Picken & Slater (No 2)
[2024] FedCFamC1F 120
•5 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Picken & Slater (No 2) [2024] FedCFamC1F 120
File number(s): CAC 1088 of 2023 Judgment of: GILL J Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – PARENTING – Interim consent orders – Assessment of risk – Court’s role in actively monitoring and supporting compliance with interim consent orders directed to therapeutic intervention – The matter relisted in 5 and 9 months time – Orders for psychological treatment of the mother and father
FAMILY LAW – PROPERTY – Final consent orders – Adjustment in favour of the wife – Superannuation split – Requirement to give procedural fairness to the trustee of the super fund
Legislation: Family Law Act 1975 (Cth) Cases cited: Eastley & Eastley [2022] FedCFamC1A 101
Isles & Nelissen (2022) 65 Fam LR 288
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 4 & 5 March 2024 Place: Canberra Counsel for the Applicant: Mr Haddock Solicitor for the Applicant: Infinity Legal Counsel for the Respondent: Mr Lawrence Solicitor for the Respondent: Yellow Legal Counsel for the Independent Children's Lawyer: Mr Smith Solicitor for the Independent Children's Lawyer: Bowral Legal ORDERS
CAC 1088 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PICKEN
Applicant
AND: MS SLATER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.On the filing of the husband’s superannuation member statement, and on the filing of material that demonstrates that procedural fairness has been accorded to the trustee of his superannuation fund, orders will be made in respect of the parties’ property interests in accordance with exhibit C1.
IT IS ORDERED, BY CONSENT, UNTIL FURTHER ORDER:
2.That the parties have equal shared parental responsibility for the children Y and Z born 2019 and X born 2018.
3.That all previous Orders be discharged.
4.That from the date of these Orders until 1 May 2024, the children live with the mother and spend time with the father as follows:
(a)In week one, from 9am to 5pm both Saturday and Sunday; and
(b)In week two, from 3pm to 7pm Tuesday and 3pm to 7:00pm Friday; and
(c)At other times as agreed between the parties.
5.Thereafter, and provided the father no longer lives in a ‘share house’, the children spend time with their parents each fortnight as follows:
(a)During Week 1 from 9:00am on Wednesday to 9:00am on Friday with the father;
(b)During Week 2 from 3:00pm on Wednesday to 9:00am on Monday with the father;
(c)At all other times with the mother; and
(d)At other times as agreed between the parties in writing.
School Holidays
6.Upon Y and Z commencing year one at primary school, and thereafter:
(a)During Term 1, 2 and 3 gazetted school holiday periods each year:
(i)In even-numbered years, the children spend time with the mother from the conclusion of school on the last school day of the term until 12:00pm on the middle Saturday in the school holiday period, then with the father from 12:00pm on the middle Saturday in the school holiday period until 5:00pm on the Saturday immediately before the commencement of the new school term from when the usual contact arrangements shall resume on the following Monday.
(ii)In odd-numbered years, the children spend time with the father from the conclusion of school on the last school day of the term until 12:00pm on the middle Saturday in the school holiday period, then with the mother from 12:00pm on the middle Saturday in the school holiday period until 5:00pm on the Saturday immediately before the commencement of the new school term from when the usual contact arrangements shall resume on the following Monday.
(b)In the December/January school holiday period each year:
(i)In even-numbered years, the children spend time with the father as follows:
A.from the conclusion of school on the last school day of the year for a period of two consecutive weeks until 5:00pm on a Saturday;
B.during the second last week of the gazetted school holiday period in January commencing on 12:00pm Saturday until 12:00pm the following Saturday; and
C.at all other times with the mother.
(ii)In odd-numbered years, the children spend time with the mother as follows:
A.from the conclusion of school on the last school day of the year for a period of two consecutive weeks until 5:00pm on a Saturday;
B.during the second last week of the gazetted school holiday period in January commencing on 12:00pm Saturday until 12:00pm the following Saturday; and
C.at all other times with the father.
(c)At alternate times as agreed between the parties in writing.
Special Occasions
7.Notwithstanding the above orders, the children spend time on special occasions with each parent as follows:
(a)With the mother on Mothers’ Day each year from 9:00am until 6:00pm if the children is not with the mother already on this day and the father will make the children available on this day unless already agreed between the parties in writing.
(b)With the father on Fathers’ Day each year from 9:00am until 6:00pm if the children is not with the father already on this day and the mother will make the children available on this day unless already agreed between the parents in writing.
(c)On the children’s birthdays, with the parent who is not ordered to spend regular time with the children at 3:00pm or following the conclusion of childcare/school that day, from 3:00pm to 6:00pm, and then with the other parent in accordance with the usual regular time arrangements.
(d)The children spend time with the parents for Christmas:
(i)In even-numbered years, the children spend time with the father from 3:00pm on 23 December until 3:00pm on 25 December, and with the mother from 3:00pm on 25 December to 5:00pm on 27 December from when the usual contact arrangements shall resume.
(ii)In odd numbered years, the children spend time with the mother from 3:00pm on 23 December until 3:00pm on 25 December, and with the father from 3:00pm on 25 December to 5:00pm on 27 December from when the usual contact arrangements shall resume.
(e)The children spend time with the parents for Easter:
(i)In even-numbered years, the children spend time with the father from 9:00am on Good Friday until 12 noon on Easter Sunday, and with the mother from 12 noon on Easter Sunday to 9:00am on Easter Tuesday from when the usual contact arrangements shall resume.
(ii)In odd-numbered years, the children shall spend time with the mother from 9:00am on Good Friday until 12 noon on Easter Sunday, and with the father from 12 noon on Easter Sunday to 9:00am on Easter Tuesday from when the usual contact arrangements shall resume.
Changeover
8.For the purpose of these Orders, unless otherwise agreed by the parents, changeover shall be at the children’s daycare, pre-school or school.
9.If the children are not attending daycare, preschool or school on the scheduled changeover day then failing agreement between the parents on a location, changeover shall be Suburb F McDonalds car park, G Street Suburb F, Region E.
School, Education and Medical
10.That both parents be listed as an emergency or priority contact at any educational facility, extracurricular activity or any school attended by the children and on any enrolment forms and to equally be at liberty to correspond with these institutions and be able to receive and liaise with the educational institutions regarding the children.
11.That both parents shall provide the name of one emergency contact each to any educational facility, extracurricular activity or any school attended by the children and shall authorise that person to collect the children from the educational facility while the children is in that parent’s care.
12.That both parents shall authorise by these Orders, any school or other educational facility attended by the children, to provide to either parent, upon request, any reports, information or photographs relating to the children at the requesting parent’s cost.
13.Both parents be at liberty to attend parent teacher interviews and meetings or any scheduled educational meetings.
14.Both parents and the children’s extended maternal and paternal families be at liberty to attend the children’s sporting, extracurricular or organised care activities on game days in which both parents would usually attend but will do all things reasonably possible to stay 10m apart.
15.For the purpose of Order 14 the following applies:
(a)the parent who does not have care of the children, will advise the other parent the day prior if they and/or extended family intend to be present on game day.
(b)that both parents shall not attend routine training or practice and it is the responsibility of the parent who has the care of the children to attend the training/practice.
(c)that both parents will use their best endeavours to remain 10m apart.
16.Both parents and the children’s extended maternal and paternal families be at liberty to attend the children’s school assemblies, or any other such gatherings at the children’s school where the children are participating, regardless of which parent the children are living with pursuant to these Orders, the parents will advise each other the day prior if they are and/or the extended family are attending the school event.
17.That both parents shall keep the other informed at all times of their contact phone number and email address and shall notify the other parent in respect to any change of such contact details within 48 hours or as soon as practicable to do so.
18.That both parents shall keep the other parent informed of any treating medical or other allied health practitioners to allow the other parent to be able to access information if they should so seek, and at their own cost.
19.That both parents be listed as an emergency or priority contact as a parent at any medical facility or Doctor’s surgery attended by the children and on any forms completed on behalf of the children.
20.That both parents shall immediately inform the other parent of any medical emergency involving the children including the name and contact details of any treating medical professional and shall authorise the other parent to be able to communicate with any treating practitioners to receive information about the children.
21.For the purpose of Order 20, the parents note that the attendance of the children at a medical appointment with their General Practitioner is not a medical emergency, but that each parent must be notified immediately of any attendance at hospital for the children or when the children are prescribed new medication.
22.Both parents shall inform the other parent in the event the children are treated by a medical practitioner, including a GP, and the name of the GP and the GP’s practice, within 24 hours of the children attending the medical practice.
23.That both parents agree that the children shall continue to live with both of their parents in accordance with these Orders in the event either of them become unwell.
24.Both parents be at liberty to be at any medical or treating facility where the children are receiving treatment for any medical emergency.
25.That both parents ensure the children attend all scheduled extracurricular activities while they are in their care.
Travel
26.That should either parent wish to take the children interstate (more than 500km outside of Region E and the surrounding region), or overseas, they may do so provided they satisfy the following conditions:
(a)In the case of interstate travel that is a distance of further than 500km outside of Region E and the surrounding region and for a period of six (6) consecutive days or more, the parents will provide the other parent with 2 days notice of such travel and the city or town of the travel.
(b)In the case of international travel:
(i)the travel is to a country that is a party to the Hague Convention on International Abduction of children, unless otherwise agreed in writing and consent will not be unreasonably withheld;
(ii)the parents will provide to the other written notice of their intention to take the children out of Australia no less than sixty days prior to departure;
(iii)such travel will not take place without the consent of the other parent and that both parents will reasonably consider the request of the other parent and be on the basis that each parent has provided to the other the following details:
A.An itinerary detailing the departure date and return date, flight codes, times and destination(s);
B.A landline or mobile telephone number and email address at which the children and travelling parent can be contacted;
C.A certificate evidencing all required travel vaccinations;
D.Accommodation details; and
E.A copy of the travel insurance policy obtained and evidence of payment of this, airline tickets and all accommodation;
F.The travelling parent will be responsible for the children’s travel and accommodation costs;
G.That for the period the children are overseas, the non travelling parent is permitted to have some reasonable means of communication with the children and that the travelling parent facilitate this request on a schedule to be agreed prior to travel;
H.IT IS NOTED THAT neither parent will unreasonably withhold their consent.
Communication
27.That the parents shall ensure the children communicate with the other parent at all reasonable times, and failing agreement, the caring parent shall:
(a)provide a telephone or other communication device to enable the children to communicate with the other parent at times agreed between the parents, and in the absence of agreement every Friday between 6:00pm and 6:30pm;
(b)provide a setting for the children in which such communications can be private; and
(c)allow the children to contact the other parent if they express a wish to do so and assist the children by facilitating such requests as reasonably practicable to do so.
28.The parents shall communicate in regard to issues for the children by the Talking Parents App unless it is an emergency or urgent communication in which case telephone or text message is permitted.
Restraints
29.That the mother is prohibited from presenting the children to any medical practitioner, police officer or child welfare authority without the express written consent of the ICL or the father or except in the case of an emergency.
30.The parents be restrained and an injunction issue restraining the parents from:
(a)Discussing inappropriate adult issues, including the family law proceedings, the mother’s allegations of sexual abuse of the children, to the children, in front of the children or where the children can hear, nor allow another person to do so;
(b)Questioning the children about the other party’s parenting of the children;
(c)Examining, or causing someone else to examine, the children for evidence of abuse, mistreatment or family violence, except at the behest of the child welfare authority or police in which circumstances the parent is to forthwith notify the Independent Children's Lawyer and the other parent of such;
(d)Consuming illicit drugs and alcohol while the children are in their care or 24 hours prior or allowing the children to be exposed to a person consuming illicit drugs;
(e)Exposing the children to abuse or family violence (including verbal, psychological and emotional abuse), and that each party will take all measures necessary to remove the children from an incident of family violence should such circumstances arise; and
(f)Using physical discipline on the children or allowing any other person to do so.
Other
31.That for a period of two years commencing from the date of these Orders, the father will:
(a)Attend on a psychologist and psychiatrist with such frequency as may be recommended by the psychologist or psychiatrist; and
(b)Obtain a report from his treating psychologist and psychiatrist every 3 calendar months and provide a copy of the report to the mother. The report shall state whether the father has been attending appointments as recommended by the psychologist or psychiatrist, has complied with any treatment recommendations made by the psychologist or psychiatrist and whether there are any concerns that the status of the father’s mental health at the time of the Report may negatively impact upon the father’s parenting capacity.
32.That the father shall engage with drug and alcohol counselling and shall attend, in accordance with the recommendations of his counsellor.
33.Subject to a grant of legal aid through the Legal Aid Commission, the father shall undergo hair follicle testing and for those purposes:
(a)The tests shall be done within 21 days of the date of these Orders and in six months’ time of the date of these orders;
(b)the tests are to cover a 6 months period;
(c)the test shall cover both alcohol and illicit drugs; and
(d)The father is restrained from cutting, bleaching, shaving or dying his hair from the date of these orders until the date of the hair follicle testing such that it interferes with the testing.
34.That or a period of two years commencing from the date of these Orders, the mother will:
(a)Attend on a psychologist and psychiatrist regularly, or with such frequency as may be recommended by the psychologist or psychiatrist; and
(b)Obtain a report from her treating psychologist and psychiatrist every 3 calendar months and provide a copy of the report to the father. The report shall state whether the mother has been attending regular appointments as recommended by the psychologist or psychiatrist, has complied with any treatment recommendations made by the psychologist or psychiatrist and whether there are any concerns that the status of the mother’s mental health at the time of the Report may negatively impact upon the mother’s parenting capacity.
35.That the reports of Dr C dated 4 March 2024 and Dr D dated 10 January 2024 shall be released to the parent’s treating psychologist and psychiatrist and to B Family Services for the purposes of Order 34 for the purposes of providing treatment to the parents and the parents are hereby directed to forthwith provide a copy of each report to their treating psychologist and psychiatrist.
36.That the mother shall specifically consult her treating psychologist and psychiatrist for treatment arising from the report of Dr D.
37.In the event that either party has concerns about remarks being made by the children in relation to the other household, that parent may discuss those concerns with the other parent or the ICL and will do so in the absence of the children.
38.That within 14 days, the parties shall do all acts and things to enrol in the Family Relationship Counselling (which may include children or child of either party in session) at B Family Services Region E and each bear their own costs.
39.For the purpose of Order 38 above, the parties shall continue to attend upon the Family Relationship Counselling for as long as is recommended by the counsellor.
40.That the parties do all acts and things to engage the children in any programs as directed or recommended by the Family Relationship Counsellor.
41.That the ICL has liberty to speak to any of the parents treating practitioners.
42.That the parents shall do all acts and things to authorise the ICL to be able to speak with and obtain information from the NDIS coordinator allocated to the children.
43.Within 7 days, the mother shall provide to the ICL and the father the name of the NDIS coordinator, the name of the agency, the contact phone number and a copy of any and all current plans for the children or either of them.
44.The parents shall each notify the ICL by email if any of the children are absent from school for a period of more than two days and include where necessary a copy of any medical certificate resulting in such absence.
45.This Order shall be taken as an authority to any school, pre-school or educational or healthcare provider for the ICL to speak with and obtain information about the mother, father and children who are the subject of these Orders.
AND IT IS NOTED that the mother’s legal position is that she does not believe the father is an unacceptable risk of harm to the children nor a risk of sexual harm to the children or either of them.
Procedural Orders
46.I specify that orders 8 and 16 are inconsistent with order 1(b) of the family violence order of late 2023 made in the Magistrates Court in that it permits the father to attend the H School in Suburb J for change over and relevant school events.
47.I direct the legal practitioners are to explain to the parties in accordance with the requirements of s 68P of the Family Law Act the matters concerning the interaction of the family violence order and the Family Law Act orders.
48.I adjourn the proceedings to 8 August 2024 at 9 am and direct the parties are to attend in person.
49.I direct that 14 days’ prior to that date each party is to file and serve an affidavit setting out their compliance with orders 31 to 40.
50.I further list the matter at 10 am on 29 November 2024 and direct the parties to attend in person.
51.I direct that 14 days’ prior to that court event each party is to file and serve an affidavit setting out their compliance with orders 31 to 40.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym, Picken & Slater, has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
These proceedings concern both parenting and property disputes between the parties which were listed for final hearing to commence yesterday. The parties and the Independent Children’s Lawyer (“the ICL”) have presented consent terms to the Court that resolve the property dispute finally, and the parenting dispute on an interim basis (see exhibit C1).
Property
Dealing firstly with the proposed property orders, it may be observed that the parties agree that there is a small pool of property between them, which is predominantly constituted by the proceeds from an imminent sale of the former matrimonial home and the parties’ superannuation interests.
The evidence is suggestive that there is some degree of greater contribution as made by the wife and the evidence is also suggestive that the wife, as the primary carer during and post the relationship has thereby been out of the workforce for a period which places her in a weaker position in the future. Both the husband and wife say that there should be an adjustment by virtue of these factors in favour of the wife. They also say that the effect of that adjustment should be ameliorated by incorporating into the property settlement terms the payment of outstanding costs previously awarded in favour of the husband against the wife.
Together they propose an equalisation of their superannuation interests, or at least an approximate equalisation of their superannuation interests, by virtue of an adjustment of the husband’s superannuation interests. Overall, they contend that there should be a 55/45 percentage split in favour of the wife.
It is both appropriate to adjust the parties’ property interests given the ending of their relationship and the concession that it is so. It is further just and equitable to adjust as proposed by the parties. However, an integral part of this arrangement is a superannuation split which requires a member statement in respect of the husband’s fund and that procedural fairness be accorded to the trustee of a superannuation fund. These are necessary precursors. The appropriate arrangement is to indicate that I will make the property orders as sought by the parties on the filing of the relevant material.
Accordingly, I order that on filing of the husband’s superannuation member statement and on filing of material that demonstrates that procedural fairness has been accorded to the trustee of his superannuation fund, orders will be made in respect of the parties’ property interests in accordance with exhibit C1.
Parenting
The parents and the ICL have proposed that interim orders be made in respect of the children. Although, for good reason, the Family Law Act 1975 (Cth) (“the Act”) places emphasis upon the finalisation of disputes in relation to children there is good reason in this case to depart from that approach. Here, the best interests of the children are served by interim orders being made rather than final orders, and interim orders be made generally in the scheme proposed by exhibit C1.
The background to such a conclusion is that on day one of the hearing the parties received the single expert family report which is exhibit C3. Shortly prior to the commencement of the trial they had received the single expert psychiatrist’s report which is exhibit C2. The context of the case is that each of the parents has raised issues of risk being posed to the three children of the relationship by the other parent. The most prominent of the risks that were articulated by the mother in the lead up to the trial were those related to the sexual assault risk posed, or purportedly posed, by the father. It should be observed at this point that the mother has abandoned such a claim and has done so formally. It is however necessary to give some consideration to the evidence presented by the mother in support of that matter.
The Full Court in Isles & Nelissen (2022) 65 Fam LR 288 described that the consideration of risk is ‘a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm’. In Eastley & Eastley [2022] FedCFamC1A 101 the Full Court observed the requirement that a trial judge consider the cumulative effect of the evidence, and that even absent a positive determination that an underlying event has occurred, it remains legitimate to take such circumstances into account in determining whether there is an unacceptable risk. It should also be noted that in the context that I am dealing with an (interlocutory dispute resolution) that the consideration of risk comes in the context that the evidence remains untested and so firm factual conclusions remain unavailable.
The sexual abuse allegations and risks associated with them had formed a highly contentious aspect of the proceedings at least until shortly prior to the scheduled final hearing. The issue of risk was predicated upon a confined series of factual assertions made by the mother, which had been raised by her in interim proceedings that preceded the final hearing by some months. Those factual assertions as raised by the mother in the interim proceedings were reduced to a table by the single expert family report writer, Dr C, and were produced as part of her report released on the morning of the first day of the hearing.
However, a number of those instances were not repeated by the mother in her trial affidavit material and hence were not relied upon by her even when she maintained her risk case. A number of the instances were the subject of evidence adding to the description of the circumstances the remaining events. The addition of material and the abandonment of a number of the factual propositions earlier relied upon by the mother gives reason to exercise significant caution in respect of the latest iteration of the mother’s descriptions of the children. If the mother’s descriptions are correct, then it may be concluded that the comments made by the children and the behaviour engaged in by them had a sexualised content. However, much of what was led by the mother in her earlier material was, at most, ambiguous to a degree that provided little basis to either consider that the children had been abused or abused by the father. That slim basis was further deprived of any substance when it was observed that many of the children’s comments and behaviour were made in the context of sexual concepts being introduced to them by the mother. For example, the concept that a penis may be placed in a female’s vagina or anus. Even assuming that such a description was purely for the purpose of education, Dr C noted elements in the mother’s engagement with the children that bore the potential of influencing them in a manner that may foster the making of sexualised comments as reported by the mother.
The requirement to further examine these circumstances in considering risk issues is reduced by the position now taken by the parties and the ICL, all of whom are represented by counsel, in eschewing the notion that the evidence sustains an unacceptable risk of sexual abuse by the father.
When this position is taken by the parties and consideration is given to the deficits in the evidence as identified above it should not be concluded for the purpose of these interim orders that the father presents an unacceptable risk of sexual abuse to the children.
In the absence of that sexual risk the parties and the ICL agreed that there should be equal sharing of parental responsibility and a transition to equal time.
There are, however, a suite of other risks raised by the expert evidence. Those issues resulted in the single expert psychiatrist emphasising the need for both parents to participate fully in psychological and psychiatric therapy, where applicable medication, and to be abstinent from substance abuse. The single expert psychiatrist posited that a failure to do so places the children at significant risk by virtue of the compromised parental capacity that would otherwise ensue. The interim orders proposed by the parties recognise these risks and put in place necessary steps to ameliorate those risks.
It is helpful to identify at least in general terms, the nature of the risks identified by the single expert psychiatrist. Those prominent in his report were identified on the part of the mother in addition to mental, personality and drug use (in remission) disorders, and attention deficit hyperactivity disorder (“ADHD”). These were considered by both the psychiatrist and family report writer to impair the mother’s parenting capacity.
The mental disorder related to the mother’s fixed beliefs as to sexual abuse of the children. It was noted that this may dominate her, draining her cognitive, mental and emotional resources, resulting in an impaired capacity to provide for the children’s emotional, psychological, developmental and physical needs. It was noted that the mother’s disorders may impair her capacity to keep the child in mind, increasing the risk of physical and emotional neglect.
The psychiatric report diagnosed the father with alcohol and drug use disorders in reported remission, ADHD and depressive disorder in remission. It was noted that the father’s disorders may impair his capacity also to keep the children in mind, increasing the risk of physical and emotional neglect. The psychiatrist considered that the father demonstrated better insight into those deficits then the mother but observed that both parents’ capacity required compliance with treatment, including antipsychotic treatment for the mother and abstinence from illicit substance abuse for at least two years.
Issues thereby persist in relation to the mother’s view in relation to the father, including whether she considers him to present a risk to the children and whether this impairs both her ability to foster a relationship between the father and the children and otherwise to emotionally and psychologically care for the children, or to otherwise expose them to harm, such as that arising from repeated future investigations into sexual abuse.
Issues further persist of the benefits of relationship with each of the parents for the children and to the risks that may impair their parenting capacity or expose the children to harm.
As observed, the interim orders proposed by the parents recognise these risks and have put in place necessary steps to ameliorate the risks. They propose that there be an equal sharing of parental responsibility and that the matter transition to an equal time arrangement for the children.
Orders for equal time are reflective of the relationship between each of the parents and the children that were observed by the family report writer. An order for the equal sharing of parental responsibility is a necessary ingredient to ameliorate each parent’s weaknesses by involving the other parent in major decision-making. It cannot be expected an equal sharing of parental responsibility will be easy for these parents. However, it acts to protect the children from long-term decisions being made idiosyncratically by one parent or another.
The orders proposed therapeutic intervention, which is a necessary aspect of the orders given the psychiatric evidence. Observing that there is an incapacity in the court to predict, without further future involvement of the court, the medium or long-term progress of the parental capacity issues, the parties and the ICL have appropriately proposed that this be resolved by interim orders only. This allows a monitoring of the progress made by each of the parents and their compliance with the regimes that have been set out as supportive of the best interest of the children. Under those circumstances, and placing weight on the agreement of the parties and the ICL, it is appropriate to make orders in the general scheme as proposed by them, as appropriate to the best interests of the children.
There are some necessary minor adjustments. Firstly, there will need to be a minor adjustment to Order 29(c) to ensure that there is no impediment to reports being able to be made to the relevant authorities should it be necessary to do so.
The second adjustment is rather than delay the future court involvement to September 2024 as proposed, it is appropriate to support the parties’ engagement with the proposed therapeutic intervention and to ensure their accountability with such that the parties return to the court in August 2024, as well as November 2024.
Again, to ensure accountability with the therapeutic mechanisms it is necessary to require that 14 days before each of those court events the parents will file and serve an affidavit setting out their compliance with the therapeutic aspects of the orders. This allows the Court to actively monitor and support the engagement of the parents with therapy, noting the importance indicated to that engagement with therapy by the psychiatrist. The Court’s monitoring and supporting of that is essential to protect and promote the best interests of the children.
Prior to making the orders I note that Order 8 and Order 16, which authorise attendance by the father at school for handover and events, is at odds with exhibit C4 being the family violence order that is in place until mid-2024. His capacity to engage in handovers there and to attend school events is part of an appropriate set of parenting orders that allows the engagement of the parents with the children in a safe environment, in a manner consistent with the regime set out within the orders that requires their close involvement in the education of their children and accordingly, it is appropriate and adequately protective to make orders in accordance with Orders 8 and 16 despite their inconsistency with the family violence order.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 5 March 2024
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