Norris & Ishikawa
[2021] FedCFamC1F 305
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Norris & Ishikawa [2021] FedCFamC1F 305
File number(s): SYC 4494 of 2021 Judgment of: MCGUIRE J Date of judgment: 20 December 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Mother seeks review of interim parenting orders made by Senior Judicial Registrar – Orders re-instated in Part
FAMILY LAW – Collateral property issues in respect of exclusive occupation of the former matrimonial home and partial property settlement – Order made that husband reside in former matrimonial home with the children – Orders for a partial property settlement whereas wife receive $60,000 and husband receive $40,000
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA and 60CC Cases cited: Goode & Goode (2006) FLC 93–286
Eaby & Speelman (2015) FLC 93–654
SS & AH [2010] FamCAFC 13
Mazorski v Albright (2007) 37 Fam LR 518
Champness & Hanson [2009] FamCA 96
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 10 December 2021 Place: Hobart Counsel for the Applicant: Mr Fermanis Solicitor for the Applicant: Phillip A Wilkins & Associates Counsel for the Respondent: Mr Dura Solicitor for the Respondent: Kydon Segal Legal Lawyers ORDERS
SYC 4494 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NORRIS
Applicant
AND: MR ISHIKAWA
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
20 DECEMBER 2021
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1.The father, Mr Ishikawa, have sole parental responsibility for the children X born … 2009 and Y born … 2013 (‘the children').
2.That the children live with the father.
3.That the children spend time with the mother, Ms Norris, as follows:
(a)each Saturday between 10.00am and 4.00pm; and
(b)at such other times as agreed between the parents from time to time in writing.
4.That the children communicate with the mother as per the children's request but no less than once per week and unless otherwise agreed then at 7.00pm on Thursdays with the mother to telephone the children on a number to be provided by the father within 48 hours of these orders and the father to provide the children with privacy to accept the mother’s call.
5.That for the purposes of the children spending time with the mother the parents shall meet at the commencement and conclusion of such time at B Shopping Centre.
6.That each of the parents be and are hereby restrained from changing the children's place of residence to a place more than twenty (20) kilometres from C School without first having obtained the written consent of the other party or order of this Court.
7.That the parties, their servants and agents be and are hereby restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence or hearing of the children or either of them or permitting the children or either of them to remain in the presence or hearing of any other person who is engaging in such behaviour;
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or, in the presence of the hearing of the children or either of them and/or from permitting any other person to do so and from providing the children or either of them with access to any documents filed in these proceedings; and
(c)passing informational messages through the children or either of them.
8.That pursuant to s 62B of the Family Law Act 1975 (Cth) information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
9.That pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
10.That pursuant to Order 9 of the Orders of Senior Judicial Registrar Jenkinson of 1 November 2021, Ms D of E Family Services be the author of the single expert report.
11.That each of the parties by their servants and/or their agents be and are hereby restrained from causing the children or either of them to be vaccinated against the COVID–19 virus or any of its variants save by written consent of both parents but where the father have liberty to restore his application in this respect on short notice and if necessary by notification to the Chambers of Justice McGuire and for further interim hearing as to this discrete issue.
12.That the father have exclusive occupation of the property situate at F Street Suburb G in New South Wales and the mother be restrained from entering onto the curtilage of that property or loitering within the vicinity of that property without the express written invitation of the father.
13.That within fourteen (14) days of the date of these Orders the parties do all acts and things required including, but not limited to, signing all documents required to increase the loan with H Bank secured by the property at F Street, Suburb G New South Wales by $100,000 and that these funds be distributed between the parties as follows:
(a)as to $60,000 to the wife by way of partial property settlement; and
(b)by way of $40,000 to the husband by way of partial property settlement.
14.That the matter be listed before Registrar Chayna at 10.00am on 11 March 2022 in Sydney for the making of trial directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Norris & Ishikawa has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
APPLICATION
This is an application by the mother, Ms Norris, to Review a judgment of Senior Judicial Registrar Jenkinson (‘SJR’) made 1 November 2021 and essentially in respect of parenting orders regarding the parties’ two children being:
(c)X born in 2009 (aged 12 years); and
(d)Y born in 2013 (aged eight years).
There are collateral financial issues which essentially follow the event of my determination in respect of the children's interim living and parenting arrangements.
The father opposes the mother's application and in asking for its dismissal effectively seeks orders in the terms of SJR Jenkinson’s orders of 1 November 2021 with some discrete alterations.
By order of 18 November 2021 SJR Jenkinson stayed her operative orders of 1 November in respect of where the children should live and time with the other parent pending this Review.
There is a collateral issue in respect of exclusive occupancy of the former matrimonial home. The mother seeks an order that the children live with her in the interim and that she therefore have exclusive occupancy of the home. The father asks for orders whereby the children live with him regardless of whether the Court accedes to his preference of having exclusive occupation of the home in the interim.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide that this hearing proceed as a hearing de novo.
SJR Jenkinson made the following relevant orders on 1 November 2021:
1.The children, X born … 2009 and Y … 2013 (“the children”) live with their Father.
2.The children spend time with their Mother each Saturday from 10am until 4pm.
3.The children shall communicate with the Mother as per the children’s request, but no less than once per week and unless otherwise agreed at 7.00pm on Thursday.
4.For the purposes of the Mother spending time with the children in accordance with these Orders, the parties shall meet at the commencement and the conclusion of time at B Shopping Centre.
5.Each parent be restrained from changing the children’s place of residence to a place more than twenty (20) kilometres from the C School without first having obtained:-
a.The written consent of the other party sixty (60) days prior to any proposed change; or
b.Order of this Court.
The mother now seeks orders where the children live with her and spend time with the father as follows:
(a)each alternate weekend from after school or 3pm Friday until before school or 9am Monday;
(b)each Wednesday from after school until 8pm with the father to take the children to soccer training during that period;
(c)each Sunday from 9am until 2pm with the father to take the children to Japanese school;
(d)for one half of each school holiday period being the first half in even-numbered years and the second half in odd-numbered years;
(e)on the weekend of Father's Day in accordance with order 10(a);
(f)from 4pm Christmas Day until 4pm Boxing Day in 2021 and each alternate year thereafter;
(g)from 4pm Christmas Eve until 4pm Christmas Day in 2022 and each alternate year thereafter;
(h)on each of the children's birthdays from after school until 7pm if a school day from 9am until 2pm if a non-school day in the event the children are not otherwise spending time with him; and
(i) at such other times as agreed between the parents in writing.
Should the Court be against the mother in respect of the children living with her in the interim then she asked for time with the children in accordance with the above.
In addition, and in any event, the mother asked for orders whereby the children spend time with her on Mother's Day, each of the children's birthdays, Christmas and for one half of school holiday periods.
The mother asked for an order for exclusive occupancy of the former matrimonial home.
THE ISSUES
There is an issue as to which parent the children live in the interim.
There is an issue in respect of the mother’s time with the children should the Court order that they live with the father.
There is an issue in respect of exclusive occupancy of the former matrimonial home.
There is an issue in respect of COVID-19 vaccinations for the children where the father asks for an assertive order to permit him to do so together with an order for sole parental responsibility whereas the mother is opposed to the children being vaccinated and, by implication, that the father should have sole parental responsibility.
Finally, there is an issue, essentially agreed, that from a sum of $100,000 drawn down on a H Bank mortgage loan in respect of the former matrimonial home the party with whom the children live shall receive $40,000 and the other party receives $60,000 with the obvious intent that the parent who does not have the benefit of the occupancy of the former matrimonial home be better able to re accommodate themselves and potentially the children.
THE EVIDENCE
The mother relies on her lengthy affidavit sworn 6 December 2021. The affidavit exceeds the permissible page limit provided by the Rules[1] but no issue was taken by Mr Dura of counsel for the father.
[1] The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rule 5.08(2).
The father relies on his affidavits affirmed 3 December and 8 December 2021. He also adduces evidence on affidavit from the mother's own mother, Ms J, sworn 27 October 2021; affidavit of Ms K, the mother’s sister, sworn 20 October 2021, and an affidavit of Mr L, the mother’s adult son from a previous relationship, sworn 21 October 2021.
The mother's case
Counsel for the mother argues that the parties had until recently been separated under one roof whereby the children had the benefit of direct parenting by both of their parents.
The mother argues that, contrary to the father's case, she does not present as any manifest risk to the children, physically or emotionally. She denies the father's assertions that she suffers a mental health condition and says that she has suffered no relevant diagnosis. The implication is of a form of conspiracy in this respect by the father and his witnesses who are members of the mother's family with whom she unfortunately has fractured relationships.
Whereas the mother acknowledges that she has been and is the respondent to Apprehended Violence Order Applications (‘AVO’), alleged breaches of those orders, and the defendant in respect of charges of criminal assault, she denies the facts asserted and has entered pleas of not guilty and should therefore have the benefit of that status in respect of those unresolved issues. Significantly she says that the AVO and criminal issues are inter partes and do not involve the children.
The mother concedes that she was admitted to a psychiatric ward but says that she was assessed and discharged on 26 February 2021. She says that she has no current psychiatric treatment. In summary, the implication of the mother's argument is that the father has been opportunistic and tactical in creating a situation to obtain “possession” of the children where there is no evidence of any probity to support his assertions and allegations.
Whereas the mother’s initial application contemplated a relocation of herself and the children even at this interim stage, she no longer prosecutes that application before me.
The father's case
The father, supported by his witnesses who notably are members of the mother’s own family, asserts that the mother suffers a form of paranoia or delusional behaviour. Specifically, he says that she is an adherent to various conspiracy theories including anti-COVID-19 vaccination and the theories espoused by an organisation Qanon. He asserts that the mother’s viewpoints are irrational and compromise her ability to parent the children and expose the children to emotional risk.
The father says that the mother, armed with these allegations and assertions, and having been an inpatient of a mental ward, now adduces no evidence to corroborate her asserted stable mental health. Similarly, she asserts that her own father is dismissive of the allegations against her and supportive of her but he does not provide an affidavit.
Secondly, and perhaps with some connection to the first issue, the father asserts that the mother is of a violent disposition. She has been the subject of AVO orders but has allegedly breached those orders or, at least, faces charges of breach. Similarly, she faces charges of common assault with the father as the victim but, significantly for this matter, in circumstances where the children were proximate to these events.
The implication of the father's argument is that, relative to the mother, he can provide a stable parenting model, home and support for the children in the interim where the mother’s manifested behaviour presents as placing the children at risk and that risk being an unacceptable one.
BACKGROUND
The parents commenced cohabitation in about 2000 and separated under the one roof on 6 March 2021. The parties and the children lived most recently at Suburb G.
The mother has a child from a previous relationship, Mr L, who is 26 years of age. He gives evidence for the father in this matter.
On the evidence, untested as it is, it is apparent that both parties provided care and contributed to the care and support of the children until recent events.
The father is employed as a professional. The mother is currently in employment as a public servant. Given the recent COVID-19 restrictions, the evidence suggests that both parties have worked for periods from home.
SJR Jenkinson made orders on 1 November 2021 after a defended interim hearing placing the children primarily into the care of the father. Since those orders the mother has been charged with two counts of assault on the father, one count of breaching an AVO, and one count of breaching bail. The events that led to these charges occurred on or about 25 November 2021 being after the orders of SJR Jenkinson and whilst this Review hearing was pending.
Since the charges of assault the mother has vacated the former matrimonial home. There is scant evidence as to her living arrangements but notably she asks for an order for exclusive occupancy of the former matrimonial home if the children are to live with her in the interim.
THE RELEVANT LAW
The orders that I am asked to make are parenting orders and I must therefore have the best interests of the children as my paramount consideration pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’). In determining those best interests I must reference the parents' proposed orders and the probative evidence before me to the numerous mandatory consideration set out in s 60CC(2) and (3) of the Act against the background of the Objects and Principles of the legislation provided at s 60B. Importantly for my consideration, the objects of the Act and the two primary considerations of s 60CC(2) offer what are often known as the “twin pillars” for the Courts consideration in parenting matters and, particularly at interim stages, being that children should have the benefit of meaningful relationships with both of their parents, but where the Court, where appropriate, must make orders which protect children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. The remainder of the s 60CC(3) considerations deal with more pragmatic issues such as the children's views, the capacity of the parents, the attitudes of the parents to parenting responsibilities, and matters of family violence.
The application before me is one seeking interim parenting orders. Such an application proceeds by way of affidavits and submissions by Counsel. There is no opportunity for the testing of the evidence by the important tool of cross–examination. As such, where proceedings are truncated, it is often difficult for courts to make determinations of disputed fact or credit. Such is the case in the matter now before me. Despite these limitations and difficulties, the Court remains obliged to follow a course of statutory and intellectual considerations consistent with the well-known decision of the Full Court in Goode & Goode[2] where their Honours observed:
[68]…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
[2] (2006) FLC 93–286.
Nevertheless, another Full Court in Eaby & Speelman[3] elaborated:
[18]… that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
[3] (2015) FLC 93–654.
Still further, the majority in SS &AH[4] said:
[100]…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
[4] [2010] FamCAFC 13.
CONSIDERATION
It is implicit in the mother's application that the orders sought by the father would impact on her relationship with the children. This is a primary consideration where the Court is to make orders which benefit children having meaningful relationships with their parents. The term meaningful is both a “qualitative” and ''prospective” notion.[5]
[5] Mazorski v Albright (2007) 37 Fam LR 518.
Nevertheless, and perhaps particularly so when the evidences is untested, this consideration, although a primary one, is not determinative of my consideration.[6]
[6] Champness & Hanson [2009] FamCA 96.
Suffice to say that the evidence before me satisfies that the children, consistent with their ages, have the benefit of established and meaningful relationships with each of their parents.
This is a matter in which family violence features. Whilst noting the mother's denials and pleas of not guilty, the Court is confronted with a situation where the mother faces two counts of common assault with the father as the alleged victim but, importantly for this consideration, where the children were proximate to whatever form this dispute and its manifestations took. It is well-established and common sense that children should not be exposed to adult disputes and certainly not to instances of violence.
Similarly, the mother is the recipient of at least two AVO’s taken out for the benefit and protection of the father but where she now stands accused of a breach of those orders. There is an accompanying charge of breach of bail.
The mother also alleges that the father has been violent towards her and indeed her case before this Court rests on an allegation of controlling or coercive violence by the father. She says that he has orchestrated false criminal allegations against her.
The children are of ages where their views and preferences will be given some weight. However, there is scant evidence before the Court of those preferences and they have not yet been elicited in the usual forum of a family report and where the children are, on the evidence before me, most likely aware of the recent conflict and toxicity between their parents.
The capacity of these parents, and in particular, the mother is at the crux of this application where the father asserts bizarre behaviour and thought patterns of the mother that might be consistent with a form of a mental or emotional illness. The father's material is replete with what he says are delusional and conspiratorial revelations from the mother. For example, he says that on November 2020 the mother said:
[The father] did you know that Earth is not a planet, it is a spaceship … we are all living in a spaceship”. He quotes her as of 21 December 2020 as “Do not get tested, just tell them you are self–isolating, come home. Army deployed soon. I will explain … Whatever you do don't get tested, radioactive isotope in swab, this is a cue, if you are positive u r on a database for life, read the legislation, the testing is a DNA swap, they can round you up and put u in a camp. All in legislation. You are not sick u have no symptoms.
Similarly, he quotes the mother as of 5 January 2021:
Covid is not real, the hospitals are empty, you should not have worn a mask when paying for petrol… You are a brain–dead mindless moron fucking stupid, fucking brainwashed from listening to ABC.
The father cites a conversation with the mother of 14 January 2021 where she is asserted to say:
I don't want the children to be around morons, hopefully they take the vaccine and die. … How can anyone in their right mind respect some fucking idiot walking around with a mask. There is no pandemic, stop it, stop it stop.
Again on the 13th February 2021 the mother is asserted to have said at 3.00am:
The Australian Government is under control of the Chinese Communist Party, and that is why I'm scared of the ADVO. The Laws have been changed.
The father quotes the mother as of 20 February 2021 saying in front of the children:
I am going to break up with your dad… I'm done with you, I am moving out, you can have the kids and the house and just leave me alone. I'm going to post everything you have done on social media, I am going to sue you and the police for the breach of my human rights, leave me alone.
The father says that in February 2021 he came across the mother showing X a video titled “Protect Against Global Dictatorship” which referenced “fake pandemic” and “fake media”.
The mother was taken to the psychiatric ward of the M Hospital on 23 February 2021 by the Acute Care Team and officers of New South Wales Police. The father says that he was informed by a doctor that the mother was showing first signs of psychosis.
The affidavits of Mr L, Ms K, and Ms J, all being the mother's direct relatives, make similar concerns as to statements made by the mother. At [08] of her affidavit Ms J says:
[The mother] had interrupted our conversations about the family and the children and began to speak about Qanon Conspiracy Theory and was dogmatically trying to convince everyone of its legitimacy. [The mother] appeared to get visibly upset at anyone who did not side with her beliefs on the Qanon Conspiracy Theory.
At [14]–[15] Ms J deposes:
[14]In order to try and engage with [the mother] and in an attempt to better understand her beliefs, during this weekend I tried to speak to [the mother] about her views. I spoke to [the mother] in a very calm manner, but she appeared extremely upset and to the best of my recollection said to me “Are you trying to do an intervention”, or words to that effect. I responded with words to the effect “No just trying to understand what this is all about”.
[15]Throughout the weekend [the mother] also made comments about Tom Hanks being cloned and that he was not a real person, and the donations to animal welfare organisations were helping to fund the underground child sex trade from America. [The mother] was of the belief that I was a bad person for supporting animal welfare organisations.
Ms K deposes at [11]:
On the said occasion my mother, Ms J, was also present as I had invited them over for lunch. To my surprise [the mother] began speaking about how COVID was a lie. To the best of my recollection [the mother] said my mother and I “COVID is a lie, it is not real, none of it makes sense and no one is sick. The government is doing it as a diversion for other things that are going on” or words to that effect. None of which she could articulate further.
At [23] Ms K says:
I have not spoken to [the mother] since the phone call shortly after Y’s birthday. [The mother] has been acting strangely and been highly volatile for well over a year now and has been heavily involved in conspiracy theories. I sincerely hope she gets some help so the family can get her back. The person she has become, isn't the person she used to be. It's so sad for us all, especially her kids, [the father] and my mum.
The mother's son, Mr L, deposes that he has noticed the changes in his mother since about 2010. At [17] he says:
Towards the end of 2020, [the mother] was having a discussion with me and during the discussion to the best of my recollection, [the mother] said to me in a serious tone with conviction, words to the effect:
A.COVID 19 has been engineered by a satanic cult that tortures and murders babies and is puppeteering the majority of world leaders.
B.The COVID 19 vaccine contains microchips designed by Bill Gates that are going to kill somewhere between 50 – 90% of the human race.
C.There is an extraterrestrial being called Nibiru that created humanity that is imminently going to return to Earth and do something drastic to the world.
D.5G is an alien operation that, once implemented, is going to rewrite our brainwaves. To what end was unclear, but she is she stressed that this was undesirable.
E.Human science and history is all a collection of lies that were fabricated by a mysterious shadow organisation (this shifted between the aforementioned Satanists and other nameless groups) that tricked us all into believing our currently understood history is to cover up the truth. The truth being that we were created by aliens and that life as we know it is essentially an illusion.
The mother in her affidavit denies the allegations made against her. At [140] she deposes:
It is difficult to read [the father’s] false allegations against me. The behaviour, smear campaigns and malicious lies are the reason we are no longer together. I also seek for me and the children to be free from his behaviours, manipulative control, and slander. His behaviours are not what I want my children to see or learn.
The mother denies even understanding the concept of Qanon.
The mother at [201] asserts that the father takes innocent comments out of context to support his belief that she suffers a mental health condition.
The mother denies that she had enjoyed an excellent relationship with her own mother prior to November 2020. She also asserts that her mother takes innocent comments out of context. She asserts that to Mr L is simply aligned to the father.
The mother challenges the father's capacity to care for the children only insofar as she says that he concocts false allegations in respect of her mental health. The father remains in the former matrimonial home with the children pursuant to the orders of 1 November 2021 albeit those orders having being stayed.
These are the relevant s 60CC(2) and (3)considerations.
CONCLUSIONS
I stress that the evidence before me is untested and that it is not to open for me to make many of the determinations of disputed facts and credit that are urged upon me.
I do know, however, that the previous situation of these parents being separated under the one roof and hence contributing within that environment to the ongoing parenting of their children is no longer available to them. Their relationship is conflictual and toxic. The children have most likely been exposed to that conflict.
I know that the father has remained resident in the home with the children albeit this being a status quo of limited duration.
There remain concerns in respect of the mother's mental health. I am mindful of her denials and her theories that she is the victim of a conspiracy between the father and others who are her relatives. There is, however a consistency in the evidence of the father and his witnesses as to what could be interpreted as a form of delusional conceptualising by the mother. Whilst the mother is entitled to her political and social views, matters such as the COVID-19 vaccinations could have an immediate and manifest impact on the children.
I know that the mother was admitted to a psychiatric ward and that she was released. The note of her release is, to my mind, somewhat equivocal in that it states simply that she could no longer be detained presumably under a relevant mental health order of limited duration. The mother does not, however, adduce evidence before me of her mental stability. She is obviously aware of the father's assertions made before the Registrar. The failure by the mother to adduce such evidence without the reasonable explanation from her most recent treating psychiatrist opens inferences for me under the principles in Jones v Dunkel[7] that such evidence, if adduced, may not have been of assistance to the mother. In any event, at the very least, the mother's failure to bring such evidence leaves open the concerns articulated by the father, supported by his witnesses, and corroborated to a degree by the mother's admission to the psychiatric unit.
[7] (1959) 101 CLR 298.
Secondly, the mother has been the charged with two counts of assault, a breach of an AVO, and breach of bail. Significantly, these matters occurred after the orders of SJR Jenkinson and pending the application before me. I note that the mother has entered pleas of not guilty and may argue a form of provocation but, regardless, prima facie the mother faces criminal charges of assault which allegedly occurred in the proximity of the children. Again, at the very least, this is evidence of volatile behaviour by the mother consistent with that observed by the father and his witnesses over a period of time.
Despite the limitations of this interim hearing, I maintain serious concerns in respect of the mother’s mental stability and where any regime of shared care for these children is not reasonably open to me, such that I am of the view that the children's best interests are served by living primarily with their father.
Given my concerns in respect of the mother's mental health and her general volatility, I share the view of SJR Jenkinson and therefore accept the submissions of counsel for the father that the mother's time with the children must unfortunately be limited to daytime periods where, of course, amendments to the legislation at s 60CC(2A) dictate that I am to place greater weight on the protective issues in respect of children at s 60CC(2)(b) as against the considerations of s 60CC(2)(a).
In these circumstances, the parties agree a partial property settlement whereby the mother would now receive $60,000 and the father $40,000. I will order accordingly.
In all of the circumstances of these Reasons, it is appropriate that the father have the benefit of an order for exclusive occupancy of the former matrimonial home. I am aware that the mother has vacated the home and has a form of alternative accommodation. I am unsure as to whether her leaving of the home was due to any bail conditions. The orders that I make in the interim do not provide for overnight time for the children with her.
The parties ask me to make an order by consent nominating the author of the family report.
I will return the matter to the appropriate registrar for the making of trial directions consistent with the anticipated release of the family report.
There remains an issue of parental responsibility. It is well-established that at this interim stage a court need not make such an order. In the circumstances of this matter, however, and where the conflict between the parties is manifest and has resulted in criminal court proceedings and where there are unresolved serious issues in respect of the mother’s mental capacity, I am of the view that, firstly, the presumption does not apply by reason of me being satisfied as to episodes of family violence and, secondly, that the father should in the interim have the benefit of an order for sole parental responsibility in the event that important decisions need to be made for the children. For the mother's benefit, this will obviously be an issue to be agitated at the trial when the Court has the benefit of the full forensic preparation and that the testing of the evidence.
The parties are in dispute in respect of the injunctive orders sought by the mother preventing the children or either of them coming into contact with the maternal grandmother, Ms J, or the maternal uncle, Mr N. SJR Jenkinson made such an order at 7(d). I am not persuaded on the evidence that such an order is necessary or appropriate as being in the children's best interests. Quite clearly, the mother is in conflict with the maternal grandmother and the maternal uncle. She annexes a copy of a communication from the uncle which is inappropriate in its public exclamation of the brother’s views of his sister. Nevertheless, on the material before me I am satisfied that the father would act appropriately in protecting the children from exposure to any such inappropriate comments in relation to their mother. The Act notes and various sections provide for the prima facie right of children to have relationships with the important adults in their lives and these usually include members of their extended families. With the exception of the uncle’s inappropriate public comment, the material satisfies me that these children have until now enjoyed a direct and successful relationship with their extended families. There is a reference to the mother's sister and a birthday party for Y. The maternal grandmother references her close relationship with the children. Consequently, as I say, the onus sits on the father to protect the children but, in my view, there should not be restraints on the children in their relationships with these members of family.
Finally, there remains the issue of the children being vaccinated against the COVID-19 virus. The father wishes that the children be vaccinated and I have made an order for sole parental responsibility. Nevertheless, the evidence before me suggests that the mother is vehemently opposed to them being vaccinated. I must be careful not to extend the parameters of judicial knowledge and in circumstances where the father's counsel concedes that there is perhaps insufficient material before me, I will not make such an order but will ensure that the father does not have the children vaccinated without the consent of the mother. I will, however, give the father leave to bring this application on urgently, and if necessary, before me, for further argument and determination of this discrete issue.
Counsel for each of the parties do not argue against me making the other injunctive orders made by SJR Jenkinson at orders 5 and 7 of her orders.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 20 December 2021
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