Wallisham and Wallisham

[2011] FamCA 873

FAMILY COURT OF AUSTRALIA

WALLISHAM & WALLISHAM [2011] FamCA 873

FAMILY LAW – CHILDREN – BEST INTERESTS – Male children 15 years and 10 years – Parties agreed many matters – Two issues for determination – Both determined as proposed by independent children's lawyer but with minor changes

Family Law Act 1975 (Cth) s 60B, s 60CC
Evidence Act 1995 (Cth) s 140(2)

Briginshaw v Briginshaw (1938) 60 CLR 336
Frome & Frome (No 2) [2010] FamCA 1104
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
H v W (1995) FLC 92-598
Johnson & Page (2007) FLC 93-344
Korban & Korban [2009] FamCAFC 143
M & M (1998) 166 CLR 69
Mazorski & Albright [2007] 37 FamLR 518
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
R v R (Children’s wishes) (2002) FLC 93-108

APPLICANT: Dr Wallisham

RESPONDENT: Ms Wallisham

FILE NUMBER: BRC 8443 of 2009

DATE DELIVERED: 11 November 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 13 and 14 October 2011

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Frizelle

SOLICITORS FOR THE RESPONDENT: Sempre Vero Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hodges

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fox

Barbara Fox Solicitor

Orders

BY CONSENT IT IS ORDERED

1. In the terms of the minute of orders Annexure A.

AND IT IS FURTHER ORDERED

1. B spend time with and communicate with the mother at all times as may be agreed between the parties but at least:

   a.     for the next 3 calendar months (December 2011 and January and February 2012) for 4 hours on each alternate weekend, on a Saturday or Sunday, but commencing nonetheless if possible on the third or fourth weekend in November 2011, to be supervised by Ms C, the father to pay the cost of Ms C's supervision

   b.    for the following 3 calendar months (March, April and May 2012) continuing in the same alternate weekend cycle, for 5 hours on each alternate Sunday from 10.00am until 3.00pm to be supervised by Ms D, the maternal grandmother

   c.     for the following 6 months (June, July, August, September, October and November 2012, and continuing until the commencement of the December 2012/January 2013 school holidays) in the same alternate weekend cycle, for 5 hours on each alternate Sunday from 10.00am until 3.00pm unsupervised, with all future time unsupervised

   d.    in the Christmas school holidays December 2012/January 2013, continuing in the same alternate weekend cycle, from 5.00pm Thursday until 5.00pm Sunday

   e.     from the commencement of the first school term in 2013 and continuing:

   i.on alternate weekends, continuing in the same alternate weekend cycle,  from 5.00pm Friday until 5.00pm Sunday

   ii.commencing Easter 2013, half of the school holiday periods, the first half in or commencing in the odd years and the second half in or commencing in the even years, provided that if B is with the mother in the first half of any Christmas school holiday period he spend from 4.00pm Christmas Eve until 1.00pm Christmas Day with the father, and if B is with the father in the first half of any Christmas school holiday period he spend from 4.00pm Christmas Eve until 1.00pm Christmas Day with the mother, with all holiday periods to commence at 10.00am on the day following the last school day and to conclude, when B is spending the second half of any school holiday period with the mother, at 5.00pm on that day which would leave 3 full days with the father (whether those 3 days be weekdays, weekend days or any public holiday) preceding the first day of each school term.

2. There be liberal telephone communication between B and the mother, as may be initiated by the child, the father to permit B to make 2 calls weekly between 5.00pm and 7.00pm, with encouragement by the father to B to make the calls, provided that the mother ensure that each call not exceed 15 minutes.

3. The mother may attend all school functions concerning E and/or B to which parents usually are invited, or usually attend, including but not limited to speech nights, parent/teacher interviews, sports days and the like, with the mother, insofar as may be possible, to attend with the maternal grandmother.

4. The children's school is authorised to send to the mother, at the same time as sent to the father, all circular or other information concerning E and the child, all invitations to parents and school photographs and the like, to be paid for, as may be required, by each of the mother and the father respectively.

5. For the purpose of order 4, the parties must, insofar as may be practicable, keep distance from each other, and the father likewise from the maternal grandmother, and otherwise be cordial.

AND IT IS FURTHER ORDERED

1. The original minute of orders signed by the parties be placed and kept on the Court file.

2. The independent children's lawyer not be discharged for 18 months from today.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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

Annexure A

1. The children E (DOB …/96) and B (DOB …/01) live with the Father

2. The parties have equal shared parental responsibility for the children for decisions in relation to the major long-term issues concerning the children's education both current and future, religious and cultural upbringing, health and changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.

3. In the exercise of their equal shared parental responsibility concerning the children in relation to decisions concerning those major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions. 

4. In relation to such consultations:

   a.      the parent wishing to make a proposal make it in writing to the other parent, setting out the advantages of the proposal perceived by that parent and reasoning supporting it

   b.      the other parent respond in writing to the proposal by either agreeing with it or making a different proposal, setting out the advantages of any different proposal and reasoning supporting it

   c.      if after such consultation a joint decision is not able to be made the parties are to consult a family law dispute resolution practitioner to assist them to resolve the issue. 

5. The parties each be responsible for the children’s day to day care while the children are with each of them.

6. Unless agreed by the parties in writing the children will attend F School (“F”) as day scholars until each has completed Year 12.

7. E spend time with and communicate with the Mother:

   a.     at such times and frequency as initiated by E

   b.    on special days as provided in order 9.

8. Both children spend unsupervised time with and communicate with the Mother on the following special days:

   a.      Mother’s Day the children will spend with the Mother from 9am to 5pm;

   b.      for at least 2 hours on each child’s birthday and if a school day from 4pm to 7pm and if a non-school day from 9am to 1pm;

   c.      the Mother’s birthday and if a school day from 4pm to 7pm and if a  non-school day from 9am to 1pm;

   d.      Christmas Day from 8am to 1pm until overnight time for B commences pursuant to the Court’s Orders.

9. The children will spend Father’s Day with the father from 9.00am to 5.00pm.

10. The mother not consume alcohol at any time the children are with her or for 12 hours beforehand and not consume any prescribed medication other than the prescribed dosage.

11. The Mother is to continue to attend upon her counsellor as and when directed by the counsellor.

12. Each party is to undertake and complete, within six (6) months of the date of these Orders, a Parenting Orders Program conducted by G Support Network (Telephone…) and thereafter provide a copy of their Certificate of Attainment to the other party.

13. Neither party is to denigrate the other to or in the presence or hearing of the children

14. Neither party is to discuss these proceedings with or in the presence or hearing of the children.

15. Pursuant to Section 64B(2)(g) of the Family Law Act 1975 (Cth) for a period of two (2) years from the date of these Orders the parties must not make any application for variation of these Orders without first seeking ex parte and obtaining the leave of a judge of this Court and for the purpose of such:

    a.      must file an Application setting out the specific Orders sought, an Affidavit setting out the evidence and reasons for seeking the Orders and written submissions in support of the application and

    b.      unless otherwise ordered by the Court such Application is not to be served on the other party or any other person

16. Each party keep the other informed of their current residential and email address and contact telephone numbers including mobile telephone numbers for text message service.

17. Each party is to advise the other should either of the children require any emergency medical treatment while in their respective care.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8443 of 2009

Dr Wallisham

Applicant

And

Ms Wallisham

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings concern E born in 1996 now 15 years and B born in 2001 now 10 years (the children). 

The parties’ agreement as to most matters

1. Dr Wallisham (the father) and Ms Wallisham (the mother) have agreed several matters by way of consent final orders.

2. They have agreed that the children will live with the father and that they will have equal shared parental responsibility for both children for the major long-term issues with a mechanism for written consultation.

3. They have agreed that the children will attend F School as day scholars until each has completed Year 12 subject to any subsequent agreement in writing by them to the contrary.

4. They have agreed that E will spend time with and communicate with the mother at such times and frequency as initiated by E, and for both children orders in relation to special days and many specific issues.

5. This is the fourth set of proceedings concerning the children in the 9 or 10 years since the parties’ separation, two proceedings commenced by the mother and two proceedings commenced by the father. They have thus further agreed that an order be made under s 64B of the Family Law Act 1975 (Cth) (the Act) that for 2 years after final orders are made in these proceedings neither will commence further proceedings for variation of the orders without first seeking ex parte and obtaining the leave of a judge of this Court.

6. They have agreed to each attend a parenting orders program.

7. It is a positive development that in recent times E and the mother appear to be managing their relationship well. See, for example, the mother's trial affidavit, par 71, especially (d)-(f) showing happy interactions.

8. Indeed, I will set out par 71(d)-(f):

   (d)    22 June 2011 – [E] came to my house from 1:00pm to 5:00pm. We had lunch and walked the dog. My Mother and Sister were also present.

   On 24 June 2011 at 9:00am I received the following text message from E:

   "Hey Mum just got ur message. I love u too and I had a great day with u nan and [Ms H]. I can't wait to do it again. What are u up 2 today?"

   …

   (f)     2 July 2011 - It was [E's] birthday. He came to my house from 2:45pm to 5:00pm and we celebrated with a birthday cake. We also took the dog for a walk. [B] was not allowed to attend the birthday celebrations, despite my requests to [Dr Wallisham]. When [E] was leaving he told me not to come out, as [B] would see me.

   On 2 July 2011 at 6:34pm I received the following text message from [E]:

   "Hey mum I have officially been born. Thanks so much for today it was really nice of u. I had a great day. Love you lots hope to c u soon. Love [E] xxx." (original italics)

The issues

1. The first issue is the time B should spend with the mother, and whether as proposed by the father by way of final order it be supervised; or whether as proposed by the independent children's lawyer by way of final order and supported by the mother it progress from supervised to unsupervised, then overnight and holiday time; and whether as proposed by the independent children's lawyer and supported by the mother B should have telephone communication with the mother, which the father opposed.

2. The second issue is whether the mother should be permitted to attend at the children's school for all occasions that parents ordinarily attend, proposed by the independent children's lawyer and supported by the mother, but opposed by the father.

The first issue

1. In relation to B, who since December 2009 has spent time with the mother only at contact centres, the independent children's lawyer proposed (draft orders, par 9):

   9.      The Mother spend time with and communicate with [B]:

   a.For three months supervised by [Ms C] on each alternate weekend for up to four (4) hours with the father to pay the cost of supervision.

   b.Thereafter for a further three months supervised by the Maternal Grandmother each alternate weekend for up to five (5) hours.

   c.Thereafter for a period of six months unsupervised each alternate weekend for up to five (5) hours.

   d.Thereafter:

   i.each alternate weekend from after school on Friday to before school on Monday.

   ii.[B] be permitted to telephone the Mother at all reasonable times.

   iii.One half of each of the Easter, June/July, September/October and Christmas school holidays with the mother to have the first half in odd numbered years and the second half in even numbered years.

   iv.From 4.00pm Christmas Eve to 1pm Christmas Day in odd numbered years and 1pm Christmas Day to 4pm Boxing Day in even numbered years.

2. The mother supported par 9.

3. The father supported only par 9a, and agreed that he would pay the cost of supervision by Ms C, a professional supervisor, who charges $50 per hour.

4. In particular, after considering the matter overnight during the trial the father said he would be prepared to pay $400 each month for 8 hours of supervision, on the ongoing basis, until such time as the parties agree to another appropriate person but that he felt he could not afford to pay or commit to pay more than that in each month. Initially, the father said he was prepared to pay that amount "on the proviso" that it be "linked" to spousal maintenance. I explained to the father that in these proceedings as there was no issue of spousal maintenance I could not make that "link", but that in any subsequent spousal maintenance proceedings he could raise the matter in relation to his capacity to pay spousal maintenance in addition to the costs of supervision and if he wished could refer to these reasons for judgment.

5. I note that par 9a as proposed by the independent children's lawyer and supported by the father, 4 hours on alternate weekends, equates roughly to 8 hours each month.

6. The father opposed the balance of par 9. He proposed that B spend only supervised time with the mother, that it not progress to overnight time or holiday time and there not be telephone communication between B and the mother.

7. In relation to par 9b, the father submitted that the maternal grandmother, Ms D, is not a suitable supervisor. He said that whilst in earlier times, in particular 2006, she had supported him in relation to the children, since then "she hates me" and "she denigrates me and has in the past", that is, since 2006. The father's position thus is that he fears that the maternal grandmother has the capacity to undermine his solid relationship with the children, and does not have the capacity to contain the mother if she should denigrate the father to the children or display inappropriate conduct or say inappropriate things to or in front of the children because the maternal grandmother "is not able to exert any influence" on the mother. The father said however that he could not think of any other persons who would be suitable supervisors.

8. In relation to pars 9c and 9d, the father said that because of the mother's condition (to which I will refer in detail below) it is "too risky" for any progression to unsupervised time in the current trial. In short, the mother has a history of dependence upon prescribed medication, partly analgesics/narcotics (including opiates) and partly antidepressants, and he is convinced that if B should spend unsupervised time with the mother and there be inappropriate conduct by her or denigration of him B is likely to “destabilize” in himself, his progress at school and in his relationship with the father.

9. As will be seen, there is a degree of support for the father's position in the expert evidence, in particular that of Dr J, child and adolescent psychiatrist, engaged by the father, who saw each of E and B (2 interviews each) and whose reports are addressed to the father; and Mr Richard K, social worker and the family report writer in the matter.

10. The father I should say also is a psychiatrist. However, his views about the mother plainly are not independent.

11. In contrast to Dr J  and Mr K's cautious support for the father's position, Dr L, psychiatrist, engaged by the independent children's lawyer, was more robustly confident that the mother's condition is such that after 6 months of supervised time for B with the mother, the move to unsupervised alternate weekend time for 5 hours in daytime is "very do-able"; and supported also a move after 1 year to overnight time and half holiday time, with some provisos that I will mention in context below.

12. In relation to par 9d ii, telephone communication, the father's opposition was couched as "Absolutely not!", on the basis that previously the mother would keep B on the telephone "for 50 minutes". The father said "You do not understand the problems we've had", and that in the past telephone communication between the children and the mother has resulted in "2-3 hours of upset kids!" The father emphasised that such was the reason why, in past interim orders, Barry J has ordered that there be no telephone communication. The father said that in his view any telephone communication between B and the mother is also "too risky".

The second issue

1. In relation to the second issue the independent children's lawyer proposed (draft orders, par 2(a)):

   (a)     The Mother be permitted to attend functions at the children’s school that parents ordinarily are able to attend and/or invited to but the mother must not otherwise attend the school save for pick-up and delivery of the children as provided for in these Orders.

2. The father was adamant that the mother not be permitted to attend the children's school, again stating that such is "too risky", in that both children in his view would be exposed to suffering "embarrassment" if the mother as has occurred in the past (not at F School but an earlier school or schools) turned up "showing effects of alcohol", including "slurred speech". The father said "I believe there is a risk of embarrassment for the children by the mother's problems", and that "even if there is a single incident of embarrassment” it would have an effect on them in their school environment and their stability.

The proposals

1. I have set out already the orders proposed by the independent children's lawyer supported by the mother.

2. The father's proposal, basically, is that the final orders provide for B to spend only supervised time with the mother and there be no inclusion of progression to unsupervised time, overnight time or holiday time.

3. The father proposed however during the trial that if the final order be for supervised time only it could include words to the effect "and such other time as the parties may agree in writing, including unsupervised time, overnight time and holiday time".

1. The mother resisted this, on the basis that in her view the father is unlikely to agree such with her, so that realistically the effect of such a final order would be that only supervised time would occur for the next 2 years.

One other matter

1. The father's amended initiating application filed 26 May 2011, attachment 1, par 9, seeks an order that a Registrar execute passport applications for the children "in lieu of the mother if they lapse or if they are lost".

2. On 4 December 2009 Barry J (in an interim regime) ordered:

   7. A passport issue for the children forthwith pursuant to section 11 of the Australian Passports Act 2005 for the purpose of allowing the children to travel out of the Commonwealth of Australia during December 2009 through to January 2010.

   8.      A Registrar of the Court be authorised forthwith to sign the application for the renewal of the passport in substitution of the Mother’s consent.

3. This matter was not agitated at the trial, in the sense of there being argument or submissions about it. Further, there is no indication presently of any need for the order the father seeks. I will therefore not make the order sought.

Background

1. The mother is 50 years, and the father 52 years.

2. They met in 1982, married in 1985, and separated in 2001 or 2002.

3. Their marriage produced the 2 children.

Litigation history

1. As mentioned, this is the fourth set of proceedings concerning the children.

2. There have been final orders by consent made on 12 September 2002, 19 April 2005 and 26 September 2006.

3. The current proceedings were commenced by the father on 21 September 2009.

Time spent by the children since the parties’ separation

1. This is well documented. I need not refer to it in detail. It is sufficient to refer to the interim parenting orders made in the current proceedings on 28 October 2009, 4 December 2009, 23 February 2010 and 3 December 2010.

Principles relevant to parenting orders

Children’s best interests paramount

1. Pursuant to s 60CA of the Act, in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of B as the paramount consideration.

Objects and principles underlying objects

1. Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:

   ·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;

   ·and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:

   ·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   ·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   ·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   ·parents should agree about the future parenting of their children; and

   ·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

1. Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.

2. The primary considerations are:

   ·the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The additional considerations are too numerous to set out.  However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

1. Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.

2. Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time 

1. Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:

   ·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and

   ·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.

2. Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:

   ·days that fall on weekends and holidays; and

   ·days that do not fall on weekends and holidays;

   and:

   ·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and

   ·allows the child to be involved in occasions and events that are of special significance to the parent,

   although regard may be had to other matters.

3. Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:

   ·how far apart the parents live from each other; and

   ·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

   ·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   ·the impact that an arrangement of that kind would have on the child; and

   ·such other matters as the Court considers relevant.

Prior parenting plans

1. Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

1. The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

1. Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The evidence

1. The father relied on evidence by himself, Dr M, psychiatrist (report 12 September 2006) and Mr N, a “a tradesman”, whose evidence was limited to the period 2007-2009.

2. The mother relied on evidence by herself, her mother Ms D, and Dr O, clinical psychologist, who is the mother's treating psychologist.

3. The independent children's lawyer relied on evidence by Mr K, Dr J , Dr L, and an Ms P, a case co-ordinator concerning supervised time which B had with the mother at a contact centre.

The statutory matters

The children’s best interests

1. I turn now to the statutory matters concerning the children’s best interests. Some matters concern only B, having regard to the limited issues I am required to determine, and some concern both children. Accordingly, I will indicate this in the subheadings.

Section 60CC(2) – the primary considerations

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with his parents

1. The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship. 

2. Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.

3. On all of the evidence B has the benefit of a meaningful relationship with both of his parents.

4. The proposal of the independent children's lawyer, supported by the mother, is to advance the benefit to B of his meaningful relationship with the mother.

5. The father's concerns, as I have mentioned, include that the child's meaningful relationship with him may be destabilized, and indeed B in his own progress may be destabilized, if he should commence to have unsupervised time with the mother, or overnight time, or if the mother should attend his school.  It is important that B continue to have the benefit of his meaningful relationship with the father, particularly having regard to the child’s sensitive nature, to which I will refer below.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence

Unacceptable risk principles

1. The High Court in M & M (1998) 166 CLR 69 concluded that where a court makes a finding of unacceptable risk of harm to children it is a finding that the risk of harm to the children in spending time with a parent outweighs the possible benefits to them of spending time (the “detriment/benefit” test).

2. Further, in cases since M & M, the Full Court of this Court has made clear that “real and substantial” consideration must be given to the facts of the case in assessing unacceptable risk, and that there is a need for trial judges to ask “whether the evidence establishes unacceptable risk”: Johnson & Page (2007) FLC 93-344 at [66], [68], [69], [70]-[72]. In those paragraphs, and in cases since Johnson & Page, the Full Court has made clear that s 140(2) of the Evidence Act 1995 (Cth) “picks up” what has come to be called “the Briginshaw test”, so that it is now preferable to refer to the statutory formulation in s 140(2) rather than to Briginshaw v Briginshaw (1938) 60 CLR 336. More generally, I would refer to my analysis of these matters in Frome & Frome (No 2) [2010] FamCA 1104 at [47]-[56]. In particular, I will set out [56] in that decision:

   56.    In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:

   79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.

   80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.

3. Similarly, when considering whether time should be supervised or unsupervised, first there must be an identified risk of harm to a child by spending unsupervised time with a parent. If there is, the Court will balance the risk of harm to the child of unsupervised time on the one hand and possible benefit to the child of unsupervised time on the other hand. It is only when the risk of harm outweighs the possible benefit that there is said to be an unacceptable risk of harm by unsupervised time. The same applies to the balancing exercise concerning overnight time and holiday time, and in this particular case, whether the mother should or should not attend the children's school.

The expert evidence with some observation and commentary

1. It is convenient to deal with the expert evidence of Dr M, who was not required for cross examination, and then the order in which the expert witnesses were called, namely Dr L, Mr K and then Dr J.

Dr M

1. Dr M’s report is dated 12 September 2006. It was prepared for the purpose of earlier proceedings. It is of limited utility, being dated 5 years before the current trial, and preceding even the conclusion of the third proceedings which resulted in the third consent final order made on 26 September 2006.

2. Dr M’s report was relied on only by the father.

3. A question arose in the current proceedings whether any medical expert had described the relationship between B and the mother as “enmeshed”. Dr M, at p12.6, described E’s relationship with the mother at that stage as enmeshed, and at p13.3 said that at that stage both children appeared alienated from the father and “overly enmeshed with the mother”. Dr M’s ultimate conclusion (p14) was that whilst there was no evidence of physical abuse she believed that “both children have been psychologically damaged” as discussed in her report. Dr M’s ultimate recommendation was that the children live primarily with the father and have contact with the mother “contingent on her clinical condition”. She advised it would be helpful for the mother, in particular, to undergo a parenting program and that “both boys should be in the care of a therapist”.

4. At the time of Dr M’s report, E was 10 years and B 5½ years.

5. No other medical expert, it appears, described the children’s relationship with the mother as “enmeshed”. However, Mr K, who is a social worker, referred to this description.

Dr L

1. Dr L’s report is dated 29 October 2010. He assessed both the father and the mother, the father on 6 August 2010 and the mother on 17 August 2010. He did not meet with nor assess the children.

2. After setting out extensive history taken at the interviews he concluded on mental state examination that the father’s cognitive functions were intact, there was no evidence of psychosis and that he was of normal intelligence in the high average range (p15); and in relation to the mother that her cognitive functions were intact, there was no evidence of any “clouding” or psychosis and she also was of normal intelligence, “probably” in the high average range (p15).

3. In relation to diagnostic issues Dr L concluded, provisionally, in relation to the father that he does not suffer any major mental disorder but may have suffered Adjustment Disorder now in remission (p16); and in relation to the mother (also p16):

   …There are very serious psychiatric issues that have impacted on her functioning and negatively impacted on her care of the children.

4. Dr L said the mother suffers Recurrent Major Depression, and intermittent Dysthymia of varying intensity, such as she would qualify for a diagnosis of “double depression”, the Recurrent Major Depression being “grafted onto” chronic Dysthymia.

5. Dr L said whilst great care needs to be taken in diagnosing mood disorder “in the presence of significant substance abuse”, nonetheless he was “reasonably confident” that in the mother “there is an underlying mood disorder”, but that “currently” her mood disorder was in remission, noting that the “marked reduction in addictive substance use is likely playing a major role in the current remission” (also p16).

6. Dr L then said in relation to the mother (pp16-17):

   In addition to the putative mood disorder, it seems that the central clinical issue is that the mother has for many years been abusing addictive substances although there has not been any use of illegal substances. Rather there has been dependency on prescribed medication and thus her dependency could be correctly labelled as iatrogenic.

   It seems from the history that there has been substantial abuse/dependency with opiates which have been taken in various forms. Indeed she remains on a Fentanyl patch. [Ms Wallisham] does seem to have some orthopaedic problems with respect to her back but the problem she describes would not in ordinary circumstances justify long term prescription of opiates although they may well have a role in acute treatment. I acknowledge that this opinion requires support from an orthopaedic or other medical specialist.

   In addition to opiate abuse/dependency there has been quite substantial benzodiazepine abuse/dependency. I note in particular abuse of Alprazolam (Kalma) a highly addictive substance.

   It seems that more recently there has been significant amelioration of the drug dependence. [Ms Wallisham] is currently using a Fentanyl patch and does not report any additional use of opiates. She reports continuing use of benzodiazepines (Valium [Diazepam]) but at a markedly reduced level (20 mg a day) from previously.

   Importantly there is no current indication for benzodiazepines and they should be gradually withdrawn with likely resultant significant improvement in functioning and psychiatric status. (original emphasis and underscore)

7. In relation to personality, Dr L said of the father (p17):

   With respect to the father, [Dr Wallisham], his overall psychosocial functioning is not consistent with any disorder of personality. On the other hand the history provided by both parties and some aspects of the mental state indicate that there are some obsessional traits with a need for control and perhaps some narcissistic traits, both of which have impacted on the marital situation. (original emphasis and underscore)

8. In relation to personality, Dr L said of the mother (p17):

   With respect to the mother, [Ms Wallisham], it is difficult to make any statement about personality with confidence given the extent of substance abuse/dependence since the age of 28. It is difficult to tease out whether problematic aspects of behaviour relate to the substance abuse and dependency as against inherent aspects of personality. I note that with moderation of the substance use she presents quite well in the interview and moreover shows a capacity for self-reflection and self-criticism.

   Given the developmental history it would be unsurprising if there were not significant personality vulnerabilities in the mother. Moreover the development of such a significant degree of substance dependence would imply certain personality characteristics such as difficulty tolerating uncomfortable affect or discomfort and significant dependent traits with a need for instant relief of emotional or physical distress. (original emphasis and underscore)

1. In relation to both, before setting out the next passage, I will mention that the father, a health care professional, during the marriage prescribed addictive drug medication for the mother, although she was not his patient. Indeed, at times she had been under the care of psychiatrists, including a Dr Q, at the R Clinic, Dr S at T Hospital, Dr U at V Hospital and later a Dr W, as well as several psychologists (p3).

2. Dr L (p4) recorded the father’s prescribing of medication for the mother, including psychotropics, and that he had reported himself to the Medical Board, but despite this remained registered without conditions. Dr L referred to the father admitting “I know it was wrong” for him to prescribe for the mother, but that he had said he was “in an impossible situation” and did not “initiate” any medication but only “continued what was being prescribed” by the mother’s own doctors at various times.

3. The father said in his oral evidence to the effect that he only prescribed medication for the mother when it was “urgent” or “necessary”. However, part of the mother’s sentiment and perception (reported by the mother to Dr M) is that the father wrote prescriptions for her “from about the age of 28” of “Valium, Serepax, Pethidine etc” because he “wanted her in the ‘sick role’ ” and “did not want her to get well” (p10); and that she became addicted to these drugs because of  his prescriptions, which he would write and "rewrite" for her, even when she "got out of rehabilitation" (p8, p10).

4. Dr M recorded also the mother's remarks to her that she felt "bullied" by the father, and that she was "always walking on eggshells" (p8).

5. Notably, the mother told Dr M (p10) that the father, at that stage, had prescribed drugs for her “as recently as 2 or 3 months ago”, when their separation indeed had occurred in 2001 or 2002, some 4 or 5 years earlier.

6. This background is important to Dr L's conclusion, pp 17-18:

   Overall notwithstanding the personality issues in the parties it seems to me that of greater importance is the interaction of the two personalities in a pathological fashion, both during the marriage and subsequent to break up. This is illustrated by [Dr Wallisham's] prescription of addictive substances to his wife, both during their relationship and subsequent to the break up of the relationship. I note that [Dr Wallisham] acknowledges the inappropriateness of his prescribing for his wife and maintains he never initiated any medication but merely continued what had been prescribed by other doctors. His ex-wife gives a much more extensive account of the prescriptions including initiating medication, interfering with the medication regime prescribed by other doctors and prescribing behaviour, which if corrected, would constitute serious misconduct.

   Traditional medical ethics has frowned upon doctors treating members of their own family on the sound grounds that it deprives the family member of the benefits of patient hood. While this prohibition is frequently breached by doctors, the prescription of addictive substances, while actually not all that uncommon in medical families, is particularly frowned upon by Medical Boards.

   The reason for a doctor prescribing addictive substances to a spouse may be complex involving issues of privacy, lack of trust in fellow practitioners, and may involve a need for control with inappropriate use of medical authority. The need to maintain a dependent relationship may also be present. When there is ongoing prescription of addictive substances, it is almost always occurring in the context of a pathological relationship. Viewing ones spouse as a patient and the need to have ones spouse act as a doctor can keep a marriage together at times but it is almost always highly destructive of a mutually satisfying conjugal relationship. What is of particular significance in this case is the ongoing prescription of addictive substances even after the break up of the marital relationship by which time it is clear that the issue of substance dependence is well established.

   It is of interest that the mother appears to have had extensive psychiatric treatment from a variety of practitioners, both in Melbourne and in Queensland and moreover there have been several admissions to hospital. From the mother's account it seems that none of the Psychiatrists or Psychologists she has seen have attempted to put a stop to the practice of the ex-husband prescribing her medication. If correct this illustrates nicely the strength of the pathological relationship and the role of prescriptions in its maintenance.  (original emphasis)

7. Dr L's conclusions (pp 20-21) largely were confirmatory of what he earlier expressed provisionally. In relation to the mother, however, I will set out his conclusion (pp 20-21):

   1.… The principal clinical issue with respect to the mother is the history of substance abuse and I note she continues to take a benzodiazepine albeit at a greatly reduced dose and she also continues to use an opiate in the form of a sustained release patch.

   2.With respect to the issue of personality, I reiterate what has been stated in the provisional diagnosis. It is probable however that I have underestimated the degree of personality pathology in both parties. Despite her presentation and apparently some insight into the negative aspects of her behaviour, it is probable that the mother does have significant personality pathology to an extent constituting disorder. The difficulty as stated provisionally is teasing out what are the manifestations of personality as against the impact of substance abuse.

   …

   3.With respect to the mother, there is no current indication for benzodiazepine and I note her stated intention to reduce her dosage gradually. It seems she is currently taking benzodiazepine because she is dependent on the substance as against a clinical need. A gradual reduction in benzodiazepine use with the aim of elimination should be the goal of treatment. With respect to the opiate, I note she informed me that she was to attend a pain clinic for rationalisation of her medication. Hopefully she can be gradually withdrawn from opiate use altogether.

   4.If substance use can be eliminated, [Ms Wallisham] will find that her overall psychosocial function improves. Moreover if there are problematic aspects of personality they may not manifest in gross behavioural disturbance that would impact on her capacity to be a parent. Only time will tell. As to whether the mother's highly restricted contact with the children can be increased on a gradual basis would depend on what progress she has made with respect to learning parenting skills and an updated Family Report my clarify this issue. An updated psychiatric report with respect to the children's mental health would also be of importance. (original emphasis and underscore)

8. Dr L's oral evidence concerning the mother was much more positive.

9. Dr L was told that as at the time of the trial and “for quite some time” beforehand the mother was and had been on 4 medications currently prescribed for her, verified by her treating general practitioner Dr X: annexure AFW6 to the mother's affidavit (but using the descriptions in the mother’s oral evidence):

   1.Durogesic patches: 100mg per patch over each 3 days (for pain)

   2.Tramadol: 150mg morning and 150 mg evening (for pain)

   3.Valium: 10mg morning and 10mg evening (for back spasms)

   4.Lexapro: 20mg in the morning (antidepressant).

10. Although Dr L had not seen the mother for over 1 year, the conclusions of Dr O, the mother's treating psychologist, were put to him. Dr O has been the mother's "attending psychologist" since 18 June 2010, and as at the time of the trial was continuing in that role, on referral from the mother's general practitioner Dr Y. Dr O said that the mother has achieved "a number of gains" in the period of treatment. See Dr O's first report 28 February 2011 in particular par 4 (initial presentation) and par 8 (current circumstances), annexed to her affidavit filed 21 April 2011, and her updating report 11 October 2011, annexed to her affidavit filed by leave on 14 October 2011, recording "no new information” to add to or alter her first opinions, that is, as set out in her first report. Importantly, Dr O's conclusion in respect of the mother (first report, last page) was:

    [Ms Wallisham's] overall presentation of depressive symptoms and emotional distress is not considered to support a relapse of Major Depression but rather to be more reactive to her presenting circumstances and difficulties adjusting to the restrictive access to her children and associated legal processes.

    Currently she has responded reasonably well to psychological treatment with a number of gains in terms of mood management, distress tolerance and problem-focused coping skills as well as increased insight and planning for improved parenting behaviours.

    I support [Ms Wallisham's] intention to seek the Court's consideration of unsupervised and increased access to her youngest son, the child. (emphasis added)

11. It was put to Dr L that Dr O said the mother was "functioning well" and that Dr O considered the mother had made "a number of gains" and supported that she seek from the Court consideration that B spend unsupervised and increased time with her, against the background also of Dr L's own observation that there seemed to have been significant amelioration of the mother's drug dependence, supported independently by Dr X's evidence, and was asked to consider the proposition that against this background it is "pretty hard to see why there shouldn't be unsupervised time", the proposition being put by Mr Hodges, for the independent children's lawyer, to which Dr L responded simply, but firmly, "I agree".

12. Dr L said it would be "nice to see her off Diazepam" (Valium) because she has been taking it since she was 28 years, but "as long as it's 10mg", "I would think non-supervised should be commenced in accordance with Mr K's recommendations".

13. The difficulty here however is that Mr K's written recommendations (to which I will refer below) had not recommended the commencement of unsupervised time but had included in relation to unsupervised time only that (Mr K's second report, par 99):

    99.I consider it appropriate for supervision to be discontinued when [B] develops greater independence and resilience, possibly when there is evidence that his developmental tasks are more related to separation and individuation. 

14. Mr K's actual recommendation in his report concerning the child's time with the mother indeed was limited to:

    101.…

    ·[Ms Wallisham] enjoy supervised visits with [B] no less than once a month for a period of two hours and once [B] resides on the [Z Town], every two weeks for a minimum period of two hours.

15. Some potential confusion had thus crept in to the matter. In opening on the first day of the trial Mr Hodges had said that "the position of Mr K is now other than in his report" and indeed that Mr K now “supported” three steps (what came to be called during the trial "the three steps") namely:

    1.3 months alternate weekend time for 4 hours each alternate weekend supervised by Ms C on a Saturday or Sunday

    2.3 months alternate weekend time for 5 hours each alternate weekend supervised by the maternal grandmother on a Saturday or Sunday

    3after that 6 months alternate weekend time for 5 hours each alternate weekend unsupervised on a Saturday or Sunday.

    Indeed, Mr Hodges opened not only this change of position by Mr K, but also that Dr L supported what Mr K now supported, being "the three steps".

16. The difficulty however is that when Mr K was called (to which I will refer in more detail below), he seemed genuinely perplexed at the notion that he had supported something other than in his report. I will deal with Mr K’s evidence below. It is important to mention this aspect of the matter here however because in considering Dr L's oral evidence in essence I need to and thus will disregard his evidence "I would think non-supervised should be commenced in accordance with Mr K's recommendations" because, in essence, this purports to support a non-existent recommendation by Mr K.

17. However, Dr L’s evidence based on Dr O’s evidence, and his own opinion based upon other matters put to him (see pars 86‑89 above) is not affected.

18. Moreover, Mr Hodges then referred Dr L to ex 3, a random drug test on the mother 10 October 2011, showing a negative result for Opiates, Amphetamine Type Substances, Cannabis Metabolites, Cocaine Metabolites and Methadone Metabolites; showing "Further Testing Required" for Benzodiazepines; and "Not Detected" for Urine Alcohol; and very carefully in the circumstances then instructed Dr L "leaving aside [Mr K]", and requesting that his answers be "solely from the psychiatric point of view" asked whether after 6 months of supervised time (steps 1 and 2) there would be "no reason not to move to unsupervised time", to which Dr L responded with characteristic firmness "Correct", and whether he saw any difficulty with the three steps, Dr L said "that is very do-able".

19. Dr L then agreed with Mr Hodges that if after the period of 1 year the three steps had progressed well there would not be any reason from his perspective not to progress to alternate weekends overnight, if the mother should remain at her current drug level. In agreeing with this proposition, Dr L accepted that "2 years is a good track record for the mother", that being 2009-2011, of rehabilitation, and reflects the "determination" she has to have "the children" overnight. Dr L then volunteered that "The other thing impressive in the interview is, she had the ability to reflect and articulate the past destruction; there was no 'blaming others', as often seen in this Court". He said the mother "has developed a lot of insight into her past destruction". In this vein, Dr L said he agreed also that "a move to school holidays" would be appropriate, saying "Yes, shared holidays", and said that "if overnight is working for 3 months" a move to shared school holidays would be appropriate.

20. Under cross-examination by the father, Dr L said that the 4 drugs the mother is on is "not a problem" as long as the mother does not drink alcohol while the children are in her care. In relation to this evidence, it is necessary to mention that the mother had said earlier that she has 2 glasses of wine on Saturday evenings but does not have alcohol at any other time and would be prepared to have no alcohol as she can either "leave it aside" or "take it or leave it" or to that effect, if the children should spend unsupervised overnight and holiday time with her.

21. In relation to ex 3, Dr L agreed with the father that the drug test result was "not quantifiable". In relation to other questions by the father, Dr L said to the effect "It boils down to whether there will be constraints on the mother's behaviour", and it is "up to the Court to decide" whether the mother has insight into her previous behaviour "But in my opinion she has!"

22. Dr L continued "She has insight into the terrible effect on the children" (of her past behaviour) and "She has insight and this is not likely to recur".

23. The father then asked whether the mother should be under the care of a psychiatrist "given the complex nature of her problems". Dr L said "No", because she is under the care of Dr O, a psychologist, which may be "positive for her".

Mr K

1. I have set out already part of Mr K’s conclusions concerning B in his report 5 August 2011 (par 99; part of par 101). Mr K had provided an earlier report, 21 October 2010, in interim proceedings, leading to the interim orders which had been made on 3 December 2010, by consent, whereby B continued to spend time with the mother at a contact centre.

2. In his later report, leading up to his recommendations, Mr K had cautioned as to:

   94.…the high rate of recidivism in cases of substance dependency, and the vulnerability of the child.

3. In two paragraphs, Mr K cautioned as to the mother’s enmeshed relationship with both E and the child, and spoke thus of “some continuing risk to the child”, which in part will be “associated with the time he spends” with the mother, and “the conditions under which that time is spent”, describing enmeshment as “a debilitating interdependency” which requires “significant exposure between the enmeshed parties” such that “the current arrangements” (contact centre use) “would clearly seem to protect [B] from re-entering such a relationship with the mother”: pars 95, 96.

4. Mr K said further that whilst contact centres are “designed primarily for the needs of younger children” and for “bridging programs”, nonetheless “the unique features of this family” have effect that in his opinion there may be “some merit in conservative options”: par 97.

5. Mr K thus concluded, which I will set out in full for context (some parts are earlier set out):

   98.On balance, if a reliable supervisor can be arranged the movement of visits away from a contact centre would provide the mother and child with a greater range of potential activities in which to engage.

   99.I consider it appropriate for supervision to be discontinued when [B] develops greater independence and resilience, possibly when there is evidence that his developmental tasks are more related to separation and individuation.

   100.In my view, [B] does have an important relationship with his mother and it is appropriate that, if practicable, visits occur with greater frequency. Once [B] returns to [Z Town], fortnightly visits should be achievable.

   101.On the basis of the information available, should this matter proceed to Court, I recommend that:

   …

   ·[Ms Wallisham] enjoy supervised visits with [B] no less than once a month for a period of two hours and once [B] resides [in Z Town], every two weeks for a minimum period of two hours.

   … .

6. Mr Hodges then put to Mr K “the three steps” I have mentioned earlier but, as I have said, Mr K seemed genuinely perplexed at the notion that it had been opened that he supported the third step.

7. In this regard, it seems plain that there had been some misunderstanding or miscommunication as between Mr Hodges/Ms Fox/Mr K in oral communications before Mr K was called. There is no blame here, nor any sinister connotation. Plainly, oral miscommunication can happen. 

8. Mr K then spoke of “the unknown” concerning the mother and her circumstances. However, properly he conceded that there was evidence in the case “unknown” to him concerning the mother meaning, in particular, that he had not heard Dr L’s oral evidence as to, for example, the mother’s development of insight. When put to him that Dr L had said that the mother had developed insight, Mr K said “There is a gap between insight and translating that into changed behaviour”, but agreed that this assessment ultimately was one for the Court.

9. Under cross-examination by the father, Mr K agreed that the longer the period of time until unsupervised time, the better it would be for the child.

10. When asked whether B could easily be destabilized by even one episode of upset with the mother, for example, the mother crying, Mr K said “[B] is a sensitive child who does have attachment to his mother, and that could destabilize because of the enmeshment, the lack of identity boundaries”. He referred to his first report, par 87, saying that B “has impulses towards protecting his Mum”.

11. When asked “given the enmeshment”, whether Mr K had a concern as to “the three steps” progression, he said that (1) a move away from a contact centre would be good, if a supervisor can be found (it being remarked by someone, either Mr K, Counsel, or me that “everyone is comfortable with that”); and said further that (2) to establish a parenting role “half days” with the mother (seemingly on alternate weekends) would be good. He said however (3) “When I think about overnight visits, it’s hard for me to see that. He could probably manage that, but I don’t think that’s going to be in 6 months. My impression is he’s a touch immature. As to holiday visits, I’m not to the point of seeing that as a logical progression yet”.

1. Mr K then said that, on reflection, he was “not so concerned about the third step” (after 6 months of supervised time, a move to half days unsupervised on alternate weekends), and, on reflection, said he would support that, but said that he remained concerned as to orders at this stage progressing to overnight time.

2. Under cross-examination by Ms Frizelle, for the mother, Mr K was asked whether he was concerned that the father is “relying on the mother’s past history and not moved on”, especially when Dr O’s opinion as to the mother’s progress is considered. Mr K said that Dr O, as the mother’s treating psychologist, might have said things to “not damage the professional relationship” between Dr O and the mother, his inference being, I think, that the opinion of a treating practitioner, as opposed to that of an independent expert, must be scrutinised as such.

Dr J

1. Dr J, as I have said, was engaged for the children by the father, possibly because of Dr M’s recommendation in her report 12 September 2006 (p14) “I believe that both the boys should be in the care of a therapist”.

2. Possibly also however the father engaged Dr J independently. Certainly there is no criticism of the father in engaging Dr J, for assessment of the children by a child and adolescent psychiatrist, given the background of the mother’s circumstances and historical events between the children and the mother.

3. Dr J provided a separate report concerning each of E and B each dated 29 August 2011. Although these proceedings now predominantly concern B it is instructive to consider both reports, as the boys are brothers, although significantly different in age and maturity.

4. Dr J’s reports are very positive as to the progress of both children, a great credit to the father in the “turnaround” from being very troubled boys to boys now gaining significant adjustment. There is however as I mentioned a considerable age and maturity difference between E and the child, reflected in Dr J’s observations about them, and consequently their different needs, attitudes and rates of progress.

5. Apparently, Dr J had provided earlier reports concerning the children, not put into evidence in the trial. That is a matter for the parties and the independent children’s lawyer. I was invited only to refer to the later reports each dated 29 August 2011.

6. Dr J’s affidavit, properly, mentions that on each of the two occasions on which E and B attended on him they were accompanied by the father, the mother was not present, and the father requested that Dr J prepare the reports (Dr J’s affidavit filed 5 October 2011, pars 4, 6).

7. In relation to each child, the reports are short, two pages.

8. In relation to the child, for the purpose of the report 29 August 2011, Dr J said that for the purpose of the interview he first saw the father, then the child. The date of interview was 15 July 2011.

9. The first page, predominantly, is information given to Dr J from the father concerning the child.

10. In interview with B separately, Dr J said that B stated that seeing his mother “once a month at the contact centre was enough”. This should be contrasted however with what B told Mr K 2 weeks later on 1 August 2011 (Mr K’s report 5 August 2011, par 65) that B “would prefer to see his mother away from the contact centre and proposed fortnightly visits over the course of the weekend”.

11. Indeed, Mr K recorded that B told him that he “does not open up” to Dr J :

    64.[B] was asked about his periodic visits with child psychiatrist, [Dr J]. He did not protest about the appointments but commented that, in regards to his worries and aspirations, he does not ‘open up’ to the doctor. When asked if there are others in his life that he can speak openly to [B] replied that, “I open up a bit to Dad now”.

12. This must be borne in mind, both in relation to what B told Dr J and also in relation to what Dr J said (report, second page, my dot point summary):

    ·[B] presented well and his mood appeared good

    ·There is marked improvement in the child

    ·The decrease in access to his mother has improved his functioning considerably [seemingly, decrease since late 2009]

    ·[B] appeared less than enthusiastic and somewhat ambivalent about contact with his mother, and that “He appeared to indicate that he himself was not keen on increasing this contact” [that is, once each month at a contact centre].

13. Dr J concluded in relation to B (report, p2):

    My opinion is that [B] has improved in his psychological health greatly in the time I have seen him. I would be very cautious with increasing access visits to mother. I would still consider that supervised access visits would be necessary so as to not jeopardize the child’s progress. This could be done by a trusted family member or through the contact centre. My concern is that mother may destabilize the child’s relationship with father or at school in an effort to try and increase her contact with him.

    I would recommend continued supervised access of [B] and his mother. As to when this would be changed would depend very much on the child’s progress but similar to his brother I would suggest that at age 14 he would have more choices in the way contact should be organised. Up until that time I think this should be fairly carefully monitored.

    Certainly I do think that boarding school has been good therapy for the child. He appears to have improved in terms of his academic and social functioning. He appears to have developed well and has been able to develop a better relationship with father.

    I would recommend that at present the plan for [B] to transition to TSS and live with father is appropriate. I think that contact with mother should be supervised and initially should remain monthly and depending on its success and [the child’s] views that could become more frequent. If there is any sign of deterioration in the child’s functioning in any of the above areas then supervision of access of [B] and mother may need to be increased to make sure that she is not destabilizing his good progress. (emphasis added)

14. These conclusions, it must be borne in mind, need to be considered against the background of what B said to Mr K, and also the circumstance that when B was with Dr J , his father had seen Dr J  immediately before B saw Dr J .

15. However, these matters do not impact upon Dr J ’s overall assessment as to the significant improvement in the child’s “psychological health” between 16 August 2010 and 15 July 2011, being the two occasions on which B was assessed by Dr J, and the important underlying theme that, fundamentally, there is a concern that the mother may destabilize the child’s relationship with the father or at school “in an effort to try and increase her contact with him” and that in effect there needs to be some careful monitoring to ensure that if there is any sign of deterioration in the child’s functioning, supervision “may need to be increased” to make sure that the mother “is not destabilizing his good progress”. The other important matter identified by Dr J is that “at age 14” B would have “more choices” as to “the way contact should be organised” such that “until that time” this should be “fairly carefully monitored”. I would add that Dr J compared B with E in his specific mention of “at age 14” and use of the phrase “similar to his brother”, in the context of this being E’s age of ability, independently, to have or make “more choices” about spending time with the mother, implicitly both as to occasions and duration.

16. B is 10 years. He will soon attain 11 years, but not 14 years until 2015, more than 3 years into the future.

17. Essentially therefore Dr J promoted continued supervision of the time B spends with the mother, to the extent of “increased” supervision if there should be deterioration in the child’s functioning.

18. There is a “thread” however in Dr J’s report concerning B and his relationship with E his older brother. On the first page, Dr J spoke of B being keen to go to F School “like his brother”. On the second page, Dr J said that “similar to his brother” he would suggest that at age 14 B “would have more choices”. E is now 15 years, and has been exercising “choice” for some time, with it appears the ability to forge his own interaction with the mother. I would observe that it may be, but is not necessarily the case, that the child, in the next few years, will endeavour to follow in his brother’s footsteps as to wanting to initiate time with the mother, in the sense of “going with E” when E spends time with the mother.

19. I have referred already to the mother's evidence of E happily spending time with her recently: mother's affidavit par 71; this progression for E being neither coerced by nor restricted by Court orders.

20. This potentiality is perhaps an ideal.

21. However, in the meantime, the expert evidence concerning B needs careful consideration, especially Dr J's evidence of the need to ensure that the child’s progress is not destabilized by the mother, and the need for “monitoring” to ensure that this does not occur.

22. Thus, when considering the child's best interests, a balance must be struck so that, insofar as may be possible, he can continue to have the benefit of the further development of a meaningful relationship with the mother but, again insofar as may be possible, in the context that any risk of a revival of enmeshment not just be minimalised but obviated; and above all that his good progress in his psychological health, progress at school and in his relationship with the father not be destabilized.

23. In his oral evidence, Dr J recognised properly that in his limited role realistically he could not offer opinion as to benefit to B of spending increased time with the mother. He said however that he can assess the things that might destabilize the child. Whilst this is true, Dr J was not in the position of being able to assess the likely incidence of those things, that is, the mother’s conduct.

24. When Mr K's view was put to Dr J that B is "very sensitive", and it "would not take much to destabilize the child", Dr J  responded to the effect "Possibly".

Discussion and conclusions as to unacceptable risk

1. Drawing together all of the expert evidence, and the observations which I have made about it, there does not seem to me to be any identified or identifiable risk of psychological or other harm to the child, by his becoming destabilized, or by there being deterioration in his functioning, if after 6 months of supervised time he should commence to spend 6 months of unsupervised time with the mother on the half day basis on Sundays in alternate weekends, for 5 hours, being from 10.00am until 3.00pm, as proposed by the independent children's lawyer.

2. Dr L supported this, as ultimately did Mr K.

3. It seems to me, on all of the evidence, that the only identified or identifiable risk of harm to B is the risk of psychological harm if after 1 year B should commence alternate weekend overnight time with the mother and it not be sufficiently monitored to ensure that he not destabilize or there be deterioration in his functioning.

4. The same applies to the proposed ultimate progression to half holiday time, and the proposed telephone time and attendance by the mother at the child's school for functions and events usually attended by parents, which the independent children's lawyer proposed to be included now in the final orders concerning the child.

5. Presently, according to Dr L's evidence, which I accept, the mother has insight into her past conduct, which had “terrible effect” on the children, but her past conduct (with the qualifications which I have mentioned) is not likely to recur.

6. Dr L emphasised the insight which the mother has gained over the last 2 years into her past destructive conduct. I am conscious of Mr K's reflection on this matter that "There is a gap between insight and translating that into changed behaviour". However, B has spent only supervised time with the mother for the last 2 years. At some stage, there would be possible benefit to B of the introduction of overnight time and holiday time with the mother, provided that, as urged by Dr J, there be some monitoring process for recognition of "any sign of deterioration in the child's functioning". If this can be put in place, there is no reason to think that the risk of harm would outweigh the possible benefit to B of spending overnight and half holiday time with the mother.

7. In this regard, the independent children's lawyer, generously, has offered not to be discharged for 18 months, as a form of "safeguard" for the orders she proposes.

8. Dr L said that the mother's current prescriptions, if she does not have alcohol with them, are appropriate for B to spend overnight time and holiday time with the mother.

9. Having regard to all of the evidence, applying the "detriment/benefit" test, I conclude that the risk of psychological or other harm to B by his destabilizing or there being deterioration in his functioning is outweighed by the possible benefit to him of spending increased time with the mother, including the progression to unsupervised half day time and then unsupervised overnight time and holiday time, so that there is no "unacceptable risk" of harm to him, provided that there be a "safeguard" order, which I will discuss below. I make the same conclusion as to the proposed telephone communication and the mother’s proposed attendance at the children’s school.

10. That does not mean, however, that reflexively I will order as proposed by the independent children's lawyer. There are other considerations, which I will mention below.

Section 60CC(3) – the additional considerations

Any views expressed by the child

Principles as to children’s wishes and views

1. It is well settled that although children’s views must be taken into account, the Court is not bound by them: see R v R (Children’s wishes) (2002) FLC 93-108 at [128].

2. In H v W (1995) FLC 92-598 at 81,964 Baker J (Full Court, with Fogarty and Kay JJ but delivering a separate judgment) observed:

   There is a considerable body of psychological evidence which suggests that children as young as seven are capable of expressing soundly based wishes as to their preferred custodian. However, the crucial factor is the competency of the child rather than his or her age.  

   And at 81,966:

   Marshall, Grant and Naser argue that children of pre-school age (2-5 years) cannot articulate their feelings and have a form of reasoning whereby they reason from one particular idea to another without logically connecting them. Therefore, they do not see inconsistencies in statements or that their statements may be contradictory. Attachment can be best observed in the way in which the child interacts with each parent. (''Children's Wishes in Custody and Access Disputes'', Law Society Journal, 1980, pp 49-52.)  

   The research indicates that the younger school age child, aged five to seven years, can verbalise feelings about parents, but is rarely willing to articulate choices. Children in this age group often do not want to choose between their parents and are more likely to wish their parents would re-unite.  

   At the other end of the spectrum, in issues relating to custody and access, teenage children of 14 years cannot be realistically controlled against their wishes. In recent years there has been a growing willingness on the part of the judiciary to allow older children's wishes to prevail. In the case of Re P [1992] 1 FLR 316 at 321 Butler Sloss LJ stated:

   ``The courts, over the last few years, have become increasingly aware of the importance of listening to the views of older children and taking into account what children say, not necessarily agreeing with what they want nor, indeed, doing what they want, but paying proper respect to older children who are of an age and the maturity to make their minds up as to what they think is best for them, bearing in mind that older children very often have an appreciation of their own situation which is worthy of consideration by, and the respect of, the adults and particularly including the courts.'' 

   As to the reliability of children's views and wishes, Dr Collings believes that under the right circumstances, children can express valid and reliable views and wishes (Dr N Collings op cit  at p 10). There is a good body of research which indicates that children's memories with respect to issues of fact are quite reliable, that their observation and registration of fact is quite reliable and indeed that the likelihood of children telling the truth is quite high. There is, in fact, good evidence which suggests that children between the ages of four and nine years are more likely to feel a desire to tell the truth and indeed to respond truthfully than older children and adults.  

   The above research indicates that children from age seven are capable of expressing a choice between parents and of evaluating the respective environments which each has to offer. The weight to be given to these wishes will depend upon the children's cognitive age and level of maturity in each particular case.  

   The research supports a rebuttal presumption that children of the age of seven are capable of making a considered decision, a decision in which reason is employed. Having said that however, one must nevertheless be certain that the child's wishes are free from the influence of others and that the child possesses a sufficient level of maturity to formulate a soundly based wish.

3. The passages extracted are to the effect that adults can tend to under-estimate the wisdom of children and their ability to make sound choices about their welfare, and that research indicates that children from age seven are capable of expressing a choice between parents and of evaluating the respective environments which each has to offer, such that the weight to be given to such wishes will depend on the child’s cognitive age and level of maturity.  That does not have the result, however, as was made plain in the later decision R & R: Children’s wishes (2000) FLC 93-000 at 87,070-2, that in order to give proper weight to children’s wishes they should not be departed from, it being clear that if a child’s wishes are valid (that is, sound, and not founded upon improper considerations or influenced by others: H v W at 81,963) then they are to be given “appropriate and careful consideration” such that when valid wishes are departed from the trial judge must demonstrate the reasoning for that.

4. Mr K recorded B as saying that he wants to spend more time with the mother "away from the contact centre" and that B himself proposed "fortnightly visits over the course of the weekend": Mr K's second report, par 65. There is conflict between what B told Mr K, and what B told Dr J, that “once a month at the contact centre was enough”. There is also the circumstance however of B telling Mr K that he “does not open up” to Dr J.

5. B's age, the mother's history and these matters have effect that the child's views need to be approached with caution. In particular there is evidence of a prior enmeshed relationship between B and the mother (indeed both children and the mother) and expert evidence from Dr J of the need to ensure that the child's currently achieved progress not be "destabilized".

6. Although often it has been said that a child of 10 years has the ability to express views which should be given considerable weight, there are other factors in the case, which I have discussed, which tend to have the effect that whilst the child's views should be taken into account, they not be given determinative weight. In any event, as said, there is conflict in his expressed views.

The nature of the children’s relationships

1. Both of the parents wish to nurture the children and play a significant role in their lives.

2. The issues are such that the nature of the children's relationships with persons other than their parents was not explored in detail, either in relation to peer groups, or extended family on both sides, save that both children plainly have a close relationship with Ms D, the maternal grandmother.

1. The children do however have extended family on both sides.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

1. The father alleges that if there should be unsupervised time between B and the mother, she may be likely to denigrate the father and not encourage in B a close and continuing relationship with the father.

2. The mother however considers that the father is unwilling to recognise the "turnaround" in her conduct and disposition in the last 2 years, his fear being based on her "cocktail" presently of prescribed drugs.

3. I will now mention a matter which was not the subject of evidence, but which, in the less adversarial process, was stated during the trial as common ground, so that I am able to mention it.

4. As recently as the weekend before the trial, the father, which he acknowledged, refused to let B attend the maternal grandmother's birthday party if the mother was present. The result, unfortunately, was that the mother stayed home from her own mother's birthday party, so that B could attend with E.

5. In my view, this was rigid conduct by the father, especially as the occasion was a special one. I have mentioned already Dr L's assessment of the father as including “some obsessional traits with a need for control”, and “perhaps some narcissistic traits”. It is difficult to assess whether the father’s refusal was based upon some obsessional or perhaps narcissistic trait, or genuine concern as to the mother's ability to destabilize the child, based upon his own views and Dr J’s views.

6. The mother’s present ability to facilitate and encourage a relationship between the children and the father is somewhat academic, not only because the children live with the father, but because it is yet to be tested whether in any unsupervised regime she will be able to not denigrate the father.

The likely effect of any changes in the child’s circumstances, including the likely effect on him of any separation from either of the parents or any other child or person (including any grandparent or other relative of the children) with whom he or she has been living

1. The father, Dr J and Mr K all have concerns that B might destabilize if, while spending unsupervised time with the mother, there should be any "incident" of the type which occurred before the last 2 years of supervision.

2. The father was most emphatic in his evidence about this, saying that "all the good could be undone in one day", and "even one incident" could wholly destabilize the child.

3. I take these concerns into account. However, largely they overlap with the “unacceptable risk” analysis above, to which I would refer.

Practical difficulty and expense of the child spending time with and communicating with the mother and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with the mother on a regular basis

1. The cost of supervision by Ms C is agreed by the father, for 3 months of supervision, as proposed by the independent children's lawyer. I have mentioned this earlier, as amounting to $400 for each of the 3 months proposed by the independent children’s lawyer, the father however being prepared to pay the same amount monthly for ongoing supervision, until such time as the parties agree to another appropriate person as supervisor.

2. No other matter of practical difficulty or expense was raised.

The parties’ capacities to provide for the child's needs, including emotional and intellectual needs

1. The father is concerned that the mother does not have the capacity to provide for the child's emotional needs, and that there is the risk of the mother destabilizing B emotionally. If the mother is able to contain herself while B has unsupervised time with her, by her attained insight, as assessed by Dr L, and subject to the qualifications which he mentioned, there is no reason to think that the child’s emotional needs cannot be met by her, as it appears are E’s presently. 

2. There is no evidence of the mother's capacity to provide for the child's intellectual needs. However, as B will continue to live with the father, and he is progressing well at school, this aspect of the matter presently does not require further exploration.

3. The father undoubtedly has the capacity to provide for the child's intellectual needs, as demonstrated by the child's excellent school achievements.

4. However, although B will continue to live with the father, there is a concern that Dr L’s assessment of “some obsessional traits with a need for control”, and “perhaps some narcissistic traits", may have the potential for the father, perhaps unwittingly, to denigrate the mother to the child, indeed to both children, because he seems unable, as demonstrated in his oral evidence, to recognise that in the past 2 years the mother has achieved a significant "turnaround", identified by Dr L, in particular in relation to her insight as to the destructive nature of her past conduct. The father said at one stage in his evidence "You don't know what we've been through", in relation to the mother's past drug addiction. The father, as I assessed him during his oral evidence, had no insight into the possibility that he had contributed to the mother's drug addiction by his wrongful prescription of drugs for her, a matter greatly criticised by Dr L, which I have mentioned, and the mother’s sentiment about this which she reported to Dr M, which I have also mentioned.

5. In short, whilst the father is quick to point to the mother's parenting deficiencies it struck me that he has little insight into the possibility that he may have contributed to the mother's difficulties in the past of not being an adequate parent for the child, and who potentially now is capable of providing for the child's emotional needs.

6. In particular, according to Dr L’s expert evidence to which I have earlier referred, and which I accept, the mother’s past destructive conduct is not likely to recur.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. These matters have been sufficiently canvassed, save that the father said that B is "very different" from E, and there is expert evidence by Mr K, as mentioned, that B is "a sensitive child" and “a touch immature”.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the parents

1. Both parents love E and B.

2. Both parents are committed to the responsibilities of parenthood.

3. The mother however has had the difficulties to which I have referred, which in the past have compromised her ability to be a responsible parent, although, above all, she wishes to exercise and perform this responsibility.

4. The father, for his part, and to his great credit, has assumed the responsibilities of parenthood for both children, demonstrated by the circumstance that they live with him and that he provides for them.

5. One of the responsibilities of parenthood, however, is to encourage and facilitate a meaningful relationship between the children and the other parent.

6. To date, both parents have had difficulty in this regard.

Family violence involving the children or a member of the children’s family or family violence orders

1. This was not raised in argument as currently a significant matter.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children

1. It is preferable to make an order least likely to lead to the institution of further proceedings in relation to the children.

2. However, the assessment of this is somewhat neutral. I have referred to the s 64B order to be made by consent, to run for the period of 2 years.

3. If I make orders as sought by the independent children's lawyer, supported by the mother, there may be some measure of risk of new proceedings being commenced inside that 2 year period at the father’s instigation if he should seek and obtain ex parte leave, for example, if there should be any serious destabilizing incident or B should show signs of destabilizing or deterioration in his functioning. Probably however any such application by the father should not be made without reference to Ms Fox and possibly also the opinion of Dr J.

4. Equally however if I make orders as sought by the father for supervised time only but with a provision that it progress to unsupervised time as the parties may agree, the mother might inside that 2 year period seek and obtain ex parte leave if any failure to agree by the father is unreasonable or obstructive so that Court intervention for specified unsupervised time is required.

5. It must be borne in mind also that B will attain 11 years in 2012, 12 years in 2013 and 13 years in 2014 so that within the 2 year period (ending late 2013) B may be likely to “vote with his feet”.

6. In particular, if E continues to spend unsupervised time with the mother, and that continues to be a happy experience for him, B potentially could wish to do the same by joining E when E spends time with the mother or even independently.

7. Potentially thus on any view there could be new proceedings either within the 2 year period with leave or otherwise beyond the 2 year period.

Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

1. It is necessary to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent; and in particular the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children; and to spend time with and communicate with the children; and has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to the children; and spending time with and communicating with the children; and has fulfilled or failed to fulfil the parental obligation to maintain the children.

2. These matters have been canvassed sufficiently in the s 60CC analysis, save in relation to child support.

3. The mother said by reference to documentary evidence that the father is in arrears of assessed child support to the extent of some $17,000.

4. The father disputes this: ex 4.

5. However, the matter of assessed child support payments, or arrears, and whether or not they exist, does not impact upon the children’s best interests in respect of the limited matters I am to determine.

Discussion and conclusions

Parental responsibility

1. This has been agreed, so that the parents will have equal shared parental responsibility for both E and B.

Equal time or substantial and significant time

1. Sections 65DAA(1) and (2) have effect that first I must consider whether B spending equal time with each of his parents would be in his best interests and reasonably practicable, and if it is, consider making an order to provide for B to spend equal time with each of the child’s parents.

2. In Goode & Goode (2006) FLC 93-286, the Full Court said at [64] that the juxtaposition of s 65DAA(1)(a), (b) and (c) suggests a consideration tending to result in or the need to consider “positively” the making of an equal time order. In Korban & Korban [2009] FamCAFC 143, the Full Court explained that in Goode the Court did not intend to put a “gloss” on the plain wording of s65DAA(1) by its use of the word “positively” such that the Court should only make an order for equal time if there are no disqualifying factors: [83]; and that “consider” means to assess whether equal time is in a child’s best interests by weighing factors both positive and negative: [85]; but that the inquiry is a “positive one”, in order “to ascertain whether equal time is in a child’s best interests”: [86]. The Court further observed, as is plain by the legislation, that it is only if the trial judge concludes from the overall assessment that an equal time order should not be made he or she then would move to consider whether substantial and significant time is in a child’s best interests.

3. However, in this particular case, despite s 65DAA(1) and (2), the proposals of the parties and the independent children's lawyer have effect that my mandatory consideration of these provisions is somewhat academic.

4. However, having considered them, as I am required to do, I readily conclude, in light of the history of the matter, the evidence, and the parties' proposals, that neither an equal time order nor a substantial and significant time order presently is appropriate for B or in the child's best interests and further is not reasonably practicable.

What order will be in the child’s best interests?

First 3 months agreed

1. It is agreed that for 3 months B will spend supervised time with the mother, the supervisor to be Ms C.

Matters to be determined

1. The matters for me to determine are whether the maternal grandmother is a suitable supervisor for the next 3 months of supervised time; when if at all there should be progression to unsupervised, overnight and holiday time; whether there should be telephone communication; and whether the mother should attend school occasions concerning E and B.

Supervision by maternal grandmother

1. I have carefully considered the father’s concerns concerning the maternal grandmother, which I have set out already in detail. His expressed concern "she hates me" and "she denigrates me and has in the past" however is inconsistent with his allowing B to attend her birthday party the weekend before the trial. His concern that the maternal grandmother does not have the capacity to "contain" the mother because she is "not able to exert any influence" on the mother presupposes that the mother's likely conduct with B will be as before. His concern however needs to be considered in the context of Dr L's evidence about the development of the mother's insight and that the mother's past destructive conduct is not likely to recur. If the conduct is not likely to recur, then the father's concern as to the maternal grandmother's ability to contain it, and the mother, must be seen in this context. I take into account Mr K's observation "There is a gap between insight and translating that into changed behaviour". Whilst this is true, and there cannot be perfect future prediction, in my assessment there is no present reason to think that the maternal grandmother is not an appropriate supervisor for the second 3 month period as proposed by the independent children's lawyer and I will so order.

Unsupervised, overnight and half holiday time

1. There are 3 distinct phases here:

   ·       the commencement of unsupervised daytime for 5 hours on alternate weekends

   ·       the commencement of unsupervised overnight time for 3 nights on alternate weekends

   ·       the commencement of unsupervised half holiday time.

2. Dr L supported the commencement of unsupervised daytime after 6 months of supervised time, as ultimately (but not initially) did Mr K.

3. Whilst Dr J did not, he did not have the benefit of hearing Dr L's evidence concerning the mother's improvement.

4. On balance, the progression to unsupervised daytime for 5 hours on alternate weekends, after 6 months of supervised time, in my view is in the child's best interests and I will make that order.

5. As to progression after 1 year to unsupervised overnight and half holiday time, it is significant that I have assessed not only that there is no unacceptable risk to B if his time with the mother should progress after 6 months of supervised time to unsupervised alternate weekend day time for 5 hours, but also no unacceptable risk for progression then to alternate weekend overnight time and half holiday time, provided there is a “safeguard” order. It is not necessary to repeat the views of Dr L, Mr K and Dr J  which I have dealt with extensively already, other than Dr L’s view, which I accept, that “if overnight is working for 3 months”, a move to shared school holidays would be appropriate.

6. It is significant also that towards the conclusion of the trial the father said several times that, apart from par 9a of the independent children’s lawyer’s proposal, which he supported, he would leave the balance of the parenting orders concerning B "to the judicial discretion", recognising, I think, the strength of Dr L’s oral evidence concerning the mother’s development of insight and that her past terrible conduct was not likely to recur, the father, himself a psychiatrist, having the benefit of hearing Dr L's evidence and testing Dr L’s evidence in cross-examination.

7. It is significant also that in essence Dr L’s evidence was “about the mother” whereas Mr K’s evidence and Dr J’s evidence was, relevantly, “about the child”, the balance for me to consider in relation to the child’s best interests thus being, in this interface, whether I am satisfied that the turnaround in the mother is sufficient that she may be not likely to destabilize the child, in the ways already discussed, that is, in himself, his school environment and his relationship with the father.

8. It is also significant that if the father’s proposal should obtain the effect will be an indefinite order for long-term supervision, although with a proviso that it progress to non-supervision if the parties should agree. I accept Ms Frizelle's submission that, realistically, the father's concerns may be such that if this were to be left to his agreement such may be not likely to occur so that potentially supervision would continue for the next 2 years until B is almost 13 years.

9. The authorities as to long-term supervision are clear as to its undesirability other than when necessary: see, eg, Moose & Moose (2008) FLC 93-375 per Boland J at [118]-[119].

10. Having considered all of the evidence, the proposals, the submissions and the statutory matters I am obliged to consider I conclude, on balance, that the child's best interests will be met by making orders that include progression to unsupervised overnight and half holiday time, largely in terms of the independent children's lawyer's proposal, but with some minor variation to the timing of the progression to overnight time. In particular, I did not understand Dr L expressly to agree to 3 consecutive nights overnight time on alternate weekends during school term, and there is the need to consider Dr J's evidence as to the child's sensitive nature and maturity level. In my view, although there was no precise expert evidence about this, the tenor of Dr J's evidence suggests to me that during school terms B should spend Sunday evenings with the father to resettle before the start of the school week so as on Monday mornings during the school terms to wake up at and go to school from the father's home, with effect also that on each school day B will leave from and return to the same home. There would be benefit for the child, in my view, having regard to Dr J 's evidence as to his sensitive nature and maturity level, thus to resettle into the father's home on the Sunday evenings of the alternate weekends rather than the Monday evenings. Otherwise, on the alternate weekends on Monday mornings he would be required to dress for school at the mother's home and ensure thus that before going there he has his school uniform, shoes, socks, homework materials and so forth with him, which from a pragmatic viewpoint would be a potential burden on him to be avoided.

11. There is another circumstance to consider.

12. If I should make orders precisely as proposed by the independent children's lawyer, the progression to overnight alternate weekend time for 3 nights (par 9d i), that is, after 1 year, would coincide with the commencement of the 2012/2013 Christmas school holidays. Given that the proposal suggests a period of alternate weekend overnight time before the commencement of half holiday time, in my view the commencement of alternate weekend time should occur during the 2012/2013 Christmas school holiday period, for 3 nights on alternate weekends, but to revert to 2 nights in alternate weekends during school terms, as discussed, with the half holiday time then commencing at Easter 2013, when B will be 12 years. Moreover, Dr L said “a move to school holidays” would be appropriate “Yes, shared holidays”, “if overnight is working for 3 months”. Dr L did not suggest that the commencement of overnight time coincide with the commencement of half holiday time. An order for overnight time on alternate weekends during the 2012/2013 Christmas school holidays and Term 1 2013 would provide for a slightly longer period than 3 months, however, as explained, to introduce half holiday time earlier than Easter 2013 would not allow for Dr L’s caution, in effect, for half holiday time to commence only if “overnight is working for 3 months”.

1. I will order as I have set out, with effect that there be a slightly longer period than 3 months of overnight time before the commencement of half holiday time.

2. By agreement of the independent children's lawyer, she will not be discharged for 18 months. There is debate whether, once a final order is made, and the proceedings thus are concluded on the final basis, an independent children's lawyer properly can have any ordered continuing role. However, such order often is made having regard to the unique nature of parenting proceedings and the unique role of an independent children's lawyer.

3. This circumstance has effect that there will be a safeguard mechanism for “fairly careful monitoring” of the child, as recommended by Dr J, and further that if the father has concerns of B exhibiting signs of deterioration in his functioning or destabilizing the father will be able to contact Ms Fox, and if necessary Ms Fox in her independent role will be able to make application to the Court if necessary to suspend or vary the orders, Ms Fox not being constrained by the 2 year s 64B order.

4. The extent of the monitoring will be a matter for Ms Fox, for example, to make periodic telephone calls to the mother and the father, to request the parents to provide to her the child’s school reports as soon as they are received and so forth as she may consider appropriate. Further, a matter I have not as yet mentioned is the possibility of the mother having back surgery, which may have the effect of altering her medication. Dr L's opinion concerning the mother very much was based upon "if the mother should remain at her current drug level". If the mother has the back surgery, she should tell Ms Fox, who should seek the mother's permission for her to be told, by her treating medical practitioner or practitioners, as to any changes in her medication.

Telephone communication

1. I take into account the father's specific concerns, for example, the mother in the past keeping the children on the telephone for 50 minutes, resulting in "2-3 hours of upset kids". However, I would refer again to Dr L's evidence as to the mother's development of insight and that her past conduct is not likely to recur; Dr J 's caution as to the need for monitoring; and the proposed ongoing role of the independent children's lawyer to provide a safeguard by monitoring.

2. In all of the circumstances I am persuaded that telephone communication as proposed by the independent children's lawyer is in the child's best interests and will order that. I will include in the order however that the mother ensure that each call does not exceed 15 minutes.

Mother's attendance at children's school

1. I take into account the father's specific concerns, especially his view as to the risk of embarrassment to the children, and that even “a single incident” of embarrassment would have an effect on them, and in relation to B in particular a destabilizing effect in himself, his progress at school and in his relationship with the father.

2. I would repeat however the same matters, in particular Dr L's evidence as to the mother's development of insight, his opinion that inappropriate conduct by the mother is not likely to recur and the monitoring role of the independent children's lawyer.

3. As canvassed during argument and submissions, it is important for children to have their parents involved in their special occasions at school.

4. In my view the child's and E's best interests would be met by the mother attending their school for functions to which parents usually are invited or attend, and to include in the order, as canvassed also during argument, that in so far as may be possible, the mother attend the children's school with the maternal grandmother.

Other matters

1. The independent children's lawyer's proposal does not include any order as to changeover. I note that par 2(a) of the proposal included a reference to “pick-up and delivery of the children [at school] as provided for in these Orders". There was no such provision. As I understand the parties' positions it is understood that as has occurred in the past the father will deliver B to and collect him from the mother's home for all changeovers.

2. There is another matter to mention.

3. Although unsupervised time between B and the mother is not to commence for 6 months, that is, June 2012, the parties' consent orders provide for unsupervised time on special days, which, unless there be some qualifying provision, will include Christmas Day 2011, the child's birthday on 5 January 2012, the mother's birthday on 3 May 2012 and Mother's Day in early May 2012. The first of these 2 occasions occurs within the 3 calendar months in which the child's time with the mother is to be supervised by Ms C. Ms C is unlikely to be available on Christmas Day, and it is uncertain whether she will be available on the child's birthday. The next 2 occasions are each in May 2012, when, according to the orders I will make, the supervisor in any event will be the maternal grandmother.

4. As the parties' consent order in this regard appears to have arisen by oversight, I will hear from the parties as to what should occur on each of these 4 days.

5. Possibly, it would be appropriate for the maternal grandmother to be the supervisor for each of these 4 occasions. I will however hear argument as to this aspect of the matter. Potentially, the consent order as to special occasions could have a proviso:

   provided that until 1 June 2011 the child’s time with the mother on those special days be supervised as agreed between the parties or as arranged by the independent children’s lawyer.

6. Otherwise, the additional orders I propose to make are not controversial.

I certify that the preceding two hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 11 February 2011.

Associate: 

Date: