KEEN & BAIRD

[2018] FamCA 1032

FAMILY COURT OF AUSTRALIA

KEEN & BAIRD [2018] FamCA 1032

FAMILY LAW – REVIEW OF A SENIOR REGISTRAR DECISION – Where the father seeks additional time with the children – Where that time is supervised by the paternal aunt –  Where the current changeover arrangements are stressful for the children – Where the mother alleges sexual abuse of a child by the father – Where the father denies abuse allegations – Where both parties have a history of drug abuse – Mother granted sole parental responsibility – Supervision of the time with the father to continue – Changeovers to occur at a contact centre.

APPLICANT:

Mr Keen

RESPONDENT: Ms Baird

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 5878 of 2015

DATE DELIVERED: 7 December 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 27 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: David H Cohen & Co

THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ark Law Lawyers

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That the mother have sole parental responsibility for the children, X born … 2007 and Y born … 2010.

2. That the children spend time with the father each Sunday from 9 am until 5 pm.

3. That the children’s time with the father be supervised by Ms B (“the supervisor”).

4. That for the purpose of contact hand over in Order 2, the mother deliver the children to D Contact Service (“DCS”) at a time and place in accordance with the directions given to her by DCS, and that the children be collected by the supervisor from DCS.

5. That at the conclusion of the period of contact, the supervisor deliver the children to DCS in accordance with the directions of DCS and that the children be collected by the mother from DCS.

6. That each of the parents and, if required, the supervisor, immediately do all things required by DCS to facilitate the contact hand over including but not limited to attending any intake interviews and making the children available, if required, for any intake process.

7. That the father pay the costs of DCS.

8. That each parent is restrained from discussing the proceedings or the allegations with the children, or questioning the children about the allegations..

9. That each parent is restrained from denigrating the other parent in the presence or hearing of the children or allowing any other person to do so.

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 Keen & Baird 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 5878 of 2015

Mr Keen

Applicant

And

Ms Baird

Respondent

REASONS FOR JUDGMENT

1. Mr Keen (“the father”) and Ms Baird (“the mother”) are the parents of X born in 2007 and Y born in 2010.

2. On 23 August 2018, Senior Registrar Campbell (“the Senior Registrar”) made orders in relation to parental responsibility and supervised time for the father with the children.

3. The father now seeks to review the orders of the Senior Registrar and thus the matter proceeds before me as a hearing de novo.

4. There are two aspects of the father’s application.

5. He seeks to change the time that he spends with the children by extending the time from 9 am to 5 pm each Sunday as ordered by the Senior Registrar to each Sunday from 9 am to 6 pm and on alternate weekends, from Saturday morning until Sunday evening. He also sought time over the Christmas period.

6. It was conceded that the time ordered by the Senior Registrar was in accordance with the father’s then application.

7. The second issue that the father agitates is the order for sole parental responsibility.

CHILDREN’S TIME WITH THE FATHER

1. The mother alleges that since about 2012, the father has had a serious heroin and alcohol addiction and that he used heroin at times when the children were in his care, both before and after the parents separated in July 2014. In her affidavit she deposed to finding the father unconscious, surrounded by drug paraphernalia and his failing to collect the children from child care when the mother was working. She deposed to the father crashing the family car with the children in the car when he was drug affected and stealing money from her and items from the children.

2. The father alleges that the mother has mental health problems and that she has violently assaulted him and the children.

3. He alleged that the mother poured boiling water over his head in October 2013; that X ran away from the mother in mid-2015 because X was afraid of her; that she assaulted Y in his father’s arms in August 2015 and that she punched the father in the face in August 2015.

4. This family has been engaged in family law litigation since 2015.

5. The mother alleged that in September 2015, the father removed the children from her care and refused to return them. The mother brought an application before the Federal Circuit Court for the return of the children.

6. On 2 October 2015, Judge Sexton made an order that the children live with the mother and that she have sole responsibility for the children’s day to day care. The children were to spend time with the father supervised by a professional agency, each Tuesday from 4 pm until 6 pm, and each Friday from 4 pm until 6 pm.

7. Both parents were required to submit to urinalysis testing.

CDC MEMORANDUM

1. A Child Dispute Conference Memorandum was prepared on 2 October 2015. Under the heading “Risk Factors”, the Family Consultant noted:

   Substance Misuse

   ·    The mother said that the father has a long term problem of drug misuse. She said he has a heroin addiction that is being treated by Suboxone. She believes that his thinking and moods are impaired by drug misuse, such as over talkativeness, manic behaviour, sleeplessness. She said that this impacts on his caring for himself and the children. She said he lies, steals, deals in drugs and is exhausting to be around and cannot keep a routine.

   ·    The father said that the mother regularly misuses substances and that her sister is an ice addict and that they use together.

   ·    The father acknowledged misusing drugs and alcohol but denied the mother’s associated allegations. He said that he is now well and sober, having detoxed alcohol and no longer drinking.

   ·    The mother acknowledged having used some illicit substances with the father and that her sister is an ice user. She denied the father’s other allegations.

   Family violence

   ·    There is no AVO and police were apparently called on one occasion at the end of the relationship.

   ·    The father said the mother was physically violent; that throughout the relationship she hit, kicked and punched him regularly. He said he fears for his safety from the mother and her family.

   ·    The mother said that the father was not physically violent but that his behaviour and moods were emotionally abusive. She said that the lying and unreliability was abusive. She acknowledged having hit him.

   Mental Health

   ·    The mother thinks the father has mental health problems associated with substance misuse, including paranoia, mania, and distortion of reality.

   ·    The mother said she has suffered from depression and took anti-depressants for a brief period. She is not taking medication at present and feels emotionally relieved by the fact of the end of the relationship with the father.

   ·    The father said that the mother has problems of over control of others and extreme aggression (that she controls when not in view of his family).

2. The Family Consultant noted that the co-parent relationship was poor.

3. Under the heading “Issues for the children” the Family Consultant noted that the children appeared to be affected by the situation between their parents. She noted that they appeared clingy towards their father but returned after lunch with their mother cheerful and appearing energised. The Family Consultant noted that the observation tended to suggest that the children’s primary carer is their mother but that their father has a solid relationship with them.

4. The Family Consultant noted that the children:

   ...presented as tired, aware of their father’s proposals and under stress. [X] tried to leave the children care room on several occasions. [Y] used his dummy and blankie for comfort. He removed his dummy when with his mother and offered his blankie to [X] for comfort.”

5. The Family Consultant noted that the mother was well organised and confident with the children and displayed calm, appropriate parenting skills. She observed the interactions between the mother and the children to be easy, warm and close.

6. In observation of the children with the father, the Family Consultant noted “the father repeatedly returned to the topic of the children seeming to him to be upset about being in the child care room. Their interactions were somewhat distraught and upset.”

7. The Family Consultant noted:

   The children appeared to reflect each parent’s approach. They appeared to relax gain confidence when with the mother and crying and distressed when with the father. The father interpreted their distress as the children wanting to return home with him, reassuring the children that ‘it will all get sorted soon’.

8. The Family Consultant concluded:

   It seems that, since the separation, the children have experienced a period of stressful, confusing and inconsistent parenting arrangements. Certainly they appeared under an inordinate amount of stress during this intervention. Future arrangements should provide as stable a routine for them as possible. Orders that allow the children to return to the mother and spend regular time each week may achieve this.

9. The Family Consultant stated:

   The father’s seeming inability to contain his own distress when under stress in this intervention is of concern. He appeared much affected by his children’s distress at the Court process and he may be assisted by counselling or therapy to cope into the future.

10. The Family Consultant recommended an expert assessment by a mental health/ drug and alcohol professional, if that were possible and stated:

    There was no indication from the assessment that the mother requires supervision. It is uncertain as to whether the father can refrain from exposing the children to issues related to the parenting arrangements or his internal issues. Supervision may be indicated.

11. Thus it was clear in October 2015, that the children were stressed as a consequence of their disrupted family arrangements and that they needed routine, order and calm.

12. On 12 November 2015, Judge Sexton noted that the father had failed to comply with orders requiring him to file a response and affidavit material and ordered each party to submit to urinalysis testing that day.

13. On 3 February 2016, Judge Sexton ordered that each party enrol in and complete a parenting after separation course, and that the father enrol in and complete a parenting skills course. The orders for the father to spend time with the children were varied so that the children spend time on Tuesday afternoon from 4 pm until 6.30 pm under the supervision of the maternal grandmother and each alternate weekend from 10 am Saturday to 5 pm Sunday under the supervision of the paternal grandmother.

14. On 2 May 2016, the orders for the children to spend time with the father were again varied to provide that the father’s time with the children was to take place each Tuesday from 3.45 pm until 5.30 pm, in a public park supervised by a professional agency.

15. The orders were varied again on 24 June 2016, so that the father’s time with the children was to occur each Saturday from 10 am until 4 pm commencing on 10 September 2016 and that time was unsupervised.

FAMILY REPORT

1. A full Family Report was prepared in this matter in June 2016. At that time the Family Consultant was not prepared to make recommendations in relation to final orders but recommended that the matter be adjourned.

2. In relation to the father’s contact with the children the Family Consultant stated:

   While [the father] has repeatedly spoken about the limitations of having his visits with the boys supervised it appears that, at least for the time being, there is no other feasible way to promote and encourage this parent/child relationship while keeping it free of the potential for serious emotional harm that comes from unfiltered toxic communication and porous boundaries.

3. The Family Consultant recommended that the children live with the mother and spend time with the father, at least initially, supervised.

4. On 21 March 2017, the orders were again varied so that the children spend time with the father each alternate weekend from Saturday at 9 am until Sunday at 5 pm and each Tuesday from 4 pm until 7 pm and each alternate Thursday from 4 pm until 7 pm. There was no requirement for supervision.

5. On 26 June 2017, final orders were made by consent which provided for the parties to have equal shared parental responsibility for the children, and for the children to live with each parent on a week about basis, changing over on Fridays.

6. Those orders were suspended on 25 January 2018, when the matter came before the Court on the application of the mother who alleged that X had been sexually abused by the father.

7. On 12 March 2018, the matter came before Judge Boyle in the Federal Circuit Court who made no orders for the children to spend time with the father and transferred the matter to the Family Court of Australia.

8. The matter came before the Senior Registrar on 23 August 2018, when the Senior Registrar made orders, as sought by the father, for the children to spend time with the father each Sunday from 9 am to 5 pm under the supervision of his sister, Ms B, at her residence.

THE MOTHER’S ALLEGATIONS

1. The mother deposed that on Saturday 23 December 2017, she “noticed X was colouring in a graphic picture on his own iPad of a large erect penis going into a mouth and ejaculating.” The mother deposed that a short time later, X “Brought his hands out from under the blankie and started to make a circle with one of his hands, whilst with the other he was slowly inserting one finger in and out in deliberate slow movements.” The mother reported these matters to the police. The mother deposed that X was extremely upset with her for telling the police about the allegations and said that he would not speak to them.

2. Officers of the Department of Family and Community Services (“DFCS”) noted that one of the images on X’s iPad was of a male holding a penis in his mouth with the inscription “Merry Christmas, I am gay”.

3. The mother deposed that X’s behaviour became increasingly unsettled. She deposed that on 9 April 2018, she asked X “did your dad used to wait for you to go to sleep so he could get in bed with you?” X did not answer. The mother then said to X “[X], why don’t you show me what happened when your dad was in bed with you?” The mother deposed “[X] left his playstation [sic], moved to the back of his bed, sat up with his back against the wall, then he quickly moved his hands down to his genital area up and down and in a circular motion, and he said ‘there, there, why don’t you just get down there for a little bit that’s alright”. The mother deposed that X then quickly jumped up and threw himself back on the bed to play his game and avoided eye contact with her.

4. The mother deposed:

   Later that evening in bed, I said, ‘how long has this thing with your dad been going on?’ He would not respond. I said ‘[X], was it just once or was it longer than that? Has it been happening from before, like when we lived in [Suburb E]?’ ... He said ‘Yes.’ I burst into tears. [X] said ‘I really don’t want to talk about this any more [sic] ok.

5. The mother deposed that the father used to sleep with the children most nights whilst they were living together, until they separated in June 2014.

6. When DFCS interviewed the father on 30 January 2018, the father denied that he had ever sexually abused either of the children or exposed them to sexually explicit contents. DFCS reported:

   Instead [the father] provided two photos taken from [X’s] Ipad [sic] on 01.08.2015 with a male exposing his genital areas. [The father] explained that [X] was exposed to these pictures as his Ipad [sic] is linked with [the mother’s] devices. [The father] also hypothesised that the children are also exposed to adult sexual behaviour because their mother has different partners.

7. The records of the interview note that the pictures were sent by X to his cousin (of the paternal family) who is about the same age.

8. On the evidence presently before the Court, it is not possible to speculate whether the pictures were obtained by X on his own volition, or with the assistance of other devices in the home of one of his parents. There is no evidence from either parent about any restrictions on X’s access to the iPad or any software which might restrict his access to such material.

9. Sadly, each parent seems more interested in blaming the other than in trying to establish how the material was sourced.

Magellan Report

1. In July 2018, a Magellan Report was prepared by DFCS. The report noted that between 30 August 2015 and 10 June 2018, 12 reports identified as Risk of Significant Harm (ROSH) had been received. In September and October 2015, an assessment was completed on the basis of three ROSH reports regarding concerns relating to the mother threatening to kill the children and herself, family violence perpetrated by the mother and substance abuse by both parents. DFCS became involved again with the family between May and August 2016 in relation to reports concerning the mother using excessive physical discipline. The assessment was completed and the children were determined to be safe in the care of their mother.

2. DFCS became involved with the children again, between October and December 2016. Their report stated:

   The first report on 14 October 2016 relates to allegations that [X] disclosed that his maternal grandmother felt inside his pants and touched his genitals. This was referred to the Joint Response Unit but was rejected due to no evidence of sexual abuse. ... These concerns were substantiated through interviews with the children. The mother and maternal grandmother declined to be interviewed. The assessment was determined that there was low level risk as there had been no previous disclosures and the children had support from the father. It was noted that the mother was still allowing contact between the children and the maternal grandmother. It was assessed that the children were not in need of care and protection.

3. The report noted that a safety assessment was conducted in the mother’s household involving interviews with the children and the mother on 7 November 2017, and the outcome of the safety assessment was that the children were safe.

4. The report states:

   On 24 December 2017, [DFCS] received a report that [X] had drawings of a sexual nature on his Ipad [sic]. The drawings included the drawing of a person with a penis in its mouth, a drawing with a person with what appears to be an erection, a drawing of a set of testicles, another drawing of a penis, and another drawing of a person with what appears to be an erection with wording on it saying “tip toe through the window”.

5. The report also stated that police heard two voice recordings on the phone with X talking about sucking a penis. X spoke with police however did not disclose anything, but appeared to be extremely fidgety, very anxious and nervous, avoided eye contact with police and was unable to sit still and looked very uncomfortable having a conversation with police. It was also reported that in the past few months X had been returning from his father’s house:

   ...very lethargic, drowsy, dazed, exhausted and very often sick with a cough, loss of appetite and motivation. This report was screened-in as a ROSH report under suspicious indicators consistent with sexual abuse.

1. Documents produced by DFCS note that in a conversation with the mother on 12 February 2018, the mother said that she wanted full custody of the children and did not want them to see their father anymore.

2. In relation to the sexual abuse allegations, the mother said “Even if it’s not true, he is still not a good person for the kids”. The DFCS worker told the mother that Y had said he missed his father. The mother nodded and said “he is just looking for that paternal figure”.

3. In April 2018, DFCS conducted a risk assessment in the father’s household and considered the risk posed to be moderate because of the father’s current and historic alcohol and drug problem.

4. A risk assessment was conducted in the mother’s household in May and June 2018 and DFCS noted that the mother made a commitment to protect the children from any mental health issues she may have and follow through the treatments and medications recommended by her psychiatrist. She committed to not exposing the children to any drug or alcohol related abuse.

5. In an affidavit sworn 18 October 2018, the mother deposed that on Saturday 25 August 2018, Y said to her:

   ‘... when we used to sleep at Dads [sic] house it was a bit weird because I slept in the big bed with Dad. But he would go to [X’s] bed when I went to sleep.’ I said ‘Oh, ok. Why did you think that was weird?’ He replied, ‘I don’t know’. I asked him, ‘Did you see anything strange happening’ [sic] and he said, ‘He would just lie there for a while and come back’. I said, ‘Did [X] ask him to go and sleep with him?’ [Y] said, ‘No’.

6. On Sunday 26 August 2018, the mother asked Y whether he would be prepared to tell the police what he had told her yesterday about X. Y agreed. The mother took Y to the police station at Suburb F and was told if she wanted Y to make a statement he should attend at Suburb G Police Station with an independent person.

7. On 27 August 2018, the mother took Y to Suburb G Police Station and they declined to take a statement from Y. The mother deposed “I explained to them that I thought it was important because X would not talk to the police but Y had indicated to me that he would tell them what he had seen.”

8. On Tuesday 28 August, the police recorded the mother’s statement.

9. The mother deposed:

   On the night of 28 August I asked [X] if he would please talk to the police about the matter. I said ‘Remember how you said you would talk about it later? The police want you to give more details about what you told me’. He said ‘No I don’t want to’. I asked him ‘When will you tell someone else what you told me?’ He said ‘I don’t want to talk about it now. I will tell when the time comes’. I said ‘What if that time is now?’ He replied ‘I don’t want to talk about it’. I said to him ‘What about what [Y] said about Dad going into your bed?’ [X] said ‘He didn’t come into my bed’. I said ‘[X], that is not what you told me before’. [X] became upset and I withdrew from the conversation.

THE MOTHER’S CONCERNS ABOUT SUPERVISION

1. The mother complains that the supervision provided by Ms B is not appropriate. She deposed that on 16 September 2018, when the mother was leaving Ms B’s house with the children,

   [Ms B] followed me and shouted ‘I can’t believe you are lying about what [X] said!’ I said ‘I didn’t lie about anything. He told me what his Father did and you should be taking this seriously. You are supposed to be properly supervising.’ She continued to yell. I said ‘can you please stop screaming at me in front of the kids.’ The Father yelled out ‘She can do what she wants, this is her property!’ The kids got in the car and we drove away. The children were upset and asked me what [Ms B] was yelling for. I replied ‘I don’t know’.

2. The mother deposed that X’s behaviour has been of concern since the supervised time with the father started.

3. On 9 September 2018, X asked his mother to sleep with him in his bed which he had not done since May of 2018. On 10 September 2018, X started crying uncontrollably on his way to his boxing class. He refused to do his boxing and sat on the side crying while the mother and X watched Y do the class. X wanted the mother to sleep with him again.

4. On 14 September 2018, X woke from a nightmare and wanted the mother to sleep with him. Again on 15 September 2018, X wanted the mother to sleep with him. As soon as the mother asked him what was wrong, he started crying. X again wanted his mother to sleep with him on 22 September 2018.

5. In relation to Y, the mother reported that on 2 October 2018, Y started crying and said “at Dad’s house all [X] does is fight with me. All he does is hurt me when we are there.” On Sunday 7 October 2018, Y told his mother that X had hit him in the shoulder really hard, whipped him with a skipping rope and tried to fight with him.

6. On Sunday 14 October 2018, when the mother picked up the children, Y started crying almost immediately when he got in the car and said “when I was at dads [sic] I couldn’t breathe properly and I started to cry because I was worrying that everyone was going to die, like you and nanna”.

7. On 15 October 2018, the mother noticed that Y was breathing with difficulty and distressed. She asked him what was wrong and he said “ever since I fell on a bike chain when I was with my Dad I feel like I have less air than other people and I am scared I will die.”

8. The mother attributes all of these behavioural issues and statements by the children to her belief that their time with their father is not properly supervised.

9. The mother complains that she is unable to speak with Ms B and that Ms B does not advise the mother of things that happen during the supervised time or respond to her text messages.

THE FATHER’S CONCERNS

1. In relation to the hand over on 16 September 2018, the father denied the mother’s allegations. The father deposed that the mother said to Ms B “Do you know he is a sexual predator who needs to be supervised at all times?” This statement was said to have been made in the presence of the children. The father deposed that:

   [Ms B] said to [the mother] ‘Calm down. I have been supervising all day’. [The mother] however, continued to shout aggressively in a loud voice saying words to the effect ‘He is a sexual predator’ I said to [the mother] ‘You are not supposed to be talking about any of this in front of the boys. Please just leave.’ [Ms B] walked ahead of [the mother] as she was attempting to walk her to her car. I stayed at the bottom of the stairs and could hear [the mother] all the way down the drive continuously saying loudly ‘He is a sexual predator. He is a sexual predator’. ... I could hear [the mother] saying words to the effect ‘You make sure you are always supervising that sexual predator’.

2. Ms B, in an affidavit sworn on 19 November 2018, deposed that the children enjoy their time with their father. Ms B deposed “On or about 14 October 2018, I observed that [Y’s] eye twitching was quite pronounced. I was concerned that his eye twitching was a result of having missed the previous visit with his father. [Y] has previously had eye twitching during periods of stress.”

The Mother’s Mental Health

1. The father has alleged that the mother has mental health difficulties. The mother tendered in the proceedings a letter from her treating psychiatrist, Dr H, dated 23 November 2018. Dr H first assessed the mother on 25 May 2017, when she presented with a seven week history of symptoms of psychosis with delusional ideation regarding her work. Dr H diagnosed the mother with a schizophreniform disorder after her symptoms had persisted for over six months, Dr H changed the diagnosis to schizophrenia.

2. Dr H stated:

   [The mother] has been attending regular psychiatric appointments every 2 to 4 weeks. She has been compliant with treatment with antipsychotic medication. While [the mother] has fixed delusional beliefs about what transpired at her work in April 2017, [she] hasn’t experienced any ongoing symptoms of psychosis for five months, and her symptoms of schizophrenia are now in remission. As a result of this improvement [the mother] has been able to undertake activities outside her home. She is regularly working at the school tuckshop and is convenor of [a school committee].

   As a result of [the mother’s] concerns regarding her children’s welfare and due to the stress of ongoing family court matters, [the mother] has experienced symptoms of anxiety and depression. In October [the mother] was commenced on treatment with antidepressant medication, and this has been successful in reducing her symptoms.

   It is my expectation that [the mother] will be able to commence a graded return to work program after the Family Court proceedings have been concluded.

3. It is not possible to conclude from the evidence of Dr H that any aspect of the mother’s mental health has influenced the alleged disclosure by the children but that evidence is incomplete and will be tested in the final hearing.

CONSIDERATION

1. The concerns expressed in the Family Report of “unfiltered toxic communication and porous boundaries” appear to be valid in both the maternal and paternal households.

2. The mother’s interrogation of the children, in relation to her allegations of sexual abuse by the father, is highly inappropriate and can only lead to a situation where anything the children say cannot be accepted because of contamination by the mother.

3. On any version of the evidence, the changeovers before and after the supervised contact with the father are stressful for the children and potentially a significant contributor to the children’s disturbed behaviour as observed and reported by the mother.

4. The mother alleges that Ms B is the instigator. The father alleges that the mother is the instigator.

5. I can make no finding about who instigates the interaction but on any version of the evidence, such exchanges in front of the children are highly inappropriate.

6. The only manner in which those exchanges can be prevented is that the changeover takes place under professional supervision.

7. The father has proposed “D Contact Service” (“DCS”) as an appropriate organisation to conduct change overs and both the mother and the ICL accept that proposal. The father has agreed to pay the costs incurred with DCS.

8. The purpose of supervised change overs is to ensure that the children are not exposed to distressing behaviour by the adults.

9. I do not propose to require that the contact take place at the supervisor’s home. These are boys of 11 years and eight years. There is nothing in the detail of the allegations made by the mother to suggest that they are safer in the supervisor’s home than in an organised activity in a public place and no reasons are given for such confinement.

10. It may be that attractive activities for the boys will help overcome X’s alleged reluctance to spend time with his father.

11. The logistical problems posed by supervised changeovers over the Christmas period were not addressed in evidence. The children will spend time with the father on 23 December 2018 in accordance with the present regime.

PARENTAL RESPONSIBILITY

1. On behalf of the father, it was submitted that the Senior Registrar should not have made an order giving sole parental responsibility to the mother because that issue was not argued before him and no submissions were made.

2. It was not, however, in dispute that both parties, in the applications before the Senior Registrar, sought orders in relation to parental responsibility. The mother sought sole parental responsibility.

3. It was not suggested that either party was prevented from making submissions but rather they did not do so.

4. In those circumstances, the Senior Registrar was obliged to deal with the competing applications on the evidence before him and he did so.

5. No submissions were made before me in relation to the issue. The father’s position is that no order should be made in relation to parental responsibility, leaving the statutory position unchanged.

6. It is clear on the evidence that these parents are in a state of open hostility and the possibility of their agreeing about anything relating to the children is remote.

7. It is appropriate that, until the matter is determined by final hearing, the mother have sole parental responsibility.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 December 2018.

Associate:

Date:  07/12/2018