Stopford Malloy & Malloy (No 3) - [2017] FamCA 932

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY (NO 3)

[2017] FamCA 932

FAMILY LAW – CHILDREN – Where the parties produced orders that they sought the court to make by consent – Where there were some concerns as to the orders and notations sought – Where it is not appropriate to make notations in the place of orders – Where it is proposed that a third party supervisor determine the father’s time with the child – Where it is not appropriate for the court to delegate its power to a third party – Where it is the job of the court to determine the best interests of the child – Where certain orders and notations in the terms of settlement produced were declined to be made – Where alternative orders in an appropriate form made by consent.

Family Law Act 1975 (Cth) ss 60CC, 65D

Gorman & Huffman and Anor [2016] FamCAFC 174
Grollo & Bilson (No 2) [2017] FamCA 440
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

APPLICANT:

Ms Stopford Malloy

RESPONDENT:

Mr Malloy

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

2595

2015

DATE DELIVERED:

31 October 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Hannam J

HEARING DATE:

30 & 31 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr McGinn
SOLICITOR FOR THE APPLICANT:	Piper Alderman

COUNSEL FOR THE RESPONDENT:	Ms Dickson
SOLICITOR FOR THE RESPONDENT:	Howe Jenkin

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders By Consent

That the mother have the sole parental responsibility for C born … 2014 ("the child") on condition that:-
1.1.The following decisions shall only be made in relation to the child with joint consent of both parties:-
1.1.1.The child's enrolment at child care, kindergarten or school with the exception where the child is enrolled at the ZZ School; and
1.1.2.Any major medical decisions (save and except in the event of a medical emergency) in relation to the child,

PROVIDED THAT if the mother provides the father with notice of an intention to enrol the child at child care, kindergarten or school or make a major medical decision and the father fails to provide a response, within 21 days in the case of child care, kindergarten or school, or 7 days in the case of a major medical decision, then the mother be at liberty to proceed without the father's consent.

1.2 That once a joint decision has been made, the mother is to provide the necessary instructions for the decision to be given effect.

The mother shall keep the father informed monthly by email in relation to the following:-
2.1.Specialist medical appointments in relation to the child including the names and contact details of the treating specialist and the times and dates of any appointments; and
2.2.Any information provided by disability support organisations in relation to the child, including but not limited to Autism SA.
The father be at liberty to speak to, attend upon and obtain information directly at his expense from each of the following:-
3.1.Any of the child's treating medical professionals; and
3.2.The child's child care provider, kindergarten or school.
That the child do live with the mother.
That the parties do attend mediation with their legal representatives (if any) no later than … 2018 (‘the date of review”) to discuss the child’s time with the father from his 4^th birthday as to the contents of paragraphs 7 to 10, 16.3, 17, 20, 23, 25.8 - 25.10, 25.12, 26 and 27 of these Orders.
That in the event that the parties are unable to reach agreement in relation to any of the issues to be discussed during the mediation at the date of review, then either party is at liberty to file an Application seeking orders with neither the mother or the father to rely upon the principles established in Rice & Asplund about that issue.
That the child spend time with the father as follows:-
7.1.commencing on the Monday following the date of these Orders until 31 January 2018 from 10.00am until 12 noon each alternate Monday or such other day as nominated by the agreed supervisor in consultation with the parties ;
7.2.as and from 1 February 2018 from 10:00 am until 2.00pm each alternate Monday;
7.3.on the child’s birthday in 2018 from 10:00 am until 2:00 pm on the basis that the father’s time on the Monday immediately following the child’s time shall be suspended;
7.4.on the Monday before the father’s birthday on … 2018 from 10:00 am until 2:00 pm;
7.5.on Father’s Day in 2018 from 10:00 am to 2:00 pm;
7.6.on Christmas Eve in 2017 from 10.00am to 12 noon or such other time as close to Christmas Day as can be arranged with the supervisors; and
7.7.that the father's time with The child do stand suspended on Easter Sunday and Mother's Day.
That the father’s time with the child pursuant to paragraphs 7 herein shall be:-
8.1.Supervised by Ms AN and in the event that the said Ms AN is not available then by Ms TT or then such other supervisor as the parties agree (“the supervisors”) until no earlier than 30 April 2018 or such later date calculated on the father having spent time with the child for a cumulative period equivalent to him spending time with the child on all occasions pursuant to paragraphs 7.1 and 7.2 herein until 30 April 2018 with the father’s time thereafter to be supervised as agreed between the parties in consultation with the supervisor or if no agreement as ordered by the Court.
8.2.All supervised time between the father and the child shall occur at the father’s residence or such other location as agreed between the father and the supervisors with all handovers to be conducted between the mother and the supervisors at the father’s residence.
That in the event that the father’s time with the child ceases to be supervised then handovers are to be facilitated by the mother delivering and collecting the child from the SR Park, other than for the purposes of paragraph 10 herein.
In the event that the father’s time with the child is unsupervised and the child cannot be settled or remains distressed after ten (10) minutes then the husband shall contact the wife who shall collect the child and the husband’s time shall thereupon end.
That the father do cause the costs of supervision to be paid.
That the father do complete the "Understanding Behaviour (Part I and 2)" parenting course with Autism SA as soon as practicable and upon completion do supply a copy of the certificate of completion to the mother's solicitors.
Each party be at liberty to speak to the supervisor regarding the child's circumstances and the mother be permitted to provide to the supervisors any updated medical records or medical information.
That the mother be permitted to provide the Family Assessment Reports to the supervisors prior to the commencement of the father spending time with the child.
That the father be permitted to provide the Children's Contact Centre observational notes to the supervisors prior to the commencement of the father spending time with the child.
That the father do, prior to spending time with The child, make all repairs and modifications to the father's place of residence to the applicable Australian standard in respect of:-
16.1.installation of a handrail on the outside rear red brick stairs leading to the garden and pool area;
16.2.maintaining the pool and all gate locks in working order; and
16.3.Installation of temporary child-gates at the top and bottom of the outside rear red brick stairs.
That following the mother’s advice to the father that the child has commenced swimming lessons, the father be permitted to take the child swimming by prior written agreement with the mother and the father will ensure the child wears a suitable life jacket.
That the father be at liberty to undertake car travel with the child upon the condition that the father's motor vehicle is fitted with a suitable child car restraint by a professional.
That the time that the father spends with the child shall stand suspended on each of the following:-
19.1.On days which the mother provides written notice to the father that the child must attend upon a medical professional, therapist or school or kindergarten event upon the mother's undertaking that she shall avoid making appointments for the child during the time which he is to spend with the father if at all possible and on condition that make up time is provided to the father for any time not spent with the child;
19.2.on days during any period of time that the father is travelling outside of South Australia;
19.3.on days during any period of time that the child shall travel with the mother outside of South Australia provided there is makeup time given to the father.
That each party being Ms Stopford Malloy born … 1981 and Mr Malloy born … 1969, their servants or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child C born … 2014 from the Commonwealth of Australia until 13 October 2032 AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the child on the Family Law Watch List enforced at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List for the said period or until the Court orders its removal or with the consent of all parties required to provide consent pursuant to Part VII of the Family Law Act 1975 (Cth).
That the wife be at liberty to travel from time to time outside of South Australia within the Commonwealth of Australia with the child upon providing 14 days written notice to the father of the mother’s intention to travel outside of South Australia with the child, such notice to identify the period of time which the mother shall be outside of South Australia with makeup time to be provided to the father for any time which he misses with the child.
That the father shall provide at least 36 hours' written notice by email or text message to the mother and any relevant supervisor of the father being unable to spend time with the child for any period or any consecutive periods of time, identifying the commencement and conclusion of such period or periods.
That the father shall be present with the child throughout any period of period of time which the father spends with the child and shall not leave the child in the care of any other person and that for the purposes of travelling by motor vehicle with the child the father drive such motor vehicle and not permit any other person to drive the vehicle without the written consent having first been obtained from the mother.
That the mother do authorise the father to consult at his expense with:-
24.1.each of the child's therapists and treating health professionals (noting that this Order does not bind any therapist or health professional to consult with the father) and the father shall so consult as soon as practicable; and
24.2.each school or kindergarten at which the child attends to obtain at the father's expense copies of the child's school reports and photographs.
That without admission each of the parties be restrained and an injunction is granted restraining each of them from:-
25.1.consuming any alcohol to excess or illicit substances 24 hours before or during any period of time with the child;
25.2.permitting or suffering any person affected by alcohol or illicit substance to remain in the presence of the child;
25.3.denigrating the other or any member of the other's family or permitting or suffering any other person to do so while spending time with the child;
25.4.discussing with or in the presence of the child the content or subject matter of any application or affidavit or report filed in or obtained for the purposes of the proceedings or permitting or suffering any other person to do so whilst spending time with the child;
25.5.displaying or making available for listening or viewing any material which is not classified as suitable for a child of The child's age by the Australian Classification Board (or its equivalent) from time to time or permitting or suffering any other person to do so whilst spending time with the child;
25.6.acting in any threatening or harassing or intimidating way towards any other person including the other party or permitting any other person to do so in the presence of the child;
25.7.following or keeping the other party under surveillance or permitting or authorising or suffering any person to follow or surveil the other party;
25.8.taking the child on any watercraft without the other party's written consent having been obtained beforehand;
25.9.communicating with each other than by text message, email or communication book save and except for the purposes of giving effect to paragraphs 10 and 32 of these orders by telephoning the other party’s mobile telephone;
25.10.bringing the child into the presence of or permitting any other person to bring the child into the presence of the father's sister Ms FJ Malloy; and
25.11.permitting or causing the child to attend at or upon the residence at V Street, Suburb B South Australia;
25.12.permitting the child to ride a horse.
That the parties ensure that the child wears his autism ID bracelet at all times and walking reins when not at home as recommended by the child's medical specialists.
That the parties do obtain a report of observations from the supervisors at the husband’s expense prior to the mediation referred to in paragraph 5 herein.
The parties agree to abide by the therapeutic practices and safety measures as advised by the child's medical specialists or Autism SA.
That the parties shall communicate in relation to the child's welfare in giving effect to these Orders by the use of a Communication Book that shall pass between the parties at each and every occasion when the child spends time with the father by placing the same in the child's bag or by email at the time of handover.
That each of the parties be at liberty to attend all school/kindergarten functions or school/kindergarten sport and related extracurricular activities and events at which parents are ordinarily invited to participate in and or attend upon condition the father give the mother 48 hours' notice of his intention to attend.
That each party keep the other informed of their current residential address, telephone number and email address and advise the other party of any change to same within 48 hours prior to the father’s time with the child.
That each party immediately inform the other of any serious illness, injury or accident involving the child with each party at liberty to visit the child during regular visiting hours in the event that the child is admitted to hospital.
That the question of the Independent Children’s Lawyer's costs be reserved.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stopford Malloy & Malloy (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2595 of 2017

Ms Stopford Malloy

Applicant

And

Mr Malloy

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

Parenting proceedings, in respect of C, a little boy of three, were due to commence for final hearing yesterday. Rather than commence with the hearing, I was informed that the proceedings had settled, and the parties handed up orders that they sought the Court to make as final orders. I note that the independent children’s lawyer also supported that those orders be made in the best interests of the child.
Initially, I raised concerns about some of the orders, falling into two categories, and after the parties obtaining further instructions and some oral argument, a second and largely similar version, but with some amendments, was handed up, and today I have marked that as Exhibit 3.
Exhibit 3 also raised roughly the same two areas of concern as the first proposed consent orders, which I will return to in a moment. In the course of argument, there was a further version of part of one of the orders – that is, part of order 8, which was handed up, and that was marked as Exhibit 2. The parties consented to that part of the order, contained in Exhibit 2, being made as an alternative to that part in Exhibit 3, but the preference for both parties was that it be in accordance with Exhibit 3.

Background

I will give just a short background so that the context in which these consent orders are sought is understood.
The parents in this matter (“the mother” and “the father”) finally separated in January 2016, after a six-year relationship, three years of which they were married. They had previously had other separations. At the time of the separation, the child was about 15 months old.
Following separation, the child lived with the mother and spent some limited time, largely supervised, with the father. The mother’s position, as can be gleaned from the case outline filed last week, is while the child should have the benefit of a meaningful relationship with his father, he is a vulnerable child who has been exposed to physical harm and abusive and violent conduct, perpetrated by the father, towards herself, both before and after separation.
It is also contended on her behalf in that outline, that the father fails to demonstrate any awareness about the impact of his own behaviour upon the welfare of the child and, on this basis, poses an unacceptable risk to the child’s physical and emotional wellbeing. It was contended on her behalf that this requires that the father’s time with the child, in the short to medium term, be supervised.
The mother also puts forth her position in the case outline, relating to many of the other considerations contained in section 60CC, and many of those, so far as I understand it, are not matters in dispute. They include that the child’s primary attachment relationship is with the mother, that the father has not had the lived reality of caring for the child in a normalised setting, and that virtually all the child’s time since separation, with the father, has occurred at a contact centre and that the father’s extended family or his partner have played no role in the care of the child. There also, ultimately, appears to be no dispute that the child is vulnerable and has been diagnosed with various conditions, including severe autism spectrum disorder and requires very substantial daily support.
Related to the issue of the need to protect the child from harm, the mother also contends that the father has shown a poor attitude to the responsibilities of parenthood, and is adult-focused and his attitude is based on entitlement, rather than one which serves the child’s needs. Many of the shortcomings, set out in the mother’s outline of case, relate to this consideration and to the consideration concerning parental capacity.
With respect to parental capacity, it was to be contended, on behalf of the mother, that the father is reckless in his adherence to care arrangements, displays a lack of empathy about the child’s circumstances and has not availed himself of opportunities to acquaint himself with knowledge about autism. The net effect of the mother’s contentions was to be that, due to the risk of harm posed by the father, and his shortcomings in parental capacity, the child’s time with the father was required to be supervised, at least in the short to medium term, to mitigate that risk.

The father’s position, as can be gleaned from his case outline, is that he does not pose an unacceptable risk of harm to the child, nor does he have the shortcomings in his parenting capacity that require his time with the child to be supervised.
It was contended on his behalf, in that outline, or was to be contended on his behalf, that the mother has deliberately limited the child’s time with him since separation, and that the reports from the contact service, particularly in recent times (which are contained in Exhibit 1) show there is a positive and loving relationship between himself and the child, and that he has sufficient capacity to care for the child, such that it is in the best interests of the child for that time to be increased and to become unsupervised.
Given the child’s age, his particular vulnerabilities and the limited time that the father has spent with the child, it was foreshadowed in the father’s case outline that it may not be possible for the Court to make long-range orders for the child’s time with the father at the final hearing that was to commence yesterday.
There were a number of reports to be relied on by the parties in the proceedings and, in particular, two family assessment reports, dated 22 May 2016, and 8 June 2017. I will not go into the details of those reports, and note that the opinion of the report writer is untested. It suffices to note that, at the stage the second report was written – that is, in June of this year - the report writer recommended that the mother have sole parental responsibility for the child, which was in accordance with the mother’s proposal in her application that was to commence yesterday; that the child reside primarily with the mother, which is in accordance with both parties’ proposals; and that the father’s time with the child continue to be supervised and progress to occur in the father’s home, with a view to a supervisor observing the father providing care to the child and taking him to activities, as opposed to having playtime only with the child.
The report writer recommended that, after three months of such supervised time under that regime, the supervisor provide a report to the Court in relation to the suitability of moving to, firstly, two hours unsupervised time each week, then four hours unsupervised time a week, then one overnight a fortnight and time in the intervening week when the child is of school age, which I anticipate, having regard to the child’s date of birth, will be the year commencing 2020.
Following the report writer’s second report, the father continued to spend time with the child at the contact centre, weekly. The report writer did not have the benefit of the further, very positive reports about that time, contained in exhibit 1, and it is simply not known whether those reports would have caused the report writer to change her view about her recommendations.
At this stage, it is important to note the evidence of the parties is, of course, untested and no findings can be, or are made in the matter, except for those matters to which I have referred, that are not in dispute.
At the commencement of the proceedings yesterday, as I indicated, consent orders were handed up which were changed slightly. Ultimately, the consent orders that the parties seek that I make are contained in Exhibit 3. I say at this stage, which I also indicated yesterday, that I have no difficulty at all with the vast majority of the orders, which I regard as proper to make in the circumstances. In particular, it is clearly in the best interests of the child to live primarily with his mother, and the compromise in relation to parental responsibility also seems appropriate, though of course I note that no finding has been made about the mother’s previous contentions about family violence perpetrated by the father. There are also other proposed orders with respect to matters such as changeover, time with the father on special occasions, airport watch and the like, which are uncontroversial.
There are only two categories of orders and/or notations which gave some concern to me, and which were the subject of oral submissions and interchange with counsel and are the subject of these Reasons. These orders fall within two categories: first of all, orders with respect to supervision of the father’s time, and secondly orders and/or undertakings with respect to the parent’s conduct in the future in relation to a whole range of matters.

Injunctions and Notations

Dealing with the second first: the original iteration of the consent orders contained numerous injunctions on the parties from engaging in a very wide range of behaviour in the future. These include matters such as consuming excessive alcohol and illicit drugs for 24 hours before or during time with the child; denigrating the other or allowing another person to do so; discussing the parenting proceedings; showing the child documents associated with the proceedings; showing the documents media which is not classified as suitable for the child; making or allowing others to make racist or sexist remarks in the presence of the child; spending time with the child at any place where a firearm or ammunition may be present; and many others. As I say, it covered a very wide range of activities.
When the issue of the appropriateness of such injunctions was raised, in the second iteration – that is, the version in Exhibit 3 – some of these matters re-emerged as notations. One notation which caused particular concern read as follows:
Upon noting that without admission the parties undertake not to make or suffer any other person making any racist or sexist remark in the presence of the child, or allow the child to spend time in any place at which any firearm, ammunition, part of a firearm or knife other than for culinary purposes, or club or any other weapon or any illicit substance is present, noting that the wife’s parents own an air rifle.
There were, I also add, included in the final version of orders sought to be made, other notations which themselves, contain undertakings. For example:
Upon noting that the father undertakes that, for the purpose of travelling by motor vehicle with the child, that only he drives such a motor vehicle and not permit any other person to drive the vehicle without the written consent having first been obtained from the mother.
The issue of orders or notations, in which parties acknowledge the way in which they will conduct themselves in the future has been considered at some length, by a single judge of this Court, being his Honour, Cronin J, in the matter of Grollo & Bilson (No 2)[1], and it was delivered on 26 June this year. Other associated issues concerning notations have also been considered by the Full Court, in cases such as Gorman & Huffman and Anor[2], in 2016. I note that notations which contain, in the language of Murphy J in Gorman & Huffman, “exhortations as to the alteration of conduct, which the Court considers impacts upon the best interests of the [child] concerned” may be made, as well as those “that give context to orders which, by their terms, do not self-evidently reveal that context”. Notations cannot, as his Honour observed, take place of or be seen as orders.
[1] [2017] FamCA 440.
[2][2016] FamCAFC 174.
Some notations in these proposed orders do, quite properly, in my view, provide such context, (such as the first notation about the father’s residence) and do not trouble me. Other notations in these proposed orders do contain those sorts of exhortations about conduct as his Honour described, while others contain undertakings. So far as the notations which contain undertakings are concerned, it was submitted by the mother’s legal counsel that these can be enforced by the taking of contempt proceedings, and in that sense, they restrain the conduct of the parties in the same way as an order would do.
In my view, there are a number of difficulties associated with the particular notations proposed which contain undertakings. So far as the one concerning firearms and sexist and racist remarks is concerned it is, in my view, simply unintelligible. I also have concern about the suggestion concerning contempt proceedings. It is also simply, in my view, far too cumbersome to bring contempt proceedings as a method to enforce orders. If a notation is to act as a restraint, or to contain an enforceable obligation, it should, in my view, be made as an order if made at all, rather than be expressed as an undertaking contained within a notation.
This then raises the issue identified by his Honour, Cronin J, in Grollo & Bilson (supra), to which I have referred.
The starting point, of course, for making orders in parenting proceedings is section 65D(1) of the Family Law Act1975 (Cth) (“the Act”), which provides:
In proceedings for a parenting order, the court may, subject to 61DA (the presumption of equal shared parental responsibility when making parenting orders) and 65DAB, with respect to parenting plans and this Division, make such parenting order as it thinks proper.
To determine whether an order is proper, the Court must consider the best interests of the child, according to the criteria in section 60CC. As I am not making findings of fact in this matter, and there are no submissions made about particular injunctions, it is not immediately obvious to me why some of the restraints that are sought by the parties are in the best interests of the child. Some of the proposed restraints, such as not making racist or sexist remarks in the presence of the child may be, and in my view, are laudable expectations from adults when raising children, but raise the issue such as who, for example, is to determine whether the remarks are racist or sexist, and is it seriously suggested that contravention applications will be brought if it is said that these are breached? Or otherwise, how are they to be enforced?
In my view, the mother’s legal representative quite rightly identified the character of these sort of orders, when referring to them as sometimes described as “comfort orders”. However, it is not the role of the Court, in my view, as a proper exercise of power, simply to make orders for the comfort of the other parent, even on a consent basis.
Court orders, in this respect, are to be contrasted with parenting plans, which are provided for in Division 4 of part VII of the Act. Of course, when it comes to parenting plans, (which as noted in argument yesterday, in submissions put on behalf of the mother) parents of children are encouraged in making parenting plans to agree about matters concerning the child, to take responsibility for their parenting arrangements and resolve parental conflict and use the legal system as a last resort, rather than a first resort, and minimise the possibility of present and future conflict by using or reaching an agreement.
There are reasons why parents may want a court order rather than a parenting plan, such as those referred to in paragraph 95, in the case of Grollo & Bilson (supra), when his Honour said that the main reason why parents might want orders is because of the absence of trust.
When a court makes an order, it has different considerations. In my view, some of the restraints sought, while they may be desired by the parties, and may properly form part of a parenting plan, are not proper orders for the Court to make, and I decline them on this basis, as either notations or orders. They are, in particular, notation in Exhibit 3, or the version of order relating to similar matters in a previous iteration, being 25.7 and 25.9.
However, the second notation which the parties have proposed about the father being the only one that drives a motor vehicle, is proposed by the parties to protect the child, and should be enshrined as an order rather than an undertaking, for the reasons given.

Supervision of the Father’s time

The second issue of concern raised in these proceedings, related to proposed order 8.1, in relation to the supervision of the father’s time with the child. That proposed order is in the following terms:
That the father’s time with the child, pursuant to paragraph 7 herein, shall be supervised by [Ms AN] and, in the event that the said [Ms AN] is not available, then by [Ms TT], or such of the supervisor as the parties agree, defined as “the supervisors”, until no earlier than 30 April 2018, or such later date calculated on the father having spent time with the child, for a cumulative period equivalent to him spending time with the child on all occasions, pursuant to paragraph 7.1 and 7.2 herein, until 30 April 2018, with the father’s time thereafter to be supervised on conditions as recommended by the supervisors.
As indicated in the interchange with counsel – although this is a slightly different wording than the first version under consideration, it is to the same effect. That is, it is the supervisor who, effectively, is given the power to determine whether supervision is to occur at all, (because proposed orders 9 and 10 relate to the circumstances in the event that the father’s time ceases to be supervised). Order 8 also must be read in conjunction with order 5, which proposes that the parties attend mediation no later than a date in late 2018, being the date of the child’s fourth birthday. The purpose of that mediation is to review the various orders, including, significantly, the orders with respect to the father’s time, the airport watch list order and some of the restraints.
Order 6 also provides that, in the event the parties are unable to reach agreement (at the mediation), either party may file an application for new parenting orders, and the other party will not raise Rice & Asplund[3] as a bar. Order 8.1 also provides that supervision will continue, in any event, until either the end of April 2018 or after the father has spent time with the child under the regime of the orders.
[3](1979) FLC 90-725; [1978] FamCA 84.
So the question arises whether it is proper to make an order that a supervisor determines whether or not supervision is to occur, from about the end of April 2018, until the parties attend mediation in October 2018, and if they are not able to agree, until the issue is determined by a court. This arrangement, of whether supervision is to continue or not, could conceivably be in place for at least many months, after October 2018, depending upon when proceedings are commenced and the availability of a court to give an interim hearing, or may continue for a matter of years if the matter goes to final hearing.
In my view, this proposed order is problematic for a number of reasons. First and fundamentally, it delegates to a third party – that is, either of the supervisors – the decision of whether the father’s time should be supervised and, if so, under what conditions. His Honour, Cronin J, in the case that I referred to earlier, Grollo & Bilson (supra), at paragraph 46, when considering the role of an expert psychologist in future arrangements for the children under consideration, said:
The involvement of a third party, such as the psychologist, has to be considered in the context of whether or not he is some form of delegate of the court, who has control to decide what is good for these children.
The recommendations of the family report writer, in this case, was that the supervisor provide a report to the Court about the progress of supervision of the father in his home, when he is involved in the daily care of the child, and report on the recommendations of the report writer for that time to be increased and unsupervised. The clear inference, of course, is that it’s for the Court to determine what’s in the child’s best interests.
Rather than ask this Court to determine what is in the child’s best interests in the future, the parents have chosen instead to reach agreement about what they consider is in the best interests of the child. This is admirable and consistent with the Objects and Principles contained in Part VII of the Act.
However, in my view, they should continue (through orders made) to agree on what is best interests of the child so far as the time with the father and the need for supervision is concerned, and in the absence of agreement, then a Court should fulfil its role if the parties make application, and that is make the decision.
In my view, it is not proper to have – to do something in-between, which is what’s proposed by that order; that is, to have the parents agree up to a point and then have a third party determine what will happen in the future until either an agreed outcome is determined through mediation or a Court makes a decision if they cannot agree.
For this reason I decline to make order 8.1 in the terms agreed in Exhibit 3, but do make it as agreed in the alternative contained in Exhibit 2.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 31 October 2017.

Legal Associate:

Date: 17 November 2017