Glasson & Drover & Anor

[2014] FamCA 1191

FAMILY COURT OF AUSTRALIA

GLASSON & DROVER AND ANOR   [2014] FamCA 1191

FAMILY LAW – PRACTICE AND PROCEDURE – Expert evidence – where the applicant sought permission to adduce evidence from a second expert – where the applicant sought in the alternative an order for provision of documents to the expert and permission to extend the time for questions of the existing expert – where the respondents oppose the order – where the applicant took issue with parts of the single expert’s report – where it is ordered that the applicant may provide relevant documents to a second expert in order to seek advice from another expert in the field.

FAMILY LAW – CHILDREN – Interim parenting – where the applicant sought a variation of interim parenting orders – where the respondents oppose any changes to interim orders – consideration of the best interests of the child – where no variation to the current parenting regime is ordered.

Family Law Act 1975 (Cth) ss 60CC, 60H, 61DA & 66(2)

APPLICANT: Ms Glasson

RESPONDENT:   Ms Drover

SECOND RESPONDENT: Ms Knight

INDEPENDENT CHILDREN’S LAWYER: Ms Shedden

FILE NUMBER: SYC 2293 of 2014

DATE DELIVERED: 22 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 22 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

COUNSEL FOR THE INTERVENOR: Mr Dura

SOLICITOR FOR THE INTERVENOR: Mills Oakley Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

Orders

1. Leave is granted to Mr Batey of Counsel to appear on behalf of the Applicant.

1. Not later than 21 January 2015 or such later date as the parties agree the applicant advise the solicitors for the respondents and the Independent Children’s Lawyer of the subpoena material she seeks to be provided to Dr B to assist in her advice in these proceedings.

1. Not later than 14 days thereafter (4 February 2015) or such later time as the parties agree the solicitors for the respondents and the Independent Children’s Lawyer advise the applicant whether there is a dispute in relation to the identified material.

1. In the event that there is no dispute leave is granted to the Independent Children’s Lawyer to have photocopy access to the relevant material and it is requested that the Independent Children’s Lawyer prepare two copies of the relevant material and to provide one copy of that material to Dr B and one copy of that material to the solicitor for the first respondent.

1. Leave is granted to the parties to apply in relation to that process.

1. In the event that the applicant instructs a solicitor on the record the documents are to be provided by the Independent Children’s Lawyer to that solicitor for forwarding to Dr B.

1. By consent, orders are made in terms of paragraph 1a and 2 of Exhibit 3 dated 22 December 2004, as set out hereunder, otherwise the Application in a Case filed 7 October 2014 and the Responses of the respondents are dismissed.

1.      Notwithstanding any other order the court may make, that the children [M] born … November 2007 and [T] born … September 2010 live with the first respondent on the following dates:

a.28 December 2014 until 11 January 2015; and

2.      That the child have make up time with the applicant for the time missed pursuant to any order in place for the applicant to spend with [T].

1. The proceedings be fixed for hearing estimated hearing time of 10 days on a date to be settled by the Associate to Justice Loughnan and the legal representatives of the parties.

1. The evidence of all lay witnesses be filed and served, unless the parties agree in writing to the contrary, not later than six weeks prior to the first date of the trial.

1. Seven days before the first day of trial the legal representatives provide to the Associate to Justice Loughnan and each other a Case Outline document setting out the terms of the orders sought by each party in the event that they are different to the orders sought in the most recently filed Application or Response, the documents to be relied on and a brief outline of the arguments to be made under Part VII of the Family Law Act 1975 (Cth).

1. By 10.00 am on the first morning of the trial the Independent Children’s Lawyer settle a chronology.

1. In the event that any party becomes aware of any matter which would prevent the hearing commencing on the first date allocated or continuing to conclusion on the last date allocated that party is to forthwith restore the proceedings to the list on seven days’ notice to the Court and to each other party.

1. General liberty is granted to the parties to restore the matter to the list on seven days’ notice to the Court and to each other party.

1. Leave is granted to the Independent Children’s Lawyer to issue such subpoenas as she may be advised and in the first instance at least any request for the issue of subpoenas should be made through the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Glasson & Drover and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 2293 of 2014

Ms Glasson

Applicant

And

Ms Drover

Respondent

And

Ms Knight

Second Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings in relation to two children.  The matter has been listed today to deal with two issues.  One relates to expert evidence and one relates mainly to interim living arrangements.  As to expert evidence the applicant seeks permission to adduce evidence from a second expert in circumstances where a single expert had been appointed, as is the usual practice in the parenting cases, and has reported.  Consequential orders were sought in relation to facilitating such a report and, in the alternative, an order was sought for provision of documents from the Court file and documents produced on subpoena to the expert and permission, in effect, to extend the time for questions to be put to the existing expert.  The application for the permission to adduce evidence from a second expert is not pressed or is withdrawn.  What is sought on behalf of the application is, in effect, to qualify a second expert potentially as an adversarial expert or to qualify a second expert to assist as a shadow expert with the process of challenging or teasing out some issues the applicant has with the single expert’s report. 

2. The respondents oppose the order.  I do not think the Independent Children’s Lawyer (“ICL”) does literally.  It seems to me that a half-way house would be putting the applicant in a position to get advice on the questions from another expert in the field.  It avoids, in the short term, one of the down sides of having adversarial experts.  And that is the risk of further interviews for children.  There still remain the issues to be determined in relation to adversarial experts but they might not arise once the applicant is in a position to obtain the advice of another expert. 

3. As to the interim parenting issue the applicant seeks a change to orders made on 16 May 2014 and the respondents oppose any changes.  I do not propose to make a change to the orders.

4. The substantive proceedings relate to parenting arrangements for two children of the parties:  M and T.  M was born in November 2007 and is seven years of age and T was born in September 2010.  She is four years of age. 

5. Ms Drover and Ms Knight are both 43 years of age.  Their relationship commenced in September 2001.  In January 2005 they commenced planning to have a child.  They made arrangements for a friend, Mr P to donate his sperm. 

6. M was born, as I say, in November 2007.  This year he was in Year 1 at School K.  Ms Drover took 12 months maternity leave at the time of M’s birth.  Ms Drover and Ms Knight separated in February of 2009.  Ms Glasson and Ms Drover met in mid-2009.  The applicant is Ms Glasson.  She deposed that she lived with Ms Drover and M on occasions from September or October 2009.  IVF arrangements were made for Ms Drover to have a second child on 10 December 2009. 

7. Ms Glasson deposes that from February 2010 she lived with Ms Drover and M on a full-time basis.  In February of 2010 Ms Drover and Ms Glasson made an application to enrol the baby at School C.  As I say, T was born in September 2010.  Ms Drover did not return to paid employment after T’s birth.  In 2014 T attended D Day Care on Mondays, Tuesdays and Wednesdays.

8. Ms Glasson is referred to as T’s parent on some forms for school and pre-school enrolment.  It is her evidence that she took off some Friday mornings so as to take T to ballet classes.  It is Ms Drover’s evidence that she found Ms Glasson inebriated on 6 April 2013.  The adults went overseas with the children in July 2013.  There is evidence that Ms Glasson drank heavily on that trip. 

9. Ms Glasson left the family home on 25 August 2013.  She attended on a general practitioner and was prescribed Xanax.  She overdosed on Xanax and consumed alcohol.  Two days later she was admitted to E Hospital for three days.  On 30 August 2013 Ms Glasson and Ms Drover travelled overseas for 10 days.  That was a trip associated with Ms Glasson’s work.  During that trip the children were minded by Ms Knight.  Ms Glasson says she took five weeks leave during September and October 2013.  She says that from September 2013 to January 2014 there were times when she had the sole care of the children.  From September 2013 to date she has engaged in a relapse prevention program through E Hospital.  In January 2014 Ms Drover and Ms Glasson took the children camping on the South Coast of NSW.  Ms Glasson says as a result of Ms Drover threatening to leave the family home with the children she decided that she would leave the home and on 29 January 2014 she did.

10. Ms Drover and Ms Glasson told the children on 9 February 2014 that Ms Glasson would be living elsewhere for a period.  Ms Glasson had daily phone communication with the children between 9 and 15 February and between 15 February and 24 March Ms Glasson had some limited time with the children unsupervised.  On 24 March Ms Drover terminated all contact between the children and Ms Glasson and gave directions at the school and pre-school that prevented her from collecting the children.

11. These proceedings commenced on 16 April 2014 with Ms Glasson’s application.  Arrangements were made for her to spend some time with the children for a few hours on the Sushine Coasts in April in the presence of the mother of Ms Drover.  From 8 May 2014 Ms Glasson commenced having time with the children supervised by an organisation called F Supervisors. 

12. On 16 May of this year the proceedings came before acting Senior Registrar Campbell.  Dr G was appointed the single expert psychiatrist in the proceedings and orders were made in terms agreed between the parties, pending further order, including orders for Ms Glasson to spend time with T each Wednesday from 3.30 pm to 6.30 pm, each alternate Friday from 9.00 am to 3.00 pm commencing Friday, 23 May and on such further and other occasions the parties might agree.  That time was to be supervised by F Supervisors.  At all other times the children were to live with Ms Drover.

13. It was noted on 16 May that, although no orders were made for Ms Glasson to spend time with M, that nevertheless she wished to do so and would later press for orders.  There was an application to restrain Ms Glasson from instructing a particular solicitor or firm of solicitors and an order was made on 2 September 2014 restraining her in that regard.  Dr G reported on 26 July 2014.  He set out what he did to qualify himself, including holding interviews on 16 June 2014.

14. Dr G found the parties to be outstanding individuals.  He found them to have enormous capability and believed that they functioned well.  He was concerned about Ms Glasson’s alcohol use and abuse and could not say whether those matters had been adequately addressed.  He recommended that the children continue to reside with Ms Drover.  He opined that she is clearly capable of providing well for them and that the children were both developing well in her care.

15. In his view she had a clear view of what was in their best interests and he found her to be a very impressive individual and mother.  Dr G considered that contact with Ms Knight and her partner, Ms H, appeared to be positive for the children.  He was concerned about there being a different arrangement for M compared to T and thought that it could create a self-esteem problem for both children.

16. It was his view that both children should regard Ms Knight as a contact parent, although he noted that that was not the view of Ms Drover and Ms Knight.  He considered that the arrangement between the children and Mr P and his partner, Mr J, as an informal supportive one, appeared to be working well.  Dr G considered that Ms Glasson had an important role to play with the children.  He opined that the children saw her as a significant adult and an aunt-like figure in their lives.

17. In his view she had a secondary role even though she was initially the full-time partner of Ms Drover.  He recommended that Ms Glasson should have formal contact with the children, perhaps day-time contact once a fortnight, perhaps four to six hours.  He did not necessarily believe the number of hours should be prescribed but believed that fortnightly contact would be realistic.  He considered that the children should be seen by her together, lest they start to internalise the difference between them which might affect their self-esteem and self-protection.

18. He reiterated that there should be a clear hierarchy for the children with Ms Drover as their primary attachment figure and carer.  Dr G saw Ms Knight as the secondary attachment figure for the two children and then Ms Glasson as an important figure but with more of an extended family role.  He recommended that Ms Glasson remain alcohol free and that she continue with counselling and treatment with Dr L and that she follow his direction.

19. He expressed a view that she would benefit from an admission to a private hospital facility such as N Hospital or E Hospital but under the direction of Dr L to help deal with any lingering alcohol dependency issues.  He recommended that she continue individual counselling.  He considered that parental responsibility should lie mostly with Ms Drover but did not have a strong view about whether she would have shared parenting with Ms Knight in respect of M.  Again, he was concerned about establishing a difference between the children. 

20. He suggested that Ms Glasson would benefit from some in-depth psychological assistance in respect of possible substantial feelings of rejection and betrayal from her adoptive and biological parents which may have impacted on her relationships.  He considered that if she wants to – in relation to stable relationships in the future, she would need to be drug and alcohol-free and understand the dynamic of feelings of abandonment and rejection in those relationships. 

21. Dr G did not support an opinion from Ms Knight that Ms Glasson had a personality disorder, and said that was because she functions at such a high level, is capable of caring for herself and others, and has strong abilities to cope and strong coping strategies.  He considered that she was self-sufficient, able to support herself and capable of insight. 

22. The legal position is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). That Part says that parenting proceedings are determined on the basis of the best interests of a child being the paramount consideration. Section 60CC sets out the matters that are relevant to a determination of what is in a child’s interests. It requires the Court to consider primary and additional considerations in s 60CC(2) and (3). The sequence of decision-making for identifying parenting orders starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of the parents having equal shared parental responsibility.

23. There is an exemption in relation to interim proceedings in s 61DA:

    When the court is making an interim order, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order.

24. A problem that has been highlighted in the course of submissions in this case is the question of who, in the terms of the Act, are the parents of these children. There seems to be no real controversy in relation to M. Section 60H identifies a pathway through in relation to children who are born of IVF-type procedures, and it is geared to the establishment of a de facto relationship at a relevant time and the consent of, in effect, the non-birth mother to the procedure.

25. As counsel for the first respondent has identified, there is no entitlement to an interim parenting determination.  They are problematic from a number of points of view.  There is no doubt the court can make an order pending further order and, indeed, the idea of a permanent parenting order is something of an illogical proposition.  But rather than the permanence of orders the issue is the type of process that is available for the development of final orders.  The subtext of Australian law in relation to parenting proceedings is that the parents should agree and, to that end, every hurdle is put in the way of litigants to cause them to agree. 

26. The parties have to go to a Family Relationship Centre and go through a process of meditation, and they cannot file in a court until they have done that.  In the court process, they are referred to Family Consultants on staff and, in 99 cases out of 100, there is an expert report or expert reports.  There can be an enormous cost involved and then, finally, after a year or two, the court is available to hear something.  In most cases, the parties give way to those blandishments and reach an agreement.  That is important, because it is very difficult to regulate the affairs of adults by court order, and there is no reason why a decision that a court would come to would be as effective as a decision made by the parties themselves. 

27. There is an entitlement to a hearing in relation to parenting cases and, in some cases, there has to be something done on an urgent basis or an interim basis.  Latitude is given to courts dealing with interim proceedings, and that is necessary, because usually the court is not in a position to make a finding of fact about any disputed issues of fact.  In this case, disputed issues of fact would  prevent the court making a decision as to how the law should apply to the circumstances of these two children, or at least one of them. 

28. This has nothing to do with who the real parent figures are for a child, absolutely nothing.  It is just about the legislation trying to provide guidance, a regime, that courts will apply in relation to families.  It does not address a whole lot of situations.  The legislation struggles with some arrangements.  It does not address, for example, indigenous communities’ practice of giving of children.  Similarly there is not an obvious home for what I might call a complicated family structure, such as we have here. 

29. On one view, a concession has been made in relation to a financial agreement that Ms Glasson and Ms Drover did not start living together until a certain date, a date which would exclude the definition required in s 60H for Ms Glasson to be a parent.  I do not know that it is as simple as that, because I do not know that the proposition of when their cohabitation commenced on a full-time basis is the same thing as them being in a de facto relationship. 

30. Now, it might be that I have missed something and there is a provision that equates those two things. There is nothing that equates them in the general provisions of the Act. It may be that the issue is resolved by evidence elsewhere and the applicant is not a parent. There was no real argument in her case about the detail of this issue, and I apprehend that she might still want to agitate a case that she does fit within the definition of a parent.

1. In any event I cannot resolve that today, because I cannot make findings about disputed issues.  I suppose in theory if the facts are agreed – and I do not know that they are – there could be an argument before me, but that was not the way the case was run.  That controversy affects the issue of parental responsibility quite seriously if the presumption applies.  These are interim proceedings.  For the reason I have identified, I would say that it is not appropriate in the circumstances, to apply the presumption. 

2. If there is still a decision about parental responsibility, if the court is to make an order that parents have equal shared parental responsibility, then I am required to apply certain presumptions.  Because I do not know who the parents are, it cannot be the case that I know that there will be an order for equal shared parental responsibility.  Such an order is not likely to be made today, in any event.  I was not asked to make one.  So we do not get into the presumptions about what the living arrangements should be.  That brings us back to the court making an order in the best interests of the children. 

3. The problems of identifying the parents contaminates s 60CC.  As to the primary considerations, the parents get a mention in terms of the first of the considerations, which deals with there being meaning in the relationships between the parents and the children:  the benefit to a child of having a meaningful relationship with both of the child’s parents.  If I do not know who the parents are, it is impossible to make that finding.

4. There does not seem to be any doubt about M.  The evidence suggests – and there is no doubt about it, I do not think – that there is meaning in the relationship between M and Ms Knight and Ms Drover.  There is not anything to suggest that orders should not be made to advance those relationships in the future.  The second of the primary considerations is a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  There are alleged to be risks for the children, in the broad, related to substance abuse by Ms Glasson and the question of her having qualified mental health. 

5. Those things are capable, objectively, of causing physical and psychological harm or a child to be exposed particularly to neglect.  Parents get a mention in this provision also in the definition of family violence, and the legislation now provides that, if there is conflict between those two primary considerations, then the court is to give greater weight to the second, keeping a child safe, which makes sense.  Then there are additional considerations.  The views expressed by a child and factors such as the child’s maturity and level of understanding the Court thinks would be relevant to the weight to be given to those views.  These are young children.  They probably would like everybody back together again.  Their views alone will not be determinative of these proceedings or even significantly influential.  The nature of the relationship of the child with each of the child’s parents and others – here we have some nice observations from Dr G in relation to the interaction of the adults and the children.

6. As I said, there is a challenge to Dr G’s report, at least in part and perhaps there will be a substantive challenge to his report.  That introduces the spectre of him being wrong about some aspect of his report, which is one of the other reasons why there is concern about what might be done on an interim basis.  Not only is the Court not in a position to make findings of fact on disputed issues but in relation to expert evidence there is no opportunity to test it. 

7. And what happens, not unusually, is that an expert will give evidence at a trial, will read the updating material including updated documents on subpoena, but read the latest affidavits and will be told about what damage the Court process has done – cross-examination and so on has done to the testimony of the parties leading to, maybe, some crystallisation of issues presented to the expert.  And not always, but sometimes, the experts change their minds.

8. The problem with that is obvious.  If somebody in my position takes a line through something that an expert says, the danger is by the time the final hearing comes the expert might have taken a different view.  There is no reason for an expert to think that the Court would leap on the words of a report and take some step or other based on that alone.

9. Of course, sometimes the expert does not change his or her mind but the Court simply does not accept the opinion of the expert.  That is another risk of relying on an expert’s report in interim proceedings.  Taking the broad view about the documents suggests that there are important and loving relationships between the adults and the children.  Of course there can be complications and I do not say it is happening here, but parents can lean on children consciously or subconsciously.

10. There may still be a loving relationship but it has become distorted. 

11. Depending on the age of a child, children naturally think that it is all their fault, that entire problem is their fault.  Ms Glasson has left home because of something they have done or said.  That is just the nature of children.  So there can be a pathology in the relationship even though it seems to be loving and warm.  There can be a pathology in the relationship between a child and an adult and we would like them to stay in that ratio so that the child is not doing the mothering.

12. The extent to which each of the child’s parents has taken or failed to take an opportunity to participate in decision making, to spend time and so on, again, isolated to parents.  I should say, there is a catch-all provision in relation to the additional considerations and the Full Court has not banned decision makers at first instance using that catch all to replicate the additional considerations for people who are not parents.  However the Court is not permitted to replicate for non-parents, the primary status of the considerations in s 60CC(2).  Quite the contrary, that would be an error of law and would disqualify a decision made if it was important in a particular case.

13. So somebody who said, well, “Let’s look at the meaning of the relationships between somebody who wasn’t a parent and a child and give that primacy or make that a primary consideration over one of the other considerations,” that would be an error.  The parties’ evidence contains some griping about this in terms of who was at work and what sort of pressures were on,  whether one relationship was as fulsome as it might have been in the past as it sought to be now and so on.  In amongst the many things I cannot make a finding about, I would not make a finding that there is anything significant in that.  In my view there is no evidence that any of the adults has avoided having a meaningful involvement with their children, whether that is spending time, having a say in what their future is and so on.

14. The effect of changes in a child’s circumstances – this is relied on by the respondents because the application to increase the time means a reduction in time with the respondents, obviously.  The expert did not favour it.  As a general proposition, courts have found that the younger children are, the greater the concern about separation from the primary caregiver.  That is not a legal principle.  One of the ironies of family law is that you could probably have a day-about arrangement between nine households if everybody is getting on well and all is well.

15. That is not the situation here.  Quite a level of bitterness has developed.  It does not seem to be getting any better and may be getting worse.  The process of litigation can contribute to that because parties are sent away to your corners and are asked to write 40 pages on how awful another person is.  It is a destructive process which is why we try and avoid having affidavits prepared early in proceedings.  That failed in this case by several feet thick of paper. 

16. Far from the process of mediation where parties try and come together and think about creative solutions, the adversarial system sends them in opposite directions.  Issues that were not a problem years ago when the parties were together suddenly become monumental problems and purportedly, warrant disqualification from involvement with children and so on.  We have to be cautious about the issue of young children and their primary caregiver.  There is no authority in the expert evidence thus far, for the processes that the applicant is proposing.  That is what one can say about that.

17. As to practical difficulties and expense – there are the obvious logistics.  There are only so many hours in a day and days in a week and these children are sought to be stretched between three households.  Three households where the passage from one to the other may be unpleasant and inappropriate.  The children will have picked up a level of antipathy.  The applicant says that she has detected in her daughter that there is a level of something coming through in terms of the conflict that exists.

18. There is the cost of F Supervisors.  The parties are not on the breadline.  I will put it that way.  So, the cost is a factor but probably not a disqualification.  As to the capacity of the parties, that is a live issue.  There is already some criticism of each of the parents.  Dr G, although his opinion is rejected as to some things and perhaps absolutely, seems to think that the adults are impressive people.

19. You are not allowed to drive a motor vehicle with three or four beers in you.  Four year old children are more complicated than motor vehicles.  Substance abuse is a problem in terms of the higher functions of parenting.  Qualified mental health can be a problem.  It is certainly not a disqualification.  If we were to shut out every adult who had a mental health issue from the lives of children then we would have a large pool of children available for alternate care.  We could distribute them at Christmas time. 

20. A problem with somebody who has had qualified mental health is that they can pretend that there is no longer a problem that it is fixed and might, on a bad day, avoid putting their hand up in relation to it or seeking treatment for it.  That is the problem.  There is no disqualification at all from parenting if you have a problem with substance abuse, no disqualification in relation to mental health problems.  The problem comes in not addressing those issues and in an incapacity to focus, at the point of crisis, on the children.

21. Dr G has said what I have referred to about those things. 

22. Just in case somebody thought it was, it is no comfort to a court that another parent also has a substance abuse problem.  It is not a case that we say, “Well, okay.  If both parents are damaged then that is fair for the child.”  That is a real problem.  The evidence here is not unremarkable evidence.  There is some evidence of crisis for Ms Glasson and her needing to do something to address it.  Dr L talked about something along the lines of a remitting condition.  The fact is with substance abuse and with many forms of mental illness the sufferer and the treating doctors need to remain vigilant because there may be no permanent cure for these things. 

23. It is not like an impacted toenail or something.  Famously, in relation to substance abuse, substance abusers might feel as though they still have a problem, 40 years after they last took the substance.  And you look for somebody who, as I say, at the time of the crisis, does not hide the problem but focuses on the child first and then does something about the problem. 

24. Compared to the irritation and strangeness of having some supervision, the potential harm to a child if somebody is floridly affected by a mental health issue or overcome in terms of substance abuse - then the supervision is the lesser of two evils. 

25. The witnesses will be tested at a final hearing.  Dr L will sit there and be tested about this issue.  Dr G or somebody else will be tested about his opinion and something more sophisticated can be done than is available to me today. 

26. As to the maturity, sex, lifestyle and background of the child, either parent – there is an issue hinted at in respect of the expert evidence as to the parties being the same sex.  There is an assertion that the proposed alternate expert has greater qualifications, for example, in that regard than Dr G.  That is yet to be tested.

27. The advocates said it probably is not an issue for today and I agree.  There are, of course, many cases where we do not have two parents for one reason or another and there are some cases where we have three or more applicants and we just work our way through it.  So I do not know that Dr G teased this out with the children, whether it was appropriate to do that.  I suppose it is what it is.  Nothing else comes to attention.  

28. As to the attitudes to the child and the responsibilities of parenthood demonstrated by the parents, the children are well.  So that sounds good.  The children are reasonably happy and loving as far as we can tell.  So that suggests that they have been well cared for.  It does not mean that some different arrangement would work as well.

29. I do not know that family violence is going to be an issue.  There are no relevant orders.  There is a provision about making an order that is least likely to lead to further proceedings.  That is not really relevant to interim proceedings.  Then there is the catch-all provision.

30. In making interim orders, in my view, the Court needs to be reasonably confident that moving to something else would be better than what is and I cannot be confident of that in this case.  What has happened here is what happens in most cases.  At the point of separation or soon after something was put in place, usually, by the action of one parent – it was not agreed.  And it is almost invariably the case that the first set of orders that are put in place, said to be by agreement, represent a compromise – perhaps more of a compromise by one parent– one party than another.  It was not suggested here but I am not permitted to make orders to better qualify one of the parties to press their claims at a final hearing or to do something that seems to be fair.  If we were dealing with a Mazda I would be happy to have the Mazda shared equally between the three households but these are vulnerable, young children. 

31. Something pretty tough has happened in their lives and that is the people that they love have decided to not only not love each other anymore but to be quite irritated with each other and to live separately.  They cannot understand it except maybe, as I say, they probably think it is their fault.  Here the children are well.  The current regime is no doubt not ideal but I cannot, within what the legislation permits, confidently identify something that would be better.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 December 2014.

Associate: 

Date:  19 January 2015