O’SHEA & O’SHEA

[2019] FCCA 3059

FEDERAL CIRCUIT COURT OF AUSTRALIA

O’SHEA & O’SHEA [2019] FCCA 3059

Catchwords:
FAMILY LAW – Interim hearing – parenting – children’s place of residence – children’s schooling.  

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 65DA, 68L

Cases cited:

Goode & Goode [2006] FamCA 1346

Salah & Salah [2016] FamCAFC 100

Eaby & Speelman [2015] FamCAFC 104

SS & AH [2010] FamCAFC 13

Applicant: MS O’SHEA

Respondent: MR O’SHEA

File Number: SYC 5122 of 2019

Judgment of: Judge M Neville

Hearing date: 25 September 2019

Date of Last Submission: 25 September 2019

Delivered at: Sydney

Delivered on: 2 October 2019

REPRESENTATION

Counsel for the Applicant: Mr Livingstone

Solicitors for the Applicant: Humphreys Family Lawyers Solicitors and Barristers

Counsel for the Respondent: Ms Kennedy

Solicitors for the Respondent: Dorter Family Lawyers and Mediators

THE COURT ORDERS THAT:

1. By consent, orders 1-5 and 7-13 be made in accordance with the document titled “Minute of Consent Orders” forwarded to Chambers and initialled by me and placed with the papers.

2. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.

3. The children attend school at A Public School, Suburb C NSW.

4. The father spend time with the children while supervised by a person agreed between the parties and at a time agreed upon between the parties pending his mental health diagnosis with the father to be bear the cost of such supervision.

5. The father’s application in relation to the children’s residence in Suburb B and their attendance at B Public School be dismissed.

6. The matter be adjourned to 2 March 2020 at 9.30am.

7. Unless objection is raised by the father within 7 days of today’s date, pursuant to section 68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed for the children X, born … 2008, and Y, born … 2011, and the Legal Aid Commission of NSW is requested to provide such representation.

8. The parties provide to the Legal Aid Commission of NSW, Central Sydney forthwith all documents thus far filed in these proceedings by that party together with all existing orders and copies of any relevant reports.

9. Leave is granted to the Independent Children’s Lawyer to issue more than 5 subpoenas.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5122 of 2019

MS O’SHEA

Applicant

And

MR O’SHEA

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript.

2. Before the Court are parenting proceedings in relation to X, born … 2008, and presently aged 11 years; and Y, born … 2011, and presently aged eight years.  X and Y’s parents are Ms O'Shea and Mr O'Shea.  For convenience, and without intending disrespect to the parties, in these reasons I shall refer to them as the mother and the father respectively.

3. The matter was listed for interim hearing on 25 September 2019.  At the commencement of the interim hearing, several agreements had been reached between the parents concerning interim parenting arrangements for the children.  Accordingly, the issues for determination at the interim hearing were:

   a)Firstly, whether the children should live with the mother at Suburb L and attend A Public School, or whether they should live with the mother at the former family home at Suburb B and attend B Public School;

   b)Secondly, who should pay the costs of supervision of the children’s time with the father;

   c)Thirdly, whether orders should be made for telephone communication between the children and the father;  and

   d)Finally, whether there ought to be orders for the parents to attend mediation and a parenting after separation course.

Background

1. The parents met in 2001 and started to live together in 2004 in Great Britain.  It appears that the father, at least, has family in Great Britain.  The parents were married on … 2006 and moved to Australia later that year.  X was born on … 2008 and Y was born on … 2011.  The family moved to Suburb B in December 2013 and have made their home in that area since that time. 

2. In 2019, the parents’ relationship came to an end.  On 29 July 2019, the mother left the former family home with the children after finding a note written to her by the father which she interpreted to be a note indicating his intention to suicide.  I pause to observe that the father does not accept this characterisation of the note.  There is a factual dispute about the original form and content of the note which I shall return to later in these reasons. 

3. Having left the former family home, the mother commenced parenting proceedings on 5 August 2019 and the father filed his response on 3 September 2019.  The matter was first returnable on 23 September 2019.  On that date, it was clear that each party was seeking interim orders.  The parties were referred to a child dispute conference with family consultant, Ms D, on the morning of 25 September 2019 and the interim hearing was conducted that same afternoon.

Law

1. The law in relation to the conduct of interim hearings is well-settled.  An interim hearing is an abridged process with a curtailed scope of inquiry.  As was observed in Goode & Goode, the Court said that:

   …the procedure for making interim parenting orders will continue to be an abridged process whereby the scope of the inquiry 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. The Court went on to say that it remains the case that the Court must regard the best interest of the child as paramount in deciding what interim parenting order to make.

3. In Goode & Goode, the Full Court identified the importance of following the legislative pathway at an interim stage, notwithstanding that the Court will:

   …still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.  [See paragraph 81.]

4. The Full Court set out the approach to be taken at an interim stage as follows: firstly, to identify the competing proposals of the parties; secondly, to identify the issues in dispute between them; next, to identify any agreed or uncontested facts; then, to consider the matters in section 60CC that are relevant, making findings about them if possible – noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

5. In relation to the presumption the Court is to apply that it is in the child’s best interests that parents hold equal shared parental responsibility, that presumption applies on an interim basis unless the Court considers that it would not be appropriate in the circumstances for it to apply when making that order.

6. In the event that the Court determines that the presumption does not apply, the Court is then to determine what order should be made as to parental responsibility by reference to the section 60CC factors and, subject to whatever order is made for interim parental responsibility, the Court will need to consider arrangements as to where the children should live and what time they should spend with other persons in accordance with the legislative pathway.

7. In interim proceedings, this Court frequently grapples with evidence relied upon by parties where there are little, if any, agreed facts and where almost everything is in dispute.  This is particularly so where one or both parties contend that there has been behaviour that would constitute family violence or that would constitute child protection concerns.  Oftentimes, the contentions include that violence or behaviour giving rise to child protection concerns occurred in the presence or hearing of the children or that the children were unintended or intended victims of such behaviours.  Routinely, those contentions are vigorously and robustly denied by the other party.

8. Where there are allegations made and robust denials, the Court can face a challenge in deciding on parenting arrangements on an interim basis.  The approach to be taken in interim applications, as set out in Goode & Goode, particularly having regard to the need to take a very cautious approach to making any findings on disputed facts, does not mean that where there are disputed contentions in relation to family violence or child protection issues, that the Court may simply set them to one side as being impossible to resolve on an interim basis: see Eaby & Speelman and see also Salah & Salah.

9. In relation to dealing with allegations of family violence and, it would logically follow, issues concerning allegations of behaviour that constitutes a child protection risk at an interim stage, the majority of the Full Court, (Boland and Thackray JJ) in the matter of SS & AH, said at [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.

The Parties’ Proposals

1. In terms of the competing applications between the parties, before I turn to what was in dispute, it is useful to identify that at the commencement of the interim hearing there had been a significant number of agreements reached.  Importantly, the parents agreed as follows, that:

   a)There should be an order for equal shared parental responsibility;

   b)The children should live with the mother;

   c)The children should travel to Country M with the mother between … 2019 and … 2019;

   d)The children should spend supervised time with the father each weekend for a period of six hours, to continue during school holiday periods;

   e)The children should spend supervised time with the father on special occasions;

   f)In the event that the Court determines the children should return to the Suburb B area, the father will be bound by injunction from attending upon the former family home and upon the children’s school;

   g)The father will facilitate the mother having access to information about his mental health diagnosis, prognosis and treatment, including being notified in the event that the father fails to attend scheduled appointments; 

   h)Ms E be appointed as a single expert to prepare a report on or before 1 July 2020.

2. Beyond those agreed matters, the mother contends for orders that she be allowed to remain living with the children in the Suburb L area and that the children attend school at A Public School.  She seeks orders that the father meet the costs of supervision of his time with the children. 

3. The father seeks orders that the children return to the former family home with the mother and that they resume school at B Public School.  He further seeks an order that the mother be restrained from relocating the children’s residence outside a 10 kilometre radius of the children’s school.  He contends that he is able to meet the costs of four occasions of supervised time, but, otherwise, seeks the mother bear the cost of supervision.  He seeks an order for telephone communication with the children and orders that the parents attend mediation and attend a parenting after separation course.

The Parties’ Evidence

1. In terms of the evidence before the Court, the memorandum of Ms D from the Child Dispute Conference of 25 September 2019 was admitted. 

2. The mother relied upon the following material:

   a)Her Initiating Application, filed 5 August 2019;

   b)Her Notice of Risk, filed 5 August 2019;

   c)Her Application in a Case, filed 7 August 2019;

   d)Her Affidavit, sworn 5  August 2019;  and

   e)Her Affidavit, affirmed 19 September 2019.

3. The father relied upon the following material:

   a)His Response, filed 3 September 2019;

   b)His Notice of Risk, filed 30 August 2019;

   c)His Affidavits affirmed 30 August 2019 and 24 September 2019;  and

   d)His financial statement, filed 24 September 2019.

4. The following documents were tendered by the parties:

   a)A Google Maps printout of the distance between Suburb B and Suburb L;

   b)A photocopy of the note the mother contends was written by the father on 28 July 2019, being one page in length;

   c)A photocopy of the note the father contends he wrote on or around 28 July 2019, being two pages in length;

   d)The original copy of the note written by the father at the time of separation with his concession that, sometime after his psychiatrist, Dr F, saw the note the father added words to that note;  and

   e)Lawyers’ correspondence of 23 September 2019, in relation to the mother returning to the former family home at Suburb B.

Discussion

1. The mother contends in her affidavit material that the father has struggled with his mental health over a period of years and that the event that was the catalyst for their physical separation was what she understood to be a suicide note written by the father on 28 July this year.  It is her evidence that, on 28 July 2019, she arrived home with the children from a birthday celebration for X.  On arrival home, she found a note written by the father on top of the parties’ wedding video, together with the father’s mobile telephone.  The mother considered the note to be a suicide note, and a photocopy of the note that she says was found by her was in evidence before me.  It was one page in length. 

2. The mother then contacted the police, who attended the home and found the father’s car in the driveway with a kitchen knife inside it.  The children were upset by the police attendance.  The mother contends that the police commenced to search for the father and, shortly thereafter, he called her in an aggressive state.  She contends that the police located the father, took him to Suburb N Hospital for assessment, where he was scheduled and discharged shortly thereafter with a referral to the Community Mental Health Team.

3. The mother’s evidence in this regard is to be viewed in the context of her other evidence as to the father’s mental health functioning over a number of years.  The mother contends that the father has been diagnosed with bipolar disorder, anxiety and depression.  She contends that he was diagnosed with bipolar disorder during a voluntary admission to G Private Hospital in 2011 to deal with addiction issues.  The mother contends that he has been under the care of Ms H, psychologist, since 2009 and Dr F, psychiatrist since 2011. 

4. In her affidavit evidence, the mother details that the father suffered what she described as “a major breakdown” whilst the family was on holiday in 2016.  As I understand her evidence, she observed the father at that time to sleep a lot, to isolate himself, to consume too much alcohol, and to verbally abuse her and some of his own family members.  She contends that he suffered his first seizure in August 2017.  She gives evidence that around that time his work stress levels affected his mental health, that he was volatile and aggressive, and whilst depressed, he would lock himself away in the bedroom and not engage with her and the children. 

5. She tells the Court that in … 2017 the family took a holiday to Great Britain but that on arrival the father did not want to leave the airport due to anxiety about seeing his family.  She gives evidence that they managed to get through the trip although she considered that the father was utilising medication to assist him at that time. 

6. The mother then contends that in … 2018 whilst on a holiday in Region J, the father became angry, went into a rage and then into severe depression, locking himself in the bedroom.  When she returned to work on her first or second day back after the holiday, she received distressing texts from him causing her to return home.  She contends that around this time he also sent abusive texts to the children’s maternal grandmother. 

7. The mother’s evidence is that at this time she told the father that she wanted to separate.  She contends that the father spoke to his psychologist, expressing that he was going to stay at a hotel and kill himself.  The psychologist spoke to the mother and informed her that for the father’s own safety, he should not leave the house. 

8. The father apparently attempted to leave the house in a car, driving at speed, almost rolling the car off the driveway.  The mother gives evidence that a conflict arose when the father subsequently tried to get the mother’s car keys.  On that occasion X called the police.  Whilst waiting for the police to arrive, the father hugged the children telling them that he would never see them again.  The mother gives evidence that the children were crying.  After this incident occurred, she contends that the father was scheduled and admitted to Suburb G Hospital for two weeks. 

9. The mother details in her affidavit evidence that from her perspective the father had further mental health difficulties in later 2018 and during a family holiday to Country O in early 2019.  In March 2019 the mother told the father that she did not wish to continue in the marriage.  She contends that the father would not accept this, saying he will get her back if it takes him forever. 

10. She gives evidence that in June 2019 the father was voluntarily admitted to the K Clinic for a period of four weeks.  She expresses that she was concerned on 23 July 2019 that whilst she was at work and the father was looking after the children, he told her over the telephone at 5.30 pm that he was having a rest for about an hour.  At 6.30 pm she called the children to check in with them and the children told her that they were unable to wake the father and that they had not had dinner.  The mother returned home, at which point in time the father was still asleep.  He subsequently told her that he awoke at 2.30 am the following morning.  The mother details her version of the events of 28 July 2019 as I have already discussed.  After those events, the mother departed the family home with the children on the following day.  She went to Suburb L to stay with the maternal grandmother.  She gives evidence that for a period of about one week, she and the children stayed with friends to facilitate the children’s attendance at school given the distance between Suburb L and Suburb B. 

11. She denies that she and the children were couch surfing, indicating that the children had beds.  She gives evidence that she was concerned that the father was going to attend at the home of the people that she was staying with and cause a scene.  She gives further evidence that the father messaged her to suggest that she not stay in Suburb B whilst he work through his response to her order filed with the Court on 5 August 2019.  She understood this to constitute a threat to her safety.

12. The mother’s evidence is that since the incident of 28 July she has been very scared for her safety and is concerned about returning to the former family home.  She says that she has had a number of text messages from the father which she describes as concerning to her.  She says that they range from abusive and manipulative to declarations of love and adoration.  I pause to note that the content of those messages are not in evidence before me. 

1. She also gives evidence that she is concerned for the safety of the children and she has been too scared to send the children to B Public School.  She gives evidence that the children have been attending A Public School since 26 August 2019 and that they are in the process of settling in.  The maternal grandmother assists the mother with the care of the children. 

2. The mother’s concerns were amplified in interview with the family consultant.  The family consultant records the mother as having reported that she was concerned about the possibility of the father harming the children should his mental health deteriorate again.  The mother is reported to have said:

   I don’t want to be one of those women on the news whose children have been thrown off a cliff.

3. In addition to the mother’s concerns about the father’s mental health and his demeanour and behaviour arising, she contends that throughout the relationship the father engaged in family violence against her.  She described behaviour that was abusive and aggressive toward her. 

4. For his part, the father gives evidence about his mental health in his affidavit of 30 August 2019.  He gives evidence that he was diagnosed with depression in 2011 and that he has never been diagnosed with bipolar disorder.  He agrees that he has been under the care of Ms H since 2009 and Dr F since 2011.

5. The father’s evidence is that he has had a number of voluntary admissions to hospital in relation to mental health and/or prescription medication addiction issues and/or seizures.  He gives evidence that he was admitted to hospital in 2011, July 2018, March 2019 and July 2019.  All of those admissions were in relation to mental health issues or management of prescription medication addiction. 

6. The father gives evidence of the medications that are currently prescribed to him.  Insofar as the mother has indicated in her affidavit evidence that on or around 28 July this year the father was taken to Suburb N Hospital, scheduled and subsequently discharged with a community mental health team referral, this is not a matter that is addressed at all in his affidavit evidence.  He does not indicate any admission to hospital at or around this time.  He does not deny any admission, and I do not know whether or not he accepts that this occurred as the mother said.

7. The father in his affidavit material includes a report from his treating psychiatrist, Dr F.  There is some controversy between the parties as to whether or not that was a report requested jointly by the parties or by the father alone, although I pause to note that the controversy matters little on the interim application.  In any event, on 26 August 2019 Dr F wrote a report in relation to the father’s mental health. 

8. Dr F’s report indicates that the father is diagnosed with major depressive disorder.  Dr F has given prior treatment for anxiety, codeine addiction and intermittent alcohol misuse.

9. Dr F considers that the father’s prognosis is good once he comes to terms with the separation, divorce and financial and domestic sequelae.  He sets out the father’s prescription medication and indicates that the father’s compliance has always been good.  In the time that the father has attended on Dr F, the father has never suggested an intention to harm the children.  There is no history of which Dr F is aware of physical mistreatment of the children and even at times when the father has expressed suicidal ideation, he has acknowledged his children as a main protective factor that would keep him from acting on his thoughts.

10. Dr F understands that there has been no history of violence or emotional abuse toward the children.  He does not consider the father to have a personality disorder.  He considers the father to have good insight, that he does not have violent ideation or intent, that there is some history of affective and cognitive instability whilst unwell, but that he is compliant with and responsive to treatment and supervision.  He considers, in terms of risk management, that the father is well engaged with professional services, that his living situation is tenuous and that he may have to move out of his home and live independently.  Dr F has never been convinced that the father was at “immediate” risk of suicide. 

11. Insofar as Dr F considered the note written by the father, he described his view of it as ambiguous, suggesting an apology and a farewell on one page, and a second page making reference to the future.  Dr F considers that the father’s discharge from hospital on the day after the incident suggests no immediate concerns of suicide. 

12. In terms of the events of 28 July 2019, the father does not deal at all in his affidavit evidence with those events other than to say that he did not cope well with the separation and that he drank heavily for a few days after the mother left him.  I am unaware as to what he says occurred on 28 July 2019.

13. As I understand his affidavit evidence, he denies any abuse of alcohol other than drinking heavily at or around the time of separation, and I pause to note that to my mind this is not necessarily consistent with Dr F’s indication in his report that he has provided treatment to the father for intermittent alcohol misuse. 

14. The father’s affidavit material also does not deal with the mother’s contentions as to the events in July 2018 at and around the time of the J Town’ holiday, nor her contentions as to his demeanour and functioning during the family holiday to Great Britain in 2016, nor in relation to the described behaviours in August 2017, nor to the family holiday to Great Britain at the end of 2017, nor to his demeanour and functioning in the latter half of 2018.

15. The father did not include in his affidavit evidence a copy of the note written by him on 28 July 2019.  I understand that there is no controversy that the father did in fact leave a note.  He tendered a copy of the note that he said he had left which was two pages in length.  I pause to note that the two page version tendered by the father in photocopy form is the version that was viewed by Dr F and referred to in Dr F’s report. 

16. In terms of what the note said, the original copy of the note was tendered into evidence.  The father conceded that after Dr F had viewed the note, the father added words to the note.  In the ordinary course of an interim hearing, I would not be inclined to read the content of the note onto the record; however, given the significant factual dispute between the parents about the content of the note and given that I consider that it is an acute issue in terms of the children’s welfare in this matter, I consider it necessary to read the note onto the record. 

17. The mother contends that a note was sent to her in the following terms:

    Ms O'Shea, I’m sorry I made your life so miserable.  I turned a corner with the depression but obviously too late.  It is ironic you loved me before I loved you, but now it’s just me that loves you.  I hope I don’t come back tonight or ever, otherwise it will be another failure.  I love you always.  Please kiss the girls. 

18. The father accepts that those words were written by him but contends that on the second page of the note were the words:

    …as I have taken a sleeping bag if I have to sleep in the car tonight.

19. Through his counsel he conceded that after Dr F had viewed the note, he added these further words:

    I have not taken phone as it is too hard to talk.

20. Putting to one side the issue of the father’s mental health and turning to the balance of his evidence, he gives evidence that throughout the children’s lives, he has been a committed and loving father, heavily involved in the care of the children, particularly since he ceased work.  He sets out at length the contributions he has made in the role of parent and homemaker and sets out the children’s routines and activities.  He gives evidence that is concerned for the children in the care of the mother presently because he was concerned that she had been couch surfing with the children.  He did not consent to her relocating the children’s residence or the children’s schools and that the children will be experiencing multiple losses whilst away from him including loss of relationship with him, loss of their school and local community, loss of their friendship groups at school, loss of participation in extracurricular activities and loss of the familiarity of their usual home environment. 

The Section 60CC Factors

1. Turning then to the section 60CC factors to determine what is in the children’s best interests and noting that these are interim proceedings, having regard to the contentions in this case, this is really to my mind a case that turns on the conclusions that the Court makes in relation to the two primary considerations set out at section 60CC, subsection (2). That is, the benefit of the children to a meaningful relationship with each parent and the need to protect the children from physical or psychological harm arising from exposure to abuse, neglect or family violence.

2. The legislation is clear that of the two primary considerations, the Court is to give greater weight to the need to protect children from harm. I do not propose to consider in detail in these reasons the factors at section 60CC, subsection (3) of the Act, given that the parties are in agreement that there will be regular time between the children and the father, that it will be supervised and that the children will otherwise live with the mother. This case really turns on whether or not the children return to the family home at Suburb B and whether or not there are risks associated with that which can be ameliorated; or whether or not the risk of return is an unacceptable one, such that and they should be allowed to remain living with the mother in the Suburb L area.

3. As I understand the evidence, there is no dispute between the parties that the children have a meaningful relationship with each parent and that there is real benefit to the children in that continuing.  The fact that they have agreed consent orders in relation to time between the children and the father on an interim basis comfortably satisfies me that this is so. 

4. In terms of the risk factors and the need to protect the children, this is a very significant factor at this interim stage.  There is a clear factual dispute between the parties as to the content of the note left by the father on 28 July 2019.  

5. I am unable to resolve this dispute on an interim basis.  If the note was left in the terms contended for by the mother, then to my mind, it is indicative of a note expressing an intention by the father to permanently depart the lives of the mother and the children.  Having regard to the mother’s evidence about the father’s previous indications to her that he would suicide, and having regard to Dr F’s evidence that the father has expressed suicidal ideation in the past and, further, having regard to Dr F’s evidence that at times that the father has been unwell, that there has been some history of affective and cognitive instability, I consider that if the note was left in the terms as contended for by the mother, then it was reasonable for her to conclude that the note indicated an intention to suicide.  In the context of the entirety of the mother’s experience with the father, unaddressed as it was in his evidence, I can only conclude that it must have been a frightening experience for her to have received that note. 

6. If the note was left in the terms described by the father, then it does include future focused language and may not be indicative of an intention to self-harm, and the mother’s actions in the circumstances may perhaps seem unreasonable.  The fact that the father added further words to the note after it was viewed by Dr F is troubling to my mind, particularly because the note was not annexed to his affidavit. 

7. It is apparently not in dispute that the note has been in the possession of the father for some time.  The note was produced to the Court on call by counsel for the mother.  The father does not give any evidence about the content of the note in his affidavit material.  He does not give any account as to why he added the words, “I have not taken phone as it is too hard to talk,” but through his counsel, he conceded that those words were added after the note was viewed by Dr F and it follows logically, after he was aware of the content of the mother’s first affidavit filed in the proceedings. 

8. In terms of the precise content of the note that was left and why it is that the father thought it necessary to add further words to it at all, these are matters that can only be resolved once the evidence is tested.  However, I consider that as at 28 July 2019, there was at least a risk that the father intended to suicide and I consider that this placed the children at risk of harm.  I consider this to be the case because it can only be concluded that the children would be psychologically damaged were they to lose their father.  I have taken into account Dr F’s views that the father has never suggested an intention to harm the children, that Dr F considers that even when expressing suicidal ideation, the father has acknowledged the children as a main protective factor that would keep him from acting on thoughts.  However, in the event that the father was unable to control his impulse to act on thoughts, then the children would be subject to psychological harm.

9. I can only conclude as well that the mother would have been affected by the content of the note and finding it in the terms that she contends for, and I consider that any compromise to her functioning poses a risk to the children.  Whether the risk that I consider was in place as at 28 July 2019 continues as at today’s date is more difficult to ascertain.  I have considered the content of Dr F’s report and there are aspects of that report which indicate that the father’s prognosis is good once he comes to terms with the separation, divorce and financial and domestic sequelae.  I also note that Dr F considers that at times when the father is unwell, that he is subject to some history of affective and cognitive instability.

10. There are a number of protective factors in Dr F’s report that are identified.  However, insofar as Dr F has considered the content of the note and the impact that has on his risk assessment, Dr F has considered the two-page note the father contends was left.  Even on the basis of those two pages, he described the content as “ambiguous”.  Given the factual dispute between the parents as to the content of the note, I am unaware as to whether Dr F’s opinion as to risk of suicidality would change if the mother’s version of the note is accepted, and I consider that I must accept at least as a possibility that her version is correct, given her evidence on the issue, the father’s silence on the issue in his affidavit material and the fact that he concedes that he had added further words to the note after the proceedings were already afoot.

11. In addition to being unaware as to what Dr F’s opinion as to risk might be, having regard to the competing contentions as to the content of the note, and having regard to the lack of evidence from the father about that issue, as well as the lack of evidence from the father about the particularised concerns the mother has expressed in her material about his mental health functioning, I do not know whether or not the father accepts the mother’s version of those events and I do not know whether he has discussed those events with Dr F.  The letter sent to Dr F seeking the report does not indicate on its face that he was provided with a copy of the mother’s affidavit evidence, and I am unaware as to whether or not Dr F had any information to draw upon other than the father’s self-report to him. 

12. Had the father given a version of events in his affidavit material, I may have some indication as to what it is possible or likely that he has told Dr F, but at this point in time, I do not know whether or not Dr F is aware of the entirety of the mother’s contentions and whether or not, if he were made aware of the entirety of those contentions, his opinion as to risk would change.  Accordingly, I find on an interim basis that I cannot determine whether the risk I consider arose as at 28 July 2019 has abated to any extent or at all. 

13. As I apprehend his position, the father accepts that the Court would consider that there is a risk of harm to the children.  However, he contends that to manage that risk he will consent to orders for the mother and the children to have exclusive occupation of the former family home and he will consent to being bound by an order restraining him from approaching the house or the children’s school.  He submits that this, combined with the orders facilitating the mother’s access to information about his mental health functioning, will be sufficiently protective to reassure the Court and the mother and to ensure the children’s safety upon their return to the former family home and to their school. 

14. I find that I cannot accept that these measures are sufficiently protective to ameliorate the risk.  The mother’s account of the father’s demeanour and functioning throughout 2018 and 2019, particularly in July of each year, describes behaviour that is on occasion impulsive, such as the driving of the car at speed, and reactive.  Apparently, the father’s behaviour was exacerbated by the mother’s decision or communication of a decision to separate from him.  The children were exposed to police attendance on two occasions. 

15. Given the factual dispute between the parties as to the content of the note and the questions that arise in my mind about Dr F’s opinion in the event that the mother’s version is fully made known to him or is accepted, I do not know whether the father may still be prone to impulsive or reactive behaviour.  The parties are in the very early stages of separation.  I understand the father’s evidence to be that if the children are to return to Suburb B, he intends to obtain independent accommodation with the assistance of his parents in the Suburb B locale close to the B Public School. 

16. I am concerned that even with the coercive orders as suggested by the father, if he is unable to control his impulses or reactions to various stressors – and there will be various stressors if the parties at least move through the process of separation and family law proceedings – that there is a risk that he may be unable to comply with those orders and that the children may be exposed to harm.  I consider that the risk is amplified by the fact that he intends to live close to the school and in the locale, making his access to them easy to facilitate on an urgent or an impulsive whim. 

17. The father contends for his part that the children have experienced loss.  As particularised earlier in these reasons, he identifies a series of losses that the children have experienced since separation.  He contends that any risk that he poses can be ameliorated as he suggests and that the children’s loss should be minimised by their return to the former family home. 

18. Insofar as the father is concerned that the children have been exposed to instability or uncertainty from the recent move to the Suburb L area and the even more recent attendance or enrolment at the A Public School, I note that the family consultant indicated that these are matters that would have created some challenges for the children.  The family consultant considered that it would have been the case that the children would have experienced some disruption in relation to the changes that have gone on in their lives, but she observes that it would be detrimental to the children’s wellbeing if they were to experience ongoing frequent changes to their schooling and she further observes and, I take it, cautions that in the event that the children were to immediately return to Suburb B and transfer back to the Suburb B Primary School, the issues that prompted the mother to relocate in the first place may resurface.  As I understand her evidence, this may give rise to further uncertainty and change for the children.

1. Adopting the sentiment of Boland and Thackray JJ in SS v AH, I consider that there is risk to the children that arises from the uncertainty and changes in their living arrangements, but that the greater risk in the circumstances is the risk that is posed to them by the father’s behaviour, arising from what I understand is difficult mental health.  In the event that I was to reject the mother’s assertions, given that they appear to be controversial from the father’s perspective, the children’s immediate welfare is likely to be jeopardised. 

2. The parents agree that the children’s time with the father ought to be supervised.  In terms of the supervision of time, I understand that that is intended to be a protective mechanism.  In relation to the issue of payment for supervision, the father’s position was that given that he intended to move out of the former family home, he would require a sum of money to re-establish himself elsewhere.  He is not presently working, but has indicated that he has the capacity to borrow a sum of money from his parents, and his financial statement filed on 24 September 2019 indicates that he has access to a sum of money currently in the bank. 

Conclusion

1. In relation to the particular questions for the Court then arising on the interim application, firstly, having regard to whether or not orders should be made requiring the mother to return to the Suburb B area, that she be restrained from locating the children’s residence from within 10 kilometres of the children’s school, and whether or not coercive orders ought to be made requiring her to do all things and acts necessary to enrol the children back into B Public School upon her return from the overseas trip, I consider that that application should be dismissed.  I do not make orders in accordance with the injunctions that were proposed, given that they were expressed to have been agreed to by the parties in the event that the Court made an order for the return of the children to the Suburb B locale.

2. In terms of whether or not there should be orders made for telephone communication between the children and the father, having regard to my consideration about the risk issues in these proceedings and noting that there is no proposal that communication between the children and the father be supervised by any person; having regard to the fact that the parents consider that the children’s time should be supervised; and having regard to the fact that, in the totality of the circumstances, I consider that any order that the mother supervise the father’s time or the maternal grandmother supervise the father’s telephone communication is likely to lead to more friction between the parties, I do not consider at this stage that an order should be made for telephone communication between the children and the father. 

3. Insofar as the father seeks orders for the parents to attend mediation and to enrol in a parenting after separation course, I do not intend at this point in time to make orders requiring those things to occur.

4. I am unaware firstly as to how the father’s mental health is going to progress, and I do not know whether or not it will impact upon his capacity to participate in mediation and/or to participate in a parenting after separation course.  Whilst I consider mediation and parenting after separation courses to be useful, these are matters that I consider should fall to the parents to engage in voluntarily at this stage.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge M Neville

Date: 25 October 2019