Savage and Savage
[2016] FamCA 20
•22 January 2016
FAMILY COURT OF AUSTRALIA
| SAVAGE & SAVAGE | [2016] FamCA 20 |
| FAMILY LAW – CHILDREN – Interim parenting – Best interests of the child – With whom the children spend time – Application for the father for extended unsupervised time – Issue of unacceptable risk of harm – Allegations of family violence – Father’s mental health – Insufficient appropriate evidence from a qualified expert regarding the father’s mental health and parenting capacity – Father’s supervised time with the children extended. |
| Family Law Act 1975 (Cth)ss 60CA, 60CC, 61C, 61DA. 65DAC. |
| Deiter & Deiter [2011] FamCAFC 82 |
| APPLICANT: | Mr Savage |
| RESPONDENT: | Ms Savage |
| FILE NUMBER: | PAC | 4122 | of | 2015 |
| DATE DELIVERED: | 22 January 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 14 December 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Matthews Folbigg Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Battley |
| SOLICITOR FOR THE RESPONDENT: | Murray J Nott Solicitor |
Orders
Pending further order
B born … 2011 and C born … 2013 (the children) shall live with the Mother.
The children shall spend time with the Father each week for a period of four hours as agreed between the parties and failing agreement each Saturday, such time to be supervised by Phoenix Rising or such other agency or person as agreed between the parties.
The children’s time with the Father is to commence as soon as practicable and each of the parents is to do all things required of them to facilitate the supervision by Phoenix Rising or any other service as agreed by the parties.
The parties shall equally meet the costs of supervision and all incidental costs including the costs of a report after each occasion of time with the Father.
The parties shall instruct Phoenix Rising or such other agency to provide the report referred to in Order 4 to both parties.
The children shall spend time with their father at any other time as agreed between the parties.
The children shall have telephone communication with their Father every Monday, Wednesday and Friday between 6.30am and 7am. For the purpose of this order, the Mother shall encourage the children to participate and shall initiate the call using the Father’s mobile phone number. The mother is restrained from requiring the Father to comply with any other condition, including that such telephone calls be recorded.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Savage & Savage 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 PARRAMATTA |
FILE NUMBER: PAC 4122 of 2015
| Mr Savage |
Applicant
And
| Ms Savage |
Respondent
REASONS FOR JUDGMENT
Introduction
In parenting and property proceedings, the father brings an application for interim parenting orders concerning the parties’ two children, B who is four and C who is two. He seeks that the current interim orders made with the consent of the parties on 9 October 2015 be discharged, that the parents equally share parental responsibility for the children and that the children live with him for six days per fortnight and for specified time including overnight at Christmas and other special occasions. He also seeks orders that the children are otherwise to live with their mother provided that she attends upon her treating psychiatrist and complies with all directions from that practitioner.
The mother opposes the father’s application and contends that there would be an unacceptable risk of harm to the children if orders are made as proposed by the father. She proposes that there be a slight increase in the supervised time the children spend with their father under the orders made on 9 October 2015 being four hours each Saturday afternoon.
Background
The father who is 30, and the mother who is 29, began living together in about January 2011. Their first child B who is now four was born in 2011.
From January 2012 until November 2012, the family lived in Country H. The parents married in 2012 and soon after returned to live in Sydney. Their second child C who is now two, was born in 2013. C was born seven weeks premature and spent some time in a neonatal intensive care unit.
In January 2014 the mother was diagnosed with post- natal depression, though, as I understand it, she disputes this diagnosis. The mother was admitted to the D Hospital mother and baby for six weeks in January/February 2014. Subsequently the diagnosis was changed to Bipolar disorder and the mother spent a further time in the hospital a short time later. The mother received medication and other treatment for Bipolar disorder for a couple of months following this discharge.
There is a significant dispute between the parties concerning the level of the father’s involvement in the care of the children.
The mother also contends that the father behaved in a controlling manner toward her during the relationship including by way of financial control and control in aspects of parenting. This is a matter of dispute between the parties.
The father was a victim of work place bullying which he says commenced in late 2013 though he did not make a formal complaint about it to his employer until late 2014.
On 12 January 2015, due to the effect of the work place bullying the father became distressed, went to an area in his office on the eighth floor of a city building where there is open access to the void below, walked to the edge of the void and considered jumping but changed his mind. He went back to his work area and called the employee assistance hot line. Although the father then worked for the remainder of the day, he took three days off work, consulted his general practitioner and obtained a referral to a clinical psychologist.
The father then voluntarily admitted himself into hospital for two nights followed by four weeks treatment as an inpatient at E Clinic. He was diagnosed with a depressive episode and was under the care of a psychiatrist, Dr F. After being discharged from the clinic the father attended the same clinic as an outpatient for two days per week for approximately eight weeks. The father continued to regularly consult with the psychiatrist in the following months and took prescribed antidepressant medication. The psychiatrist also referred the father to a psychologist who the father saw on a number of occasions for at least four months.
At the end of May 2015 the father made a claim for workers compensation benefits and liability for his injury was accepted by his employer’s insurer the following month.
The parties had some relationship difficulties throughout their marriage and there were a number of short periods of separation of several days at various times.
In May 2015 the parties engaged the services of a person known as Mr G. Both parties appear to agree that they participated with Mr G in sexual activity, but the mother contends that her participation occurred without her consent, that the father compelled her to participate and that she was injured in the experience. There is a significant dispute between the parties about the role Mr G played in their intimate life.
The parties separated on 3 June 2015. Following separation the children continued to live with their mother and the father moved into the paternal grandfather’s home.
Initially, following separation the father spent time with the children between two and five consecutive nights each week in an equal shared care arrangement. The regime continued for about a month.
The father continued to consult with his psychiatrist. On 6 July 2015, Dr F described the father’s mood as having deteriorated considerably since his last appointment due to the parties’ separation. A report by the Doctor indicates that the mother attended the last part of the interview between the doctor and the father.
On 8 July 2015 when the father was due to collect the children pursuant to the informal arrangement he had negotiated with the mother, there was an interchange of text messages about the father’s mental health in which the mother sought the father’s confirmation that one of his parents would be available to supervise when the children were in his care. Ultimately, the children did not pass into the father’s care.
When the father’s psychiatrist reviewed the father on 13 July 2015 he described the father as having “improved remarkably since his last visit”.
An application for an apprehended domestic violence order (ADVO) was made by police on behalf of the mother on 31 August 2015 relating to an alleged incident on 30 August. The application records that the mother told police that the father “on numerous occasions has tried to take his life”. It states that the mother “holds fears for the (sic) safety and the safety of her children as she believes that he will try and take his life and the life of their kids.”
On 4 September 2015 following a ADVO hearing, interim orders were made prohibiting the father from assaulting, molesting, harassing, threatening or otherwise interfering with the mother or the children, intimidating her, or stalking her, (described as the standard orders) and that the father not approach or contact the children except through his legal representative or as authorised by a parenting order.
The father did not spend any time with the children after 6 July 2015 until he brought proceedings in the Federal Circuit Court and orders were made on
9 October 2015. Pursuant to those orders the children were to spend time with their father each Saturday afternoon for three hours, supervised by a private agency, Phoenix Rising. The interim orders were to be in force until 4pm on
17 November 2015 and there were to be five occasions of time with the father prior to the next listed court event on that date.
The father spent time with the children on four occasions in accordance with the orders. Reports of the supervising agency are positive and record nothing untoward in relation to the father’s behaviour or interaction with the children.
Although neither of the parties refer to this in their respective affidavits, a package was delivered on 11 November 2015 to the mother’s solicitors office which the maternal grandmother appears to have considered to be in some way relevant to the father’s mental state and that in sending it the father “used his mother to make implied death threats [to the mother and the children]”.
On 13 November 2015 a domestic violence liaison officer from the New South Wales Police sent an email to Phoenix Rising. In the email, the officer advised that service that the mother reported an incident to police on 13 November and that as a result of the report “police have identified a possible domestic violence related offence and threat to the safety to both the children and Ms Savage”. It went on to advise that police and the mother believe there may be an immediate risk of harm to the children and the mother would not be making the children available for their time with the father the following day. The mother did not make the children available for time with their father pursuant to the orders on 14 November 2015.
On 18 November 2015 the interim ADVO orders were further varied by adding an order to the effect that the father was prohibited from approaching or contacting the mother, except through his legal representative or as agreed in writing or permitted by an order or directions under the Family Law Act as to counselling conciliation or mediation.
On 17 November 2015, the matter was adjourned for further mention and directions the following day, though as I understand it, some evidence was taken in those interim proceedings on that day. Subsequently, a Judge of the Federal Circuit Court transferred the matter to the Family Court without making further interim orders. The application for interim orders came before me on 14 December 2015.
The father’s application
The father seeks final orders that there be an almost equal time living arrangement for the children with them spending block periods of four nights in his care in the first week of a fortnightly cycle and two nights in the alternate week. In his interim application he seeks similar orders that the children spend time with him for five nights in the first week of a fortnightly period and one night in the alternate week. It is his case that there is no unacceptable risk of harm to the children in his care. The father also contends as I understand it, that there is a risk to the children in the mother’s care as he seeks orders that they live with her on condition that she attend upon her treating psychiatrist and comply with directions from that practitioner.
The mother’s contention is that there is an unacceptable risk of harm to the children if they spend time with the father as proposed as a result of the father’s mental condition and associated risk of suicidality. It is the mother’s position that an appropriate order in the best interests of the children is for them to spend time with their father each Saturday for a period of four hours, and that such time be supervised.
The father contends that there is no basis for the mother’s alleged concerns about any risk of harm he poses to the children as a result of his mental health difficulties. He says that at all times he has provided the mother with medical reports from his treating psychiatrist and that most of the matters that cause the mother concern occurred prior to the parties separation and informal agreement under which they essentially shared the care of the children. He also says that nothing untoward occurred when he spent time with the children on four occasions, supervised by a professional supervision service and that the mother has not provided any explanation for not making the children available to spend the last occasion of time with him. He says that currently there is no need for supervision of his time with the children.
Although the parties’ affidavits and the mother’s written case outline are directed to a whole range of matters of dispute between the parties, especially the mother’s allegations that the father is a perpetrator of family violence, the nub of the dispute in this application is whether there is an unacceptable risk of harm to the children if they were to spend unsupervised time with the father as he proposes.
The father’s mental health
It is the father’s position that there are no current psychiatric conditions that give rise to any concerns about his capacity to care for the children. He relies upon seven of reports from Dr F which he has provided to the mother’s solicitor. Some of these reports, such as one dated 4 March 2015 predate the parties’ separation.
As indicated above, the father’s mental state has fluctuated according to his psychiatrist reports. On 18 May 2015, the psychiatrist expressed the opinion that the father “continues to go from strength to strength”. By 6 July 2015 after the parties had finally separated, the doctor opined that the father’s mood had deteriorated considerably. By the following week, 13 July the doctor was of the opinion that the father had improved remarkably.
In a letter dated 19 July 2015 Dr F outlined the treatment that the father received and which he says the father complied with, and responded to well. At that date he said that “the depressive illness is in remission”. The doctor also opined that the father’s prognosis is “essentially good” and expressed the opinion that the father “is low risk to self and others including his children” though the doctor noted that he has not directly observed the father caring for his children.
When the psychiatrist reviewed the father on 28 August 2015 he said that the father’s condition remained unchanged.
The father also contends that his appropriate and healthy functioning in other aspects of his life such as in his employment supports his contention that he is not impaired by his depressive illness which is in remission. An affidavit provided by the father’s employer, deposes to him having a quite senior regulatory role in the banking industry which requires that he travel internationally and within Australia and that he manages and negotiates relationships with his colleagues and undertakes complex work. The employer is aware of the father’s mental health issues earlier in 2015, but says that there have been no difficulties in his functioning since around April 2015.
It is also the father’s position that the reports from the professional supervision agency which indicate that he responded appropriately with the children during their time together in October and November 2015 support his contention that there are no concerns in relation to his care of the children as a result of any mental health condition.
The mother’s response to the father’s application is that it is in the children’s best interests for orders to be made that the children live with her and spend supervised time with the father for a period of 4 hours once a week to be supervised by either a person nominated by her (to which the father does not consent) or by a professional supervision service. It is the mother’s contention that an unacceptable risk of harm to the children arises and that the court cannot rely upon the letters written by Dr F, the father’s treating psychiatrist with respect to his opinion concerning the father’s parental capacity. The mother submits that the court could not make appropriate findings concerning the risk of harm without a full psychiatric assessment.
The mother gives some evidence of the children’s behaviour around the time that they spent time with their father in October 2015 but gives no explanation for her failure to make the children available to the father on the last occasion he was to spend time with them in November 2015. This is despite the fact that she gave police some information on 13 November concerning an alleged threat to the safety of herself and the children. No account of this interaction with police is contained in her affidavit
The Law
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].
[1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Goode (supra) sets out a framework for the conduct of interim proceedings. The court must identify the competing proposals, identify the issues in dispute and identify the agreed or uncontested relevant facts. Some consideration should also need to be given to the contested facts where matters of risk arise in the matter.[2]
[2] Deiter & Deiter [2011] FamCAFC 82; George and George [2013] FamCAFC 182; SS & AH [2010] FamCAFC 13
In Dieter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. This is a parenting application that was initiated in August 2015. The parties are due to participate in an intake event for the child responsive program on 9 February 2016. It is not clear whether any further information will come to light to enable the parties to revisit this interim application. In these circumstances the interim orders may endure for a matter of many months.
Section 60CC considerations – What order is in the best interests of the children?
Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3). The primary considerations, which are contained in subsection (2), are:
a) The benefit to the child of having a “meaningful relationship” with both of the child’s parents; and
b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).
Although the Act does not define the meaning of a meaningful relationship, the Full Court has held that such a relationship is one which is “of significance” or “substantial”[3]. It can be assumed at this stage that the children will receive a benefit from having a meaningful relationship with each of the parents. Each of the proposals of the parents provide for the children to spend time with the father and live with the mother. In this way the children would receive the benefit of having a meaningful relationship with both of the children’s parents. The father’s proposal for an almost equal time arrangement is similar to that which was agreed between the parties following separation.
[3]Mazorski & Albright [2007] FamCA 520; McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
The basis of the mother’s proposed orders that the children’s time with their father be supervised and her opposition to the orders proposed by him are based upon the need to protect the children from harm. However, the principal area for concern for the mother relates to the father’s capacity as a result of a mental condition rather than an allegation that the children require protection from being subjected to or exposed to abuse, neglect or family violence.
The mother does however set out in considerable detail in her affidavit and in her Notice of Risk allegations of matters that she says indicate that the children are at risk of abuse. Although this matter was not developed in the course of submissions made on behalf of the mother, I accept the submission made on behalf of the father that many of the matters set out in that Notice could not amount to abuse even taken at their highest. For example, the mother sets out in that Notice differing views between the parents concerning nappies and language alleged to have been used toward the children and some actions taken to discipline the children which could not in my view amount to abuse or neglect as defined in the Act.
Similarly the matters the mother raises with respect to exposure to family violence are highly contested and are unable to be determined in this interim application. In the course of submissions this consideration was not developed further.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.
Views expressed by the children
The views of the children are unknown and in any event they are too young for the court to attach any weight to them.
The nature of the relationship of the children with each of their parents and other persons
Although there is no evidence from an expert as to the nature of the relationship of the children with each of their parents, given the involvement of each of them in the care of the children prior to and immediately following separation it can be assumed that the children enjoy a close attachment relationship with each parent. The reports from Phoenix Rising also describe warm and affectionate interactions between the father and children consistent with this relationship.
The nature of the relationship with other relatives is unknown though it appears that each of the paternal and maternal grandparents have been closely involved in the children’s lives.
Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the children
The mother has had almost exclusive care of the children since early July 2015 shortly after separation and it would appear has made all decisions in relation to the children. The father has at all times however, been keen to exercise parental responsibility and seeks an order that it be equally shared between the parents.
The father complains that he has been hindered in his communication with the children. He says that although the 9 October 2015 orders provided for the children to have telephone communication with him three times a week, the mother requested that he agree to recording those telephone conversations. He says he initially did agree to this on the first occasion and when he declined that request on subsequent occasions, the mother terminated the calls without allowing the children to speak to him. It is not known whether the mother agrees that this has occurred. In these circumstances it is appropriate to make an order restraining the mother from adding any such conditions to court ordered communication.
Likely effect of any change in the child’s circumstances, including the likely effect of separation from either parent, or other child, or other person with whom the child has lived.
Immediately following separation in June 2015 for a period of about one month the children were cared for on an equal basis by each of their parents.
The children spent no time with their father from early July 2015 for a period of at least three months and then began spending time with him for three hours each Saturday. The reports from Phoenix Rising indicate that the children settled happily into spending time with their father and describe the children as being excited to see him. It can be inferred that the children would have missed their father when they once again have not spent any time with him for a couple of months.
As the mother has been the children’s primary carer for six months and they have spent quite limited time with their father, it is likely given their age that they would experience some difficulty associated with the extent of the separation from their mother involved in the parenting regime proposed by the father under which they spend several consecutive nights in his care.
Practical difficulty and expense of a child spending time with and communicating with a parent
There is considerable expense associated with supervised care as proposed by the mother. This is a particular burden if, as the father perceives it, supervision is not required in the circumstances and the father must bear the costs of it entirely. In my view there seems to be no reason why the father should bear the entire costs of a private supervision service where the purpose of the children spending time with him is to benefit the children. This is especially so when it is said that the need for supervision arises due to concerns about the father’s mental condition rather that any concerns about the father’s conduct.
Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs
In my view this consideration is one of the most significant in these parenting proceedings. Although the mother raises serious allegations that the father is the perpetrator of violence, her central concern with respect to the interim application is that due to the father’s mental health difficulties and suicidality in particular he lacks capacity to care for the children under the orders he proposes. It is the father’s case that his capacity is not impaired to the degree contended for by the mother and he relies upon reports from his treating psychiatrist and people who have observed and experienced him in other settings in this regard.
It would appear that the mother did not have concerns about the father’s parenting capacity that may arise from events prior to 6 July 2015 as up until this date she had agreed to a parenting arrangement which involved the father caring for the children on an equal basis with herself. In my view the suggestion that the father’s suicidal ideation prior to this date gives rise to concern is inconsistent with this position.
Similarly, the mother cannot rely on any events said to have occurred in around November 2015 which caused her to involve police and withhold the children from time with their father on the last occasion, as she does not give evidence of any behaviour by the father which caused her to have concerns about his parental capacity. I do not understand the meaning of the affidavit of the maternal grandmother as to her observations about the package delivered to the mother’s solicitor on 11 November 2015, or why she formed the view that the father was in some way threatening to harm the mother and the children. I attach no weight to that affidavit.
However, I agree with the submission made on behalf of the mother that a report from an appropriately qualified independent expert is required for the court to make an assessment concerning any risks that may be associated with the father’s mental health. It is clear from the various reports tendered by the father’s treating psychiatrist that his mental state has fluctuated widely between April 2015 and late August 2015 and no more recent information is available for the assistance of the Court.
The parties have agreed that an expert psychiatrist be appointed as a court expert for the purposes of the proceedings. In my view such an appointment is appropriate not only to assess any risk of harm that may arise from the father’s mental state as contended by the mother, but also to assist in relation to the mother’s capacity given that she has been diagnosed and hospitalised for Bi-Polar Disorder. At this stage however, I accept to the submission made on behalf of the mother that the father cannot hold concerns that the children are at an unacceptable risk of harm in the care of the mother due to her mental health, when his application proposes that they still spend more time in the care of the mother that in his care.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
At this stage little is known about the attitude towards the children and the responsibilities of parenthood demonstrated by each of the parents though I have some concerns about the mother in this regard, given that she has not satisfactorily explained why she failed to make the children available to spend time with their father on the last occasion that time was to occur in 2015.
Any family violence involving the child or a member of child’s family
The mother makes serious allegations with respect to family violence which are vehemently denied by the father. I am not in a position to make an extensive assessment of these allegations.
However, I note that in her complaint to police on 31 August 2015 which led to an application for a ADVO, the mother referred only to her concerns about the father’s mental health and that he had attempted on the previous day to locate her home address through contact with her general practitioner. Although the mother complained to police that she left the father due to the father’s controlling behaviour particularly in relation to financial matters, she make no complaints of violence including the serious allegation that she was coerced into a sexual relationship with Mr G which resulted in her being injured. In this regard I also accept the submission made on behalf of the father that the tenor of the email exchange between the mother and Mr G attached to the father’s affidavit, is consistent with the father’s position that interaction with both parties and Mr G was consensual and that the mother continued to pursue some form of separate relationship with Mr G.
I have some concerns that there may be a degree of exaggeration in the mother’s allegations of violence against the father, as she contacted police with information that suggested that the father may directly harm her and the children on 13 November 2015 but does not refer to it in her evidence. The mother also does not refer to the circumstances in which the AVO for her protection was first made in September 2015 but simply attaches a later version of the same order to an affidavit filed by a staff member at her solicitor’s office. This appears to suggest that the AVO was first made on 4 November 2015, when court records reveal that that order was one of a series of orders made resulting from the complaint in August 2015.
While I cannot make any further determination concerning the issue of family violence, it is not in my view sufficient of itself to form the basis for supervision of the father’s time with the children.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child. The father seeks an order for equal shared parental responsibility, and the mother seeks sole parental responsibility for the children
In Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.
Under s 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply:
·If there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s 61DA(2)) or
·When the Court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)).
At this interim stage, in my view, it would not be appropriate in the circumstances to apply the presumption under s 61DA(1) of the Act as so many critical facts relating to their best interests are unknown or in dispute (s 61DA(3)). Further, the lack of trust between the parties and level of acrimony is such that they would not currently be able to share the exercise of parental responsibility.
An order for sole parental responsibility could only be made where the court concludes that it is in the best interests of the children for one parent only to make long term decisions for them. At this interim stage I cannot make such a finding and do not make order for sole parental responsibility sought by the mother.
In my view it is in the best interests for the children for the parties to continue to exercise parental responsibility either independently or jointly as a result of s 61C.
Conclusion
For the foregoing reasons, I cannot make the findings that the father has behaved in a controlling or violent way as alleged by the mother or that an unacceptable risk of harm in this regard arises that would necessitate the father’s time with the children being supervised. However, as I do not have appropriate evidence from a suitably qualified expert concerning the father’s mental health as it applies to his parenting capacity, I am of the view that there is some risk of harm to the children and at this stage it is appropriate to mitigate that risk by requiring that the father’s time with them be supervised. Further, the change in the children’s circumstances which would occur if the orders are made as sought by the father would involve significant separation from the children’s mother. Given their ages and relationship with their mother I cannot be satisfied that the orders proposed by the father are in their best interests.
While I am of the view that it may be appropriate for the children to spend more supervised time with the father than the four hours agreed to by the mother, this was not proposed or considered in the interim proceedings and issues such as the availability of a supervisor for a lengthier period of time and the issue of costs to the parties are unknown. However, for the reasons earlier given I am of the view that the supervision costs for the four hours per week I propose to order should be borne equally by the parties.
I certify that the preceding seventy eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 22 January 2016.
Legal Associate:
Date: 22 January 2016
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