PENNER & PENNER

[2018] FCCA 3557

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENNER & PENNER [2018] FCCA 3557

Catchwords:
FAMILY LAW – Interim parenting – risk assessment – where recovery order made but Police declined to implement – where Father ordered to forthwith return the children to the Mother’s care.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Applicant: MS PENNER

Respondent: MR PENNER

File Number: WOC 1078 of 2018

Judgment of: Judge Altobelli

Hearing date: 7 November 2018

Date of Last Submission: 21 November 2018

Delivered at: Wollongong

Delivered on: 11 December 2018

REPRESENTATION

Solicitors for the Applicant: Carter Ferguson Solicitors and Attorneys

Solicitors for the Respondent: MDV Family Lawyers

Independent Children’s Lawyer: Phillip A Wilkins & Associates

ORDERS, PENDING FURTHER ORDER

1. The Father return the Children [X] (born 2002), [Y] (born 2010) and [Z] (born 2012) to the Mother by 5:00pm on 11 December 2018.

2. The Children live with the Mother.

3. Subject to the paternal grandparents providing an Undertaking to the Court in a form approved by the Independent Children’s Lawyer, the Children spend time with the Father, in the presence of one or both of the paternal grandparents, as follows:

   (a)Commencing on the first weekend after the paternal grandparents have provided the necessary Undertaking, from after school on Friday until before school on Monday, and continuing each alternate weekend thereafter;

   (b)From 2:30pm on Christmas Eve until 2:30pm on Christmas Day; and

   (c)For the second half of the gazetted NSW Christmas school holiday period, with such time to commence at 12:00pm on 10 January 2019, unless otherwise agreed.

4. Changeover for the purpose of Orders 3(b)-(c) shall take place at the McDonalds Family Restaurant closest to the Mother’s residence at the commencement of the Father’s time, and the McDonald’s Family Restaurant closest to the Father’s residence at the conclusion of the Father’s time.

5. Both parents be restrained from:

   (a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children.

   (b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Children or permitting any other person to do so.

6. The Mother do all things necessary to ensure that her partner, Mr A, does not do the following:

   (a)Consume alcohol or be under the influence of alcohol within the presence of the Children or whilst the Children are at the Mother’s home;

   (b)Enter the Children’s bedrooms whilst the Children are in their bedroom;

   (c)Enter the bathrooms whilst the Children are using the bathroom;

   (d)Use any form of physical chastisement on the Children.

7. The Mother ensure that the Children attend all medical and associated appointments as recommended by their treating professionals.

8. Within 14 days, the Registry Manager provide a copy of these Orders to:

   (a)The Registrar, Principal Officer or other appropriate officer of the Local Court, Town A;

   (b)The Commissioner of the New South Wales Police, care of the Officer in Charge Town B Police; and

   (c)A child welfare officer of the Department of Family and Community Services.

9. The matter be adjourned to 27 February 2019 at 2:00pm for Mention.

THE COURT NOTES THAT:

A.The Court has considered these Orders in light of s.68P of the Act, and does not regard these Orders as being inconsistent with the Provisional Apprehended Domestic Violence Order dated 6 July 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1078 of 2018

MS PENNER

Applicant

And

MR PENNER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about three children, [X], born 2002 who is 16 years old, [Y], born 2010, 8 years old, and their sister [Z], born 2012, nearly 6 years old.  The Court must decide where the children live, and how much time they spend with the other parent.

Background

1. The children’s mother is the Applicant.  She is 35 years old.  The children’s father is the Respondent.  He is also 35 years old.  Both live in the Region 1 region of New South Wales.  Both parents have children from other relationships.

2. The parents met in 2000 and commenced cohabitation after that date.  They married in 2007.  In 2018, the home that they were living in tragically burnt down.  The parents separated on a final basis in June 2018.  It is common ground that the children continued to live with their mother, and spend frequent time with their father.  However, on 24 September 2018, [X] decided to remain living with her father who had, by then, moved into a home with his parents (the paternal grandparents).  Moreover, on 16 October 2018, the Father retained [Y] and [Z].

3. It is common ground between the parents that the Father’s son from a previous relationship has never lived with them, but the Mother’s daughter Ms B, now 18 years old, lived with them until December 2017.  Ms B appears to have moved out of home because of parental conflict.  The Mother alleges that it was conflict with the Father.  The Father alleges it was conflict with the Mother.

4. It is also common ground that in 1994, when the Father was 11 years old, he was first diagnosed with ADHD and schizophrenia.  He continues to suffer from those illnesses.

5. The Mother commenced proceedings on 18 October 2018.  Indeed, His Honour Judge Monahan made ex parte Orders on that day, obviously having satisfied himself from the evidence filed on behalf of the Mother that it was in the best interests of the children.  His Honour ordered that a recovery order issue, that the children live with the Mother, that their time with the Father be reserved, and that the Mother cause the documents to be served on the Father.  His Honour listed the matter before the Court on 5 November 2018.  The Father had not filed his Response and Affidavit by that date. 

6. Significantly, however, on 19 October 2018, Town B Police declined to act on the recovery order.  This came to the attention of the Court.  On 29 October 2018, I made Orders in Chambers suspending the recovery order made 18 October 2018.  I further ordered the appointment of an Independent Children’s Lawyer.  The Notations to that order refer to the correspondence received by the Court from Town B Police advising that the Police had declined to effect the recovery order.  The order further noted that the Police have provided information to the Court about their concerns in relation to the welfare of the children in the Mother’s care.  Accordingly, the Court vacated the mention on 5 November, listing it instead on 7 November, thus meaning that the Father’s material could be taken into account at the Interim Hearing. 

7. On 7 November, Ms Benjamin, Solicitor, appeared for the Mother and Ms Oliver, Solicitor, for the Father.  The Independent Children’s Lawyer had not been appointed at that stage, having only filed a Notice of Address for Service on 26 November. 

8. The evidence before the Court will be listed below, but it became quite clear to the Court that further evidence would be necessary in order to make an informed decision about interim Orders in relation to the children.  Accordingly, both lawyers were directed to issue specific subpoena and the Court issued its own subpoena as well as making a further s.69ZW notice.  The Court’s concern, at this time, was to make an informed decision, rather than a quick decision.  Once further documents had been produced, both parties were given the opportunity to make further written submissions in relation to the same. 

9. These Reasons for Judgment explain the Court’s decision having regard to the evidence, and the matters set out above.

The evidence before the Court

1. The Mother relied on the following documents:

   a)Initiating Application, filed 18 October 2018;

   b)Notice of Risk, filed 18 October 2018;

   c)Affidavit of Ms Penner, sworn and filed 18 October 2018; and

   d)Written submissions, filed 21 November 2018.

2. The Father relied on the following documents:

   a)Response, filed 6 November 2018;

   b)Notice of Risk, filed 6 November 2018

   c)Affidavit of Mr Penner, sworn and filed 6 November 2018; and

   d)Written submissions, filed 21 November 2018.

3. The following documents were tendered as exhibits:

   a)Father's Court Attendance Notice dated 13 September 2018;

   b)Community and Court Liaison Service Mental Health Report dated 14 September 2018;

   c)Documents produced by NSW Police;

   d)Documents produced by the Department of Family and Community Services pursuant to s.69ZW;

   e)Documents produced pursuant to subpoena to School L;

   f)Bundle of medical certificates for the children;

   g)Documents produced pursuant to subpoena to Region 2 Hospital; and

   h)Documents produced pursuant to subpoena to Region 3 Local Health District.

4. The Court also had regard to the following documents (noting that the parties were given the opportunity to provide written submissions in relation to these documents):

   a)Documents produced by NSW Police pursuant to s.69ZW;

   b)Documents produced pursuant to subpoena to the Department of Family and Community Services;

   c)Documents produced pursuant to subpoena to Town C Medical Centre; and

   d)Documents produced pursuant to subpoena by the Court to Region 3 Local Health District.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

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

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

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

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

   Note:          Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Discussion of the evidence

1. Both parents make very serious allegations against the other.  In short, both parents contend that the children are at risk of harm in the other’s care.  Having reviewed all of the evidence, the Court accepts that there is, at the very least, an element of truth in the allegations that each parent makes against the other.  These are very vulnerable children, and in many ways both of their parents are likewise vulnerable.  The difficulties confronting this family were already great before they suffered the tragedy of having their family home burn down on (date) 2018.  For present purposes, the Court regards its aim as making a decision, pending further order, that exposes the children to the least risk. 

2. Records produced by the New South Wales Department of Family and Community Services probably provides the most accurate and objective information in relation to the vulnerabilities faced by these children.  Thus, [X], 16 years old, has been diagnosed with epilepsy, polycystic kidney disease, a developmental global delay and motor neurone scoliosis.  She has a wheelchair and a walker to assist with her mobility.  The Father described [X] as relatively mute, especially with males.  The Department’s records note that in their opinion, [X]’s diagnoses would impact her ability to care for and protect herself from harm.

3. [Y], 8 years old, has been diagnosed with autism and epilepsy.  Nonetheless, he appeared well-spoken and had the capacity to verbally communicate with others as well.  The Department could not assess if [Y] would have the capacity to care for and protect himself from harm.

4. [Z] was noted to be 5 years of age and to have no diagnosed learning or developmental disabilities.  The Department’s view was that she would be able to care for and protect herself from harm, however there were worries that [Z], along with [Y], would put themselves at risk in order to keep [X] safe due to her significant medical conditions.

5. The Court observes that parenting these children in an intact and well-supported household would have been exceedingly difficult.  Those difficulties were, inevitably, exacerbated by the destruction of the family home by fire, as well as the parental separation. 

6. There is reliable objective evidence about the Father’s mental health.  His own psychologist, Mr C, provided a report to another Court, in the context of family violence against the Mother, dated 29 June 2018.  The psychologist referred to the Father’s long history of suffering schizophrenia and ADD.  He described the treatment provided as including a combination of aspects of CBT and ACT in the background of supportive psychotherapy.  Mr C noted that the Father was also seeing a psychiatrist.  He states:  “Treatments are necessary both currently and in the future in order to prevent further deterioration of the condition but I do not expect major improvement.”  Under the heading Prognosis, Mr C states:

   Mr Penner will need lifelong counselling and psychiatric treatment in order to prevent further deterioration of his conditions (as his general condition is most times than not stable but extremely severe).  He will also need specialised medical attention for his physical conditions.

7. The Court notes the allegations that the Father makes against the Mother in relation to her mental health.  There is no objective evidence to support his contention. 

8. The Court accepts that it must have been difficult to be a parent in this family.  Given the Father’s longstanding mental health issues, a reasonable inference to draw is that there were times when the Mother bore significant responsibilities for parenting that must have been stressful for her.

9. The Mother makes serious allegations against the Father in relation to family violence perpetrated by him.  The objective material before the Court indicates that there is an interim family violence order in place, and that the Father has been charged in relation to one alleged breach of the same.  The evidence the Mother gives in her affidavit is consistent with the reports that she gave to the social worker at Town D Hospital during the course of the Father’s mental health admission in (date) 2018, which will be discussed below.  As will be seen, the totality of the material before the Court does enable an impression to be formed that, at the very least, the Father had difficulty regulating his emotions including anger.  The Mother alleges that the family violence in fact commenced in 2003.  It is not possible on the evidence before the Court to form a view about this. 

10. Hospital records confirm that between [dates] 2018, the Father was admitted on a psychiatric basis to Town D Hospital.  He says that it was a voluntary admission.  The records create a slightly different impression.  Not much turns on this.  It is possible that it was initially a voluntary admission that became involuntary.  The following information is derived from the Discharge/Transfer Summary: 

    He presented to the emergency department with increasing auditory and command hallucinations over the last three weeks.  The patient stated that he has had ongoing auditory hallucinations for many years and had been diagnosed with schizophrenia.  He described his positive symptoms of schizophrenia having been increasing over the past three weeks, but particularly bad for the last week.  This was in the context of the family losing their house and all their possessions in a house fire, with the consequent extremely distressing police and insurance company interviews and assessments.  The patient recognised this as the trigger for the deterioration in his mental state, but wanted a medication review as he felt he was being prescribed too many medications.  He has three known voices:  one male and two female.  These are derogatory and commanding in nature.  He also reported experiencing IDs of reference from television.  The patient stated that the voices have been commanding him to hurt/kill himself, has become very distressing.  He reported that he was not coping well with the stress of losing his house and was requesting a voluntary admission for control of his current situational crisis and for a medication review.

11. The document above also refers to some of the Father’s other physical problems including epilepsy, and functional neurological disorder.  The latter, apparently included a history of seizures. 

12. The Discharge Summary goes on to refer that at some unspecified date, but apparently quite early during his admission, the Father sought discharge.  The team treating him recommended ongoing admission to allow for appropriate monitoring of medication changes.  The record states:  “Mr Penner became angry and irritable and told the team that they had 10 days to sort everything out otherwise there won’t be a door strong enough that can hold him.”  The note goes on to record that the Father remained irritable on the ward and demanded discharge multiple times.  It refers to consultations with the Mother who indicated that she did not feel comfortable taking him, even on overnight leave, “because of past experiences where Mr Penner suffered from auditory hallucinations and paranoia soon after discharge.”  The Discharge Summary then notes that due to the risk of deterioration of mental state, the Father’s admission was made involuntary.  The Court notes this is directly inconsistent with the Father’s evidence in his affidavit.

13. The Discharge Summary then goes on to refer to the Mother’s disclosures of the verbal abuse and physical threats from the Father.  The records note that during the course of admission, the Father stabilised considerably, and was eventually discharged.

14. On 6 July 2018, a provisional Apprehended Violence Order was obtained by New South Wales Police against the Father, to protect the Mother.  The provisional order was authorised by Town B Police.  The grounds of the application contain a number of alarming allegations including that the Father “has punched, kicked, slapped and thrown her on the ground in numerous occasions, but the mother never made a report to the police because the father threatened her by saying,  ‘If you take my kids away from me I will kill you’.”  The grounds of the application also refer to the Mother’s allegation that the Father “has placed his hands around her throat and squeezed on it saying words similar to ‘if I push harder for another minute I could kill you’.”  The grounds of the application also specifically refer to the Father’s mental health admission in June. 

15. On 14 September 2018, the Father was charged for contravening the Apprehended Violence Order on 13 September 2018.  It is important to record that the informant was a Senior Constable at Town B Police.  The facts sheet explains that at 1.30 on Thursday, 13 September 2018, the Father called his grandmother.  The following is extracted from the Fact Sheet:

    The accused said, “I called to say goodbye.”  Ms D (the grandmother) was confused and questioned what he meant.  The accused replied, “I have to do it.  There is no other way and no one else will protect my family”.  This conversation continued for approximately 20 minutes.  The accused said:  “I have made a will and my cousin will look after them”.  Ms D requested for the accused to call his psychologist and speak with him about his mental health.  The accused agreed and hung up.

    At 2.30 pm on the same day the accused called Ms D again and informed her that his psychologist would return his call between 7 pm – 8 pm.  She replied, “That’s a bit late.  You can’t talk to him if you’re dead.”  The accused replied, “I won’t be”.  Ms D said, “What are you saying?”  He said, “I won’t be”.  Ms D said, “What are you going to do?  Are you going to kill Ms Penner?”.  The accused replied:  “I have to get rid of them, I’m on my way to do it now.” 

    The father’s grandmother rang the police who interviewed her.  They record as her saying to them:  “He’s going to her address, he is going to kill his ex and her partner and then himself”. 

16. The Fact Sheet records that Town D Police in fact attended the accommodation where the Father was staying, noting that the children were in his care, but not at that location.  An ambulance was called, but the Father denied wanting to self-harm.  He was arrested and conveyed to Town D Police Station.  The Fact Sheet records:  “The accused did state that he was upset by a call he recalled from DOCS.” 

17. The Fact Sheet concludes as follows:

    Ms D states that she was fearful the accused would carry out the threats because he has referenced in the past that there is only one way of dealing with those types of people.  She states that she has also worked closely with the accused in relation to his mental health and he appeared to have relapsed.

    Police share similar concerns as Ms D.

18. The Police records indicate that on 21 September 2018, the Police rang the Mother to advise her of the Father’s threats to kill her.

19. On 24 September 2018, the Father and his parents moved into a home at Town E where they presently reside.  [X] remained with them.  On 16 October 2018, the Father also retained [Y] and [Z].  It is important to understand his reason for doing so.  They are set out in his affidavit sworn and filed on 6 November 2018.  His affidavit is quite long, so his concerns will not be articulated in detail.  There are many concerns ranging from the children telling him about being left alone, about not being fed either dinner or breakfast, about the Mother wanting to get the Father into trouble, about the children presenting either unwashed, or with rashes, etc. 

20. It is worth pointing to one or two allegations.  For example, at paragraph 48 of this affidavit, the Father deposes that [Y] told him that “he didn’t have breakfast all week”.  It is not clear whether the Father had considered the plausibility of his son’s statement to him.  He probably did not.  It is, of course, the Court’s role to consider issues of plausibility and, indeed, of context.  For example, at paragraph 17 of his affidavit, the Father states:  “The last four to six months of our relationship was toxic.  Ms Penner and I did not get along and we were co-existing rather than being in a relationship.”  Experience, let alone common sense, suggests that the children had been exposed to what the Father described as toxicity. 

21. There is more than ample evidence before the Court to lead it to form an impression that neither parent has been diligent in seeking to protect the children from the fallout of their parental conflict.  In any event, the Father does not appear to have considered the plausibility of [Y]’s statement to him.  In any event, the Court also has available to it school records that are somewhat inconsistent with the Father’s concerns.

22. The Father’s concerns about the children in the Mother’s care continue in his affidavit.  For example, he refers to what he considered to be a “handprint” on [Z]’s buttock.  He says that this event occurred on 28 August 2018, after he picked up the children from school.  The children had thus not seen their mother since she, presumably, dropped them off to school that morning.  The Father appears not to have considered the plausibility of a “handprint” on [Z]’s buttock still being there six hours after [Z] had been taken to school.  At paragraph 50, he goes on to describe his reaction to this.  Apparently [Y] joined in and indicated that “they had been smacked hard.” 

23. The Father explains that he took them to Town C Medical Centre where the doctor examined them.  The Town C Medical Centre records are not in evidence.  The Father says that the doctor reported that “the children looked malnourished and that they appeared to be unclean.”  As will be seen, this appears inconsistent with what school records are before the Court.  The Father goes on to explain at paragraph 50:  “The children would not tell me if [X] smacked them or Mr A smacked them.  I reported the incident to the police and DFACS.”  Even though the children would not say who smacked them, the Father’s report to the authority makes the assumption that either the Mother, or her boyfriend Mr A, did so. 

24. On 17 October 2018, the day after the Father retained [Y] and [Z], he made reports to the Police.  The COPS entry is in evidence.  It is interesting to note that whilst the COPS entry clearly refers to the existence of what it describes as an “enforceable AVO,” it does not appear to make reference to the previous month’s charge of breach AVO.  On neither account is there reference to the seriousness of the allegations the Mother, and indeed the Father’s own grandmother, makes.  The Father reports to the police the concerns that, he asserts, the children expressed to him about their mother’s care.  He also referred to taking the children to the doctor the previous afternoon. 

1. On Wednesday, 17 October, the Police attended Town C Medical Centre and appeared to have spoken to the Father and the children.  The COPS entry records:  “Police were informed of incidents between the PN’s and children which was corroborated by the children.”  The record does not set out how, exactly, this took place.  For example, did the Police interview the Father and children together, or separately?  Were each of the children interviewed separately?  There is, however,  a summary of concerns which include the following:

   ·That the Mother and Mr A do not allow the children to bathe or shower, and their clothes are not washed.  Indeed, there is a reference to [X] reporting that she would only get a shower once a month.  As will be seen in due course, the school reports no problems about the children’s hygiene. 

   ·That the children claim not to be given breakfast and to be yelled and sworn at if they ask for food.  It goes on to say:  “If they don’t eat their whole meal when it’s given they don’t get to eat anything else for that day.” 

   ·That the eldest and youngest girls have made allegations of the Mother’s boyfriend Mr A taking photos or videos of them either getting dressed or in the shower.

   ·That the Mother, and/or Mr A, make [X] walk from their home to the shopping plaza, even though she is meant to be restricted to a wheelchair.  The COPS entry notes that this claim is made by all the children.  Interestingly, the records produced by [X]’s paediatrician makes it clear that he recommends, in the strongest terms, that [X] not use a wheelchair.

2. There are a number of other concerns expressed. 

3. The COPS entry for 17 October closes with a report that the Police then attended the Father’s address to ascertain whether the children were safe, finding that the house and all rooms were clean and there was plenty of food for the family.

4. A number of important events then take place on 18 October 2018.  The Mother commenced the present proceedings, and indeed, Judge Monahan made Orders for the children to live with her, and a recovery order.  More significantly, however, the documents produced by FACS contains what is described as a pre-assessment consultation that was carried out on that date.  It refers to the Mother’s reported history of long-term family violence which has gone unreported to the Police. 

5. It notes that there were no significant reported risk of serious harm prior to 2018 but that:  “Since parents’ separation there have been multiple reports for both households.”  It refers to the reports in relation to the Mother including neglect, hygiene, supervision, food and concerns about the Mother’s partner Mr A.  The concerns in relation to the Father’s household included in relation to his mental health, the threats he has made to kill the children and their mother, the AVO, and the disclosure made by [Z] about the Father washing the inside of her vagina in the shower.  The actions to be undertaken included speaking with the parents and the school, an event that in fact took place on 25 October 2018.  The details of this will be referred to below. 

6. The Police records indicate that on 20 October 2018, Town B Police had received, on the previous day, a Family Law recovery order, no doubt the one made by Judge Monahan on 18 October 2018.  The narrative relevantly states as follows:

   Police have had some involvement with the family over the last two days in relation to the welfare of the children.  This particular event relates to concerns raised by the children and the children’s father Mr Penner about the mother’s new boyfriend, his ill-treatment of the children.  I believe that this information was not available to the AFP or the Court prior to this recovery order being made.  This matter has been referred to Family and Community Services.  Information from the father Mr Penner that FACS has also attended the address and spoken to the children. 

   Due to these allegations made by the children about the mother’s boyfriend, Town B police did not find it in the best interests of the children to remove them from the father and return them to the mother and her boyfriend.  Police checked on the welfare of the children who appeared fine.  The premises they are residing at with their father is that of his parents.  The house was in a clean state.  Police spoke to the grandparents who appeared of decent character.  A mandatory report to FACS was made with an IROSH (immediate risk of significant harm) category reached.  The matter has a FACS case worker attached to it who will work in conjunction with the Child Abuse Squad.  Town B detectives and duty officer were informed of the situation and outcome of the recovery order and that it was executed for the above reasons.

7. In short, Town B Police declined to act on the recovery order. 

8. This Court accepts unequivocally that the decision made by Town B Police was made bona fide in the belief that it was not in the best interests of the children to execute the recovery order.  It is of concern, however, that there was no obvious reference to the seriousness of the allegations made by the Mother in the context of the Apprehended violence Order, and by the Father’s own grandmother in the context of the breach of AVO.  If the metaphorical dots had been joined, the Police would have known that they were leaving the children in the care of the Father who was reported to have made several threats to kill the Mother, and who was reported to have mental health issues.  The Police appeared to have accepted what the Father said and what the children may have said to them but had not placed weight on the allegations of the Mother, and the allegations of the Father’s own grandmother, and the fact that a provisional AVO had been made. 

9. On 22 October, the COPS records note that at 7:50am that morning, the Father attended Town B Police Station and stated that the recovery order relating to his children had been revoked.  The note goes on: 

   Mr Penner stated that FACS had been advised of neglect/abuse (violent and sexual nature) of the children by the mother’s boyfriend.  He requested that police contact the schools of his children and advise them not to let the children enter the care of his ex-wife/their mother Ms Penner. 

10. One cannot help but form the tentative impression that the Father was seeking to enlist the Police in his cause to retain the children.  His assertion that the recovery order had been revoked was plainly false.  The Police quite correctly made their own inquiries in this regard, and this even involved a personal attendance at the Wollongong registry of the Court on 23 October at 11:00am which resulted in the Team Leader for the registry confirming to Police that the recovery order was still enforceable and had not been revoked.

11. This COPS entry goes on to contain the following:

    Police then went to the Family and Community Services office in Town F where they spoke with the worker assigned to the Penner case and the manager of case workers.  Police were informed that FACS had conducted a safety assessment on the afternoon of Thursday, 18 October 2018.  As a result of this assessment, both households come back as safe, even though there are concerns at both households.  The FACS workers informed police that they had an extensive history of reports made to them from both parties. 

    FACS workers stated that on conducting their safety assessment the children from the Penner family stated they wanted to reside with their father however this may have been due to the father being present.  Police were informed by FACS that they would be working with the family over the next month and that during this time they would also be conducting a risk assessment of the family and the situations.

12. The narrative continues in the next paragraph:

    Police are still acting based on the information provided by the children and nurses at Town C Medical Centre.  As such police do not believe that it is in the best interests of the children to remove them from the father and return them to the mother and her current partner at this point in time.  If further information arises to suggest the children are at risk police are able to reassess.

13. There is no information before the Court that suggests the Police spoke with nurses at Town C Medical Centre.  Their own COPS entry makes no reference to this.  Indeed, the COPS entry of 17 October is quite specific that whilst the Police attended the said medical centre they spoke to the Father and the children.  It is of concern, the Court notes, that the Police appear to have placed so little weight on the FaCS assessment that both households were safe, even though there were concerns at both households.  It is of further concern that the Police appear to have not considered the potential relevance of the Father having clearly lied to them about the supposed revocation of the recovery order.

14. The next relevant record chronologically is found in the FaCS file and is described as a Safety Assessment Decision Report.  This document is dated 24 October 2018.  It is quite a long document.  It appears to have been prepared after interviews with the parents and with Mr A.  It appears to address, in a systematic way, each of the allegations made by the Father, supposedly based in the children’s disclosures.  In substance, this assessment concludes that there was no danger to the children.  Indeed, the rebuttals by the Mother and Mr A of the allegations made against them appear entirely plausible on their face.   

15. The next relevant document is also in the FaCS file, and is titled Assessment Consultation, and dated 25 October 2010.  A number of relevant matters will be extracted.  The case worker appears to have contacted School M who are reported to have:

    had concerns for the children whilst they were in Mr Penner’s care in particular the father’s aggressive behaviour towards school principal and school counsellor; [Y] had seen school counsellor, Mr Penner has told [Y] if he sees the school counsellor he won’t be able to see his father until he is 18 years.  School counsellor had concerns for Mr Penner’s interaction with dad.

    Whenever the children are in Mr Penner’s care the children always sick or there is a medical appointment – miss school whereas when they are in Ms Penner’s care the children are always attending school whilst their medical needs continue to be met.

16. The focus then turned to [X]’s school, School L.  Here the narrative reports: 

    School L were also concerned about [X]’s attendance one and a half days this term, concerns always being at medical appointments instead of school versus in Ms Penner’s care they are always attending.  With regards to [X]’s needs she has a wheelchair – she can walk, go to the toilet and shower independently.  [X] does [ineligible] a walker or in a wheelchair if she is in pain or has a seizure; she can walk independently but school have asked she use her walker for safety if she has a seizure. 

17. Pausing here, both the schools that the children attend appear to have concerns about their attendance record since the children have been in the Father’s care.  In the Father’s case he did tender a bundle of medical certificates relating to the children’s absence from school, but these certificates are of little forensic weight because they are so unspecific.  Of concern to the Court is the Fathers’ statement to [Y] about seeing the school counsellor.  A further concern is the dissonance between the Father’s depiction of [X]’s needs for a wheelchair, and that observed by the school.

18. There is an extract that deals with the Father’s threats to the children which will be reproduced:

    With regards to threats to kill Ms Penner and children, Mr Penner said he was very angry, he believes that this was misunderstood by his friend due to false threats and he left to meet support worker.  Mr Penner has a number of community/professional supports in place for himself including psychiatrists, psychologists, home help, meals, mental health support workers.

    It is interesting to observe the record that the Father believed that “his friend” had misunderstood him, when it was his own grandmother. 

19. In relation to [X], the Father described her as mute and “selective mute”.  Nonetheless, the case worker records that [X] spoke with her and told her that she was happy with dad, does not want to go to mum’s.  Referring to Mr A, the mother’s boyfriend, [X] reported that he “drinks a lot – a large box a day ([X]’s timeframes unclear).  Mr A always films her, all day every day, but not in bedroom or bathroom”.  This statement is plainly inconsistent, of course, with the COPS entry of 17 October 2018, where the Police record that:  “The eldest and youngest girl had made allegations of PN2 (Mr A) taking photos or videos of them either getting dressed or in the shower.”

20. There is a record of the interview with the Mother and Mr A.  They apparently reported that they have only been dating for two months, do not live together, but he does stay a few nights a week.  The case worker records that the Mother became visibly upset in describing the violence in the relationship with the Father.  Indeed, Mr A reported that the Mother wakes up having nightmares about this.  The question of Mr A’s drinking was raised, and he admitted that he was recently booked for driving under the influence.

21. On 29 October 2018, I suspended the recovery order.  I obviously did not know then what I know now. 

22. On or about 3 November 2018, [X] had a number of seizures and was hospitalised in the children’s ward at Town D Hospital.  The Father asserts in his affidavit that [X] had about 40-50 seizures over that weekend.  She was discharged from Hospital on [date].  The Mother deposes that she was first informed about [X]’s hospitalisation on [date].

23. On [date] 2018, the Father was hospitalised as a result of experiencing a muscle weakness episode triggered by stress.  This information is contained in the Father’s Solicitor’s written submissions, dated 21 November 2018.  The submission states in relation to the Father’s hospitalisation that “the father will be discharged shortly”. 

24. The final objective evidence is found in the documents produced by School L, the school that [X] attends.  Perhaps the most useful record is a document entitled [X] Minutes 2018.  This document refers to three dates.  The first date is 28 March 2018 and refers to [X] having a lot of absences from school – indeed, more days absent than present.  The document records:

    …very interesting medical concerns as told by parents.  The paperwork from different doctors is contradictory between doctors, as well as from what doctors say to what has been seen at school.

    The second date is 21 September, and the context suggests it is in 2018.  The narrative states:

    There has been a marked improvement in [X]’s attendance during the second half of this term (term 3).  This seems to coincide with [X] living with her mother.  The school currently has no concerns about her attendance.

    It should be noted from the matters set out above that [X] did not go into her father’s care until 24 September 2018.

25. The third date is 26 October 2018.  Concerns were raised about [X]’s attendance.  She had only attended one and a half days in the first weeks of term.  The record notes as follows:

    Father seems to have reasons for her absence; illness and doctors/therapist appointments. 

    Team discussed concerns raised by [X]’s father regarding [X]’s wellbeing during her time living with her mother:  he stated that [X] had reported that she had been isolated from her peers in class because she had head lice and that [X], her mother, had refused treatment.

    When class staff were questioned about this, they were surprised.  At no time had [X] been isolated from her peers due to head lice.  And when the class SLSO informed [X]’s mother at the end of the day when she came to collect [X], her mother said that she would treat them straight away.

    He also suggested that [X]’s uniform is not well kept when [X] is in her mother’s care.

    Class staff did not notice any difference in [X]’s presentation.  If anything, they thought she seemed better presented.  When in her mother’s care, [X]’s attendance was much approved, and she seemed happy.

26. There is a separate file note, dated 27 September 2018, relating to [X].  The document is titled ‘Information from Class Staff’.  The note includes a number of points:  “attends school every day – previous high absenteeism – last month been in every day.  Happier in herself;  healthy lunch;  walking well;  participates well in class;  going to dad’s for weekend holidays – today onwards;  mum communicates with school”.

Orders in the best interests of the children

1. The children will benefit from having a meaningful relationship with both their mother and father.  Neither proposal adequately addresses this.  The Mother’s proposal for the children’s time with their father to be suspended in its entirety is not warranted on the evidence before the Court.  The Father’s proposal for [X] to decide when she spends time with her mother, and for the other children to spend time with their mother for limited day time periods in a public place, is unsupported by the evidence and would only meet the need to continue the children’s meaningful relationship with their mother in a superficial way.

2. The main issue in this case is the need to protect the children from the risk of harm.  Many potential risks of harm have been identified in the evidence and articulated below.  The Department of Family and Community Services has identified risks in each household.  Nonetheless, it also appears to find that each household is safe, at least according to their standards about risk of serious harm.  This Court is of the view that there are fewer risks of harm in the Mother’s household than in the Father’s.  All the matters of risk of harm in the Mother’s household raised by the Father appear to have been satisfactorily addressed with the Department.  That is the same conclusion from this Court’s perspective with this caveat.  Even the Mother seems to accept that her boyfriend Mr A drinks too much.  As far as the Court is concerned, that is a potential risk to the children.  None of the other matters raised about Mr A concern the Court, for the time being. 

3. Out of abundant caution, with a view to at least attempting to address the Father’s concerns, the Court will order that the Mother is to ensure that Mr A does not drink alcohol whilst in the presence of the children or is under the influence of alcohol when in their presence.  She is further to ensure that he does not enter the children’s bedrooms and the bathroom or bathrooms when the children are inside.  Moreover, the Mother is to ensure that Mr A is not to be involved in any way in any physical discipline of the children.  The Court will order the Mother to ensure that the children attend all their medical and associated appointments as recommended by their treating professionals.  Again, the main purpose of this order is to provide reassurance to the Father, but there is scant evidence to suggest that the Mother has not done everything she should be doing in this regard.

4. This Court has significant concerns about the Father’s capacity to properly parent these children.  He suffers from a serious mental health condition, schizophrenia, and the hospital records relating to his last admission suggest he was often resistant to the advice given by those treating him.  The material before the Court suggests that the Father has made at least two threats to kill the Mother and that those threats possibly extend to the Mother’s boyfriend Mr A and to self-harm.  What is unknown to the Court is whether these threats and, indeed, his seeming inability to regulate his emotions, including anger, are related to his schizophrenia. 

5. In these circumstances, the Court cannot be assured of the children’s safety in the Father’s care.  It is of no solace to know that the Father is living with his parents and, indeed, offers to remain there as a condition of the children remaining with him.  The Court knows nothing of his parents, other than incidental information gleaned from other sources, which suggest that they have a good relationship with the children.  But the Court does not know, for example, how much they know about the Father’s mental health, how much they know about the threats he has allegedly made, how seriously they take each of the above.  The Court knows little of their own health and circumstances.

1. But there are further concerns in relation to the Father, other than his acknowledged mental health issues and asserted violence.  There is material before the Court to suggest that he is in poor physical health, which may undermine his physical capacity to care for the children.  His failure to get the children to school since they have been in his care is also of great concern to the Court.  It seems unlikely that the children could be so persistently unwell whilst in their father’s care that they could not attend school, whereas they were not only consistently attending school in the Mother’s care but also, apparently, receiving appropriate medical treatment.  A possible related concern is what may appear to be some exaggeration by the father of [X]’s disability.

2. There is evidence to suggest that he has been inappropriately involving the children in discussions about their mother and possibly creating a false sense of fear.  These concerns were not highlighted in the Court’s examination of the evidence referred to above but can be found at places in the handwritten notes of the FaCS case worker’s interview with the children.

3. Indeed, this Court believes that there are concerns about the Father’s capacity to manage the children’s care, even when they spend time with him.  It is important, the Court believes, for him to have substantial and significant time with the children, but this will always need to be in the presence of one or both of the paternal grandparents, who must provide written undertakings to the Court in a form that is provided by the Independent Children’s Lawyer.  To be very clear in this regard, when the children are with the Father in his home, one of his parents must be there.  One of his parents must also be with the Father when he spends time with the children outside of the home.  This will, no doubt, be inconvenient.  It is this Court’s view, however, that the Father’s mental health concerns cannot be minimalised or trivialised.

4. The Court must take into account the views of the children.  Insofar as the Father’s case is, or infers, that [X] wants to live with him, the Court does not place any weight on her views.  [X] is clearly a girl with special needs who is caught up in the maelstrom of her parents’ conflict and who may well have been exposed to her father’s inappropriate conversations in this matter.  [X]’s views may well take on more weight at a later stage of these proceedings but not for now.

5. The children appear to have a good relationship with their parents.  Little is known about the paternal grandparents, other than the occasional glimpse in the evidence that they have played a significant role in the children’s lives.  This can be maintained through an order for the children to spend time with their father.  The Court does express its concerns about potentially unhealthy aspects of the Father’s relationship with the children.  This concern is recorded for the benefit of the Independent Children’s Lawyer, who will need to consider the expert evidence that will inevitably be needed in this case.  Is it possible, for example, that the Father’s relationship with the children is overly dependent?  This consideration does not inform the interim decision, which is clearly focused on risk of harm issues.

6. There is no issue about both parents having been involved in making decisions about the children in the past.  This is not a relevant consideration. 

7. The Court accepts that by making an order the effect of which is that the children return to their mother’s care, it is bringing about yet another significant change in their lives.  Nonetheless, this Court believes there is least risk for the children returning to their mother’s care, particularly with the protective Orders proposed to be made and at least until the Court can be better reassured about the Father’s mental health.

8. There seem no issues of practical difficulty and expense associated with the children spending time and communicating with their parents pursuant to these Orders. 

9. There are issues about parental capacities that need to be explored.  One potential issue is whether the Mother can adequately prioritise the children’s needs, both emotionally and physically.  The same issue relates to the Father.  As mentioned right at the beginning of these Reasons, however, the challenges associated with parenting these children must not be understated.

10. There are special needs considerations pertaining to the children that need to be explored.  Ideally, the parents would work cooperatively in this regard, but they seem to lack the capacity to do so. 

11. The Father is a proud Aboriginal man belonging to the [omitted] tribe.  The significance of this will need to be taken into account at a Final Hearing, but is noted that he gives very little evidence about the significance of this either to him or the children.

12. Issues of parental attitudes abound in this case.  These are matters to explore on another occasion.

13. The children need to be returned to their mother’s care forthwith.  Now that the Father is ably represented, one would hope that there is no need to lift the stay on the recovery order that was made.  It would reflect very poorly on the Father if it were necessary to secure the return of the children by way of recovery order now that the evidence has been comprehensively reviewed by the Court.  The children should live with their mother and resume the lives they had with her as much as possible as soon as possible.  The children should spend each alternate weekend with their father from after school on Friday to before school on Monday, thus minimising the need for the parents to come into contact with each other.  The Father’s weekend time should commence on the second weekend after the making of these Orders. 

14. The Christmas school holidays are imminent.  Subject to the requirement that the Father’s time with the children always be in the presence of the paternal grandparents, who provide an appropriate undertaking to the Court, there is no reason why he should not have half the school holidays.  This year, however, the children should spend time with their mother in the first half and their father in the second half.  The Father makes a proposal for final Orders in relation to Christmas and Boxing Day in his Response.  Those Orders seem appropriate but will, of course, be reversed so that he is spending time on the days and times that he proposed for the Mother.

15. The matter will return before the Court in February to hear from the Independent Children’s Lawyer who has been appointed.

16. Where changeover does not take place at a school, it should take place at a public place.  Thus, the Father can collect the children at the commencement of this time with them from the nearest McDonald’s restaurant to the Mother’s home, and the reverse situation applies at the conclusion of his time, with the Mother attending to collect the children from the McDonald’s family restaurant nearest to the Father’s home.

17. Whilst the Mother sought an order for sole parental responsibility, the Court is of the view that, at least for the time being, there is no need to make an order about parental responsibility.  The Court will readily change its view if there is evidence about difficulties in making decisions and arrangements about the children’s medical treatments.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:     11 December 2018