SALAWAY & CLAVELL

[2018] FCCA 3653

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALAWAY & CLAVELL [2018] FCCA 3653

Catchwords:
FAMILY LAW – Parenting – oral judgment – supervised to unsupervised time – expert report – unsupervised time granted – stay of orders subject to filing appeal.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC

Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Applicant: MR SALAWAY

Respondent: MS CLAVELL

File Number: PAC 4957 of 2016

Judgment of: Judge Bruce Smith

Hearing date: 16 November 2018

Date of Last Submission: 16 November 2018

Delivered at: Sydney

Delivered on: 19 November 2018

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Armstrong Legal

Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. The child, [X] born 2015, live with the Mother (MS CLAVELL born 1976).

2. Previous orders relating to the Child’s time with the Father (MR SALAWAY born 1974) be discharged, other than Order 6 of the Orders made 16 May 2017 which shall continue, and, for greater caution if Order 6 of the Orders made 16 May 2017 has been discharged, lapsed or otherwise ceased to operate, then from the date of these Orders the mother and father shall each submit to chain of custody urinalysis testing within 48 hours of any request made by the ICL.

   (a)Such testing shall be in accordance with the Australian/New Zealand standard for chain of custody testing

   (b)Samples shall be provided within 48 hours of a request being made

   (c)Copies of results shall be provided to the ICL and to the other party within 3 days of the receipt of the test results

   (d)The ICL shall make the testing request via email to an address provided to the ICL forthwith

   (e)The ICL shall not make a request more frequently than once every 2 months.

3. The Child spend unsupervised time with the Father as follows:

   (a)From Saturday 24 November 2018 until and including Saturday 16 March 2019 from 10am to 1.00pm each Saturday;

   (b)Commencing on Saturday 23 March 2019 from 10.00am to 4.00pm each Saturday;

   (c)On Christmas Day 2018 for a period of 2 hours and in the absence of an agreement between the parties, from 3pm to 5pm;

   (d)On the Child’s birthday for a period of 2 hours and in the absence of an agreement between the parties, from 4.00pm to 6.00pm; and

   (e)Other times agreed between the parties.

4. That the Father and the Child communicate with each other electronically for up to 15 minutes each Wednesday between 5.00pm and 6.00pm with the Father to initiate a call to a phone number nominated by the Mother.

5. To facilitate the time pursuant to Order 3, changeovers occur as agreed, and in the absence of agreement at a McDonalds or other similar location approximately midway between the parties residences.

6. That without admission, both parties are restrained from consuming alcohol or illicit substances either during the time the Child is in their respective care or 12 hours prior.

7. Each party to attend a Circle of Security parenting program within 3 months and provide evidence of completion to the Independent Children’s Lawyer

8. With the Father’s consent the Court makes the following Orders with regards to the Father’s ongoing mental health treatment and monitoring:

   (a)The Father shall attend upon his general practitioner for the purpose of monitoring his mental health and considering the necessity of a mental health care plan.

   (b)The Father shall continue to attend upon his general practitioner as directed by his general practitioner in relation to the management of any identified mental health issues and shall comply with all directions, treatments and referrals by this general practitioner in this regard.

   (c)The Father has leave to provide a copy of the Single Expert report prepared by Dr A dated 15 November 2018 to his general practitioner and to any treating mental health therapist he consults to assist in treatment.

   (d)The Father is directed to provide his general practitioner with a copy of Dr A’s report dated 15 November 2018.

   (e)The Father is directed to provide a copy of these Orders to his general practitioner.

   (f)The Father’s general practitioner is authorised by these Orders to communicate all and any medical information regarding the Father’s mental health, treatment or capacity to parent the child to the Independent Children’s Lawyer, Ms Nielson, Legal Aid NSW [phone], whether orally or in writing, including to provide the Independent Children’s Lawyer with a copy of any mental health care plan and information concerning compliance or otherwise.

   (g)The Father is directed to provide the name, practice details, and contact address including telephone number of the general practitioner to the Independent Children’s Lawyer within 14 days of these Orders.

9. The Independent Children’s Lawyer is authorised by these Orders to contact the Father’s general practitioner and seek any medical information concerning the Father’s mental health and his compliance with directions, treatments and referrals from the general practitioner.

10. Both parties be restrained from;

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

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

11. The Independent Children’s Lawyer has liberty to relist the matter at short notice.

12. On the Application of the Mother, a stay of these Orders is granted until the time expires for the filing of an appeal, and if a notice of appeal is filed within time then these Orders will continue to be stayed until any Orders of the Family Court.

13. The matter be listed for directions only at 9.30am on 18 March 2019.

AND THE COURT NOTES THAT:

A.The parties are to consider whether family therapy would assist them.

B.The parties were not able to advise the Court of an agreed place for changeovers as the Respondent was not present. It was indicated they should be able to agree. If they are not able to agree they have liberty to re-list the matter.

C.The Mother has indicated that she intends to lodge an appeal of these orders and has requested Settled Reasons be provided which is the basis of the Stay.

D.The Independent Children’s Lawyer is to provide a typescript of their Proposed Minute of Order.

E.If the matter is appealed the parties may apply for an administrative adjournment of the next mention date.

F.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 4957 of 2016

MR SALAWAY

Applicant

And

MS CLAVELL

Respondent

REASONS FOR JUDGMENT

1. This is an oral decision pursuant to the short form judgment provisions of s.69ZL of the Family Law Act 1975 (Cth) (“the Act”). This interim application in a parenting matter pursuant to Part 7 of the Act was heard before me on Friday, which was the last business day before today, Monday. The matter being only recently heard, I do not think it will be as necessary to go through the full detail of the submissions as it might otherwise, and note that the transcript of argument, if relevant, should be read together with these reasons.

2. The matter is in a relatively short compass.  The parties include the father Mr Salaway, who is in his early forties, the mother, Ms Clavell, who is also in her early forties.  The child who is the subject of the proceedings is [X] born on 2015.  [X] is now three years of age.  The parties had prior interim orders which had [X] living with her mother.  As I have said, the matter is in a relatively confined compass since, at this stage, neither party nor the ICL suggest otherwise than that [X] should live primarily with and spend the overwhelming majority of time with the mother, which simplifies matters. 

3. Orders were made for Mr Salaway to have time with [X]; however, because of a variety of concerns which I will discuss later in the judgment, that time was, not unusually, ordered to be supervised time.  Some supervised time has taken place; however, there have been issues with time taking place Mr Salaway says, in part, because of financial difficulties which he has referred to at length in his material and in his submissions and which he has said has meant that the reality is that the orders cannot be given full effect and that the intention of the Court that he should have time with [X], not for his benefit, of course, but for [X]’s benefit – which is always the reason such time is ordered – cannot be given effect. 

4. I note that he has had, I was told, about 21 hours of supervised time with [X], and as far as I am aware, there have been no major difficulties in that time being spent with [X].  Whenever the Court considers a parenting matter, the Court is required to consider [X]’s best interests, and the Court is directed to consider the first two questions, the so-called twin pillars, in Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520. The first thing that must be considered is the requirement to protect [X]’s physical and psychological safety, to protect her from harm or from being subjected or exposed to abuse, neglect or family violence, and that principle and object, as per s.60B as well, is, by reason of subsection 60CC(2A), the primary concern of the Court.

5. The next issue after that is the benefit to [X] of having a meaningful relationship with both parents, and in this context, of course, since she is living with primarily and spending her time with the mother, the question to be taken into account is the interest for [X] of having a meaningful relationship with her father.  Now, as I have said, that question is always subject to the primary consideration of protecting [X] from physical and psychological harm.  As the parties are arguing this matter in a relatively narrow question, I do not need to go through all the questions that one might consider when looking at shared parental responsibility and the presumptions and other issues that arise there, and that will be a matter for another day and, perhaps, a final hearing. 

6. Whilst the father ultimately seeks, as I understand it, equal shared parental responsibility and very substantial time, at the moment, he is just seeking unsupervised time.  He says this is necessary for two reasons.  Firstly, because the financial obligations of paying for supervision makes it difficult to give effect to the Court’s desire for him to have time with [X]. 

7. The second reason is that in the usual course in these cases, whilst one starts with supervised time, particularly for reintroduction purposes, the ultimate goal is to have the child be able to spend time with the non-residential parent in more natural circumstances, rather than the somewhat artificial situation that may arise when an organisation like Contact Centre, even though they do an excellent job, is involved.  The mother opposes the father’s application to move from unsupervised to supervised time. 

8. The mother’s case is set out in very helpful and detailed written submissions which were relied upon at the hearing.  Those submissions prepared by Ms Staines on 14 November were articulated again orally, but I do not need to set them out as they are in writing.  I think it would be fair to say that the heart of the submission is set out in page 3 where the mother says:

   The risk of harm arises from the Applicant Father’s history of family violence, including physical violence towards the Respondent Mother, and the risk of [X] being neglected in the Applicant Father’s care due to the Applicant Father having a history of dependency on drug (sic) and alcohol, especially in stressful situations.  Also, the limited involvement the Applicant Father has had in caring for [X], without another person present.

9. Both in writing and during the oral submissions, the mother says that the applicant father’s request is all about him and not about [X], and there may be some substance in that, but, nevertheless, the Court must consider the application taking into account what the Court considers [X]’s best interests to be.  The other part of the mother’s case, in essence, was:

   The Applicant Father has also failed to address the fact (sic) he has spent only 21 hours with [X] since April 2017.  The Interim Orders made on 17 May 2018, which was supported by further Interim Orders dated 21 June 2017, were put in place on the basis (sic) they were in [X]’s best interests.  There has been no evidence presented by the Applicant Father or any third party to suggest that the reasons for supervised time that was (sic) initially ordered has changed.  When determining the parenting arrangements, the Court needs to have regard to the Orders of 17 May 2017 only being facilitated for nine occasions. 

10. Now, of course, the father says that he has had financial difficulty in complying with those orders.  I will come to that now.  There was a considerable portion of the hearing taken up with an investigation into the father’s somewhat complex financial circumstances.  I must say that, having reviewed the material, I am reluctant to accept at face value the father’s protestations that he could not afford to have had more supervised time with [X], but I do not need to make findings about that for reasons I will state later, but I do note that I do have concerns about his credibility in that regard, although the issue is clearly complicated.  He is involved in litigation and there are a variety of other issues arising. 

11. The matter was in some ways complicated and others simplified by the fact that the report of the single expert Dr A, dated 15 November (which is to say, last Thursday), was received and released on the morning of the interim hearing last Friday.  The written submissions of the mother and all the submissions of the parties were unable to take that into account; however, it is obviously very relevant. 

12. The recommendations of Dr A, which I will come to later, are, in effect, that the situation is such that it would be appropriate to move to unsupervised time, and both the father, Mr Salaway  and the Independent Children’s Lawyer had urged the Court to accept Dr A’s opinion.  For the mother it was said that, of course, the Court is not bound by an expert opinion and, indeed, all an expert can do is provide the benefit of their expertise as applied to the facts as they understand them in order to explain a conclusion that they say follows. 

13. Those facts are made up of different components in the case of a psychiatrist or family consultant or psychologist. 

14. First, there are the observed facts, which is to say the expert’s own expert opinion arising from their interaction with the person which, in the case of a psychologist or psychiatrist, is based on the training, study and experience and, in particular, their clinical experience and involves their ability to make observations about the person’s likely psychological state based upon their personal interaction. 

15. The second is, of course, what the individual tells them, and much emphasis was placed upon the fact that the psychologist obviously cannot know the truth of what the person tells them, and so if the person misleads them and tells them something which is not accurate and they accept that, then, of course, a conclusion which follows from a false premise is likely to be wrong. 

16. The third set of material that the expert will usually have and which Dr A had were the subpoenaed notes. 

17. The mother’s counsel quite rightly said that it was for the Court to carefully consider the factual basis upon which Dr A proceeded and to consider the way in which she has applied her expert opinion to that material, and if the Court was to find as has been urged upon me, that Dr A has been given incorrect statements by Mr Salaway and has proceeded upon the basis of accepting those, then, of course, her opinion is flawed and would not provide a basis for the orders sought.

18. I was taken to a number of paragraphs of her report in particular.  I have reviewed the entire report, but there was a number of paragraphs counsel for the mother emphasised and I think it is appropriate to consider those. 

19. Firstly is paragraph 28 where Dr A said:

    Mr Salaway disputed that he has ever drunk alcohol to the extent that is purported by Ms Clavell.  He added that while he was with Ms Clavell, he was drinking one bottle of wine per day as a way of self-medicating for anxiety although this escalated by 2016.  He said he was encouraged by Ms Clavell to say he was drinking 2 to 3 bottles per day in order to be admitted to rehabilitation at (Clinic).  There are similar notations in the notes of Dr B in 2016 that Mr Salaway was at the time consuming several bottles of alcohol daily and that he sought treatment because he realized his alcohol abuse was impacting adversely on his life.  This will be elaborated on further later. 

20. I note that Mr Salaway’s case is that, in fact, it was his GP who encouraged him to lie.  But it seems quite clear to me that whatever Mr Salaway told Dr A, Dr A has the notes and seems to have proceeded upon the basis that what is in the notes is correct.  So to the extent to which there may have been any attempt by Mr Salaway to mislead her on that, it seems that she has not been misled.

21. At paragraph 92 she says:

    A mental health diagnosis does not exclude a parent taking a significant role in their children’s lives providing that parent has insight into their condition, seeks treatment when needs and complies with recommendations. 

22. I will just note now that that is a relatively uncontroversial statement and one that shows a realistic understanding of the fact that there are caveats upon the ability of the person with a mental health diagnosis to fulfil their role as a parent. 

23. Dr A continues:

    Mr Salaway asserted that his mental health is currently stable and he is not taking any medication or receiving any therapy.  It is important, however, that Mr Salaway continues to monitor the state of his mental health possibly through regular contact with his G.P. and that he comply with any treatment that is recommended.  The trajectory of his mental health history in 2016 suggested that he had limited insight into the onset of his condition and that his compliance with treatment was ambivalent.  He seemed to be torn between attending to treatment and other competing demands and agendas in his life.  The personality difficulties that Mr Salaway has displayed on occasions are amenable to Dialectical Behaviour Therapy and Mr Salaway may wish to consider engaging with a therapist who specialises in this treatment paradigm should further therapeutic intervention be indicated in the future.

24. I note that this was brought to the Court’s attention to show that there are concerns and that the mother is not, in effect, just being difficult, but that she has real reasons to consider that there may be risks to [X], but I do note, again, that regardless of what Mr Salaway may have said to Dr A, her assessment seems to quite objective and, if I can say so, hard-nosed.  Mr Salaway does not seem to think he has got any problems but Dr A is of the view that the trajectory of his mental health since 2016 suggested that he had limited insight into his condition and that his compliance with treatment was ambivalent.  So whilst that paragraph, to which I was taken, does support the fact that there are concerns, which I do not think is seriously in issue, it also suggests to me that the good doctor is very well aware of and alive to the issue. 

1. Similarly, at paragraph 94, she said:

   Similarly, Mr Salaway and Ms Clavell need to monitor their alcohol and drug use.  They both returned negative urinalysis results, however, it is recommended urinalysis continues for some time.  Mr Salaway also indicated his willingness to comply with no alcohol use in the period preceding and during [X] spending time with him.  Mr Salaway maintained this is imperative as it is a sure indicator of a breakdown in the spend time with arrangements if he was to relapse.  It is not uncommon for people who have used substances to relapse when stresses re-present.  It is therefore of the essence that Mr Salaway monitor the impact of any personal or professional difficulties he encounters in the future.

2. Again Dr A, it seems to me, is well aware of the risk issues that Mr Salaway’s and to some extent Ms Clavell’s drinking creates and she does not take a rose-coloured view, recommending that urinalysis continue. 

3. So it seems to me Dr A is quite aware of the significant risk factors and is looking to the question of balancing them, as the Court is required to do, to consider the benefit to [X] of unsupervised time with Mr Salaway against the risks and the question of whether those risks can be ameliorated or are such unacceptable risks that they cannot be.

4. I was taken to paragraph 105 where Dr A said:

   Mr Salaway disputed he has been an absent parent.  He claims that he played a key, hands on parenting role in the period he and Ms Clavell cohabited.  He feels a considerable level of frustration for the lack of acknowledgement he has been given as a parent and the gatekeeping he perceives Ms Clavell and her mother have exercised.  While this may have been the case to some extent, he also displays poor insight into the impact of his volatile and changeable behaviour.

5. Again, it seems to me that Dr A is fully aware of the question of the potential risks that Mr Salaway poses.  The fact that he does appear to have poor insight and that he does not appear to understand that volatile and changing behaviour is not good for [X], is not good for his relationship with the mother, and if it continues and particularly if it continues in a way which impacts on time he spends with [X] is likely, unfortunately, to ultimately result in him having very limited or only supervised time with [X].  That is something he is going to need to come to understand.

6. I was taken to paragraph 107 where Dr A said:

   Mr Salaway expressed a strong desire to be fully involved in all dimensions of [X]’s life but believes he has been sidelined and marginalized by Ms Clavell.  He believes he has been given limited opportunity to take an active role in [X]’s life.  It will be in the interests of [X] that Mr Salaway be a more consistent and regular presence in her life now the ice has been broken and supervised time has commenced.  In light of the circumstances of this case, however, it is recommended that this proceed cautiously. 

7. Again, that seems to me to show that it would quite unrealistic to say that Dr A has proceeded upon anything other than a very realistic and informed basis.

8. At paragraph 111, Dr A noted that:

   Mr Salaway is quite anxious that [X] commence spending unsupervised time with him and although he indicated that he understands that (sic) need to progress in incremental steps, there is a sense of impatience and impulsivity from him as to how quickly he wishes this to proceed.  This raises Ms Clavell’s anxiety for the reasons that have been suggested previously.  It is for this reason that the parties might benefit from engagement with a family therapist who is likely to help Ms Clavell deal with some of her anxieties and Mr Salaway realise that his impatience and impulsivity may not augur well for his co-parenting relationship with Ms Clavell. 

9. It continues at 112:

   In terms of Final Orders, Mr Salaway’s proposal may not be feasible.  The current level of animosity between the parties does not have the makings of a viable equal shared care arrangements (sic).  In addition, Mr Salaway while the primary carer for his older daughter, ]A], is relatively untested in his parenting capacity of [X]. 

10. Those are paragraphs I was particularly taken to and, in those circumstances, I do not accept the suggestion that because Mr Salaway may have not been frank or had insight in discussing his situation with Dr A, that that means that Dr A was not aware of all of the issues and very conscious of the risk factors that arise from Mr Salaway’s conditions, his alcohol use and his impulsivity and, it seems to me, that she took all those things into careful account.

11. Moving on from that, what Dr A said at 113 was:

    Ms Clavell’s proposal for the continuation of supervision is somewhat restrictive in allowing the father/child relationship to continue.  Supervision serves several purposes.  It enables a child to be reintroduced to a parent, it provides a child with a sense of safety from abuse and sometimes it shields parents from further allegations being made against them.  In this case, [X] seems to have had a successful reintroduction to her father.  From the Contact Centre reports and the observations made in the course of this assessment, [X] seems to have a warm and responsive relationship with her father.  Providing Mr Salaway refrains from consuming alcohol prior to and when [X] is in his care, does not use drugs and monitors his mental health there seem to be no risk factors to [X] commencing unsupervised care during the day with him.  Any further supervision, might protect Mr Salaway from further allegations but impedes the father/daughter relationship proceeding in an unfettered way.

12. That is the position that Dr A came to. 

13. Obviously, there is a lot more in the report but it is not appropriate for me to read the whole report onto the transcript.  It is exhibit 1 in the matter before me and it speaks for itself. 

14. I will say that it seems to me that Dr A has carefully considered the relevant issues and she certainly has not taken, on any view of it, a rosy view of Mr Salaway but it seems to me she has taken quite a hard-headed and pragmatic view.

15. Whilst the mother proposes supervised time, Mr Salaway has proposed unsupervised time.  He made a variety of submissions which were not particularly helpful to me and, I must say, did seem to focus more on him than on the child.

16. However, I also had the benefit of an experienced independent children’s lawyer in this case in Ms Nielsen.  Her proposal, which was based upon the report of Dr A, was that whilst the child would live with the mother, going forward the child would spend time with the father on an unsupervised basis for about three hours on a Saturday for the next three or four months and then for six hours on a Saturday after that until we come to see where we are a bit further down the track.

17. In effect, Ms Nielsen has adopted what Dr A has proposed. 

18. I note that the mother has gone through all of the s.60CC(3) factors in her written submission and adopted those in oral submissions, and I accept what they say, but all those submissions really say is that the child should live with the mother, the child should spend most of her time with the mother, and that there are risk factors that need to be taken into account with the father. I accept all of that.

19. The question is, how does one balance those risk factors against the fact that it seems clear that there is going to be a benefit to [X] of having time with the father and the question of whether or not, as Dr A and the ICL say, given that there has been a reintroduction, that with appropriate safety mechanisms it should be feasible appropriate to have unsupervised time, which is, of course, what one usually works towards. 

20. In the circumstances, noting what the Courts have said in Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36, one does not need to go through each of the s.60CC(3) factors where the parties have defined the issues. The issues are relatively narrow and I note that almost all of the s.60CC(3) factors would favour the mother, but where, in effect, the mother will be spending the overwhelming majority of the time with the child, I am satisfied that the reasoning of Dr A is applied to conservative facts and she has not been misled into error by taking Mr Salaway at face value, and I am persuaded by the ICL’s submission that, in the circumstances, taking a cautious approach, and noting that if anything goes wrong these orders will be immediately rescinded, it is appropriate to allow unsupervised time between Mr Salaway and [X].

21. In those circumstances, although I have read the financial material – and, as I have said, I do have some concerns about the veracity of Mr Salaway’s position – I do not think I need to make any formal findings about his financial capacity since the conclusion I have come to is that I should accept the expert’s recommendation supported by the ICL.

22. However, since I have some concerns, I am going to impose further protective factors.  Mr Salaway said he would consent to virtually anything regarding his GP to satisfy the Court and the other parties that it would be safe for [X] to spend unsupervised time with him, and with his consent I propose to make orders about that.

23. I will just note that Dr A, from 123 to 132, set out her recommendations, which I will just summarise.  She recommended that the parties work on a more collaborative relationship so they can share parental responsibility.

24. Obviously, there is not a lot of trust or communication but [X] is three and you have got a long way to go together, so to the extent to which the parties can manage to try and build up their trust and communication, or at least communication, that is going to be helpful.  Dr A suggested the parties be referred to family therapy, and I will hear submissions on that at the end of this judgment.  Since it was not really covered during the argument, it may not be something that should be considered.

25. It is recommended that [X] live with her mother.  That is the current case.  I do not understand anyone is arguing against that.  I am going to make that order.  She said it is recommended that [X] commence spending unsupervised time with the father, and for the reasons I have given, I am going to make an order in accordance with that.  She said that that should be during the day only on a weekly basis.  She has foreshadowed that overnight time be introduced cautiously, she said after a period of six months – I do not know if that is going to be too soon or not – and then incremental increases. 

26. Now, that is a usual course that one looks at.  It is obviously dependent upon how the relationship goes and how the unsupervised time goes.  Obviously, if there is any issue at all with alcohol consumption, if there are issues of failure to care for [X], then that will be an issue.  But Dr A suggested that in the future the Court consider following what you might call the usual course if things go well, which is for gradual increases, but obviously, every gradual and incremental increase depends upon the next step going well.  I am sure Mr Salaway will have that well in mind as this matter proceeds.

27. It was recommended that both parties consider seeking therapy to explore their unresolved family of origin experiences, and the mother and the father may both wish to consider that.  It was recommended that both parties refrain from using drugs or alcohol while [X] is in their care.  The ICL has recommended either the reinstatement or continuation of the former order 6 regarding urinalysis, depending on whether it was current or not, and I am going to make that order.  Dr A recommended that both parties continue random urinalysis and that there be a review, if positive, of the results so returned, and obviously I am going to give the ICL liberty to come back at short notice before me if there are any problems in this case.

28. It is recommended that both parties attend a Circle of Security parenting program, and I am going to make an order that each party attend a Circle of Security parenting program within the next three months and provide evidence of completion of that to the ICL.

29. It is recommended that Mr Salaway’s mental health continue to be monitored by his GP and that he comply with any treatment that is recommended.  This is, of course, along with alcohol, the real concern the mother has, and the ICL and Dr A and the Court all have a concern with it.  I adopt what Dr A said at paragraph 92, and it has been the experience of the Courts that a mental health diagnosis does not exclude a parent taking a significant role in their children's lives, providing that parent has insight into their condition, seeks treatment when needed and complies with recommendations.

30. That applies to professionals across all fields who have mental health conditions of all kinds who perform at a very high level, in very high stress jobs across our community.  But to do that, if there is an issue of mental health problem, it is all about acknowledgment and dealing with it, frankly, accepting the issue and making sure that treatment is sought and recommendations are complied with.

31. Now, the ICL proposed that the father should attend upon his medical general practitioner for the purpose of monitoring his mental health and considering the necessity for a mental health care plan and the father consents.  The father shall continue to attend upon his GP as directed in relation to the management of any identified mental health issues, and to comply with all directions, treatment and referrals by this general practitioner in this regard, and Mr Salaway said he would agree to that. 

32. I also foreshadowed a number of other issues, which I consider to be necessary protective issues, and Mr Salaway said that he would consent to them, because I indicated I would not make the unsupervised time order unless he consented, and I note that if he had not consented I would not have come to this result, but because he did consent I am going to make the order that the father can provide a copy of Dr A’s report to his GP and I order that he shall provide a copy of the report to the GP, so the GP understands the issues that have to be dealt with. 

33. I should say that I understand that this can be very difficult for Mr Salaway or someone in his position.  These orders are not made to seek to humiliate him or embarrass him.  They are not meant to chastise him for having issues of mental health.  The one and only concern this Court has is for [X]’s wellbeing. 

34. I consider it will be good for [X] to have unsupervised time with him, but the mother's concerns are valid.  The ICL’s concerns are valid.  And having him liaise with his GP, and the orders I shall make will authorise the GP to speak to the Independent Children's Lawyer, will satisfy the Independent Children's Lawyer that Mr Salaway is complying, and hopefully we can all be satisfied that everything is well. 

35. As I said, it is a protective measure, since the Court's primary concern is to protect [X], and hopefully those orders being in place, which will include the father providing the GP with a copy of the orders that I am going to make, and providing the ICL with the GP’s contact details and vice versa and an authority to the GP to speak with the ICL, will allow everyone to know what is happening and hopefully to be satisfied that Mr Salaway is taking care of his mental health and is therefore able to take care of [X].

36. There is also a recommendation by Dr A that there be no denigration.  That was not addressed by anybody, but I think it is quite appropriate, and I make the usual order that neither parent denigrate the other in front of [X], nor, if they can, allow any other person to denigrate the other parent in front of [X].  It is not helpful for that kind of thing to happen.  I will an order that the ICL has liberty to apply at short notice to list the matter for review if any issues arise.  Just so that the parties understand, if anything goes wrong, if there are any issues, this matter will come back before me and I will make time to deal with it.  Hopefully that will not happen.

37. As I have said, I am going to make an order that the GP is authorised by these orders to communicate all and any medical information concerning Mr Salaway’s mental health to the Independent Children's Lawyer – Legal Aid NSW – whether orally or in writing, and including to provide the Independent Children's Lawyer with a copy of any mental health plan and information concerning compliance or otherwise.

38. The orders will be in effect in accordance with the short minute of order proposed by the Independent Children's Lawyer.  It will start from next Saturday, 24 November.  I note there are provisions for Christmas Day and [X]’s birthday, which I am going to make.  So it is going to be three hours from November until 16 March, and then from late March, presuming the matter has not come before me and everything is going well, it will move to six hours from March.  I am not going to do anything after that; I think let us just see how we go.  There is also going to be communication between the father and [X] electronically for up to 15 minutes each Wednesday between 5 and 6 pm.  No one said that was not suitable, with the father to initiate a phone call to the mother.

39. I think it would probably be better if it is a public changeover to start with, at least until people are a bit more comfortable.  This also avoids the possibility of having a dispute about what may or may not have been said if there is no one around.  I am going to make order 5, to facilitate the time pursuant to order 3 as agreed, and in the absence of agreement, at a McDonald's midway between the parties or –  I do not want to favour one fast food store over another – another similar location midway between the parties.

40. At the end of the above Judgment the mother indicated that she intends to file an Appeal of this decision and has requested a stay be placed on these orders and there was very short further argument.

41. In those circumstances, where we are moving from supervised to unsupervised time I think I am obliged to grant the stay.  What I will do is I will grant a stay of these orders until the time expires for the filing of an appeal, and if the notice of appeal is filed within time, then the orders will continue to be stayed, subject to the orders of the Family Court.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Bruce Smith

Date: 11 December 2018