Parkhurst and Parkhurst

[2020] FCCA 2176

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKHURST & PARKHURST [2020] FCCA 2176

Catchwords:
FAMILY LAW – Parenting – interim hearing – children aged 11, 9 and 6 years – existing orders for 6/8 shared care regime – mother alleges that the children have been subject to abuse by the father – father has been charged with criminal offences – final hearing was adjourned due to COVID-19 – whether there should be any change to the existing orders pending final hearing.

Legislation:

Family Law Act 1975 (Cth), ss.4(1), 4AB(1), 4AB(2), 60CA, 60CC, 61DA, 65DAA(5), 68LA, 67Z(1)

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Applicant: MS PARKHURST

Respondent: MR PARKHURST

File Number: ADC 5140 of 2018

Judgment of: Judge Brown

Hearing date: 19 May 2020

Date of Last Submission: 19 May 2020

Delivered at: Adelaide

Delivered on: 21 May 2020

REPRESENTATION

Counsel for the Applicant: Ms Read

Solicitors for the Applicant: Boril Olds Solicitors

Counsel for the Respondent: Mr Bowler

Solicitors for the Respondent: Marciano Lawyers

ORDERS

1. Orders 3, 4, 5, 6, 7, 8 and 9 of the orders made on 22 October 2018 be suspended.

2. The children X born in 2008, Y born in 2011 and Z born in 2013 live with the mother.

3. That the children, Y and Z spend time with the father as follows;

   (a)From after school each Wednesday until 6.30pm;

   (b)Each alternate Sunday from 11am to 4pm;

   (c)At such other times as mutually agreed between the parties.

4. That the child X spend time with the father at such times as mutually agreed between the father and the child.

5. That handover when not at the B School occur at the Town C Police Station.

6. That the father is to forthwith submit to a 3-month hair follicle drug analysis process with the costs of such testing to be at the expense of the father.

7. The test is to be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse.

8. The father is to provide the pathologist with photographic identification to be recorded before each test and the authority to provide the results of each test to the Father’s lawyers and the Mother’s lawyers immediately upon completion.

9. That until such time as the hair follicle drug analysis test has been completed, the father be restrained from cutting shaving or bleaching his hair or using any chemicals or treatments on his hair, other than commercially available shampoo and/or conditioner.

10. In the event of a positive test or a failure to comply with orders 6, 7, 8 or 9 of these orders the father’s time with the children under this order is suspended until further order.

11. The reasons for judgment be transcribed and provided to the parties.

12. The matter be re-listed for trial on 9, 10, & 11 December 2020 NOTING 3 days has been allowed and will not be exceeded without the leave of the court.

13. Further consideration of the matter is adjourned to 12 August 2020 at 9.30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5140 of 2018

MS PARKHURST

Applicant

And

MR PARKHURST

Respondent

REASONS FOR JUDGMENT

Preamble

1. These reasons for judgment were delivered orally.  Given both the length of the reasons and the moment of the decision for each of the parties concerned, it is appropriate that the reasons be transcribed.  This is the relevant transcript.  Grammatical errors have been corrected and efforts made to make the oral reasons amenable to being read.

Introduction

1. These orally delivered reasons for judgment relate to interim parenting arrangements for three children.  They are X, who was born in 2008, Y, a little girl, who was born in 2011 and Z, who was born in 2013. 

2. The parties to the proceedings are the children’s parents – their mother, Ms Parkhurst (“the mother”), aged 36 and their father, Mr Parkhurst (“the father”), aged 38.  The parties began a relationship together in 2008.  They married in 2010 and separated on 4 July 2017.

3. The parties’ various applications, which relate not only to the care arrangements for the three children but also the settlement of matrimonial property issues, were fixed for a final hearing in the Court on 22, 23 and 24 April. 

4. The order fixing the trial was made on 29 August 2019.  As all concerned are aware, the trial did not proceed.  In large part, that was because of the pandemic emergency and the problems resulting from it, which rendered problematic large and prolonged gatherings of people, in public spaces, including court buildings. 

5. As a result of the directions of the court’s administration, it was not possible for parties to congregate in court for extended periods of time, and, for a variety of reasons, this did not seem to be the type of case that could be dealt with electronically due to its complexities. 

6. However, significant issues remained regarding appropriate care arrangements for the three children, which the parties themselves were unable to resolve.  As a consequence, decisions had to be made as to what were the appropriate orders to be made for the care of X, Y and Z.

7. As a consequence of this serious controversy, on 22 April 2020 an order was made that Ms Parkhurst file an application and an affidavit specifying the orders which she sought on a provisional basis, with the father to file his response to the application and the evidence he sought to rely upon within a further 14 days of that. 

8. Thereafter, the case was adjourned to 19 May 2020 at 2.15 pm, for an interim hearing to proceed by way of Microsoft Teams, which is the Court’s chosen electronic platform.  Each party has filed the necessary affidavit material.  These reasons for judgment relate to the resolution of the interim issues raised in that material. 

9. It is clear to me that this is a family that is in significant crisis at the moment.  As a consequence, it will be necessary for me to outline, at some length, the various incidents that have brought the parties to this point.  Necessarily, due to the complexity of the case, this will take some time.

10. Thereafter, I will detail, as best I can in circumstances of some significant contention, what I think are the appropriate arrangements for the care of X, Y and Z, pending another final hearing being scheduled.  That final hearing needs to happen sooner rather than later.

Chronology

1. It is clear that the proceedings between the parties have occurred in a number of phases, which have each required the Court’s intervention, but have never really resolved the issues in dispute between the parties. 

2. In reality, they have been in significant dispute with one another since shortly after they separated, which is now almost three years ago.  The subsequent proceedings have been marked by a high degree of conflict and acrimony.

3. The mother commenced these proceedings in September of 2017.  At that stage, she sought a recovery order in respect of all of the children concerned.  It was her case that the father had issues to do with substance abuse at the time and that he was behaving extremely erratically. 

4. She asserted that he had withheld the children from her without proper grounds and against that background it was appropriate and in the children’s best interests that police officers, in effect, be sent to retrieve the children from Mr Parkhurst.  It is a significant order to be made and one which should not be made lightly, for obvious reasons.

5. Section 67Z(1) of the Family Law Act1975 (Cth)[1] directs that all parties to family law proceedings, who wish to allege that a child who is subject to court proceedings is at risk of being abused, are to file a formal document outlining the matters and events which give rise to that risk.

   [1]  Hereinafter referred to as “the Act”

6. In this particular case, when the mother began the proceedings in September of 2017, she filed such a Notice of Risk.  She asserted that the father had assaulted X in May of 2017 and had verbally abused the children, telling them that their mother was a dog and scum, which had frightened them and was clearly inappropriate given her significant role in their lives. 

7. She further alleged that the father had assaulted her in April of 2017, when he placed his hands over her mouth and neck, kicked a door and, as a consequence, had been arrested for assault, although no charges were laid.  She also alleged that the father had drug bags and drug paraphernalia. 

8. As I say, she asserted that his behaviour was becoming increasingly erratic and unpredictable and represented a risk to the children.  Essentially, she asserted that the father represented a significant degree of risk to the children, which justified police involvement in removing the children from him.

9. The father responded to the mother’s application on 12 September.  He, too, filed his own Notice of Risk.  It was his position that the mother had issues to do with her own addiction to substances, particularly alcohol and illicit drugs.  The import of these matters being, clearly, that the mother herself represented a risk to the children, if they were in her care.

10. He said, in addition, that the maternal grandfather had assaulted Y; that the mother used derogatory language in front of the children and; in these circumstances, the children were at risk from their mother because of alcohol consumption, the use of illicit drugs and particularly he raised issues to do with the mother’s then partner, a gentleman by the name of Mr D.

11. The matter came into court for the first time on 15 September 2017, and at that stage the parties were each represented by their current lawyers – Mrs Read for the mother and Mr Bowler for the father.  They were able to agree on consent orders dealing with the care of the children for the next few months.  Those orders have, to a very significant degree, dictated what has happened in the period which has followed. 

12. The parties agreed that they would have equal shared parental responsibility for X, Y and Z and that the children would live with each of their parents on basically a shared-care regime.  They would live with their mother for about eight days per fortnight and with their father for about six days per fortnight, with the children to be exchanged at the B School. 

13. Each of the parties was to do a Kids Are First program.  The normal injunctions were made regarding them not abusing or denigrating the other, or changing the children’s school or, indeed, their place of residence from outside South Australia.  Each was ordered to undergo a drug screen test.

14. At that early stage, as it is very often the case, it was ordered that the parents attend before one of the family consultants to discuss care arrangements for the children both in an attempt to explore prospects of resolving the case and, if appropriate, for a report to be provided to the court. 

15. The report of the relevant family consultant, Dr E, was done in early December of 2017.  She summarised the various issues in dispute between the parties – basically, that the mother said that she had been consistently the victim of the father’s family violence and that she had brought charges against Mr Parkhurst in the past, but had dropped them in order to give him another chance.  It was also her case that the children were frightened by their father because of his aggressive behaviour. 

16. Mr Parkhurst denied all those allegations and pointed to the fact that there had been no convictions by the Court in respect of the various assaults and in fact, it was his position that it was Ms Parkhurst, who was the verbally abusive and aggressive person.  Each parent asserted that it was the other who had the mental-health issues rather than him or her. 

17. In December of 2017, the case focused on issues of family violence and drug abuse, but also, underpinning those concerns was the fact that from the family consultant’s perspective there seemed to be a very significant level of conflict and hostility between the parents concerned, which she was concerned was likely to be detrimental to the children.  Dr E described it as a tug of war between the parents. 

18. She noted that at that stage Z was about to transition into formal schooling and she was concerned that it would be difficult for him, perhaps, to adapt to a shared-care arrangement.  She was also concerned for the other children of the consequences of them being subjected to a significant level of emotional stress, having to move between what Dr E described as “two warring parents” each week.  She recommended that a family assessment was likely to be helpful.

19. My suspicion is, and I may be wrong about this, and I cannot recall what was said way back in September of 2018 – but, as I say, I suspect that the parties each agreed to the six/eight arrangement for fear of something worse.  Perhaps they did not want to embark upon any lengthy examination of their respective behaviours.  Perhaps they hoped that things would settle down and that the metaphorical water in their relationship would move to a proper level.  I do not know. 

20. But at that early stage, given the very significant allegations each have made and what was clearly apparent in terms of their mistrust of one another, it would seem axiomatic that they were perhaps not best suited to a shared‑parenting regime.  However, the consent order was made, and, as I say, it seems to have dictated what had occurred in the period since.

21. When the matter returned to court I listed the matter for a hearing as urgently as I could on 15 and 16 October 2018.  I also ordered that a family report be prepared.  The report was allocated to a social worker whom the parties will, of course, know, Ms F.  Ms F has now written two reports for the Court, together with a short addendum recently which deals with arrangements for X.

22. Ms F has made a number of recommendations in the case and, as each of the parties will perhaps realise, she has something of an advantage over me in the case in the sense that she has met the three children concerned.  She has spoken to them, she has seen them interact with their mum and dad.  So she has a visceral appreciation of what they are like.  I have only read about the children and only heard through the somewhat artificial means of a court case what they are like and what they are about.

23. I am well aware of the decisions that I have to make about the children in what, I appreciate, are extremely artificial circumstances.  I also appreciate that Ms F herself has not been subject to any cross-examination.  It may be the case that she has made a mistake in her assessment, or there is some flaw in the methodology that she has adopted, which renders her opinions of little utility, but at this stage, given her expertise and her exposure to the family, it would be, I think, imprudent that I did not give close consideration to what she has recommended.

24. At the stage of the first report it was Ms Parkhurst’s position to Ms F that the six/eight arrangement was not working well for the children and that they really needed to have a home base which she said should be with her.  On that basis, she proposed that the children see their father every alternate weekend from after school on Friday until school started the following Monday.  She thought this would give the children a greater degree of stability. 

25. At that stage, it was the father’s position that the parties ought to have shared care of the children, with the children moving between their parents on a week-about basis.  He reiterated his concerns about Mr D, asserting that he was part of a motorcycle gang, and if this was established, the children ought to live primarily with him. 

26. The children were also interviewed by Ms F.  At this stage in early 2018 she described X as polite, mature, intelligent and quietly spoken.  He also appeared to be acutely aware of the conflict between his parents and to be sad about that.  He did not appear to be aligned with one parent more than the other and Ms F thought that he was candid with her.  Interestingly, X describes his mum’s house as being “cool” and dad’s house as also being “cool”.  He had some concerns about his dad because “he sometimes yelled really loudly”. 

27. X reported that his mum and dad did not get along and they often argued and they called each other names.  X said he was afraid to tell Ms F the names he had heard, but she said, look, no doubt, “I am a grown-up. I have heard it all before,” and he said he had heard his dad call his mother “a whore”.  He also said that Mr Parkhurst referred to Mr D as “steroids boy”.  At that stage, X said he wanted to keep arrangements as they were.  He was not in favour of his mother’s proposal or his dad’s, however he was not able to tell Ms F why he thought that was so. 

28. Y was coming up to her seventh birthday.  She too was quiet, polite, friendly and well-adjusted from Ms F’s perspective and, again, she was candid.  She told Ms F that she would like to “spend a bit less time with dad because we get called names – naughty words.”  She said that she liked her mum’s house better, though she was significantly influenced by the fact that it was a new house and it had a plastic pool. 

29. She had some issues about her grandad on her mother’s side which related to him coming to the bathroom when she did not have her clothes on.  Y reported that she felt a bit unsafe at her father’s house and she felt “a bit safer at mummy’s because he calls me names.”  However, Y essentially thought that she, too, wanted to keep things as they were, although she said it was six nights with dad and nine nights with mum.

30. Z was only four.  He did not express a preference, but he was reported to be a nice child as well, quiet and affectionate, shy but warmed up.  He was close to his older brother and sister.

31. From my perspective, what was really significant was what happened in the observations.  The children were really happy to see each of their parents.  The children were happy and relaxed in their father’s care; they were happy, relaxed and familiar with their mum.

32. For some reason, something went wrong about who was meant to arrive at which particular time, and there was, as I have observed in the past, something of an altercation, between the parties, in the waiting room at Ms F’s office. 

33. Ms F said this:

    “Of major concern was the children’s exposure to conflict in the form of a heated, verbal dispute between the parties at the assessment.  Whilst sharing the waiting room, midway through the assessment Mr Parkhurst asked Ms Parkhurst to leave.  She refused to do so, and Mr Parkhurst then knocked on the consultant’s office door to seek her guidance.  At this point, when the consultant entered the waiting room X was clearly distressed, appearing on the edge of tears.  Both parties continued to bicker with each other, and Ms Parkhurst expressed her upset at the way Mr Parkhurst was speaking to her and asking her to leave.  They did not stop the tug of war of words in front of the children despite the request of the consultant.  It only ended when the consultant guided Ms Parkhurst out of the room at which time she broke down in tears.  She then agreed to wait outside.”[2]

    [2]  See family report dated 17 February 2018 at [67]

34. X was asked about his view about it.  He said the altercation made him feel “not good, but I’ve seen way worse.”  He was worried that his father was going to yell at his mother.

35. So on any view, at least in how the parties presented to Ms F – when one would expect they would be at pains to be on their best behaviour, if you like, or at least put their best foot forward – the parties did not have the sort of perfect arrangement for an equal-time regime which is envisaged by the legislation in the Act, particularly section 65DAA(5), which talks of the capacity of parents to solve problems, to communicate effectively and remain focused on children.

1. So at this stage, the case presented something of a dilemma for Ms F.  She wrote as follows:

   “Given the concerns before the Court, in particular those raised by the mother against the father, coupled with the children’s disclosures regarding the father’s denigration of the mother and their exposure to this conflict, concerns remain for the children’s overall emotional wellbeing and sense of safety and security while spending six nights a fortnight with their father.  This, however, was balanced by the perception that the children had a good relationship with their father - were not appearing to seek any major changes to their routine and seemingly enjoyed their time in his care when void of complications such as exposure to family conflict, name-calling and family discipline.”[3]

   [3]  Ibid at [75]

2. In effect, when it is boiled down Ms F said as follows: “Look, these parents seem to be in a high‑conflict situation.  That is a real problem.  However, when I observed the children with their mum and dad, the children clearly love their father and mother. They interact well with them.”  A rider on that, however, was placed in that the children did say to Ms F they had some issues with their father denigrating their mother and how he disciplined them.

3. So Ms F, as many family consultants did, said to the Court, “Look, Court, it is your job to have court cases, and to hear evidence from people and make findings of fact.  So if you find that the mother’s allegations are correct, well, I would support the mother’s position, but if you do not, the current eight/six regime with some protective orders might be okay.  In addition, if you do find that Mr D is in the Comancheros, perhaps you need to think about that, Court.”

4. As matters transpired, the case did not require that fact-finding exercise because when the case came on for final hearing – and, again, it was the same lawyers concerned, Ms Read and Mr Bowler – the parties reached a final agreement, and some lengthy orders were made effectively endorsing the shared-care arrangement, conferring parenting responsibility on each of the parents equally, as well as dealing with Christmas, Easter, Father’s Day, and travel, and so on and so forth – and that was the end of the case. 

5. But, of course, as the parties know, it was not the end of the case.  It was merely the end of the first phase of the proceedings and the parties had much unfinished business with one another, chiefly at that stage relating to financial issues. 

6. The mother began a further round of proceedings on 12 December 2018, so that was less than two months after the final children’s orders had been made.  She brought an application to settle the parties’ matrimonial property.  She also brought an interim application requiring the sale of the parties’ former family home at Suburb B. 

7. It was her position that the property had to be sold because Mr Parkhurst was not in a position to pay the mortgage and there were pressures from the bank in this regard. 

8. In any event – and, again, it is my conjecture only – I suspect that the instigation of the property proceedings did little to reduce the tensions between the parties and, in fact, quite probably made those tensions worse because from Mr Parkhurst’s point of view, no doubt, it was deeply upsetting that there was a prospect that he might lose his home. 

9. In any event, in February of 2019 some procedural orders were made in respect of a conciliation conference and the case was adjourned to 6 May 2019.  It was also around May of 2019 that the mother re-instigated the children’s proceedings. 

10. Once again, she sought a recovery order in respect of the children.  She said that the father was not following the earlier orders and continued to denigrate her to the children.  She further asserted that there had been an unpleasant altercation, which had occurred, a few days earlier, on 18 April. 

11. On that basis, she sought that the children be delivered up to her, and thereafter the children’s time with their father be suspended for six weeks.  She also wanted a random drug screen test – it being her position that illicit drug use was playing a part in what she described as Mr Parkhurst’s erratic behaviour. 

12. Mr Parkhurst responded to these various allegations on 30 May 2019.  He said that he had not returned the children to the mother because X had told him that his mother had threatened him with a knife.  He was not aware of the full story about the incident because, of course, Mr Parkhurst was not there and he had only heard about it from X.  However, the case had been reported to the police at Suburb G, and X made a statement.  Mr Parkhurst was not sure if Ms Parkhurst was going to be charged. 

13. It was also his position that Y had reported that she had been bullied by Mr D.  As far as I know, I have never been provided with any statement that X made to the Department of Child Protection worker, and, as will become apparent in due course, that incident regarding the knife and whether it did or did not happen is now clouded with some degree of mystery or uncertainty. 

14. Mr Parkhurst denied that he did drugs.  He asserted that the mother was lying, and it was his position that the children were, in fact, scared of their mother, not of him. 

15. So any hope that the orders of October 2018 and the six/eight regime would inaugurate a period of some settling and the birth of some trust between the parties was misplaced, and the issues which had flavoured each of their cases from the instigation of the proceedings in September of 2017 remained current.  They were no further forward.  In those circumstances, of course, there must have been concerns about their impact for the children concerned. 

16. Against that background, and in an attempt to get to the bottom of what was going on from the children’s perspective, they were referred to another expert in the form of Family Consultant Ms H, who conducted what is called a child-inclusive conference with the children on 13 August.  Ms H was aware of the dynamic of the parties’ situation and she described it as “a bitterly divided situation which appears to have deteriorated even more since the assessment for the previous family report.”

17. In that context, she noted that Ms F had raised concerns about the children being exposed to denigration of their mother and stepfather when they were with their father.  Ms H described the mother as appearing somewhat defeated and expressing to her that what she really wanted was that the father would just follow the arrangements, cooperate with her and create some stability.  It was her view that Mr Parkhurst was engaged in some form of campaign to manipulate the children by means of offering them inducements.

18. Mr Parkhurst indicated that Z had made disclosures about Mr D kicking and punching him.  Ms H noted that these complaints did not have a great deal of contextual background.  In this context, she interviewed each of the children and, again, Ms H has an advantage over me in that she has both expertise and she has seen the children. 

19. I appreciate that she may be wrong in the emphasis she places on what the children said to her, and what they in fact said may not reflect their true views and they were just perhaps saying what they each individually thought Ms H wanted to hear – that is possible, but it is equally possible that the children were taken to see an expert, they knew it was significant, and they thought they would take-up the opportunity to provide the expert with how they were feeling.  It is also possible that, as with X, Ms H’s assessment of him accords with how he presented, not necessarily with what he said. 

20. Ms H said of X that:

    “He presented as a troubled, jaded boy with the sort of over‑adultified features shown by children who have been exposed to too much adult conflict and negative influence.  He was very anti his mother.  He said, “She scared me.  She threatened me with a knife.”  He was a sad child.”[4]

    [4]  Child Inclusive Conference Memorandum dated 13 August 2019

21. Ms H thought that he was an alienated, disconnected child who was clearly influenced by adult agendas.  Ms H was struck by the fact that X used the same language about his mother that his father did. 

22. Y said she was really upset about her parents fighting.  She expressed her love and loyalty to both her parents.  She said she liked the six/eight regime.  Y said she did not know anything about the knife incident.  She said “I think X might be making it up so he can stay at dad’s because he has got his Playstation.” She said she loves both her parents but stated “Sometimes I want to stay at mum’s, because he yells at me lots – all of us.  We’re just having fun.” In terms of Mr D she said “He’s really nice.”

23. Z, who was six at the time of the interview, said “I want to go to dad’s once I’m at mum’s, and I want to go to mum’s once I’m at dad’s.” So Z, again, expressed a wish to be with both of his parents. 

24. Significantly, Ms H said of X that he presented as a child who had been exposed to a severe level of coaching.  She thought he was deeply unhappy, and, in this context, concerns had been raised that his behaviour at school was not as good as it should have been.

25. Essentially, Ms H thought there was reason to believe that the child might be subject to some form of emotional manipulation and that had left him deeply, deeply unhappy.  In these circumstances, alarm bells rang for Ms H and she said that if the child was being alienated from his mother, some dramatic, corrective measures should be put in place. 

26. In terms of their presentation, Y and Z seemed to be less happy children than they should be.  In this context, Ms H conjectured that perhaps Y was beginning to express a real feeling that she wanted to be with her mother for more of the time. 

27. As a consequence of her assessment, and I appreciate it was a provisional assessment and it was not in the context of a long-form family report, Ms H reached the provisional opinion that it was highly probable that there was no substance to the allegation about the mother threatening X with a knife, and that this was the product of a detrimental coaching situation for X who was a troubled boy. 

28. As a consequence, Ms H considered that it might be the case that Mr Parkhurst had an agenda to undermine the children’s relationship with their mother and this had been going on for a long time, and regardless of the fact that Ms Parkhurst had agreed to an equal-time regime in the hope that things would settle down, Mr Parkhurst still maintained an agenda.  Ms H thought X needed some urgent therapy. 

29. The matter returned to court in late August.  Against this background, I appointed an Independent Children’s Lawyer for the three children for obvious reasons.  I was concerned about what Ms H had reported.  The Independent Children’s Lawyer is Ms Rieniets who is an experienced family lawyer. 

30. Pursuant to the provisions of the Act, in particular section 68LA, Ms Rieniets is to be regarded as a party of equal importance to each of the parents. She is not in any way subservient to them. She is also not strictly the lawyer for each of the children. She has a more nuanced statutory duty, which is to assess all the evidence that is available and then advocate the position which she thinks will best represent the interests of the children concerned.

31. On 29 August, as I have already indicated, the case was fixed for final hearing in April, and a further family report was ordered.  I cannot remember precisely what was said, and, as I say, there have been many twists and turns in this case, and from time to time it has appeared in busy duty lists, and the positions of the parties have been polarised in the extreme.  In any event, I was not persuaded to change the six/eight regime, which had been put in place as a result of a final consent order. 

32. I think it was put to me by Mr Parkhurst that he was not being difficult and what was needed was each parent to encourage the children to go as directed to the other parent.  In addition, procedures had been put in place to gather further evidence, including the Independent Children’s Lawyer.  So on that basis, the case was adjourned until December of 2019, and around about that time Ms F’s second report was prepared.

33. Interestingly, at that stage, the mother was in favour of keeping the eight/six split going, whereas the father wanted a week-about arrangement, which would be subject to the older two children’s wishes. 

34. Both mother and father reported to Ms F that conflict was still high and they only had limited communication and no improvement had been made.  Mr Parkhurst denied denigrating the mother to the children, but he did not have any great trust expressed to Ms F in how she parented the children.

35. Ms F said that co-parenting appeared not possible now or likely in the future.  Issues about drug and alcohol use and mental health were canvassed.  Again, Mr Parkhurst said that Ms Parkhurst was mentally unstable and he indicated his view that X was absolutely accurate when he had said his mother had threatened him with a knife.  Mr Parkhurst asserted that Ms Parkhurst continued to use drugs and live with and associate with people who used drugs, whilst he denied using them himself. 

36. It was her case that the father’s anger and the children’s claims that he was often up all night were due to amphetamine use.  In this context, although orders have been made for drug screen testing in the past, I am unaware of whether any such tests have ever been conducted. 

37. I have tried to read the file completely from document 1 up to document 34 and I have not been able to find a drug screen test.  I may be wrong about that.  So in this case, which is coloured by significant allegations of drug abuse, there is no concrete evidence of use or negative use.

38. Again, Ms F spoke to the children.  As with Ms H, Ms F thought that X was troubled, sad and burdened.  He said to her “You probably don’t believe this, but she - mother – threatened me with a knife.  I’m staying with my dad 100 per cent.”  He said this in a quiet and sad tone, not one that Ms F said seemed fixed, but one with uncertainty and an element of grief. 

39. In terms of how his mother behaved, he said “Well, look, when she’s with her friends she’s really innocent, but with us – well, with me, she’s a psycho.”  X added that his father told him that “his mother will die a horrible death.”

40. He denied that his mother spoke in any negative way about his father.  At this stage he was seeing a therapist called Ms J.  He said that was pretty helpful.  So when Ms F saw X one-on-one he was pretty set in what he said against his mum, and he said “I’m staying with dad 100 per cent.”  Then he was introduced to his mother, and Ms F reports as follows:

    “Upon Ms Parkhurst entering the room, X’s face lit up.  He gave a large smile, let out a deep breath, opened his arm and leaned into his mother to receive and reciprocate a hug.  They remained embraced for a long moment, and the connection appeared meaningful and significant.  Ms Parkhurst then turned to X and stated, ‘I’m really sorry if you felt I scared you.  You are safe with me.  I am really sorry if you felt I hurt you.’  X nodded whilst still hugging his mother.”[5]

    [5]  See family report dated 13 November 2019 at [37]

41. X then later agreed to spend time in the playroom with his mother and younger brother and sister.  Obviously, if Ms F’s description of how X physically responded to his mother is correct, it is incongruent with his verbal attitude as expressed a short time before.

42. At the time of the report there seems to have been issues about Y spending time with her dad, and she was asked about this by Ms F and she said “When I was there all his friends were coming over at night and I felt uncomfortable.”

43. She added that her father was in the shed a lot of the time, either alone or with his friends and this, too, would make her feel unsafe.  She was particularly concerned about a gentleman by the name of Mr K.  She also reported that she was scared because Dad always yelled at her. 

44. I know nothing about Mr Parkhurst's shed.  I do not know what happens in the shed, and Y said she did not know what went on in the shed other than it made her feel a bit uncomfortable.  In terms of what happened at mum's house she said she had no concerns. 

45. Again, Z was friendly and happy; he was a gentle natured six-year-old.  He did not have anything to say negative about either of his mum or dad.  He loved playing with them.  He said Mr D was a nice person and he was happy with the 6/8 regime. 

46. In terms of her evaluation, Ms F had shifted from her view that if there were no substantiated concerns about either parent because of the strength of the children's relationship with mum and dad, that the court could go with 6/8.  She had changed her mind about that. 

47. She said that shared care appeared no longer to be a viable option for the children, given the entrenched family conflict, the lack of co-parenting possible between the parents, and the children's burden arising from divided loyalties. 

48. She said that if there was shared care, it might leave the children destabilised, and what they needed was a secure, safe and predictable primary basis.  Ms F shared Ms H's concerns about X's alleged disclosures about the knife incident. 

49. Ms F basically indicated that how X interacted with his mother was incongruent with a child who had been threatened by a parent with a knife.  It must have been a difficult issue for Ms Parkhurst to broach in the context of the assessment process, but Ms F indicated that she presented as being sensitive to X's needs and fundamentally child-focused. 

50. In this context Ms F was acutely concerned, I think, about the extent of X's loyalty to his father and his acute awareness of how negatively Mr Parkhurst felt towards Ms Parkhurst and that that, of itself, was a factor which had led to, at that stage, the breakdown of the relationship between mother and X.  Throughout the proceedings, up to that stage and to each of the experts engaged - and there were three of them - issues had been raised about the father's denigration of the mother. 

51. In this context, the new disclosure that X made about how Mr Parkhurst regarded the mother's death added weight.  Ms F was concerned that Mr Parkhurst would not be able to shield the children from his negative view about the mother. 

52. Ms F assessed Y's concerns about what went on in her father's house in the shed and Mr K as being genuine, but what was noted was that from Ms F's point of view, concerning X in respect of his mother and Y in respect of her father, each child was open to repairing those significant relationships, but for that to occur it needed the support of the other parent. 

53. In these circumstances, Ms F thought it would be counterproductive to make an order that any of the children should be given the option to choose whether to spend time with the other parent concerned, because if there were deficits in the capacity of each of the parents to encourage a proper level of relationship with the other parent, this would be axiomatically destined to fail. 

54. So over the course of the two reports it seems to me that the issues had begun to colour less in Ms F's mind somewhat.  The parties had no capacity and probably never would have any capacity to have a shared care regime because they simply were incapable of communicating with one another without conflict breaking out at one stage or other which would, inevitably, have implications for the children's divided loyalties. 

55. It seems to be the case that she was more concerned that these deficits were more significant so far as Mr Parkhurst was concerned and there was evidence that he had, to some extent, been successful in respect of X having a very negative view of his mother, which was not congruent with how he behaved with her when the two were presented with one another. 

56. In respect of Y and Z, they clearly loved their dad, albeit that Y had some concerns about some aspects of her father's lifestyle which she was not able to articulate.  Again, drugs and the allegation of illicit drug use remained at large, so Ms F, in this context, indicated should the matter proceed to trial, it may be best for the court to obtain, at best, hair follicle drug testing from the parties to clarify this issue. 

1. X was thought to require some therapy and, as I say, it would appear to be the case that some of the issues in the case had become clearer in Ms F's mind.  She said this: 

   “No information obtained as part of this assessment added weight to the father's claim against the mother regarding violence and drug use.  However, weight was added to the mother's claims regarding the father's emotion, management, his possible ongoing use of drugs and the children's possible attendance issues at school within their father's care.”[6]

   [6]  Ibid at [61]

2. So in terms of her recommendations Ms F indicated a view that the best interests of the children probably merited that one parent have the predominant care of the children and that probably should be the mother because of her concerns. 

3. However, given the strength of the children's relationship with each of their parents, she further considered that the children ought to spend alternate weekends with their father from after school Friday until the commencement of school Monday, and in the other week from Wednesday after school until the commencement of school the following Thursday morning. 

4. As I say, Ms F indicated that some drug screen testing was likely to be helpful and some more information from the children's school and any therapist who was seeing X.  Axiomatically, this was likely to be useful information in differentiating between the parties’ respective cases.

What happened next? 

1. The family report was released on 18 November.  On 12 December, Ms Parkhurst filed an affidavit.  She said she had a phone call the previous Saturday, 7 December, from a person who said he was a detective at Suburb L CIB and that he was ringing up to see if she was okay.  He asked her some unusual questions.  She got a text message from another police officer.  She was told that X was safe and in particular:

   “Patrols have seen him and he is ok.  Patrols are now speaking to Mr Parkhurst [Mr Parkhurst], he’s assisting with the investigation…go to sleep and if anything else happens I'll let you know.”[7]

   [7]  See mother’s affidavit filed 12 December 2019 at annexure CAP 1

2. There seems to be something that the police euphemistically described as "an incident".  Ms Parkhurst said she did not know anything about what had happened.  She understood that Mr Parkhurst had been arrested, the paternal grandmother had taken X to school and that he had been collected from there by his father.

3. From the mother's perspective, the involvement of the police was the most concrete indication of what she feared, namely, that there was something seriously amiss in the father's household, which had ramifications for X's safety.  In this context, she got X's school records which showed that he had been late on occasions and had been absent on others. 

4. When the matter returned to court on 19 December 2019, I was not prepared to change the existing orders.  Again, I cannot remember what was said and what I said because it is some time ago.  It was also a few days before Christmas.  Mr Parkhurst said he would not have Mr K over at any time the children were in his care.  At this stage it was the case that a Dr M was seeing X.  Dr M is a mental health general practitioner.

5. Given those matters, the case was adjourned until 10 February 2020, and, no doubt, it was hoped by me, perhaps naively that things could be left as they were until the final hearing and things would settle down between the parties, as had happened before.  This did not prove to be the case.

6. In February, it was apparent that more significant things had happened in the children's lives over the Christmas break and, once again, Ms F was asked to speak with X in particular. 

7. Ms F was made aware that Mr Parkhurst had been arrested in December and placed on bail in respect of charges of detaining a person to commit an indictable offence, committing an assault that caused harm and dishonestly dealing with property. 

8. There had been, for want of a better word, a raid at his home whilst X had been with him.  For his part Mr Parkhurst conceded that the police had attended at his home but said that this had not had any great effect on X because he was able to go about his business, whilst the police were present and the officers concerned had not behaved in an aggressive manner toward anyone. 

9. Significantly, Ms F was able to examine with X himself what had happened when the police had come to his home.  He said:

   “‘My dad's been to jail for a day and a half and I had to stay at home alone for four hours.  Then he came home...  Me and nan and pop picked him up from Adelaide’.  He said, ‘I don't know if my dad and nan were telling the truth, they were saying he got set up when they did the DNA test on his car.’  X stated ‘I don't think he did it, but apparently he hid her body in the car’.”[8]

   [8]  See family report dated 12 March 2020 at [22]

10. When the consultant asked who X was referring to, X said, "I don't know, a random lady's body".  He added, “And his friend was with him and took the blame and that's why he's not in jail.”  Clearly, if these matters were discussed with X, in these terms, they were significant and adult matters.  What emotional impact they had on X is difficult to gauge.

11. At this stage it was apparent that X had transitioned into his mother's care, and this had happened around about Christmas and he had not seen his father, until shortly after the second Family Report and after the police raid.  I am not entirely sure of the mechanics behind the transition.

12. X said living with his mum was pretty good.  He was annoyed by his younger siblings because they were annoying.  He was asked by Ms F if he felt safe with his mum and he said, "Yeah.  Just not with my dad".  He went on to explain that his father had been "lying to me about mum, the threatening knives thing.  Dad has been putting it in my head". 

13. X explained that his mother never threatened him with a knife, but he was too scared to say the truth for fear his father would have smacked him.  X also reported not to feel safe and not to have returned to his father for a month and a half due to the arguments that they were having and his father "hitting me hard, actually getting bruises".  X said that wasn't fair on him.  Then he paused before saying in a clear and direct tone, whilst looking down appearing sad, "And he's done something gross.  He spat on my food and I had to eat it". 

14. X said despite him deciding not to see his father, Y and Z had continued to do so.  In this context he said Y got hit in the head by her phone.  X further explained and physically demonstrated how his father hit Y in the head with her phone after refusing to tell him her password.  He explained that he did not see this for himself, but Y told him what happened, so it is hearsay, of course.  He also complained that one of his father's associates had called Ms Parkhurst a whore. 

15. In this context under the heading of Evaluation, Ms F opined, from the new information obtained, that there were significant concerns about all three children's safety in their father's care.  The charges faced by Mr Parkhurst seemed to be serious, and although they were denied by Mr Parkhurst, Ms F did not think they could be overlooked. 

16. Ms F considered that X seemed to be genuine in expressing his feeling that he did not feel safe with his father and further, that if X was correct in his account to her, about the knife incident and his food, he had suffered some form of abuse of a psychological kind.  This included being manipulated and intimidated and, of course, are concerns about family violence. 

17. If these concerns were valid so far as X was concerned, Ms F considered that they must be valid so far as the younger two children were concerned.  In this context, she thought there would be no benefit in forcing X to see his dad and X might, in fact, become traumatised. 

18. So in those circumstances Ms F recommended that the court get further details of the father's charges, and should the court accept X's account, then the children ought to live with their mother and spend brief periods of supervised time with their father limited to daytime only.  This would reduce the risk. 

19. These were the matters that were in play when the case came on in April.  Given its complexity and all the issues, I just thought that it simply could not be done electronically, but clearly the case needed urgent attention, and, as I say, on any view, this is a family in crisis.  Well, it is certainly my view that the family is in crisis and I think it is a view shared by Ms Rieniets and Ms Parkhurst. 

20. In those circumstances, I made the direction that Ms Parkhurst file an application in the case and she set out the orders she wanted.  She did that expeditiously as directed.  She also provided some other records that indicate that Y had been taken to a doctor in Suburb N and at this stage a mental health plan had been arranged. 

21. When Y arrived, at the doctor concerned, she was described as having a lump on her head that arose after her father had taken her phone away and hit her head with the phone.  She said she had had a headache, but felt better today, and she said her father got angry for no apparent reason and took it out on the patient, that is Y. 

22. Ms Parkhurst said that Y continued to go and see her father after this incident.  Y said she was initially scared, but she still wanted to see her grandmother and her uncle, and she wanted to spend her birthday with the paternal aspects of her family. 

23. Indeed, since the phone incident, Y had not said anything bad about her father.  So although Ms Parkhurst had concerns about Y's mental well-being, she did not take the opportunity to say, look, this is a child who is so traumatised she does not want to see her dad. 

24. Ms Parkhurst also said she wanted the children to have a good relationship with their father, but she did not want them to be put at risk mentally or physically.  To a certain extent this fits in with how she has behaved throughout these proceedings.  She has agreed to substantial and significant time.  She advocated that at the end of the second Family Report process. 

25. What she said is she just wants to get on and have an appropriate post separation parenting relationship with Mr Parkhurst, but he will not be reasonable with her.  It is her perception that he is incapable of stopping behaving in an aggressive manner towards her and is incapable of being candid, either with her or the court, about what is going on in his life. 

26. In this context, she points to the fact that gradually, over time, item by item, things have come out, through the police involvement and through, particularly, what X and Y have told her about Mr Parkhurst’s life not being in the best possible order. 

27. Ms Parkhurst has arranged for X to see a therapist, Dr M.  She is a mental health GP.  She wrote recently on 13 May that she saw X, and he was comfortable with his mum, reserved and quiet, but when asked if he would see his father, he became physically distressed and heightened emotionally.  He said he did not feel safe about seeing his father. 

28. X further reported that he was scared that his father would be blamed for everything and would hurt him physically.  He said he had nightmares about seeing his mum being harmed by his father, and he said he felt guilty that he had believed what his father had told him about his mother and that he did not return to her sooner. 

29. Overall, Dr M was of the opinion that X is currently feeling safe in the care of his mother and is fearful of returning to the care of his father.  Dr M further indicated that she is not in a position to and could not fully assess any risk that may exist for X or his siblings if they were in the care of their father.  She finished her report with the following statement:

    “I can only report that he emotionally and physically seems to feel connectedness and a sense of safety and security that is allowing him to occasion therapy much easier than he was able to when in the care of his father.”[9]

    [9]  See report of Dr M annexed to the mother’s affidavit dated 14 May 2020

30. She described X as heightened emotionally and physically when talking about his father.  So, the case proceeded to this significant interim hearing on the mother’s application.  Mr Parkhurst did not respond promptly to the application.  Through his solicitor, he put his position to the court in an affidavit that was filed at 4.49 pm the day prior to the hearing.  I have read that affidavit. 

31. As is Mr Parkhurst's entitlement, he is not inclined to elaborate upon the allegations made against him other than he asserts that his co-accused were remanded in custody, whereas he has been bailed and, therefore, axiomatically, the charges against him are less serious.  In essence, I think he asserts that they will ultimately be withdrawn or he will be exonerated. 

32. He denies that he has ever bruised X or that he has assaulted Y, and he says Y has no fears about him because otherwise she would not continue to see him.  He says Z requested to see him as recently as 6 May and he is still the happy-go-lucky child everyone has previously described. 

33. He says that it is ridiculous for him to undergo a hair follicle test.  In any event, he has not got the money to pay for it.  He says that he did a drug screen test in May of 2018 and it was negative, and the mother is just trying to use these allegations as an excuse to keep the children away from him, and it is she who is alienating the children from him rather than vice versa. 

34. He is very concerned about X and believes that he needs some form of proper therapy to reinstate his relationship with him.  In this context he contends that, at this stage, X is probably playing his parents off against each other, and just as he now says that it's the father who's the bad one, it's just as likely in a few weeks or even days' time he will say the same thing about his mother and like a weathervane he will swing against her and return to him. 

35. He points to the significance of the children's relationship with their paternal grandparents.  In effect, he asserts that what the mother says to experts and in court is not congruent with how she behaves to him.  He says that since X has not been spending time with him, but the other two children have, that the parties are communicating a little better and the strain is less, and he's happy to continue doing so, and it would be best if X came along. 

36. Finally, Mr Parkhurst says he is happy to talk to Dr M and be involved in therapy because she will be able to see that he is not the evil person he is portrayed to be by the mother.  Essentially, it is the father’s position that the mother’s case is exaggerated; he is not as bad as he is painted, otherwise the younger children would have rejected him; and he is just as sinned against as sinning. 

37. So I appreciate it's taken me - it's now 3.55, we started at about 2.20 –  so it has taken me about an hour and a half to summarise the parties' cases up until this point.  I regret that it has taken so long, but I did not have the time to provide written reasons or, indeed, edit my notes to any significant degree.

38. However, I do not resile, for a moment, from the need to do this and outline in detail the matters which bring the parties to the current point, which serves to underline the exquisite complexity of the matter.  This complexity flows from the two major best interest considerations arising under the Act. 

39. The children know each of their parents well and are likely to benefit from spending time with each of them regularly.  At the same time there would appear to be many protective concerns. 

40. Y and Z continue to see their father regularly.  The parties' parenting relationship is, it seems to me, extremely compromised and there are significant protective concerns raised about each household, but significantly, in respect of Mr Parkhurst, we have the involvement of police.  We have some documentation that the child Y had some form of injury to her head.

41. In all these circumstances, it is the mother's position that the court needs to give the greater weight to protective concerns of the children, and on this basis the court ought to suspend the 6/8 regime, order the children live with her, and, as Ms F recommends at the end of the addendum, restrict the father's time to daytime only which is to be supervised, and that time not include X unless there is some agreement between father and child.  She also wants Mr Parkhurst to undergo a hair follicle test. 

42. In broad terms, Ms Rieniets agrees with the position of the mother.  It is her position that she is greatly concerned about what X has recently disclosed in the addendum report. 

43. The father's position is that the orders of October 2018 are working for Y, should be able to work for Z, that X is an unreliable source of information about him and the family, and the court, in effect, as it has done in the past, ought to be resolute and say, look, parties, you agreed to the 6/8 arrangement.  It should continue. 

Legal principles applicable

1. This, of course, is an interim hearing.  It arises against a background of serious crisis and controversy.  I cannot make findings of fact about very many of the issues in dispute because I have not seen either of the parties in the witness box being cross-examined. 

2. In addition, none of the experts' concerns have been cross-examined, so, as I have already indicated, it may well be the case that there may be flaws in Ms F's analysis and methodology. 

3. However, although the procedure at an interim hearing is different to a final hearing, the legal considerations remain the same.  I must regard the best interests of the children concerned as the paramount or most important consideration.[10] 

   [10] Family Law Act 1975 (Cth), s 60CA.

4. The matters that I am directed to take into account are set out in list form in section 60CC. There are two categories of matters, primary considerations of which there are two: the benefits of the children of having a meaningful relationship with each of the children's parents, and the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

5. However, the legislation is clear that I have to give greater weight to protective concerns.  In this context, I am called upon to make some sort of assessment of the various risks entailed in this case.  On the one hand, it is the mother's case that the father's lifestyle which involves, she says, drugs, police involvement, and constant denigration of her to the children, and that the enmeshment of the children in the emotional feelings of a negative nature that he holds towards her are significant.

6. On the other hand, it is the father's position that I should be careful not to unduly restrict what he asserts are meaningful relationships that the children hold with him, particularly Y and Z. 

7. In such cases as Deiter & Deiter [2011] FamCAFC 82, I am directed by the Full Court in assessing the degree of risk incumbent in any particular parenting scenario to look at the degree of probability that a harmful event will occur in future and what will be its severity to any individual particular child who will be potentially affected by it.

8. So I have to look to the future.  What is the risk?  What is the likelihood of it occurring?  What will be the consequences?  As a corollary of that, Mr Parkhurst, I think, asserts well, look, court, be careful about unduly restricting these children's relationship with their father on the basis of uncertain and untested evidence. 

9. It is also clear from the relevant authorities that I cannot postpone the risk assessment task until the final hearing. Regardless of evidentiary difficulties, I must do the best I can to assess the risk. In respect of abuse, it is specifically defined in section 4(1) of the Act. It includes an assault, as one might expect, but also in causing a child to suffer serious psychological harm including, but not limited to, when that harm is caused by a child being subject to or exposed to family violence.

1. Family violence is also defined in the Act. It is in section 4AB(1). It is violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. Interestingly in section 4AB(2), examples are giving of behaviour which may be regarded to be family violence, and it includes repeated derogatory taunts.

2. So in a case such as the present matter, it is the mother's case that there is evidence that indicates that there is a significant risk that X has been exposed to abuse in the form of the denigration of his mother and the exposure to family violence and the troubled child who has been described firstly by Ms H and more recently by Ms F.  There is evidence that Y has been subject to an assault, and she says on that basis that I have to be careful about extending the existing regime. 

3. Having considered the matter, including the benefits of the children having the meaningful level of relationship with their father, and also the significance of the children's relationship with their father and paternal grandparents, I am inclined to agree. 

4. It is the case that Mr Parkhurst is entitled to the presumption of innocence.  It may well be the case that he is the innocent victim of circumstances in respect of the charges against him.  At first blush, they appear to be serious.  There is a level of complexity and controversy about what he is specifically charged with. 

5. The court list for the Adelaide Magistrates Court indicates that he is also being charged with trafficking in a controlled drug.  He asserts, and it may very well be the case, that the court list is wrong and that charge relates not to him, but his co-accused, but I really know very little about this matter. 

6. It is not usual behaviour that anyone is charged with, in effect, kidnapping somebody, putting them in a car boot or whatever that was that X described, and X seems to know quite a bit about it, and that a DNA test was undertaken.  Those things are deeply concerning.  I cannot, I do not think, in all conscience, overlook them. 

7. It is against a background where the children have been consistently interviewed.  They do express that they have a great deal of love and comfort with their father, but they have each, in various ways, apart from the youngest one, expressed concerns about their dad, what goes on in the shed, and what Mr K does or does not do.  These things may all become much clearer when the case is fully litigated at final hearing, but at this stage I do have concerns that there is an unacceptable level of risk about the father's interaction with the children concerned. 

8. The whole structure of the Act, of course, is that it is best for children and their parents to be equally involved with each of their parents. This is the basis of the presumption contained in section 61DA, but that presumption is subject to rebuttal, and in this case I think the presumption should be rebutted because I do have reasonable grounds to believe that there has been abuse or family violence in this particular family. Certainly at the interim stage, I do not think it would be appropriate to apply a presumption. So I really have to consider that the children's best interests would be served if they live more with one parent than the other, and, clearly, at this stage that parent should be the mother.

9. In terms of the family violence, I acknowledge that there is apparently no intervention order. There has been no court findings in that regard in the sense as envisaged by section 60CC(3)(k). It may well be the case that each of the parties has some deficits in their insight in respect of the issues that arise from being a parent.

10. At the end of the day, as with Ms F, I acknowledge that the children clearly love their father, but at this juncture I really think before I proceed to even the outcome envisaged at the end of Ms F's second report, that is ultimate weekend time, Mr Parkhurst needs to provide more evidence.  He may regard it as an unwarranted imposition that he undergo a hair follicle test.  Well, I respectfully disagree.  The case, given its complexity, needs to be relitigated. 

11. I am going to reallocate some final hearing dates.  Not least of all the parties need to move on in a financial sense.  That may ease some of the controversies between them.  It may not. 

12. So, in effect, what I propose doing is making the orders which the mother supported by Ms Rieniets proposes.  Regarding the issue of supervision, I do not have any affidavits from the grandmother or from Mr O.  It is certainly Mr Parkhurst's case that the children have a good relationship with Mr O and, as I have outlined, the evidence indicates Y certainly seems to appreciate seeing her grandmother. 

13. In all the circumstances, I do not think that I should make an order requiring supervision.  Firstly, I do not have any evidence that these persons are willing to do it, and, secondly, I think it may add a level of complexity. 

14. I have been torn about whether to include overnight time, but until I know more about Mr Parkhurst and until he has negated issues to do with drug use, and from my perspective the best mechanism for him to negate the concerns about drug use is to provide a negative hair follicle sample, I need to proceed cautiously. 

15. I do not know, as I say, what went on in the shed.  It may be completely innocent.  How am I to know?  Certainly Y thought something was going on in the shed.  There is a flavour of something being not completely unexceptional about all these matters which require some level of caution.  At the end of the day, I also have to pay credence to the submissions of the Independent Children's Lawyer whom, after all, was appointed to safeguard the interests of these three children. 

16. So, for those reasons, I will make the following orders:

    ·The matter will be refixed for final hearing on 9, 10 and 11 December 2020.  Those are the earliest dates I can provide.  I regret that the hearing could not take place in April.  It is a crisis and ultimately each of the parties if the matter cannot be resolved, they each need to be subject to the rigorous scrutiny of the other's lawyer so that the truth, if at all possible, can come out. 

    ·But at this stage given the risks as I identify them, I am of the view that orders 3, 4, 5, 6, 7, 8 and 9 made on 22 October 2018 be suspended and that the children concerned, X, Y and Z, live with their mother.

    ·That the children Y and Z spend time with the father from after school each Wednesday until 6.30pm and on each alternate Sunday from 11.00am to 4.00pm and at other times as the parties agree from time to time. 

17. I pause to point out that if, as Mr Parkhurst asserts, the parties are getting on well and Y and Z say that they want to spend more time with their father, there is that flexibility, but I think ultimately Ms Parkhurst needs the reassurance that there is an order. 

18. One thing rang true to me in what she said to one of the experts, that she just wants Mr Parkhurst to follow the orders, and as I have gone through the history of the matter she has on at least two occasions felt the need to apply for recovery orders. 

19. In respect of X, it is clearly on the basis of Dr M not in his interest to force him to spend time with his father if he does not wish to do so and I will order that the child spend time with his father at such times as may be agreed between father and child. 

20. There has to be a mechanism for handover.  In the past Mr Parkhurst has said, well, when the children have said they wanted to go back to their mother, I have given effect to their wishes.  Significantly, the mother seems to have done likewise. 

21. I acknowledge that I may have spent a lot of time analysing the court documents and what, as Mr Parkhurst asserts is the case, is that the parties actually do - although they probably do not like each other a great deal - manage sufficiently so that the children have been able to maintain a reasonable level of relationship with the children. 

22. Well, at the present moment that certainly does not seem to be the case with X, so I believe that the cautious approach that I have adopted as endorsed by the Independent Children's Lawyer is likely to be in the children's best interests. 

23. I acknowledge the expense of the hair follicle test.  I also acknowledge the expense of these proceedings, but I think it is in Mr Parkhurst's best interests, if he is drug-free, for it to be established as far as it possibly can be beyond any shadow of doubt.

24. That can be done by a hair follicle test which will examine the keratin in his hair and see if there are any illicit substances there, and I will make the orders that are sought which maintain the integrity of that test, namely, that he is not to cut or bleach his hair henceforth, and that when the sample of his hair is taken, that he establish who he is. 

25. So I would envisage that it is likely that the way forward will become clearer after that test has been done and perhaps at that stage consideration can be given to the time being extended.  On that basis I will adjourn the matter to 12 August 2020 at 9.30am for further directions. 

26. I will direct that these reasons be transcribed so that each of the parties can consider them if they wish to do so, and if there is any error in my reasoning, it can be corrected, if necessary, by appeal. 

27. So, for those reasons those are the orders which I propose, which are as set out at the commencement of these reasons for judgment. 

I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 7 August 2020