Gardiner and Rivers

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARDINER & RIVERS

[2014] FCCA 76

Catchwords:
FAMILY LAW – Parenting dispute – children six years and three years – application of Part VII criteria to parenting dispute – whether husband’s de facto spouse should be excluded from the exercise of time-spent by him.

Legislation:

Family Law Act 1975 ss.60B, 60CC, 61DA, 65DAA, 66CC

Applicant:

MR GARDINER

Respondent:

MS RIVERS

File Number:

DGC 395 of 2012

Judgment of:

Judge Lindsay

Hearing dates:

22 May 2013, 23 May 2013 and 24 May 2013

Date of Last Submission:

24 May 2013

Delivered at:

Melbourne

Delivered on:

24 January 2014

REPRESENTATION

Counsel for the Applicant:

Mr Gardiner in person

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Ms Rivers in person

Solicitors for the Respondent:

Not applicable

Counsel for the Independent Children’s Lawyer:

Mr O’Connell

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

ORDERS

(i)The children of the marriage X born (omitted) 2008 and Y born (omitted) 2010 do live with the wife.
(ii)The wife have sole parental responsibility for the said children.
(iii)The wife do all such things as may be reasonably required to facilitate the exercise by the husband of the following time-spent with the children namely:
(a) During school term;
a.On each alternate Saturday between the hours of 10am and 5pm commencing on the first Saturday of school term.
b.On each alternate Sunday between the hours of 10am and 5pm commencing on the second Sunday of school term.
(b)If Father’s Day falls on a day on which the husband is not otherwise exercising time-spent pursuant to sub paragraph (iii)(a)b hereof then and in that event on Father’s Day from 10am until 5pm.
(c)From 4pm on Christmas Day to 4pm on Boxing Day in 2014 and between such dates and at such times in each alternate year thereafter.
(d)From 4pm Christmas Eve until 4pm Christmas Day in 2015 and between such dates and at such times in each alternate year thereafter.
(e)At such further or other times as may be agreed in writing (such expression to include email) between the parties.

iv)That all time-spent pursuant to paragraph (iii) hereof shall commence by the husband collecting the children from the home of the wife and shall conclude by the wife collecting the children from the home of the husband at the conclusion thereof.
v)The husband be restrained and an injunction granted restraining him from causing or permitting Ms S to be present at or in the vicinity of any exercise of his time-spent with the children pursuant to paragraph [iii] hereof.
vi)The wife do forthwith advise the husband in writing of any significant illness or injury sustained by either child or any event requiring the hospitalisation of either child.
vii)The wife do all such things as may be reasonably required from time to time to authorise any medical practitioner upon whom either child has attended or the officers of any medical institution which either child may have attended to provide to the husband such information as he may reasonably request in relation to the attendance of either child upon that medical practitioner or medical institution.
viii)The wife do all such things as may be reasonably required to authorise the officers of any school which either child may attend to provide to the husband such information including newsletters, reports, photographs or other documents relating to either child as he may reasonably request and to authorise and permit the attendance of the husband at any parent/teacher interview or school function as he may wish to attend.
ix)The husband and the wife be restrained and injunctions granted restraining each of them from
a.Denigrating the other in the presence or hearing of the children or either of them or permitting any other person so to do.
b.Discussing any aspect of the proceedings in the presence of the children or either of them or permitting any other person so to do.

x)The husband and the wife do advise the other in writing of any change of their residential address or telephone number forthwith upon the happening of such event.
xi)The appointment of the Independent Children’s Lawyer be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

DGC 395 of 2012

MR GARDINER

Applicant

And

MS RIVERS

Respondent

REASONS FOR JUDGMENT

(As Corrected)

This is a contest in relation to the amount of time spent that ought to occur between a father and his two young boys, and a related issue as to whether his time-spent should be exercised in the presence of his de facto spouse and, if so, the terms upon which she should be able to be present when he exercises time spent.
The proceedings relate to two children, namely, X, born on (omitted) 2008, and Y, born on (omitted) 2010.
When I reserved my judgment, the wife was aged 35 years and the husband was aged 25 years.
The wife has a daughter from a previous relationship, namely, W, born on (omitted) 2001.
The parties commenced their de facto relationship in July of 2007 and separated on 12 October 2010, when the wife was some eight months pregnant with the child Y.
At the commencement of the proceedings, the mother was seeking orders which, essentially, sought an adjournment of the proceedings to ascertain whether a relationship could properly develop between the children and the father and to obtain more information in relation to the psychiatric and psychological condition of the husband’s de facto spouse. The husband’s de facto spouse is one Ms S. Ms S has a son, A, who, when I reserved my judgment, was aged approximately two and a half years.
The father sought substantial and significant time with each of the boys. He essentially adopted the submissions made by the Independent Children’s Lawyer (“ICL”) at the conclusion of the trial as to the way in which his time spent would be gradually increased.
The mother sought orders that the father’s time continue to be supervised by his father. The father sought that any provision as to supervision be discharged.
At the heart of the dispute was the question as to how the Court should respond to events that occurred on 26 March 2011. On that day, Ms S stabbed herself with a knife, occasioning quite serious injury to herself. She alleged that the stabbing had been carried out by the wife. She maintained that position for a period of approximately four weeks following the stabbing. During that time, the wife was the subject of a police investigation. I will obviously discuss that matter in more detail hereunder.
These are proceedings pursuant to Part VII of the Family Law Act 1975 as amended (hereinafter referred to as “the Act”).
Section 60B of the Act describes the objects of the Part and the principles underlying those objects.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that, in determining whether to make a parenting order, I am to regard the best interests of the children as my paramount consideration.
Section 60CC of the Act gives me considerable assistance as to how to carry out the exercise of ascertaining what is in the children’s best interests. The section directs me to have regard to two primary considerations:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The legislature has now provided, in section 60CC(2A), as follows:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The Act also describes, in section 60CC(3), the additional considerations to which I am to have regard in determining what is in the children’s best interests:
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Section 61DA of the Act provides that I am to apply a presumption that it is in the best interests of the children for there to be an order for the exercise of equal shared parental responsibility by their parents in relation to them. The section goes on to provide that the presumption does not apply if there are reasonable grounds to believe that a party has engaged in family violence (section 61DA(2)) or that it is not in the best interests of the children concerned for there to be such an order (section 61DA(4)). Manifestly, I will have regard to the matters referred to in section 60CC in determining whether the presumption does not apply in accordance with section 61DA(4). I will give consideration to those matters when I turn to my application of the section 60CC considerations to the facts of this case.
The legislature provides that if I make an order for equal shared parental responsibility, then I am to turn to section 65DAA and give consideration to a number of specific matters . Section 65AA provides:
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Consent orders
(6) If:
(a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b) the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
As indicated above, the parties commenced a de facto relationship in (omitted) 2007. They married in (omitted) 2009. At or about the date of separation, on 12 October 2010, the husband had entered into some form of relationship with Ms S. It is the belief of the mother that Ms S was significantly responsible for the demise of the marriage. It is the wife’s belief that the husband’s relationship with Ms S precipitated the demise of the marriage. The husband acknowledges that he had formed an attachment with Ms S prior to the separation of the parties. He acknowledges that the extent of that relationship had not been revealed to the wife by the day of separation but he disputes that his entry into a relationship with Ms S accounted for the demise of the marriage.
The bitterness of the wife in relation to the temporal coincidence of the end of her marriage and the commencement of the husband’s relationship with Ms S, occurring as it did when she was eight months pregnant with Y, remained a salient factor in these proceedings right up to the point at which I reserved my judgment.
Between October and December 2010 the husband spent some time with the children by agreement with the wife. The time was irregular. It was subject to the wife’s insistence, from time to time, that it be supervised. These last months of 2010 were characterised by a high level of disputation between the parties and between the wife and Ms S. The Court had before it an extensive amount of sms and email communication sent by the wife to Ms S and it is demonstrative of the level of distress on her part at the time and the degree of animosity that she harboured towards Ms S.

The husband’s behaviour during this period was also very poor. There were a number of occasions in which he behaved in an unnecessarily aggressive and provocative manner towards the wife. The wife was eventually obliged to seek the assistance of the police in obtaining an intervention order. An order was made in the Sale Magistrates’ Court on 14 December 2010 in the usual terms. It was an order made with the consent of the father but without him making admissions as to the need for the order or the facts said to substantiate the need for the order.
The level of disputation between the parties was such that by 18 December 2010 the husband had ceased to spend any time with the children.
The wife attempted to engage the husband in mediation in relation to these issues in January 2011 but he refused to participate. The reason he gave for not participating was his discomfort at the level of aggression the wife was exhibiting towards him at that time. He was also dissatisfied with the wife’s response to his proposal that his parents provide the supervision that the wife was insisting occur before she would facilitate time spent.
Whatever the reasons for his decision to refuse to participate in the mediation, it does not adequately explain or account for the circumstance that he did not exercise any time spent at all with either child until he was permitted to do so pursuant to an order of the Court of 19 March 2012 (after he had instituted proceedings in February 2012); in other words, it does not justify him allowing such a position to maintain for as long as that.
On 13 January 2011 the husband and Ms S sought their own intervention orders against the wife. In February 2011, that matter was resolved by way of the wife giving the usual undertakings (without admission of the need to do so) in relation to not communicating with them or approaching them.
I have noted that on 26 March 2011, Ms S stabbed herself and at the time of her being evacuated from her home by ambulance, indicated that the wife had been responsible. She repeated this allegation in a statement that she gave to the police.
On 28 June 2011, the wife obtained an intervention order for a period of twelve months against Ms S.
On 18 July 2011, Ms S was convicted of perjury arising out of her false allegations against the wife and other related charges at the Sale Magistrates’ Court. She was sentenced to a period of imprisonment of six months. She appealed that imposition of sentence and on 13 January 2012, the County Court allowed the appeal and instead placed Ms S on a community corrections order for a period of twenty-four months with certain conditions (relating to psychological treatment and alcohol use).
The father instituted his proceedings in the Federal Circuit Court on 19 February 2012.
On 19 March 2012, Bender FM (as she then was and whom I will hereinafter refer to as Judge Bender) made an order for the appointment of an Independent Children's Lawyer for both children. She adjourned further consideration of the matter to 19 June 2012. She also made a number of orders by consent. They included an order that the two children live with the wife and that the husband spend time with the children each Saturday from 9.30 am until 11.30 am with his time being conditional upon the presence, at all times, of the paternal grandfather, Mr Gardiner; and his not consuming alcohol for a period of twelve hours prior to or during the time that he spent time with the children. He was also obliged to ensure that Ms S did not come into contact with the children or within 50 metres of them.
The husband and the wife also entered into consent orders requiring them to attend a post separation program and to complete such program.
It was noted by the Court when it made these orders that it was the husband’s wish to spend more time with the children and he would be pursuing extended time on the adjourned date. The Court also noted the fact that the parties would be procuring information in relation to Ms S’s mental health and recent criminal history.
On 19 June 2012, Judge Bender set the matter for hearing on 7 November 2012 and made an order pursuant to section 62G for the preparation of a family report. One of the matters that Her Honour specifically asked the report to consider was the question of whether Ms S would exercise any time spent with the children, or either of them.
Her Honour also made an order that Ms S attend for a psychiatric assessment with a psychiatrist nominated by the ICL and at her cost. Her Honour also made a number of procedural orders. It was noted at the time the Court made these orders that Ms S has indicated to the ICL and to the Court her consent to the orders for her to be psychiatrically assessed and her willingness to meet the costs of that assessment.
The first report of the family consultant, Ms J, was provided on 1 November 2012.
The trial did not proceed on the appointed day of 7 and 8 November. It was instead adjourned on that day to 10 April 2013. The procedural orders were rescheduled.
The trial was unable to proceed because Ms S had not facilitated the preparation of her psychiatric report. The availability of that report was a fundamental requirement of the family assessment. Ms J noted at [64] of her first report that she was unable to make any recommendations as to whether Ms S should be present at any of the time spent arrangements until such psychiatric assessment was available.
Mr Gardiner had not attended the post-separation programme by the time that Ms J released her first report.
In these circumstances, the adjournment of the trial was inevitable. The wife joined in seeking the adjournment.
The hearing transpired before me on 22, 23 and 24 May 2013. By that time, a psychiatric assessment of Ms S (by Dr T) had been made available.
Both of the parties were, however, unrepresented by the time of trial.
The parties filed trial affidavits. In addition, the Court took the oral evidence of Ms S and of the paternal grandfather, Mr Gardiner. Each of the parties and Ms S were cross-examined. The Court also received the oral evidence of Ms J and Dr T, and a Dr J, psychologist, who had been providing some assistance to the child X and had also convened a (unsuccessful as it turned out for reasons I will describe hereunder) joint session with the parties in the presence of X.
I should also say I had before me an affidavit of psychologist who has been providing Ms S with assistance, namely a Ms K. Her report which is dated 30 October 2012 was before me by consent. She was not required for cross-examination. Ms S attended upon the psychologist on the referral of her general practitioner Dr Y who has prepared two mental health plans on her behalf. They were also before me.
The information in Ms K’s report does not tell me any more than I knew from Ms S’s own evidence and from the family report writer, Ms J.
I also had before me a medical report of Dr A himself dated 9 October 2012 (in fact it was an attachment to the trial affidavit of the wife).
Dr J was a psychologist to whom the wife had taken X in September 2012 on referral from her general practitioner. Dr J was an impressive witness. He was impressive both as to the information he provided about the child’s difficulties and, also, in respect of the initiative he took to address what he identified as the matter that was most significant in compromising X’s emotional welfare and that was the chronic state of disputation between his parents.
He arranged for the husband and wife to attend jointly before him to discuss matters relating to X. X was also present. It was a worthy initiative to take. Unfortunately, as Dr J indicated in his evidence, the wife’s conduct during the course of the joint session made it such that Dr J regarded the father’s decision to leave the session in those circumstances as being justified. Clearly, the wife was unable to restrain herself from ventilating her resentments about the conduct of the husband both during the relationship and, of course, in leaving her when she was eight months pregnant with X’s brother.
The wife’s conduct in this regard certainly caused the court to consider what the level of argumentativeness has been on the part of the wife with the husband on those occasions when her conduct was not being monitored, i.e. away from the presence of a medical practitioner convening a session.
Dr J was of the opinion that supervised time with the father should continue. He was not in a position, of course, to offer any opinion as to the appropriateness of the attendance of Ms S at such sessions. He was able to put in an appropriate psychological context the behaviour of X in biting his younger brother and in otherwise exhibiting behavioural disorders upon his return from time with his father.
Dr J believed such behaviours (as reported by the wife) were the child’s way of ventilating his confused feelings about the state of his family and the state of disputation between his parents. I am of course paraphrasing in lay terms Dr J’s evidence but he gave what I thought was acutely insightful evidence as to the child’s predicament.
Dr T was the psychiatrist upon whom Ms S attended for the purposes of the preparation of a report. This was the attendance that she did not arrange when ordered to do so by Judge Bender and the failure to do which necessitated the adjournment of the trial in November 2012.
One-off attendances upon a psychiatrist for the purposes of a psychiatric assessment and the expression of opinions by a psychiatrist arising from such attendances are of inherently limited value. The principal limit to the utility of the reports is the extent to which the psychiatrist relies upon self-reporting by the interviewee.
There is no doubting Dr T’s qualifications and expertise in the field of psychiatry. But cross-examination of him brought to a particular focus this inherent limitation in respect of such written opinions.
There appeared to be some gaps in his information relating to Ms S’s background. It was clear from the cross-examination conducted by the ICL’s counsel that, whilst he knew about a suicide attempt Ms S had made after her own father committed suicide, he was unaware of a number of subsequent suicide attempts by Ms S. Information in relation to the subsequent attempts was somewhat limited but references to them were before the court.
Firstly, there were the mental health plans of Dr Y of 29 April 2009 and 10 May 2011. Dr A’s first mental health plan refers to five previous suicide attempts and to those attempts having been associated with alcohol. This summary of the number of suicide attempts is replicated in the second mental health plan he prepared for Ms S. The reference to five suicide attempts in the latter document would appear not to take into account the events of March 2011. Either Dr A does not regard the stabbing at that time as a suicide attempt or the earlier calculation of the number of suicide attempts has just been transposed to the later mental health plan.
In any event, Dr T was previously unaware of this and had to fashion his responses to this information whilst giving evidence before me (over the telephone). This absence of information and opportunity for him to properly reflect upon it undermined to some extent my ability to rely upon the opinions he expressed about Ms S. I do not mean to be unfair to Dr T. On the basis of a single session with Ms S, he is asked to opine as a whole range of matters, and the fact that he is willing to express an opinion and to try to assist the court with these matters should not be taken as any indication of his lack of awareness of the inherent limitations of the value of the exercise in which he was involved.
Dr T was certainly clear that if she was to realistically come to grips with her psychological frailties, Ms S would have to abstain from alcohol consumption altogether for a period of at least two years. He expressed the opinion that “from a psychiatric perspective”, Ms S was not a risk to the children of these proceedings. He was aware of and gave some weight to the fact that she had, apparently successfully, exercised responsibility for her own child, A. A is the child of a previous relationship. He also expressed the opinion in his report that:
The stabbing incident is not part of a series of self‑harming or violent behaviour to others.
To the extent that the sentence appears to be indicating she has not previously self‑harmed, it would not appear to be correct.
The circumstances at the trial, with both parties being unrepresented, were such that Ms S’s evidence had to be elicited in chief. I had no affidavit from her.
The father’s own father, Mr Gardiner, gave evidence. He is someone in whom the wife has reposed some confidence. There appears to have been a relatively good relationship between the wife and Mr Gardiner senior which has survived the separation of the parties. Mr Gardiner senior clearly had a view that the parties’ inability to put aside their personal hostility to enable the children to experience their parents behaving civilly towards one another had been a very disappointing aspect of their parenting and was unlikely to improve in the future. The wife reposed confidence in him as a supervisor and continued to do so, and in my view, she was justified in doing that.
One aspect of Mr Gardiner senior’s evidence that concerned me was the extent to which he was evasive as to what his state of belief was in the period following Ms S making the allegations that the wife had stabbed her until the point (approximately four weeks later) where the police charged Ms S with perjury. It was very difficult to extract from him what his bona fide view was as to the accuracy of Ms S’s allegation. It seemed to me that the allegation was one that from the outset Mr Gardiner senior should have considered inherently incredible or, at least, was one about which he should have been highly sceptical. Mr Gardiner senior would have been very well aware of Ms S’s alcohol consumption, if not on that particular night, then generally.
My concern about this aspect of his evidence is something that I also have in relation to his son’s evidence. The husband did not appear to be genuinely attempting to give me an honest account of his reaction to the allegation when he first heard it or his attitude to it in the weeks following. He effectively claimed that until he was called in by the police so as they could acquaint him with the fact that they regarded Ms S’s allegations as false, he was not aware of the false nature of the allegations. That is something I have reason to doubt. I think, though I cannot make an explicit finding about this that both the husband and his father have some level of guilt about the extent to which they did not more directly challenge Ms S as to the veracity of the allegation she made about the wife.
This in turn raises concerns with me as to the extent to which they are giving me a frank account of the suitability of Ms S as a person to be present at or contributing to the exercise of parental responsibility by the husband on the occasions the children are with him.
Ms S gave evidence. I thought that she was, generally speaking, a reliable witness, though I have formed the view that she was underestimating the level of her alcohol consumption. She gave evidence as to the apology she wished to proffer to the wife in respect of the effect of her conduct upon her. There had been an earlier apology (a document in her own hand) proffered through the solicitors who were representing her in the criminal proceedings. Neither that written apology nor the in‑court apology she gave (with the encouragement of the independent children’s lawyer) struck me as emanating from any real sense of contrition on the part of Ms S. It is apparent that the ill will she exhibits to the wife (fully reciprocated by the wife) is profound and has not improved at all with the passage of time and is unlikely to improve.
Her evidence indicated that at no stage following the making of the allegations by her was her account of events seriously scrutinised by the husband.
I must remind myself that the making of an allegation of this kind and persisting with it through the giving of a sworn statement to the police and for some weeks after is a very serious matter and very singular behaviour. Whether or not the decision to make the false allegation was one reached peremptorily by Ms S after she had carried out the stabbing and arose out of concerns that her self‑harming might put at risk her ability to continue to care for her son A, her persistence with this false story for as long as she did and her willingness to lie on oath about it to the police do raise serious concerns about her conduct in the future and in relation to her emotional stability. It is a profoundly dishonest course of conduct on which she engaged.
Obviously there are two aspects of the conduct that concern the Court in considering her presence at the time of exercise of parental responsibility by the husband or her participation in it. The first is the making of the false allegation itself and the related issues as to the depth of her ill feeling towards the wife; the second is the physical risks presented to the children on account of someone who has a history of self‑harming and is able to muster the determination, whilst drunk at least, to stab herself in her abdomen.
Ms S’s unwillingness to accept responsibility to carry out the obligation placed on her by Judge Bender’s orders to obtain a psychiatric assessment was very disappointing. Her unwillingness to completely eschew alcohol for a period of time whilst undertaking her course of therapy with Ms K is also disappointing.
I accept Dr T’s distinction between suicide attempts and what he described as para-suicide attempts, and I also accept the possibility, if not probability, that Ms S’s conduct both on the March 2011 occasion, and on the other occasions that are referred to in the material I have set out above, may well fall into the para-suicide category. But it is undoubted that they have involved infliction of injuries upon herself. One of them at least was accompanied by a suicide note.
She has plainly suffered from depression over many years since the suicide of her father. She continues to confront a serious vulnerability to depression which may well continue to manifest itself in self-harming activities of possibly a greater degree of seriousness in the future. This quite naturally gives rise to concerns on the part of the wife as to the risks of the children being exposed to her self-harm or being at risk of harm themself from her. I readily acknowledge that there is no evidence of her having physically harmed anyone else, including obviously her own child. I also note Dr T as to her not presenting a risk “from a psychiatric perspective” in this regard.
But her behaviour – and I mean the self-harming behaviour coupled with the promotion of the false allegation against the mother – is an unusual mixture, and the human psyche being what it is, it is difficult to predict the level of risk involved in her being a presence at the time of the interaction of the father and the children.
I also bear in mind, of course, that even without the incident of her being falsely accused by Ms S, the wife would continue to have near-visceral levels of contempt and dislike for Ms S. The level of her ill-feeling is amply demonstrated in the considerable quantity of, and the character of, the email and sms communication made by the wife to her in the months following the separation of herself and the husband.
It is important to bear in mind, though, that from the time at which Ms S and the husband sought an intervention order, there has been no such inappropriate communication between her and Ms S, but it is also appropriate to take into account the circumstances of the separation being that the wife was some eight months pregnant. These matters explain to some extent – but obviously to not excuse – the nature of her communications with Ms S at that time.

I was greatly assisted by the information and insights provided by the family consultant, Ms J, whom, it will be recalled, prepared the reports. She was methodologically sound and measured and fair in her assessment of the parties.
Her first report recommended that the parents have equal shared parental responsibility and that the children live with the wife.
If the allegations as to his violence were not established, she recommended that supervision only be required of his time-spent because of the age of Y. She recommended that the time-spent be ordered to occur in the substantial presence of his father until Y was three years old, and be on a day-time only basis initially, progressing to overnight after six months, and then to two nights consecutively when Y was three and a half years of age.
She was unable to make a recommendation on the question of Ms S’s presence at time-spent because of the absence of the psychological report.
An example of the insight she brought to the dynamics of the situation is set out at [58] of her first report.
From my observations and information Ms Rivers appears to work hard to meet the intellectual and day to day emotional needs of X and Y. At this stage it is difficult to assess as to whether Mr Gardiner is able to meet the intellectual and day to day emotional needs of X and Y. One concern is how he is able to manage the issue of what Ms S did knowing that this may have been indirectly harmful to X and Y and that Ms S was prepared to go to such lengths to cause harm to Ms Rivers which subsequently could have been devastating to X and Y. It is my view that at some time in the future X and Y may learn about what happened and then they will both need to deal with this information but if Mr Gardiner and Ms S are still together then this may cause X and Y much anguish.
Her second report dealt only with the Ms S issue, in the light of Dr T’s opinions. She identified no reason not to fall in with the conclusion he expressed in his report that she was not a risk to the children. She could not realistically have done otherwise. She recommended the introduction of Ms S to the husband’s time-spent with the children on a gradual basis, which she particularised in some detail.
I turn to the section 60CC considerations.
Without going into a close analysis of the use of the expression “meaningful” in section 66CC(2)(a), I think it can be clearly said that the time currently permitted for the children to spend with their father does not give them an opportunity for a meaningful relationship with him. The expression must be applied in the context of what potential the relationship has to be of benefit to the children and to provide emotional nourishment to the children if it is allowed to flourish.
The orders of 19 March 2012, it will be recalled, provide for the boys to spend two hours on a Saturday with their father in the presence of their grandfather and in the absence of Ms S.
Two hours per week does not allow a child to experience a meaningful relationship with his father. A continuation of the existing order as to the amount of time such arrangement would provide and the regularity of the interaction between child and parent would, then, not provide an adequate recognition of the first of the primary considerations.
The other primary consideration is the one that must be given predominance in any weighing exercise between the two of them, however. The orders I make must, as far as possible, ensure that the children are not subjected to abuse, neglect or family violence. The risks towards which the mother points are, firstly, those which pertain solely to the father and which focus upon his excessive alcohol use, his manifest lack of experience with the parenting of the child Y, and other evidence raised by her which was led for the purpose of tending to suggest that his commitment to the relationship with his sons was weak and intermittent. Secondly, in terms of the risks presented by the presence of Ms S during any period of time spent, the mother pointed to risk of actual physical abuse – i.e., to the possibility that, in a depressive episode accompanied by or preceded by the use of alcohol, Ms S might do something yet more unpredictable and harm the children instead of or in addition to herself. More realistically, though, she pointed to the possibility of Ms S only self-harming in the presence of the children.
If I were to exclude Ms S from the time which the husband spends with the children, that in itself gives rise to a consideration as to how meaningful the father’s time would be with them – i.e., if it is spent in some non-domestic environment, removed from the real circumstances of the husband’s life.
The matters the mother pointed to as risks arising from the time with the father himself were matters that went to, she said, the need for supervision and the duration of and frequency of the time spent.
It is important in dealing with cases of this kind, which have a history that includes some very peculiar and serious events, not to respond in an overly cautious or irrational way to the perceptions of possible harm that might inure to the children. The psychiatric opinion of Dr T, the psychological opinion of Ms K, and the evidence of Ms S and of the husband – and, to a lesser extent, of his father – point to Ms S having settled down emotionally and of her not having any kind of propensity to either behave in a way that was either directly or indirectly harmful to the children.
The wife in these proceedings hardly brings an element of dispassion or objectivity to her own evaluation of the risks. As I remarked above, her antipathy to Ms S would be of an extremely high level even had the March 2011 incident never occurred. This is not a case where I can put significant value or trust in the assessment of the children’s principal caregiver (the wife) as to the magnitude of the risk. It is a matter of making my own independent judgment about that, based upon all of the evidence that is available to me.
I am apprehensive to some degree about Ms S having an ongoing opportunity to spend time with the children, or perhaps it would be more clearly expressed as me saying that I have an apprehension about her being continuously or regularly present in the household in which the children continue to develop a relationship with their father. My apprehension is grounded to some extent upon my inability to consider that the husband gave me a frank account in the witness box of his initial response to the false claims by Ms S. Furthermore, there was some casualness associated with his evaluation of the impact of all of these matters upon the children.
I proceed upon the basis that he continues to drink at a reasonably high level. That was a conclusion I reached upon the basis of the wife’s allegations, his evidence in cross-examination, and the evidence of his father. That adds to my sense of apprehension as well. It adds to my sense of apprehension in that any possible risks presented by Ms S would not necessarily be matters which we can assume the husband would take seriously, or that he would act preventatively in relation to.
There remains too the uncertainties associated with Ms S’s motivation for stabbing herself and blaming the mother. Because the incident occurs in the context of use of gross amount of alcohol, it is difficult to know whether the matter was, in a sense, premeditated at all. Ms S has given us an explanation why she reached for the wife in identifying a perpetrator – her concerns that the child welfare authorities would regard an incident of self-harm of this magnitude as one which would compromise her ability to continue to care for her son, A. She has on other occasions, and more frequently, (to Ms J, to the husband, to Ms K and Dr T) given an explanation which focuses upon the amount of stress she was under in terms of the hostility of the wife towards her and the extent to which her relationship with the husband was complicating his ability to exercise time spent with the children at all.
I am striving to give some account of the kinds of matters which I am considering in having regard to the two primary considerations, and I bear in mind the provisions of section 60CC(2A) in considering the relative weight to be given to each of them.
I turn to the additional considerations:
The views of the children are of no relevance. Y is obviously not of an age where he can form or express any meaningful view. No meaningful information in relation to any view X has as to any of the issues in dispute was put before me, and that is unsurprising given his age and given the evidence I have from Dr J as to the predicament he finds himself in, being at the fulcrum of a toxic relationship between the households of his two parents.
It is clear on the evidence that the mother is closely bonded with both children and that, apart from her inability to quell her ill feeling towards the children’s father in their presence, is able to provide appropriate physical and emotional nourishment of them (s. 60CC(3)(b)). There was clear evidence before me that she took the view that it was not inappropriate to discuss matters relating to her feelings about the husband, and I infer on the evidence, Ms S, in the presence of the children and more particularly in the presence of X, who can understand what she is saying and the feelings on her part which generate what she is saying.
I am pessimistic about the mother’s ability to bring to bear any discipline in relation to this behaviour. There is no other candidate in terms of a person with whom the children will live. So it is a matter of the Court having to frame orders which have the effect of mitigating the effect of her behaviour in terms of the disadvantages it provides to the future emotional development of the children.
The evidence of the family consultant satisfied me that there is the basis of, at least, a sound relationship between X and his father and even between Y and his father.
Even if I assume the safety of the children in Ms S’s presence, there is nothing before me which enables me to find anything one way or the other about the nature of her relationship with the children other than that she has had no opportunity of being in the presence of the children at all.
Mr Gardiner senior is someone who in his limited role as supervisor and on other occasions when the wife has facilitated it, obviously interacts appropriately with the children. I accept he has an interest in their welfare. I accept his evidence that his first instinct upon hearing of the allegations of Ms S was to travel to the home of the wife to ascertain that the children were being cared for appropriately.
There is no satisfactory excuse provided by or on behalf of the husband in the evidence before me to explain why it was that from December 2010 until March of 2012, he was content to exercise no time-spent with the children at all (s.60CC(3)c)). I accept that by December 2010, the wife was behaving in such an unpleasant and at times hysterical manner that it was extremely difficult for him to make any proper arrangements to exercise time spent with the children. There is ample evidence of that.
What is not clear, though is why he was then content to wait a further 15 months before taking any meaningful steps to exercise some time spent. It will be recalled that he did not even elect to participate in the section 60I mediation which the wife tried to organise in January of 2011. This is suggestive of him prioritising his relationship with Ms S over his relationship with the children. His subsequent delays indicate that his focus continued to be on Ms S’s predicament (including her legal predicament) rather than upon the children.
I accept that he may have come to make that decision in the context of his opportunity to have a relationship with the children becoming increasingly vexed on account of the behaviour and attitude of the children’s mother, but looking at the matter from the children’s perspective, it makes no difference why he did not see them: he has not taken any steps to further his relationship with them Even more puzzling is his continuingly supine attitude towards making any proper arrangements for time-spent after it has become plain that Ms S has made a completely false allegation against the wife.
Perhaps these matters were simply beyond his emotional and/or intellectual resources to deal with. It is difficult to know. But it has had the result that there has been little opportunity for him to bond with either of the children, and this of course, is especially important in the context of the age of the child Y.
The evidence satisfied me that the husband’s satisfaction of his obligations to financially support the children is haphazard (s.66(3)(ca)). It is not a matter about which he appears to me to have any sense of commitment. I accept that he has had regular changes of employment since separation (though the extent to which those changes of employment are a function of his lack of commitment to his employer and/or his drinking is a matter which is unclear) but I am concerned that once the proceedings are concluded and his fulfilment of his obligation to pay child support is not being scrutinised in the context of his own time-spent application, the absence of an imperative to remain reasonably up to date with his child support obligations will disappear.
On the applications of the husband, the only change in the children’s circumstances that are contemplated is more extensive time with their father (this time extending over a period of time) and the increasingly more regular presence of Ms S upon that time spent (s.60CC(3)d)).
In terms of the difficulties of the exercise of time-spent, that simply expresses in another form the issues that arise from whether Ms S ought to be quarantined from attending at any time spent between the father and the children. There are no other particular matters that arise on the evidence relating to practical difficulty and expense. The parties live essentially in the same area. If supervision is ordered, it can be readily given, and given appropriately, by Mr Gardiner senior (s.60CC(3)(e)).
If the Court came to a conclusion that the supervision should continue indefinitely, that would, though, give rise to practical considerations. If the only way in which the children’s welfare can be guaranteed is for the continued operation of supervision, that then raises questions as to whether there will ultimately be any adequate level of meaningfulness in the relationship between the children and the father.
The wife’s capacity to provide for the emotional needs of the children (s.60CC(3)(f)) are quite significantly compromised by her inability and/or unwillingness to exercise any degree of self-control and responding to the difficult circumstances in which she has found herself. By “difficult circumstances” I mean not only the false accusation of Ms S but also the separation of the husband from her and his forming a relationship with someone who was formerly her friend, these matters occurring when she was eight months pregnant with their second child. These matters form the background to the extremely hostile attitude she has taken towards the father and Ms S but they do not excuse it. Especially alarming was her view (revealed in her cross-examination of Ms J) as to the desirability of the boys being informed of Ms S’s role in the breakup of their parent’s marriage. She is otherwise able to meet the needs of the children.
The father’s ability to meet the needs of the children is untested and, on the basis of the evidence I have heard, I retain a reasonably high degree of reservation about his commitment to the children in the long term. This is a matter that puts their emotional welfare at risk. If we are to continue to oblige the children to undergo transition from one household to another in these vexed circumstances, we would want to be sure that the ultimate goal of that exercise is not going to dissolve, i.e., that we will not have gone through such a process only to discover that the husband had a lack of commitment to accepting his parental obligations towards his sons.
In terms of any particular characteristics of the children, I have regard to the evidence of Dr J in relation to the behavioural problems that the child X has exhibited since separation and the reasons he gave for them (s.60CC(3)(g)).
Section 60CC(3)(h) does not arise on this case.
In terms of the attitude to the children and the responsibilities of parenthood (s.60CC(3)(i)), the matters relevant here are those I have already discussed under the aegis of subparagraph (f), subparagraph (b) and the primary considerations.
The wife’s allegations of family violence (s.60CC(3)(j)) focussed upon her husband’s verbal abuse of her during the relationship and after it and his use of disrespectful and insulting language. I accept in general terms her evidence as to these matters. The evidence of any physical abuse of her by the husband was negligible and, frankly, was not seriously pressed. His discourtesy and disrespectful use of language towards his children’s mother is, of course, a very serious matter and is probably unlikely to vanish (especially with his on-going alcohol use), although it will have already significantly abated with the length of separation and the absence of occasions for use of the language. The children are unlikely to experience it on a regular basis. Tensions will continue to be very high between the husband and the wife, though, and this may provide an ongoing source of fuel for this kind of conduct.
Each of the parties have sought and obtained intervention orders at different times, and I include Ms S in this. The wife was first obliged to obtain an intervention order against the husband; the husband and Ms S then obtained intervention orders against the wife, and, of course, the wife had every reason to seek and obtain, and has sought and obtained, intervention orders against Ms S in the light of her conduct towards her which order has been extended, to the court’s knowledge, on at least one occasion (s.60CC(3)(k)).
The Court is obliged (s.60CC(3)(l)) to give consideration as to whether it would be preferable to make it the order which would be least likely to lead to the institution of further proceedings relating to the children. It is a two-step process: it is a matter of identifying whether there is an order that will be more likely to make further proceedings unnecessary or unlikely; if such an order can be identified, then it is a matter of determining whether it would be preferable to make such an order. That latter part of the exercise presumably involves us in assessing whether the benefits that will inure to the children from no longer having parents who are engaged in litigation with each other (with all the diminution of stress within the respective households that the end of litigation implies) is to be preferred, having regard to any advantages that might inure from the court having the opportunity to continue to invigilate the circumstances of the children. It is a subparagraph of s.60CC which is, in this case, of some significance. The Court would be clearly assisted by information being provided to it at a future point that would arise from the effluxion of time (and the sustaining of the proceedings) as far as Ms S’s psychological treatment, abstinence from alcohol and relationship with the husband and with the children is concerned. That would be the ideal. On the other hand, as noted, there is a benefit to the children from the end of the litigation. Quite apart from the benefit to the children and the parties, there is a public interest in quelling these disputes in a final sense. These households should not expect to be the object of ongoing invigilation in the context of judicial proceedings.

There are no specific matters to which I have had regard that have not already been canvassed in my consideration of the other aspects of s.60CC. (s.60CC(3)(m)).
Having taken account of the matters referred to in s.60CC I do not propose to make the order for equal shared parental responsibility sought by the ICL and the husband (the wife’s position was ambivalent and not necessarily oppositional). These are my reasons.
a)Parental responsibility has never been exercised by the husband at all in relation to Y, in the circumstances of the matter. The husband was wholly disengaged from Y’s life for nearly all of the first seventeen months of it; between December 2010 and February 2012; the same position maintained with respect to X. The husband is not accustomed to exercising it. The wife is not accustomed to consulting him in relation of any aspect of it;
b)The level of communication between the parties is dismal; until it ceased altogether with the involvement of the police (by them both) her sms and email communication, with him, was highly disrespectful and replete with shameful and abusing language. Mr Gardiner senior’s evidence confirmed that the communication between the parties remains very poor. Dr J’s experience confirmed that Ms S’s involvement is still a salient aspect of the entire dispute in which the children are involved. All of this suggests that the communication between the household is very unlikely to improve. None of the three key dramatis personae seemed to be capable of any degree of honest self-assessment and so this position is unlikely to improve.
c)I did not form the impression that the children are yet a matter of compelling priority for the husband. I hope that I have not been unfair to him in forming this view, but it arises from my observation of him in court (giving evidence and also as his own advocate, the latter role also being assumed by the mother, so he was not thereby especially disadvantaged in my making this assessment) and his conduct during and after separation. That being the case it does not seem sensible to me to add to the existing predicament of the children another layer of difficulty arising from the conflicted communication and consultation between their parents about them.
At the conclusion of the trial the ICL recommended:
(1)As to the father’s time-spent with the children:
(a)for one year each Saturday between the hours of 10.30am and 5pm of each Thursday between 4pm and 7pm; on the basis that Mr Gardiner senior is substantially present;
(b)for a period of three months from 10am on the Saturday to 10am on the Sunday on the basis that Mr Gardiner senior is substantially present;
(c)for a period of six months from 10am on the Saturday to 10am on the Sunday;
(d)on alternate weekends from 3.30pm on the Friday to 5pm on the Sunday;
(e)on alternate weekends during Christmas holidays from the 2013-2014 school holidays onwards (noting that these holidays have already commenced;
(f)for one half of the Christmas school holidays commencing 2014-2015;
(g)for other times during non-Christmas school holidays, the calculation of which is not clear to me;
(h)on special occasions such as birthdays and Christmas at specified times;
(2)That Ms S be entitled to be present provided that the time of the making of such orders she give a signed undertaking to the ICL as to the following matters:
(a)abstaining from alcohol for a period of two years from the date of the orders;
(b)attending such counselling as her general practitioner recommends for a period of not less than twelve weeks.
(c.)a series of orders facilitating and requiring the transmission of information relating to the childrens’ schooling and medical treatment.
(d)a series of injunctions in relation to the physical disciplining of the children, non-denigration of the other parent and information relating to any change of address.
I think that is important to try to disentangle (as much as we can) the issues of the husband’s time with the children and that of Ms S’s presence at such time.
Y is three years old now. I do not see any considerations which require the husband’s time to be supervised hereafter (unless it be to ensure that he complies with any order enjoining him from permitting Ms S to be present when he exercises time-spent). Ms J did not see the need for even the substantial presence of Mr Gardiner senior after Y reached the age of three years. Neither did the ICL. Neither do I. I have concerns about the husband’s commitment to the children; I have concerns about the degree of casualness he brings to exercising parental responsibility which may carry on into his physical care of the children but not, I think, to the point of neglect of them during time-spent and during day-time-spent in particular at this point.
X will soon be six years old.
Overnight time raises other issues. The husband has no experience whatsoever of Y on such a basis and very limited experience of X on such a basis. On his own account he had limited involvement in the daily care of X before separation – some involvement, of course, but limited involvement.
The wife has shown no capacity to restrain the expression of anger and other emotion by her in the presence of the children at times and has had difficulty in understanding the extent to which the children, and X especially because of his age, are affected by her emotional indiscipline and this despite Dr J’s clear description of how the child has responded to his powerlessness to deal with the anxieties this has given rise to in him. I am not optimistic about her capacity for gaining any insight into this. She seems committed to a future where her resentment and bitterness towards the husband (and Ms S) will continue to be on full display to both of the children, whatever the impact that has upon them.
In such circumstances, the Court should be careful when framing orders not to reward such behaviour on her part. True it is that the children will benefit if the person exercising overwhelming preponderant responsibility for them is herself satisfied and confident about the safety and wellbeing of the children during time-spent with their father. Her reasonable apprehensions should be given recognition, including those relating to Ms S; but her unreasonable and self-indulgent concerns should not be.
I am in a state of concern about the risks to the children of the involvement of Ms S in the exercise of time-spent by their father.
Dr T’s evidence did not assuage my concerns. He did not know about previous suicide attempts by her. The Court itself still has very little detail about any of them. Much of his confidence about the welfare of the children in her presence was based upon the inference he drew from the fact that nothing had been alleged by anyone about her care of her own son. Certainly, nothing was brought to the Court’s attention. But the welfare of that child was not being invigilated by the Court. The husband is unlikely to have volunteered any adverse information he had. Mr Gardiner senior is more likely to have done so but less likely to have had access to such information.
We have the reassurance provided by knowing that the DHS scrutinised the circumstances of her and the child after the stabbing incident; we also have the fact that Correctional Services had been monitoring her at that time too; and of course we have Ms K’s ongoing role.
But Ms S’s depressive condition is of long standing. It has required hospital admission on a number of occasions. Her uncle contacted the (omitted) Hospital expressing concerns about her (in the context of alcohol consumption) on the 21^st July 2011. The wife knew this from her accessing hospital records (and she put the information so procured before the Court – see [110(f)] of her trial affidavit). It was not denied by Ms S. Her attempt to down play the basis of the uncle’s concerns was not convincing.
I am sceptical about the level of support – real support – she receives from the husband about her difficulties. She was left alone by him at home on the night in March 2011 when she stabbed herself. The husband spent that evening at hotels drinking with his friends. She was already ruminating about the loss of her father some years before. Her social media postings (annexed to the wife’s affidavit) demonstrate a strong sense of grief on that night and of loneliness. Yet she was left alone.
The self-stabbing on that night was a serious event. The false allegation that the wife was the perpetrator means that the events of that night assume an even greater level of seriousness. Her persistence in her false accounts over the following weeks, including the giving of her perjured statement, is even more alarming.
The wife’s hostility to her will not abate (although the wife was being disgracefully abusive and disrespectful to her long before the events of March 2011).
I do not think Ms S has a commitment to stop her drinking. That she needs to be totally abstinent from alcohol is unrecognised by her despite the history of the last six years. Her attitude surprised Dr T who thought it was clear that total abstinence for a period of at least two years was required. The undertaking she instructed the ICL she would proffer at the time I made by orders being an undertaking not to drink for that period of two years, cannot, of course, be monitored. It is an ICL initiative rather than her initiative. I do not think she will comply with it.
The children are at some degree of risk from interacting with her. I do not want to overstate the risk but she may well again, if drinking and unsupported emotionally by the husband, self-harm or essay self-harm while the children are within her household. It is an unlikely but not a remote possibility. On the other hand, her harming the children directly is a remote possibility. Her behaviour in March/April 2011 was very singular behaviour. The wife is entitled to be apprehensive.
I must look at the issue from the perspective of the benefits of the children in determining whether the unlikely possibility referred to above should be risked. Her being present would enable the husband’s time with the children to be more meaningful in the sense that the children will experience him in a domestic and more natural environment with his companion and her child present. But neither of the children know her. Their mother is highly anxious about her. There is some degree of risk (described above) that arises from her presence.
On balance, I consider that the time-spent exercised by the father should continue to be in her absence. That is my evaluation of the matter from the perspective of the children’s best interest on the current state of the evidence.
In relation to the husband’s time-spent, I consider that it should be increased to a day’s length – 10am to 5pm on a Saturday and Sunday alternating. That kind of regularity of time with both children, Y especially is surely required. I do not see any benefit to the children in it extending to overnight periods.
There is no evidence of his having acquired any domestic skills that would benefit the children. Applying the s.60CC criteria in accordance with my discussion of them, I discern no benefit (and some degree of risk) to the children in overnight time. Ms S, I am prepared to infer, given her long-term experience with her own child, would have more such skills but she will not be present. That would have been another benefit (in addition to the more nature setting for the time-spent) which would have followed from her being allowed to be present. But in my view the safety considerations described above must prevail.
Can the husband be trusted to comply with the order I propose to make restraining him from causing him or permitting the children to be in the presence of Ms S? The matter is not free from doubt. There was a glibness about his answers in cross-examination at times which may be associated with an attitude which fails to recognise the importance of respect for the authority of the Court. But X is of an age where he would be likely to report her presence to his mother and she, we can be assured, will be vigilant about the issue. I consider that the time‑spent can occur without the supervision or substantial presence of the husband’s father (whom I expect, however, will keep in regular contact with the children in any event). Because I am not making an order for equal shared parental responsibility, I am not bound to give consideration to equal time or substantial and significant time or their reasonable practicality as I would have been required to do if I had made such an order (s.65DAA). I do not consider that substantial and significant time is consistent with the best interest of the children at the present time in any event, for reasons I have discussed. Overnight time is not indicated as bringing benefits to the children; work commitments of the father and the waxing and waning nature of his commitment to the children do not indicate that involvement in their school time and other routines would bring them benefit. Equal time is not feasible for obvious reasons – those relating to Ms S, his lack of experience in caring for the children, the failure by him to develop his relationship with the children – these are some of the reasons why. The fact that he never sought such an order is another (even if a less significant) reason.
I would order that the same alternating Saturday/Sunday day-only time continue during school holiday periods. As confidence grows in the husband’s commitment to the children and in his parenting generally, the wife may agree to more extensive time-spent. But I do not think it is in the best interest of the children to order it now.
The special occasion time-spent arrangements proposed by the ICL are sensible and neither of the other parties spoke against them. The same applies in relation to the exchange of medical and educational information and the injunctions sought.
I order accordingly.

I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Date: 21 January 2014

Corrections

(1)In Order (iii)(b) the sub paragraph referred to is sub paragraph (iii)(a)b.

[2014] FCCA 76

24 January 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction