Millward and Millward

[2016] FCCA 3027

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLWARD & MILLWARD [2016] FCCA 3027

Catchwords:
FAMILY LAW – Interim proceedings concerning care arrangements for children aged 15 & 10 – report of family consultant – serious allegations of alcohol abuse – meaningful relationship – protective concerns – best interests.

Legislation:

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

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode  (2006) FLC 93-286

Applicant: MS MILLWARD

Respondent: MR MILLWARD

File Number: ADC 1030 of 2016

Judgment of: Judge Brown

Hearing date: 5 October 2016

Date of Last Submission: 5 October 2016

Delivered at: Adelaide

Delivered on: 5 October 2016

REPRESENTATION

Counsel for the Applicant: Ms Awkar

Solicitors for the Applicant: Nelson & Co

Counsel for the Respondent: Ms Ho

Solicitors for the Respondent: Websters Lawyers

ORDERS

1. The children X born (omitted) 1998, Y born (omitted) 2001 and Z born (omitted) 2006 do live with the mother.

2. Y do spend time with the father:

   (a)Three (3) nights per week on the father’s rostered days off NOTING the father is to provide two (2) weeks notice of his days off during school term and short school holidays; and

   (b)During Christmas holidays week about if the father is on leave from work during those times NOTING if the father is not off from work paragraph (a) above applies.

3. Z do spend time with the father:  

   (a)Each Tuesday on the father’s rostered day off from 3.00 pm until 7.30 pm during school term and short term holidays; and

   (b)During Christmas school holidays each Tuesday from 8.00 am until 7.00 pm.

4. For Christmas 2016 the children Y and Z do spend time with the parents as follows:

   (a)With the mother from 1.00 pm 24 December 2016 until 1.00 pm 25 December 2016 in (omitted); and

   (b)With the father from 1.00 pm 25 December 2016 until 4.00 pm 26 December 2016 in (omitted).

5. The mother and the father be restrained and an injunction be granted restraining each of them from denigrating the other parent or the other parent’s family in the presence of or in the hearing of the children.

6. The mother and the father be restrained and an injunction be granted restraining each of them from consuming alcohol whilst the children X born on (omitted) 1998, Y born on (omitted) 2001 and Z born on (omitted) 2006 are in their care NOTING that this is with no admission by the father.

7. Handovers for the child Y be as agreed between the parties but in default of any agreement the mother will drop Y off to the father and the father will drop Y off to the mother at the conclusion of his time with Y.

8. Handovers for the child Z occur as follows:

   (a)If on a school day the father do pick up the said child from school and drop off the said child to the mother at the conclusion of his time with the said child;

   (b)If on a non-school day, the mother is to drop off the said child to the father and the father is to drop off the said child to the mother at the conclusion of his time with the said child.

9. The father do enrol and completer the Kids are First program.

10. The father do ensure that Y attends speech therapy on the days Y is in his care NOTING Y has speech therapy at the following times:

    (a)Thursday 6 October and 20 October 2016 at 4.30 pm;

    (b)Monday 31 October 2016 at 5.45 pm;

    (c)Monday 14 November 2016 at 5.45 pm;

    (d)Monday 28 November 2016 at 5.45 pm; and

    (e)Each alternate Thursday at 4.30 pm commencing 15 December 2016.

11. The father be at liberty to telephone Z at 7.30 pm each Friday.

12. The mother and father do undergo a psychiatric assessment with Dr J or Dr M or such other psychiatrist providing that the chosen psychiatrist has not had a working relationship with the father so as to determine their current mental health and ability to care for the children at the respective costs of the parties.

THE COURT ORDERS THAT:

1. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship X born (omitted) 1998, Y born (omitted) 2001 and Z born (omitted) 2006 attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 2 December 2016.

2. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the children and the parties;

   (c)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said children.

3. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Coordinator, Federal Circuit Court of Australia.

4. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

5. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

   1.  a Children’s Court;

   2.  a child protection authority;

   3.  a State or Territory legal aid authority; and

   4.  a convener of any legal dispute resolution conference

NOTING:

(a)At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

(b)Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

(c)Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

1. This matter be listed for final hearing before Judge Brown on 26 & 27 July 2017 at 10.00am NOTING two (2) days hearing time has been allocated. 

2. Further consideration of the matter is adjourned to 14 December 2016 at 9.30 am for trial directions.  

IT IS NOTED that publication of this judgment under the pseudonym Millward & Millward is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1030 of 2016

MS MILLWARD

Applicant

And

MR MILLWARD

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally immediately following the interim hearing concerned.  Given the controversy arising in the case, it is appropriate that they be transcribed.  The reasons have been corrected from the transcript to remove grammatical errors and efforts made to make the oral reasons amenable to being read.

2. This afternoon, I am dealing with proceedings in which Ms Millward is the applicant and Mr Millward is the respondent.  For the ease of delivering these orally delivered reasons for judgment, I will refer to Ms Millward as “the wife” and to Mr Millward as “the husband” in these reasons. 

3. The wife commenced these proceedings on 24 March 2016.  She sought orders in respect of the division of the parties’ property and also in respect of arrangements for their children. 

4. The children concerned are X, who was born on (omitted) 1998.  So accordingly, X is a teenager.  Y, who was born on (omitted) 2001.  So Y is about 15 years of age and Z, who was born on (omitted) 2006.  So she has just had her 10^th birthday.

5. Essentially, it is Ms Millward’s position as I understand it that all three of the children should live predominantly with her.  In addition, given her maturity, no specific orders should be made in respect of X.[1] 

   [1] When the wife commenced these proceedings X was 17½ years old.  She turned 18 a week prior to the delivery of judgment.  Accordingly, it is apparent the court has no jurisdiction to make orders in respect of her and therefore the orders pertaining to her are void.

6. At this stage, for reasons which I will come to in a moment, Ms Millward is open to Y spending reasonably substantial periods of time with his father including overnight time.  In respect of Z, the wife’s position is more constrained. 

7. At this juncture, it is the wife’s position that the court ought to approach the time Z spends with her father extremely cautiously for a number of reasons.  Firstly, because Z is a child of tender years and necessarily vulnerable in a variety of ways. 

8. Secondly and more importantly, that there are issues relating to Mr Millward, particularly his psychiatric health and his level of alcohol consumption which should cause the court to adopt a protective approach to the time that the child spends time with her father.

9. At this juncture, the wife proposes that the father should spend time with Z on Tuesday afternoons, from 3 pm until 7.30 pm and for a longer period on school holidays on Tuesdays from 8 am until 7 pm.  She is opposed to there being any overnight time for the child at the moment. 

10. It is the father’s position that he should have time with Z roughly equivalent to that which he has with Y.  The parties recently attended a conciliation conference in respect of issues to do with her property and were able to resolve those matters, although formal orders have not as yet been made. 

11. The parties are both professional people.  I understand that both are (occupations omitted).  They have known each other for a very long time indeed.  They began a significant relationship with one another in 1994 and married on (omitted) 1995. It is common ground that they finally separated in early 2015 when an incident of some significance occurred. 

12. It is the wife’s position that during the latter stages of the parties’ marriage, the husband withdrew from the family and spent more and more time in a room on his own.  She asserts that this withdrawal coincided with some problems the husband had at work in respect of some allegations regarding sexual harassment.  Essentially, the wife asserts that the husband began to behave oddly.

13. In the circumstances, it is the wife’s case that the husband has some significant psychiatric issues, which she has observed and which have implication for the care of the children, particularly Z.  She concedes that she does not know the exact nature of these issues.  However, she asserts that it is apparent that the husband has a very substantial alcohol dependence. 

14. In support of her position, she has exhibited a photograph of a large number of empty whiskey or scotch bottles, which she says were located in the husband’s room, to which he habitually retired during the final stages of the parties’ marriage.

15. More significantly, Ms Millward points to the fact that, at the time the parties separated, Mr Millward was found unconscious in the swimming pool at the parties’ home.  As a consequence he was taken to hospital by ambulance.  It is her case that she believes, as a consequence of what she was told by treating medical staff that, at the time of his admission, the husband’s blood alcohol level was recorded to be 0.3.

16. More recently, in November of 2015, she asserts that Mr Millward came to the notice of police in respect of drink-driving and was arrested.  Subsequently he was charged and later convicted of this offence, resulting in the loss of his licence.  She says that the reading on this occasion was 0.998.  In these circumstances, it is the wife’s case that there is substantial independent and cogent evidence to indicate that the husband has a very serious alcohol problem.

17. The husband has responded to these various allegations and made his own allegations against the wife.  It is his case that it was the wife, rather than he, who had psychological or psychiatric issues during the parties’ marriage.  He alleges that she suffered from mood swings during the parties’ marriage and was frequently verbally and physically abusive towards him. 

18. Essentially, it is his position that it was he, rather than the wife, who was the victim of coercive and controlling behaviour during the parties’ marriage.  It is his evidence that he very rarely consumes alcohol and prefers to drink non-alcoholic beverages. 

19. It is his position, which seems to be acknowledged by the wife to some extent, that he suffers from diabetes and, as a consequence of that, has to be very careful about what he eats and drinks, particularly regarding sugar content.  For that reason, he does not drink alcohol, which contains significant amounts of sugar. 

20. However, Mr Millward acknowledges that, because of the severity of his diabetes, he is prone to suffer fluctuating blood sugar levels which, in extreme cases, can lead to a loss of consciousness, through no fault of his own. 

21. It is his case that that this is what happened during the swimming pool incident, which led to his hospitalisation.  He denies the wife’s claim that he had any alcohol in his blood at the time and, as such, no direct responsibility for the admission, which caused the children some emotional distress, can be sheeted home to him.  He acknowledges that he had a number of empty scotch bottles, but it is his case that he used them for a legitimate purpose, which was to fill them with homemade sauce. 

22. So, accordingly, it is Mr Millward’s position that, for reasons to do with her need to gain advantage over him in these proceedings, the wife has essentially seized upon some isolated and innocent incidents in his life and has either exaggerated or manipulated them to put him in a bad light. 

23. It is his case that the drink-driving episode was an isolated one that occurred when he was under some stress and pressure following the end of the relationship between the parties causing him significant emotional upset.  It is his case that, since the incident, a control device was fitted to the ignition of his car and thereafter there have been no problems or incidents with his driving. 

24. The parties’ application came before Cole J on 14 June 2016 and, on that occasion the parties were able to agree on a number of interim orders prior to attending on a family consultant for a child-inclusive conference. 

25. Essentially, they agreed that Y would live with his father for three nights a week when Mr Millward was rostered off and that Z would live with her mother and spend time with her father on each Tuesday from the conclusion of school until 7.30 pm. 

26. Some other orders were made regarding Z going to (omitted) or some other similar counselling program and each party agreed that they would attend a parenting course.  I am told that the wife has attended such a course, but whether the husband has, I am not sure.

27. Each party was restrained from denigrating the other in the presence or hearing of the children and each was restrained from consuming alcohol, although Mr Millward did not admit that there was any necessity for such an injunction in his case. 

28. I now have the report from Family Consultant Ms B, who saw the parties on 26 July 2016.  She also interviewed X, Y and Z.  In terms of issues which presented risks for the three children concerned, Ms B identified three.  They are as follows: firstly, issues to deal with the husband’s dependence on alcohol; secondly, issues to do with the husband’s psychiatric wellbeing; and thirdly, what was alleged to be the wife’s abusive parenting.

29. Ms B’s report is important.  It is important because Ms B had the opportunity to interview each of the parties and the three children concerned.  I am not in the same position.  In family dispute conferences, parties present to the consultant concerned face to face, without the intercession of a lawyer. 

30. As such, the consultant has an opportunity to make a direct assessment of the parents concerned.  Of even more significance Ms B was able to speak directly with the three children concerned about their perceptions of the family and their overall views.  In this, she was at a significant advantage over me.  I will not have an opportunity to meet with any of the children concerned in the course of these proceedings. 

31. However, having pointed out the advantages Ms B has in this case and the importance of her evidence, I must also stress that Ms B’s methodology has not, as yet, been subject to any scrutiny in these proceedings whatsoever.  It may be the case that if certain pieces of evidence are put to her, Ms B may have cause to change her opinion of the family. 

32. Accordingly, I must treat her report with some caution and bear in mind that it is untested.  That is also the nature of these interim proceedings as a whole.  At this stage, I have not had an opportunity to see either of the parties in the witness box.  As a consequence, I am not in a position to resolve the very many evidentiary issues which are in dispute between them. 

33. However, as the Full Court has pointed out in a number of cases, including Deiter & Deiter,[2] in cases involving protective concerns regarding a child or children, it remains the responsibility of the court to assess the risk to children and put in place appropriate responses to the degree of risk so assessed.  This obligation arises notwithstanding deficits in the evidence before the court, which necessarily arise at the interim stage given the truncated nature of the hearing concerned. 

    [2]  Deiter & Deiter [2011] FamCAFC 82 at [61]

34. As indicated, there are many disputes between the parties, the most significant of which concern Mr Millward’s use of alcohol, particularly in respect of when he was unconscious in the swimming pool and beforehand.  Ms B spoke with the parties about that issue, and she also did so with X. 

35. Ms B’s impression of Ms Millward was that she was measured and child-focused.  Ms Millward also reported that Y has been diagnosed with Asperger’s syndrome and ADHD.  In this context, it was Ms Millward’s view that the court should approach any expression by Y of his views with some caution particularly because she considered Y may express a wish to spend time with his father because he (Y) was concerned that his father was lonely and distressed. 

36. To Ms B, Ms Millward expressed her concern that alcohol may still be an issue for Mr Millward.  In this regard, she told Ms B that Y had recently told her that Mr Millward was catching a taxi to work rather than driving and she feared this may mean that he was still drinking. 

37. As previously indicated, Mr Millward denies that he has ever recorded a blood alcohol reading of 0.3.  He reiterated that to Ms B and reported the incident resulting in his unconsciousness in the swimming pool as being referrable to an unfortunate hypo-glycemic accident. 

38. It was Ms B’s impression that Mr Millward, during the conference was focused on what he perceived to be Ms Millward’s deficits as a parent.  This negative focus was of concern to Ms B, particularly the level of blame he attributed to the mother and X.  I note however the context of the limited assessment. 

39. X apparently became distressed when she described to Ms B the impact on the family of what she regarded as her father’s excessive alcohol consumption and his denial of it.  X reported to Ms B her father’s loss of driver’s licence and her apparent trauma when she described how, via the telephone, she had had to talk her younger sibling through how to keep their father alive following the swimming pool incident whilst they waited for the ambulance to come.

1. It is Mr Millward’s position that X, although a mature child, is still a child and has become enmeshed and aligned with her mother in this very acrimonious dispute.  In these circumstances, it is his position, I think, that I should be cautious about what X told Ms B. 

2. Ms B regarded X as a vulnerable child and was concerned that she had reported a history of self-harming in response to what she regarded as being a very dysfunctional household in the period leading up to her parents’ separation.  Ms B recorded as follows:

   “X described family life prior to separation as “shit”.  She described a household where everyone was disengaged and in their bedrooms.  X was self-harming felt angry with her mother for making excuses for her father’s behaviour.  She witnessed her father harm her mother, for example attempts to choke her, on a number of occasions, as has Z.”

3. Y was regarded by Ms B as cautious and guarded in his responses to her.  He indicated he enjoyed his time in his father’s household because he could do what he wanted.  Y reported he wanted to be with his parents 50% each, an option which he openly indicated he had spoken about with his father.  He was also reported by Ms B to be concerned that Mr Millward was alone and lonely. 

4. Of some significance, in my view, Y reported to Ms B that his mother rarely spoke about his father to him and the children but their father spoke about their mother, to the children with – and this is Ms B’s direct quotation of what Y said – “contempt”. 

5. As indicated, it is a significant element of Mr Millward’s position that it is not appropriate that there be a different regime of parenting arrangements for Y on the one hand and Z on the other. 

6. Z was reported by Ms B as being more communicative than her brother.  However, Ms B regarded her as still being guarded.  In the past, Z reported that she had had regular time with her father, including overnight periods.  She indicated a desire to spend time with her father on two nights per week.  Z also indicated that her parents had frequently argued but she could not recall either of them harming one another. 

7. As I have observed, during the course of the hearing, it seems to me likely that, if Mr Millward was admitted to hospital in early 2015, in an unconscious state, some attempt would have been made to take a blood sample from him or some form of blood alcohol reading to be taken.  Neither party has taken steps to subpoena any such medical material.

8. Ms B noted that although the father’s level of alcohol dependence was a matter for evidence, the medical records were likely to be definitive in this regard.  Mr Millward has obtained a very brief report from his own GP, Dr W, who indicates that he has been treating Mr Millward for 16 years and in Dr W’s opinion, Mr Millward has no issues to do with alcohol abuse.

9. Ms B was concerned about the father’s presentation, particularly his hostility for the wife and X and how he allocated responsibility for the problems in the family away from himself on to them.  In this regard, Ms B indicated that, if the court was to determine that the mother and X’s claims had credibility, then the father’s level of denial and contribution towards post-separation acrimony, which he had largely directed towards his own daughter, was assessed to an indicator of potential risk for Y and Z. 

10. At this stage, I am not in a position to determine definitively that either the wife or X’s claims lack credibility.  In my view, I must approach the issue of Mr Millward’s alcohol consumption with some care.  In this context, Ms B indicated that there were no observed indicators to support the view that X was influenced by either one of her parents against the other within the context of the family dispute conference memorandum. 

11. Ms B recommended that there be a family assessment report.  I agree with that recommendation.  It seems to me that such a thing is required as a matter of urgency.  I am told that, although the parties are both in employment, they are not employed on a full-time basis and therefore the report should be prepared by the court.  Necessarily that will take some time, but what I propose is trying to see if it can be obtained prior to Christmas this year. 

12. The issue arises as to what orders should be made at this juncture.  The wife proposes that each party undergo an independent psychiatric assessment.  From her point of view, such an intervention will address the allegations that she has some psychiatric disturbance and she is happy to do that.  At the same time, she would want what she regards as Mr Millward’s currently undiagnosed issues to be professionally assessed.

13. Mr Millward resolutely resists such an intervention.  It is his case that he has some expertise in issues to do with psychiatric health and he opposes such a report in his case.  Clearly, at the present stage, the family is in a state of crisis and has been in a state of crisis for a significant period of time. 

14. In this case, in order to ensure that the outcome is in the best interests of the children concerned, it seems to me that it is important that each party undergo a psychiatric assessment, with the hope of putting to rest issues to do with the alleged psychiatric infirmity of them both as parents. 

15. In deciding whether to make any particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].

16. The matters which the court must take into account in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.

17. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:

    (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.

18. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

19. Other specific criteria relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

20. There is a legislative presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA]. 

21. The presumption relates to the allocation of parental responsibility, not the allocation of the specific amounts of time, which a child spends with each of his or her parents.  There is no presumption in favour of equal time per se.  This is not the starting point for the court’s deliberations.

22. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

23. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

24. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

25. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].

26. In this particular case, I am satisfied given the extreme level of tensions between the parties and their inability to communicate effectively with one another that it would not be appropriate to apply the presumption at this stage. 

27. Accordingly, it is not necessary for me to consider whether the children should spend either equal time or substantial and significant time with their parents pursuant to the provisions of section 65DAA at this point.

28. However, given the pathway outlined by the Full Court, in such cases as Goode & Goode,[3] I am still required to consider the various section 60CC factors to reach the result, which I consider will be in the best interests of the children concerned, which can theoretically include both an equal time and substantial and significant time regime.

    [3] Goode & Goode  (2006) FLC 93-286

29. There is no significant dispute, between the parties, regarding arrangements for Y’s care, given his age.  By necessary implication, it is the wife’s position that given his age (15 years), Y will be able to look out for himself and ensure that he does not come to any specific harm, whilst in his father’s care.  I also notes his views, as expressed to Ms B

30. The mother does not share that view in respect of Z, who is significantly younger than Y.  Clearly, both Y and Z have a significant level of relationship with both their father and their mother.  Clearly, the children know both their father and mother well, and in this context, I am directed to consider the benefits that the children are likely to derive from having meaningful periods of time with their father. 

31. It is the husband’s position that a brief period of time each week with Z will simply not enhance his relationship with her.  It is his case that the two need to spend significant periods of time together, along the same lines as the time he will be spending with Y.  The case really turns on my assessment of protective concerns for Z, a child who has recently turned 10. 

32. For obvious reasons, a parent who is in the grip of an alcohol addiction may pose all sorts of risks to a child.  This really is the nub of this case.  In answer to this issue, the father asserts “well, I don’t have an alcohol issue.  It’s all just an exaggeration and a manipulation by the wife.”  In support of his position he relies on what his GP has written and his assertion that he was not under the influence of alcohol when he lost consciousness in the swimming pool.

33. However, at this stage, having assessed the material which is, I acknowledge far from complete, I do have significant protective concerns in respect of Z, which arise because of the wife’s allegations of alcohol dependence on the husband’s part. 

34. These concerns have not been put to rest by anything Ms B has reported back following the child dispute conference.  At this stage, given the emphasis on protecting children arising in the applicable legislation, I think, I must be cautious in relation to the issue of overnight time for Z. 

35. The additional considerations include the views or wishes of the child.  In this case, it seems clear that both children are indicating a preference to spend more rather than less time with their father.  This is a significant factor, particularly so far as Y is concerned. 

36. I am directed to look at what may be influencing the views of the children concerned, particularly their level of maturity and insight.  At 10, a child is likely to know his or her own views, but not as much as a child of 15, for obvious reasons. 

37. I am also required to consider the capacity of each of the parents’ concern to satisfy the emotional needs of the children concerned and also the level of insight into the responsibilities of parenthood displayed by each. In this context, although Ms B’s methodology is untested, it seems that she is somewhat concerned that the father’s essentially negative view of the mother has the potential to negatively impact on these children’s emotional wellbeing.

38. For those reasons, I have decided to adopt the more cautious and incremental approach proposed by the applicant wife, which seems to be supported by the family consultant.  I will order that there be a family report prepared by the court pursuant to section 62G. 

39. I am hopeful that report can be to hand by 2 December 2016, which is when I will direct that it be released.  That is a period of about two months away.  In those circumstances, I will list the matter for further directions on 14 December 2016 at 9.30. 

40. As I am pains to point out to the parties, I am not in a position at this interim stage to make findings of fact about the very many issues in dispute between the parties.  It is at the final hearing stage that factual issues are determined by the court, when it makes its own assessment of the credibility or honesty of the witnesses concerned particularly in a case like this one, the credibility of the parties themselves. 

41. At this stage, I also propose allocating the matter for final hearing, and I will allocate the dates, 20 and 21 July 2017.  I think the way forward for the court will be clarified if a consultant psychiatrist is properly briefed with all the relevant material in this case.  I am told that the mother now intends to see if a subpoena can be directed to the hospital to throw some light on the admission of the husband following the swimming pool incident.

42. I acknowledge that I am not expert in terms of blood alcohol readings particularly their medical implications and certainly not their psychiatric implications, but if the reading was 0.3, it is a very significant reading indeed, and at this point, I think I would be remiss if I did not place significant weight on that in determining arrangements for the children at this interim stage. 

43. So I think it is essential for the reasons I have provided that there is some independent forensic assessment of each of the parties, although, I acknowledge that it may not necessarily be definitive. 

44. In all those circumstances I propose, in essence, to continue the regime in respect of both children for the next two or so months.  For those reasons, I will make the orders as proposed by the applicant wife in the minute that has been provided to me which will continue orders 1, 2 , 19 and 20 of the orders made on 14 June 2016.

I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       29 November 2016