore treat it as an allegation, the Mother gives evidence at [12] of her trial affidavit filed 17 June 2021 that:

   12. […] both children have repeatedly informed me after spending time with their father that he continues to raise with them extremist views such as government conspiracies around COVID-19; anti-establishment views; anti-Semitic beliefs and general extreme right-wing views on social issues. He also continues to have paranoia concerning the use of WiFi, believing that it somehow comprises (sic) his privacy. As a result, the Respondent has refused outright to support the children throughout their home-schooling by refusing to have WiFi available at his residence. In addition, on Good Friday of this year when the boys attended a family Easter gathering at their paternal aunt’s house with their father, the boys on returning to me, reported that their father got into an aggressive argument with their cousin, a twelve year old girl, about political views, Donald Trump, COVID-19 conspiracy theories and other extremist views. Both children witnessed their cousin being ridiculed by their father. Afterwards they reported to me their cousin became distressed and her parents asked the Respondent and the children to leave and to never return to their home. Both children were frightened, embarrassed and confused and shocked at what they had experienced that day with their father.

5. The Mother makes reference to another concerning incident, which I again only take at this stage to be an allegation, at [13] of her affidavit as follows:

   13. Of further concern as that during their recent school holiday period both children reported that their father took them to the gym with him as he needed to do a work-out. They reported they were left alone in a corner of the gym, while he proceeded to do a work-out. The children informed me they were approached by a man who asked if they were okay as they were alone, after which the Respondent reportedly became aggressive to the man in front of the children claiming that the man was a paedophile.

   CONSIDERATION

6. The Court was referred to two relevant authorities, Briggs & Gerber [2017] FamCA 1126 (per Thornton J) and Meese & Meese [2018] FamCA 588 (per Gill J) (“Meese”) (which summarises the principles set out in Goode & Goode [2006] FamCA 1346 to which I have regard), both being decisions dealing with an interim application for the suspension of time. In Meese, where his Honour was dealing with an urgent interim application, his Honour helpfully sets out [8] – [11] some of the relevant principles to be applied as follows:

   8. It may be accepted that a court, in dealing with interim proceedings, must be circumspect in respect of making factual findings in the matter. Appellate review of interim proceedings before courts impresses upon courts the need for that circumspection and the need to be reserved in respect of factual findings, even when they are supported by judicial intuition. Courts are required to couch their decision-making in terms that acknowledge the uncertainty that surrounds the interim proceedings. The material is unable to be tested. In a case such as this the parties have been limited as to the material that they can refer to and have necessarily been limited in the submissions that are able to make about that material. That calls for significant caution before making any factual findings.

   9. It also means that any orders that result from these interim proceedings are not necessarily reflective of what may occur following factual findings being able to be made following a Final Hearing of the matter. 

   10. Notwithstanding that caution, appellate review has also made clear that the inability to make findings does not relieve courts of the obligation to consider risk. The jurisprudence that has flowed from this Court acknowledges that there are many instances in which a court is not able to make factual findings about what has or has not happened, but has been required since, for example, the case of M & M (1998) 166 CLR 69, which is the seminal High Court case on risk which governs this Court's jurisdiction, to make findings on the basis of risk even when it is impossible to make findings about the underlying facts.

   11. In interim proceedings the Court is not relieved of its obligation to consider the risks that pertain notwithstanding the Court’s inability to make interim findings.

7. In this matter the Father has filed various affidavits in which he concedes that he had periods of poor mental health in 2016, but says each period was only for a short period of time. At [164] and [168] of his affidavit filed on 17 June 2021, the Father goes on to say that his mental health is good, apart from the fact that he has been diagnosed with Post-Traumatic Stress Disorder.

8. In relation to the aforementioned allegations of stalking made by the Father, the Father says at [161] – [163] of his affidavit filed on 17 June 2021 that:

   161. […] the Paternal Grandfather was involved in a civil litigation case in July 2015, in which I was a witness.

   162. As a result of this case, both the Paternal Grandfather and I were victims of gang stalking. This started for the Paternal Grandfather in or around January 2015 and this started for me in or around August 2015.

   163. This gang stalking caused me a lot of stress and made me significantly anxious. I was being followed on foot and by car. I was unaware that it was happening initially, however looking back on it at a later date, I was able to put the pieces together.

   164. I have been diagnosed with post-traumatic stress disorder (hereinafter referred to as “PTSD”) by my psychologist, Mr C, from a combination of the CAT team incident and the allegations made by the Mother resulting in an Interventions Orders be (sic) obtained by the Mother. I was diagnosed in 2020 after receiving extensive treatment from Mr C.

9. I note that what the Father does not say in his affidavit material is that he continued to hold those views, and that is one of the basis of Mr C finding that the Father is, in fact, unfit to work and is clearly unwell.

10. The Mother seeks to use Mr C’s affidavit for the purposes of determining whether the Father poses any risk to the children. She does so on the basis of the information which forms the basis of the report and has been available in the form of subpoenaed documents since in or around February 2021.

11. The Father submits that:

    (1)if there was any urgency to those matters, or indeed if anyone cared about those matters, they should have been raised earlier, in particular, prior to today, which was meant to have proceeded as a Final Hearing;

    (2)Mr C’s report was prepared for the purposes of determining the Father’s capacity to work and not his capacity to parent and therefore the report should not be admitted for that purpose;

    (3)if there was any genuine concern in relation to the Father’s capacity to parent, it would have been apparent to Mr C, who would have then been mandated to make a report to authorities because of the risk to the children presented by the Father. In circumstances where Mr C did not undertake that course of action, it is said that the report is not proper evidence in relation to any risk the Father poses to the children and does not speak to the Father’s capacity to properly care for the children.

12. I accept that it is only recently that Mr C’s concerns in relation to the Father’s mental health were distilled for the benefit of the parties, as Mr C made his affidavit on 18 June 2021 and it was filed with the Court on 21 June 2021. Whilst the subpoenaed documents have been available since in or around February 2021, I am not sure whether the Mother had the opportunity to inspect those documents, or if she did, when that occurred. However that issue does not alter the risk which the Court now has to assess, since it has properly been brought to the Court’s attention.

13. I do not accept that the Mother’s application has been brought in bad faith. The Father, in effect, submitted that the hearing, which was converted to a Mention, has been hijacked by the Mother, and her application is simply going to delay the Final Hearing, and the determination of this matter, for a significant period of time. I am of the view that the Mother has had real and ongoing concerns about the Father’s mental health. The Mother has previously sought to reach a compromise with the Father regarding spend time arrangements, which is to her credit, however, when presented with evidence of the kind set out in Mr C’s report, it is appropriate that she brings this urgent application.

14. The Father is to be psychiatrically assessed by Dr B on 13 August 2021 for the purpose of preparing a report to be provided to the Court. On that basis, the Court will organise a Mention hearing to take place shortly after 13 August 2021, to consider any report that is prepared by Dr B and to consider the interim parenting arrangements prior to the Final Hearing and prior to the preparation of an updated family report.

15. In making my decision, I must consider the interests of the parties, but the best interests of the children are the paramount consideration (see s60CA of the Act) which evidently includes a consideration of any risks that may be posed to the children. I am of the view that the balance of interests favours the Court making the proposed orders that are sought by the Mother for the Father to spend supervised time with the children each week for up to three hours, until the matter returns before the Court after Dr B’s assessment of the Father in August 2021.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab.

Associate:

Dated:       1 July 2021