JILLET & MURDOCH

[2018] FamCA 313

FAMILY COURT OF AUSTRALIA

JILLET & MURDOCH [2018] FamCA 313

FAMILY LAW – CHILDREN – Best Interests – Where the mother alleges the father poses a risk of physical and sexual abuse to the children – Where the mother seeks that the father spend only limited supervised time with the children on the basis of unacceptable risk – Where the allegations of sexual abuse have not been substantiated and there is minimal objective evidence to support the allegations – Where the father does not pose an unacceptable risk of harm to the children – Where the children will benefit from having a meaningful relationship with both parents – Where the mother contends that her parenting capacity will be diminished if orders are made for the children to spend unsupervised time with the father – Consideration of the principles in A & A and Russell & Close – Where the mother is a highly capable parent – Where there is no evidence that the mother would decompensate as a parent if orders were made for the children to spend unsupervised time with the father – Where there are no concerns held as to the parenting capacity of either parent – Where there are some concerns the mother will be unwilling to facilitate the children’s relationship with the father – Where the mother and father live a significant distance apart – Where the father intends to move closer to the children’s current location – Where orders are made as sought by the Independent Children’s Lawyer and he father – Orders made for the parties to equally share parental responsibility and for the children to live with the mother and spend substantial and significant time with the father – Order made restraining the mother from relocating without notice to the father.

FAMILY LAW – PRACTICE AND PROCEDURE – Recusal Application – Where the mother alleges that she has not been afforded procedural fairness – Where the mother alleges there is perceived or apprehended bias – Where the final hearing proceeded in a manner that did not meet the mother’s expectations – Where there is no evidence of bias – Where the mother has been afforded procedural fairness – Application dismissed.

Evidence Act 1995 (Cth) ss 76, 79, 140(2)(c)
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC, 69ZN, 69ZR, 69ZT, 69ZX
Family Law Rules 2004 (Cth) rr 15.65
Good Medical Practice: a code of conduct for doctors in Australia (March 2014) ss 1.3, 8.4.1
Health Records and Information Privacy Act2002 (NSW) ss 13, 26 – 32, sch 1

A & A (1998) FLC 92-800; (1998) 22 Fam LR 756; [1998] FamCA 25
Deiter v Deiter [2011] FamCAFC 82
Ebner v Official Trustee in Bankruptcy 205 CLR 337; [2000] HCA 63
EL & ML and DM [2003] FamCA 1449
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Jillet & Murdoch [2016] FamCA 1184
Johnson v Johnson 201 CLR 488; [2000] HCA 48
Johnson & Page [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
McGregor v McGregor [2012] (2012) FLC 93-507;(2012) 47 Fam LR 498; FamCAFC 69
Orwell & Watson [2008] FamCAFC 62
Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32
Russell & Close [1993] FamCA 62
Ruth & Hutton [2011] FamCAFC 99
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT: Mr Jillet

RESPONDENT: Ms Murdoch

INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Assoc

FILE NUMBER: PAC 5266 of 2015

DATE DELIVERED: 11 May 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 5 – 7, 27 February 2018 & 27 April 2018

REPRESENTATION

THE SELF REPRESENTED APPLICANT: Mr Jillet in person

COUNSEL FOR THE RESPONDENT: Mr Kelly

SOLICITOR FOR THE RESPONDENT: Derham Houston Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Assoc

Orders

1. All previous parenting orders are discharged.

2. The children of the marriage, B born … 2011 and C born … 2012 (“the children”), are to live with the mother.

3. The parents are to have equal shared parental responsibility for all decisions relating to the long-term care, welfare and development of the children.

4. If the father resides further than 50km from the G Town Interchange (Train Station) the children are to spend time with the father as follows:

   (a)       commencing on the first Saturday after these Orders, for two (2) occasions only on alternate Saturdays from 9am to 3pm, unsupervised, in G Town, with changeovers at the home of Mr F at N Street, Suburb N;

   (b)       thereafter, for a period of three (3) months, on alternate weekends from 10am on Saturday until 5pm on Sunday in Sydney;

   (c)       thereafter, on alternate weekends from after school on Friday until 5pm on Sunday;

   (d)       commencing in September/October 2018, for half of all school holidays following Terms 1, 2 and 3 as follows:

   (i)in odd numbered years the father’s time with the children is to commence at 9am on the first Saturday after the final day of the school term and is to conclude at 5pm on the second Saturday after the final day of the school term; and

   (ii)in even numbered years the father’s time with the children is to commence at 9am on the second Saturday after the final day of the school term and is to conclude at 9am on the third Saturday after the final day of the school term;    

   (e)       in each summer school holiday period from 5pm on the second Friday of January until 5pm on the following Thursday;

   (f)        from 9am to 5pm on Father’s Day in the event that such day does not fall on a weekend when the children would otherwise spend time with the father pursuant to these Orders such time to be spent in the G Town area, and changeovers to be at McDonalds at Suburb T;

   (g)       on the children’s birthdays in the event that the children are not otherwise spending time with the father pursuant to these Orders for two (2) hours in the G Town area commencing at the end of school on a school day or at 2pm on a weekend day or a non-school day with changeover at Suburb T McDonalds;

   (h)       commencing in 2019, the father’s time with the children is to be suspended on Mother’s Day and he is to spend time with the children from 9am to 5pm on Saturday only during the Mother’s Day weekend;

   (i)        at Christmas in even numbered years from 5pm on 24 December until 10am on 26 December;

   (j)        at Christmas in odd numbered years from 10am on 26 December until 5pm on 1 January;

   (k)       as otherwise agreed to by the parties in writing;

   (l)        unless otherwise specified all changeovers are to occur at Suburb L Railway Station or any other location agreed by the parties in writing.

5. If the father resides within 50km of the G Town Train Station, the children are to spend time with the father as follows:

   (a)       commencing on the first Saturday after these Orders, for two (2) occasions only on alternate Saturdays from 9am to 3pm, unsupervised, in G Town, with changeovers at the home of Mr F at N Street, Suburb M;

   (b)       thereafter, for a period of three (3) months, on alternate weekends from 10am on Saturday until 5pm on Sunday;

   (c)       thereafter:

   (i)on alternate weekends from after school on Friday until the commencement of school on the following Monday; and

   (ii)in each intervening alternate week from after school on Thursday until the commencement of school on the following Friday;

   (d)       commencing in September/October 2018, for half of all school holidays following Terms 1, 2 and 3 as follows:

   (i)in odd numbered years the father’s time with the children is to commence at 9am on the first Saturday after the final day of the school term and is to conclude at 5pm on the second Saturday after the final day of the school term; and

   (ii)in even numbered years the father’s time with the children is to commence at 9am on the second Saturday after the final day of the school term and is to conclude at 9am on the third Saturday after the final day of the school term;    

   (e)       in each summer school holiday period from 5pm on the second Friday of January until 5pm on the following Thursday;

   (f)        from 9am to 5pm on Father’s Day in the event that such day does not fall on a weekend when the children would otherwise spend time with the father pursuant to these Orders such time to be spent in the G Town area, changeovers to be at McDonalds at Suburb T;

   (g)       on the children’s birthdays in the event that the children are not otherwise spending time with the father pursuant to these Orders for two (2) hours in the G Town area commencing at the end of school on a school day or at 2pm on a weekend day or a non-school day with changeover at Suburb T McDonalds;

   (h)       commencing in 2019, the father’s time with the children is to be suspended on Mother’s Day and he is to spend time with the children from 9am to 5pm on Saturday only during the Mother’s Day weekend;

   (i)        at Christmas in even numbered years from 5pm on 24 December until 10am on 26 December;

   (j)        at Christmas in odd numbered years from 10am on 26 December until 5pm on 1 January;

   (k)       as otherwise agreed to by the parties in writing;

   (l)        unless otherwise specified all changeovers to occur:

   (i)at the children’s school if changeover is to occur on a school day; 

   (ii)       at Suburb T McDonalds if changeover is to occur on a non-school day; 

   (iii)any other location agreed by the parties in writing. 

6. The mother is to facilitate Skype/Facetime calls between the father and the children on Wednesday each week at 6pm, and at any other time either child may request.

7. The father is permitted to attend all school events and extra-curricular events in which the children are involved which parents are permitted to attend.

8. These Orders authorise any school which the children may attend to provide the father with all information, newsletters and other material normally made available to parents of children at the school.

9. Each of the parents is restrained from denigrating the other parent or any relative or friend of him or her, in the presence or hearing of the children and shall use their best endeavours to prevent any other person doing so.

10. Each of the parents, while the children are in their respective care, shall forthwith notify the other parent in the event of either child being affected by serious illness, sustaining a serious injury, or requiring medical attention.

11. Each parent shall advise the other parent of any medical professional or institution providing any medical care, counselling or the like to the children.

12. The parents are to keep each other notified of their residential address, email address and phone number and advise the other parent of any changes within seven (7) days of such change.

13. The mother is restrained from changing the children’s place of residence to a place further than 50km from the G Town Train Station without providing the father with 60 days written notice of her intention to do so and providing the father with her proposed address.   

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 Jillet & Murdoch 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 PARRAMATTA

FILE NUMBER: PAC 5266 of 2015

Mr Jillet

Applicant

And

Ms Murdoch 

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The parties’ two young boys, B aged six and C aged five (‘the children”), lived with both parents until separation in October 2014.  At that time the mother took the children to live with her and since that date the children have spent limited and usually supervised time with their father.

2. The children’s mother contends that the father poses an unacceptable risk of harm to his children and seeks orders that he continue to spend very limited supervised time with them until they reach high school age and that he then spend time with them during the day only. The mother also wishes to have sole parental responsibility for her sons.

3. The father contends that he has never posed any risk of harm to his children and has only accepted that his time with them be supervised to date as he had no alternative in the circumstances. He proposes orders that would see him share parental responsibility for the boys with the mother and that they live with the mother and spend substantial and significant time with him.

4. The independent children’s lawyer (“ICL”) supports the father’s position that he does not pose an unacceptable risk of harm to the children and that it is in their best interests for orders to be made in similar terms as those proposed by the father.

5. The question for me to determine is which proposed suite of orders is proper having regard to the paramount consideration being the best interests of the children.

6. On the final day of the hearing an oral application was also made on behalf of the mother that I recuse myself from further hearing.  I dismissed that application and indicated that I would publish my reasons for doing so at a later stage.  These Reasons also deal with my dismissal of that application.

Background

1. The father who is an engineer born in a European country and the mother, an Australian-born health professional met one another when working for an international aid agency in an overseas country.  They began living together in mid-2008 and married in January 2010.

2. After their marriage the parents initially lived with the maternal grandfather at his home in a suburb of Sydney.

3. In about April 2011 the father obtained full time work as an engineer at a facility near a major regional city and the family moved to that city.

4. The parties’ first son (“the older child”) was born in 2011.The mother took 12 months maternity leave from her then current position though she continued to undertake some casual work within her field from home.

5. The facility at which the father was working closed at the end of September 2012 and all employees including the father became redundant.

6. In November 2012 the parties’ second son, C (“the younger child”) was born and both parents were involved in the care of the children for the next few months.

7. The children were raised as bilingual, speaking both English and the language of the father in their home.

8. In about February 2013 the father spent four months in a developing country working for a non-government agency while the mother stayed in Australia with the children.

9. In December 2013 the mother obtained work in a position involving health policy in a developing country and the family moved to that country. The father obtained a little consulting work but was mainly engaged in the household, including in the care of the children. The parents also employed a full-time nanny to care for the children. The mother worked away from home for about five nights at a time on about five occasions over the ensuing ten months, and during these periods left the children in the care of the father.

10. The parties experienced relationship difficulties in 2014 when living overseas and discussed possibly separating, though this did not occur until October 2014.

11. Immediately prior to separation the mother travelled with the maternal grandfather who was visiting from Australia for three days within the country in which the family was living. Upon her return the mother formed the view that the father had not appropriately cared for the children in her absence and within a short time she left the father taking the children with her and returned to Australia. The father spent a few weeks in his home country in Europe and then also returned to Australia.

12. The mother spent a short time in Sydney living with the maternal grandfather upon her return but within a month had moved to Melbourne to take up employment. The father then returned to Australia and followed the mother to Melbourne.

13. The mother made the children available to spend time with the father in Melbourne for a few hours generally on two occasions each week in a public place such as a park, library or cafe.

14. After an incident on 17 December 2014 when the older child suffered an injury while in the care of the father the mother imposed an additional condition that the father’s time with the children be supervised.

15. On a number of occasions in December 2014 to mid-March 2015 the children spent time with their father supervised by mutual friends of the parents in public places such as parks. The mother herself also supervised the father’s time with the children on a number of occasions.

16. The mother then engaged with a professional to whom she had been referred by her general practitioner.  The qualifications of this professional who is described as a psychologist or social worker, and the nature of the therapy provided by this professional is not entirely clear though it appears to have been some parenting engagement and/or family therapy.  The father describes this person as a counsellor who facilitated him undertaking a parenting course between June and October 2015.

17. The mother permitted the father to spend unsupervised time with the children for a short time until there was an incident on 14 March 2015 in which the older child received a bump on his head in the course of an accident at a playground. The mother then once again required that the father’s time with the children be supervised. This supervision was undertaken by either friends, a babysitter or the mother herself through to mid-2015. On a couple of occasions the mother did permit the father to spend time with the children without supervision at a public library.

18. On 14 May 2015 the children spent time with their father at a pizza restaurant. The mother says that when she was bathing the children later that night she saw “four red imprints” on the younger child’s bottom which she thought looked like fingerprints.

19. The father spent time with the children in a public place which was once again supervised in accordance with the mother’s requirements until mid-September 2015. On one occasion the children spent two hours with the father at his home.

20. During the period up until mid-September 2015 the parents also took steps to attempt to reach agreement about the future parenting arrangements for the children but their dispute was unable to be resolved.

21. On 15 September 2015, with one week’s notice to the father the mother moved to Sydney to take up a new job.

22. The father initially remained in Melbourne and planned to travel to Sydney to spend time with the children.  As a result of communication by the father to the mother in relation to these arrangements the mother made a complaint to the police about the father’s conduct.  Police were of the view that there were no grounds for an Apprehended Domestic Violence Order (“ADVO”) and no further action was taken by them. 

23. There was at least one occasion at this time when the children spent time with the father in the Southern Highlands of NSW as the father initially stayed living in Melbourne.  He subsequently resigned from his job in Melbourne and moved to Sydney. 

24. On 31 October 2015 the father spent time with the children at a park in the suburb in Sydney in which the mother and children were living. The mother delivered the children to the father and remained in the area, stayed for about an hour and then left. She collected the children from the father a couple of hours later at a local library.

1. The mother noticed some red marks on the younger child’s legs later on 31 October 2015 and says that the following day, 1 November the red marks on the child’s legs had “turned into bruises”. The mother says that later that night when she was putting the younger child to bed he complained that his penis hurt.

2. According to the mother, on the following day, 2 November the younger child complained that the father had “hurted” his penis and bottom.  The mother formed the view that the father had “interfered with” the younger child.

3. The mother then presented the younger child to a children’s hospital where he was examined and assessed.  A notification was made by staff at the hospital to the Department of Family and Community services (“the Department”).

4. As a result of the notification made by the hospital the Department carried out an investigation in relation to both children. The matter was not referred to the joint investigation and response team (JIRT)[1]. An interview of the younger child conducted on 5 November 2015 was unsuccessful as he became distressed and did not want to speak to Departmental staff.  The older child was also not interviewed.

   [1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

5. Departmental officers interviewed the father on 6 November 2015.

6. In December 2015 the Department determined that there were no significant concerns in relation to either parent’s care of the children and that there was then no need for the Department to remain involved with the family. The parents were advised of this decision.

7. Despite the conclusion of the Department the mother continued to believe that the father posed an unacceptable risk of harm to the children and was not prepared to permit them to spend unsupervised time with the father. She made the older child only available to the father for one hour on 17 December 2015 and this time was supervised by a friend.  This was the last time the father spent time with either child for almost a year.

8. The father commenced parenting proceedings in the Federal Circuit Court in January 2016.

9. In January 2016 the mother engaged a family therapist to seek advice in relation to the children.

10. The mother contends that in the course of various conversations in March 2016 the children made disclosures concerning the father or his conduct which caused her concern.

11. The first court event in these proceedings was on 12 April 2016 when orders were made for the parties to enrol with a contact service for the purposes of supervised time between the father and the children and the matter was transferred to this court.

12. In May and June 2016 the mother took the children for an assessment by a paediatrician. She also sought the services of an agency which supports families who have experienced trauma and abuse.

13. The mother alleges that there were further conversations with the children which gave rise to additional concerns about the father’s conduct in June and July 2016.

14. In August 2016 a child and family psychiatrist was appointed to provide an expert opinion in the proceedings.

15. On 9 September 2016 interim orders were made that the children live with the mother and spend time with the father supervised at a contact centre for at least two hours per fortnight. 

16. The children’s time with their father recommenced in October 2016.

17. The expert interviewed the family members in November 2016. The expert’s report was released in January 2017.

18. In January 2017 the mother relocated from Sydney to a regional city within days of the new school year commencing.

19. Following the mother’s relocation the children continued to spend time with their father at the contact centre in Sydney each alternate weekend.

20. On 22 May 2017 orders were made by consent for a friend of the father to supervise the father spending additional time with the children for a six hour block period each alternate weekend. The father also began spending two hours supervised with the children in their home city on one day of each alternate weekend in substitution for the time that had been occurring at the contact centre in Sydney. These contact arrangements continued to be in place at the time of the final hearing in February 2018.

21. The final hearing proceeded over three days between 5 and 7 February 2018.  Although a subpoena had been issued to the hospital in relation to the younger child’s admission on 2 November 2015 no documents in relation to that admission were produced by the hospital.  Subsequently it became apparent that this was due to an error in the hospital records.  As the circumstances surrounding this hospital admission had become a very central issue in the dispute the proceedings were adjourned for a few weeks to allow for the documents to be produced on subpoena. 

22. The hearing was completed following further cross-examination of each of the parties on 27 February 2018. 

23. On 27 April 2018 the proceedings were listed for some short submissions concerning the practical implementation of orders proposed by the parties.

Expert Evidence

1. A child, family and adult psychiatrist (“the expert”) was appointed with the consent of the parties to provide an expert opinion in relation to the family.  The expert interviewed family members on 25 November 2016. 

2. The expert’s report dated 24 December 2016 which was released in January 2017 proved to be very controversial. 

3. In summary the expert recommended that the children continue residing with the mother and that they have regular contact with the father.  Although the expert did not assess that there was a need for supervision of the father’s time with the children he suggested that the time initially start as day contact with the father unsupervised and increase to include overnight time and then after 12 months to fortnightly contact overnight and one night in the intervening week.  The expert also expressed particular concerns about the mother’s anxiety and recommended that she have further intense psychological assistance.  He opined that should the mother be unable to overcome her anxiety and continue to seek evidence for sexual or physical abuse of the children by the father that this would raise major concerns for him.  A more detailed consideration of the expert’s opinion is a matter to which I will return.

4. Prior to the final hearing a number of issues had been raised in relation to the expert’s opinion. In the mother’s Case Outline it had been foreshadowed that she would seek leave to tender questions that had been put to the expert in March 2017 pursuant to Rule 15.65 of the Family Law Rules 2004 (Cth) (‘the Rules”) together with his answers. This leave was sought and granted so the mother relied upon evidence of the questions asked of the expert and his responses to them in May 2017.

5. It had also been indicated in the Case Outline filed on behalf of the mother that she took issue with many aspects of the expert’s report including the “factual basis” upon which the expert relied to form his opinions. 

6. It was further outlined on the mother’s behalf in the Case Outline that the expert erred by placing the children in a room with their alleged perpetrator and asking them about the reported disclosures, that is in having the father and children present together in the course of the assessment. 

7. It was also put on the mother’s behalf in the Outline that the expert had no qualifications or expertise in assessing child sexual abuse. 

8. It was not clear however, how these contentions concerning the expert evidence were proposed to be dealt with at the hearing.

9. At the commencement of the final hearing the only matter raised with respect to the expert related to the costs associated with his attendance. An order was made that each of the parties was to equally bear the cost of the expert’s attendance. The father’s position that consideration be given to reimbursing him half the costs associated with the attendance of the expert as he did not cross examine the expert was reserved.

10. The expert was then called for cross-examination on the third day of the hearing after each of the parents and their witnesses had given evidence.

11. The ICL cross-examined the expert first.  The expert who had received a number of additional documents which had been admitted as evidence in the proceedings since writing his report remained of the view that the children’s interests would be best served by continuing to live with the mother and spending substantial and significant time with their father.

12. The father did not cross-examine the expert.

13. The mother’s counsel cross-examined the expert for over two and half hours.  A significant issue in this cross-examination related to notes the expert had kept of his assessment of the family a copy of which had been produced in response to a subpoena and were tendered in their entirety in the proceedings.  The notes were hand written and as the mother’s counsel found them difficult to read he had requested that the expert provide a typed transcript of the notes which the expert had apparently declined to provide.  It was unclear who the mother proposed was to bear the costs associated with the expert’s time in preparing such a transcript.

14. In his report the expert had expressed the opinion that none of the incidents reported by the mother [about the father’s conduct] indicated to him that there was an unacceptable risk of harm or likelihood that the children were being abused.  When cross-examined about this opinion the expert did not agree that the entire assessment progressed on the basis of the sexual abuse not having occurred.  The expert was clear that it was a matter for the court to determine whether the sexual abuse had occurred. 

15. The expert was also extensively cross-examined about his opinion that the mother had features which suggested to him that she “still has hyper-vigilance and anxiety suggestive of ongoing chronic post-traumatic stress disorder (“PTSD”)”. 

16. The expert had also expressed an opinion as to the capacity for children of a young age to form, retain and express memories.  He was extensively cross-examined about this topic but remained firmly of the view that although young children could remember events memory is malleable and that there are a lot of factors impinging upon the reliability of their accounts including the circumstances of the questions and the repetition of questions leading to the risk of conditioning responses and answers from children.

17. The expert confirmed that it was not his view that a child aged three or four could not give an account of events historically but was firm that one could not reliably place weight on what a three year old says about events that had occurred months previously unless there was other information that would support it. 

18. The expert was also cross-examined about matters of fact that the mother contends were misunderstood by him contained in paragraph 398 of her trial affidavit.  The expert did readily concede that he had made some errors.  In other cases the expert did not concede he had made the asserted factual error.  He also did not concede that any accepted factual error affected his overall opinion.

19. The mother’s counsel also cross-examined the expert about a range of other matters.  They included the wisdom of his decision to assess the children together with the alleged perpetrator of abuse (the father).  The expert did not agree that this practise was unwise and said that it was essential and that in forming a view about the family he report how the children responded to each parent.

20. Another area of cross-examination concerned the documents produced on subpoena and whether an examination of any of them raised questions for the expert about the father’s parenting.  The expert said that none of these documents caused him to change his opinion concerning that matter. 

21. The expert was also asked whether the reports of the older child developing a stutter caused him concern.  The expert said that the significance of developing a stutter is a matter about which it is hard to be sure but is not necessarily stress related. 

22. After cross-examination of the expert by the mother’s counsel was complete the proceedings were then adjourned for a few weeks.  The hearing resumed after the hospital notes had been produced on subpoena.

23. At the resumed hearing the mother’s counsel made application that the expert be recalled for further cross-examination and that the court make an order that the expert provide a legible copy of his notes which it was submitted the expert had a duty to do.  I dismissed both the application that the expert provide a legible copy or transcript of his notes and the application that he be made available for further cross-examination for reasons which were given at the time. 

24. After each of the parties were cross-examined further and the evidence was complete I invited the ICL to make any further submissions in addition to her written submissions which had been provided to me in chambers. 

25. The father declined to make final oral submissions but relied upon his Case Outline provided prior to the commencement of the final hearing. 

26. The mother’s counsel was then invited to make final submissions.  Counsel had at that stage not filed written submissions but elected to address the court. 

27. As a result of matters put by the mother’s counsel and following further interchange between counsel and the bench an application was made that I recuse myself from further hearing, a matter to which I will return. 

28. It suffices to say however, at this stage that the mother’s counsel continued to rely upon the contention that as he did not have a legible copy of the expert’s notes prior to cross-examination the mother had not had a fair hearing. Counsel also submitted that the expert lacked the expertise to express the opinions that he gave and that the expert’s report did not comply with the Rules. There was particular concern about the expert having expressed an opinion about the likelihood of the sexual abuse having occurred. For these reasons it was submitted that the expert’s evidence was so flawed that it should be excluded in its entirety from the proceedings.

29. The application to exclude the expert’s evidence at that stage was dismissed. It was also made clear to counsel that to the extent the expert expressed an opinion as to factual matters, such as whether the children have been sexually abused by the father, that opinion would not be relied upon. It was my clear view that the expert possibly opining as to factual matters on occasion in his report did not render the entirety of his report or his evidence inadmissible.

30. In the mother’s final written submissions the issue is addressed again in more detail.  It is submitted that the court should give no weight at all to the evidence of the expert for the following reasons:

    ·    The expert basis his opinion on a number of errors of fact.

    ·    The expert failed to interview the children individually and/or undertake any assessment of the children.

    ·    Due to time constraints in the trial the mother’s counsel was not able to cross-examine the expert as to all of the errors asserted by her which denied the mother procedural fairness.

    ·    The expert’s opinions are not based on specialised knowledge, training or experience in topics relevant to the case.

    ·    The expert erred in interviewing the children in the presence of the person alleged to have caused them harm.

    ·    The expert’s actions demonstrate bias and disbelief of the children’s disclosures at the outset which thereby taints his opinions.

    ·    The mother’s lawyers were prevented from properly cross-examining the expert because his notes were completely illegible and in this way the mother was not afforded procedural fairness.

    ·    The expert failed to consider property the additional documents produced on subpoena.

    ·    The expert’s evidence is flawed in relation to children’s memory.

    · The discourse between the expert and the bench concerning the mother’s alleged anxieties and its impact upon her capacity to support the [children’s relationship with the] father indicates that the court and expert impermissibly were discussing repealed sections of the Act.

    ·    The expert did not properly assess the mother’s mental state

    ·    The father did not cross-examine the expert.

    · The expert did not properly answer the questions asked by him pursuant to the Rules.

31. The above summary touches upon most of the matters raised in the many paragraphs of the mother’s written submissions that deal with the expert’s evidence.  Many of the alleged deficiencies in the written submissions are duplicated and in some cases I am unable to understand the meaning of the criticism concerning the expert’s evidence.  Many of the asserted deficiencies in the expert’s evidence were also dealt with on the final day of the hearing when I dismissed the application to recall the expert and the later application to exclude his evidence from the proceedings.  Doing the best I can I have outlined in the preceding paragraph the reasons for which the mother contends that the expert’s evidence is fundamentally flawed and that no weight should be attached to it.

32. First it is said that the expert bases his opinion on a number of errors of fact. The alleged factual errors have been raised a number of times by the mother in various ways. 

33. First the mother asked questions of the expert pursuant to Rule 15.65. In his answers the expert acknowledges that he has made some errors of fact. For example he acknowledges that the preliminary statement in his report that he interviewed the children separately from the parents was an error.

34. The mother also raises 27 matters in paragraph 398 that she asserts are “factual inaccuracies”.  A careful reading of that paragraph reveals that many of the matters said to be inaccuracies are actually in the nature of commentary or submission.  Others relate to the expert’s observations in the course of his assessment and the impression he gained at that assessment.  For example, the expert’s observations that the mother became quite tearful at times, that the older child was pleased to see his father and the expert’s impression that “there was a strong attachment” between the children and the father, are asserted to be errors of fact.

35. In my view there are only a small number of the matters raised in paragraph 398 which can properly be characterised as alleged factual inaccuracies and the expert was cross-examined upon each of them.  As noted, in some cases the expert conceded he was in error.

36. In my view, many of the alleged factual inaccuracies are inconsequential on their face.  For example the expert wrote that the mother had a “panic attack” in court whereas the mother says she told the expert that she had felt panicked in court.  Of greater significance however, is that the expert did not concede that these alleged factual errors played any important role in forming the opinion that he did or caused him to change his opinion having accepted that he was in error as to some matters.

37. I remain of the view that the mother’s counsel was given a fair and ample opportunity to cross-examine the expert and did in fact cross-examine the expert concerning most if not all of the alleged disputed facts.  As the nexus between the small number of factual errors and the ultimate opinion was not made I am of the view that this issue does not substantially affect the weight to be given to the expert’s evidence.

38. It is also contended on the mother’s behalf that the expert failed to interview the children individually and/or undertake any assessment of the children which it is contended results in the expert’s evidence being fundamentally flawed.

39. This issue was also the subject of the questions of the expert pursuant to the Rules. It was not then suggested to the expert in those questions however that he failed to undertake any assessment of the children at all. Rather he was asked by the mother whether he assessed either or both of the children’s cognitive ability and if so what were the results and if not, why not? The expert’s answer to that question is as follows:

    I did not conduct a specific cognitive assessment of the children as it is not indicated.  A thorough cognitive assessment is a complicated and sophisticated formal assessment that would be conducted by a clinical psychologist and so it is not possible in such circumstances to provide an accurate cognitive assessment.  However, I did rely on the information provided from the material and documents for example [Dr P] reported that [the older child] had significant language delay.  [The younger child] was reported to have some developmental issues with rigidity by [Dr P] in a report dated 5/6/16.  [The older child] was assessed by [Dr P] on 28/05/16.  [Dr P] is a developmental paediatrician.

1. The expert was also asked if he assessed the children’s memory and whether or not such memory was within normal range for their age.  The expert’s reply included that it is not possible in such a context nor indicated to do a memory assessment of children of this age.

2. It is clear from the report itself that the expert did not fail to undertake any assessment of the children. He specifically spoke of determining “how [the] children respond to each parent” and “how [the children are] functioning” when cross examined on the issue of his assessment of the children and their interactions with the father.  

3. Another aspect of the expert’s assessment of the children which the mother contends leads to the evidence as a whole being flawed is that he interviewed the children together with their father who is the person alleged to have caused them harm.  The expert did not agree that this practise was unwise and said that in his opinion it was essential that in forming a view about the family that he report on how the children responded to each parent. 

4. The mother’s written submissions in relation to this topic refer to the findings from the Royal Commission into Institutional Response to Child Sexual Abuse.  These findings were not raised in cross-examination and do not form part of the evidence in the proceedings.  They will be disregarded when considering this issue. 

5. Submissions made in relation to the expert having interviewed the children in the presence of the father overlap and are intermingled with a persistent theme in the mother’s case throughout the proceedings that the expert himself had (improperly it seems to be suggested) formed a view as to the likely accuracy of the children’s disclosures which thereby tainted his evidence.  The expert was extensively cross-examined as to this issue and did not agree that he interviewed the family on the basis of the sexual abuse not having occurred.

6. In my view, it is very difficult for an expert in proceedings such as these to completely disregard the likelihood of important allegations in the matter being found to be true.  The recommendations that the expert made are clearly based upon his own assessment that the allegations were unlikely to be true.  However, it was equally clear throughout the expert’s oral evidence and a matter he acknowledged from the outset that the question of whether the father poses an unacceptable risk of harm to the children which requires that his time with them be supervised and limited as contended by the mother is a matter to be determined by the court. 

7. The expert made it clear[2] that if the court found that sexual abuse had occurred or that there was an unacceptable risk as to that matter he would have to review his recommendations.  It was open to the mother’s counsel to have questioned the expert about his opinion and recommendations if the court did find that the father posed this level of risk to the children.  However, the mother’s counsel chose not to approach cross-examination in this way. 

   [2]For example see Transcript of 7 February 2018 at page 11. 

8. An expert’s opinion is not determinative in parenting proceedings.  In each case it is a matter for the trial Judge to determine on all of the evidence those orders which are proper having regard to the best interests of the children being the paramount consideration.  There is no reason in my view to disregard the expert’s opinion about matters within his expertise relevant to the best interest considerations on the basis that he formed his own opinion concerning the likelihood of a party’s allegations being accepted by a court.  I am not of the view that the expert’s report is fundamentally flawed because of his opinion concerning the reliability of the children’s disclosures, nor am I of the view that this demonstrates bias on his part.

9. The issue of the alleged requirement or “duty” of the expert to provide a legible copy of his handwritten notes has already been dealt with twice in the proceedings when the application for an order in this regard was made and dismissed. It was also considered when refusing the application that I disqualify myself on the basis of apprehended bias.  In my view, a fair reading of the transcript indicates the mother’s counsel was not prevented from properly cross-examining the expert without a typescript of the expert’s notes and these matters do not affect the weight to be attached to the expert’s evidence.

10. The mother also contends that limits that I placed on her counsel’s cross-examination of the expert are relevant to the weight to be attached to the expert’s evidence.  This issue was also considered in the course of the proceedings when dealing with the mother’s applications to recall the expert for cross-examination, to have the expert’s evidence excluded and the application that I disqualify myself.

11. Another matter raised in relation to the weight to be attached to the expert’s evidence concerns the expert’s response to questions asked about additional documents that had been produced on subpoena and tendered in the proceedings which had been provided to the expert prior to giving oral evidence.  It is contended by the mother that it became clear in the course of cross-examination that the expert had not properly read those documents. 

12. In my view, it did become clear in cross-examination when it was drawn to the expert’s attention that he had overlooked certain matters in the documents produced on subpoena.  Of significance however, is that he did not change his opinion when the particular matters in the documents were drawn to his attention and he had an opportunity to consider them. 

13. It is also submitted on the mother’s behalf that the discourse between the expert and myself concerning the mother’s alleged anxieties and its impact upon her capacity to support the children’s relationship with the father was impermissible as this related to repealed sections of the Family Law Act 1975 (Cth) (“the Act”) and allegedly demonstrate the expert’s opinion is flawed.

14. In my view, this submission is misconceived.  I do not accept that it was impermissible for there to be an interchange between myself and the expert in relation to the mother’s capacity to support the children’s relationship with their father, nor does engaging in this discourse demonstrate a flawed opinion by the expert.  I am well aware that the willingness and ability of a parent to facilitate a relationship with the other parent has not been a matter that the court is required to take into account under the Act since June 2012 when considering the child’s best interests. However, this matter may be taken into account pursuant to section 60CC(3)(m) as any other relevant fact or circumstance.

15. This issue is also relevant to the primary consideration of the benefit to the children in having a meaningful relationship with both parents and is a central matter in this parenting dispute.  The mother contends that her imposition of supervision and limits on the duration of the children’s time with their father in the past and her proposal that this continue in the future, arises from concerns she has about the risks posed by the father.  The father contends that there has been no need for supervision in the past and that if his time with the children remains supervised and is limited in the future it will break down resulting in the children losing their relationship with him to their detriment. 

16. The father is self represented and did not ask any questions of the expert. In accordance with the principles for conducting child related proceedings contained in section 69ZN of the Act and in exercise of my powers under Division 12A of the Act, specifically section 69ZX, it was entirely permissible that these questions be asked. In engaging in that discourse the expert has not demonstrated that his opinion is flawed as asserted by the mother.

17. Another complaint which is said should cause me to attach no weight to the expert’s evidence is that the expert allegedly failed to properly assess the mother’s mental state. 

18. The expert did not claim to have carried out a complete assessment of the mother’s mental state but made a provisional diagnosis that she showed features suggestive of ongoing PTSD which he made clear he was open to reconsider if provided with other material. 

19. In my view the mother’s complaint as to the flawed nature of the expert’s diagnosis of her mental state is not established.

20. Two other matters raised in connection with the submission that no weight be attached to the expert’s evidence are that the father did not cross-examine the expert and that the expert did not properly answer the questions asked by him pursuant to the Rules.

21. It is not explained how the fact that the father did not cross-examine the expert can possibly affect the weight to be attached to the expert’s evidence.  If it is suggested that the absence of cross-examination by the father means that the expert’s evidence was not fully tested, I note that this testing occurred through cross-examination by the mother’s counsel, counsel for the ICL and some questions put by me.  In my view the expert’s opinion was thoroughly tested by cross-examination that consumed a large part of one day in the proceedings. 

22. The mother also raises a fundamental challenge to the expert’s report in submitting that it does not comply with section 79 of the Evidence Act 1995 (Cth) and that the expert has failed to show that his opinions are wholly and substantially based on specialised knowledge training or experience (in accordance with the provisions of Makita (Australia) Pty Ltd v Sprowles[3]). 

    [3] (2001) 52 NSWLR 705

23. These proceedings are being conducted pursuant to Division 12A of Part VII of the Act which includes section 69ZT (1) that provides certain provisions including section 79 of the Evidence Act do not apply to the proceedings. In McGregor v McGregor[4] the Full Court commented at [90]:

    … s 69ZT allows the admission of any opinion without the application of the opinion rule or the exception to it provided in ss 76 and 79 of the Evidence Act, unless the trial judge has determined to apply subsection (3) of s 69ZT and, as a consequence, applies the otherwise-excluded rules of evidence.

    [4][2012] FamCAFC 69;(2012) FLC 93-507;(2012) 47 Fam LR 498

24. While opinion evidence may be admitted under s69ZT without application of the opinion rule or exception, a consideration of the criteria that a person has “specialised knowledge” and that their opinion is “wholly or substantially” based on that knowledge under s79 of the Evidence Act and the principles of Makita (Australia) Pty Ltd v Sprowles (supra), are still relevant to the weight to be attached to such evidence. 

25. The thrust of this challenge in relation to the expert’s opinion appears to relate to his alleged lack of experience in forensic interviews of children said to have been sexually abused.  There is also a significant challenge in relation to the expert’s opinion about children’s memory and capacity for abstract thinking. 

26. As made clear throughout both his cross-examination and in the questions asked under the Rules and answers given, the expert has extensive training in the treatment of children and adults who have suffered sexual abuse. However, when assessing this family the expert did not undertake a forensic police interview or something akin to such an interview as that was not his role in the proceedings.

27. The expert also set out his expertise concerning the developmental issues in relation to cognitive and emotional development of children.  This is in my view the appropriate expertise and training to express the views that he did concerning the capacity of children to recall events and understand abstract concepts. The expert’s expertise and training also qualifies him to express his opinion as to each of the matters upon which that opinion was sought for the purposes of the proceedings.

28. The mother’s counsel has not identified how it is said that the expert did not properly answer the questions asked by him pursuant to the Rules.

29. In summary, in my view none of the matters raised by the mother of themselves or when taken together cause me to conclude that the expert’s opinion was so fundamentally flawed that no weight should be given to it.

30. The expert is a specialist Child, Family and Adult Psychiatrist and Fellow of the Royal Australian and New Zealand College of Psychiatrists. He has over 25 years’ experience working as a psychiatrist in clinical and forensic capacities. According to the answers given to questions asked in accordance with the Rules he has been treating clinically children and adults who have suffered sexual abuse for approximately thirty years. One of the positions he has held was as director of a children’s unit which specialised in children who had suffered significant abuse, neglect and significant behavioural problems. In relation to particular matters such as his opinion concerning children’s memory, the expert referred to relevant research in his responses and in his oral evidence and was cross-examined as to this research.

31. In my view, the expert is appropriately qualified to express the opinions that he does addressing the relevant matters to be taken into account in assessing what is in the children’s best interests. 

32. The expert’s evidence was tested through cross-examination by the mother’s counsel and the ICL for over four hours and the mother also raised questions in writing.  The expert in my view made appropriate concessions where he had made some factual errors and was prepared to reconsider matters when they were brought to his attention.  Having regard to his expertise and the testing of his evidence I accept his opinion and attach significant weight to the particular matters to which I will return when considering the best interest considerations. 

The Recusal Application

1. As previously touched upon, prior to making final oral submissions at the end of the last day of hearing an application was made on behalf of the mother that I disqualify myself from further hearing in the proceedings.

2. The recusal application was made in the context of the proceedings being listed for a fourth day of hearing following an adjournment of some weeks to enable the hospital to produce documents in answer to a subpoena relating to the younger child’s presentation on 2 November 2015.

3. On the final day of the hearing, 27 February 2018, the hospital records were admitted into evidence. The mother’s counsel then made an application to recall the expert for further cross-examination and that an order be made requiring the expert to produce a transcript of his notes. As indicated previously, I dismissed both applications and gave reasons for that dismissal at the time.

4. There was then further cross examination of both parties in relation only to matters arising from the documents produced by the hospital.

5. Following cross examination the parties were given an opportunity to make final oral submissions in addition to any written submissions that may have been forwarded to chambers prior to the final day of hearing. The ICL had prepared such written submissions which were supplemented by some short oral submissions. The father did not wish to be further heard in relation to the final orders and relied upon his Outline of Case filed prior to the commencement of the final hearing. The mother’s counsel had not filed any written submissions and said that he would prefer to make oral submissions.

6. When invited to proceed with those submissions the mother’s counsel said the following:

   ‑ ‑ ‑ your Honour, my submissions are to the effect that these were – and it follows on from that.  These were the proceedings upon which the mother would see herself having the chance to expect to see a full and frank explanation by people of what is to occur, where the father would give a version of events, it would be tested in a fair forum.  And it’s my submission and I’m putting this on instruction that the mother has felt anything but that has occurred here. 

7. As it appeared that counsel was suggesting that the mother considered that she had not been provided with a fair forum for determination of the parenting dispute I specifically asked whether counsel had an application to make on behalf of the mother. Initially the mother’s counsel said that he did not hold such instructions and seemed to withdraw the suggestion that the mother had not received a fair hearing.  After further clarification counsel informed the court that the mother had given further instructions that she did not believe that it had been a fair hearing and the mother’s counsel then made an application that I recuse myself from further hearing.

8. The oral application for disqualification was in my view somewhat difficult to follow though it was clearly put on the basis of apprehended bias rather than actual bias.  I understood the mother’s contention to be that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the competing parenting applications before me on the basis that I had prejudged the matter and shown bias towards the father’s application.  As indicated I dismissed the mother’s application.  The following are the reasons for doing so. 

The Law & Discussion

1. Although the application that I disqualify myself was couched in the language of a reasonable apprehension of bias, it arose in the context of the mother complaining of a subjective apprehension of bias.  It is important at the outset to identify that a judge need not recuse herself on the basis that a litigant subjectively believes that judge is biased.

2. In EL & ML and DM[5], Guest J stated:

   [20]…it should be said clearly that the fact a party has a subjective apprehension of bias is not of itself sufficient to warrant or require disqualification of a judge. I refer to what Mason J had to say in Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at page 352. Disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment which must be “firmly established”.

   [5][2003] FamCA 1449

3. In Ebner v Official Trustee in Bankruptcy[6], (“Ebner”) the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the following test for disqualification:

   [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

   [7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

   [8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

   [6] [2000] HCA 63; 205 CLR 337

1. I accept the submission of the ICL that the parents are both intelligent capable people who would be likely to be able to communicate politely and respectfully for the sake of the children.

2. I also attach weight to the Principles underlying the Act and the serious nature of any order which would remove a parent from all which is involved in the exercise of parental responsibility. Having regard to the foregoing, I am not satisfied that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them. Accordingly the presumption is not rebutted.

3. As an order will be made for the parents to have equal shared parental responsibility for the children, under s 65DAA(1) of the Act, I must consider whether the children spending equal time with each of the parents would be in their best interests, and whether such an order is reasonably practicable. Neither parent proposed at the completion of the proceedings that the children spend equal time with each of them. In any event, such an order would not be reasonably practicable while the father remains living in Sydney. Even if the father moves closer to the children’s residence, as he plans to do, he does not seek that the children spend equal time with him and the mother. It appears the father has accepted, as opined by the expert, that an equal time arrangement would not be feasible and it is in the best interests of the children for them to remain living primarily with the mother regardless of the father’s living situation.

4. I am then required to consider under s 65DAA(2) whether the children spending substantial and significant time with each of the parents would be in their best interests and reasonably practicable. 

5. Subsection 65DAA(3) sets out that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with a parent includes both days that fall on weekends and holidays and days not falling on weekends and holidays, and allows the parent to be involved in the child’s daily routine and occasions and events of particular significant to the child and/or the parent.

6. It is the mother’s case that it is in the best interests of the children for them to live with her and spend only limited and supervised time with the father because of the unacceptable risk of sexual and physical abuse posed by the father to the children were he to spend unsupervised time with them.

7. Both the ICL and the father seek orders that the father spend alternate weekends and half the school holidays with the children while he remains living in Sydney, with this time to be slightly extended once he relocates closer to the children.   

8. As made clear earlier in these Reasons I am not of the view that the father poses an unacceptable risk of harm to the children for any reason and it is in the best interests of the children for them to have a meaningful relationship with him. Given these findings, the children are likely to be greatly benefited by spending substantial and significant time with the father. I accept the expert’s recommendation that the children should spend regular and unsupervised weekend and holiday time with the father. If it becomes practicable (in the event the father moves) this will include midweek overnight time.

Other Matters

1. On 5 February 2018, the first day of the final hearing, an issue was raised as to the payment of the fees for the expert’s attendance at court as discussed earlier in these Reasons. An order was made that the parties equally share the cost of the attendance of expert and as the father did not seek to cross-examine the expert the issue in respect to the father being reimbursed his half of the cost was reserved.

2. The father did not press his application to be reimbursed half the cost of the expert’s attendance at court at any subsequent point in the proceedings nor did the father seek an order for his costs to be reimbursed. As a result, there are no submissions before me as to this issue.

3. In any event, the expert was cross-examined by both counsel for the mother and the ICL and his oral evidence has been of great assistance to me in determining these proceedings.

4. For these reasons I am of the view that there is no reason for the parties not to equally share the cost of the expert’s attendance at court on 7 February 2018.    

Conclusion

1. The parents of the two little boys under consideration are capable and highly competent, clearly love their children and want the best for them.

2. I am not satisfied that the children have been abused, neglected or exposed to family violence in the care of either of the parents or that there is a real risk that this will occur in the future. 

3. Having regard to the role of each of the parents in the children’s lives, the pattern of care prior to separation and the nature of the parent-children relationships, the children will clearly receive a significant benefit from having a meaningful relationship with both parents in the future. 

4. There is no need for the purposes of protecting the children from harm for their time with their father to continue to be limited and supervised.  Such an arrangement is also impractical and is not necessary for the purposes of ensuring the mother’s continued functioning as a capable parent.  There are also risks that if such an arrangement were to continue the relationship between the children and their father would break down which would be detrimental to their welfare and wellbeing.

5. For these reasons and having regard to all of the other matters taken into consideration in the foregoing judgment I am of the view that it is in the best interests of the children to make orders as proposed by the ICL and ultimately adopted by the father with some minor amendments as to practicalities of the orders.

6. I also include the mother’s proposed order in relation to notifying the father in the event of any proposal to move from her current location. I have increased the notice the mother is required to give the father from 28 days to 60 days (two months) to allow the father sufficient time to file an Initiating Application with the Court in the event he opposes the mother relocating with the children and he and the mother are unable to compromise as to this issue. In any event, as an order will be made for the parents to equally share parental responsibility the mother should not be providing notice to the father of imminent relocation but rather providing notice to the father of her desire to move the residence of a children so that the parents can together make a decision about this matter.  

7. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding four hundred and seventy six (476) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 11 May 2018.

Legal Associate:  E Nichelsen

Date:  11 May 2018