PULLMAN & PULLMAN

[2012] FamCA 596

FAMILY COURT OF AUSTRALIA

PULLMAN & PULLMAN [2012] FamCA 596

FAMILY LAW – CHILDREN – Interim orders – Best interests of the child – Importance of children having a meaningful relationship with both parents – change of residence for children to live with the father in order to sustain that relationship – The children are to have a period of two months with no contact with the Mother – risk of the Mother fleeing with the children to Southern Europe where the Mother was subject to a previous order under the Mental Health Act 2007 (NSW) – where the Court previously made urgent interim orders to prevent the Mother absconding with the children – where the Mother failed to promote a positive relationship between the father and children – where there was evidence that the children were encouraged by their Mother to be disloyal to their father

FAMILY LAW – CHILDREN – Interim Orders – Allegations of Family Violence – The Court takes a prospective view as to the issue of Family Violence and its impact on children – Where the trial is part heard in circumstances where the Mother was unexpectedly ill – where the interim orders will provide for the children’s arrangements for five months – where the Mother made serious allegations that the father had physically abused her and the children – Where the Mother alleged that the father had sexually abused the Mother – where it was found that the children would not be exposed or be subjected to family violence in future by the Father - where the evidence currently before the Court did not establish on the balance of probabilities the Mother’s allegations of physical and sexual abuse

Family Law Act 1975 (Cth) ss 60CC & 61DA
Mental Health Act 2007 (NSW)

Goode & Goode (2006) FLC 93-286
MRR & GR (2010) 240 CLR 461

APPLICANT: Mr Pullman

RESPONDENT: Ms Pullman

FILE NUMBER: NCC 1740 of 2011

DATE DELIVERED: 29 June 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 26, 27, 28 & 29 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C. Boyd

SOLICITOR FOR THE APPLICANT: Aubrey Brown Partners

COUNSEL FOR THE RESPONDENT: Mr B. Kelly

SOLICITOR FOR THE RESPONDENT: Nash Allen Williams & Wotton Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr D. Barry

Orders

1. All former parenting orders relating to the children M born, … June 2001 and S born, … August 2002 are discharged.

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

1. The children shall live with the father.

1. Until 3 September 2012, pursuant to s 68B of the Family Law Act, the mother is restrained from:

a)Approaching or contacting the children; and

b)Entering upon or approaching within 100 metres of the father’s residence and any school attended by the children.

1. As from 3 September 2012, each of the parties shall take all reasonable steps to ensure the children spend time and communicate with the mother as follows:

a)On Saturday 8 September 2012, from 1.00 pm to 5.00 pm, supervised by Ms J;

b)On Saturday 15 September 2012, from 1.00 pm to 5.00 pm, supervised by Ms J;

c)Each alternate weekend from Saturday 9.00 am to Sunday 5.00 pm commencing on Saturday 22 September 2012; and

d)By telephone each Monday and Thursday between 6.00 pm and 6.30 pm for which purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

1. For the purpose of implementing of Orders 5(a) and 5(b) hereof, the father shall deliver the children to and collect the children from the home of Ms J.

1. For the purpose of implementing of Order 5(c) hereof, the father shall cause the delivery of the children to the mother at the McDonald’s Restaurant … at the commencement of the time to be spent by the children with the mother and the mother shall cause the delivery of the children to the father at the same place at the conclusion of the time spent by the children with the mother.

1. The Father is restrained from consuming alcohol during any period in which the children live with him and also during the period of 12 hours immediately preceding such time.

1. The father is restrained from causing or permitting the infliction of corporal punishment upon either child.

1. 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.

1. The mother and her legal representatives shall forthwith surrender to the fathers solicitors any passport relating to either child.

1. The mother is restrained from causing or permitting any application to be made to any Department or Consulate for the issue of a fresh passport in relation to either child.

1. Each party shall forthwith inform the other and keep the other informed of their respective current residential address, mobile telephone number, landline telephone number and email address.

1. The mother shall vacate the former matrimonial home … on Sunday 1 July 2012 between 9.00 am and 12 noon.

1. By reason of an inconsistency between some of these Orders and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:

a)The Registrar of the Local Court of NSW; and

b)The Commissioner of NSW Police.

1. The father shall present the children to the Independent Children’s Lawyer at G McDonald’s at 6.00 pm on Friday 29 June 2012 for the purposes of the Independent Children’s Lawyer explaining these orders to the children.

1. Any and all outstanding applications for interim orders are dismissed.

1. 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.

IT IS FURTHER ORDERED THAT:

1. The trial of these proceedings is adjourned part-heard until 10.00 am on Thursday 8 November 2012 for a further period of two days.

1. The parties’ respective applications for property adjustment orders are listed before Justice Austin at 10.00 am on Thursday 8 November 2012 for further procedural directions.

1. Dr H is appointed as the single expert witness to prepare a report in relation to the psychological and psychiatric condition of the mother.

1. The parties must within seven days hereof confer for the purpose of agreeing on the letter of instructions to be provided to the single expert.

1. If the parties do not agree on the letter of instructions to be provided to the expert, then at a further procedural hearing before the court each party must provide to the court a draft letter of instructions.

1. Each party has liberty to apply to relist the matter on 7 days notice for further procedural orders.

1. The parties and the Independent Children’s Lawyer must appoint the single expert in writing within 14 days hereof, and in order to facilitate preparation of the single expert’s report:

a)The Independent Children’s Lawyer is granted leave to photocopy and provide to the single expert witness the applications, responses and affidavits filed by the parties, the exhibits so far tendered in the proceedings and documents produced on subpoena.

b)The mother must attend upon the single expert witness for such interviews and observations sessions as the single expert requires at any reasonable time nominated by the single expert.

1. The parties shall ensure that in the letter of instructions provided to the expert the expert is furnished with copies of, or has his or her attention drawn to, the provisions of Divisions 15.5.2 and 15.5.6 of the Family Law Rules.

1. The Independent Children’s Lawyer shall within 14 days notify the single expert in writing of the trial dates and confirm the availability of the single expert to give evidence on those dates.

1. Pending further order, the father shall pay the totality of the fees of the single expert.

1. Pursuant to s 62G of the Family Law Act, a Family Consultant shall prepare and furnish to the Court an updated Family Report concerning the subject children.

1. In order to facilitate preparation of the family report:

a)Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant;

b)Each party must ensure the attendance of the children at such interviews and observation sessions at such times and places nominated by the Family Consultant; and

c)The Family Consultant is granted leave to inspect the Court file, the exhibits and all documents produced on subpoenae.

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

1. Leave is granted to the Independent Children’s Lawyer to issue a subpoena to:

a)The Proper Officer of the Hospital; and

b)The Proper Officer of the NSW Ambulance Service.

1. Leave is granted to the father to issue a subpoena to the mother’s cosmetic surgeon  …, NSW.

NOTATIONS:

A.It is expected that the single expert witness report will be available in advance of the fresh consultations by the Family Consultant with the parties and the children.

B.The parties will be independently notified of the date and times of the appointments with the Family Consultant which are presently expected to occur on or about 26 September 2012.

C.It is the intention of the husband to attend the former matrimonial home … NSW on Sunday 1 July 2012 between 9.00 am and 12 noon to recover from that property clothing and other personal belongings of the children.

D.These orders are inconsistent with an existing interim Apprehended Violence Order made against the father in favour of the mother by the Local Court of NSW …, in which event Division 11 of Part VII of the Family Law Act applies and these parenting orders prevail to the extent of any inconsistency.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1740 of 2011

Mr Pullman

Applicant

And

Ms Pullman

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. The need for the Court to entertain applications for interim parenting orders in these proceedings has arisen in unorthodox circumstances. 

2. The parties separated in April 2011 and commenced these proceedings in June 2011. Since then there have been four sets of interim parenting orders adjusting parenting arrangements for the two children of the marriage, they being M, born in June 2001, and S, born in August 2002.  As would be apparent from the recitation of their dates of birth, M is now 11 years of age and S will shortly attain 10 years of age.

3. The four separate sets of interim orders made between the parties were made as follows:

   a)On 10 June 2011 in the Local Court; 

   b)On 17 June 2011 in the Local Court; 

   c)On 30 August 2011 in this Court; and finally

   d)On 4 November 2011 in this Court.

4. Regrettably, the prevailing interim orders last made in November 2011 have not been faithfully implemented and there is extensive argument between the parties as to the reasons why that is so. Suffice to say, there are very grave allegations of family violence, child abuse, and psychological ill-health in these proceedings

5. The trial of the parenting applications made by each of the parents was listed to commence on Tuesday 26 June 2012 and last three days. On the first day of trial the mother was unwell and her counsel represented to the Court that he and his instructing solicitor had grave concern about her capacity to afford them instructions in relation to the conduct of the trial. At that point in time an application was made by the mother’s counsel to adjourn the trial and a minute of orders was tendered containing orders proposed by the mother – in particular, that she be referred for evaluation of her psychological condition.

6. The adjournment application of the mother was opposed and ultimately refused.  The trial was commenced belatedly on Tuesday. On Wednesday the mother’s legal representatives announced to the court that her condition was somewhat improved and an application was granted for the mother to participate in the trial by inhabiting an adjacent courtroom and listening to the evidence by audio link. By Wednesday afternoon the oral evidence in the applicant father’s case was closed and the point was reached at which the mother needed to make herself available for cross-examination. On the application of the mother’s lawyers, the mother was permitted to submit to cross-examination from the adjacent courtroom by audio-visual link. The mother’s cross-examination was incomplete by the end of Wednesday afternoon and the trial was stood over to continue on Thursday morning. The mother continued her cross-examination in the same manner on Thursday morning.

7. During the course of the mother’s cross-examination, both on Wednesday afternoon and Thursday morning, there were frequent interruptions to accommodate her acute distress. Her distress became so profound that she was unable to continue and completion of her cross-examination was not possible.  As a consequence, counsel agreed that the Family Consultant ought be interposed as a witness and evidence was taken from the Family Consultant.  Whilst the evidence of the Family Consultant was given, the mother was permitted to remain in the adjacent courtroom, again listening to the evidence by audio link.

8. It was subsequently drawn to the Court’s attention that at 3.10 pm on Thursday the mother decamped from the adjacent courtroom without notification to anybody, including her own lawyers, and left the building. The Court was informed that a subsequent search of the immediate vicinity revealed the mother and her motor vehicle had disappeared. In those extraordinary circumstances the Court was persuaded to make urgent interim orders which effectively provided for the father to assume residential care of the children, at least overnight, until the matter could be considered afresh today.

9. On resumption of the matter today the Court was informed that the interim orders made late yesterday afternoon were satisfactorily implemented and the children are now within the care of the father. However, the mother failed to attend court today and her counsel represented to the Court that she remained sufficiently ill that she was unable to physically attend Court. No medical certificate was proffered or tendered, though that is not surprising given the lack of time within which the mother has had to attend upon a medical practitioner and procure such a corroborative document. 

10. The lawyers for the mother were impeded to the extent that their only instructions, by telephone from the mother, were to seek an adjournment of the trial. Thereafter, they were without instructions to assist the Court concerning any interim arrangements that would prevail in respect of the children. The adjournment application made on behalf of the mother by her counsel was granted with the consent of the father, over the objection of the Independent Children’s Lawyer.

11. It was the submission of the Independent Children’s Lawyer that the best interests of the children required expeditious resolution of the trial, even if that be in the absence of the mother. Ultimately, I was persuaded that should not occur and the trial was adjourned part-heard to the next available date it could be accommodated, which subsequently transpired to be Thursday 8 November 2012. Self-evidently, that means that there will be a hiatus in the proceedings for a period of nearly four and a half months, which begs the question as to what parenting arrangements ought to be implemented over that period. It is for those reasons that the Court is now called upon to determine what interim arrangements.

The evidence 

1. The evidence upon which the interim orders are to be determined is confined to the following: 

   (a)the father’s affidavit filed on 11 May 2012, it being noted that the father’s cross-examination has been complete; 

   (b)the affidavit of Ms N Pullman filed on 11 May 2012, it similarly being noted that her cross-examination has been complete;

   (c)the mother’s affidavit filed on 12 June 2012; 

   (d)the Family Consultant’s Children’s and Parents’ Issues Assessment, dated 21 October 2011, comprising Exhibit ICL 10;  

   (e)the Family Consultant’s Family Report, dated 18 June 2012, comprising Exhibit ICL 9; and 

   (f)the interim apprehended violence order dated 6 December 2011, comprising Exhibit A. 

2. As has already been mentioned, the cross-examinations of both the mother and Family Consultant remain incomplete.

3. Given that the substantive trial has been unexpectedly interrupted in the manner described the evidence which will ultimately influence the Court’s orders remains incomplete.  It is important to observe that in making interim orders the Court should baulk at expressing concluded views on controversial factual matters because of the incomplete state of the evidence and the consequent inability of the parties and Independent Children’s Lawyer to make final submissions about the whole of the evidence. The Court ought to make its decision in respect of the interim orders, as far as is possible, on evidence which is relatively uncontroversial or on the basis of inferences which fairly arise from the current state of the evidence. 

Proposals

1. As for the respective proposals of the parties and the Independent Children’s Lawyer, it is important to note that the mother makes none. Her lawyers have been unable to indicate to the Court, in the absence of instructions, what interim orders should be made. The extent of their instructions has been to simply indicate that the mother wants the children returned to her care.

2. The Independent Children’s Lawyer, at the commencement of the proceedings this morning, tendered a minute of the orders that she proposed and explained were posited on both an interim and final basis.  That minute of orders was tendered and forms Exhibit ICL 11. 

3. In summary, the Independent Children’s Lawyer proposes that the parties have equal shared parental responsibility for the children, the children live with the father, the children have no interaction with the mother for the next two months and that thereafter the children spend time with the mother on alternate weekends and for a portion of the Spring school holidays, and that the children have regular telephone communication with the mother.

4. The father is in complete agreement that the children should continue to live with him until the trial is resumed. There is, however, a difference of opinion between the father and the Independent Children’s Lawyer about the allocation of parental responsibility and the amount of time and the circumstances under which the children spend time with the mother. They remain the principal issues of concern at this interim stage.

Applicable legal principles

1. The principles by which the Court must be guided are the same whether the Court is adjudicating parenting applications on either a final or interim basis. 

2. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”), wherein the definition of a parenting order is made plain.

1. When called upon to make a parenting order the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which should be made.

2. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration and the Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

3. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child under s 61DA of the Act. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility.

4. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time, with each of the parents. 

5. If the presumption of equal shared parental responsibility does not apply or is successfully rebutted and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions. 

6. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the children

1. I turn then to consider the best interests of the children pursuant to s 60CC of the Act. I will consider firstly the primary considerations under s 60CC(2) and then the salient additional considerations under s 60CC(3).

2. There is little doubt that the children presently enjoy a meaningful relationship with the mother.

3. There is some debate, at least from the mother’s perspective, about the quality of the relationship between the children and the father. However, at this point in time I am satisfied that there is likely to be benefit derived by the children from continuing their meaningful relationships with the father.

4. The crux of this case is the mother’s concerns about the risk posed to the physical and psychological health of the children as a consequence of their exposure or subjection to either physical abuse by the husband or their exposure to the father’s commission of family violence upon the mother.  I will deal with each of those topics individually. 

5. As to the question of the father’s physical abuse of the children, the mother has alleged that the father frequently abused the children during the course of their cohabitation. That matter was fully explored with the father during his cross-examination and he vehemently denied the allegations although he did concede he had, from time to time, resorted to corporal punishment when he deemed it necessary. The evidence does not disclose that the children have ever been physically injured and the evidence does not disclose that the mother made any contemporaneous complaint to any authority about the alleged abuse. Consequently, the quality of the evidence does not permit the court to reach any conclusion at this point that the mother’s allegations of abuse against the father have been proven on the balance of probabilities. 

6. The children both expressed to the Family Consultant some degree of circumspection about their relationships with the father, and each asserted that they were liable to be assaulted by the father. However, their comments to the Family Consultant are not entirely consistent with the manner in which they were observed  to interact with the father.

7. For those reasons, presently my mind remains open as to whether or not the father has committed the abuse as alleged by the mother.  I am not yet satisfied that he has, although the mother may, ultimately be able to persuade me to the contrary. 

8. In respect of the allegations of family violence, they are multiple and extremely serious. In summary, the mother alleged that the father physically beat her repeatedly throughout the entirety of their relationship and, significantly, alleged that she was sexually assaulted on numerous occasions, particularly in the latter stages of their cohabitation.

9. Shortly after the parties’ separation the mother approached police and made her allegations of sexual assault by way of written statement. The police acted on the mother’s complaint and the father was charged with a number of counts of sexual assault for which he is now being prosecuted. The prosecutorial process is incomplete and in due course the father will likely come to trial on those charges. 

10. In terms of how those unresolved charges are to be factored into the Court’s consideration of parenting orders, at this point in time I note that the cross-examination of the mother has revealed a degree of inconsistency in the versions of her allegations against the husband, which have been variously given to the police, the Department of Family and Community Services, and her general practitioner.

11. I have also harkened to the evidence revealed in her cross-examination about the apparent inconsistency in the nature of her behaviour towards the father.  One would have thought that with allegations as serious as those made by the mother she would be at pains to avoid the father at all costs. That does not appear to have consistently been the case. For example, it is common ground that the parties interacted quite happily for approximately a month following their separation in April 2011. The event that caused the eruption of disharmony in their relationship was apparently the revelation by the father on or about 19 May 2011 that he was in a relationship with a different woman. It was only then that the mother’s antipathy towards the father became entrenched. 

12. The mother was also impelled to concede during cross-examination that following separation she happily prevailed upon the father to accompany her alone on a car trip to Sydney for the purposes of assisting her to acquire and then construct furniture purchased from an IKEA store in Sydney. Similarly, the mother conceded in cross-examination that after separation she had happily attended the former matrimonial home, which she knew to have been inhabited by the father, in circumstances where it was possible she could have been confronted alone in the home by the father at any time. It is difficult to conceive that a person who had been victimised by the father in the manner the mother alleged would be willing to take those chances.

13. Quite apart from the concerns I presently hold in relation to the mother’s evidence, there are aspects of the father’s evidence which bear upon the question. As I have already mentioned, the father is still subject to ongoing prosecution. He abandoned his privilege against self-incrimination and was prepared for these parenting proceedings to progress swiftly in the knowledge that he would be called upon to give evidence in cross-examination and be confronted and challenged about the mother’s allegations, without concern for how that evidence may affect the parallel criminal proceedings. In the course of his cross-examination he gave a strident rebuttal of the mother’s allegations. 

14. Of course, it is not appropriate for the Court to reach concluded views about those factual issues, but the matters of which I have already made mention are sufficient to suggest to the Court that no finding should presently be made that the father probably did abuse the mother in the manner she alleges.

15. Irrespective of whether the father perpetrated family violence upon the mother in the past, s 60CC(2) of the Act requires the Court to take a prospective view, namely, forecasting the risk of the children’s exposure in the future to such family violence. I am satisfied that it is unlikely the children will be exposed to family violence between the parties over the next five months before the trial is resumed because it is highly likely the parties will have little, if any, interaction over that period. The orders I intend to make, providing for the children to spend time with the mother, will entail the parties either not having to meet at all or, if having to meet, it occurring at a place which is a public venue or at a place where they will be under the observation of a third party.

16. Now, the issue of neglect is not a relevant consideration under s 60CC(2) of the Act.

17. Consequently, I turn attention to the additional considerations under s 60CC(3) of the Act. Not every consideration is relevant and not every stipulated consideration was mentioned in submissions by counsel. I will only touch upon those which are of particular significance.

18. As I have already mentioned tangentially, the children have each expressed views to the Family Consultant which tend to be critical of the father and supportive of the mother. I accept the submissions made by counsel for the father and Independent Children’s Lawyer that I should repose little weight in the views expressed to this point by the children because those views are likely to have been distorted.

19. It is clear the mother has a very adverse view about the father. A strong inference is demanded by the evidence to the effect that the mother is physically incapable of concealing her adverse feelings about the father from anyone, let alone the children. So much is evident from her acute distress for the entirety of this trial. It would not be hyperbole to suggest that the mother has only antipathy for the father and for the children to live in her care would necessarily immerse them in that atmosphere of antipathy.

20. Although the Family Consultant’s evidence is incomplete, I have heard sufficient cross-examination to conclude with a reasonable degree of satisfaction that the children both entertain the notion that they need to act protectively towards the mother because they are sensitive to her anxiety and fragile emotional state, and if that entails demonstrating some degree of disloyalty to the father that is what the children are likely to do in order to fulfil their sense of responsibility to the mother.

21. I accept the evidence so far given by the Family Consultant that it is not in the best interests of the children for them to be subjected to such a degree of pressure that they feel a need to divide their loyalties between the parties. 

22. Even if I accept the mother’s evidence at its highest, she has been physically incapable of convincing the children to comply with the orders made in November 2011 requiring them to spend time with the father. Of course, I understand that the father entertains some degree of suspicion that the mother has not tried to implement those orders at all, but that is not a conclusion or inference I am prepared to draw at this point in time. I am prepared to be open-minded and accept the mother’s evidence that she has done her very best.  Even in that context, the mother’s very best has not been enough, so that if the children were now to be left living with the mother I am quite satisfied the relationships between the children and the father would continue to be the subject of impingement, and the children would not likely spend time or communicate with the father frequently. 

23. The mother’s emotional condition for the duration of the trial has been of the utmost concern. There is no evidence at all before the Court which purports to provide any diagnosis of her condition. Nonetheless, there are aspects of the evidence quite apart from her physical presentation which exacerbate the Court’s concerns. 

24. Firstly, her own lawyers are not satisfied that they can garner competent instructions from her.

25. Secondly, the Family Consultant expressed a degree of concern in the Family Report compiled in June 2011 about the emotional stability of the mother.

26. Thirdly, the mother’s behaviour in recent months, even before the trial commenced, suggests she is unstable. That is demonstrated by the uncontested evidence that she was the subject of an order under the Mental Health Act (NSW) rendering her an involuntary psychiatric patient, albeit for a period of only six hours, at the Hospital on a date in March 2012. On that occasion she had to be conveyed to the hospital by ambulance, so acute was her condition. The mother admits the children were exposed to that traumatic event by being transported with her in the ambulance and would have heard her protestation to medical authorities to the effect that she wished she could die.

27. That would have been a traumatic event in isolation, but no doubt it was compounded by an event which occurred only a week or two before that when the mother was again compelled to call an ambulance for her assistance because of her fear that she was going to hyperventilate and not be in a condition to be able to care for the children. The children were again exposed to the mother’s histrionic behaviour on that occasion.

Conclusion

1. Having regard to those aspects of the evidence, I am satisfied that I ought to make orders which require the children to live temporarily with the father.

2. However, the Act firstly requires me to give consideration to the allocation of parental responsibility.

3. For reasons I have already mentioned, presently the evidence does not permit me to conclude that there are reasonable grounds to believe that the father has engaged in abuse of either child or in family violence. I am therefore satisfied that the presumption of equal shared parental responsibility should apply for the time being.

4. Given that presently I am being asked to adjudicate interim and not final orders, s 61DA(3) of the Act provides that the presumption of equal shared parental responsibility should apply unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied. There are no circumstances which satisfy me the presumption should not be applied and so it will.

5. Similarly, nothing that has been submitted persuades me the presumption ought be rebutted pursuant to s 61DA(4).

6. In those circumstances I apply the presumption of equal shared parental responsibility and I will make an order accordingly. 

7. Given that an order for equal shared parental responsibility will apply, the Act requires the Court to then turn and consider, in seriatim, orders that provide for the children to live with the parties for equal time, or alternatively, to live primarily with one and spend substantial and significant time with the other.

8. Firstly, as to equal time, I make no order to that effect. That is because neither party seeks it. The mother proposed final orders to the effect that the children live with her and see the father periodically. Conversely, the father proposed orders that the children live with him and see the mother periodically. Similarly, the Independent Children’s Lawyer proposed a raft of orders, which I have already summarised, and which do not entail the children living for equal time with both parties. I am quite satisfied on the evidence that it would not be in the best interests of the children to live on an interim basis with each party for equal time. Their best interests require that for the time being they live with the father. 

9. I therefore turn to consider whether the children should spend substantial and significant time with the mother, and I conclude not. The mother’s condition is simply too unstable at this point in time to give that outcome serious consideration.

10. That brings the Court to the question of what level of interaction should prevail between the children and the mother.

11. The current state of the Family Consultant’s evidence is that if the Court is not persuaded as to the mother’s allegations of abuse and family violence against the father giving rise to an unacceptable risk of harm to the children, then the Court could and should consider a reversal of their residence. In cross-examination she was invited to elaborate that opinion and she said if a reversal of residence was contemplated by the Court then the children’s best interests would be served by a period of isolation between them and the mother for the purpose of enabling the children to settle in the father’s care and to also enable the mother to adjust to that situation, so that when they are brought back together the prospect of heightened emotions will have abated.

12. The evidence of the Family Consultant is quite indistinct about the duration of any such hiatus in the interaction between the children and the mother, but I am satisfied on the submissions made that that period should be quantified at approximately two months. I therefore intend to make orders that provide for the parties to be restrained from permitting the children to interact with the mother for the next two months, and thereafter, the children will be reintroduced to the mother under certain conditions.

13. Their first two visits will be the subject of supervision by a friend of the mother, Ms J, the purpose of which is to impose a precautionary buffer against the prospect of heightened emotion of which I have already spoken. Thereafter, the children will spend time with the mother on alternate weekends and have frequent telephone communication with her. On my estimate, that regime will have a life of some eight to ten weeks before the trial is resumed in early November 2012 and the children will have had the opportunity to spend a full weekend with the mother on at least one occasion before the children and the parties return to consult with the Family Consultant for the purposes of preparing the updated Family Report.

14. The changeovers that will occur between the parties and the children will be at a public venue, other than for the first two occasions, when Ms J will be able to observe the changeovers.

15. The mother’s concerns about the father, in terms of his alcohol abuse and alleged physical abuse of the children, will be addressed by the imposition of injunctions restraining the father from consuming alcohol and from administering corporal punishment.

16. The father’s concerns about the possibility of the mother’s abduction of the children to Southern Europe, where her family network resides, will be addressed by an injunctive order requiring the mother and her solicitor to forthwith surrender the children’s passports to the father’s legal representatives.

17. Because the orders I intend to make will entail a reversal of the children’s residence, it will be necessary for the husband to procure from the former matrimonial home clothing and other accoutrement necessary for his care of the children. I am therefore persuaded to make an order that requires the mother to vacate the former matrimonial home for a period of hours this coming weekend for the purposes of the father’s recovery of personal items relating to the children.

18. I have already made mention of an interim apprehended violence order, the most recent version of which known to the Court is that made on 6 December 2011 at the Local Court of New South Wales. The parenting orders I intend to make are inconsistent with that interim apprehended violence order and for that reason I will make orders requiring a sealed copy of these orders to be provided to the police and the Local Court. 

19. For those reasons, I make the following orders and notations.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 29 June 2012.

Associate: 

Date:  29 June 2012