Naczek and Dowler
[2007] FamCA 830
•17 August 2007
FAMILY COURT OF AUSTRALIA
| NACZEK & DOWLER | [2007] FamCA 830 |
| FAMILY LAW - CHILDREN - Less adversarial trial, Division 12A of Part VII - Adjournment to pursue therapy for one party to endeavour to improve relationship between parties and children; mediation/family dispute resolution – Parties given opportunity to resolve differences but order for dispute resolution practitioner to report failure to comply with order - Therapy for one party not to be treated as confidential |
| Family Law Act 1975 (Cth) ss 10G, 13C, 13D, 69ZN, 69 ZQ, 69 ZR |
Director-General, Department of Community Services and C and D and Ors (2006) 35 Fam LR 363;
J & B [2005] FamCA 1154;
R and A [2006] FamCA 1278
| APPLICANT: | MR NACZEK |
| RESPONDENT: | MS DOWLER |
| INDEPENDENT CHILDREN’S LAWYER: | MS ELISA WHITTAKER |
| FILE NUMBER: | MLF | 1222 | of | 2006 |
| DATE DELIVERED: | 17 August 2007 |
| PLACE DELIVERED: | MELBOURNE |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 16, 17, 18, 19 & 20 April 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR ST JOHN SC AND MR STRUM |
| SOLICITOR FOR THE APPLICANT: | WESTMINSTER LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MR KIRKHAM QC AND MR WOOD |
| SOLICITOR FOR THE RESPONDENT: | LANDER & ROGERS |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | MS BENDER |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | VICTORIA LEGAL AID |
Orders
That the further hearing of all outstanding applications be adjourned to 17 December 2007 at 10.00am before Justice Cronin for final determination.
That the matter be fixed for mention on a date to be fixed before the said adjourned date and the parties have liberty to apply in respect of any other interim application in the meantime.
That the husband and the wife attend upon a mediator to be agreed between themselves. The mediator’s fees shall be paid as a joint expense of the husband and the wife. The means by which the mediation shall be conducted shall be determined between the parties and the mediator.
In default of agreement by 4.00pm on 14 September 2007 about either the appointment of a mediator or the means by which it shall be conducted, then pursuant to s 13C(1) of the Act the parties attend family dispute resolution with a family dispute resolution practitioner as described in s 10G of the Act, such practitioner or organisation to be nominated by the Independent Children’s Lawyer.
For the purposes of paragraph 4 of these orders, the husband is required to encourage the participation of Ms G in any part of the family dispute resolution should the family dispute resolution practitioner consider it may be helpful.
In the event that either party fails to comply with paragraphs 4 or 5 (should they apply) then pursuant to s 13D(1), the family dispute resolution practitioner must report the failure to the Court in writing.
That the wife attend upon and undergo therapeutic counselling with a therapist of her choice to address the matters of concern as articulated by Dr M in his report and in the evidence he gave between 17-19 April 2007.
That the wife:
(a)notify the Independent Children’s Lawyer and the solicitors for the husband of the name, address and qualifications of the appointed therapist;
(b)provide the therapist with a copy of these orders and a copy of the report of Dr M;
(c)advise the therapist in writing that the progress, attendances and prognosis of the wife during and arising out of the therapy may be the subject of evidence including cross-examination and that the therapist may need to be a witness in the proceedings;
(d)authorise and direct the therapist to discuss matters arising out of the therapy with Dr M noting that such communications are not to be understood by the therapist to be confidential; and
(e)authorise and direct the therapist to advise the Independent Children’s Lawyer;
(i)that the wife has complied with paragraph 8(b) to (d) and that the therapist agrees to be so involved in the therapy; and
(ii)should there be a breakdown in communication between the wife and a therapist to such an extent that the therapist declines to continue to be involved, such decision.
Should the wife fail to comply with paragraph 8(a) to (e) or the therapist advises of a complete breakdown of the therapy, then the husband or the Independent Children’s Lawyer has liberty to apply to have the matter relisted for trial before the return date.
That by 4.00pm on 14 September 2007, the wife provide any written submission she may be so advised as to why she should not pay $2886.50 being one half of the expenses and professional costs of Dr M for his appearances on 17 to 19 April 2007 and failing the provision of such submission, the wife pay such costs and expenses forthwith thereafter with the ultimate determination of the responsibility for such costs and expenses being a matter for final hearing.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 1222 of 2006
| MR NACZEK |
Applicant
And
| MS DOWLER |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
I intend by these reasons and the consequent orders, to delay the resumption of the hearing I commenced on Monday 16 April 2007 until December 2007. I would have commenced a little earlier than December but other commitments as a result of the events between the parties in June to which I shall later refer have precluded that. I propose to resume on 17 December 2007 and continue into what might otherwise be seen as a holiday period.
The case is about N aged 9 in March this year and L aged 6 in February this year.
The evidence of the parties has not yet been tested but what is already apparent is that the issues in this case are compounded by a number of factors, including:
(a) N has been diagnosed as having a form of autism;
(b)L has struggled with her learning skills and has now returned by agreement to commence preparatory grade at school again;
(c)The children are both aware that they were adopted separately from Europe (neither child is biologically connected to the other); and
(d)The wife has been diagnosed as having a personality disorder.
N is a confused little boy who currently has an obsession with material things, particularly flowers. He finds it difficult to make friends with other children or to retain close friends and in many ways, he irritates the very young people that he wants to befriend but there are signs of his social improvement.
L, on the other hand, has been described as a very engaging, extroverted, happy child, who in the most positive way, thinks the world revolves around her.
The children have lived with their mother since the parties separated in February 2005. Initially they lived in England. In January 2006 by agreement and order of the High Court of Justice in England made on 21 November 2005, they came to Australia with their mother. The husband remained in England.
The children were to spend time or have communication with the husband and the orders were in the terms as follows:
3.Following removal the Applicant shall make the children available for staying contact with the Respondent as follows:
3.1On no fewer than two occasions per academic year for up to three weeks on each occasion. Dates and times of such contact to be agreed at least three months in advance and in accordance with the undertakings made herein;
3.2It is agreed that the Christmas contact that the Respondent will have with the children in alternate years will be included within one of these three week contact periods;
3.3For the avoidance of doubt the Respondent shall collect the children from the Applicant in Australia at the commencement of the contact in paragraph 3.1 above and shall return the children to the Applicant in Australia at the conclusion of each such contact and shall have permission to remove the children from Australia for the purposes of the contact in 3.1 above.
3.4The Applicant shall make the children available for weekend staying contact in Australia with the Respondent on any visit by him to Australia not within any of the children’s school holiday periods and in addition to the contact in 3.1 above from after school on the Friday until 6.00 pm Sunday evening always provided the Respondent has complied with his undertaking in respect of giving notice thereof to the Applicant.
3.5For such further or other contact as may be agreed between the parties it being understood that the notice procedure shall not apply to such further or other contact as may be agreed.
4.The Applicant shall facilitate indirect contact between the children and the Respondent as follows:
4.1By telephone or webcam twice a week on Wednesdays and Sundays times to be agreed;
4.2By e-mail (one the children are old enough) as frequently as the children wish;
4.3By annual Birthday, Christmas, Father’s Day and Holiday cards/postcards.
5.Parties to have alternate Christmases with the children; the Applicant to have Christmas in 2006.
6.During those contact periods that the children are with the Respondent he shall facilitate telephone contact between the children and the Applicant at a frequency of not less than two occasions per week and more frequently if the children so wish.
It would appear that virtually from the moment that the children arrived in Australia and thereafter, problems have arisen about the husband’s endeavour to continue the relationship with the children from afar. Even on a superficial examination of the telephone endeavours of the husband to communicate with the children, he has been thwarted and has endured some appalling abuse. The husband’s view is that when he eventually got to see the children face to face they were happy and excited to see him. The recorded telephone behaviour is completely inconsistent with the happy and excited children.
This case was issued after 1 July 2006 and accordingly, Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) applies. It seems that because the husband’s application was viewed as an international relocation case and had some urgency, it slipped through the normal less adversarial trial process. Notwithstanding the apparent simplicity and perhaps even vagueness of Division 12A, the fundamental right of both parties to have the rules of natural justice apply to them is obvious. I want to make abundantly clear that I am not prejudging the case at all. I am very concerned about what I have read in the affidavit material provided by both parties, all of which is untested, and on the best indication available to me, the case has potentially a further ten days of hearing ahead of it. I have only heard evidence from a child psychiatrist Dr M and the principal of the children’s school.
On 20 April 2007, I heard brief submissions after more than 4 days of hearing. Senior Counsel for the husband expressed concern about weeks “going by” and a July or August fixture “disappearing”. I reserved the August sitting time whilst I considered the parties’ written submissions.
The husband wanted to proceed as soon as possible. He said that the wife’s “appalling behaviour” towards him was actively disrupting and obstructing his relationship with the children.
It has been submitted on behalf of the husband that I should hear all of the evidence rather than delay the matter on the basis that the children are in a very harmful environment. It is clearly put that the wife is emotionally abusing the children by her conduct.
The husband asserts that there is no evidence of the wife’s behaviour being addressed in any meaningful way. Thus, to adjourn the proceedings for any lengthy period suits the wife’s strategic purposes but does not advance the best interests of the children. He argues that the recommendation of Dr M looks at the position as if to say that should the wife not improve, the residence situation should be considered favouring the husband. I disagree that that is what Dr M said or intended. For reasons which I shall turn to in a moment, the delayed resumption is in part also a court resource problem.
The husband correctly points out that the wife’s apparent preparedness to embrace the concept of therapeutic counselling is new-found and untested. I am not concerned about whether it is new-found, recognised or strategic let alone untested. I am concerned with the long term welfare and interests of these two children. If the therapy concept may be or is, a ruse as suggested by the husband, the proposed course of action and the orders I now intend to make will expose that in any event.
The husband says that if the Independent Children’s Lawyer’s submission to which I turn in paragraph 20 hereof is accepted, it would “jeopardise” the children but also amount to a denial of procedural fairness. I reject both of those submissions.
In April, I also suggested that the parties might contemplate mediation. The husband’s counsel said that it was premature but that if there was any prospect of the matter being “seriously engaged”, the husband would engage in mediation notwithstanding the attempt had not been successful previously. I will take that at least as a positive acknowledgement that it might work and that the children might ultimately benefit.
I acknowledge the logistical problems of the husband’s international travel in respect of mediation, but I do not believe that that is a basis not to try it.
Dr M proposed that the wife engage in intensive therapy to address behavioural problems associated with a borderline personality disorder which he has diagnosed. The wife says that she would be agreeable to
Dr M or a family court consultant, through her therapist monitoring the situation. Notwithstanding what I said during the hearing, I have concerns about that approach. Despite my expressed understanding of the way therapy works, supported as I was by Dr M, I intend to order that the therapy and therapist be examinable subject to a rider. I deal with this matter in detail below.As the contemplated therapy may be addressing a specific medically defined condition, I see good reason to at least have the issues of cooperation, intention and prognosis examinable. It may be that a therapist refuses to participate on such a basis but having regard to the wife’s new professed position of desiring to resolve the “condition”, I would expect her to urge the therapist to the contrary.
The Independent Children’s Lawyer’s position on an adjournment was consistent with Dr M. She expressed concern that the children may never be able to fully explore and develop their relationship with their father. She said that the wife’s attitude and capacity to promote the relationship with the husband was essential and to achieve that position, the current problem she faced had to be overcome.
The Independent Children’s Lawyer’s written submission about the husband’s view was:
The consequences of the husband’s proposal would involve such significant changes in the children’s lives with necessary changes to attachments and lifestyle, that such a course should be a course of last resort.
I do not agree that the course is one of “last resort”. The fundamental issue is, of the two proposals, which will best promote the interests of the children. At the moment, there is limited evidence about how the children would cope or deal with not just a change to a life with their father but with a whole new environment as well as the absence of their mother. As such, the course I am taking is endeavouring to give the wife as well as the husband an opportunity to find out whether their relationship with each of the children can be significantly altered so that they can focus on their children’s interests in the future.
The husband says that he has adopted his position because he has given the wife opportunities to foster the relationship between he and the children in the past and that that course of action has failed. I am not convinced on the evidence of Dr M that all avenues have yet been explored.
I had read all of the written material of the parties about the adjournment issue. On 25 June 2007, my Associate advised the parties that I intended to hand down my judgment on 27 June.
On 27 June 2007, Senior Counsel for the husband told me that 2 events had to be considered before I made orders and delivered judgment. He said that as a result of the husband’s recent trip to Australia and as a result of some things said by the children, he reported his concerns to the Department of Human Services. Correspondence had been sent to the wife’s legal practitioners about the incidents. He then raised the second issue which was that attached to the written submissions of the Independent Children’s Lawyer was a letter addressed to her by Dr M. I had seen but not read that letter. I had removed it from the submission because I thought it a personal letter unconnected with the proceedings. It has not been read by me nor influenced my decision in these proceedings. Notwithstanding that, Senior Counsel also wished to respond to the submission of the Independent Children’s Lawyer.
In respect of the allegations to Human Services, I heard both counsel for the wife and the Independent Children’s Lawyer.
I then directed that a telephone conversation occur with the Departmental case worker in the court room to ascertain just exactly what process the department was following. Needless to say, the investigations of the Department were under way.
I then ordered that nothing further occur until the investigation was completed.
On 23 July 2007, the Department officer wrote to the Court saying that the “assessment” had been completed and the Department did not intend to “intervene” but that there was “information” in which the Court may be interested. That letter for some inexplicable reason did not arrive for a week.
On 2 August 2007, I ordered a subpoena issue to the Department to produce its file. The file was examined by all parties and all advised that they did not wish to make any further urgent applications in respect of the children.
On 13 August 2007, I was provided with the further written submissions of the husband.
Sadly, these events have delayed the resumption further than I had desired. Needless to say however, I had intended to delay the resumption for some months and I shall set out my reasons for that decision.
Lest there be any misunderstanding, I specifically state that I am not adjourning the proceedings to enable the wife to get her “house in order” nor am I trying to “assist” her case in any way. There are two reasons alone why I have taken the course that I have. The first is to endeavour to see whether the parties can negotiate some form of parenting arrangement even if it is such that they can communicate with one another better than they have and secondly, to see whether as a result of the recommended therapy for the wife, the relationship between the children and both parents works better than it has on any view to date.
Should the mediation I propose fail to resolve any issues or even issues about where the children are to live in the future, I will determine the parenting issues according to the principles required in Part VII of the Act namely whatever is in the best interests of these two children.
Should the therapy fail to change the relationship not only between the parties but between the children and the parties, I have the clear proposals of each party for the future of these children and I will determine the matter based upon what is then in the best interests of them.
Very much to the fore in my thinking is that this is not a simple or normal parenting dispute because of the four factors to which I have referred earlier.
Whilst I have previously expressed reservation about exposing the therapist’s relationship to scrutiny, I now think that that will be fundamental to the ultimate question of whether at least the mother is child-focussed in so far as the question of fostering the relationship between father and children is concerned. I indicated my preliminary views in April but have now had an opportunity to read what all parties have said and looked at the relevant provisions of the Act. It is important in this context to point out that I was told at the mention of the case in June that the therapy had in fact started.
I agree with the Independent Children’s Lawyer that s 69ZX(1) enables me to control the examination of such a witness but I want the therapist to cogently explain what is being done and what the prognosis is for the immediate as well as the long term future. If the therapist says that the signs are not good, I would want to know why and my preliminary view is that I would permit counsel to explore that. If the therapist says that the signs are good, my preliminary view is that I would permit exploration of the basis of that opinion to assist the husband to determine whether or not there is ever going to be a child-focussed relationship.
It was suggested that a family consultant could be used to monitor what is happening with the family therapist. The difficulty is that notwithstanding the latitude allowed in Division 12A of Part VII of the Act, such a course of action would require another professional to interpret what was happening. If Dr M is right, the husband and the Court are entitled to know not whether the wife is serious about change but rather, whether it is a realistically possible to change. Accordingly, the therapist needs to know that his or her work will be subject to scrutiny. To the extent that the wife objects to such scrutiny, it would tend to indicate to me that the focus is not on the issue described by Dr M but on the litigation.
Part of the difficulty in the course of action that I am proposing arises out of the various professional roles as defined in the Act.
In respect of mediation, the power to make an order for the parties to attend some form of mediation is in s 13C(1)(b) and (c). Those provisions also permit the Court to request a party to bring along another person for the purposes of such an exercise and under s 13C(3) I would have thought it important for Ms G to be involved.
Section 13D also makes it clear that notwithstanding the confidential nature of the process, the Court is entitled to seek a report from the resolution practitioner about whether or not parties attended. I intend to implement that provision in this case.
Because of the complicated problem arising out of the definitions in the Act, I propose to allow the parties to work out a mediator of their choice failing which, the provisions of s 13C will apply and a nominated mediation organisation will become involved.
The issue of the therapist raises two problems. The first is that the various definitions in the Act create problems of confidentiality and privilege depending upon what role the particular professional is to play. I make it very clear that I do not see this person as a family counsellor, family dispute resolution practitioner or family consultant. That is to be the case regardless of whether the person to whom the wife turns has the requisite qualifications I just mentioned under the Act. If a problem in that area is likely to arise as a result of the wife’s choice of professional, I would expect that her practitioners would have the matter raised immediately. The second issue relates to the fact that evidence of a medical nature is normally a matter under Chapter 15 of the Family Law Rules which would require a single expert. I do not intend that to be the case and the person nominated by the wife will be expected to give evidence of the nature set out in Rule 15.4(1)(a)(i), (ii) and (iii).
Having set out my intentions, I now wish to indicate the reasoning behind the steps I am proposing.
Section 69ZN sets out the principles upon which child related proceedings are to be conducted and s 69ZQ imposes some “general duties” on the Court. The combination of these two sections requires that a judge take an active part in the management of the proceedings. That is the path that I intend to follow and the underlying philosophy behind the decision I have made.
Section 69ZN says that the Court must give effect to the principles. Those five principles are:
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b)the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In this case, principles 1 and 4 are foremost in my thinking and override the delay which is frowned upon in principle 5.
Section 69ZQ again has a mandatory requirement that a court decide which of the issues in the proceedings requires full investigation and hearing. In my view, the investigation about whether the proposed therapy for the wife will improve the situation of the relationship not only between the husband and the children but between the husband and the wife is fundamental and supported by the fourth principle referred to in
s 69ZN. Whilst that principle refers to the way in which proceedings are to be conducted, I have interpreted that to mean not just the formalities of the hearing but the way in which my powers under Part VII generally are exercised.Section 69ZQ(1)(f) also requires that if a court considers it appropriate, it must encourage the parties to use family dispute resolution or family counselling. In this case I think it is appropriate to follow the advice of Dr M and encourage the parties to make one further effort to at least limit the dispute if not resolve it. It is their children who are at stake here.
Section 69ZR(1) provides that if after commencing the proceedings, the Court considers it may assist in the determination of the dispute, it may make an order in relation to an issue arising out of the proceedings. I have not made any determination on the facts of this case however, I have a very strong recommendation from a child psychiatrist. He sees it as in the best interests of the children for there to be an attempt at some form of mediation and also that the wife undertake the therapy. That, he says, should be done before the proceedings follow a path which, on the preliminary reading of the material, would clearly indicate that the battle lines have been drawn and that there could not in the future be any cooperative and child focussed parenting by the parties. To not take the suggestion of Dr M seems to me to offend the fourth principle set out in s 69ZN.
Further, I am not endeavouring to separate a single issue from the rest of the proceedings and make a determination about it in the way that previous courts have frowned upon and resisted[1]. Dr M gave evidence that underlying his recommendation which I intend to follow, was his concern that the children’s familiarity is with their mother and that they are in a good school situation in Australia with facilities directed to helping N.
[1]J & B [2005] FamCA 1154; Director-General, Department of Community Services and C and D and Ors (2006) 35 Fam LR 363; R & A [2006] FamCA 1278
Dr M’s view was that to remove the children from that environment contained a risk. On the other hand however, the children faced the risk of continuing to live with their mother in which her unabated disruption of the husband’s relationship with the children was serious. In Dr M’s view, it was a question of weighing up both risks. My task in the long run is to make a decision which is in the best interests of the children. To make that decision, I need as much evidence about the two risks to which Dr M has referred. Part of that risk of the children going to live with the husband to England is that if it did not work successfully, there would be a significant instability again for the children. Apart from leaving their familiar environment, these children have already moved as babies from their land of birth and although that was at a very young age, they are both aware of their adopted status. A failure of a move to England would be most unfortunate. That is not to say that if the course I am now proposing changes nothing, I would not entertain a move of the children to England but I would then have all of the evidence available to me upon which I could then properly determine what is in their best interests.
Interestingly, Dr M said that he did not see the wife’s behaviour as the main point of the case. He saw it as a significant part but from a clinical point of view, he said there was a pathological relationship between the parents. He felt that the children but particularly N, needed both parents to be able to focus on their needs and the nature of the relationship with each parent and that is the reason why he recommended there be therapy.
For N with an autism diagnosis, Dr M believed that it was critical that both parents worked cooperatively around him. As such, even if the wife’s problems continued unabated and orders were made for the children to live with the husband, they would still need the involvement of their mother in some form. If as Dr M says, it is critical that both parents work cooperatively around N in particular, the present pathological relationship as Dr M called it, or the impasse as I detect it, must change.
In respect of the mediation, I suggested that the parties needed to have a positive approach and come with a blank sheet of paper. Dr M did not necessarily agree with that saying that he felt both parents brought different sorts of skills and ability to the management of the children and in particular N. He described the wife as the long term carer but the husband as the person who has done a lot of the organisational things and that all of these various attributes were important for N. In the words of Dr M, the parties cannot utilise their skills whilst they are in the current conflict. The orders I propose give the parties an opportunity to move out the litigation mode and endeavour to resolve those matters along the lines of what Dr M suggested. If there is a resistance by either party to that then the conflict remains significant and the case will need to be determined along traditional litigation lines. Fundamentally, Dr M said that this window of opportunity was a fleeting one and that if it was not attempted now, there would be little prospect of any cooperative parenting in the future. That again seems to me to be what the fourth principle in s 69ZN is talking about.
Dr M was also extremely helpful in discussing the questions of the various risks that are attendant upon each party’s proposal. In respect of the husband’s suggestion of a move to England, he pointed out that I had to contemplate also the prospect of a further move from England to The Hague which would be a totally different environment again for the children having regard to the language issues and the change of schooling. As Dr M said, N might adapt to that but these were factors that were unknown. Again balancing the risks involved in that course of action, Dr M pointed out that even if it was a successful move, the question of the severing of the relationship between the children and the wife was an unknown. He suspected the relationship would be severely interfered with.
I want to again stress that the unusual feature of this case are the factors that I have set out earlier. N has also been assessed as having a “borderline IQ”. That combined with his autism places a limit on his ability. According to Dr M, it doesn’t make his socialisation and language development impossible but it certainly makes it more difficult.
According to Dr M, a separation of the children from their mother could have a variety of impacts. He felt that they might feel guilty about leaving their mother. He said the children felt these things although it was probably more L than N. It seemed to trouble Dr M that the exclusion of the person who had spent the majority of time with them may be exacerbated by virtue of the fact that the children were adopted and knew it. In their simplistic thinking, someone else had been taken out of their lives. According to Dr M, one of the difficulties with autistic children is their getting a sense of the importance of others and if the relationship with his mother was important to N, he may fret for her if she was not around. The tyranny of distance may then create huge problems for N if there was not a cooperative parenting arrangement to try and work through those issues.
I have taken into account the position of each of the parties but my focus must be on what is in the best interests of these two children. The Act requires that their welfare be my paramount consideration. I am satisfied that if I take the step to which I have referred, the Court will have evidence about the nature of the respective relationships between the children and their parents and in the next phase of the hearing, I will be in a much better position one way or another, to make the very serious orders that have been contemplated by each party. That is particularly so in circumstances where at the moment, even contemplating the best view I could take of the evidence presented by each party to date, I have a very limited amount of evidence about the impact of the significant change proposed by the husband on the children. I certainly have the views expressed by Dr M but having regard to the uncertainties of the potential outcomes of any of those issues, I feel it is important to take a cautious approach.
I certify that the preceding Sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.
Associate:
Date: 17 August 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as NACZEK & DOWLER