HARRISON and CHARLTON

[2017] FCWA 144

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: HARRISON and CHARLTON [2017] FCWA 144

CORAM: DUNCANSON J

HEARD: 29 SEPTEMBER 2017

DELIVERED : 31 OCTOBER 2017

FILE NO/S: PTW 5519 of 2014

BETWEEN: MR HARRISON

Applicant

AND

MS CHARLTON
Respondent

Catchwords:

CHILDREN - Interim orders sought to permit interstate relocation - Whether supervision of the children's time with the father is required - Application to appoint further expert witness

Legislation:

Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 61DA, s 65DAA
Family Law Rules 2004 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Ms R Bunney

Respondent: Mr M Berry

Independent Children's Lawyer : Ms R

Solicitors:

Applicant: Cullen Macleod

Respondent: Thomson Family Lawyers

Independent Children's Lawyer : Law Firm A

Case(s) referred to in judgment(s):

Banks v Banks (2015) FLC 93-637

Jopson v Lilwall (No 2) [2016] FamCAFC 262

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Child A] born [in] 2003 and [Child B] born [in] 2005 are the children of [Mr Harrison] ("the father") and [Ms Charlton] ("the mother"). The parties are unable to agree about a number of matters in these interim parenting proceedings.

2The mother seeks permission to relocate the children to [Queensland] as soon as possible for a number of reasons including her health difficulties. The father, with whom only Child B currently spends supervised time, is opposed to the relocation. Other issues for determination include the requirement for supervision, whether a further expert report should be obtained and the time the children should spend with the parties on Christmas Day.

3The mother asserts the children are at risk in the care of the father. The father strenuously denies this and says they are safe in his care.

The orders sought by the mother

4The orders sought by the mother are contained in a minute of interim orders filed 1 September 2017. She seeks orders that the children live with her and she have permission to relocate them to Queensland. She seeks an order for sole parental responsibility.

5In relation to Child A the mother proposes that she spend time and communicate with the father in accordance with her wishes. In relation to Child B, the mother proposes that she spend supervised time with the father either in Perth or Queensland, each Queensland school holidays for a period of five consecutive days in the first week of the holidays for up to five hours on each day, supervised by Perth Children's Contact Service, or such other agency as nominated by the mother.

6The mother proposes that in the Christmas school holidays Child B spend supervised time with the father either in Perth or Queensland for a period of seven consecutive days, excluding Christmas Day for up to five hours on each day, supervised as above. After eight supervised visits the father is at liberty to obtain a supervision report.

7The mother proposes the father be responsible for the costs associated with supervision and that the parties share the cost of Child B's travel.

8She proposes Child B have postal and electronic communication with the father.

9The mother seeks an order that the father commence counselling with a psychologist/psychiatrist qualified to address sexual and/or pornographic addictions/issues and after six months a report from the counsellor be obtained.

10The mother seeks an order that she be permitted to enrol the children in a school of her choice for Term 4 of the 2017 school year in Queensland and she proposes to authorise the school to provide the father with information. The mother seeks an order that [Dr K] be appointed as a further single expert witness on certain terms and conditions.

The orders sought by the father

11The orders sought by the father are contained within a minute of interim orders sought filed 18 September 2017. The father seeks to discharge orders dated 2 June 2017 providing for Child B to spend supervised time with him. He seeks an order that she spend unsupervised time with him each Sunday from 9.00 am to 5.00 pm.

12The father proposes to spend time with Child B and Child A, subject to Child A's wishes, from 10.00 am to 5.00 pm on Christmas Day 2017.

13The father proposes that [Ms O] be appointed as counsellor to provide counselling to Child A in respect of her relationships with him, the mother and Child B, with a view to reunifying Child A and the father.

The position of the independent children's lawyer

14Ms R, the independent children's lawyer supported Child B having unsupervised time with the father. In relation to Child A, Ms R was of the view that she should not be forced to have any relationship with the father, stating the issue needs to be dealt with in counselling in consultation with a counsellor. Ms R expressed concern that given the backdrop of the mother's "fluctuating mental health issues" and the anxieties she projects onto the father and his relationship with the children, that relationship will not necessarily be fostered if the mother moves to Queensland straight away. She was of the view the children should have significant counselling before any relocation and that counselling should be in an environment where it works. Ms R was opposed to the appointment of another expert. She stated she would also support the introduction of Child B having overnight time with the father prior to any move to Queensland.

BACKGROUND AND BRIEF HISTORY

15The father is 48 years of age. He is a [toolmaker]. The mother is 49 years of age. She is a homemaker. The parties were married in [Country K] [in] 1997 where they lived for a number of years after their marriage. Child A was born in Country K. The parties migrated to Australia in 2005 with Child A. Child B was born in Australia.

16The parties separated finally on 1 April 2007; their divorce order took effect [in] 2015.

17During the marriage the father viewed pornography and wrote erotic stories.

18After separation the children spent time with the father, which the parties agreed from 2008 would be every second weekend.

19Child A ceased spending time with the father in March 2014, the mother says in accordance with her views. Child B continued to spend time with the father until February 2015, although not overnight.

20The mother ceased direct contact between herself and the father informing him that a third party should be engaged for handovers. That did not occur and Child A's time with the father ceased in February 2015 and did not resume until orders were made.

21The mother sets out in her affidavit evidence her detailed concerns regarding the father, in particular her concern that he has a long standing pornography addiction which makes him a risk to the children. The father denies he poses a risk to the children.

22In early 2015 the mother consulted [Dr W] as he had experience in the area of pornography and sought his assistance in relation to the children and their relationship with the father.

23The father became engaged to [Ms T] in October 2015. They live together. The mother became engaged to [Mr H] in December 2015. Mr H lives in [Brisbane].

24The father commenced these proceedings when he filed an application on 1 December 2015 seeking parenting orders. He sought orders that the parties have equal shared parental responsibility for the children and that the children attend therapeutic counselling. He sought to spend time with the children on a gradually increasing basis by way of reintroduction. On 14 January 2016, by consent an interim order was made that the children live with the mother.

25The mother filed a response on 8 February 2016. She sought orders that the children live with her and that she have sole parental responsibility for them. She sought orders that she be permitted to relocate the children to Queensland and that a single expert witness be appointed to report on various matters prior to the commencement of any reunification between the children and the father.

26The parties attended a case assessment conference with a family consultant on 22 March 2016. The family consultant reported the mother had no trust in the father. The family consultant further reported that the children should attend therapy with a view to re-establishing their relationship the father and that should occur prior to the report of a single expert being obtained. The family consultant made various other recommendations concerning counselling for the parties.

27On 5 April 2016 orders were made providing that the parties encourage the children to attend a protective behaviours program, that the parties attend the Mums and Dads Forever program and that the father contact a clinical psychologist specialising in pornography or sexual dysfunction.

28In April 2016 upon the recommendation of the family consultant the father consulted [Dr M], Psychologist.

29Dr M provided a report dated 20 May 2016 concerning the father's pornography use and potential risk to the children. Dr M reported that in his opinion the father is not a risk to the children, to others, or presently to himself due to his pornography use.

30On 26 July 2016 an order was made for the appointment of an independent children's lawyer and Ms R was assigned to this matter.

31On 6 October 2016 it was ordered that [a], Clinical Psychologist be appointed single expert witness to inquire into and report upon certain terms of reference as set out in the order.

32On 14 November 2016 orders were made providing that the children spend time with the father each Sunday for up to two hours for the first occasion and thereafter for two hours with such time to commence on 20 November 2016. The time was to be supervised by Perth Children's Contact Service.

33The children's time with the father was initially to take place at the contact centre, but from the fifth visit the time could take place at the father's home. It was ordered by consent that the mother be permitted to remove the children to Country K for a holiday between mid-December 2016 and mid-January 2017.

34The father commenced supervised time on 20 November 2016. He said Child B was enthusiastic, but Child A was shy and distant initially.

35Perth Children's Contact Service provided a report of supervised visits between November 2016 and February 2017. The report was in favourable terms regarding Child B's time with the father and referred to a strong bond between them. The report indicated that initially it appeared that Child A's bond with the father was forming, but that appeared to be waning by the time of the third visit. The children had four visits with the father prior to travelling overseas.

36On 15 January 2017 the children were to spend time with the father. Child B spent supervised time with him. Child A refused to leave the motor vehicle on that occasion and subsequent occasions. The report writer stated that from observations of all eight visits the supervisor had not witnessed an incident that indicated at any time that either of the children was at risk of harm from the father. The report writer acknowledged that there may be additional factors regarding the family that may not have been disclosed to the agency.

37In February 2017 the mother located a book of stories written by the father which she had retained at separation. She read it and disclosed a story to the father's solicitor. The story concerned the sexual relations between a 13 year old child and a 26 year old man. At that time Child A was 13 years of age. The father said he had forgotten about the stories which were written 20 years ago. The correspondence was sent to the independent children's lawyer and [the Single Expert Witness] [SEW]. The mother deposed that around that time the father intended to seek unsupervised time and accordingly the story had to be disclosed as it was directly relevant to the issue of moving to unsupervised time.

38The mother requested a report from Dr W in relation to the father about internet pornography and risk. Dr W provided a report dated 22 February 2017. The mother had provided Dr W with information and handwritten stories which he noted had allegedly been written by the father. Dr W had not personally assessed the father. Dr W stated he was not sure the court could rely on Dr M's report in the absence of more detailed information of the father's behaviour. He reported he was not in a position to offer an opinion other than to say that until issues are properly investigated, the children's visits with the father should remain supervised.

39The proceedings were listed for a readiness hearing on 28 February 2017. At that time the SEW’s report was awaited. The proceedings were adjourned to 2 June 2017 for an interim hearing.

40The SEW published her report dated 8 May 2017. The SEW reported that she did not see the children as being at risk of sexual abuse by the father, but that the children may be at risk of emotional trauma due to the animosity and conflict between the parents. She reported the children were engaged in the plans to relocate to Queensland. She further reported that supervised visits were adequate and appropriate in the short-term, but could transition to unsupervised visits much earlier than expressed by the mother. At that time the mother sought to have visits supervised until the children were 16 years of age.

41The SEW reported:

Her mother's inability to trust the father because of her past relationship with him and her interpretation of his character cause her to contribute to a less than ideal situation emotionally for her children. Her anxiety and fearfulness has been communicated to her older daughter in a way that is distinctly unhelpful for [Child A] and contributed to the loss of her relationship and normal contact with her father. Contrary to the opinion voiced by the mother that contact with the father is not safe for the children, my view is that absence of a realistic safe relationship with the father represents another form of abuse through being aware of the tension and hostility between the parents and feeling torn between them. [Child A] is the one expressing most distress, but both children are affected by this. This is unlikely to decrease unless resolved by the parents themselves or by a mutually satisfactory agreement about contact between the children and the father.

42On 2 June 2017 previous parenting orders were discharged and it was ordered that Child A spend time with the father in accordance with her wishes. It was further ordered that Child B spend time with the father each alternate Sunday, unless otherwise agreed for five hours from 12.00 noon to 5.00 pm, supervised by Perth Children's Contact Service. Orders were made giving the parties permission to provide the SEW’s report to Dr W and a copy of Dr W's report and the SEW’s report and other documents to Dr M.

43On 29 August 2017 the SEW provided a further report in answer to questions posed by the mother.

44The proceedings were adjourned to 29 September 2017 for argument.

The issues for determination

45The issues for determination included the following:

•the mother's proposal to relocate the children to Queensland;

•the order sought by the mother to appoint Dr K as a further expert witness;

•the order sought by the mother that the father attend counselling;

•the order sought by the father for the removal of supervision in respect of Child B's time with him; and

•the father's proposed arrangements for Christmas 2017.

Matters not in dispute

46At the commencement of the hearing I was informed that the parties had agreed that Child A and Child B would attend upon Ms O for counselling and they agreed the terms of reference in that respect. On 29 September 2016 I made orders in terms of the agreement. The children's counselling with Ms O may progress to family therapy.

THE EVIDENCE

47The mother relied on her affidavit filed 1 September 2017 together with those of her partner, Mr H and her General Practitioner, [Dr C] filed on the same date.

48The mother also relied on her affidavit in reply dated 26 September 2017 together with affidavits of [Professor P] and [Dr Z] both filed 29 September 2017.

49The father relied on his affidavit and that of Dr M filed 18 September 2017.

50The parties' evidence for this interim hearing was extensive and documents filed exceeded 570 pages. I have read all of the evidence carefully. If I do not refer to the evidence of a particular witness or any part of it, that does not mean I have not considered it or taken it into account.

51At the hearing I asked the parties to forward to me the children's most recent school reports. This has not been done.

THE LAW

52These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects as set out in s 60B.

53In deciding whether to make a particular parenting order, s 60CA directs the court to regard the best interests of the child as the paramount consideration. Section 60CC sets out those matters which the court must consider in determining what is in the child's best interests.

54The children's best interests is the paramount consideration, but not the only consideration. The court must consider the competing proposals of the parties on their merits following the prescribed legislative pathway.

55This is an interim hearing and the orders I make are a temporary measure until the evidence can be tested at a final hearing and final parenting orders made.

56In this matter there are many issues in dispute. The mere fact that matters are in dispute does not mean the court should ignore concerns raised in the evidence. Central to the issues in dispute is the mother's assertion that the children are at risk in the care of the father. It is necessary in these proceedings to make some assessment of that risk. The issue is the extent of the risk and the court will consider what might be done reasonably to alleviate that risk: Jopson v Lilwall (No 2) [2016] FamCAFC 262 at [56].

57As much of the evidence is contested only a limited consideration can be given to the relevant s 60CC factors.

58Where it is obvious that findings as to some of those factors will be determinative of the children's best interests on an interim basis it is sterile and unnecessary to address other factors: Banks v Banks (2015) FLC 93-637.

Parental responsibility

59Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.

60Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.

61Pursuant to s 65DAA of the Act, a consequence of making an order for equal shared parental responsibility is that the court is required to consider whether or not the child spending equal time with each parent would be in the child's best interests and reasonably practicable. If so, the court must then consider making such an order.

62If the court decides that an order for equal time would not be in the child's best interests or would not be reasonably practicable, the court is required to consider whether or not the child spending substantial and significant time with each parent would be in the child's best interests and reasonably practicable. If so, the court must then consider making such an order.

63The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility. The presumption applies when the court is making an interim order unless the court considers it would not be appropriate in the circumstances. The mother seeks an order that she have sole parental responsibility for the children. The father seeks no order in relation to parental responsibility. In the circumstances of these parties where the mother believes the father poses a risk of harm to the children and where the parties do not communicate I consider it would not be appropriate for the presumption to be applied.

The position of the mother

64The mother's position is that she wishes to relocate the children to Queensland immediately. It has consistently been her wish to do so since the proceedings commenced. The mother recently suffered ill health. She required medical treatment and was admitted to hospital. She deposes she remains incapacitated and requires the help and support of her partner, Mr H.

65Mr H moved to Brisbane in connection with his employment in January 2017. He is able to fly to back to Perth from time to time but this impacts on his employment and it is costly.

66The mother's ill health has impacted on her capacity to provide for the children's needs. The mother has the assistance of the children's babysitter who spends time at her home caring for the children and assisting her. The babysitter charges $100 per day for her assistance however she is not available indefinitely. She is experienced in aged care and is someone the children and the mother know and trust.

67The mother deposes she has undergone rehabilitation and [in] September 2017 she was discharged from [Hospital Y]. As at the date of swearing her affidavit in reply, namely 22 September 2017, the mother deposed that she needs help with getting showered and getting dressed, as well as moving around the home. She fatigues quickly and feels weak. She is on pain and sleep medications which make her tired. She requires assistance with household tasks. She is dependent on others to do these for her because of her weak condition. She is not able to drive, and she moves incredibly slowly. She requires physical and emotional support from Mr H and does not want a stranger being involved in her care and helping her with personal tasks.

68On a practical level the mother proposes that she and the children would move to Queensland as soon as possible. They would live with Mr H. The children would be enrolled in school there. The mother says both children wish to relocate.

69Professor P provided a report dated 27 September 2017 in respect of the mother's condition. Professor P reported a clinical diagnosis of [a medical condition]. Professor P explains this is [an emergency condition] and the mother required treatment. Her condition then progressively improved and she made a good recovery, such that she was able to be transferred to Hospital Y for intensive rehabilitation. Professor P reports the prognosis for the mother's recovery remains favourable, but he is not able to state the expected time for her complete recovery.

70The mother attended upon Dr Z, a psychologist who had been treating her since March 2007. Dr Z provided a report upon the mother's psychological state dated 28 September 2017. Dr Z reported that the mother's mood, anxiety and stress levels increased in the context of Family Court proceedings and the father's contact with their children. Her psychological symptoms were exacerbated by her serious medical illness. He reports she has lost the support of her partner which is not helpful for her psychological recovery. Dr Z reports the mother's relocation from Perth to the east coast would assist her psychological recovery and wellbeing.

71The mother seeks to have Dr K appointed as further expert. She was not satisfied with the SEW’s report which she says did not address a number of factors, including identifying the psychological tests she administered, the weight she placed on the report of Dr M and whether she considered the report of Dr W. The mother is not satisfied with the risk assessment undertaken by the SEW. She has no faith in the SEW’s report as she recommended supervised contact for the children upon reading Dr M's report and the family consultant's memorandum before interviewing the children. The mother remains concerned that the father's actions with pornography over a number of years are being minimised. The mother wants Dr K to undertake a comprehensive risk assessment on the father. She considers he would be an appropriate unbiased professional to undertake a psycho-sexual risk assessment.

72By reason of the mother's concerns about the father she is opposed to the father's proposal that supervision be removed. By reason of her concerns she also wishes the father to undergo counselling as sought by her. She asserts the father has never had proper therapy for issues arising from his abuse as a child and the sessions he has had with Dr M are insufficient. She asserts he needs treatment for his issues.

73The mother requires the father's time with the children to be supervised and until a further assessment has occurred by Dr K the issue of unsupervised contact should not be considered.

74The mother is opposed to the father's proposals to spend time with both children at Christmas. If she is permitted to relocate the children to Queensland they would be with her there. If the children are in Perth, she may wish to travel to Queensland on holiday for Christmas. She proposes that Child B could have Skype contact with the father on Christmas Day and Child A in accordance with her wishes.

The father's position

75The father's case is that supervision of Child B's time with him is not necessary and he poses no risk to her. In relation to the risk he refers to the reports of the SEW and of Dr M, both of whom state he is not a risk to the children. Since 2016 Child B's time with the father has been supervised by Perth Children's Contact Service. The supervision reports are in favourable terms.

76In relation to the story he wrote, the father said he forgot about it and therefore did not mention it to Dr M. Both the single expert and Dr M have stated that it was a method for him to deal with his childhood abuse and does not indicate an interest in child pornography.

77The father opposes the appointment of Dr K as a further expert. He relies on the SEW report stating the mother simply does not like the outcome and therefore wants another report.

78In relation to Christmas the father says he has not spent Christmas with the children since 2013 and in 2016 he agreed that the children could be taken to Country K by the mother. He wants to spend from 10.00 am to 5.00 pm on Christmas Day with both children so that they can join a family lunch.

79The father rejects the mother's criticisms in relation to Child B's time with him and he refers to the supervision report in that respect.

80The father expresses concern as to whether or not the mother will facilitate the relationship between the children and him.

81The father opposes the mother's application to relocate the children on an interim basis. He deposes that he is not unsympathetic about the mother's illness, but says in this difficult time for her, the answer is not to move the children to Queensland. He suggests the mother has other options to assist her with the children's care. Most importantly, the father says his goal is to be reunited with both children and until that occurs, he will not consent to relocation as he has no confidence the mother will facilitate or support the children's relationships with him, if they are in Queensland and he is in Perth.

82The father says to remove the children from the home they have lived in for many years, their school friends, teachers and informal supports at a time when the mother is unwell is not in their best interests. He says that the mother would be unable to assist them in establishing themselves in their new environment and she is unable to assist them with what he calls "such a massive transition".

THE PRIMARY CONSIDERATIONS

83The children have a meaningful relationship with the mother and it is to their benefit that it continues. Child B has a meaningful relationship with the father. Child A does not and chooses not to spend time with the father at this time.

84It has been agreed that both children will attend counselling. The father wishes to give this an opportunity to occur so that he can repair his relationship with Child A.

85Whether the children are at risk of harm in the care of either party is of significance in the circumstances of this case. The mother asserts the children are at harm in the care of the father by reason of his pornography use. She does not accept the assessments of the SEW and Dr M. She refers to the report of Dr W and seeks that the father undergo counselling for his pornography use and she wants a further assessment to be carried out by another expert witness.

86The SEW opined that the children are not at risk of harm in the care of the father. Dr M is of the same view. The supervisor at Perth Children's Contact Centre made a similar comment, although acknowledging there may be matters about which the supervisor did not know.

87I am unable to make a finding about this until the evidence is tested. Since Child B has been spending time with the father nothing has occurred to suggest she is at risk of harm in his care.

88Nevertheless it is still necessary for me to make an assessment of risk and to carefully consider whether the precaution of supervision is necessary. I refer to this further below.

THE ADDITIONAL CONSIDERATIONS

89The children have a close and loving relationship with the mother in whose care they have been since separation. They have a good relationship with the mother's partner. They also have a reasonable relationship with each other, although there have been some difficulties between them by reason of Child B spending time with the father and Child A not. Child B has a close and loving relationship with her father as is evidenced by the report of the supervisor. Child A chooses not to have a relationship with the father at this time.

90Child B wishes to spend time with the father, Child A does not. Both children have indicated they would like to move to Queensland and are looking forward to doing so.

91The SEW reported both children have been influenced by the mother, although the mother denies this.

92The mother's proposal to relocate the children to Brisbane represents a significant change in the children's circumstances. They would be separated from the father. For Child B the consequence would be that the time she has enjoyed with him on a weekly basis could not occur. Visits could only take place if Child B were to travel to Perth, or the father to travel to Queensland.

93The mother proposes to address this by arranging for Child B to come to Perth during the school holidays and to spend time with the father during the day supervised for five or seven consecutive days. It is not clear where or with whom Child B would live during these times.

94A significant difficulty with the mother's proposal to relocate the children is that the parties have only recently agreed on the children's counselling with Ms O. While Ms O has indicated that after the first two counselling visits, counselling could take place by Skype, it may be that counselling would be more effective if it were carried out on a face‑to‑face basis. The father is particularly concerned that the move to Queensland would impact on the success of this counselling. It has consistently been his position that the children, now Child A, should be reunified with him before moving from Perth.

95Relocation to Queensland would mean the children would have to leave their schools, their friends and their current stability in that respect.

96There is practical difficulty and expense of the children spending time with and communicating with the father if they relocate. That difficulty includes distance and the cost of travel. With distance between them, it may be that Child A continues to resist a relationship with the father. Although Child B has a good relationship with him the father is concerned that once in Queensland the mother would not support that relationship.

97I am unable to make any finding about the capacity of either of the parties to provide for the needs of the children including their emotional and intellectual needs.

98The SEW reported that her main concern about the mother's parenting capacity is her level of apprehension and mistrust of the father. She reports this cannot be helpful to the children and has influenced both children in their responses to the father. The SEW further reports Child A has clearly identified with her mother's view and Child B has stood out against it in a way which may not be helpful to her.

99The mother’s mistrust is a concern for the father in circumstances where the mother seeks to relocate the children which impacts upon the frequency and ease with which he is able to spend time with them. Only by the children spending time with him can their relationship develop and strengthen.

100At this time the mother is suffering ill health, but has received treatment and is slowly recovering. If she is unable to provide basic care for the children at this stage, she does not explain how she will do so if they relocate to Queensland except to say she will have the support of her partner. Mr H works but says he can assist in the mother's care.

101The father says he is well able to provide for the needs of the children on all levels and currently he provides well for Child B when she spends time with him.

102The children are aware of the conflict between their parents. The children are aged 14 and 11.

103I am unable to make any finding as to the parties' attitudes to the children and the responsibilities of parenthood. The mother is critical of the father in that she says he has not addressed his difficulties. The father is critical of the mother in that he has no confidence she will support the children's relationship with him and he is concerned she is less likely to do so from a distance.

104Having considered and balanced all of the relevant matters, I have come to the following conclusions.

Interim relocation

105I am not persuaded it is in the best interests of the children to make such a significant change in their circumstances at this time by relocating to Queensland.

106It would be a significant upheaval for the children to leave their home, schools, friends, and everything that is familiar to them at a time when their mother is unwell and unable to assist them with the transition to new and different circumstances. It is likely to be in the best interests of the children that their circumstances remain stable while the mother's recovery progresses.

107Apart from the mother not being able to assist the children while she is ill, everything else for the children would remain the same at a time when steps are being taken to address the many issues facing the children and this family as a whole.

108The parties have agreed that the children will begin counselling with Ms O. It is not known what impact the relocation to Queensland would have on the effectiveness of that counselling. Ms O has confirmed that counselling could take place by Skype, but she does say that in-person therapy is much better.

109Attempts are being made to reunify Child A with the father. Child B's relationship with the father has been re-established and there is an opportunity for it to be consolidated with the removal of supervision.

110In the event the children were permitted to relocate on an interim basis, it is possible that after hearing the evidence tested at trial, the trial judge may decide that it is not in their best interests to relocate to Queensland. In the event it is ordered that the children should live with a parent in Perth, their lives would be significantly disrupted by the move. I asked the mother's counsel about this and he said in his view it is unlikely that there would be an order to return the children to Perth. In effect therefore the mother seeks to relocate the children on a final basis. I am not persuaded on the untested evidence that such a change is in the best interests of the children.

111That is not to say that a move to Queensland would not be the outcome after a trial. I am unable to predict what that outcome would be, but I am mindful that the children would like to move to Brisbane and if by that time their relationship with the father has been consolidated, the circumstances favouring the relocation may be very different.

Single expert

112I do not intend to order the appointment of Dr K as a further expert in this matter.

113Rule 15.42 of the Family Law Rules 2004 (Cth) ("the Rules") sets out the purpose of Part 15.5 of the Rules, namely:

The purpose of this Part is:

(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;

(b)to restrict expert evidence to that which is necessary to resolve or determine a case;

(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;

(d)to avoid unnecessary costs arising from the appointment of more than one expert witness; and

(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.

114Rule 15.42 intends that expert evidence is only obtained where necessary and is to be given by a single expert witness. A party may apply for permission to tender a report, or adduce evidence from an expert witness appointed by that party if it is necessary in the interests of justice.

115The relevant rule, and that presumably upon which the mother relies, is r 15.49 which provides:

(1)If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court's permission.

(2)The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:

(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;

(b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or

(c)there is another special reason for adducing evidence from another expert witness.

116I was not addressed on the matters arising from the Rules which provide for the appointment of another expert. No submissions were made to enable me to satisfy myself about the matters referred to in r 15.49(2). The mother may not be satisfied with the report of the SEW, but it is consistent with the father's treating counsellor and both have given a similar opinion. In these circumstances I do not consider it appropriate to order the appointment of another expert witness.

Unsupervised time

117The father's time with Child B has been supervised, it recommenced on 20 November 2016. I have carefully considered the reports from Perth Children's Contact Service discussed above and the recommendation contained therein, that subject to each child freely agreeing to visit with the father:

… those children who wish to see their father have extended regular weekly face to face unsupervised visits with him to maintain, support and continued [sic] the development of their relationship in parenting, bonding and attachment.

118The father is in a relationship. His fiancée lives with him. He proposes that Child B spend unsupervised time with him on Sundays from 9.00 am to 5.00 pm. I have already said I am unable to make any finding as to risk at this interim stage. The evidence of the single expert, the father's treating psychologist and the supervisor is that the father does not pose a risk to the children.

119However the mother's concerns are not to be ignored. From her perspective the story written by the father involving a young girl and the description therein would be very worrying particularly having regard to the ages of Child A and Child B.

120The mother is unlikely to be able to support unsupervised time. At this time she is physically and emotionally fragile and her reaction is likely to impact upon the children, which could disturb the progress made to date.

121In all the circumstances and balancing the relevant matters, I consider independent supervision of Child B's time with the father is not necessary. However to alleviate the mother's concern and its impact upon the children and their time with the father, I propose to order that the father's fiancée, Ms T subject to her consent, be present during the children's time with him. Child B is comfortable in her company and with some counselling Child A may be prepared to get to know her. It will be necessary for a family consultant to provide instruction to Ms T as to the role and responsibilities of supervisor.

122I consider that if Child B spends time with the father at his home, in the presence of Ms T any risk which may exist is alleviated such that it is not an unacceptable one. I further consider that it is in the best interests of Child B to spend such time with the father and that it is of benefit to her.

Christmas

123The father wishes to spend Christmas with Child B and Child A if she will visit. It may be that after counselling with Ms O, Child A is prepared to entertain a relationship with the father. At this stage I am not prepared to order that the children spend time on Christmas Day with the father. While it is important to him, I consider that the children should have an uneventful Christmas Day, but most importantly they should be able to spend it together. At the time of this decision, Child A will not spend time with the father and this could put Child B in a difficult position. I do not think it is in the best interests of the children for them to be separated on Christmas Day. That may mean another year goes by without the children spending time with the father on Christmas Day, but arrangements can be made for Child B, and Child A if she is willing, to spend time with him shortly before or shortly after Christmas and celebrate at that time. If the mother wishes to travel to Queensland with the children for part of the school holidays, subject to hearing from counsel she will be permitted to do so.

124The proceedings should be listed for trial as soon as possible.

THE PROPOSED ORDERS

125Subject to hearing from counsel the orders I propose to make are as follows:

1Paragraphs 3 and 4 of the orders made by consent on 2 June 2017 be discharged.

2The child, [Child B] born [in] 2005 spend time with the father each Sunday from 9.00 am to 5.00 pm, with the father to collect the child from the mother's home and return the child to the mother's home at the conclusion of the visit.

3The time spent referred to in these orders be supervised by the father's fiancée [Ms T] after [Ms T] has been provided with instruction as to the role and responsibilities of a supervisor by a Family Consultant.

4The child [Child A] born [in] 2003 spend time with the father in accordance with her wishes.

5The mother be permitted to remove the children from Western Australia for one half of the school holidays at the end of Term 4, 2017 for the purpose of a holiday in [Queensland], during which time the children's time with the father pursuant to paragraphs 2 and 4 above be suspended.

6The proceedings be included in the cases awaiting allocation of a trial date to be called over on 8 December 2017 at 9.00 am, with a fixed date being requested and the estimated hearing time for trial is 5 days.

7By no later than 7 days prior to Callover each party provide the Court and each other party with a Callover certificate in the form prescribed by the Principal Registrar from time to time.

8Not later than 14 clear days prior to trial each party shall:

(a) file and serve a written undertaking as to disclosure (except the Independent Children's Lawyer) in the form set out in the Family Law Rules 2004 (Cth), attaching each party's list of disclosure documents;

(b) give written notice to each other party of the names of the witnesses sought to be cross examined at trial; and

(c) file and serve the Papers for the Judge required pursuant to the Case Management Guidelines and Directions.

9In the event that a party intends to make objections to the affidavit evidence of any other party, then not later than 7 clear days prior to trial the first mentioned party shall provide to the other party a schedule setting out any objections (including the specific material the party objects to and the grounds for the objection) and not later than 2 clear days prior to trial, the first mentioned party shall confer with the other party to attempt to resolve the matter.

10The application and response be otherwise dismissed.

I certify that the preceding [125] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate