NARDINI & NARDINI

[2017] FamCA 646

FAMILY COURT OF AUSTRALIA

NARDINI & NARDINI [2017] FamCA 646

FAMILY LAW – CHILDREN – INTERIM PARENTING – Where the mother has suffered from mental health issues – Where the children currently live with the father and spend time with the mother on a supervised basis – Where the mother sought orders for the children to spend additional time with her under the supervision of the maternal grandparents rather than a professional service – Where the father supported the mother’s application for additional time but wants that time to remain supervised by a professional service – Court finds that it is appropriate for the children’s time with the mother to remain supervised by a professional service due to the uncertainty as to the extent of the mother’s recovery from mental illness – Court finds that the current interim parenting orders are an appropriate interim arrangement pending the final hearing of the matter – No additional orders made.

Family Law Act 1975 (Cth) ss 4, 43, 60B, 60CC, 61DA, 65DAA, 65DAE, 69ZX

B and B (1993) FLC 92-357
Banks & Banks [2015] FamCAFC 36
Bennett and Bennett (1991) FLC 92-191
Cowling v Cowling [1998] FamCA 19
Johnson and Page (2007) FLC 93-344
Keats & Keats [2016] FamCAFC
M v M (1988) 166 CLR 69
Mazorski & Albright (2007) 37 Fam LR 518
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
N and S and the Separate Representative (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Newton & Henzel [2016] FamCA 323
Potter and Potter (2007) FLC 93-326
Rice & Asplund (1979) FLC 90-725

SS v AH [2010] FamCAFC 13

Salah & Salah (2016) FLC 93‑713

Sigley v Evor [2011] FamCAFC 22

Stott & Holger and Anor [2017] FamCAFC 152

APPLICANT: Ms Nardini

RESPONDENT: Mr Nardini

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: SYC 6095 of 2016

DATE DELIVERED: 25 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 25 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodgson

SOLICITOR FOR THE APPLICANT: Martin Legal

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

Orders

1. Pending further order the interim orders made on 25 July 2017 will remain in place.

2. The hearing date in respect to parenting matters for five days commencing on 9 April 2018 is confirmed.

3. In the event that a party wishes to rely upon the evidence of any treating medical practitioner that evidence should be filed and served by 17 December 2017.

4. In the event that a party wishes to object to any proposed evidence from a party’s treating medical practitioner they must notify the other party of that objection by 30 January 2018.

5. In the event that a party wishes to rely on evidence in reply to any evidence provided by a party’s medical practitioner that evidence should be filed and served upon the other party by 17 February 2018.

6. In the event of a party objecting to the other party’s medical evidence they should notify the other party of that fact by 1 March 2018.

7. In the event that the parties are unable to resolve their objections, if any, in respect to the other parties medical evidence, that party who wishes to continue to rely on the medical evidence that has been objected to shall file and serve any necessary application by 8 March 2018.

8. The non-medical evidence of the parties and any other witness upon which they intend to rely is to be set out in one Affidavit per witness and filed and served by 17 February 2018.

9. The Independent Children’s Lawyer has liberty to serve such subpoenas as the Independent Children’s Lawyer deems necessary or as is reasonably requested by either of the parties.

10. On or before 2 April 2018 the parties are to provide, electronically to my Associate, a case outline including;

    (a)       a list of documents upon which they intend to rely;

    (b)       a minute of proposed orders;

    (c)       a draft chronology;

    (d)a dot point summary of argument addressing those matters set out in section 60CC of the Family Law Act1975 (Cth).

11. The parties have liberty to apply on seven (7) days’ notice to the other party and to the Court.

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 Nardini & Nardini 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 6095 of 2016

Ms Nardini

Applicant

And

Mr Nardini

Respondent

And

LEGAL AID NEW SOUTH WALES
Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. This matter concerns an application by the mother, Ms Nardini, to vary interim parenting orders that were made on 16 November 2016. Those orders provided for the two children of the parties’ marriage, B, born in 2008, and C, born in 2012 (“the children”), to live with the father and spend supervised time with the mother each alternate Sunday for a period of not less than three hours.

2. Those orders were made in circumstances where the mother has had a history of mental illness. It is accepted that, during times of acute manifestation of the mother’s mental illness, she was incapable of caring for the parties children.

3. The mother asserts that her mental health has been adversely affected by the conduct of the father, Mr Nardini, and now that the parties are no longer living together that aggravating or exacerbating factor has been removed.

4. Accordingly, the mother contends that the children should now spend additional time with her and that time should be supervised by her mother and/or her mother’s partner rather than by a professional agency.

5. The mother also seeks additional time with the children.

6. The father supported orders, proposed by the Independent Children’s Lawyer (“ICL”), for the children to have additional time with the mother but, consistent with the views of the ICL, submitted that the time should be supervised by a professional service.

Documents relied upon

1. The Independent Children’s Lawyer relied upon the following documents:

   ·Child Responsive Program Memorandum prepared by the Family Consultant Ms D dated 17 May 2017;

   ·Report of Dr E, the single expert appointed in these proceedings dated 29 June 2017; and

   ·Various contact reports prepared by F Group.

2. In addition to the Child Responsive Program Memorandum and the Report of Dr E, the mother relied upon the following documents:

   ·Financial Statement of the mother sworn 19 September 2016;

   ·Affidavit of the mother sworn 13 March 2017;

   ·Affidavit of Ms G sworn 18 July 2017;

   ·Affidavit of Mr H sworn 18 July 2017;

   ·Affidavit of the mother sworn 19 July 2017;

   ·Notice of Child Abuse, Family Violence or Risk of Family Violence of the mother filed 21 September 2016;

   ·Notice of Child Abuse, Family Violence or Risk of Family Violence of the father filed 14 November 2016;

   ·Report of Associate Prof J dated 22 February 2017; and

   ·Report of Dr K dated 21 March 2017.

3. In addition to the Child Responsive Program Memorandum and Report of Dr E, the father relied upon the following documents:

   ·Father’s Response to Initiating Application filed 14 November 2016;

   ·Father’s notice of Child Abuse, Family Violence or Risk of Family Violence filed 14 November 2016;

   ·Father’s Financial Statement filed 14 November 2016;

   ·Father’s Application in a Case filed 16 March 2017;

   ·Father’s Affidavit filed 16 March 2017; and

   ·Father’s Updating Affidavit filed 19 July 2017.

ORDERS SOUGHT BY THE PARTIES

1. The orders sought by the mother in her proposed minute of order tendered as exhibit W1 in the proceedings on 25 July 2017 were as follows:

   Parenting Orders

   1.That the Mother and Father have shared parental responsibility for the long term care, welfare and development of the children of the marriage, [B] born … 2008 and [C] born … 2012.

   2.That the children live with the Father.

   3.That the children spend time with the Mother as follows:-

   (a)from noon until 6pm each Sunday for a period of four (4) weeks, commencing 30 July 2017;

   (b)from 9am until 6pm each Sunday for a period of four (4) weeks commencing 27 August 2017;

   (c)on alternate weekends from 9am until 6pm on Saturday and from 9am until 6pm on Sunday for a period of six (6) weeks commencing 24 September 2017;

   (d)on alternate weekends from 9am on Saturday until 6pm on Sunday for a period of six (6) weeks commencing 5 November 2017;

   (e)on alternate weekends from after school or 3pm in the event of a school holiday period on Friday until 6pm on Sunday for a period of six (6) weeks commencing 17 December 2017;

   (f)on alternate Wednesdays from after school until 7.30pm commencing 27 September 2017;

   (g)on Tuesday … 2017 (C's birthday) from  after school until 7.30pm;

   (h)on Monday … 2017 (B's birthday) from after school until 7.30pm;

   (i)on Christmas Day 2017 from 9am until 2pm.

   4.That the time which the children spend with the Mother be supervised by either or both [Ms G], the Mother's mother or [Mr H], the Mother's stepfather upon the basis that [Ms G] and [Mr H] each undertake to the Court that they are aware of the responsibilities of supervision and that they would each intervene in the event that any inappropriate conduct or conversation took place involving the Mother and the children.

   5.That the Mother be permitted to attend school functions and events at the children's school, [L School], which parents are permitted to attend.

   6.That in order to facilitate the children spending time with the Mother pursuant to order 3 herein that save for times when the children are to be collected from or delivered to school that the Father deliver the children to the Wife's residence at the commencement of the time and collect the children from the Wife's residence at the conclusion of the time.

   7.That the Father be restrained from assaulting, molesting, abusing, harassing or in any way interfering with the Mother.

   8.That the Father be restrained from discussing these proceedings with the children.

   9.That the Father be restrained from denigrating the Mother or making derogatory remarks in respect of the Mother in the presence of or hearing of the children.

   Financial Orders

   10.That the Father pay to the Mother by way of periodic spousal maintenance the amount of $1,000.00 per week.

   11.That the Father within seven (7) days return to the Mother the [German] motor vehicle registration number … and thereafter pay the registration, insurance and any lease payments outstanding as and when they fall due in respect of such motor vehicle.

   12.That upon the Father's compliance with Order 7 herein, that the Mother have the exclusive use and possession of the said motor vehicle.

   13.That the Father within seven (7) days return to the Mother her engagement ring, which he removed from her possession prior to separation.

   14.That the Father within seven (7) days do all acts and things to reinstate the internet at the former matrimonial home at Suburb N and thereafter pay for such internet service.

   15.The Court notes that the Father shall continue to make repayments as and when they fall due in respect of the mortgage to the National Australia Bank secured upon the former matrimonial home situated at Suburb N.

   16.     The Court notes that the Father shall continue to pay:-

   17.Council rates, water rates, house and contents insurance in respect of the former matrimonial home at Suburb N.

   18.Private Health Insurance premiums with BUPA.

   19.The Court notes that the Father's undertaking not to intrude or otherwise interfere with the quiet enjoyment by the Mother of the former matrimonial home at Suburb N, subject to agreement between the parties or any order of the Court.

   20.That the Father pay the Mother’s costs of and incidental to these proceedings.

2. The father sought the following orders in his Minute of Order filed on 20 July 2017:

   Previous Orders made 16 November 2016

   1.That paragraphs 15 – 20 of the Orders made 16 November 2016 be discharged.

   Parenting - the Court Orders pending further Order:

   2.The father have sole parental responsibility for decisions in respect of matters going to the long term care, welfare and development of the children, [B] born … 2008 and [C] born … 2012 (the children).

   3.The children shall spend time with the mother:

   1.During the period from the date of these Orders until 31 December 2017:

   (i)each alternate Sunday for a period of not less than 4 hours, with such time to commence on Sunday, 30 July 2017;

   (ii)in so far as supervision can be arranged, for not less than 4 hours on Christmas Day, and in the event that supervision cannot be arranged for Christmas Day, the children are to have telephone contact with the mother for a period of approximately 30 minutes on Christmas Day;

   2.For the period from 1 January 2018 until 30 June 2018:

   (i)each alternate weekend, for a period of not less than 3 hours on the Saturday and for a period of not less than 4 hours on the Sunday;

   3.For the period from 1 July 2018:

   (i)each alternate weekend, for a period of not less than 4 hours on the Saturday and for a period of not less than 4 hours on the Sunday;

   (ii)in so far as supervision can be arranged, for not less than 4 hours on Christmas Day 2018, and in the event that supervision cannot be arranged for Christmas Day, the children are to have telephone contact with the mother for a period of approximately 30 minutes on Christmas Day.

   4.For the purposes of the preceding Order:

   1.The children's time with the mother be supervised by [F Group] for Children or other such supervisor as agreed between the parties;

   2.The costs associated with the supervision of the children's time with the mother be paid by the respondent father; and

   3.The supervised time take place at the former matrimonial home at [M Street, Suburb N] or other such place as agreed in writing between the parties.

   5.That the children’s time with the mother pursuant to these Orders, is suspended as follows:

   1.During the period from 27 September through until 15 October 2017;

   2.The second half of the December 2017/January 2018 school holiday period;

   3.During any other period that the father elects to travel overseas with the children outside of the Commonwealth of Australia, subject however to the father causing to be served on the mother’s solicitor not less than 14 days prior to departure, a copy of the proposed itinerary of travel including details of the departure and return dates from and to Australia, and details of each of the countries the children will be visiting (and the same conditions apply to sub-paragraphs 5.1 and 5.2 hereof);

   6.In the event that the children miss any spend time periods with the mother during such holiday periods as referred to in the preceding Order, then the mother shall be provided with make up time for any periods missed with the children at the first available opportunity thereafter.

   Interim financial matters

   7.The Court NOTES that the father undertakes to continue to meet the costs of those matters set out in paragraph 16(a), 16(b) and 16(c) of the Orders proposed by the mother in her Initiating Application filed 21 September 2016.

   8.The Court NOTES the undertaking of the father, that he will not seek to intrude or otherwise interfere with the quite enjoyment by the mother of the former matrimonial home situate at [M Street, Suburb N], NSW, subject to any written agreement between the parties or any Order of the Court to the contrary.

   9.That the father shall be at liberty to attend at the former matrimonial home at [M Street, Suburb N] NSW to collect his personal belongings and the children's clothing and toys, including but not limited to the following items, provided he gives the mother 7 days written notice (to be served on her solicitors) of a time and date at which such collection shall occur:

   1.All tools in the garage;

   2.All construction materials in garage

   3.All pots and plants in grey pots;

   4.Computer and printer in study;

   5.Files in study;

   6.All sporting goods in garage – tennis, diving, golf, fishing, boating;

   7.All car related materials in garage;

   8.All cook books on shelf in hallway;

   9.All male shoes in shoe cupboard in hallway;

   10.All male clothing and suits in the wardrobes;

   11.2 x pressure cookers from kitchen;

   12.Pots from kitchen;

   13.Children’s clothing; and

   14.Children’s toys.

   10.That unless the wife nominates in writing a real estate valuer and accounting valuer from the panel put forward by the husband on or before 4.00pm on 26 July 2017, the husband shall be at liberty to nominate which of the experts shall be selected in each field and each party shall thereafter do all acts and things and sign all documents necessary to provide instructions to the experts in accordance with the Family Law Rules 2004.

3. The Independent Children’s Lawyer minute of proposed orders filed on 23 July 2017 was as follows:

   1.The  children,  B  born  …  2008 and  C  born  2012, ("the children") live with the father.

   2.The children to spend supervised time with the mother:

   During the 2017 school term 3:

   2.1     each alternate Sunday for a period of not less than four (4) hours;

   During the 2017 term 3 school holidays:

   2.2     On each Sunday, for a period of not less than four (4) hours.

   During the 2017 school term 4 on a 2 weekly basis:

   2.3     Week 1: On Sunday for a period of not less than four (4) hours

   1.4     Week 2: On Wednesday after school to 6pm.

   During the 2017 term 4 school holidays on a 2 weekly basis:

   1.5     Week 1: Sunday, for a period of not less than four (4) hours;

   1.6     Week 2: Wednesday, for a period of not less than four (4) hours;

   1.7     On Christmas Day, for a period of not less than six (6) hours.

   From Term 1 2018, during the school term on a 2 weekly basis:

   1.8Week 1: On Sunday for a period of not less than six (6) hours;

   1.9Week 2: On Wednesday after school to 6pm.

   From term 1, 2018, during the school holidays on a 2 weekly basis:

   1.10Week 1: Sunday, for a period of not less than six 6 hours;

   1.11Week 2: Wednesday, for a period of not less than six 6 hours:

   1.12On Christmas Day, for a period of not less than six 6 hours.

3.        The children's time with the mother pursuant to order 2 is to be supervised by [F Group], or such other professional supervisor as may be agreed between the parties in writing.

4.The costs associated with supervision are to be paid by the father with those costs to be characterised and dealt with at the final hearing of the property matters.

5.The mother's supervised time with the children is to take place at the former matrimonial home at [M Street, Suburb N] NSW, or any other place as may be agreed between the parties.

6.The maternal grandmother and step-maternal grandfather are permitted to attend the time that the children spend with the mother, subject to the supervisor being at liberty to terminate the supervision of anytime irrespective of who is in attendance.

7.The children's time with the mother pursuant to order 2 above, is suspended during:

7.1.The first half of the December /January school holidays in 2017/2018; and

7.2.Subject to the father causing to be provided to the mother or her legal representatives and the Independent Children's Lawyer of not less than 14 days prior to departure, the propose itinerary of travel, a copy of any return airline tickets, telephone contact details, the father is at liberty to travel with the children outside the Commonwealth of Australia for purpose of a holiday with the children.

8.In the event, the children miss any spend time periods with the mother during such school holidays periods, then the mother shall be provided with makeup time for any periods missed with the children at the first available opportunity.

9.Within fourteen (14) days, the parties to enrol and attend Parenting after separation  courses, such as 123 Magic and Emotional Coaching, or the Circle of Security parenting program.

10.Upon completion of the course pursuant to order 9 above, the parties to forward to the other and the Independent Children's Lawyer the certificate of completion.

11.Within 48 hours, the mother to provide to the Court two psychiatric assessments she completed referred to in the Child Responsive Program Memorandum prepared by Family Consultant [Ms D] dated 17 May 2017.

12.Within 48 hours, the mother to provide to the father's solicitor and the Independent Children's Lawyer names of all treating health professionals, including but not limited to counsellors, psychiatrists, psychologists she is currently attending and has attended in the past 24 months.

13.The mother authorise the Father and the Independent Children's Lawyer to communicate with all her treating health professionals, including but not limited to [Professor J].

14.The mother continue to attend psychiatric intervention as recommended by [Professor J].

13.The mother is retrained by injunction from questioning the children in relation to the father's partner, [Ms O].

14.The parties are retrained by injunction from discussing these proceedings with the children or within the hearing of the children.

15.Within seven (7) days, the mother to provide a copy of the Child Responsive Program Memorandum prepared by Family Consultant [Ms D] dated 17 May 2017 and [Dr. E's] expert report dated 29 June 2017 to [Professor J].

orders made on 25 July 2017

1. As result of discussion that occurred between counsel, during the course of the hearing on 25 July 2017, the parties agreed to the following orders being made by consent:

   …

   7. The children, [B] born … 2008 and [C] born … 2012, “the children”) live with the father.

   8. The children to spend supervised time with the mother:

   During the 2017 school term 3:

   2.1 each alternate Sunday for a period of not less than four (4) hours;
   During the 2017 term 3 school holidays:
   2.2 On each Sunday, for a period of not less than four (4) hours.
   During the 2017 school term 4 on a 2 weekly basis:
   2.3 Week 1: On Sunday for a period of not less than four (4) hours;
   2.4 Week 2: On Thursday after school to 6pm.
   During the 2017 term 4 school holidays on a 2 weekly basis:
   2.5 Week 1: Sunday, for a period of not less than four (4) hours;
   2.6 Week 2: Thursday, for a period of not less than four (4) hours;
   2.7 On Christmas Day, for a period of not less than six (6) hours.
   From Term 1 2018, during the school term on a 2 weekly basis:
   2.8 Week 1: On Sunday for a period of not less than six (6) hours;
   2.9 Week 2: On Thursday after school to 6pm.
   From Term 1 2018, during the school holidays on a 2 weekly basis:
   2.10 Week 1: Sunday, for a period of not less than six (6) hours;
   2.11 Week 2: Thursday, for a period of not less than six (6) hours;

   2.12on Christmas Day, for a period of not less than six (6) hours.

   9. The children’s time with the mother pursuant to order 8 is to be supervised by F Group, or such other professional supervisor as may be agreed between the parties in writing.

   10. The costs associated with supervision are to be paid by the father with those costs to be characterised and dealt with at the final hearing of the property matters.

   11. The mother’s supervised time with the children is to take place at the former matrimonial home at M Street, Suburb N NSW or any other place as may be agreed in writing between the parties.

   12. The material grandmother and step-maternal grandfather are permitted to attend the time that the children spend with the mother, subject to the supervisor being at liberty to terminate the supervision of anytime irrespective of who is in attendance.

   13. The parties are each restrained by injunction from discussing these proceedings with the children or within the hearing of the children.

BACKGROUND

1. The father was born in 1973 and is 43 years of age. The mother was born in 1976 and is 41 years of age.

2. In 2005 the parties commenced cohabitation.

3. In 2007 the parties married.

4. In 2007 the father commenced working as a self-employed businessman.

5. In 2008 the parties relocated to P Street, Suburb N.

6. In 2008 the parties’ first child, B was born.

7. In February 2009 the parties purchased the property situated at M Street, Suburb N (the former matrimonial home) for approximately $1.51 million. This property was registered in the mother’s sole name.

8. In 2012 the parties’ second child, C was born.

9. In 2014 B began attending L School.

10. The mother returned to work for three days a week in February 2014.

11. On 29 April 2015 the mother had veneers inserted on her teeth by her dentist.

12. In June 2015 the mother, father, paternal grandfather and B travelled to Europe for two weeks.

13. Upon returning from a trip to Europe with the father and B, in June 2015, the mother commenced taking anti-depressants. The mother also began smoking during this period.

14. The mother was diagnosed with body dimorphic disorder and was prescribed with an antipsychotic medication in July 2015. The mother disputes this as being an accurate diagnosis.

15. In August 2015 the father and the mother’s stepfather took the mother to the emergency ward at Q Hospital where she spent two days.

16. On 2 September 2015 the father called an ambulance and police in respect to the mother’s behaviour. The mother was taken to the R Hospital where she spent one week in the S Centre and placed on medication for depression. The wife thereafter spent two weeks in the T Clinic but returned home on weekends.

17. In late October 2015 the father and the children moved into the paternal grandfather’s house in Suburb U.

18. The mother did not spend time with the children between 3 November 2015 and 17 December 2015. The mother, however, visited C each day at childcare for approximately one hour on Monday through to Wednesday and 2 hours on Thursday and Friday in respect to the period from 3 December 2015 until 17 December 2015.

19. On 24 December 2015 the mother moved into the Suburb U house and slept on the couch.

20. On 10 January 2016 the father called an ambulance and the mother was taken to V Hospital for a period of one week. The mother was discharged on 19 January 2016 and returned to the former matrimonial home.

21. On 4 February 2016 the mother was arrested and taken to the Suburb W Police Station and placed in a cell and charged with assault.

22. The father obtained an interim Apprehended Domestic Violence Order (“ADVO”) in the Local Court at Suburb W on 5 February 2016 which listed the father and the two children as protected persons. The mother was charged with common assault to which she has pleaded not guilty. The mother was later charged for breaching the restrictions imposed by the Apprehended Violence Order. Those proceedings have been stood over to 21 September 2017.

23. Shortly after the events of 5 February 2016 the mother voluntarily admitted herself into the X Hospital. The mother spent a period of three weeks in hospital where she attended upon Dr Y, psychiatrist, twice a week.

24. On 6 June 2016 the Local Court at Suburb W issued an interim ADVO naming the husband and the children as protected persons.

25. In July 2016 the parties holidayed together in Asia with the children and friends.

26. In July 2016 the father and the children moved to Suburb Z.

27. On 2 September 2016 the mother was arrested by police and charged with breaching the interim ADVO. The mother was detained in a police cell overnight.

28. On 2 September 2016 the mother was charged and arrested for breaching the ADVO. The mother was initially denied bail but bail was subsequently granted on 3 September 2016.

29. On 21 September 2016 the mother filed an Initiating Application seeking interim and final orders in relation to parenting. The mother also filed a Notice of Child Abuse.

30. On 14 November 2016 the father filed a Response to Initiating Application.

31. On 16 November 2016 the following interim orders were made:

    …

    14. The children, B born … 2008 and C born … 2012, (“the children”) live with father.

    15.The children are to spend time with mother:

    a.    each alternate Sunday for a period not less than three (3) hours, with such time to commence on Sunday, 20 November 2016.

    b.    In so far as supervision can be arranged, for not less than three (3) hours on Christmas day; and,

    c.    In the event that supervision cannot be arranged for Christmas day, the children are to have telephone contact with the mother for a period of approximately 30 minutes on Christmas day provided that the children’s telephone conversation with the mother is progressing in a manner that is not causing distress to the children.

    16.The children’s time with the mother pursuant to Order 12(a) and 12(b) above, is to be supervised by [F Group], or such other professional supervisor as may be agreed between the parties in writing.

    17.The costs associated with supervision are to be paid by father with those costs to be characterised and dealt with at the final hearing of property matters.

    18. The mother’s supervised time with the children is to take place at former matrimonial home at [M Street, Suburb N] NSW, or such other place as may be agreed between the parties.

    19. Subject to the ICL indicating agreement with same, that the maternal grandmother and step –maternal grandfather are permitted to attend the time that the children spend with the mother, subject to the supervisor being at liberty to terminate the supervision of any time irrespective of who is in attendance.

    20. The children’s time with the mother pursuant to Order 12 above, is suspended during:

    a.   the second half of the December / January school holidays; and,

    b.    subject to the father causing to be provided to mother’s solicitors   his proposed itinerary of travel, a copy of any return airline tickets, telephone contact details, the father is at liberty to travel with children outside the Commonwealth of Australia for purpose of a holiday with the children.

    21. The parties’ legal representatives are granted leave to inspect and photocopy documents produced under subpoenas issued in this matter.

    22.Within 14 days of the date of these Orders, and at a time that is mutually convenient to both parties, the father shall attend at the former matrimonial home at [M Street, Suburb N] NSW, to collect his personal belongings.

    23. Within 21 days of the father attending the former matrimonial home to collect his personal belongings, the parties are to each provide the other with a List of documents to which their duty of disclosure applies in accordance with Rule 13.20 of the Family Law Rules 2004.

32. Pursuant to the orders made on 16 November 2016, the children spent time with the mother on the following dates:-

    ·27 November 2016;

    ·11 December 2016;

    ·25 December 2016;

    ·5 February 2017;

    ·19 February 2017;

    ·5 March 2017;

    ·19 March 2017;

    ·2 April 2017;

    ·30 April 2017;

    ·14 May 2017;

    ·28 May 2017;

    ·11 June 2017;

    ·25 June 2017; and

    ·9 July 2017.

33. On 23 November 2016 the father cancelled time the mother was to spend with the children on 8 and 22 January 2017 and 16 April 2017. The children did not spend time with the mother on these dates.

34. Between 11 January 2017 and 28 January 2017 the father took children on a holiday to Asia.

35. On 16 March 2017 the Apprehended Violence Order proceedings were adjourned part heard in the local court AA Centre to 26 June 2017.

36. On 12 May 2017 the mother and the children’s maternal grandmothers attended a Mother’s Day event at the children’s school at Suburb N. The father had also arranged for his partner Ms O to attend the event.

37. On 17 May, 2017 a Child Responsive Program Memorandum was prepared by Family Consultant Ms D.

38. On 20 June 2017 the parties and the maternal grandmother and her partner attended appointments with the single expert Dr E.

39. On 26 June 2017 the Apprehended Violence Order proceedings were adjourned part heard in the Local Court AA to 21 September 2017.

40. On 29 June 2017 Dr E’s expert report was released.

Limited ability to consider issues interim proceedings

1. The mother contended that the following issues require consideration in these interim proceedings.

   1.Whether the mother presently has mental health issues which impact upon her ability to care for the children.

   2.Whether the mother’s present mental state constitutes a risk to the children’s welfare.

   3.The nature of the mother’s mental illness and the impact upon her mental health by the father’s behaviour as contended by her towards her during cohabitation.

   4.Whether the time which the mother spends with the children should be supervised and if so, who would be an appropriate supervisor.

   5.Whether the maternal grandparents should be permitted to spend time with the children during those periods of time they spend with the mother. 

   6.Whether the time the mother spends with the children should only take place at the former matrimonial home with the mother being precluded from taking the children outside of the home.

   7.The extent to which the time the mother spends with the children should be increased and the manner in which such time should be graduated. 

   8.Whether the mother and the children have been exposed to family violence and abuse during cohabitation.

   9.Whether there is a need to protect the children from physical, psychological and emotional abuse or from family violence from either the mother or the father.

   10.The attitudes to the children of the father and mother and to their responsibilities of parenthood.

   11.The capacity of the parties to provide for the needs of the children.

   12.The capacity of each of the parties to facilitate a relationship between the children and the other party.

2. It is not possible to resolve those matters in these interim proceedings because the Court is unable to make a determination in respect to disputed questions of fact. The central issue in these proceedings is whether, on the basis of available information, the children would be at an unacceptable risk in spending time with the mother in circumstances where that time is not supervised by a professional service. A secondary issue is whether the amount of supervised time the children spent with the mother should be increased.

Concepts and principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to parenting proceedings. Section 60B sets out the objects and principles of Part VII. The objects of Part VII, as found in subsection (1), are to ensure that the best interests of children are met by:

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

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

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

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

2. More generally, the Act makes it clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”.[1]

   [1]Family Law Act 1975 (Cth), s 43(1)(c).

3. Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Relevantly for these proceedings, section 61DA(3) provides that:

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

4. In this matter that there are allegations that the father has engaged in acts of domestic violence and that, in turn, the father’s conduct has detrimentally impacted upon the mother’s mental health. In these interim proceedings, I am unable to resolve controversial issues of fact.

5. Accordingly, in those circumstances, in accordance with section 61DA(3), the Court considers that it would not be appropriate for the presumption of equal shared parental responsibility to be applied in these interim proceedings. It is therefore unnecessary to consider whether the children should spend equal or substantial and significant time with each parent in accordance with section 65DAA. In those circumstances, the Court’s task is to determine directly what orders are in the best interests of the children.

6. In circumstances where an order is not made for the parents to have equal shared parental responsibility, section 65DAE provides that, unless otherwise specified in a relevant order, it is not necessary for the parent with whom a child is spending time to consult the other parent about issues that are not “major long-term issues”.

7. Major long-term issues are defined in section 4 of the Act as meaning “issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a)  the child's education (both current and future); and

   (b)  the child's religious and cultural upbringing; and

   (c)  the child's health; and

   (d)  the child's name; and

(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

1. In other words, in the absence of an order for equal shared parental responsibility, the parties are obliged to consult in respect to those major long-term issues.

2. Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. The primary focus of the parties contentions has been the primary considerations set out in s 60CC(2). Those considerations are:

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

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

3. In balancing these considerations, section 60CC(2A) requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).

Additional Considerations

1. Section 60CC(3), sets out additional considerations in determining what is in the child’s best interests. I will discuss those considerations in greater detail below. Those considerations can conveniently be grouped under the following topics:

   Issues relating to the children - their views, level of maturity, culture and relationships. These considerations are set out in paragraphs (a), (b), (g) and (h) of section 60CC(3).

   ·Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility. These are set out in paragraphs (c), (ca), (f) and (i) of section 60CC(3).

·Issues of family violence and whether there has been a family violence order. These considerations are set out in paragraphs (j) and (k) of section 60CC(3).

·Effect of change. This consideration is set out in paragraph (d) of section 60CC(3).

·Practical difficulty of implementation of orders. This consideration is set out in paragraph (e) of section 60CC(3).

·Avoiding further proceedings. This consideration is set out in paragraph (l) of section 60CC(3).

·Other relevant matters. This consideration is set out in paragraph (m) of section 60CC(3).

Consideration

Primary considerations

Meaningful relationship

1. In this matter, both parties acknowledged that it is in the children’s best interests to have a meaningful relationship with both parents in terms of section 60CC(2)(a). I accept that to be the case. In Sigley v Evor [2011] FamCAFC 22 at paragraph 26, the Full Court confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.[2] 

   [2] Citing Mazorski & Albright (2007) 37 Fam LR 518 at [26].

2. In his report, Dr E stated that:

   In the context of a meaningful relationship, the children will grow up with a more robust sense of identity, including both [the parents] heritages. The current circumstances, whereby the children had minimal contact with the mother and no contact with the maternal extended family, was detrimental to their evolving sense of self.[3]

   [3] Report of Dr E dated 29 June 2017 at [131].

3. In his report, Dr E stated that:

   In the context of a meaningful relationship, the children will grow up with a more robust sense of identity, including both [the parents] heritages. The current circumstances, whereby the children had minimal contact with the mother and no contact with the maternal extended family, was detrimental to their evolving sense of self.

4. I accept that to be the case.

Unacceptable risk

1. In Banks and Banks[4] the Full Court said at paragraph 48:

   It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial.

   [4] [2015] FamCAFC 36.

2. Consistent with the decision of the Full Court in Banks & Banks,[5] I propose to focus on the central issue which is whether the children would face an unacceptable risk of harm if they were to spend time with their mother in circumstances where that time is not supervised by a professional service.

   [5] Ibid.

3. Determining whether a child would be at an unacceptable risk with a parent involves a balancing exercise. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the task of determining whether a child would be at an unacceptable risk in spending time with a parent as being to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access.” Specifically, the Full Court said it is necessary to determine whether “that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.

4. In M v M (1988) 166 CLR 69 the High Court said at paragraph 78:

   To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of [harm].

5. Writing extra-judicially, Hon. John Fogarty AM, a former judge of this Court said):

   … unacceptable risk in the High Court’s formulation [in M v M] requires two separate steps.  Is there a risk, and is it unacceptable?  The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance.  In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.[6] 

   [6] Hon. John Fogarty AM in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family   Law 249 at 261.

6. Where an unacceptable risk is alleged, the court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.[7]

   [7] Stott & Holger and Anor [2017] FamCAFC 152 referring to (N and S and the Separate  Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).

7. If a determination is made that such a risk exists the court is then required to consider whether that unacceptable risk can be ameliorated by safeguards.[8]

   [8] Bennett and Bennett (1991) FLC 92-191 at 78,267.

8. In the article by the Hon. John Fogarty to which I have referred, his Honour wrote:

   The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’… (emphasis added).

9. In interim proceedings it is difficult to identify unacceptable risk and determine whether reasonable safeguards can mitigate against that risk. In Cowling v Cowling [1998] FamCA 19 at paragraph 18 the Full Court said, in respect to interim proceedings:

   Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

10. Despite the limitations on the Court’s ability to make findings in respect to controversial facts, the Court is not relieved of its obligation to consider risk. In that respect as in SS v AH,[9] the majority of the Full Court (Boland and Thackray JJ) said:

    … Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

    [9] [2010] FamCAFC 13 at [100], see also Keats & Keats [2016] FamCAFC 156 at [9] and Salah & Salah (2016) FLC 93‑713 at 81,516 – 81,517 [39] – [40].

11. It is to be observed that the reference, by the Full Court in SS v AH,[10] to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk,[11] as long as there is a proper basis for those “possibilities”.

Is there an unacceptable risk in the children spending time with the mother in circumstances where that time is not supervised by a professional service?

[10] Ibid.

[11] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

1. Both the father and the Independent Children’s Lawyer submitted that the history of the mother’s mental illness, as evidenced in the admissions referred to in the background set out above, is such that the children would be at an unacceptable risk in being in her unsupervised care.

2. The mother submits that her condition has been caused and/or significantly aggravated by a history of controlling and violent behaviour on the part of the father towards the mother. The mother submits that, now that she is not exposed to such conduct, her mental health has recovered to the point where the children are not at risk of harm in her care.

3. The mother acknowledges, however, that, in these interim proceedings, the Court will be inclined to take a cautious approach. On that basis, the mother accepts that supervision of the children’s time in her care is appropriate. The mother submits, however, that the maternal grandmother and her step grandfather are suitable persons to supervise the children’s time with the mother.

4. Both the father and the Independent Children’s Lawyer submit that, on the basis of evidence that is currently available, the Court could not be comfortably satisfied that the paternal grandmother and her partner can appropriately supervise the children’s time with the mother. This is because, it is submitted, neither the maternal grandmother nor her partner are prepared to realistically acknowledge the extent of the mother’s mental health challenges and the risk that poses to the children.

5. Both the father and the Independent Children’s Lawyer referred to notes provided by F Group which is the organisation that has been retained to provide professional supervision of the time that the children currently spend with the mother. Those notes, it was submitted, include a number of instances where the mother has shown inappropriate emotionality and engaged in inappropriate communication with the children.

6. In these proceedings it is not possible to make a determination in respect to the accuracy of each of the relevant events referred to in the notes from F Group. However, in the context of taking a cautious approach in these interim proceedings, the following give cause for concern.

7. The first matter of concern is set out in the notes of F Group dated 17 February 2017 where the F Group supervisor records the mother having asked B various questions about the father’s new partner Ms O.

8. The second matter of concern is referred to in an email from F Group to the father advising that the mother made enquiries about the father’s personal life and asked the children who they wished to live with.

9. In addition, it is possible that the mother may experience difficulty in regulating her behaviour even in the presence of a supervisor. In that respect, Dr E reports that, in his interview with B, she advised him:

   One time, my Mum, when I came to visit, I heard her screaming downstairs to the supervisor. And she was screaming on the phone as well.” She [B] felt worried, “because I didn’t know what it was about and I was worried that she would do something bad. Because once she hurt me”.[12]

   [12] Report of Dr E dated 29 June 2017 at [43].

10. The presence of the supervisor is also of some comfort to B. When asked who she speaks to when she was worried she responded “sometimes I talk to the supervisor. And sometimes when I’m worried, I talk to daddy”.[13]

    [13] Ibid.

11. Dr E noted that, when he asked B how she would feel if a supervisor was not present when she spent time with the mother, she responded “I want the supervisor there because the supervisor protects us. And I have someone to talk to. So I think we should have the supervisor there all the time”.[14]

    [14] Ibid at [44].

12. At this stage of the proceedings it is not possible to make a determination as to the cause of the mother’s mental health challenges. It is clear that, since approximately mid-2015 the mother has periodically suffered from acute mental health episodes that have required her to be admitted for treatment. It is clear, that during those acute episodes the mother is not capable of properly caring for the children. In those circumstances the children would, in my view, be at an unacceptable risk in the mother’s care if she were to suffer from such an acute mental health episode.

13. That risk can, however, be ameliorated by the presence of a responsible adult who can appropriately supervise the children’s time with the mother. It is to the mother’s credit that she acknowledges that, at the present stage of her recovery, such supervision is appropriate.

14. The question becomes, however, whether the mother’s own mother and/or the maternal grandmother’s partner are appropriate adults to undertake that supervision. On the basis of the affidavits of the maternal grandmother and her partner, there is a concern that they have failed to fully appreciate the extent of the mother’s mental health challenges and the impact that it may have on the children.

15. Dr E noted that “the maternal grandparents were motivated for the re-establishment of unsupervised contact between the children and their mother”.[15]

    [15] Ibid at [79].

16. There is a concern that neither the maternal grandmother, nor her partner, will be sufficiently aware of the risks, to the children, of the mother engaging in inappropriate communication with them. This includes communication that draws them into the parental dispute and/or issues associated with these proceedings.

17. In respect to the question of risk, I note that Dr E commented that he did not “form the view that ongoing paid professional supervision was a requirement for future contact”.[16]

    [16] Ibid at [153].

18. It is appropriate that I give significant weight to the views of Dr E in that respect. However, as noted, at this interim stage of the proceedings it is necessary for the Court to adopt a cautious approach. On that basis, it is my view that the children’s time with their mother should continue to be supervised by a professional contact service.

19. The interim orders made on 25 July 2017 provide for that to occur. Those orders modified previous arrangements insofar as the orders provide for the mother to have greater flexibility as to where she may take the children for outings when they are in her supervised care. It is inappropriate, at this stage, to vary those orders.

Applying Section 60CC(3) Considerations

1. The second aspect of the mother’s claim is an application to increase the amount of time that the children spend with her. To determine that issue, insofar as it is possible in these interim proceedings, it is necessary to consider what orders are in the best interests of the children having regard to those matters that are set out in section 60CC(3) of the Act.

2. I note and agree with the observation contained in the mother’s case outline that the “evidence of the parties is significantly in dispute between them.  Both parties give very divergent accounts as to what has occurred between them”. As noted, in these interim proceedings I am unable to resolve those disputed facts. In those circumstances, I will not focus upon the disputed facts as set out in each of the affidavits that the parties have filed.

3. At final hearing, the parties will have the opportunity to test the observations, conclusions and opinions expressed by Dr E, the single expert appointed by the Court to advise in respect to parenting matters. Making allowance for that fact, Dr E’s report nonetheless provides helpful guidance to the consideration of those matters set out in section 60CC(3).

Issues Relating to the Children - Their Views, Level of Maturity, Culture And Relationships

Any views expressed by the child

1. Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

2. When B was asked, by Dr E, whether she wanted to spend additional time with her mother she said she did not “because I’d like it how it is. And I still want to see my mum but I still want to live with my dad”.[17] B also said that she would like to see her maternal grandmother and step grandfather sometimes “perhaps every second week”.[18]

   [17] Ibid at [44].

   [18] Ibid.

3. Dr E also reported that:

   When asked how she felt about the possibility of seeing her mother more, [B] responded, “No. I just want it to stay the same. No changes. I don’t want to see my grandmother. Maybe every second week, on the same week, maybe at the same time as my mother.” She agreed that she also wanted to see her maternal grandfather”.[19]

   [19] Ibid at [86].

4. C advised Dr E that:

   Most of the time, he lived with his Dad and sister “because I don’t get to live with my mum”. When asked if he missed her, he responded, “no. A tiny, tiny, little bit. I most like my dad. I want to live with daddy more. I want to live with Daddy more. Mummy says she’s not sick but she is. She wants us to live with her and she gives us presents. But she’s sick.[20]

   [20] Ibid at [52].

5. Dr E further reported that:

   When asked if he wanted to see his mother more, [C] responded that he didn’t as he wanted to live with his daddy. When asked if he wanted to see his maternal grandparents, he responded, “not really. Because I want to stay with my sister and my daddy.[21]

   [21] Ibid at [85].

6. Dr E summarised his opinion in respect to the children’s views in the following terms:

   Both children expressed a preference to maintain the status quo. This is a common response from children when exposed to disrupted and traumatic developmental experiences. They felt safe in their current home environment with their father and at school. They had witnessed distressing and disorganising events related to their mother’s unstable mental health and loss of contact with their mother and maternal grandparents. Further, the children were influenced by their father, who had provided them with a safe environment and confirmed that belief that they were unsafe in the care of the mother.[22]

   [22] Ibid at [137].

7. B is aged eight and C is aged five. As noted by Dr E:

   Limited weight should be given to [the children’s] wishes, given the children’s maturity level and limited understanding of complex issues related to the mother’s mental health and family dynamics. Their expressed views were inconsistent with the exuberant interactions observed with their mother. It was likely that their views have been influenced by their communication with their father.[23]

   [23] Ibid at [140].

The nature of the relationship of the child with each of the child’s parents and other persons

1. Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.

2. Until 2015, the mother was the primary carer of the children. That has changed as result of the mother’s mental health issues. In late October or, according to the mother, early November 2015, the father, with the children, moved into the paternal grandfather’s house at Suburb U. As a result, the mother did not see the children between 3 November 2015 and 3 December 2015. The mother has had limited contact the children in the period subsequent to December 2015.

3. Since October 2015 the father has been the primary carer of the children.

4. In his report, Dr E observed that the children have a close rapport with each other. Dr E also noted that the children “have a loving bond with their father”.[24]

   [24] Ibid at [143].

5. Dr E also observed that the children have “positive interactions” with the father’s current partner and their paternal grandfather.

6. Dr E observed that the children “were initially reserved in their interactions with the mother”. However, “during the course of the observation, they were seen to be more relaxed and engaged in response to loving and engaged interactions”.

7. It is also significant that Dr E observed the children’s enthusiastic interaction with their maternal grandparents. Dr E commented that “the delight and excitement was particularly striking given the profound limitations on contact with the maternal extended family”.

8. On page 22 of his report Dr E commented:

   The current circumstances whereby the children had minimal contact with the mother and no contact with the maternal extended family was detrimental to their evolving sense of self.

9. I accept the validity of Dr E opinion and acknowledge that the father also agrees that the amount of time the children spend with the mother should be increased.

The maturity, sex, lifestyle and background of the child and either of the child’s parents

1. Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.

1. The most relevant consideration in respect to this matter is that the children share a varied European heritage through their parents. As noted above, Dr E was of the opinion that it is important for the children to retain a connection to this heritage. I accept and agree with his opinion.

The culture of the child if the child is Aboriginal or a Torres Strait Islander

1. Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander.

2. This consideration is not relevant.

Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility

Long term decision making, time and communication

1. Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.

2. During cohabitation the mother was the primary carer of the children. It also appears that, during that time, the maternal grandmother and her partner lived close to the parties and they were significantly involved in the children’s lives.

3. As noted, the mother contends that, until late October or early November 2015, she was the primary carer of the children. The mother contends that, in early November 2015, the father removed the children from the mother to live with the paternal grandfather at Suburb U. The mother asserts that, at that time, the father refused to have any contact with the mother including by way of blocking the mother’s telephone calls. 

4. The mother’s time with the children since that time is set out in the above chronology.

5. It is clear that, since early November 2015, the father has been primarily responsible for making decisions about major long-term issues in relation to the children, spending time with the children and communicating with the children.

6. The mother’s communication with the children has been constrained by the limited amount of time that she has spent with the children and by the fact that the time has been supervised.

The parent’s obligations to maintain the child

1. Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

2. As noted, prior to November 2015, the mother was the primary carer of the children and, aside from those periods where she was admitted for treatment in respect to acute mental health episodes, there appears to be no issue regarding the mother fulfilling her obligation to maintain the children.

3. The mother voiced some concerns that, prior to the parties’ separation, the father had failed to take the opportunity to be involved in the children’s day-to-day lives. I am not, in these interim proceedings, in a position to form a view in respect to those contentions.

4. I note, however, that the husband has been able to earn a comfortable income and appears to have applied that income for the purpose of maintaining the parties and the children in a comfortable lifestyle.

5. The father has been solely responsible for the maintenance of the children in the period subsequent to the parties’ separation in November 2015.

The capacity of each of the child's parents

1. Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.

2. Dr E noted that:

   The father had exhibited adequate capacity to attend to the children’s developmental needs, including their emotional needs and intellectual needs. He was now well supported by his girlfriend in attending to these matters. He had previously enjoyed the support of the paternal grandfather, who has provided accommodation for the family post separation. The separation and loss of their mother and maternal grandmother, enforced by the father, had however undermined the children’s emotional security.[25]

   [25] Ibid at [155].

3. The father contends that the mother continues to suffer from a significant psychiatric illness which adversely impacts upon her parenting capacity and that, as a result, she poses a risk to the welfare of the children.

4. In that respect Dr E expressed the view that:

   Prior to the separation, the children’s needs, including their emotional needs and intellectual needs had been attended to by the mother with the support of the maternal grandmother. The father had been working during this period and had been substantively less available. There was every indication that, now that the mother’s mental state had stabilised, she also has the capacity to meet the children’s developmental needs. She remained well supported by the maternal grandmother in this regard.[26]

   [26] Ibid at [156].

5. The extent to which the mother’s mental health may impact upon her parenting ability is a matter that needs to be fully considered in the light of expert advice, including from the mother’s treating specialists, at the final hearing.

6. Dr E expressed concern that each of the parties parenting capacity in the future may be impeded by their inability to communicate with each other and cooperate in relation to the children’s parenting in the future.

Attitude and parental responsibility

1. Section 60CC(3)(i) requires the Court to consider the attitude to the child, and parental responsibilities, by each of the child’s parents.

2. Dr E noted that:

   The father had prioritised the responsibilities of parenthood. This had been the primary factor for relocating to the home of the paternal grandfather in [Suburb U] in response to the deterioration in the mother’s mental state. He had acted to protect the children from their mother’s unstable mood and volatile behaviour.[27]

   [27] Ibid at [158].

3. While it will be a matter to be determined at final hearing, Dr E expressed the view that “there was substantive evidence to support the father’s view that the children needed protection”[28] during 2015 and 2016 when the mother was suffering from acute mental health episodes.

   [28] Ibid.

4. In respect to the mother, Dr E noted:

   The mother expressed a loving attitude towards the children. Her capacity to attend to the responsibilities of parenthood has previously been impaired by her disturbed mental state. She remained well supported by the maternal grandmother.[29]

   [29] Ibid at [159].

5. The mother has acknowledged that her parenting capacity has been impaired as a result of the deterioration in her mental health. Dr E noted, however, that:

   She was now motivated to again attend to the responsibilities of parenthood. Her capacity to do so currently is untested.[30]

   [30] Ibid.

6. Dr E reported that the children will benefit from having a significant and substantive relationship with both parents and that “both parents and their extended families were observed to be loving and committed to the children’s welfare”.[31]

   [31] Ibid at [131].

7. In terms of parental responsibility, it is a concern that the notes from F Group refer to the mother asking the children about matters concerning the father’s personal life and matters concerning these proceedings including, in particular, who they would like to live with.

8. It is also a concern that C reported to Dr E that he had been told by his father that his mother had lied. Dr E expressed the view that his interactions with C were “strongly suggestive of coaching or signs of his father’s influence”.[32]

Issues of family violence

[32] Ibid at [139].

Any family violence involving a child or a member of the child’s family

1. Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.

2. The mother contends that she has been the victim of emotional, psychological, verbal and physical abuse at the hands of the father. She further contends that this has occurred in front of the children.

3. The mother also contends that the father has embarked upon a deliberate course of action to isolate her from the children by removing them from her care and only permitting her to spend limited, if any time, with them.

4. The mother further contends that the father has denigrated her to and in the presence of the children to such an extent that this has been imitated by the children. The mother further claims that the father has sought to influence the children against her. 

5. The father denies the allegations by the mother that he has engaged in acts of violence against her and asserts that the mother has been physically abusive to both him and the children. 

6. It is not possible to resolve these competing allegations in these interim proceedings.

Whether any family violence order has or continues to apply

1. Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.

2. As noted in the mother’s case outline document:

   The Father obtained an Interim Apprehended Violence Order in the Local Court at [Suburb W] on 5 February 2016 for the protection of himself and the children.  The Mother was charged with common assault. The Mother was also subsequently charged for breaching the restrictions imposed by the Apprehended Violence Order. These proceedings are being defended by the Mother (sic) The proceedings were listed for hearing in the Local Court at Suburb W on 8 November 2016, however subsequently marked “not reached” and transferred to the Local Court at the [AA] Centre, Sydney. 

   A defended hearing was conducted by Magistrate … on 16 March 2017 and 26 June 2017.  The hearing has not been concluded and has been stood over to 21 September 2017.

Effect of change  

1. Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.

2. Since November 2015 the children have been living with the father and spending limited time with the mother. More recently that time has been supervised.

3. The orders to increase the amount of time that the children spend with their mother in the presence of a professional contact service will not result in a significant change for the children.

Practical difficulty of implementation

1. Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

2. This was not identified to be a significant issue in these proceedings save insofar as orders providing for the children’s time to be supervised by a professional service will inevitably involve expense.

Avoiding further proceedings

1. Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

2. These are interim proceedings and this consideration is not relevant.

Other relevant matters

1. Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.

2. In terms of other relevant matters it is a concern that, as noted by Dr E, “The mother and maternal grandmother minimised [the mother’s] experience of psychological and psychiatric issues, beyond acknowledging that she had experienced some depression following the birth of her children”.[33]

   [33] Ibid at [166].

3. Dr E noted that there is some support for the mother’s contention that she has recovered from a psychiatric disorder and has no impairment of her parenting capacity. That support is set out in reports provided by her treating psychiatrist, Professor J and the mother’s treating Doctor, Dr K. While Dr E acknowledged the expertise of, in particular, Professor J, he cautioned about accepting the view that the mother has recovered from a psychiatric disorder in circumstances where it is not clear that either Professor J or Dr K have reviewed the extensive notes in respect to the mother’s treatment.

4. Dr E also notes that the written observations provided by F Group “identify persistent emotional volatility during contact visits”. This, Dr E comments “is indicative of a persistent impairment of her capacity to consider the children’s experience when distressed”.[34]

   [34] Ibid at [168].

5. The mother contends that her recovery has occurred as result of the fact that she is no longer exposed to family violence perpetrated against her by the father. Issues relating to the causation of the mother’s mental health challenges will clearly be relevant at the final hearing.

6. However, as I noted, at the interim hearing of this matter on 25 July 2017, the Court will, at the final hearing, be particularly interested in whether the mother and the maternal grandparents have acknowledged the extent to which the mother has suffered from mental health challenges and that they are taking appropriate steps to address those concerns.

Evaluation of section 60CC considerations.

1. The mother has experienced significant mental health challenges. It is clear that the mother has made substantial progress in recovering from a psychiatric disorder.

2. As result of uncertainty as to the extent of that recovery it is appropriate that, pending the final hearing of this matter, any time that the children spend with the mother be supervised.

3. For the reasons set out above, at this stage of the proceedings, I am of the opinion that it is appropriate for that supervision to continue to be provided by F Group.

4. The orders made on 25 July 2017 provide for that to occur. As noted, however, the orders made on 25 July modify the previous arrangements to provide greater flexibility for the mother to take the children on outings and to events when they are in her care.

5. Dr E expressed concern about the limited time that the children have spent with the mother and with the maternal grandparents. The orders made on 25 July 2017 provide for an increase in the amount of time that the children spend with the mother and facilitate the maternal grandparents spending time with the children when they are in the mother’s care.

6. As result of the fact that the children’s time with the mother will be supervised by a professional service, a practical consideration to take into consideration in making an order for the children to spend additional time with the mother is the issue of costs.

7. In all the circumstances and noting that the matter has been set down for hearing in respect to parenting matters on 9 April 2018, I am satisfied that the parenting arrangements put in place by the orders made on 25 July 2017 are an appropriate interim arrangement pending the final hearing of the matter.

8. Accordingly, I do not propose to make any additional orders in respect to parenting arrangements beyond those that are set out in the orders which were made on 25 July 2017.

Property issues

1. At the interim hearing of this matter on 25 July 2017, the focus of the parties was appropriately on issues concerning parenting arrangements. It is my understanding that issues relating to the property proceedings involving the parties were resolved, at least on an interim basis, by the notations that I made on 25 July 2017.[35] As I indicated to the parties at the interim hearing, in the event that is not the case, they have liberty to apply generally, including in respect to those matters.

   [35] Transcript of Proceedings dated 25 July 2017 at page 74.

Trial directions

1. At the interim hearing on 25 July 2017 it was agreed that I would make trial directions in Chambers. A significant issue in these proceedings is the mother’s mental health. In accordance with section 69ZX(1)(e), I consider it is important to obtain updated reports form the mothers treating doctor and mental health specialists. I recognise that the father may wish to obtain his own clarification and advice in respect to matters raised in those reports. The orders, which are in the nature of trial directions, that I have included at the commencement of these Reasons for Judgement endeavour to provide for that to occur.

2. The parties will also be given liberty to apply should any difficulties arise in respect to those trial directions.

I certify that the preceding one hundred and eighty paragraphs (180) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 25 August 2017.

Associate: 

Date:  25 August 2017