WEN & JONG

[2020] FCCA 749

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEN & JONG [2020] FCCA 749

Catchwords:
FAMILY LAW – Parenting – interim urgent application – two children 10 months and three – Mother’s mental health – unacceptable risk – interim change of residence of children – supervised time with mother – procedural orders.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2), 60CC(3), 65AA, 69ZL

Cases cited:

Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Goode v Goode [2006] FamCA 1346
Marvel & Marvel (No.2) (2010) 43 Fam LR 348
Mazorski & Albright (2007) 37 Fam LR 518
SS & AH [2010] FamCAFC 13

Applicant: MR WEN

Respondent: MS JONG

File Number: SYC 829 of 2017

Judgment of: Judge B Smith

Hearing date: 4 March 2020

Date of Last Submission: 4 March 2020

Delivered at: Sydney

Delivered on: 4 March 2020

REPRESENTATION

Solicitors for the Applicant: Herald Legal

Solicitors for the Respondent: Barry Nilsson Lawyers

ORDERS

1. The matter be listed on 11 March 2020 at 9:30am for mention in respect of supervised time.

2. Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.

3. The children, X born in 2016 and Y born in 2019, are forthwith to live with the father.

4. The children are to spend supervised time with the mother as agreed between the parties.

5. Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be urgently appointed for the children X born in 2016 and Y born in 2019.

6. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

7. The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.

8. Each party make available to the Legal Aid Commission of NSW (Sydney Office) forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

9. The parties facilitate the attendance upon his/her representative of the children at times and dates requested by that representative.

10. Leave be granted to the Independent Children’s Lawyer to issue more than five subpoena.

11. That until further order, each party, Mr Wen born in 1987 and Ms Jong born in 1992, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Children, X born in 2016 (male) and Y born in 2019 (male), from the Commonwealth of Australia pending further order of this Court;

12. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said Children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Children’s names on the Watchlist for the said period, or until the Court orders its removal.

13. The mother is to obtain a report from Dr A and she is to provide Dr A with:

    (a)A copy of the fathers Affidavit filed on 27 February 2020 together with a copy of the videos exhibited to that Affidavit;

    (b)A copy of the mothers Affidavit filed on 4 March 2020; and

    (c)A copy of these Orders.

14. Dr A is to address the report to the Court and is only to provide a copy of the report to the Court via [email protected] and it shall be considered and released as appropriate.

15. Within 7 days, the mother is to provide to the father a list of all treating medical practices and practitioners she has attend over the last 4 years.

AND THE COURT NOTES THAT:

(A)The changeover will happen approximately 7PM today in the lobby of the former matrimonial home.

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 829 of 2017

MR WEN

Applicant

And

MS JONG

Respondent

REASONS FOR JUDGMENT

1. These are short-form reasons for decision pursuant to section 69ZL of the Family Law Act1975 (Cth) (“the Act”) in respect of an interim application for parenting orders brought by the applicant within Part VII of the Act.

2. The applicant Mr Wen, 27 years of age, is the father of the children the subject of these proceedings, and Ms Jong also 27, is the respondent mother.  They commenced cohabitation in 2014, were married in 2016. They have two children the subject of these proceedings, X born in 2016, now three and a half approximately, and Y born in 2019, now just over ten months old.

3. The parties separated on or about 4 November 2019 following an incident on 2 November 2019 which involved a knife, which is being referred to as “the knife incident”, which was reported to the police and is considered further below.

4. The father moved to his own place on about 20 January 2020, and on 22 January 2020 there were circumstances where the mother threatened suicide and sat with her legs and body hanging out over a balcony at a height which, it appears, would have caused her death had she fallen.

5. This is an urgent application by the father to have the children, who are currently living with the mother, move to live with him. The application was filed on 27 February 2020, which is last week, and the Registrar has identified the application, based upon the evidence filed in support of it, as being urgent and it has come on urgently. Therefore, both parties have been put in a situation where the usual detailed preparation of affidavits and other evidence has not been able to occur, but that is an incident of the need to deal with such serious questions urgently.

6. The essence of the father’s case is that the threatened suicide attempt and the knife incident were the latest in a string of conduct across a very long period of time which, in effect, demonstrates the mother’s poor mental health. He says that that poor mental health and inability to control herself means that she is a person who, at the moment, poses a risk to the children either directly or because, given their tender years, if she were to self-harm in a way that left her incapacitated, it might be some time before the children were discovered and they may be seriously harmed or die in that time. That is the basis upon which he seeks an urgent change of live-with arrangements and also supervision.

7. The mother, broadly, says that she admits that she had had some issues, although she says these arose particularly in and as a consequence of the husband’s conduct in the relationship and also, to some extent, to her alcohol use which she says she has reduced. Her case is that post-separation she is substantially better; that she is of good mental health; and that whilst she regrets the conduct complained of, she does not deny it, indeed she cannot given, as I will come to in a little while, there is video evidence of it.

8. She says the children are not at risk in her care, and the Court would therefore be reluctant to remove the children from the care of the mother who has been the primary carer for all their lives to the father, noting of course that the father, having lived with them until very recently, is someone who has also been in their lives the whole time and is in no way a stranger to them.

9. Before I embark upon a more detailed consideration of the evidence I should note that the paramount consideration that binds this Court is the best interests of X and Y. That is what the Court is concerned with. The Court is not concerned with what either of the parents may think is fair, but only with the children’s best interests pursuant to section 60CA and 65AA.

10. When the Court asks what are in the children’s best interests, it must then consider the question of the factors identified in section 60CC(2). That section sets out what has been referred to as the twin pillars from Mazorski & Albright[1] and they are that, first and foremost, this Court has an overriding obligation to protect each of these children from physical or from psychological harm, or from being subjected to or exposed to abuse, neglect or family violence. That is the guiding principle which must direct this Court.  Secondly, also importantly but coming after the obligation to protect the children, the Court must look to the benefit of each child having a meaningful relationship with both parents.

    [1] Mazorski & Albright (2007) 37 Fam LR 518.

11. There are, then, numerous additional considerations set out in section 60CC(3) to also be considered, but those additional considerations cannot outweigh the primary considerations and, in particular, the first and foremost of those which is to protect the children. I note that the Court is entitled to rely upon the parties to identify which of the 60CC(3) factors are truly relevant, and in this case the parties have focused on the critical question of the mother’s mental health, and, as I understand it, both parties agree that that will decide the matter for today.

12. I note that this is an interim hearing and, as was said in Goode & Goode[2], the Court is required to identify the competing proposals of the parties first, and they are quite simply this: that the father says that because of the risk the mother poses and the potentially dramatic consequences of the risk, the children should forthwith live with the applicant father and says that the mother should spend either no time with the children or supervised time - and, as I understand it, it is the supervised time that is being pressed; that there be an Independent Children’s Lawyer appointed, which I do not think anyone objects to; and such other orders as the Court sees fit.

    [2] Goode & Goode [2006] FamCA 1346.

13. The mother’s first application is that the Court should today do nothing and, first, from her point of view do no harm; that before any order is made the Court should allow the mother to attend an appointment with     Dr A who is a certified forensic psychiatrist and a senior lecturer at the University of New South Wales. He has been involved and he has provided a report on the mother, exhibit A in the proceedings, on 15 October 2019, and the mother is seeing him again tomorrow.

14. So the mother’s primary position is that there is not sufficient evidence of risk to the children to justify the Court taking the dramatic act of moving the children today; the Court should wait to see what Dr A says, noting that if he sees her tomorrow it may be somewhere between three days and an unspecified time, perhaps a week but perhaps more, when he can provide a report; and that in the meantime the children continue to live with her and spend time with the father each Saturday evening from 6 pm, I think, until 7 pm Sunday, and such other times as agreed between the parties in writing; and she also seeks consequential orders regarding non-denigration; and she also sets out particular times for the children to spend with the father relating to Moontime and so on.

15. I note that whilst the mother’s position is that the children should live with her, there is no suggestion the father’s time needs to be supervised or that he is an unacceptable risk to the children – more that because she is not an unacceptable risk, it would be improper or inappropriate to move them to the person who has not been their primary carer, particularly noting Y’s very young age. The parties, I do not think, have raised parental responsibility, and I do not think it is appropriate to try and deal with it today.

16. As set out, the parties have only been able to produce a small amount of evidence, but when dealing with child safety the Court cannot merely say we do not have enough evidence to act, because a decision not to act is a decision, and that type of decision not to act can and, unfortunately, has in the past had tragic consequences for children. And, of course, moving them too hastily can also have adverse consequences. There is no simple solution. As the Court said in Marvel & Marvel[3], the orders to be made today are:

    …a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing.

    [3] Marvel & Marvel (No.2) (2010) 43 Fam LR 348.

17. It was also noted that a conservative approach is to be adopted and that any factual findings made at an interim hearing should be:

    …couched with great circumspection.

18. But, of course, since a decision must be made, in effect, one way or the other, as the Full Court also said in Eaby & Speelman[4], the fact that there may be disputed facts at an interim hearing:

    …does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.

    [4] Eaby & Speelman (2015) FLC 93-654.

19. I have noted that the parties have really, in terms of what was said in Banks & Banks, joined issue on the first section 60CC(2) question of child safety, and issues of child support or other factors that may be relevant at a later date in 60CC(3) have not been raised as being relevant.

20. The principles, and I think the mother’s Counsel referred to Deiter & Deiter[5], that have to govern the assessment of risk and protection from harm on an interim hearing basis at 61, the Full Court said:

    The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

    [5] Deiter & Deiter [2011] FamCAFC 82, [61].

21. I also note that in SS & AH[6] the Full Court said that:

    Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

    [6] SS & AH [2010] FamCAFC 13.

22. Obviously there are other authorities cited, but those, broadly, are the principles that guide the Court. We must look to the best interests of the children. We must look, firstly, to make sure they are protected, always noting that any decision to move them has its own potential serious, negative side-effects, and this Court must do the best it can based upon the limited material it has before it.

23. The case is somewhat unusual in that the father has produced, and there has been admitted into evidence without objection as exhibit 2, a series of video recordings of the mother, going back to 2015. Now, the fact that he has been recording her over that period of time raises concerns, for obvious reasons, and may support her contention that her actions were a response to his conduct in the relationship, and that now she is free of that relationship, noting that she makes allegations which I cannot make any finding about, but she says that she is much better now.

24. But, nevertheless, the video footage which I have viewed - and which is dealt with by the husband in his affidavit of 27 February and to which the wife responds, to some extent, in her affidavit of 3 March 2020 – is concerning. The video – it is difficult for me at 10 minutes to 6pm to provide a detailed outline of all the video footage, but going back to 2015 there is footage which does not show the mother, but shows from the inside of the bathroom door what the father says is the mother stabbing the door with a knife.

25. All of the videos have sound which creates other issues about consent, but since I do not speak any Chinese language I do not know what was said, but the father has made certain assertions about that. To some extent, at different points in her affidavit, the mother has not contested his assertions in respect to other matters. She has, starting at paragraph 87 of her affidavit, made certain comments. In respect of 12 October 2015, which is the video A1 which shows the father apparently in the bathroom, he says that she was striking the door with a knife. He says she said that her hands were bleeding.

26. Now, after the door was opened and she was gone, there was certainly damage to the door; there was material which appeared to have been thrown around, and he says she smashed that material.

27. Her response to that is that she did not recall the precise details of the event (at her paragraph 89); that she was pregnant; was experiencing stomach cramps, vaginal bleeding, vomiting; was feeling terrible the majority of the time; and that despite the husband knowing she was feeling like this, he would constantly start to pick an argument with her.

28. She says that during the argument the father pushed her to the floor, and that she is regretful of this event but does not really come directly to grips with the issue of repeatedly stabbing a door and the fact that, regardless of him starting an argument, that would seem to be a very extreme response. There are other incidents referred to which are not on video, some of which are contested and some are not.

29. Another incident which was troubling as on video was on 28 March 2016 when the mother was seven months pregnant, and appears to have turned a table over which was being picked up, and then, very concerningly, she has struck herself in the belly with a large what looks like a rolling pin, or something along those lines, and it is apparent from the sound of the striking that these were serious blows to her own stomach while pregnant, and she has then fallen to the ground. This is also very troubling behaviour.

30. In respect of that, her paragraph 91, the mother addresses the material. She says that there were issues because he did not have stable income; that she felt unwell; she has paid the majority of the expenses; they have got into arguments, all of which are reasons why there might be conflict in the marriage, but she does not actually address, as far as I can tell, the concerning issue of striking herself in the belly, hard with a rolling pin, to the point where she collapses to the ground, whilst pregnant, and that is a matter which raises questions about her mental health. I think that is video B.

31. In April 2016 there is a video of her sitting, banging her head against a door, and, again, I do not know what the door was made of but the sound effect was suggestive to me, and also the way her whole body moved as she was doing it, was strongly suggestive to me that she was striking her head with some force; that, again, is a matter of concern. In respect of that, at 92 in her affidavit, she said:

    I deny that I did this without any provocation.

32. Now, again, there may well have been serious conflict in the relationship, but it is a concerning thing to watch and, as part of the pattern that is building up, it raises concerns about the mother’s impulse control, and mental health, and what she does when she is stressed, and that is, in effect, what the father’s application relates to. There is also an event where she is pulling his hair, in D1, which strikes me as not lovely, but not something which necessarily goes to the question of psychological risk.

1. I note that the videos are not numbered or lettered sequentially, so there has been a question as to whether there are other videos. One was produced but not tendered by anybody. In any event, I note that not everything is covered.

2. Now, in sequence, it appears that in October 2019 the mother went to see Dr A, and I will stop now and consider Dr A’s relatively short report which was written on 15 October 2019 to Dr A who appears to be a treating general medical practitioner.

3. The history is that the mother’s mother and the father asked her to see a psychiatrist, but the mother did not believe she had any issues. It was said that the maternal grandmother and the father believed that she had postnatal depression and she had not been emotionally stable. The history given to Dr A, from the mother, as recorded in his report is:

   She feels that her emotion has been more intense since she gave up work and stayed home due to pregnancy –

   In the past, she was able to control her emotions, but now she can’t control herself. (Emphasis added).

   She has become irritable. She breastfed the child for two months. She has been busy with daily chores, and there is not much joy. She has lost weight. She used to work in administration with a firm. She has been relating well with the child. She has not been sleeping well since pregnancy. She feels lethargic, and she feels herself as not being validated. She hopes she can have some achievement. She studied. She feels her memory has declined. She denies thoughts of self-harm or suicide. She has been socialising with her friends, and she feels happy when being with them. There are no reported symptoms of psychosis. She denies having a history of mental-health issues. There is history of self-harm, such as –

   There is history of self-harm, such as cutting wrist. (Emphasis added)

   She has no previous contact with psychiatrist.

4. A history in respect of her family of origin and school was given, and her early relationship history. It was noted that:

   She labels herself as being perfectionistic and is domineering. Her mood was not stable since 2016, but it has been more stable. Her confidence fluctuates. She was more impulsive when she was younger. She is a sensitive person. In my impression, Ms Jong has symptoms consistent with depression, moderate in severity. There may be perfectionistic personality traits and some class B traits. She needs to be further assessed in this regard. I prescribed Mirtazapine 7.5 milligram daily. Depends on clinical response, the dosage of medication can be gradually increased up to 30 milligrams daily. She will receive continuing care, and I’m happy to review her again. (Emphasis added)

5. The matters of concern are the mother’s own history that in the past she was able to control her emotions, but now she cannot control herself, and that is the essence of the risk relied upon by the father in respect to the children.

6. Many people suffer from depression, and are able to function and are in no way any risk to children, but it is of note that Dr A is relying upon the mother’s history. There is a question as to whether she had recently changed general practitioners before that, as I understand, she had, from what I was told from the bar table.

7. So there is also question as to the accuracy or fullness of the history Dr A had.

8. In respect of there being, “some class B traits”, the father has said in his affidavit, as hearsay, that he understood that the doctor was saying that she had traits of borderline personality disorder. I cannot make that finding without knowing what the doctor has said, but certainly if that is what is meant by class B traits, it is consistent with what is on the videos.  I will go on to describe with other videos, and, of course, one of the issues with that is impulse control, but putting that aside for the moment, and I will not make any finding or take any further reference to that question.

9. The mother’s history was she was able to control her emotions, but now she cannot control herself, and that is what I see in the videos.

10. I also note that despite her case being that she has not had long-term problems, she has quite clearly told Dr A that, as the father has said her problems go back to at least 2016. I note that there was also an aid to the video, which is annexure H to the father’s affidavit, arising out of events on 29 October 2019 where the mother was slapping the father’s face in front of the children. That is set out in video G and is quite distressing also, and the children are clearly present and are clearly involved, and seems to me that X is distressed. That is concerning by itself, and seen in isolation it could just be a situation or domestic event, but when seen as part of the constellation of the other video evidence, it adds some weight to the father’s case.

11. There is the knife incident on 2 November 2019 which, although it involves a knife, is less dramatic than some of the other material. That is in video I. The parties are talking. It is obviously unknown what they said, but at one stage the mother walks over and picks up a knife and they appear to be having an argument of some kind.  The father does not suggest that she actually threatened him. Indeed, he says she said she did not want to harm anybody, and eventually she put the knife down, and, again, although it involves a knife, in some ways it is less disturbing than some of the other video. In particular, the stabbing of the door, the rolling pin and the head banging, which appeared to involve loss of control. Even though she was holding a knife, she seemed very controlled, but, nevertheless, it is not a good sign in the context of the totality of this case that in the course of the conversation she has chosen to pick up a knife while speaking with the father.

12. Then, most recently, and, therefore, potentially most relevantly to today, on 22 January 2020, post-separation, the father says he went to the apartment to take care of the children. He said the wife was drinking. He said he did not leave because he had some concerns. They talked. He says she was very emotional and he said, perhaps unhelpfully, “If you continue to be crazy, I will ask the police for help”, to which she said, “If you call the police, I will jump off the building”. Now, that is the kind of thing people say when they are upset, but it did not stop there. As the video shows, very concerningly, only a few weeks ago the mother then it appears quite clear when you look at it, that she is sitting on the balcony for a period of time, and it appears that the father is talking her down.

13. Now, it is one thing to say, “If you do not go, I am going to kill myself”. It is quite another to put herself in a position where, frankly, there must have been a real risk that if she sneezed or something happened, she could well have died. The difficulty, of course, is with children this young, if that happened when she was alone, who knows then the children would be found and what condition they would be, and, again, unfortunately, children have died because a parent has died whether through suicide or just through an accident, and no one has found them and they are too young to take care of themselves.

14. I note I have read the mother’s material in respect of the various videos I have referred to, the knife she refers to in paragraphs 105 and 106 of her affidavit. She says that she was frustrated and felt trapped, was exhausted, and said she took the knife out of the drawer as she did not know what else to do to get him to realise she was serious about wanting to separate. It does not seem to be a proportionate response, given that there was no evidence I could see from the video that he was being aggressive that would justify a knife as self-defence. It does seem to be an overreaction.

15. She also deals with the sitting on the ledge at paragraphs 113 and 114 of her affidavit. She sets out an extensive discussion she said they had. She said she does not recall saying that she wanted to die, but that does not sit well with the video evidence. She said she did not intend to jump off the balcony, which raises the question of why she was sitting where she was, and I cannot easily accept that. It may be that she did not intend to jump off the balcony, but she was certainly making a threat and she put herself in a position of real risk where she could easily have died.

16. She said she felt extremely worried she could be imprisoned because of the breach of the AVO and at the prospect that she would not see the children:

    I felt hopeless and thought it would be easier if this was all over. I did not ever intend to kill myself or harm myself.

17. She said the father would not leave, despite it being obvious she needed him to, and the father wanted to keep talking about it and through it, it was making her feel worse and worse. She said he threatened to call the police which was not helpful.

18. Now, it is a difficult situation. I am certainly not going to criticise the father for staying and trying to talk her off a balcony where she was sitting, precariously balanced on the railing and could easily have fallen to her death, nor calling the police to try and talk someone down in these unusual circumstances, but the mother’s own evidence is gravely concerning to me. She says this was all she could think of to do to get him to leave, was to put herself in a position of this risk.

19. This conduct also goes to the father’s position, which is that the children need to be moved immediately given the mother’s possible responses.

20. Given what I have seen on the video, if it does not happen immediately there is a real risk the mother may, in anticipation of something happening, as she did in anticipation of being breached for the AVO, do something that puts her own life at risk, and, therefore, the children’s lives at risk.

21. While I am bound by all of the authorities to be extraordinarily cautious, particularly with respect of moving a child of 10 months from its mother, and also a child of three and a-half years, I am also required, first and foremost, to prioritise the safety of the children. This is a case where, as noted by the various authorities I have referred to, I cannot wait until the last piece of evidence is available, or, indeed, even before a lot of evidence is available because a decision has to be made one way or the other.

22. I am not satisfied that Dr A’s report is helpful to the mother. It seems to me that her own history is consistent with what I have seen in the videos and even what she says about her own conduct, which is that when she has strong emotions she cannot control herself. A 10 month old’s life is entirely dependent upon the capacity of the parent in charge to control herself, and so to a slightly lesser but almost the same extent is the life and safety of a three and a-half year old.

23. I am not satisfied the mother has addressed the issues in her affidavit and/or sufficiently addressed them to the extent she has addressed them.

24. I feel no comfort whatsoever that, if faced with proceedings where she may not be the primary carer, she might not do something such as sit on the edge of a balcony at a height and maybe next time come to harm, whether intentionally or not, as occurred on 22 January which is only about five or six weeks ago.

25. I note that the Courts have said the judge must be very cautious and also must be cautious to note the possible negative impact of the move, but the children know the father; he is not a stranger to them. He only moved out relatively recently. He has been having unsupervised time.  This is not a case where they have not seen someone for years.  He would not be, in effect, be a stranger who will frighten them.

26. I am very concerned about moving a 10 month old, but where I have formed a genuine concern that the mother may self-harm or take other rash actions which may harm her, whether through injury or fatality, even if not intended, as could so very easily had happened if she had slipped off that balcony on 22 January, then I must assess that within the Deiter & Deiter[7] matrix as saying that the likelihood of the occurrence of harm occurring at the moment, particularly in the context of the stress of litigation, is I think moderate to high, and I think the consequences and severity if it does happen are extreme.

    [7] Deiter & Deiter [2011] FamCAFC 82.

27. In those circumstances, reluctant as I am to move children of this age, I believe that I am bound by law to prioritise the children’s fundamental right to physical safety over any other considerations, including considerations of procedural fairness to the mother to obtain further medical evidence in the short-term, and that nothing can override the obligation of this Court to make sure the children are physically safe. It is unfortunate that the father’s evidence on what he intends to do, precisely, was very thin but, again, the matter has come on very quickly.

28. I will say that I did review the material about the previous care agreements that have been reached and I have given thought about the genuineness of the father’s complaints, because until 18 February he was negotiating about his time with the children but the submission was that, in effect, he has been in a difficult relationship for a long time. The Court should not assume that the issues that arise for the victims of domestic violence against a female do not similarly arise for those who are male, and, in any event, the video evidence and even the mother’s poor attempt to explain it is such overwhelming evidence that I am satisfied that this is not a spurious application brought by the father for forensic purposes.

29. I am concerned that the father did not put on good evidence about what he will do but he has got a house. He has indicated he will take time off work so that he can take care of the children, and may have the support of a nanny, and I understand that the mother has the children with a nanny now.

30. I will again emphasise that the Orders that are made here today are a necessary but temporary measure only until all the evidence can be tested, evaluated and weighed at a final hearing. The fact that I propose to make Orders in effect with the father’s proposal today mean that that is what will happen for the next six to eight weeks, during which time I am going to make Orders that we have an Independent Children's Lawyer appointed.

31. I am going to make orders about what material Dr A will have to get a much clearer situation of the psychiatric position. I will expect the father to issue such subpoenas as are necessary. I am going to order the mother to provide information about all of her prior medical treaters. It may well be that in the absence of the relationship stressors, further evidence will emerge which will satisfy me that the mother is now in control of her emotions and does not pose a risk to herself and so to the children, and if I reach that view, well then, the likelihood is that the children would be returned to her. But I cannot avoid the responsibility to make a decision about the children’s safety today, and accordingly, for the reasons I have given, my assessment of the risk, its likelihood and the severity of potential catastrophic risks to the children.

32. I will then, via my associate in the usual way for an expert report, consider when and how and the circumstances in which such report will be released to the parties. The mother is to provide to the father within seven days a list of all treating medical practitioners over the last four years.

33. [Discussion with parties.]

34. I will note that the changeover will happen at 7 o’clock in the lobby of the former matrimonial home. All right. Now, I will give you a mention date next week. I want supervised time with the mother to be happening. If there is going to be any issues about it, then I will decide it at 9.30 next Wednesday. Hopefully the parties will be able to come to some agreement. If you cannot come to an agreement, then I will decide it then.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge B Smith

Date:  2 April 2020