Gouzali and Carpel

[2020] FamCA 48

FAMILY COURT OF AUSTRALIA

GOUZALI & CARPEL [2020] FamCA 48

FAMILY LAW – CHILDREN – Interim Parenting Orders.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA and 65DAA

Morgan v Miles (2007) FLC 93-343
SS v AH [2010] FamCAFC 13
U & U (2002) 211 CLR 238

APPLICANT: Mr Gouzali

RESPONDENT: Ms Carpel

INDEPENDENT CHILDREN’S LAWYER: Ms C Naidu

FILE NUMBER: CAC 1034 of 2013

DATE DELIVERED: 3 February 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 22 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Finch

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Legal Aid, ACT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claire Naidu & Co

Orders

Until further order

1. All previous parenting orders are discharged.

2. That Ms Carpel (“the Mother”) and Mr Gouzali (“the Father”) have equal shared parental responsibility for X, born … 2009, and Y, born … 2006, (“the children”).

3. That the children live with the Mother.

4. That, unless otherwise agreed by the parties in writing, X spend unsupervised time with the Father each alternate Saturday from noon until 4pm with changeover to occur at B Group.

5. That Y spend time with the Father in accordance with Y’s wishes.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1034 of 2013

Mr Gouzali

Applicant

And

Ms Carpel

Respondent

REASONS FOR JUDGMENT

Introduction   

1. The parties in this matter are Mr Gouzali, the Applicant Father, and Ms Carpel, the Respondent Mother. There are two children of the relationship, Y, born in 2006, and X, born in 2009. Y and X live with their Mother and her son and their brother, Z, born in 2015.  He is not the subject of the proceedings.

2. The Father commenced proceedings by an Initiating Application filed on 8 July 2019 in the Federal Circuit Court.

3. Orders were made on 2 September 2019 providing for equally shared parental responsibility, for the general progression of the matter including for the conduct of a Child Inclusive Conference, for the children to live with the Mother, for Y to spend time with the Father in accordance with Y’s wishes and for X to spend supervised time with the Father.  The proceedings were transferred to the Family Court of Australia on 29 November 2019.

4. Since October 2018, the Father has not had face to face time with Y and has had inconsistent supervised time with X.

5. The key issues focussed upon by the parties at this interim stage of the proceedings involve gender related issues for Y, mental health issues for Y, X and the Mother, and the nature of the relationship with the Father and the promotion of that relationship.

Orders Sought

1. The Mother’s orders sought are set out in full in the Case Outline filed 28 November 2019 and the Father’s orders sought are contained in the Case Outline filed 9 December 2019.  

2. In general terms, the Father sought the Orders of 2 September 2019 be discharged.  The Father sought that the children live with him and that until further order, the Father have sole parental responsibility for the major long-term issues of the children.

3. The Mother sought equal shared parental responsibility.  The Mother sought that the children live with the Mother. The Mother sought that X spend unsupervised time with the Father each alternate Saturday from 12:00pm to 4:00pm with changeover to occur at B Group.  The Mother sought that Y shall spend time with the Father in accordance with Y’s wishes.

4. The Independent Children’s Lawyer (‘ICL’) did not support the Father’s application regarding the children living with the Father; however, supported the Father spending increased time with X.  The ICL did not support a change in parental responsibility.  As such, the ICL broadly supported the orders sought by the Mother.

Material relied upon

1. The Father relied upon the following:

   a)Case Outline, filed 9 December 2019;

   b)Affidavit of Mr Gouzali, filed 6 December 2019;

   c)Affidavit of Ms C, filed 26 November 2019;

   Exhibit:

   d)Documents associated the Father’s Affidavit (Exhibit F1); and

   e)Extracts from subpoenaed material relied upon by the Father (Exhibit F2).

2. The Mother relied upon the following:

   a)Amended Response to Final Orders, filed 10 December 2019;

   b)Affidavit of Ms Carpel, filed 10 December 2019;

   c)Outline of Case Document, filed 28 November 2019;

   Exhibit:

   d)Documents produced on Subpoena relied upon by the Mother (Exhibit M1); and

   Mental Health Assessment by Dr D (Exhibit M2).

3. The ICL relied upon the following:

   Exhibit:

   e)Child Inclusive Conference Memorandum 19 November 2019 (Exhibit C1).

   f)Extract of subpoenaed material relied upon by the ICL (Exhibit ICL1).

Principles

1. The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children

2. In the light of the objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC.

3. In interim proceedings the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests.  It is necessary[1] to:

   keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made

   [1]SS v AH [2010] FamCAFC 13 at [81].

4. Despite this limitation:[2]

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [2]SS v AH [2010] FamCAFC 13 at [100].

5. In doing this, the Court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued, while remembering that these do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation.[3]

   [3]U & U (2002) 211 CLR 238.

6. The Court is also required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or rebutted.

7. If an order is to be made for equal shared parental responsibility, the Court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles[4] as “the careful exercise of a structured discretion to determine the appropriate order to be made”.  That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.

   [4] Morgan & Miles (2007) FLC 93-343.

This case

1. It is useful to commence by identifying the overall context of the present contest.

2. The Mother has been the primary carer of the children all of their lives.  The Father has regularly, on a yearly basis, spent months overseas, rendering his time with the children as inconsistent.

3. In October 2018, an incident occurred in the Mother’s home between Y and the Father, that precipitated the ending of their spending time together, and a significant interruption in the Father spending time with X.  The Mother alleges that this constituted a strong instance of family violence against a background of coercive and controlling conduct.  The Father denies such a background and, while accepting that an incident took place, characterises it in a relatively benign manner.

4. Subsequently, in January 2019, the Mother obtained a family violence order against the Father.

5. Since then, Y and X have been involved with mental health providers, and have indicated potential self-harm.  Y self-describes as gender fluid.

6. The Mother too has sought assistance from mental health providers.

7. The Father’s case hinges, in large part, upon two factors.  The first is that he contends that the Mother poses a risk to the children, principally by virtue of issues with her parenting capacity that he alleges exacerbates mental/behavioural issues for the children.  Secondly, the Father alleges that the Mother undermines the relationship between himself and the children.

8. It is on this basis that he seeks that the children live with him, although he has not spent any time with Y since October 2018 and limited time with X since then.

The incident

1. Given its pivotal place in the current circumstances, it is useful to commence with the circumstances surrounding the allegation that on 17 October 2018 the Father threatened to hit Y.  The Father explains that he merely threatened to smack Y’s “bum” for being rude to him.

2. The affidavit material relied upon by the Mother at the hearing did not cover the incident.

3. As noted, Y has not spent time with the Father since then.

4. The Mother alleges that following the incident, on 6 November 2018 the Father said to her “I will fuck you up and make your life sadful and will kick you out (of the home she was living as that was owned by the father) I know how the system works and how to get what I want.”  After this, the Mother moved out of the home.

5. On 7 January 2019, the Mother applied for family violence orders in relation to herself and the children.  On 13 June 2019 the Father consented, without admissions, to the making of a final family violence order in respect of the Mother only.  The orders in respect of the children were discontinued.

6. The Father led evidence suggestive that the parties had a cooperative relationship prior to the incident. The Mother had described the relationship, post-divorce, as amicable, to her psychologist in July 2018.[5]  This was supported by the evidence of the Father’s wife Ms C.  A specific example was messaging between the parties in March 2018 where the Mother requested the Father to look after Z.

   [5] Exhibit F2 p10.

7. Hence it appears, without being able to resolve what happened on 17 October 2018, that an incident occurred, with a threat of some sort which may or may not have been benign being made to Y by the Father that has disrupted the relationship between the parties and the Father and the children.  It appears that in the lead up to that point, there was a far more amiable and cooperative relationship on foot.

Relationship with X

1. Prior to the Father commencing proceedings in April 2019, the Mother enrolled X with a supervising agency to spend time with the Father.  In enrolling X with the supervising agency the Mother reported that X was excited to see, and wanted to see the Father.[6]

   [6] Exhibit F2 p17.

2. At some point thereafter, X commenced spending supervised time with the Father.

3. On 24 September 2019, X told the supervising agency that she did not wish to come back to see the Father again.  However, during the visit she said that she changed her mind about what she had said and wanted to see the Father again the following week.[7]

   [7] Exhibit F2 p35.

4. On 29 October 2019, the supervising agency recorded that the interaction between the Father and X was positive, and X added the Father onto her Facebook.[8]

   [8] Exhibit F2 p24.

5. The Father produced records of warm interactions via Facebook Messenger between himself and X in October 2019.

Mental health issues

1. In the lead up to the interim hearing, the parties issued a number of subpoenas that revealed various contacts with mental health service providers.  Those most emphasised are set out below:

   a)10 December 2018 – Ms E, psychologist attempted to assess risk in relation to Y.  Ms E described it as “low, changeable, difficult to assess”.  This was in the context of Y refusing to go to school.  Ms E offered the opinion that Y’s conduct may be related to a need to be at home with and protect the Mother.[9]

   [9] Exhibit F1 p119.

   b)22 March 2019 – Dr F, psychiatrist at G Hospital, recorded Y’s reported history of “self-harm and suicidal ideation”.  Dr F also recorded the Mother’s report that Y had accused the Mother of driving Y’s father away.  Y reported as being same-sex attracted from 11 years old, and gender fluid over the previous few weeks.  Dr F described “a strange cluster of symptoms that are not consistent with psychosis” suspecting them as “trauma and stress related”.  Dr F also thought that there may be a “disorganised or insecure attachment style due to mum suffering from the reported DV.”[10]

   [10] Exhibit F1 p75-78.

   c)8 April 2019 – A CAMHS clinical review meeting with P Town CAMHS Clinicians, where the Mother self-reported as not monitoring Y’s medications.  Y was reported as having thoughts of self-harm, but not having engaged in self-harm, and as not planning or intending suicide at present.[11]

   [11] Exhibit F1 p104-106.

   d)22 May 2019 – Y attended upon the H Hospital.   Y was reported as having “increased suicidal ideation”.  Y was also reported as superficially scratching Y’s arms, and as having visual and auditory hallucinations (as reported to Dr F above).[12]

   [12] Exhibit F1 p79-81.

   e)23 May 2019 – Dr F reported having seen Y, the Mother and Ms E on that 23 May 2019 and describes Y as a “relatively low chronic risk.”  Dr F thought that “Y may try to escalate to feel validated by an admission” with such admission being of “limited benefit.”  He thought that Y’s symptoms “appear to provide the function of drawing mum in close and activating people around (Y).”  He thought that Y’s diagnosis was “moving towards borderline personality.”[13]  

   [13] Exhibit F2 p83-84.

   f)12 July 2019 – A Family and Community Services report identified from medical records that Y was presenting at hospital in a manner contrary to the Mother’s reports about her.  Y’s presentation in the presence of the Mother was reported as markedly different (being blunted) to when Y was without the mother (bright and reactive in the presence of peers).  Concern was expressed regarding the Mother’s “refusal to accept educational services offered” and at the Mother presenting to emergency departments describing in relation to Y “vague, unverifiable symptoms.”[14]

   [14] Exhibit F2 p112-113.

   g)15 July 2019 – The discharge summary by Dr J, G Hospital, raised the “possibility of Y’s use of maladaptive means of eliciting maternal care” and that Y’s issues may be more usefully seen “as an expression of emotional sensitivity and maturity rather than mental health problems.”[15]

   [15] Exhibit F2 p115-117.

   h)23 July 2019 – The Mental Health Discharge/Transfer Summary prepared by Ms E, psychologist, reported Y reporting attempts to self-harm, “chronic suicidal ideation, hallucinations… low mood, separation anxiety. Hx of DV exposure and family trauma” and the Mother struggling to implement recommendations.[16] 

   i)4 September 2019 – Dr K, psychologist, reported Y self-harming, difficulty managing emotions, and stress related to the Family Court.  Y had not been taking her medication as they had run out.[17]

   j)5 September 2019 – The Mother is recorded as reporting that X had recently said that she wished to take her own life, and that the Mother had followed this up with CAMHS.[18]

   k)20 September 2019 – The H Hospital noted that the Mother reports that X has described thoughts of self-harm, specifically by walking in front of a bus.  Attributed this in part to witnessing the Father threatening Y.[19]

   l)30 October 2019 – Dr K, psychologist at the H Hospital, recorded that Y had not attended school so far that term (3 weeks), denied suicidal ideation, without acute risks, although heightened compared to the general population.  Y reported liking to behave as though two years old to alleviate anxiety.[20]

   m)28 November 2019 – CAMHS Inpatient Unit - Q Town described Y reporting thoughts of suicide, and also of holding a knife to Y’s sister.  Reported responding to voices since aged 7 years. Described a history of exposure to domestic violence, to missing school, patchy medication compliance and “seeking tangible reward of 1:1 time with mother by reporting distress during school hours.”  The Mother described “seeking inpatient admission reporting low confidence in keeping Y safe.”[21]

   n)The Mother also reported to the Family Consultant as follows:

   18. The mother reported that Y has experienced body image issues and bullying at school and, from November 2018, initially received psychological support from L Service and then the Child and Adolescent Mental Health Service (CAMHS) in M Town. She said that, in May 2019 Y threatened to harm themselves and attended H Hospital. Y then attended the G Hospital Adolescent Mental Health Unit for 10 days in July 2019. The mother reported that Y now received psychological support and intervention from the CAMHS in Canberra. She said that Y would see Dr N at O Service in relation to gender dysphoria on 21 November 2019.

   19. The mother reported that X has displayed self-harming behaviours, such as cutting herself, talked about suicide, had sleeping problems and been bullied at school. She said that X met with a teacher from the school on the day before the conference, to discuss strategies for X developing friendships at school. She reported that X has an appointment to see a mental health practitioner at CAMHS in January 2020.

   [16] Exhibit F2 p109-111.

   [17] Exhibit F2 p107-108.

   [18] Exhibit F2 p8.

   [19] Exhibit F2 p92-93.

   [20] Exhibit F2 p87-89.

   [21] Exhibit F2 p67-70.

2. There is, then, significant evidence that both children are suffering from mental vulnerabilities pointing to some degree of risk of self-harm.

The Mother’s mental health

1. The Father noted that the Mother had a history of suffering significant trauma, both in the form of family violence from a previous partner, and with the death of her brother, and with sexual abuse and assault.

2. The Mother produced to the Court Exhibit M2 being a report commissioned by her from a psychologist.  Psychological testing was administered.  The report was criticised by the Father on the basis that the history taken into account did not take into account the Mother’s reports to other persons as to trauma encountered in her life.  It may be observed that the report also did not recount the history of the Mother being prescribed antidepressants, or assessments of suffering depression or potential PTSD.

3. While the report concluded that the “results of testing indicated that no clinically significant mental/psychiatric problems were identified” that conclusion ought, at this stage, be treated with caution, particularly in an untested state.

4. It should be observed that:

   a)The Mother reported to the Family Consultant that she was diagnosed with depression in 2018.

   b)The Mother told her General Practitioner in 2018 that she was not keen to take antidepressants.[22]

   c)On 23 March 2019, the Mother’s General Practitioner spoke to her about PTSD.

   d)On 27 May 2019, the Mother’s General Practitioner signed a declaration regarding the Mother having complex psychological issues and post-traumatic stress.[23]

   e)On 20 August 2019, the Mother was referred by her General Practitioner to a psychiatrist in relation to Post Traumatic Stress Disorder.[24]

   [22] Exhibit F2 p95.

   [23] Exhibit F2 p98-101.

   [24] Exhibit F2 p102-103.

1. There remain, then, undetermined issues as to the extent to which the Mother may be labouring under mental health difficulties in providing care for the children.  Some significance is given to this issue by the Family Consultant.

The Child Inclusive Conference

1. The Child Inclusive Conference identified a number of important factual issues.

2. Y was reported by the Mother as identifying as “gay: from 11 years old, and is now reported as identifying as “gender fluid.”  This accords with the Mother’s affidavit.

3. Y reported to the Family Consultant that Y would shortly be seeing a gender specialist in relation to medication.

4. Y also reported to the Family Consultant that Y did not really think of the Father as “my father.”  Y alleged that the Father was unable to cope with, or to be open to Y’s gender identity issues.

5. Y described the October 2018 incident in terms which did not enable a clear picture to be established, other than that the impact was of fear and anger.

6. X expressed that she did not wish to ever see or hear about or talk to her Father.  She described herself as scared, down and frightened when spending time with the Father.  It should be observed that this sits poorly with the evidence as to her interactions with the Father.  It is also not a position supported by the Mother.

7. The Family Consultant raised the potential for the Mother’s influence to be causal in relation to the children’s attitudes to the father.  Alternatively, the Family Consultant noted that those attitudes could be caused by the nature of the children’s relationships with the Father.  The Family Consultant, however, noted that the relationships with the Father are significant, and that the cessation of contact with him “would likely have a negative effect in the children’s wellbeing.”

8. While she thought that Y was of an age and maturity to determine whether to spend time with the Father, and given the gender issues “this is likely not the time to require that (Y) spend time with the father against (Y’s) wishes as this will likely place Y under greater emotional pressure,” she considered that X was less mature and less able to comprehend the consequences of not spending time with him.

9. The Family Consultant considered that Y should be able to choose to spend time with the Father when Y feels “it is right and safe.”  She considered that while X might be uncomfortable in being the only child to spend time with him, time was beneficial to maintaining the relationship (which she had previously assessed as important).

Discussion

1. As identified above, the interim orders in this case fall to be determined on the best interests of each of the children, in a context where only limited engagement with the underlying facts can be had.

2. The key contests as to the best interests of the children involve:

   a)The nature of the relationship between the Father and the children, seen in the context of an allegation of family violence;

   b)The Father’s parenting capacity;

   c)The benefits of relationship with the Father to each of the children;

   d)The mental health vulnerabilities of each of the children, and risks associated with those vulnerabilities;

   e)The views of the children;

   f)The Mother’s parenting capacity, and the impact of her mental health upon that capacity; and

   g)The impact of change.

3. While some suggestion was made that particular orders for X to spend time with the Father should be made because of the influence it may have on Y, each child’s best interests are to be considered by reference to that child.

4. The emphasised section 60CC considerations were the primary considerations, as they deal with the benefits of meaningful relationship and the risk of harm posed by neglect, along with a consideration of the nature of the relationships between each the children and the parents, the views of each child, the parenting capacity of each of the parents, the particular characteristics of each child, and the likely effects of change.  While other considerations may be engaged, their significance fades in comparison with the above identified matters.

5. Even in the context of limited capacity in relation to fact-finding, a number of matters loom large.  The first is that the nature of the relationship between each child and the Father is limited.  It cannot be thought that Y has a functional relationship with the Father at present, or that thrusting Y into a position where Y lives with the Father, as sought by the Father and contrary to Y’s views, would support a meaningful relationship, or benefits from such a relationship.  Such a move is highly likely to be traumatic for Y, and occur in the context of potential mental vulnerability and inclination to self-harm.

6. X’s relationship with the Father is not as limited as Y’s.  X and the Father have been seeing each other, even though it has been supervised.  There appeared to be positive outcomes from the time that they have spent together, even though the time has been limited.  However, again, it must be anticipated that a move to live with the Father is likely to adversely impact upon X’s well-being.  Again, it would be a move occurring in the context of potential mental vulnerability, and reports of an inclination to self-harm.

7. That is not to suggest that the current regime of supervised time for X should continue.  There seems to be little call for supervision, even in the context of the allegation of family violence.  It is noteworthy that the Mother and the ICL support a move to unsupervised time.

8. Such a change for X promotes meaningful relationship with her Father and the benefits anticipated by the Family Consultant.  Despite X’s expressed negative views to the Family Consultant, the transitory nature of the negative statements that she makes about her Father militate against weight being placed upon those views.  The views are also to be accorded limited weight given the Family Consultant’s assessment of X’s maturity.

9. The difficulty remains that the evidence identified by the Father is suggestive of risk to both Y and X, in particular in relation to Y’s presentation and self-harm, flowing from the relationship with the Mother.  The mental vulnerability shown by the children occurs within the context of mental health struggles for the Mother, and a potentially dysfunctional relationship between the Mother and Y that carries with it the risk that it promotes Y’s adverse behaviour.

10. That is, on its worst interpretation, Y’s and X’s mental health is being adversely impacted by the Mother.  

11. Unfortunately, the orders sought by the Father come with a higher potential risk by forcing the children to live with him in the circumstances identified above.  While the circumstances surrounding Y and X living with the Mother are indicative of risk, the Father’s proposal does not constitute a solution.

12. Neither party’s proposal deals adequately with what is confronting Y and X at present. 

13. It is necessary to bear in mind what was said about parties’ proposals and the role of the Court by Hayne J in U & U:[25] 

    [171] In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular "proposals" that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court's inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.

    [172] That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)

    [25] (2002) 211 CLR 238.

14. Even considering what His Honour said, here no set of orders commends itself as dealing with the risk issue.

15. The orders suggested by the Mother, and supported by the ICL, that there remain an order for equally shared parental responsibility do provide some element of ameliorating risk.  The effect of such an order means that there is a protective mechanism in that the Father will need to be involved in major medical decisions, including as to treatment for mental health and thereby, if necessary, involve the Court where circumstances arise to show that the risk has become more urgent. 

16. It should also be observed that while some criticism has been made of the Mother in relation to inconsistencies in dealing with medical treatment, she has regularly involved treating agencies who, it may be expected, are mandatory reporters.  Should the children’s situation worsen, it may be expected that intervention will take place.

17. Despite the grave difficulties that it may be expected that the parties will face in complying with the obligations of equally sharing parental responsibility, the protective effect of such an order means it is in the children’s best interests.  The Father’s application for sole parental responsibility is untenable in the circumstance that he has such a limited relationship with each child.

18. This calls into play the structured decision making described by Boland J. Neither equal time, nor substantial and significant time are, at present, in either child’s best interests for the reasons set out above.  Their relationships with the Father are too limited to consider such a change to be in their best interests.

19. Rather, the scheme proposed by the Mother, and supported by the ICL represents the best, albeit imperfect approach, under difficult circumstances.

20. This means that orders will be made for equally shared parental responsibility.  Y will spend time with the Father in accordance with her views. 

21. X will spend regular, unsupervised time, with handover conducted in a manner to prevent the parties from coming into contact with each other.  The time between X and the Father will require review, particularly in light of the ICL’s submission that the time should be increased in the future.

22. Given the difficult, urgent and critical issues to be determined in this case, it is necessary that the case be progressed by the preparation of an appropriate report.

23. The parties will be heard on appropriate orders to progress the matter.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 February 2020.

Associate: 

Date:  31 January 2020