Doolan and Mosman - [2008] FMCAfam 982

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOOLAN & MOSMAN

[2008] FMCAfam 982

FAMILY LAW – Children aged 4 & 3 – interim arrangements for care – allegations of serious family violence – father charged with unlawfully entering mother’s home and assaulting her – primary considerations pursuant to section 60CC (2) – whether supervised contact appropriate – best interests – whether appropriate that the father should provide psychological or psychiatric assessment prior to consideration given to him spending time with children.

Family Law Act 1975, ss.60CC, 61DA, 68LA

Mosman & Doolan [2008] FMCAfam 434
Goode & Goode (2006) FLC 92-286
W &W [abuse allegations; unacceptable risk] [2005] FamCA 892
A v A (1998) FLC 92-800

Applicant:

MS DOOLAN

Respondent:

MR MOSMAN

File Number:

ADC 472 of 2008

Judgment of:

Brown FM

Hearing date:

5 September 2008

Date of Last Submission:

5 September 2008

Delivered at:

Adelaide

Delivered on:

10 September 2008

REPRESENTATION

Counsel for the Applicant:

Ms Cocks

Solicitors for the Applicant:

Judith Cocks

Counsel for the Respondent:

Ms Dickson

Solicitors for the Respondent:

Tindall Gask Bentley

Counsel for the Independent Children’s Lawyer

Ms Leeson

Solicitors for the Independent Children’s Lawyer

Legal Services Commission

ORDERS

The father provide a psychological/psychiatric assessment of himself, particularly the implications, if any, of his mental status to spend time with the children of the relationship [X] born in 2004 and [Y] born in 2005 to the solicitors for the mother and the independent children’s lawyer by 4:00pm on 7 October 2008.
The matter be listed for further directions and consideration of whether the father should spend any time with the aforesaid children at 4:00pm on 14 October 2008.
Until further or other order all orders relating to the father spending time with the aforesaid children be suspended and the children concerned live with the mother.
Each party undergo such random and supervised drug screen testing as directed by the independent children’s lawyer on being given twenty-four (24) hours notice of such testing by the independent children’s lawyer.
The final hearing dates scheduled for 20 and 21 October 2008 be vacated.

IT IS NOTED that publication of this judgment under the pseudonym Doolan & Mosman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 472 of 2008

MS DOOLAN

Applicant

And

MR MOSMAN

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment should be read in conjunction with other reasons provided in this case, which were delivered on 20 March 2008.[1] The current proceedings are also concerned with interim arrangements for the care of the parties’ two children: [X] born in 2004 and [Y] born in 2005.
[1] See Mosman & Doolan [2008] FMCAfam 434
On 20 March 2008, I determined that the two children concerned should live with their mother, Ms Doolan and spend time with their father, Mr Mosman on weekends.
These orders required the mother to return to live in the Adelaide metropolitan area. She had earlier moved to Canberra, unilaterally of the father. She said to escape his violent and abusive behaviour. For his part, the father alleged the mother herself had an erratic termperament and had abused illegal drugs in the past.
As a result of the serious allegations of anti-social behaviour, levelled by each of the parties against the other, it was also ordered that the two children concerned be represented, independently of their parents, in these proceedings. [X] and [Y]’s lawyer is Mrs Reed, an experienced family lawyer. She is to be regarded as a party to these proceedings.
The mother has brought an urgent application in which she seeks that the orders whereby [X] and [Y] spend time with their father should be suspended. She also wishes the father to undertake either a psychiatric or psychological examination, before any consideration is given, by the court, to the children spending time with their father in future.
It is the mother’s case that she has been subjected to an escalating cycle of violent, abusive and irrational behaviour from the father, since her return to Adelaide. This behaviour culminated in a serious series of assaults, on her and members of her family, by the father, following his illegal and forced entry into her home, during the early hours of the morning on 15 August 2008.
The father acknowledges that there was an incident between the parties on this occasion, which necessitated the involvement of the police and his arrest. However, it is his position that the mother has overstated the gravamen of the matter and was herself, at the time, under the influence of amphetamines. He denies forcing an entry into the premises concerned.
It is his case that he has a close relationship with the two children concerned and, if the court accedes to the mother’s proposal, this will, in effect, punish the children, for his failings. In particular, such an outcome will not be in the children’s best interest because they will be deprived of the benefit of spending time with him and will be anxious at his removal as a permanent feature in their lives, albeit possibly only on a temporary basis.
In all the circumstances of the case, he proposes that it is appropriate for him to spend time with the children, in the closely controlled surrounds of a children’s contact centre and subject to the supervision of an appropriately trained person there, pending further investigation of what precisely happened on 15 August. He proposes the [C] Children's Contact Centre which, being newly opened, is available to accommodate the family at short notice.
He is not opposed to undergoing a psychiatric or psychological examination. Indeed he himself seeks a similar examination of the mother. However, it is his position that the provision of such a report should not be a precursor to him spending time with the children concerned, particularly in the closely supervised environment of the [C] Children's Contact Centre.
I have not been told precisely how long it will take for such an examination to take place – but it probably will be between four and six weeks. The father argues that even such a comparatively brief period of time, during which [X] and [Y] are isolated from their father, cannot be said to be in their best interests.
Mrs Reed has instructed Ms Leeson of counsel to appear on her behalf. Both Ms Leeson and Mrs Reed are required to form an independent view, based on all the evidence available to them, as to which outcome is the one likely to be in the best interests of the children concerned. They are then required to advocate this view to the court.[2]
[2] See Family Law Act 1975 at section 68LA(2)
It is the position of the independent children’s lawyer that, given the gravity of the allegations against the father, it behoves the court to adopt a cautious position. As such, Mrs Reed is not in favour of the children spending time with their father at present, whether supervised or otherwise, until he has provided more details of the police charges against him (either potential or actual) and has provided some expert assessment of his current state of mental health.
Following the initial interim hearing, in this matter, the parties’ applications were fixed for final hearing on 20 & 21 October 2008. Given what has occurred in the intervening period, the matter will not be ready for trial on these dates. In addition, Mrs Reed has not as yet obtained an independent psychological assessment of the family, particularly the degree of attachment the children to have to each of their parents.
To a large degree, the delay in obtaining the family assessment has been occasioned by the fact that Mr Mosman formally discontinued his application in respect of the children on 4 August 2008. At this stage, it was ostensibly his position that the parties were capable of resolving the ongoing issues in respect of the children consensually.
Both parties have alleged, in the past, that the other has an unstable and violent personality, which is rendered more labile by the consumption of illicit drugs, particularly amphetamines. For this reason, on 20 March 2008, I ordered that each party be restrained from using any illicit drugs, whilst the children were in their respective care and that each party be entitled to require the other to undergo a random drug analysis test.
At this stage, I have not been formally provided with any results of such drug testing, nor it would seem has the independent children’s lawyer. Drug use remains a major issue in the case.
Counsel for the mother, Ms Cocks indicates that her client has been required to provide a sample to the father, which was negative for the presence of illicit drugs. It does not seem to be the case that the father has been required to undergo any such testing, at the mother’s behest.
Given the overall circumstances of this case, particularly the serious allegations each makes against the other, it is appropriate that the independent children’s lawyer subject each of the parties to a regime of random and supervised drug screen testing, which is independent of each of them.
In the earlier reasons for judgment, I set out the applicable legal principles, which apply to interim children’s proceedings. The law which pertains to those proceedings is the same as that which pertains to these. I will not repeat these legal principles verbatim, in these reasons for judgment, but they are taken to be incorporated into these subsequent reasons.

The proceedings

The mother commenced these proceedings on 12 August 2008. At that stage, she sought a recovery order in respect of both of the children concerned. It was her position that the father had over held the children, following a visit with him, in defiance of the orders of 20 March 2008 and contrary to the service of their best interests.
At her request, the mother’s application was given an urgent hearing, at 9.30am on 15 August 2008. It was, in fact, at 4:00am on 15 August 2008, that the incident occurred, in which the mother claims her home was illegally entered and she, her child from an earlier relationship, [W] and her brother were assaulted by the father. Accordingly, the father was not present at court on 15 August 2008, as he was in police custody at the time. He was bailed later that day.
On 15 August 2008, I was well aware of the potential perils of making ex parte orders, particularly ones which involved the forced removal of children from a parent. Nonetheless, given the gravity of the situation outlined by the mother, I was satisfied that such an order was appropriate. In addition, the independent children’s lawyer supported the issue of a recovery order in respect of [X] and [Y].
Accordingly, a recovery order was made on 15 August 2008, in

Mr Mosman’s absence. Thereafter, the proceedings were adjourned to 29 August 2008, so that Mr Mosman might be given an opportunity to be heard and answer the serious allegations against him.
Mr Mosman responded to the mother’s application on 2 September 2008. On an interim basis, he seeks a resumption of the orders, which were made on 20 March 2008 and which I had suspended ancillary to the issue of a recovery order for the children. He also sought an order that the mother be restrained and an injunction issue restraining her from allowing the children to be in the company of their older half-sibling, [W].
The care of [W] has previously been an issue of contention between the parties, which I examined in the earlier reasons for judgment. It is the father’s position that he has been told by the children that [W] has behaved violently and inappropriately towards them. In part, at least, he justifies some of his conduct, during the last few weeks, by reference to [W]’s behaviour and his desire to protect the children from it.
At this juncture, the father does not press with his formal response. As previously indicated, in the short to medium term, he acknowledges that it is appropriate that his time with the children be subject to supervision, at least until some semblance of normality returns to the situation.
Each of the parties has filed two affidavits in respect of his or her position.[3] The proceedings on 29 August 2008 were adjourned so that the father could be given an opportunity to put his case in respect of the incident which occurred in the early hours of 15 August 2008.
[3] The mother has filed two affidavits on 12 August and 28 August 2008 respectively. The father has filed two affidavits on 2 September and 3 September 2008.
As with the earlier proceedings, the hearing before me has been comparatively brief. Neither party has entered the witness box and been cross-examined by counsel for the other party or by the independent children’s lawyer. As a result, at this stage, I am not in a position to make findings of fact, where there is a dispute between the parties as to what has earlier occurred.
There are many such issues in dispute between the parties. I will try, as best I can, to set out the matters on which the parties agree and the major issues in dispute between them.[4]
[4] See Goode & Goode (2006) FLC 92-286

The evidence

The wife’s position is that the husband has been behaving in an increasingly erratic manner, since early June of 2008. First she says the father crashed his car, into a wall, at the driveway of her home, when the two children were in it.
The wife asserts that the husband was driving deliberately at her, when this incident happened. The father states that it was an accident caused by his foot becoming trapped on the accelerator, due to an injury, which he had earlier sustained to his shin.
Later in June, the mother asserts that the father came uninvited to her home and removed her motor vehicle. The father denies this. Both parties say that the other made a rude finger gesture to him or her, around about this time.
The mother asserts that the father was under the influence of drugs, on 2 August 2008, when he collected the children from her home. The father denies that this was the case.
The following day, when the mother attended at the father’s home to collect the children, she alleges the father was verbally abusive towards her and later grabbed her forcefully, whilst evicting her from his home.
It is the father’s case that the mother was aggressive and argumentative, when she arrived on this occasion and was attempting to provoke him. It is his case that the mother is frequently erratic and unreliable and has a propensity to manipulate situations to achieve what she believes will be in her advantage.
Both parties agree that the police were called to this incident. The mother asserts that the father behaved badly towards the police and had to be restrained. The father acknowledges that he was handcuffed but says that this was an excessive and unjustifiable response by the police concerned. Neither of the parties was charged as a result of the incident.
Thereafter, the father acknowledges that he sent a number of inflammatory text messages to the mother. He also acknowledges that he threatened to place pornographic photographs of the mother on the internet. In this emotionally charged atmosphere, he also instructed his solicitor to file a notice of discontinuance in respect of the proceedings, which he had earlier commenced.
Shortly afterwards, on 8 August 2008, the mother deposes that the father rang her and said “I wish you were dead”. The father denies making this statement to the mother. The mother was concerned at the coincidence of this admittedly disputed phone call and the father’s decision to withdraw from proceedings, along with his other behaviour. All together, she thought they exhibited mental instability.
In respect of the various text messages, sent by him to the mother, the father acknowledges that he has a propensity to use “colourful” language. A propensity which he says he shares with the mother. It is also his position that he acted in the way he did, including making the threats to humiliate the mother by posting embarrassing photographs of her on the internet, out of frustration, particularly because of his perception that the mother was making it as difficult as possible for him to pursue his relationship with the two children concerned.
Notwithstanding the clearly volatile relationship between the two parties, the mother was content to allow the two children to go with their father, on the weekend commencing 9 August 2008, in accordance with the orders of 20 March 2008.
It is common ground between the parties that, about 45 minutes after he had collected the children, the father sent a text message to the mother initiating that he would be retaining [Y] and [X] because “[W] has been hurting them”. The father justifies this behaviour because he says he observed [Y] to have “a scratch on her face”. She allegedly told her father that [W] and his friend had been hurting her.
The mother disputes any suggestion that [W] has behaved inappropriately to either of the children or in any way represents a threat to their ongoing wellbeing. She denies that she has ever left the children in [W]’s unsupervised care.
It is the father’s case that he took the two children concerned to a general medical practitioner in [S]. The doctor concerned examined [Y] in respect of the scratch on her face. He also examined [X] in respect of nappy rash and both children in respect of an alleged infestation with lice.
The father did not return the children to the mother, at 5:30pm on Sunday 10 August, as the orders of 20 March 2008 stipulated. Thereafter, the parties exchanged a number of telephone and text messages.
During the week which followed, the father was absent from his employment on sick leave, due to a skin condition. He acknowledges that he told the mother that he was planning to take the children to the Yorke Peninsula. The mother did not agree to such a holiday.
It is the mother’s case that the father was behaving in a cruel and irresponsible manner during the week concerned. It is her case that she made it quite clear that she wanted [X] and [Y] returned to her forthwith but the father effectively held the children hostage. As such, she became increasingly concerned about the father’s emotional wellbeing and particularly the threat his state of mind might pose to [Y] and [X]. This was the background to her application of 12 August 2008.
As a result of her concerns, the mother requested police officers to visit the father’s home to check on the children’s welfare. The father advises that, when he learnt police were looking for him, he took the two children to the [S] Police Station, where an officer was content to allow him to retain custody of the children.
It is the mother’s case that the father indicated a willingness to return the children to her but later resiled from his word. The father denies this but does acknowledge that he wanted some assurance from the mother that the children would be protected from any harm being occasioned to them by [W], if they were to be returned to her.
The mother deposes that she spoke with the children on 13 August 2008. [Y] apparently indicated her belief to the mother that she would soon have a “new mummy”. The mother is concerned that this conversation is evidence of some form of emotional manipulation, of the children, by the father.
The overall theme of the father’s case is that his behaviour was justified by reason of his concerns about [W]. He denies that any of his text messages were likely to have been alarming to the mother. It also seems to be his case that he was essentially entitled to spend a week with the two children concerned. Certainly that is the tone of a number of the text messages, which he sent to the mother.

It is the mother’s case that she was highly alarmed by the father’s behaviour, particularly his refusal to return the children to her, when requested to do so. It is her case that the father’s unwarranted behaviour compelled her to take legal proceedings to have the children compulsorily returned to her.
Having instructed her solicitors to prepare an urgent application to the court, it was necessary for that application to be served on the father as soon as possible. To this end, process servers were instructed to effect service on the father. It seems clear that the father became aware of this. This forms the background to the next and most serious incident, which occurred between the parties.

The events of 15 August 2008

It is the father’s case that he was contacted by a person who apparently wished to serve some documents upon him. The person concerned would not advise him of the nature of these documents. As a result, the father acknowledges that he was not particularly cooperative.
In my view, it must have been obvious to the father, in general terms, what was the nature of the documents in question. Obviously, they were initiated by the mother and related to the two children concerned.
Sadly the impression I have of the father is that he was content to play “cat and mouse” with the mother and her feelings. Although I am not in a position to make a definitive finding, in this regard, it also seems to me that the father showed a high level of contempt for the orders, which had been made on 20 March 2008.
It the father’s case that he elected to attend at the mother’s home at 4:00am on the morning of 15 August 2008 in order to ascertain from her personally what was the nature of the documents to be served upon him. To my mind, this is a risible rationalisation for his behaviour. I do not believe it.
The situation between the parties was tense; the father had retained the children in defiance of a court order; the mother had made it clear that she wished the children to be returned to her and had arranged for police officers to attend at the father’s home.
In my view, it would have been clear to any rational person that going to the mother’s home, in these circumstances, in the early hours of the morning was something which was fraught with possibly explosive consequences.
In any event, at this juncture of proceedings, I find the father’s explanation for attending at the mother’s home, inherently implausible. Rational and law abiding citizens do not conduct their affairs at 4:00am in the morning. Certainly not when there is a high level of tension between them and police have previously been involved in regulating the relationship between them.
It is the mother’s case that the father kicked a door; smashed a window; and kicked through a padlocked gate; in order to forcibly achieve his entry into her home. She further asserts that the father assaulted her, her brother, [V] and [W], who were each present with her in the premises at the time.
She says that the father accused her of having a male lover. After having made this allegation, she says the father began to search her home. It is the mother’s case that she was paralysed with fear, particularly when the father returned to the kitchen and took up a knife, which he held to her chest. It is her case that the father threatened to kill her, [V] and [W].
It is the mother’s case that the father had injured his hand, whilst forcing entry into the home. Her sense of terror was intensified by the fact that blood, from the father’s injury, dripped onto her clothing.
The father left the scene a short time later. Thereafter, he telephoned the mother and indicated his willingness to return the children to her. This intensified the mother’s perception that the father was mentally unbalanced to a marked degree.
In all the circumstances, she was clearly justified in reporting the matter to the police. The father was arrested at around 7:00am on 15 August 2008. As previously indicated, he was in custody when the mother’s application was dealt with by the court.
It is the father’s case that he left [X] and [Y], in the care of his sister [U], when he decided to visit the mother at her home. It is his case that he was frustrated that the mother had not responded to any of his phone calls, about the process server, on the previous day. Apart from this explanation, he has never precisely explained why he elected to visit the mother at 4:00am.
It is the father’s case that, when he arrived at the premises, he heard the voices of the mother and [W], and saw a car, which he did not recognise in the driveway. What business it was of the father that there was a car in the driveway, whether unknown to him or otherwise, is not readily apparent to me. The father does not admit the mother’s allegation that he questioned her about the presence of a male friend, in the mother’s household, at the time.
The father has declined to give a full account of what he says occurred at the mother’s household, on the morning in question, as the matter is the subject of criminal investigations, which proceedings are likely to concern himself as an accused person.
In general terms, he admits attending the mother’s home, at the time alleged. However, he denies forcing entry and asserts that the mother admitted him into the house. He denies assaulting any of the persons present at the time, particularly with a knife.
It is also the father’s position that the fact that the mother was awake at 4:00am is of itself cause for concern. He alleges that the mother and [W] were under the influence of drugs, most probably amphetamines, at the time. It is also his case that the mother acknowledged her drug use to him, when he confronted her about it.
The mother denies any such drug use. It was her case that she, [W] and [V] were awake because of their anxiety about the father’s behaviour and the fact that the wellbeing of the children was uncertain. She says she was unable to sleep, given this state of affairs and the fact that court proceedings were listed later that day.

Events since 15 August 2008

The recovery order, issued by the court on 15 August 2008, was effected at 11:00pm on 15 August 2008. It is the mother’s position that this recovery was not uneventful, although I have not been provided with any specific details in this regard, by her. The father denies that there were any particular problems and again asserts that the police officers concerned over-reacted.
It was a condition of the father’s bail that he not attempt to communicate with the mother in any way whatsoever. It is the mother’s case that, notwithstanding this condition, the father contacted her twice by SMS message, thus breaching his bail conditions.
More importantly, it is her case that, on 21 August 2008, [W] received a call from the father, in which he said to him “if you touch my girls, I’ll fucking kill you”. The father denies this allegation. However he has been charged in respect of breaching his bail conditions.
It is the father’s case that the mother is intent on ensuring that he is removed from the lives of the children because of her dislike for him. It is also his case that the mother is attempting to manipulate the children against him.
He is also concerned that the mother is not adequately able to protect the children from [W], whom he regards as a highly disturbed and violent adolescent. Finally, it is the father’s case that the mother has significant issues to do with the use of amphetamines.
As this synopsis of the evidence indicates, the situation between the parties is highly conflicted and potentially explosive. It is clearly the case that the trial scheduled for later this year cannot proceed. The major issue for the court, at this stage, is whether the father should be permitted to spend supervised time with the children concerned.
Clearly, the mother is not in a position to assert that the children have been directly traumatised by what occurred on 15 August 2008. [Y] and [X] were at the father’s home at the time. It is however her position that she herself has been deeply affected by the father’s behaviour and continues to be fearful about her safety. She has been too afraid to return to her home, until at least the security there has been upgraded.
I have not been provided with any copies of specific documents which relate to any police charges against the father. It is the mother’s position that he has been charged with three counts of assault; three counts of threatening life; one count of property damage; and one count of trespass. In addition, it is her understanding that the father has been charged with breaching the conditions of his bail.
I am not in a position to resolve definitely, one way or the other, whether one or both of the parties has abused illicit drugs in the past and, more particularly, whether such drug usage played a part in the events of 15 August 2008. However, I am concerned that the unpredictable and explosive behaviour, of which the mother complains, so far as the father is concerned, is often a sequela of amphetamine use.
Similarly, I am not in a position to ascertain the truth or otherwise of the mother’s explanation for being awake at 4:00am on 15 August 2008. As such, it is impossible for me to ascertain whether there is any substance in the father’s complaint that she was drug affected at the time. For obvious reasons, a person who abuses amphetamines, is not an appropriate custodian, for children of the ages of [Y] and [X].
It is the mother’s case that [Y] and [X] have been exhibiting signs of emotional distress and unsettlement, in the period since they were returned to her care. In particular, they have asked her whether she is their “new mummy”.
It is the father’s position that the mother has no reason to be fearful of him and, in the past, “never backed down” from an argument with him. From the mother’s perspective, this is a provocative statement and one which shows little, if any, insight, on the father’s part, into the likely effects of his behaviour on her.
In all these circumstances, although she accepts that the [C] Children's Contact Centre will provide rigorous scrutiny of the father, it is the mother’s case that it cannot be definitely ruled out that the father will not say or do something potentially traumatising to the children, given his labile state of emotions, as demonstrated by his erratic behaviour over the last few weeks.
In all these circumstances, it is her position, supported by the independent children’s lawyer, that it behoves the court to obtain some form of psychological or psychiatric assurance that the father’s emotional state does not constitute a threat to the children. Above all else, she urges a cautious approach to the father spending time with the children.
It is the father’s case that he has a strong and abiding relationship with each of the children concerned. In this regard, he points to the report of Mr Leask, who earlier supervised his time with [X] and [Y], in Canberra, prior to the orders of 20 March 2008 being made.
I have referred to Mr Leask’s report, in the earlier reasons for judgment.[5] At that time of Mr Leask’s involvement, both the children were very happy to see their father and apparently interacted normally with him. Mr Leask’s report was seminal to my decision of March 2008.
[5] See Mosmant & Doolan (supra) at paragraphs 79-84
Accordingly, it is the father’s position that this is not a case where there can be said to be any problem between him and the children concerned. In particular, it cannot be said that he is alleged to have directly abused either child; has traumatised the children directly by assaulting their primary carer in their presence; or that there is a poor or non-existent relationship between him and the children. To the contrary, he asserts the relationship is a good and viable one, which needs to be maintained.
Rather, in the submission of his counsel, Ms Dickson, the problem is one between the parties themselves, not between the father and the children. As such, a children’s contact centre will ensure that the father does not come into direct contact with Ms Doolan, which will protect the children from any possibility of being exposed to family violence.
In addition, the mother can be confident that there is no realistic possibility of the children coming to any harm, when they visit their father, at such a children’s contact centre. Given these circumstances, Ms Dickson contends that it will be tantamount to punishing the children, for their father’s alleged failings, if an order for supervised contact is not made.
It is also the father’s case that there is no objective evidence to indicate that the mother is traumatised, to such a degree, that it will inevitably impact upon her ability to parent these children, if an order is made for the father to spend the very limited time, which he proposes, with the children concerned.
In his view, two hours per fortnight of supervised time, represents the bare minimum necessary to sustain a relationship between him and [X] and [Y]. In addition, given his serious allegations regarding the mother’s drug use, it is his position that it is essential that some form of connection be maintained between him and the children.

Conclusions

It is my view that there exists reasonable grounds for me to believe that the father has engaged in family violence. Accordingly, I am of the view that the presumption of equal shared parental responsibility is rebutted in this case [section 61DA(2)].
Notwithstanding the non-application of the presumption to the circumstances of this case, I am still required to consider the applicable section 60CC factors and determine what I think is the best outcome for the children from my consideration of the relevant factors.
As previously indicated, the applicable legislation places two considerations in a position of pre-eminence – the benefits of the children having a meaningful relationship with both their parents; and the need to protect the children concerned from harm, as a result of exposure to abuse and family violence.
Obviously, the mother places more emphasis on the need to protect the children from potential psychological harm, as a consequence of being exposed to family violence. It is difficult to see how the children could be directly exposed to such family violence, in the confines of a children’s contact centre.
The father places significant emphasis on the benefits, both in the short and longer term, of the children having a meaningful relationship with him. In this regard, he points to the fact that he has been a constant presence in the children’s lives, up to this stage and, if Mr Leask, an independent observer is to be believed, the relationship he shares with the children is a strong one.
At this stage, the court is required to balance these two competing considerations. One is not pre-eminent over the other. Rather, I must look to the individual circumstances of the case concerned and from those circumstances determine which consideration should be given more weight. In my view, this is a difficult and finely balanced case, in the light of these two primary considerations.
On any view, if the father has assaulted the mother in the way alleged, this represents family violence of the most serious kind. In addition, if the behaviour ascribed to the father is true, it is, in my view, indicative of an extreme level of mental disequilibrium, on the father’s part. As previously indicated, I am also concerned at the possibility that his behaviour may be indicative of illicit substance abuse.
I am aware that the Full Court has indicated that the issue of whether the time a child spends with a parent is to be supervised or otherwise is an issue which has the potential to create long term consequences for the child concerned. Supervised time does not always afford the opportunity for “realistic and relaxed parenting time” between the parent and child concerned. In addition, supervised time can, very often, be only be a temporary solution, in respect of the difficulty presented by the case concerned.[6]
[6] See W &W [abuse allegations; unacceptable risk] [2005] FamCA 892 at paragraph 115
However, in this case, the issue of supervised time is not propounded as a long term solution to the issues raised by the father’s behaviour. Rather, it has been put forward as appropriate, pending a deeper inquiry into what occurred on 15 August, 2008. The major issue raised by the allegations against the father is whether his alleged mental instability is such that it poses some form of ongoing risk to the children concerned.
From the mother’s perspective, the best way to approach this issue is for the father to undertake some form of psychological or psychiatric assessment. I agree. I appreciate that such an assessment may not provide any definitive diagnosis of the father and even if some sort of personality disorder is diagnosed, it may not be amenable to any course of treatment.
However, in my view, given the extreme seriousness of the mother’s allegations against the father, which occurred against a background of extreme acrimony between the parties, it is appropriate that the court proceeds cautiously in respect of any issue to do with the children.
In addition, the time in which such a psychiatric or psychological assessment can be obtained is fairly short. A period of between four and six weeks will not do serious damage to the father’s relationship with the children concerned and so necessarily leach the meaning from that relationship.
The first task for the court is to determine whether objectively the father’s behaviour poses an unacceptable risk to the children concerned. If there is such a risk, the court must take steps proportionate to the degree of that risk.[7] In my view, it is a proportionate response to the risk posed by the father’s behaviour that there be some sort of independent psychological or psychiatric assessment of his behaviour, prior to any consideration being given to him spending time with the children concerned, either supervised or otherwise.
[7] See A v A (1998) FLC 92-800 at 87,996
Another aspect of the case is whether the mother is presently sufficiently emotional robust to deal with the father spending any time with the children. If the mother becomes emotionally distraught, at such a prospect, it may in turn have serious consequences for the children themselves, regardless of how the father is likely to present himself during any period of time he spends with children.
In my view, these considerations emphasise the need for the court to be cautious at this stage. Given the gravity of the allegations of 15 August 2008 and before, it seems to me that it may be useful that there be a “cooling-off” period for the parties concerned, during which the father can provide some assurances regarding his state of mental equilibrium to the mother.
For these reasons, the final hearing of 20 and 21 October will be vacated. The current arrangements for the children will continue, pending the production by the father of either a psychiatric or psychological examination of himself, which will be directed to his emotional readiness to spend time with the children concerned.
In addition, an order will be made empowering the independent children’s lawyer to require each of the parties to undergo random drug screen testing. In my view, this will be the most effective way to monitor the parties’ illicit drug use, if any.
The matter will be listed for further directions on 14 October 2008 at 4:00pm when I anticipate that the father’s psychological/psychiatric report will be to hand.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 10 September 2008