Perrett and Perrett

[2017] FamCA 1152

FAMILY COURT OF AUSTRALIA

PERRETT & PERRETT [2017] FamCA 1152

FAMILY LAW – CHILDREN – INTERIM HEARING – With whom children shall live – Where the mother sought a fourth change to the interim parental regime, reversing the children’s residence – Where the children live with the father and spend time with the mother supervised by the maternal grandmother – Where the applications were unnecessary as the proceedings will be fixed for trial in the next few months – Concluded the untested evidence did not establish that the children are in need of protection from harm caused by either party – Where the conflicting evidence of three expert psychiatrists’ cannot be tested in interim proceedings – Ordered the parties shall have equal shared parental responsibility – Ordered the children shall live with the father and spend the same amount of time with the mother, without the need for supervision.

Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA, 65DAA, 97
Family Law Rules 2004 (Cth) rr 1.04, 1.06, 1.07, 1.08, 13.3, 15.41, 15.44, 15.45, 15.49, 15.51, 15.52

Banks & Banks [2015] FamCAFC 36
Eaby & Speelman [2015] FamCAFC 104
Good & Goode (2006) FLC 93-286
Salah & Salah [2016] FamCAFC 100

APPLICANT: Mr Perrett

RESPONDENT: Ms Perrett

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 499 of 2017

DATE DELIVERED: 14 December 2017

PLACE DELIVERED: Newcastle/Adelaide

PLACE HEARD: Newcastle/Adelaide

JUDGMENT OF: Austin J

HEARING DATE: 14 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hemsley

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: Ms Cox

SOLICITOR FOR THE RESPONDENT: Alderman Redman Lawyers &Mediators

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. All former orders made by the Federal Circuit Court of Australia in respect of the following children are discharged:

   a.B, born … 2012; and

   b.C, born … 2014.

2. The parties shall have equal shared parental responsibility for the children.

3. The children shall live with the father.

1. The parties shall take all reasonable steps to ensure that the children spend time with the mother as follows:

   a.Each Wednesday from the conclusion of school (or 3:30 pm) until the commencement of school (or 9:00 am) on Thursday; and

   b.Each Friday from the conclusion of school (or 3:30 pm) until 12:00 noon on Saturday.

2. For the purpose of implementing Orders 3 and 4 hereof, the parties shall respectively ensure the children’s:

   a.Collection from the eldest child’s school whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   b.Return to the eldest child’s school whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   c.At the D Town in South Australia

3. Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 50 metres of the former matrimonial home without the express written consent of the mother.

4. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

5. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

1. Save as to costs, otherwise:

   a.The Application in a Case filed on 10 November 2017 is dismissed;

   b.The Response to an Application in a Case filed on 5 December 2017 is dismissed; and

   c.Any and all other outstanding applications for interim relief are dismissed.

2. No order as to costs.

IT IS FURTHER ORDERED THAT

1. The parties’ respective applications pursuant to Part VII of the Family Law Act are listed for trial at 10:00 am on Monday, 9 April 2018, in the Adelaide Registry of the Family Court of Australia for a period of five days. 

1. The setting down and trial fees for the trial pertaining to the parties’ applications under Part VII of the Family Law Act shall be paid by the parties in equal shares, within one month of the date of these orders.

2. The applicant father shall file and serve any Amended Application by Friday, 19 January 2018.

3. The respondent mother shall file and serve any Amended Response by Friday, 2 February 2018.

4. The parties shall file and serve the affidavits upon which they rely at trial by Friday, 9 March 2018.

5. Leave is granted to the applicant father to file and serve one affidavit for himself only.

1. Leave is granted to the respondent mother to file and serve one affidavit for each of the following persons:

   a.Herself; and

   b.The Maternal Grandmother

2. Leave is granted to the father to rely upon the report of Dr F dated 21 June 2017 as adversarial expert evidence, provided he ensures Dr F is available for cross examination at trial.

3. Leave is granted to the father to issue and serve upon Dr F a subpoena to give evidence at trial.

1. Leave is granted to the mother to rely upon the affidavit of Dr E filed on 10 November 2017 as adversarial expert evidence, provided she ensures Dr E is available for cross examination at trial.

1. Leave is granted to the parties and the Independent Children’s Lawyer to rely upon the two reports of Dr G dated 27 March 2017 as single expert evidence.

1. The parties and Independent Children’s Lawyer shall forthwith notify the single expert, adversarial experts and the family consultant in writing of the trial dates and confirm the availability of the single expert, adversarial experts and the family consultant to give evidence on those dates.

1. Within 28 days hereof the parties shall furnish to the single expert and adversarial experts copies of Divisions 15.5.5 and 15.5.7 of the Family Law Rules.

1. Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits, without the leave of the court.

1. Leave is granted to the parties and the Independent Children’s Lawyer to issue update subpoenae to any person or entity to whom a subpoena has been issued in the past.

2. Leave is granted to the father to issue a subpoena to;

   a.The Proper Officer of Medicare;

   b.Dr H;

   c.Dr J;

   d.Dr K; and

   e.The Commissioner of South Australia Police.

1. The parties and the Independent Children’s Lawyer shall by Wednesday, 4 April 2018, file and serve upon one another, a Case Outline Document containing:

   a.Short Summary of Argument; and

   b.List of Authorities.

2. If either party should default in the compliance with these orders the other party may, on notice being given to the other party and the Independent Children’s Lawyer, seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2) of the Family Law Rules.

3. Liberty to restore the matter to the list on seven days’ notice for further procedural directions.

NOTATIONS

A.The mother informs the Court that she is still contemplating the possibility of a treating psychologist being called as a witness in her case at trial.  In the event leave is required to do so she will avail herself of the Order granting liberty to restore the matter to the list.

B.The parties’ respective applications for property settlement relief under Part VIII of the Family Law Act remain before the Registrar for further procedural directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Perrett & Perrett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: ADC 499 of 2017

Mr Perrett

Applicant

And

Ms Perrett

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Pending before the Court are applications to vary interim parenting orders pertaining to the two children of the mother and father, together with some subsidiary applications for interlocutory procedural orders. 

2. The substantive proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) began before the Federal Circuit Court in February 2017, but were transferred to this Court in July 2017 after at least four court events before the Federal Circuit Court. The parties now want another interim hearing.

3. The proceedings are keenly contested but the parties need to re-evaluate their approach to this litigation. The Act mandates that the proceedings should be conducted without undue formality and not be protracted (s 97(3)). The Family Law Rules 2004 (Cth) (“the Rules”) additionally require that each case be resolved in a just and timely manner at reasonable cost to the parties and the Court, which objective the litigants and their lawyers are obliged to help attain (rr 1.04, 1.06, 1.07 and 1.08). The multiplicity of interlocutory disputes so far foisted by the parties upon both the Federal Circuit Court and this Court is hardly consistent with those obligations.

4. In an overall sense, this dispute was really quite unnecessary, because I intend to fix the proceedings for final trial less than four months hence and the parties seem to think the Court would be impulsively drawn to certain conclusions, principally upon the premise of conflicted and untested expert evidence, when the proper analysis of that evidence is a matter for the trial.

Applications and Evidence

1. The mother sought the revised interim parenting orders set out within her Application in a Case filed on 10 November 2017.

2. Although she sought that her application be “heard on an urgent basis”, she rejected the hearing offered to her on 30 November 2017. She then sought an adjournment and, with the father’s consent, it was granted. The hearing was re-listed today instead (14 December 2017).

3. The father sought dismissal of the mother’s Application, but also the interim parenting and other procedural orders set out in his Response to Application in a Case filed on 5 December 2017. 

4. The Independent Children’s Lawyer forecast broad support for the father’s opposition to any change in the existing parenting regime, but the Independent Children’s Lawyer’s preliminary support for the other procedural orders proposed by the father subsided. 

5. By agreement between the parties and the Independent Children’s Lawyer, the evidence read to determine the disputes comprised:

   (a)The mother’s affidavits filed on 10 November and 13 December 2017;

   (b)The affidavit of Dr E filed on 10 November 2017;

   (c)The father’s affidavit filed on 5 December 2017;

   (d)The report of Dr G dated 27 March 2017 (pertaining to the mother);

   (e)The report of Dr G dated 27 March 2017 (pertaining to the father);

   (f)The report of Dr F dated 21 June 2017; and

   (g)The Family Report dated 28 June 2017.

6. During submissions, the father objected to the mother’s reliance upon Dr E’s affidavit, but it was too late. Before the submissions commenced, the evidence was identified, settled and closed. An opportunity was expressly offered to counsel to raise any administrative issue before the submissions were commenced and the father was silent. It was acknowledged the mother was not put on notice of the father’s intended objection to the admissibility of Dr E’s evidence until his submissions were commenced. The mother was, therefore, denied the procedural fairness of forewarning over the issue. Dr E’s affidavit is admissible for the purpose of the interim hearing.

History

1. The parties commenced cohabitation in 2010 and married in 2011. 

2. The mother has a child from a former relationship (Dr L, now 13 years), who lived with the parties. 

3. The parties’ two children, who are the subject of these proceedings, were born in 2012 and 2014 and are now respectively aged five and three years. 

4. The parties separated in January 2017 when the mother vacated the former matrimonial home with Dr L and the children. Later, the father vacated the former matrimonial home and the mother returned to live there with Dr L and the children. The father lives relatively nearby.

5. When these proceedings started, the mother sought that the children spend very limited supervised time with the father. She contended the father had been violent to her and Dr L and, further, that the children were at risk of sexual abuse by the father.

6. Conversely, the father sought that the children instead live with him and spend only supervised time with the mother. He contended the mother was possessive of the children and undermined their relationships with him. He theorised she was jealous of the quality of his relationships with the children and worried her role as primary care was thereby threatened. If his preferred proposal found no favour, he alternatively proposed the children live with the parties for equal time.

7. In March 2017, the Federal Circuit Court ordered that the children live with the mother in the former matrimonial home and that they spend unsupervised time with the father. The parties were also ordered to procure reports from a designated psychiatrist (Dr G) about their respective psychiatric health. Presumably, Dr G was appointed as the “Court expert” under r 15.09 of the Federal Circuit Court Rules.

8. Dr G produced those two reports within a couple of weeks. In respect of the mother, Dr G did not identify any psychiatric or psychological affectation. Similarly, in respect of the father, he found no evidence of a current mental disorder.  Dr G concluded as follows about the parties:

   Rather than a medical problem, I suspect there is some form of psychological or relationship issue that has driven this couple apart.

9. Dr G identified no impediment to either party being a competent parent. The proceedings were back before the Federal Circuit Court in June 2017, at which time three things happened. First, the mother was ordered to procure another psychiatric report. Second, orders were made for the children to live with the father for nearly, but not quite, equal time. Third, an order was made for the preparation of a family report under s 62G of the Act.

10. The mother was ordered to obtain another psychiatric report about the “current state of her mental health” from a psychiatrist chosen by her. Apparently, material produced in answer to subpoenae issued by the father revealed the mother previously did suffer, or may have suffered, from depression, paranoia or delusions, but the mother earlier reported to Dr G she had “no significant history of major mental illness”. 

11. It remains quite unclear whether the new psychiatrist, whom the mother was free to choose, was being appointed by the Federal Circuit Court as a substitute “Court expert”, an additional “Court expert”, or as an adversarial expert whom the mother had leave to call as a witness in her case. In any event, the mother chose Dr F. She consulted him and he produced a report several weeks later. Relevantly, he reported:

    (a)She had no “overt psychotic symptoms such as delusions or perceptual abnormalities, although many of her thoughts sounded paranoid”;

    (b)She was “generally suspicious and some of her thoughts seemed paranoid”, which he considered “was influencing the way she perceived events”;

    (c)It is “difficult to know” whether she is “suffering from a psychiatric disorder”;

    (d)In his clinical opinion, “based upon a reasonable degree of medical probability”, the mother is suffering either from “a paranoid personality disorder or perhaps a delusional order (persecutory sub-type)”;

    (e)In his opinion, if it is accepted the mother is having paranoid thoughts, then she “probably should not have unsupervised time with her children”; and

    (f)The mother would benefit from “seeing a psychiatrist for psychotherapy and to have an anti-psychotic agent”.

12. Dr F’s report and the Family Report were both available by the time the proceedings were back before the Federal Circuit Court in July 2017. Presumably, on the strength of Dr F’s opinions, fresh interim parenting orders were made. Essentially, they provided for the children to live with the mother for two nights each week under the supervision of the maternal grandmother, but to otherwise live with the father. 

13. In the mother’s own words, she was “devastated” by the decision. She went back to her general practitioner, who referred her to a different psychiatrist (Dr E) for the treatment recommended by D F. The mother did not explain why she did not return to Dr F for the treatment, given she chose him in the first place. The most obvious inference is that she was dissatisfied with his opinions. 

14. In any event, the mother first consulted Dr E in August 2017. It seems their professional association was not intended to be entirely therapeutic because, about two weeks before the mother’s first appointment, the mother’s solicitors wrote to Dr E requesting his report about her for use as evidence in these proceedings.

15. The mother deposed that, after her third consultation with Dr E, he told her he was of the opinion she was not suffering from any psychiatric disorder. As requested, Dr E reported to the mother’s solicitors in October 2017 that:

    (a)There were no definite signs of psychosis or thought disorder;

    (b)The mother did not express any ideas that “would warrant the description of paranoid”;

    (c)He “could not convince (himself)” that the mother shows any signs of either “a diagnosable psychiatric disorder or a diagnosable personality disorder”;

    (d)He does not believe the mother is “in any need of psychiatric treatment”; and

    (e)It would be useful for the mother to “keep up her sessions with her psychologist”.

16. Armed with such fresh psychiatric opinion evidence, the mother invited the father and Independent Children’s Lawyer to re-visit the interim parenting orders made in July 2017. They declined. The father believes Dr E was not given all of the material previously given to Drs G and F to review, which he considers diminishes the weight which can be safely reposed in his opinions.

17. The unwillingness of the father and Independent Children’s Lawyer to voluntarily re-visit the interim orders made in July 2017 caused the mother to file her Application in a Case in November 2017 seeking urgent revision of the orders on the strength of Dr E’s fresh opinions.

Legal Principles

1. Orders in respect of children are made under Part VII of the Act where the meaning of a parenting order is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)) and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)).

1. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or, alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, but the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Procedure

1. The procedure for conducting an interim hearing has been authoritatively established by the Full Court. In Good & Goode (2006) FLC 93-286, the Full Court said (at [68]):

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

2. In interim disputes over parenting orders the Court must remain alive to controversy, the ultimate resolution of which may have a significant bearing upon the determination of orders that meet the children’s best interests. Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue (see Salah & Salah [2016] FamCAFC 100 at [34]-[46]; Eaby & Speelman [2015] FamCAFC 104 at [18]-[19]).

3. In Banks & Banks [2015] FamCAFC 36 (at [47]-[50]), the Full Court noted that a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. Not every factor under s 60CC factor need be discussed in that process.

Best Interests of the Children

Section 60CC(2)(a)

1. No submission was made by either party or the Independent Children’s Lawyer to engage s 60CC(2)(a) as an influential consideration. Inferentially at least, the children both enjoy meaningful relationships with both parties from which they derive benefit. The current interim orders made in July 2017 enable the children to maintain their important filial relationships.

2. Although the mother seems to think the children’s attachment to her is stronger than their attachment to the father, she has nothing to fear about the strength of the children’s relationships with the father. The Family Consultant saw the eldest child run to the father and embrace him in a hug and the youngest child run and jump into the father’s open arms. They obviously love him just as they love her.

Section 60CC(2)(b)

1. The mother raised concerns about the father’s perpetration of family violence and child abuse. 

2. As to past family violence, she told the Family Consultant it was generally characterised as “really subtle put downs”, though the father admitted lashing out on rare occasions. He admitted he once put his fist through a wall, once cut up his own pyjamas, and occasionally slammed his fist on the table when Dr L disobeyed the mother’s repeated commands. Such behaviour undoubtedly constitutes family violence (s 4AB), but the mother no longer contends it impinges upon the family because she now proposes the children should spend unsupervised time with the father for four nights per fortnight.

3. The mother told the Family Consultant she remained concerned the father sexually abused the child “because the children told [her] and there’s no reason not to believe them”. The mother previously reported the allegations of the children’s sexual abuse to police for investigation, but the allegations were not substantiated. The father is not apparently under any current suspicion by the police. Documents produced on subpoena by the police, which were viewed by and reported upon by the Family Consultant, suggest they believe the mother is “almost delusional” and her behaviour with the children is fomenting the abuse allegations. The Family Consultant said she had had no “significant concern” the children were sexually abused by the father or that they are at any risk of harm in his care. One must also wonder whether the mother still genuinely adheres to her concern about the children’s sexual abuse by the father, for otherwise why would she now propose that they spend four nights per fortnight in his care without the need for supervision?

4. The father told the Family Consultant he thought the mother might “do something drastic” with the children, which he implied meant she would murder them and then commit suicide. He may genuinely believe that, but the available psychiatric evidence from three different psychiatrists does not objectively support his belief. 

5. On the available evidence, the children do not need protection from either physical or psychological harm by reason of their subjection or exposure to family violence or abuse in the care of either party. For those reasons, s 60CC(2)(b) is not engaged as an influential consideration in this matter.

Section 60CC(3)

1. Both parties seem able to capably provide for the children’s physical and intellectual needs. 

2. The Family Consultant considered the father was “emotionally mature, sensitive to the children’s needs and capable of meeting these needs”.

3. By comparison, the mother’s capacity to provide for the children’s needs is arguably not as well developed if she cannot genuinely support the children’s relationships with the father. The evidence so far available to the Court does not justify any curtailment of the children’s relationships with the father on account of the concerns purportedly held by the mother.

4. The Court is enjoined to contain litigation over children and to make orders that promote their stability. That is an important consideration in this case. Already, within this calendar year, the children experienced:

   (a)The parental separation and their removal by the mother from the family home in January 2017;

   (b)Their return to the family home with the mother in March 2017;

   (c)A parental regime established by interim orders made in March 2017;

   (d)A second parental regime established by interim orders made in June 2017; and

   (e)A third parental regime, essentially involving reversal of their residence with the mother, by the interim orders made in July 2017.

5. The mother now wants a fourth parental regime, reversing the children’s residence again. At least inferentially, she is seeking orders which she desires, not orders that are necessarily reflective of the children’s best interests. Aside from the procurement of Dr E’s report in October 2017, nothing has changed since the orders were last made in July 2017 to warrant their review. 

6. There is another procedural consideration the mother has overlooked. The proceedings are now before this Court, not the Federal Circuit Court. The Family Law Rules apply. The Federal Circuit Court Rules no longer apply. She purports to unilaterally rely upon the expert evidence of Dr E, but he has not been appointed as a single expert, either by Court order or with the consent of the father and Independent Children’s Lawyer (rr 15.44, 15.45). Nor has she been granted leave to rely upon Dr E as an adversarial expert in the proceedings (rr 15.49, 15.51 and 15.52). 

7. The mother submitted Dr E’s adversarial expert evidence is admissible without the need for any leave, because it falls within the confines of r 15.41. Assuming for the moment that Dr E is a genuine therapeutic expert and not a forensic expert, about which issue I have already made comment, perhaps some of his evidence is admissible under r 15.41, however, some of it is clearly not. For example, Dr E offers the following opinion in his report:

   I believe that this has led [the mother] to behave in an increasingly nurturing and protective manner towards her children in the hope of shielding them from any perceived dangers…I do not, nevertheless, feel that these reactions [by the mother] are particularly surprising. I find it difficult to imagine that they are likely to have damaged the children in any way.

8. Those opinions are the subject of serious contest in these proceedings, as is evident from the father’s contention that the mother unreasonably pursues false allegations of abuse against him and acts to undermine the children’s relationships with him. 

9. By reason of orders made by the Federal Circuit Court, expert evidence has been adduced from Drs G and F. The mother’s procurement of the report from Dr E complicates the matrix of expert evidence and, even if it would now be unfair to deny her permission to rely upon it due to its relevance to the current interim dispute, she is mistaken if she assumes Dr E’s evidence necessarily trumps that given by Drs G and F when none of their evidence has been tested in cross-examination.

Conclusions and Orders

1. It is necessary to return to the presumption of equal shared parental responsibility applied pursuant to s 61DA(1) of the Act. That presumption is rebutted because, by reasons of the father’s admissions, there are reasonable grounds to believe he engaged in family violence (s 61DA(2)(b)). Although the presumption of equal shared parental responsibility does not thereby apply, it does not mean the Court is precluded from making such an order if an order to that effect would serve the children’s best interests.

2. Although application of the presumption of equal shared parental responsibility is the first consideration in any parenting proceedings, it was not the subject of a single submission by either party or the Independent Children’s Lawyer. According to the Family Report, both parties reported to the Family Consultant that they “mainly communicate via the communication book with relative effectiveness”. The correctness of that evidence was not challenged in any of the other evidence placed before the Court by the parties or in any submission made by either party or the Independent Children’s Lawyer. I am satisfied that, given the parties feel able to communicate with one another over important issues related to the children, albeit mainly confined to written communication, it is in the children’s best interests for the parties to remain engaged in a substantial way with decisions about “major long-term issues” pertaining to the children’s lives. For those reasons, an order for equal shared parental responsibility will be made. As a consequence, s 65DAA of the Act is engaged.

3. Neither party nor the Independent Children’s Lawyer contended that an order for the children to live with each party for equal time would be in the children’s best interests or reasonably practicable. In fact, they both maintained contrary positions. They both maintained the proposal for the children to live primarily with one but to spend substantial and significant time with the other. That mirrored the proposal of the Independent Children’s Lawyer, who endorsed the proposal made by the father. 

4. The mother proposed that the children live with her and spend four nights per fortnight with the father. Conversely, the father proposed that the children live with him and continue to spend two nights per week with the mother, consistently with the orders previously made in July 2017. For all intents and purposes, their proposals are mirror images. 

5. I am satisfied it would be in the children’s best interests and also reasonably practicable for them to live with one party and to spend substantial and significant time with the other. For reasons to which I have already adverted, I see no reason to disturb the parental regime instituted by the Federal Circuit Court in July 2017, under which regime the children live with the father and spend substantial and significant time with the mother. 

6. Given the disparity of professional opinion evidence between Drs G, F and E, there is no longer any evidentiary justification for the children to be supervised by the maternal grandmother while in the mother’s care. The imposition of supervision only occurred because of the expression of untested opinion by Dr F. Although similarly untested, the expressed opinions of Drs G and E do not correlate. In my view, the evidence does not warrant any other changes to the orders made on 10 July 2017 and so the parental regime established by those orders will continue (save for the dispensation of the need for supervision) until final trial, which I expect to be only several months hence.

7. The father sought variation of the existing parenting regime to accommodate his plans for the children over the upcoming Christmas period. I decline to make any change to accommodate that desire, which is clearly opposed by the mother. The father’s counsel conceded during submissions that “the orders of July 2017 should be maintained”. I agree. For that reason, there will be no variation for the Christmas period. The children are only five and three years of age. A regime was established only months ago which was clearly designed to ensure that they regularly spend substantial amounts of time with the mother, assessed at two nights per week. No good reason has been advanced for any variation to that arrangement.

8. The father sought an order compelling the mother to attend upon Dr F to obtain an updated report for final trial. She does not wish to do so and such an order, in my view, has no utility. It will only unnecessarily multiply the conflicting psychiatric evidence. The father acknowledges the mother has not undertaken any of the psychiatric or psychological treatment recommended by Dr F, so there is nothing to be gained by getting an updated report within only several months of his first report. In all likelihood, it will say nothing different.

9. The father sought an order restraining the mother from recording the children’s handovers. He alleged that either the mother or the maternal grandmother did so, but he remains uncertain as to whether the children are cognisant of that fact. Although the evidence advanced by the mother at this interim hearing is arguably equivocal, her counsel announced her resolute denial that either she or the maternal grandmother record the children’s handovers between the parties. There is, therefore, a serious underlying factual dispute. I intend to make no order and refuse the application of the father. If it is ultimately proven at trial that she has done so, it will likely engender a submission her parenting capacity is impaired if she lacks the insight to understand that such conduct is liable to exert pressure upon the children by making them even more aware of the acute conflict between the parties. 

10. The father sought an order compelling the mother to disclose the names of all medical providers she and the children have consulted since the parties’ separation in January 2017. The revelation of such information is clearly important, but the application made for such an order was entirely precipitous. The parties have an obligation of disclosure under the Rules. If the father is not satisfied the mother has fully and comprehensively disclosed that information, he is entitled to write and ask her to provide it. The father conceded he had not yet done so. Even if he writes to the mother’s solicitor and asks for the provision of such information and it is not provided, he has a right to interrogate the mother under Part 13.3 of the Rules. Even if he is dissatisfied with the answers she provides, a subpoena issued to Medicare should conveniently expose the names and contact details of all medical providers either she or the children have consulted. The father’s application in advance of those steps was entirely unwarranted.

11. For those reasons, I make the following orders.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 14 December 2017.

Associate: 

Date:  8 March 2018