JONG & WEN

[2020] FamCA 1073

FAMILY COURT OF AUSTRALIA

JONG & WEN [2020] FamCA 1073

FAMILY LAW – PARENTING – interim parenting orders – whether the requirement for supervision be removed – historical mental health issues of the mother – where the mother has engaged with support services and treating professionals – whether there is an unacceptable risk to the children if time is unsupervised – spend time orders made.

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

Deiter & Dieter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4
Pinson & Pinson (No. 2) [2020] FamCAFC 111

APPLICANT: Ms Jong

RESPONDENT: Mr Wen

INDEPENDENT CHILDREN’S LAWYER: Holmes Donnelly & Co Solicitors

FILE NUMBER: SYC 829 of 2017

DATE DELIVERED: 16 December 2020

PLACE DELIVERED: Sydney (via videoconference)

PLACE HEARD: Sydney (via videoconference)

JUDGMENT OF: Altobelli J

HEARING DATE: 30 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Brasch QC

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wang

SOLICITOR FOR THE RESPONDENT: Herald Legal

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bryson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Holmes Donnelly & Co

Orders

Definitions:

1. ‘Commencement date’ is the date 7 days from the date of the publication of this order, being 23 December 2020.

IT IS ORDERED THAT:

1. As and from the commencement date, all previous orders be and are hereby discharged.

2. The matter be referred to the Listings Coordinator to be allocated a final hearing date.

3. As and from the commencement date, X born … 2016 and Y born … 2019, collectively referred to herein after as ‘the children’, live with the Father.

4. As and from the commencement date, the children spend time with the Mother as follows:

   (a)       From the commencement date until 1 February 2021:

   (i)Each Wednesday from 8am until 6.45pm;

   (ii)Each Friday from 8am until 6.45pm; and

   (iii)Each Saturday from 9am until 6pm.

   (b)       From 1 March 2021 until 1 June 2021:

   (i)Each Wednesday from 8am until 6.45pm; and

   (ii)Each Friday from 8am until 6pm on Saturday.

   (c)       From 1 June 2021:

   (i)Each Wednesday from 8am until 6pm on Thursday; and

   (ii)From 8am Friday until 6pm on Monday and each alternate week thereafter.

5. Until further order, each party, Mr Wen born … 1987 and Ms Jong born … 1992, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent, as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children, X born … 2016 (male) and Y born … 2019 (male), from the Commonwealth of Australia pending further Order of this Court;

   AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said Children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Children’s names on the Watchlist for the said period, or until the Court orders its removal.

6. The Mother shall continue to attend upon Dr A, as and when directed by Dr A, and follow any reasonable recommendations made by him, including, but not limited to, the ongoing engagement in clinical therapy or psychology and the administration of any psychotropic medication prescribed, if any.

7. The Mother is to forthwith authorise Dr A to notify the Father and/or the Independent Children’s Lawyer of any deterioration in the Mother’s mental state and functioning, impacting upon her parenting capacity, to ensure that the children are not placed at risk and this Order shall serve as an authority to Dr A to notify the Father and/or the Independent Children’s Lawyer accordingly.

8. The Father and the Independent Children’s Lawyer shall ensure that they provide Dr A with their contact details.

9. The Mother shall undertake hair follicle drug testing (sample being no shorter than 3cm) under chain of custody conducted at C Pathology, at the Father’s request provided such request is not made on more than one occasion every 3 months. Such testing shall take into consideration any prescription and over the counter pharmaceutical medications taken by the Mother. Such testing to be at the Mother’s expense at first instance but in circumstances any test result is negative the Father shall reimburse the Mother for such costs within 3 business days of receipt of such request and provision of the tax invoice supporting the expense.

10. Each party:

    (a)is restrained from denigrating or making negative comments about the other party;

    (b)must use their best endeavours to remove the children, or either of them, from any situation that has as its effect the denigration of the parties, or either of them, in the presence or hearing of the children, or either of them; and

    (c)is restrained from discussing these proceedings, or the proceedings in respect of the Apprehended Domestic Violence Order, with the children, or either of them, or within their hearing.

11. The parties continue to use, at their own cost, the Application ‘Our Family Wizard’, and only communicate with each other through that Application, except in the case of an emergency, in which case the parties shall communicate by email and/or telephone, as soon as reasonably practicable.

12. The parents are to ensure that X consult with Dr D, Paediatrician in relation to his allergies.

13. The parents are to ensure that the children attend upon only Dr E at F General Practice as their treating General Practitioner unless the parties otherwise agree in writing.

14. Each parent shall inform the other parent, within 24 hours of receiving a specialist referral, in relation to the children, or either of them.

15. The parties, unless otherwise agreed in writing, shall follow the medical advice of any Doctor the children have consulted with.

16. The Mother shall provide a copy of these Orders to the children’s daycare/school and Dr A.

17. The Mother consents, irrevocably, to the Independent Children’s Lawyer communicating directly with Dr A and by this Order the Court authorises Dr A to communicate directly with the Independent Children’s Lawyer.

18. In approximately six months’ time, the Independent Children’s Lawyer convene a meditation or Legal Aid Dispute Resolution Conference between the parties, and it is requested that Legal Aid fund same.

19. Leave be granted to the parties to file consent orders in Chambers should the matter resolve at the mediation or Legal Aid Dispute Resolution Conference referred to above.

20. Leave be granted to the Independent Children’s Lawyer to issue more than five subpoena.

21. Leave be granted to the Independent Children’s Lawyer to approach the Court in Chambers to have the matter relisted if urgent issues arise on 48 hours’ notice.

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 Jong & Wen 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 SYDNEY

FILE NUMBER: SYC 829 of 2017

MS JONG

Applicant

And

MR WEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns two children, X born … 2016, and his brother Y born … 2019.  These reasons for judgment explain the further interim orders that the Court has made about the children spending time with their Mother.

Background

1. This matter commenced by way of an Application filed by the Father in the Federal Circuit Court on 27 February 2020. The matter was abridged to the Duty List of Judge Smith on 4 March 2020, where His Honour made orders that, inter alia, the children were to live with the Father, spend supervised time with the Mother and the Mother was to attend upon psychiatrist Dr A for the purposes of obtaining a report. His Honour also made an order placing the children on the airport watch list until further order.

2. The matter subsequently came before the Judge Smith on a number of occasions. It was ordered by consent on 11 March 2020 that the Mother spend time with the children for three full days per week, such time to occur in the presence of an agreed adult. This time progressed, by way of a consent order dated 3 April 2020, to four days per week. The current regime, however, is that provided for in the consent orders dated 12 May 2020, where the Mother is to spend time with the children, supervised by an agreed adult, on three full days per week, as opposed to four. The Mother contends that the frequency of time with the children was reduced as a result of work commitments.

3. It is not relevant or necessary for the purposes of the present application to further traverse the history of this matter within the Federal Circuit Court, save than to note that the matter was transferred to the Family Court by way of an order dated 16 September 2020. Judge Smith noted that the matter was to be transferred as a result of complex and long term psychiatric issues, in addition to the young age of the children.

4. The matter was subsequently referred to me on Monday 30 November from the Duty Registrar.  The Mother pressed her Amended Application in a Case filed 29 September 2020.  In the Father’s Response to the Mother’s Application in a Case, filed 23 November 2020, he proposed contrary orders. Thus, for example, whereas the Mother proposed that her time with the children become unsupervised, the Father proposed that it continue to be supervised, and at the cost of the Mother unless there was a mutually agreed supervisor.  The minute of order proposed by the Independent Children’s Lawyer was contained in a minute provided to the Court.  This minute provided for the Mother’s time to progress to unsupervised, and subsequently progress to overnight time.  As will be seen below, the Mother ultimately adopted the substance of the Independent Children’s Lawyer’s proposal, save with respect to the timing.

5. In short, therefore, and focusing on the contentious issues only, the Mother proposed that the children continue to live with the Father but spend time with her on an unsupervised basis, effective immediately.  Until 1 January 2021 she would spend time with the children each Wednesday and Friday from 8am until 6.45pm, and then each Saturday from 9am until 6pm.  Between 1 January 2021 and 1 February 2021 it would be each Wednesday from 8am until 6.45pm and each Friday from 8am until 6pm on Saturday.  Thereafter it would be each Wednesday from 8am until 6pm on Thursday and from 8am Friday until 6pm on Monday each alternate weekend.

6. The Independent Children’s Lawyer’s proposal differed slightly. Up until

   
   

   1 February 2021, the children would spend each Wednesday and Friday from 8am until 6.45pm, and each Saturday from 9am to 6pm, with the Mother.  Between 1 February 2021 and 1 May 2021 it would be each Wednesday from 8am to 6.45pm and each Friday from 8am until 6pm on Saturday. Thereafter from 1 May 2021 it would be each Wednesday from 8am until 6pm on Thursday, and then each alternate Friday morning at 8am until 6pm on Monday. 

7. By contrast, the Father proposed that the Mother’s time with the children continue to be supervised each Wednesday and Friday from 3pm to 6.45pm and each Saturday from 9am to 6pm.  The supervisor would be an agreed adult or, in the absence of agreement, a professional supervisor at the Mother’s expense.

8. As will be seen from the submissions made, and the evidence before the Court, the main issue was whether there continued to be a risk of harm for the children such that their time with the Mother needed to be supervised.

The Material Before the Court

1. In support of her case, the Mother sought to rely on the following documents:

   a)The Amended Application in a Case filed on 29 September 2020;

   b)Her affidavit filed on 8 September 2020 and corresponding exhibit bundle marked ‘[M2]’;

   c)Her affidavit filed on 29 September 2020 and corresponding exhibit bundle marked ‘[M3]’;

   d)The affidavit of Dr G sworn/affirmed on 24 July 2020;

   e)The Child Dispute Conference Memorandum of Consultant H dated 17 April 2020;

   f)The Psychiatric Report of Dr A dated 16 April 2020;

   g)A 126 page tender bundle emailed to Chambers on 20 November 2020; and

   h)The written submissions of Dr Brasch QC dated 30 November 2020.

2. In support of his case, the Father sought to rely on the following documents:

   i)His affidavit filed 27 February 2020;

   j)His affidavit filed 23 March 2020;

   k)His affidavit filed 24 March 2020;

   l)His affidavit filed 5 May 2020;

   m)His affidavit filed 23 July 2020;

   n)His affidavit filed 9 September 2020;

   o)His affidavit filed 16 September 2020;

   p)His affidavit filed 23 November 2020;

   q)The Response to an Application in a Case filed 23 November 2020;

   r)The affidavit of Dr G sworn/affirmed on 24 July 2020; and

   s)The Psychiatric Report of Dr A dated 16 April 2020.

3. The following documents were marked by the Court as exhibits:

   t)The exhibit bundle ‘[M2]’ to the Mother’s affidavit filed 8 September 2020 is marked as exhibit AM-1;

   u)The exhibit bundle ‘[M3]’ to the Mother’s affidavit filed 29 September 2020 is marked as exhibit AM-2;

   v)The Mother’s 126 page tender bundle sent to Chambers on 20 November 2020 by way of email is marked as exhibit AM-3;

   w)The Psychiatric Report of Dr A dated 16 April 2020 is marked as exhibit ICL-1;

   x)The affidavit of Dr G sworn/affirmed on 24 July 2020 is marked as exhibit ICL-2; and

   y)The Child Dispute Conference Memorandum of Consultant H dated 17 April 2020 is marked as ICL-3.

The Applicable Law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)      ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)      protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)      ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)      children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)      children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)      parents should agree about the future parenting of their children; and

   (e)      children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)      to maintain a connection with that culture; and

   (b)      to have the support, opportunity and encouragement necessary:

   (i)       to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)      to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)      abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)      family violence.

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

   (4)     The presumption may be rebutted by evidence that 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 for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)         consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)         consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)         if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)         a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)         the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)         consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)         consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)         if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)         the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays; and

   (b)         the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c)         the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)         how far apart the parents live from each other; and

   (b)         the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)         the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)         the impact that an arrangement of that kind would have on the child; and

   (e)         such other matters as the court considers relevant.

1. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests. 

   60CC Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The case law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said:

   9.        Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.      Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

5. At the heart of this matter was a risk assessment exercise.  The Full Court of the Family Court of Australia in Deiter & Dieter [2011] FamCAFC 82 stated in this regard, at paragraph [61]:

   The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements — the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the court.

The Adjournment Application

1. Mr Wang, solicitor acting for the Father, sought an adjournment of the interim hearing on the basis that his Counsel was unavailable to run the matter that day.  The adjournment application was opposed by both the Mother and Independent Children’s Lawyer. The Court declined the adjournment application noting a number of matters.  Firstly, when the matter was listed before the Registrar on 30 November 2020, the order specified: “..for mention and possible interim hearing.”.  Secondly, in the Mother’s solicitor’s letter to the Father’s solicitor dated 12 November 2020, it clearly foreshadows at least the possibility of an interim hearing on 30 November 2020.  Thirdly, Mr Wang demonstrated an impressive mastery of the facts of the case, manifested during the adjournment application, and thus the Court came to the view that there would be no prejudice to his client if he were forced to present his client’s case.  As it turned out, Mr Wang was able to argue the Father’s case fulsomely and capably.

The Cases Summarised

1. Ms Bryson, the advocate for the Independent Children’s Lawyer representing the children, relied principally on the single joint expert report of Dr G, the report of Dr A, the Mother’s treating psychiatrist, and the voluminous supervised contact visit reports, all of which, she contended, would reassure the Court about the absence of an unacceptable risk of harm to the children, if they spend limited unsupervised time with the Mother.  Ms Bryson submitted that an acute crisis in the Mother’s life had precipitated the need for supervision but that now there was evidence before the Court to suggest that the Mother had engaged satisfactorily with treatment, and thus there was no longer the need for supervised time.

2. Dr Brasch QC appeared for the Mother.  Her case was consistent with that of the Independent Children’s Lawyer but went further.  She submitted on behalf of the Mother that the Court would not be concerned that the Mother’s past family violence directed towards the Father presented any risk of harm to the children, or any other basis for her not spending unsupervised time with them. The Mother’s past behaviour was frankly acknowledged as were her past mental health and alcohol consumption issues.  Dr Brasch submitted that, based on the totality of the evidence before the court, it would be satisfied that these are no longer issues in the Mother’s life and thus there is no risk of harm to the children.

3. Mr Wang, on behalf of the Father, urged the Court to revisit the history of this matter, as well as all of the evidence filed by the Father.  He submitted that in view of that history, including the Mother’s conviction for a breach of AVO, there was an ongoing need to protect the children from risk of harm from her, hence the need for continued supervision.  Rather than the Mother’s continued engagement with her treating psychiatrist being of reassurance to the Court, he submitted that the frequency of it would be of concern to the Court.  The Father’s case emphasised the consistency and quality of the Father’s parenting of the children.  He urged the Court to proceed cautiously in circumstances where the Mother could easily be presenting her best behaviour in the context of supervision, which would not necessarily follow in an unsupervised context.  As the risk of harm to the children continued, supervision should not be removed at least until 26 July 2021 which is the date of expiration of the Mother’s Conditional Release Order imposed as a consequence of her pleading guilty to contravening an Apprehended Violence Order.

The Expert Evidence

1. Dr G is a Child, Family and Adult Psychiatrist whose report dated 24 July 2020 is annexed to his affidavit made 24 July 2020.  Dr G’s report is based on interviews held with the parents, the children, observations of the children, a telephone interview with Dr A, the Mother’s treating psychiatrist and skype interviews held with the maternal grandmother and paternal grandparents held over 20 and 21 July 2020.

2. Dr G ultimately recommended that there be shared parental responsibility, and the establishment of a shared care arrangement with the support of a parenting coordinator.  The Mother would need to maintain her current treatment with her treating psychiatrist Dr A.  He also recommended a number of other matters pertaining to aspects of both the Mother’s and the Father’s parenting.  As it turns out, neither the Mother nor the Independent Children’s Lawyer submitted that the Court should proceed to implement Dr G’s recommendation as currently formulated.  A much more cautious approach was suggested.  The Court notes that that is entirely appropriate, on the facts of this case.

3. There are many aspects of Dr G’s report that bear reference and comment by the Court. Some of the Court’s comments set out below are drawn from the totality of the evidence before the Court and not just Dr G’s report. For example, Dr G found the Father to be both earnest and thoughtful, and that his primary focus was on the children’s safety and best interests.  Indeed, this Court’s observation of the Father, based on the totality of the evidence, and even the manner in which his case was presented by his solicitor Mr Wang, is entirely consistent with this observation.

4. The Father was genuinely concerned about the children’s safety and best interests.  The Court could detect that no malice, for example, or ill feeling was directed towards the Mother.  This is even though, the Court acknowledges, the evidence creates a very strong impression of the Mother’s totally inappropriate, and indeed violent, behaviour towards him, and probably in the presence of the children.  He had every reason to be concerned about the Mother’s mental health, and indeed the expert evidence establishes her poor mental health.  There was certainly a period in the Mother’s life in the period leading up to the final separation when the Mother’s behaviour was volatile, erratic, aggressive, violent and unpredictable.  The impression formed from the evidence is that her consumption of alcohol exacerbated these matters and there were probably actions on behalf of the Mother which would have legitimately led the Father to believe that she was contemplating self-harm. 

5. Dr G refers to the Mother’s mental health history.  This was initially given by her, and then independently obtained from her treating psychiatrist Dr A, and then independently assessed by Dr G himself.  The evidence suggests that the Mother suffered from post-natal depression.  She was subsequently diagnosed with features of cluster B borderline personality disorder. 

6. Dr G noted and seemed quite impressed by the level of the Mother’s self-awareness and insight about her past behaviour and poor mental health.  For example, at paragraph 38 of his report he records how the Mother took responsibility for her impatience and escalation of arguments with the Father.  She accepted the need to seek professional advice. At paragraph 40 she acknowledged her previous volatile mood, behaviour, violence, self-harm and suicidality, exacerbated by her drinking behaviour.  At paragraph 44 the Mother confirmed the Father’s allegations about her violence and erratic behaviour.  She herself described this behaviour as “terrible”. The Court observes that the Mother’s insight and understanding into her past behaviour and its potential consequences is quite impressive when compared to the potentially hundreds of other cases involving mental health, alcohol and violence that have come before this Court.

7. Dr G recorded, as a result of the observations of the children’s interaction with their Mother, the obvious close relationship between them, and her emotional attunement with them.

8. Turning specifically to the question of the Mother’s mental health and associated issues, Dr G sets out at paragraphs 110 to 113 the discussions he had with Dr A, the Mother’s treating psychiatrist.  This bears reproduction in full: 

   110. Dr A provided additional feedback regarding the mother’s progress in therapy. This was consistent with his detailed report to the Court dated 16 April 2020. His opinion was also consistent with the views formed by the report writer.

   111. Dr A identified that the mother had responded well to therapeutic intervention. She had attended on a consistent basis. She continued to present as a loving and caring mother.  Given her response to treatment, Dr A was increasingly confident regarding the children’s safety. He had failed to identify any risk to the children during the therapy.  There had been no evidence of ongoing substance use as confirmed by hair follicle testing.  There was no indication of excessive use of alcohol.

   112. He did not identify the mother to fulfil the criteria for Borderline Personality Disorder or Obsessive Compulsive Disorder. He did identify her to have been domineering and perfectionistic, in the context of obsessive-compulsive and borderline personality traits. He identified cultural issues contributing to her presentation. He referred to the Chinese history of preferencing male children over girls. The mother had grown up having been subjected to discrimination as a female child. This had contributed to the development of aberrant personality traits. He identified dramatic and exaggerated behaviour, manipulative and self-destructive actions, passive-aggressive behaviour in relationships and threatening behaviour, to be extremely common and reflective of this cultural background. This had been amplified by her experience of her parents’ relationship. She had experienced her mother to be dramatic and controlling.

   113. He did not identify any need for additional psychiatric intervention or psychotropic medication. In his view, there was no indication that the children were at risk or that she required ongoing supervision during her care of the children.

1. Dr G’s own assessment about risk of harm issues is found at paragraphs 117-121.  For present purposes, the most relevant paragraphs are 119-121:

   119. Prior to this intervention, family violence perpetrated by the mother had placed the children at risk of psychological harm. The mother had subsequently attended assertive psychological intervention with Dr A, her treating psychiatrist. The mother provided a clear account of the skills and strategies that she had developed to ensure greater emotional regulation in response to this intervention. This was consistent with Dr A’s observations. The mother was identified to be a loving and committed parent. She accepted responsibility for her out-of-control behaviour and no longer resided in a marital relationship which had been the source of ongoing frustration. Given this, there had been a substantive reduction in the risk posed to the children. Given the stabilisation in her mental state and limited drinking behaviour, the children were identified to currently be at low risk of further exposure to family violence.

   120. The father alleged that the children were at risk due to inappropriate medical care. He focussed on the inappropriate use of Microlax enemas for Y in his Affidavit material.  The risk to Y was identified to have been overstated by the father. By consulting different medical practitioners it was probable that different advice had been received. This is a common problem in such circumstances. This is best addressed by the parents agreeing to consult a single General Practitioner with them both involved in future specialist referrals.

   121. Importantly, the mother had highlighted to the report writer and the administration staff her concern about possible exposure to dog hair during the assessment. At her behest, dog hair was cleaned from the premises and the therapy dog was not present for several days preceding the assessment. Nonetheless, X did experience coughing and nasal congestion, most probably due to an allergic reaction as predicted by the mother. She took appropriate action to address this. She took the children outside onto the balcony and provided X with a non-sedative antihistamine, Zyrtec. She responded in a calm and consistent manner to X’s needs. X’s symptoms settled within 20 minutes as predicted by her. This was viewed as evidence of appropriate and assertive care from a concerned and highly attuned mother.

2. Dr G found that a loving and engaged relationship was observed between the children and both parents, both of whom were attuned to the children’s communication and needs. 

3. At paragraph 128, Dr G was somewhat critical of the Father’s lack of trust in the Mother and her judgement.  Dr G’s concern was, specifically, that this would limit the Father’s capacity to support the important and continuing relationship between the children and the Mother.  Dr G formed the view that the Father was, at times, perhaps excessively concerned about the Mother’s actions.  He noted that “Hypervigilance is a common post-traumatic reaction.  This should be viewed as a response to his lived experience of the Mother’s out of control behaviour.”  The Court notes Dr G’s statement, couched as it was in the context of understanding how the Father’s experiences of the Mother would shape his concerns.  This Court records that it completely understands how the Father feels, and why he maintains his concerns about the safety of his children in the Mother’s care.  His concern is, indeed, consistent with his lived experience of the Mother’s past behaviour. Of course, in a risk assessment exercise, such as the present one, conducted within the framework of Part VII of the Act, the Court must take into account a range of other considerations.

4. Dr G found that both parents had the requisite capacity to meet the children’s needs.  He suggested that, however, the Father was less highly attuned to their emotional needs by comparison with their Mother.  Indeed, Dr G seemed impressed by what he described as the Mother’s “…more sophisticated awareness of the children’s natures and communication.”

5. Dr G acknowledged that there had been family violence to which the children had probably been exposed.  Without expressly articulating this, the Court’s impression is that Dr G seemed concerned about the dissonance between the Mother and Father’s account of the family violence.  The possibility that the Mother has minimised the family violence is one that this Court acknowledges.  Nonetheless, as Dr G highlights at paragraph 140 of his report, the children’s life experience is stabilised with there being no current evidence of developmental disruption predictive of further emotional or behavioural issues.  Thus, there was no indication of ongoing effects of any trauma which the children experienced, or were exposed to. 

6. Ultimately, Dr G conceptualised the Mother’s mental health consistent with the opinion expressed by her treating psychiatrist, Dr A.  Thus, the Mother had features of borderline personality disorder and an adjustment disorder with depressed mood. There were cultural factors that contributed to this.  Nonetheless, at paragraph 149 he expressed the view that the Mother was observed to be a committed and motivated Mother.  He expected that with the support of her treating psychiatrist and the resolution of what appeared to be unresolvable relationship problems with the Father, it could be anticipated that she would have the capacity to address the children’s needs within a more stable framework.  Thus, he concluded:

   Given these circumstances, there was a significant diminishment of the risk to the children of further unstable mood and behaviour.

7. The other expert evidence came from Dr A, the Mother’s treating psychiatrist, in his report dated 16 April 2020.  He concluded that the Mother has features of borderline personality disorder and there was a history of depressed mood, in the context of adjustment disorder.  There was a family history of depression and other mental health issues, which might suggest a genetic vulnerability of depression.  The Mother had a history of disturbed self-psychology.  He found her to be at low risk of self-harm, or harming others, or of further violence or aggression.  He recommended that the Mother engage in regular psychotherapy and, subject to that, she was at low risk of harm to herself, or others.

8. The Court recognises that the evidence of both Dr G and Dr A is untested.  The Court also recognises that Dr A’s evidence is as a treating psychiatrist who has, of necessity, relied on the Mother’s own report to him.  Nonetheless, Dr G formed similar conclusions to Dr A, both in terms of the Mother’s mental health and the risk profile presented as a result thereof.  In addition Dr G was, of course, an independent expert.  Thus, both Dr G and Dr A present importance evidence in this matter which, even if untested by cross-examination, should receive significant weight: Pinson & Pinson (No. 2) [2020] FamCAFC 111.

Impressions formed from the other evidence.

1. Whether one has regard to the Mother’s evidence, or the Father’s evidence, the Mother has been historically the primary carer for the children.  That changed, of course, in the period after separation and when Smith J made the orders that he did in March 2020.  This does not appear to have affected the nature of the Mother’s relationship with the children.

2. The Mother’s supervised time with the children has been completely without incident.  The Father had ample opportunity to point the Court towards any significant concerns about the Mother’s behaviour with the children under supervision.  The Father was unable to raise anything of substance.

3. The independent evidence by way of drug testing establishes that there are no issues about the Mother’s drug use. 

4. The Father’s parenting of the children since they came to be primarily in his care had been exceptional.  He has readily and effectively stepped up into the primary parenting role.  The only difference observed by Dr G appeared to be about the level of each parent’s emotional attunement to the children’s needs. 

5. The family violence perpetrated by the Mother appears to be situational in the context of an unhappy relationship, an acrimonious separation, combined with the Mother’s mental health issues at the time, exacerbated by her alcohol consumption.  None of this, of course, either justifies or minimises the Mother’s behaviour.  The expert evidence about her mental health, as well as the impact on the children of what has occurred, is reassuring.  The Mother’s demonstrated level of insight into her past behaviour and its consequences, as well as her solid track record of engagement with her psychiatrist, all bode well for her, and the children.

6. The Father’s desire for the Court to adopt the lowest possible risk profile for the children is understandable given what he has experienced, but possibly fails to appreciate that risk elimination is rarely, if ever, possible and in any event, needs to be balanced against the importance of the children having the highest quality relationship with their Mother, particularly having regard to their age and developmental stage, and the limitations that are imposed on this as a result of supervision. 

7. It is important for the parents to remember that risk assessment in children’s cases is a dynamic process, not a static one.  Risks to children change over time and in the context of different circumstances.  Risks to children can increase, but also decrease.  The Court cannot be bound by risk assessment undertaken at an earlier time and in the absence of further and better evidence.

Supervision

1. This Court concludes that, for the purposes of the present interim application, and consistent with the proposals of both the Independent Children’s Lawyer and the Mother, the children’s time with their Mother no longer needs to be supervised.  The risks that existed at the time that Judge Smith made the current orders for supervised time have changed significantly.  The combination of Dr A’s evidence, Dr G’s evidence, the satisfactory supervised contact, the Mother’s engagement with services, and the testing about substance abuse, all create a significantly different risk profile for the children.  On present indications, the risk of the Mother relapsing into mental ill health, or substance abuse are no longer unacceptable.  Such risks as exist can be managed by careful monitoring of the Mother’s time with the children, limiting extended periods with them, and requiring her to continue her engagement with services. 

2. Senior Counsel for the Mother was correct in submitting that the Father’s case was presented on the basis that there should be no risk to the children at all, as opposed to the risk to the children not being an unacceptable one.  Moreover, the Father’s case failed to give enough weight to the evidence of the single joint expert Dr G, whose comprehensive, and holistic assessment of this family strongly contraindicated the need for supervised time. 

3. Once the risk issues became manageable, the focus turned to ensuring that the children have a meaningful relationship with their Mother, which was an outcome that was rendered far more difficult and problematic by the Father’s insistence that her time with the children continued to be supervised. The Father’s concerns are bona fide, but are subjectively based, with little current objective basis, and in any event can be sufficiently managed in other ways.

Orders in the best interests of the children

1. It is important to acknowledge that the Father did not present an alternative to the Court should continued supervision not be ordered.  When pressed about this, the Father’s solicitor did not have instructions and thus could not articulate any alternative to the orders proposed by the Mother and Independent Children’s Lawyer.

2. The minute of order proposed by the Independent Children’s Lawyer is comprehensive, and will be the starting point for a discussion by the Court as to the orders in the best interests of X and Y.

3. There seemed to be no obvious objection to many of the orders proposed.  This conclusion is derived not just from the absence of any submissions made by the Father in this regard, but by the orders the Father agreed to in his Response to an Application in a Case filed 23 November 2020.  Thus, the Court safely concludes that there was no opposition to orders 1 and 3-19 of the Independent Children’s Lawyer’s minute, with the exception of order 11 which concerns the children’s treating general practitioner.  Orders will be made in those terms. 

4. There was an issue about the children being taken by the parents to separate General Practitioners. Dr G recommended they attend a single General Practice. The Mother gives evidence they that the children have historically attended Dr E who practices at F General Practice. The Father has been taking them to another medical practice. Consistent with Dr G’s recommendations, an order will be made for the children attend upon Dr E.

5. The remaining issue is about order 2, the regime for the children to spend unsupervised with their Mother. The differences between the Independent Children’s Lawyer’s proposal, and the Mother’s proposal, have been articulated above.  This Court believes that it is in the best interests of the children that the orders be made as proposed by the Independent Children’s Lawyer save in relation to how quickly time progresses to overnights. The Mother’s proposal proceeds too quickly, and, the Court fears, could be a struggle both for her, and the children, as well as present unnecessary anxiety for the Father who is genuinely concerned about the children’s welfare.  The Independent Children’s Lawyer’s proposal is more sensitive to the impact of the change to overnight time in both the children’s lives, and the parent’s lives.  Hence order 2 will be made as proposed by the Independent Children’s Lawyer save that overnight time be introduced and progress one month later than proposed, out of an abundance of caution. I will order that these spend time arrangements commence 7 days from the date these orders are published.

6. The Court notes that it has granted to the Independent Children’s Lawyer leave to re-list on 48 hours’ notice.  This will give all parties the potential opportunity to bring the matter back before the Court should the need arise. 

7. The Mother also asks the Court to expedite the final hearing of this matter.  There is, unfortunately, nothing about the factual matrix of this case that makes it sufficiently different from many other similar cases that would warrant expedition in this Court.  Nonetheless, the matter will be referred to the listing co-ordinator for allocation of a final hearing date in due course. The parents are encouraged to review the implementation of these orders in approximately six months’ time, but on the basis that the Independent Children’s Lawyer convenes a mediation or legal aid conference so that the prospects of settlement may be fulsomely explored. The parties will be granted to leave to file consent orders in Chambers should an agreement be reached following any such mediation or conference.

8. No party sought orders in relation to parental responsibility, and hence this Court has not given consideration to the same.

9. It is appropriate that all previous orders be discharged.  It is also appropriate, then, given that both parents sought the same, that watchlist orders be made.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Altobelli delivered on 16 December 2020.

Associate:                 

Date:    16 December 2020