Fellows and Fellows - [2011] FMCAfam 1528

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FELLOWS & FELLOWS

[2011] FMCAfam 1528

FAMILY LAW – Interim parenting – allegations of family violence and child abuse or neglect.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

Applicant:

MR FELLOWS

Respondent:

MS FELLOWS

File Number:

PAC 3089 of 2011

Judgment of:

Halligan FM

Hearing date:

7 December 2011

Date of Last Submission:

7 December 2011

Delivered at:

Parramatta

Delivered on:

7 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Givney

Solicitors for the Applicant:

Armstrong Legal

Counsel for the Respondent:

Ms Godden

Solicitors for the Respondent:	Cominos Lawyers
Independent Childrens Lawyers	Ms Bevan

ORDERS

Pending further order, orders are made in accordance with the Independent Children’s Lawyer’s Minute of Order marked exhibit B.
The mother shall within seven days do all things necessary to arrange the earliest available appointment to engage with the Brighter Futures program and shall thereafter attend all appointments and follow all referrals and reasonable advice received through that program.
The mother shall authorise the Brighter Futures program and any person to whom she is referred through that program to discuss her case with the Independent Children’s Lawyer and to divulge all information about her involvement with the Brighter Futures program to the Independent Children’s Lawyer.
By consent, an order is made in terms of paragraph 4 of the interim parenting orders sought in the father’s amended reply filed 1 September 2011.
Otherwise all interim parenting applications are dismissed.
The proceedings will be listed for final hearing when hearing dates become available in relation to parenting and property settlement. Estimated hearing time four days.
Both parties shall file and serve all further affidavit evidence and any updated financial statement together with a list of documents to be relied on at the hearing not less than 28 days before the hearing.
And an order for a family report is made in accordance with exhibit H.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 3089 of 2011

MR FELLOWS

Applicant

And

MS FELLOWS

Respondent

REASONS FOR JUDGMENT

This is the hearing of contested interim parenting proceedings concerning two children, X, born (omitted) 2004, who will therefore turn eight next month, and Y, born (omitted) 2007, who is four. The parties are the children’s parents. The applicant father seeks, in the first instance, orders providing for the children to live with him, to be forthwith returned to him by the mother and that the children spend time and communicate with the mother, as it ultimately became, each week or such lesser frequency as can be accommodated through the (omitted) Centre supervised by that centre. He also sought an order restraining the parties removing the children from Australia and sought an order that the mother, within 14 days, make all necessary arrangements to attend upon a psychiatrist to obtain a mental health assessment with a psychiatrist agreed between the parties and failing agreement, as nominated by the Independent Children’s Lawyer. No submissions have been addressed to me in relation to the orders precluding removal of the children from Australia or that the mother obtain a mental health assessment. It was indicated by the father’s counsel during the course of the running of the matter that the father sought equal shared parental responsibility.
If the Court was not disposed to make an order that the mother’s time with the children be supervised, then the father, in the alternative, proposed that the children spend time with the mother during school terms from each alternate Friday to 6 pm Sunday and from after school Wednesday to before school Friday in the week after the alternate weekend time and further, during school holidays the children spend time with the mother from 10 am on the first Saturday until 6 pm on the first Monday and then 10 am on the fifth day after the conclusion of the mother’s previous time for two nights concluding at 6 pm on the day after the second night. Under those proposals, the children would spend relatively little time with the mother during the coming long Christmas break.
If the Court was of the view that the children should live primarily with the mother, then the father sought that the children live with him during school terms from after school Thursday to before school Monday each alternate week and from after school Thursday to 10 am Saturday each other week, for one half of school holidays, from 2 pm Christmas Day to 12 noon Boxing Day, and from 9 am Father’s Day to before school the following Monday.
The mother’s primary position was also that the parents have equal shared parental responsibility. She sought that the children live with her and spend time with the father from the conclusion of school Thursday to the commencement of school Monday each alternate week, each other week from the conclusion of school Thursday to the commencement of school Friday, for half of school holidays and otherwise as agreed. If the Court was not satisfied that the children should live primarily with the mother, then the mother’s alternative proposal was again for equal shared parental responsibility and for the children to live with the parties on an equal time week about arrangement. It was not clear what orders the mother sought if the Court was satisfied, as the father sought, that the children should primarily live with him.
The Independent Children’s Lawyer proposed orders very similar to those sought by the mother, proposing also equal shared parental responsibility, that the children live with the mother and that the children spend time with the father from the conclusion of school Thursday to the commencement of school the following Monday on alternate weeks and each other week from the conclusion of school Thursday to the commencement of school Friday, and for half school holidays. The Independent Children’s Lawyer proposed that each of the parties be restrained from physically disciplining the children, as the mother also proposed, but I note was not sought by the father. The Independent Children’s Lawyer, as it seems did the parties, proposed that changeovers that did not occur through school occur at McDonald’s Woodbine.
The father is 42, the mother 34. The parties married on 25 June 1998, although it seems that cohabitation may not have commenced until December 1998, the parties having married in the Philippines and the mother not joining the father in Australia until December of that year. Be that as it may, the parties separated on 25 June 2011 when the mother left the matrimonial home taking the children with her. On

8 August this year, an apprehended violence order was made against the mother for the protection of the father for a period of six months containing the standard orders, plus a provision restraining the mother from destroying or deliberately damaging or interfering with the father’s property.
On the same day the mother pleaded guilty to a charge of assaulting the father. It seems that she was given a bond with no conviction recorded. The father appears to be unaware of the period of the bond. I have no direct evidence about it. It was suggested on instructions by the mother’s solicitor that it was for six months, but, as I say, I do not have the bond in evidence.
There are a number of critical matters in this case that are factually in issue between the parties. The father’s evidence is that since each of the children’s birth he has assisted the mother in the care of the children to the extent that he claims he was equally responsible for day-to-day care of the children. He was in full-time employment until shortly after the parties separated when he resigned his employment. He said, however, that he did a lot of work from home and because of the nature of this work was able to do a lot of it when at home at night after the children were in bed.
As I have said, the elder child was born in (omitted) 2004. There is a dispute as to whether in that year, 2004, the father travelled overseas or not. The father says not, the mother says he did. I cannot resolve that dispute. In 2005/6, the father says that he spent a total of 142 days out of the country, or at least away from the home travelling in connection with his employment. In 2007 it was 89 days. The second child was born on (omitted) that year. The following year, the father’s evidence is that he spent only five days away from the home travelling with work. In 2009 it increased to 65 days and in 2010 to 109 days. In the period this year until July, it seems the father spent a total of four weeks away from the home, two periods of two weeks each.
In relation to the father’s assertion that he was equally involved in the care of the child, the mother certainly disputes that very strongly. The mother says that by dint of the father’s frequent and long absences from the home, and she gives no particularity in relation to that, and because she had no family support other than the father in Australia, she was left very much to care for these children on her own. She, in fact, alleges that the father came home when X was three months old, having been overseas at that point for three months. That would suggest that he was overseas at or very shortly after X’s birth. She asserts that three weeks later the father again left for overseas and was gone for a month. That is the extent of the particularity that the mother provides in relation to her contentions about the father’s absences from the home in connection with his employment.
The mother says that by dint of the father’s long and frequent absences from the home he simply was not there to be involved in the care of these children and that she was their primary carer. Whilst it is not possible to resolve contested issues of fact at this interim stage, the only significant fact actually in issue at the present time concerning the father’s absences from the home relate to the year 2004, that is, whether he was away at all or not. Otherwise the only evidence that I have particularising the father’s absences from 2005 onwards is the father’s own evidence. As I say, in 2005/6 that was 142 days, in the year in which Y was born 89 days, the following year five days, but in 2009, 65 days and 2010, 109 days. These are significant periods of absence and they go well beyond the normal absence of a primary breadwinner being away during normal working hours and perhaps with commute times at the beginning and at the end of the day.
During the periods the father was away he had no direct involvement in the care of these children at all. He could not. I am satisfied on the father’s own evidence, in fact, that it is more likely than not that the mother has been the primary carer of these children, not the father, and I draw an inference from this evidence, being the father’s own evidence, that it is more likely than not that the mother has been, by dint of the primary care of these children, the parent with which these children have primarily bonded.
The major contentions in the father’s case, however, really go to his case concerning what he alleges to be very serious deficiencies in the mother’s care of these children. His evidence is that from X’s birth the mother was excessively concerned and anxious about the welfare of the children to the point where he alleges she was, in effect, at least neglectful, if not abusive of the children. He contends that the mother was obsessively concerned with what she believed to be the failure of the children to put on weight normally. He contends that there was nothing abnormal about the children’s weight, but the mother, as a result of her concerns, would force feed these children, on occasions causing them to gag and vomit.
The mother denies the contention. However, she does say that X did not eat enough, that she took the child to a paediatrician because the child was underweight, and she suggests that the paediatrician told her that it was more to do with X’s attitude than a medical condition. There is, however, no evidence, beyond the mother’s bald contention, that X was underweight at any point. She gives no evidence of the child’s weight at any stage. She gives no evidence or calls no evidence of the opinion of any medical practitioner or other expert in child care to suggest that X was at any point underweight. Thus, there is a coincidence in the evidence to this extent, that it is not in dispute that the mother had concerns about X’s weight and took the child to paediatricians as a result of that concern. However, the mother emphatically denies force feeding the child.
There is another point on which the parties’ evidence coincides, and that is that whatever the position of X may have been, Y had no problems when it came to feeding her. The father contends that notwithstanding that, the mother treated her in relation to feeding the same way as she treated X. The mother denies this and says that there was no issue or concern in relation to Y’s feeding because there was no issue or difficulty having her feed appropriately.
The father called as witnesses in his case on affidavit three further witnesses all to give evidence in relation to this and other matters. One was the mother’s own sister. She, on the evidence, would have had limited opportunity to observe the mother in her care of the children because she lived overseas. She does, however, provide some support for the father’s contentions, as in fact does the father’s sister, a registered nurse, who contends that she saw no evidence that either child at any point was underweight. The final witness in the father’s case was a friend, who lives in Queensland, with whom the parties and the children stayed from time to time and that friend is a general medical practitioner. That person too indicated that he saw no indication that either child at any point was underweight, but corroborates evidence of observing the mother, in his opinion, force feeding both children to the point of causing them to vomit.
However, the fact that the father calls corroborative witnesses in relation to this and other issues cannot change the fact that in this hearing, it being an interim determination, there has been and there is no time for cross‑examination. It is not the final hearing of the matter. Therefore, there has been no testing of the evidence of the father or the witnesses in his case, nor has there been any testing of the mother’s evidence. I am simply left with disputed assertions of fact. I do not understand, however, whilst the mother certainly denies the allegations in the father’s case, that the circumstances of the evidence in relation to this and other matters critical of the mother are such that I can simply disregard the evidence. I can neither make a concluded finding that it is true nor that it is false. I therefore have to proceed upon the basis that it may be true.
The father and his supporting witnesses also assert that in the course of attempting to have these children feed when they did not want to and otherwise in attending to the needs of these children, the mother has been extremely impatient and when the children have not done immediately what she has wanted them to do, she has struck them, she has verbally abused them and shouted at them and on occasions she has told them that she is leaving for good and, in fact, has left the premises only to return later. If true, clearly these are matters at least involving neglect of the children and is behaviour which, if true, could have significant psychological adverse effects upon the children. The mother denies the contentions. Again, this is a matter that I cannot find proven or disproven. I have to proceed on the basis that it might be true.
I do note that the evidence in the father’s case certainly progresses well beyond mere allegation and it is on that basis, that is, that there is particularised specific evidence of the matters that he contends, and I am satisfied that they are matters of weight and substance, that I cannot simply ignore them.
Both parties make allegations which, as I understand it, they would categorise as family violence against the other. The father certainly asserts that on occasions, some of which he has particularised in his evidence, and usually when he has sought, he says, to intervene between the mother and her heavy-handed, if I can use that term, treatment of the children, that he himself has become the focus of the mother’s anger and her verbal and physical abuse.
The mother for her part contends two specific incidents where she alleges that the father has perpetrated family violence on her. On one occasion she alleges that he began choking her and on another occasion she asserts that he slapped her. The father in relation to this latter incident gives a version of this particular incident which did not involve him acknowledging slapping the mother. It did involve a contention that the mother threw hot soup over him during an argument in relation to the mother’s use of room service at the hotel where the family was then staying. That much seems not to be in dispute between the parties. The father asserts, however, that the mother then left and when he attempted to leave, he met police and spoke to them. There is no suggestion that he called them. There is no indication at all, in fact, who called them. It is on this occasion, as I understand it, and it would seem after the mother threw the soup at the father, that the mother alleges the father slapped her.
There was another incident shortly before the parties’ separation, and that was in May. An argument developed between the mother and her sister who had come from the United States - she is one of the witnesses in the father’s case and says she did so because of her serious concern about the health and welfare of the mother and the children - and the father hearing this argument came into the room and commenced to record it on his phone. The mother took exception to this.
There seems to be no issue that the mother then seized a sandwich press and held it. The father says that she threw the sandwich press at him and that it struck him and fell to the floor and broke. The mother says that it fell to the floor and broke and gives no real evidence as to what happened between her taking hold of it and it leaving her hands. She certainly says that she did not intend to hit the father with it or harm him with it. What precisely she did intend therefore remains unexplained, as does the circumstances under which it left her hands and smashed on the floor. But, again, ultimately the precise detail of this is in dispute and will remain to be further considered in a final hearing after there has been cross‑examination. Suffice to say, on any view of this evidence, it amounted to an incident of family violence by the mother on the father. The evidence in the father’s case is that one of the children was present at the time.
At about this time, the mother, she says as a result of a subterfuge by the father and her sister, attended a GP with the father and her sister and was referred for a mental health assessment. She was then admitted for two days as a voluntary patient to the Campbelltown Hospital psychiatric ward following which she was transferred to the Sydney Southwest Private Hospital under a psychiatrist. Eight days later she was discharged.
The father’s case, as I understand it, proceeds upon a suggestion that the mother’s behaviour has been caused by mental illness. There is, in fact, no evidence that the mother suffers from a mental illness. The circumstances surrounding her admission first to Campbelltown Hospital and then to Sydney Southwest Private Hospital themselves do not constitute any form of evidence of mental illness. The only direct evidence that is before me of the opinion of any psychiatrist treating the mother is the opinion of the psychiatrist who treated her at Sydney Southwest Private Hospital, Dr M., that having spoken to the mother and the mother having been an inpatient for some time in that hospital, and having spoken to the father, he saw no evidence of mental illness. The mother’s problems were put down to being marital problems.

As I have already indicated, whether one labels the behaviour or not and whether one ascribes a cause of it or not, I am concerned here with evidence in relation to behaviour by the mother towards the children which, if true, must indicate that there is some risk to these children being in the care of their mother, and they have been since the parties separated in circumstances, as I say, where the mother left taking the children with her. The circumstances under which she did so are themselves, in my view, quite telling.
Two weeks after the mother’s release from Sydney Southwest Private Hospital, in circumstances where the father says that he held grave fears for the safety of the children with their mother because of what he thought to be a mental condition, the father went overseas, he says, for two weeks. He certainly suggests that when the mother came out of hospital she appeared to be much better, but he himself refers to a behaviour management plan where there are certain behaviours of the mother that are identified as indicating cause for concern, including raising her voice to the children.
One of the responses that the plan suggests is that she should speak with her husband. Now, certainly, even if he is overseas, with the wonders of modern telecommunication, she could speak to the husband if things appeared to be going awry, but I nonetheless remain somewhat perturbed at the fact that despite the seriousness of the suggested concern that the father said he had, the concern that all the supporting witnesses in his case say that they shared to the point of suggesting that he should ensure that the children are not left in the care of the mother, that he decided that it was appropriate for him to absent himself not just from the home, but from the country, he says for two weeks.
He says whilst he was away he was regularly, many times a day, speaking to the mother and the children to ensure that things were well. However, again his behaviour, on what ultimately transpired, suggests that if things became unwell, he was in no position to respond to protect or ensure the safety of these children.
What he in fact suggests occurred is that the day before the two weeks for his trip would have been up he became concerned enough about the mother’s condition and the welfare of the children that he indicated that he would arrange the earliest possible flight home.
I am perturbed by that because if it was a two-week trip, he would have had his return flight already booked for the following day. In fact, it was a few days after that before he, in fact, returned to the country, which casts doubt upon the suggestion that he was intending to be absent only for two weeks. The facts suggest that he was going to be gone considerably longer than just two weeks as he asserts.
In my view, that is significant in my assessing the extent of the risk to these children. In one sense, why should the Court regard the risk as any more serious than the father himself did and, in my view, that ultimately is a critical issue in this case. It remains unexplained beyond, as I say, the father’s suggestion that things seemed to be all right as to why he would depart and leave the children alone with the mother if he held the fears and concerns that he professed to hold.
Where these problems, according to him, were endemic for so long, I cannot imagine that he would think that 10 days in hospital would make everything right and there would be no further risk of problems. The fact that there was a behaviour management plan suggests that it was clearly recognised there would be a risk of a relapse, as in fact the father himself acknowledges by his evidence about the frequency of his telephone calls to check for exactly that very thing, a relapse, and yet he was prepared to put himself in a position or, more correctly, put the children in a position, where if there was a relapse, he was not in a position to respond promptly to ensure their safety. The reason why he did put himself in such a position has not been explained and it causes me some concern.
It was the position of both parties and the Independent Children’s Lawyer that despite the evidence of family violence and despite the fact that in light of that under section 61DA(2), the presumption of equal shared parental responsibility does not arise, that nonetheless there should be an equal shared parental responsibility order. It was clearly the position of both parties and Independent Children’s Lawyer that such an order was in the children’s best interests.
It was, as I understand it, common ground that despite the historical family violence, now that the parties are separated and in the circumstances that pertain now and for the foreseeable future, there was little risk of a recurrence. That is as I understand the case of both parties and the Independent Children’s Lawyer. It was put that the parents in those circumstances would be able to appropriately exercise parental responsibility and where that is the position of both parties, I am loath to go against it and I will therefore make the order for equal shared parental responsibility.
By virtue of section 65DAA, the Court must therefore consider first an equal time arrangement, albeit it is not the primary position of either party or the Independent Children’s Lawyer. I have specifically invited submissions on that from the advocates for each of the parties, they not having dealt with this option in the initial submissions that were made. The father simply adopted the submissions that he made in support of his primary position, the suggestion that it was clearly not in the children’s best interests as being likely to expose them to danger. The mother’s position was again consistent with the submissions in support of her primary position that an equal time arrangement would not be best for these children as it would take them from the care of their primary caregiver. However, the mother herself is proposing five nights a fortnight with the father and equal time is only two more nights than that.
Be that as it may, I will turn to consider the arguments in relation to the primary positions of the parties since they also affect the issue of equal time.
It is trite, of course, that the children’s best interests are the paramount consideration and they fall to be determined by reference to section 60CC and the considerations under that section fall to be considered against the background of the objects and principles of Part VII of the Family Law Act 1975 as set out in section 60B. For completeness and having regard to the two fetters upon the Court’s discretion in relation to a parenting order, there is no evidence of any parenting plan relevant to the current time. There was evidence of a written agreement previously between these parties shortly after separation which the mother reneged on, but it does not have current operation.
There appears to be no issue that these children have benefited and will continue to benefit from having a meaningful relationship with both parents. The issue that the father raises, however, is the circumstances in which the children can be afforded an opportunity to do that where their safety and welfare is guaranteed and ensured, which brings us to the second of the primary considerations, the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
As I have already adverted to in relation to the equal shared parental responsibility order, it is the position of both parties and the Independent Children’s Lawyer that despite the past family violence, there is little risk of future family violence and little need to take steps to protect the children from it. The real issue is protecting the children, based upon the father’s case, from abuse or neglect. As I have said, I cannot simply disregard the father’s evidence. I have to proceed upon the basis that it might be correct.
If it is correct, it suggests that these children at least may be at risk of neglect. Whether or not the mother’s physical discipline of the children is sufficient to constitute abuse is ambivalent or at least ambiguous at this particular stage. I will therefore treat it for present purposes as caught by the term “neglect”. I will proceed upon the basis, as asserted by the father, that it would certainly at least amount to excessive and unreasonable resort of physical discipline of the children and, in that sense, be neglectful of their welfare.
However, what is required is an assessment of the extent of the risk and the balancing of that risk against other considerations that are relevant to the best interests of these children, which brings us to matters that are really caught and addressed through the additional considerations.
There is no evidence about the children’s views. The evidence in relation to the nature of the children’s relationships with each parent is scare in the extreme. It would, in any event, be the evidence of the parties themselves and, other than for an admission against interest, it would be attended by the risk that it is a fairly subjective view in any event.
I proceed upon the basis, as I have already said, that I infer that it is more likely than not that the mother has been the primary carer of these children and that it is more likely than not that the children have a primary bond and attachment with the mother. That is not to say that these children do not have a close and loving relationship with their father. That seems to be the inevitable concession inherent in the mother’s proposals for substantial and significant time.
So far as the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, it has been put to me that there is a matter adverse to the mother in her reneging on an agreement to allow the father and the children to spend time together after having prevented the children spending any time with him for some time after separation where the mother left the matrimonial home with the children and did not and would not inform the father of their whereabouts.
The mother asserts that the reason for declining to honour that agreement was concerns that the father may take the children away or not return them to her, but that was a concern that she expressed before entering into the agreement and before her solicitors made the offer of that very time. Having made the offer and entering into the agreement, the mother then reverted to her prior position of objecting to what she had then herself proposed.
I am not satisfied at this stage that there is an adequate explanation for the mother having reneged upon that arrangement. As I say, she had the concerns that ultimately led her to renege before she agreed to the father having the time. Nonetheless, she agreed to the time. However, I do note the mother’s proposals in relation to the father’s time with the children under the orders that she seeks involves substantial and significant time and ultimately I am not satisfied that this is a major issue negative to the mother.
Another matter relevant in relation to the willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent is the fact that until I challenged it in the hearing today, the father was proposing that the mother spend supervised time under a regime that could not work. He did not suggest what time was to be spent and he proposed a supervisor who was not on affidavit and for whom there was no evidence otherwise that that person was prepared to supervise. It was therefore a proposal that was, to use the vernacular, a Clayton’s proposal in my view.
It ultimately became the case, as I have already indicated, that the father proposed time at a contact centre on a weekly basis but that very much seemed to be a proposal put together on the run. It was conceded when I raised the issue, as I understand it, that it was unlikely that the contact centre could facilitate weekly time and there was no suggestion as to the amount of time in any event. But again in the circumstances of this case, as with the mother, I do not intend to treat this as a major consideration at this stage.
I will come back to the next of the additional considerations because, in my view, it is the nub of this case, the effect of any changes in the children’s circumstances.
The next matter, the practical difficulty and expense of the children spending time and communicating, would not appear to be a relevant or significant issue in this particular matter.
The next matter, the capacity of each of the parents to meet the children’s needs, is again a matter that I will deal with in conjunction with the effect of change.
As to maturity, sex, lifestyle and background of the children and either of the children’s parents, this seems to me only to be relevant in relation to the children’s ages, in particular, the age of Y, aged four, and my finding that the children’s primary attachment is more likely than not to be with the mother.
There are no issues of Aboriginality in this matter.
In relation to the attitude to the child and the responsibilities of parenthood demonstrated by each of the children’s parents, I cannot readily see that there is any dispute or issue raised in the evidence given in the father’s case, that at least one of these children was present when the mother perpetrated the act of family violence on the father earlier this year. I am concerned as to what that says of the mother’s ability to control her emotions in a way to protect the children. Even if one accepts for one moment that the mother at least subjectively was justified in feeling angry at her dispute and argument with her sister being recorded by the father in circumstances where she felt at that stage that both her sister and the father had duped her into attending the general practitioner, I am nonetheless concerned that this is arguably an incident consistent with the father’s case about the mother’s propensity to display anger and violence, at least in the presence if not directly towards the children themselves.
I will say nothing further than I have already said in relation to family violence and the family violence order. I note that the existing family violence order is a final order.
These are interim proceedings and therefore cannot determine the final outcome. Otherwise, I cannot see that one set of orders is less likely than any other to lead to further litigation, at least so far as interim litigation is concerned, and I am not satisfied there is any other relevant fact or circumstance that I should consider.
This brings us back to the effect of change on the children and the parenting capacity of each of the parents. The father’s case, as I say, is very clearly that the mother’s parenting capacity of these children is significantly compromised because of the disputed matters that he alleges against her. I accept and proceed upon the basis that if the father’s contentions are correct, then the mother’s ability to meet these children’s emotional and intellectual needs, in particular, if not their physical needs to safety as well, is compromised.
However, the extent to which that is so is the problem. The father certainly suggests that it is to a very significant extent that the mother’s ability to meet the children’s emotional and intellectual needs and to ensure them safe parenting is very significantly compromised and yet, as I say, only two weeks after the mother’s release from the hospital in circumstances where the admission was to a psychiatric ward where the father believes still that the mother suffers a mental disorder despite the opinion of her treating psychiatrist to the contrary, that two weeks after that release and clearly knowing and acknowledging that he knew that there was a risk of imminent relapse, he took himself overseas. He put himself in a position where he could not promptly intervene to ensure the safety of the children and yet this is the nub of his case.
It is an inconsistency that troubles me deeply. As I say, I cannot simply ignore the father’s allegations, but on the other hand, perhaps his actions on that occasion put the extent of his concerns into some sort of context.
In fact, I am concerned that the father has exaggerated the extent of the risk to these children. I am satisfied that the extent of the risk to them is better indicated by the father’s actions rather than by his words in the affidavit. In saying that, I am in no way suggesting that I am disregarding what he says. Rather what I am saying is that when one puts together what he says in his affidavit he saw and observed, with his apparent lack of concern about the children lest the mother have a relapse to the point where he was comfortable enough to travel overseas two weeks after the mother’s release from hospital, the father's concerns are put in proper perspective.
In those circumstances, the effect of changes in the children’s circumstances becomes the nub of this case. Removing these children from the mother’s primary care and placing them with the father and enabling them to spend very limited time with the mother, perhaps no more than a few hours a fortnight, in my view would cause significant harm to these children by removing them from the care of their habitual primary carer.
I am concerned about the effect that that would have on both children, but more particularly on the younger child, bearing in mind her age. Certainly, if the evidence was sufficient to show that the risk of harm to these children from leaving them with their mother was greater than the risk of harm of removing them from their mother, then the Court would not hesitate to do so. But in performing that balance, I am not satisfied that the risk of leaving them with their mother is greater than the risk of removing them from their mother.
The father’s alternative proposal, if I was not satisfied supervised time was appropriate, was that the children live with him and spend time with the mother. I am not satisfied that that is an appropriate arrangement either. Again, it would remove these children from the parent that I am satisfied has been their primary carer and with whom it is more likely than not they have the primary bond and attachment. The mother’s own proposals in relation to the children continuing to live with her but spend substantial and significant time with the father, in my view, will ensure an adequate and appropriate continuity of the children’s care and involvement with their primary carer and primary attachment figure whilst providing a very good opportunity for at least two things.
Firstly and most importantly and immediately, for the children to continue what I am satisfied is a close and loving relationship with their father and to continue to benefit from it. But the other thing it will do is, in effect, provide some respite for the mother in the care of these children where the mother would appear to have no support mechanisms around her other than an occasional visit from a domestic violence support worker.
I repeat, I am not making a finding that the matters asserted by the father are false. I do have some concerns about the mother’s parenting capacity and, with all due respect, it is perhaps unfortunate that some effort was not made to put a proposal to the Court, perhaps as part of the orders proposed by the Independent Children’s Lawyer, for the mother to be engaged in a program such as Brighter Futures, or some other program that might provide practical and appropriate support to a parent who, on evidence I cannot simply disregard, does on occasions struggle with the care of these children on her own and who might benefit from that sort of support.
The evidence in the father’s case is that these parties have in the past attended 1-2-3 Magic. His evidence is that that did not really help the mother in her managing the children’s behaviour. The mere fact that I am satisfied on balance at this time, and having regard to the amount of time it is likely that the interim orders that I am about to make will continue before a final hearing, to leave the children in the primary care of the mother does not mean I have no concerns about these children with her at all. What it does mean is that as best I can assess on the evidence before me at the present time, that risk is not as great as the risk of removing the children from the mother and providing for the children with very limited time with her thereafter.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Halligan FM

Date: 13 February 2012