WILDE & FOSTER

[2018] FamCA 502

FAMILY COURT OF AUSTRALIA

WILDE & FOSTER [2018] FamCA 502

FAMILY LAW – CHILDREN – Best interests – With whom the children live – Where there is evidence of mother’s mental illness – Where father alleges risk to children as a result of that mental illness – Where previous consent orders have been made – Where the mother contends that she did not have the opportunity to properly consider her position before consenting to those orders – Supervised time – Balance between meaningful relationships and protection from harm – Parental responsibility – Presumption of equal shared parental responsibility – Conservative approach in interim proceedings – Independent Children’s Lawyer – Liberty to apply following release of Single Expert Report.

FAMILY LAW – PROPERTY – Exclusive occupation.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 114.

B & B (1993) FLC 92-357
Banks & Banks [2015] FamCAFC 36
Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Fitton & Kimble [2017] FCWA 106
Jurchenko & Foster (2014) FLC 93-598
Jyotisha & Jyotisha and Anor (2016) FamCA 738
McCall & Clark (2009) FLC 93-405
SS & AH [2010] FamCAFC 13
S & S [2002] FamCA 59

APPLICANT: Mr Wilde

RESPONDENT: Ms Foster

FILE NUMBER: SYC 2427 of 2018

DATE DELIVERED: 6 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 18 and 20 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney SC

SOLICITOR FOR THE APPLICANT: Doolan Wagner Family Lawyers

COUNSEL FOR THE RESPONDENT: Dr Barnett

SOLICITOR FOR THE RESPONDENT: Parker Law

ORDERS

1. The children X, born … 2014 and Y, born … 2017 (collectively “the children”) shall live with the father.

2. The children shall spend time with the mother:

   (a)Each Monday from 12:00 pm until 3:00 pm;

   (b)Each Wednesday from 12:00 pm until 3:00 pm;

   (c)Each Friday from 11:00 am until 4:00 pm; and

   (d)Such other periods of time as may be agreed between the parties in writing.

3. The mother's time with the children shall be supervised at all times by B Group (or such other professional supervision organisation as the parties may agree upon in writing) and each party shall do all things and sign all documents necessary to facilitate such supervision and the parties shall each pay one half of the costs of such supervision.

4. The mother's time in accordance with Order 2:

   (a)Shall commence by the father or his nominee delivering the children to the supervisor at the mother's residence at the commencement of time; and

   (b)Shall conclude by the mother causing the supervisor to deliver the children to the father's residence at the conclusion of the time.

5. The mother have telephone, Skype or Facetime contact with the child X each Tuesday, Thursday and Sunday at 6:30 pm, with the mother to provide the father with the necessary contact details and the father to facilitate X's participation, including by establishing the necessary connection.

6. Pursuant to section 68L(2) of the Family Law Act 1975 (“the Act”), the interests of the children be independently represented by a lawyer and it is requested that the Legal Aid Commission of New South Wales make arrangements as soon as practicable to secure that independent representation of the children's interests.

7. The parties provide to the Legal Aid Commission of New South Wales all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

8. The Independent Children’s Lawyer be granted leave to inspect and copy any subpoena material and the Court file.

9. Pursuant to Part 15.5 of the Family Law Rules 2004, a Single Expert be appointed to prepare a report in respect of the parenting issues in these proceedings, and:

   (a)Forthwith, upon appointment of an Independent Children’s Lawyer, pursuant to the above orders, the parties shall join with the Independent Children’s Lawyer in agreeing upon the Single Expert to be appointed; and

   (b)In the event of any dispute as to the identity of the Expert, the terms of their instruction or the payment of their costs, the parties and the Independent Children’s Lawyer shall, forthwith, make arrangements to relist the proceedings for further directions and shall, for such purpose, have liberty to apply to the Court on 7 days’ written notice to the Court and each other.

10. The parties have liberty to apply in respect of a variation of the parenting orders currently in place, upon release of the Single Expert Report.

11. Pending further order and within fourteen (14) days of the date of these Orders, the mother shall vacate the property known as and situate at C Street, Suburb D (“the Suburb D property”) and from that date, the father shall be entitled to occupy the Suburb D property to the exclusion of the mother.

12. Until and upon vacating the Suburb D property, the mother:

    (a)Shall maintain the property in good order and condition; and

    (b)Shall be, and hereby is, restrained from removing (or from causing or permitting the removal of) any item from the property, save for her personal clothing and effects.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilde & Foster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 2427 of 2018

Mr Wilde

Applicant

And

Ms Foster

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter concerns an Application in a Case filed by the father on 18 April 2018, in which he seeks interim parenting orders for the two children, X, aged four (“X”) and Y, aged 13 months (“Y”).  The father is also seeking orders for exclusive occupation of the former matrimonial home at C Street, Suburb D (“the Suburb D property”).  The applications are opposed by the mother.

2. The parties commenced cohabitation in January 2011 and, according to the father, separated on 27 September 2017.  According to the mother, the parties separated on 12 May 2018 when the father left the home with the children. 

3. The father alleges that, as result of mental health issues, the mother poses an unacceptable risk of harm to the children if they spend other than limited time with her and that time is not supervised by a professional supervisor.  Specifically, the father alleges that the mother suffers from bipolar disorder and has possibly abused prescription medications.  The father alleges that the mother has engaged in erratic, aggressive and manic behaviour and that she has made threats to harm both the children and herself.  The father further alleges that, as result of these mental health issues, the mother has disengaged from properly caring for the children such that they are at risk of neglect in her care.

4. The father further contends that it is in the best interests of the children that they be able to return to live in the Suburb D property with him.

5. At the hearing, the mother, through her Counsel, acknowledged that she has mental health issues.  However, the mother contends that the extent of those mental health issues has been exaggerated by the father.  Specifically, the mother denies the father’s contentions that she has been suicidal and “requires residential treatment and powerful antipsychotic medication including Seroquel.”

6. The mother has provided a written undertaking to the Court, as set out below, that she will attend upon her treating psychiatrist, Dr E (“Dr E”), and comply with all reasonable medical advice and recommendations provided by him, including taking prescribed medications.  The mother contends that her compliance with this undertaking acts as a safeguard against any risk that she may otherwise pose to the children.  To provide further reassurance, in respect to the safety of the children, the mother has, through her Counsel, provided undertakings to the Court from the maternal grandmother and maternal aunt.  These undertakings are set out below and are to the effect that the maternal grandmother will live with the mother and the children for a period of six months, for the purpose of supervising the mother’s care of the children and that the maternal aunt will supervise such time, in the event that the maternal grandmother is not available to do so.

7. The mother contends that her mental health has been adversely impacted by the conduct of the father, and specifically that he has engaged in coercive, controlling and, on occasions, violent conduct in respect to her.

8. The mother also contends that the father has been using NSW Police and other professionals in an attempt to have the mother scheduled under the Mental Health Act and in order to obtain a documentary record of her mental health episodes for the purpose of these proceedings.

9. The mother further contends that the manner in which the father has commenced and conducted the litigation raises a concern regarding his motives.  In that respect, the mother notes that the father’s Initiating Application was filed on 18 April 2018 but not served until 13 May 2018.  In those circumstances, the mother contends that she did not have the opportunity to properly consider her position before consenting to the interim parenting orders made on 21 May 2018 (“the consent orders”).  Those orders are, relevantly, as follows:

   The Court orders on an interim basis, pending further order and the hearing of the interim applications of the parents:

   1)   Pending further order and without admissions, the children shall live with the father.

   2)   That unless otherwise agreed between the parents in writing, the children shall spend supervised time with the mother, as follows:

   a)    each Monday from 12 noon until 3pm;

   b)   each Wednesday from 12noon until 3pm; and

   c)   each Friday from 11am until 4pm.

   3)   That the time spent by the children with the mother, referred to in order 2, shall be supervised by [B Group] unless otherwise agreed by the parents in writing.

   4)   That within 24 hours of the date of these orders, each party shall do everything necessary to register for supervised contact with [B Group] and shall comply with the reasonable directions of [B Group] and its staff.

   5)   That for the purposes of facilitating the spend time referred to in order 2, the father shall deliver the children to the [Suburb D] property at the beginning of the times referred to and shall collect the children from the [Suburb D] property at the conclusion of the times referred to in order 2 and without admissions, the father shall not enter the home.

   6)   That for the purposes of facilitating the spend time orders referred to in paragraph 2 of these orders, the parties shall equally pay for the cost of the supervision by [B Group] or any other supervision provider agreed to by the parties in writing.

   …

   8) The mother is, without admissions, restrained from spending time with the children other than in accordance with orders under the Act.

10. The mother contends that those consent orders do not represent an appropriate parenting arrangement.  The consent orders did not address the issue of occupation of the former matrimonial property.

11. The father contends that the delay in service of the Initiating Application and supporting documentation was in circumstances where he was concerned with the mother’s reaction to receiving those documents and that appropriate Court processes had been followed in order to obtain an extension of time for service to occur. 

12. The father contends that, in these interim proceedings, in light of concerns regarding the mother’s mental health, the Court should take a cautious approach.  In that context, the father contends that the spend time arrangements contained in the consent orders made on 21 May 2018 remain appropriate.  As noted, the father contends that as he is the primary carer of the children pursuant to those orders, it is in their best interests to reside at the former matrimonial home with him.

Applications

1. At the hearing on 20 June 2018, the father’s application (Exhibit “1-F”) was as follows:

   ICL and single expert

   1.That an Independent Children's Lawyer [ICL] be appointed for the children [X] born … 2014 and [Y] … (known as Y) born … 2017 and:

   1.1.the NSW Legal Aid Commission is requested to make the arrangements necessary for such appointment;

   1.2.each of the father and the mother shall forthwith forward to the NSW Legal Aid Commission copies of the documents filed on their behalf in the proceedings; and

   1.3.the ICL shall have leave to inspect all material produced under subpoena.

   2.That a single expert psychiatrist be appointed to prepare a report in respect of the parenting issues in these proceedings and:

   2.1.forthwith upon nomination of the ICL pursuant to the above Order, the parties shall join with the ICL in agreeing upon the person to be so appointed; and,

   2.2.in the event of any dispute as to the identity of the expert of the terms of instructions, the parties and ICL shall forthwith make arrangements to re-list the proceedings for further directions and shall, for such purpose, have liberty to apply to the Court on 7 days’ notice.

   [Suburb D] property

   3.That within 7 days of the date of these Orders, the mother shall vacate the property known as and situate at [C Street, Suburb D] and from that date the father shall be entitled to occupy the [Suburb D] property to the exclusion of the mother.

   4.That until and upon vacating the [Suburb D] property the mother:

   4.1.shall maintain the property in good order and condition; and,

   4.2.shall be and hereby is restrained from removing (or from causing or permitting the removal of) any item from the property, save for her personal clothing and effects.

   Parenting arrangements

   5.That, subject to Order 7 the children shall live with the mother:

   5.1.each Monday from 12noon until 3pm;

   5.2.each Wednesday from 12noon until 3pm;

   5.3.each Friday from 11am until 4pm; and

   5.4.such other periods of time as may be agreed between the parties in writing.

   6.That save as provided in Order 5, the children shall live with the father.

   7.That the mother's time with the children shall be supervised at all times by [B Group] (or such other professional supervision organisation as the parties may agree upon in writing) and each party shall do all things and sign all documents necessary to facilitate such supervision and the parties shall each pay one half of the costs of such supervision.

   8.That the mother's time in accordance with Order 5:

   8.1.shall commence by the father or his nominee delivering the children to the supervisor at the mother's residence at the commencement of time; and

   8.2.shall conclude by the mother causing the supervisor to deliver the children to the father's residence at the conclusion of the time.

   9.That the mother have telephone/Skype/Facetime contact with the child [X] each Tuesday, Thursday and Sunday at 6.30pm with the mother to provide the father with the necessary contact details and the father to facilitate [X's] participation, including by establishing the necessary connection.

   Liberty to apply

   10.That the parties have liberty to apply in respect of a variation of the parenting arrangements upon release of the single expert parenting report.

2. At the hearing on 20 June 2018, the mother’s application (Exhibit “2-M”) was as follows:

   THAT PENDING FURTHER ORDER:

   1.The children [X] born … 2014 and [Y] born … 2017 (known as ['Y']) live with the mother from 10.30am each Monday until 5pm on Thursdays.

   2.That save as provided in paragraph 1, the children shall live with the father.

   3.That for the purpose of Order 1, for a period of 6 months from the date of Orders the mother's time with the children shall be supervised at all times by:

   3.1.Ms F Foster, the maternal grandmother;

   3.2.Ms G Foster, the maternal aunt; or

   3.3.such other adult who may be agreed upon by the parties in writing;

   provided that before the first period of time supervised by any of the above, the supervisor shall provide to the Court and to the father's solicitors a written undertaking to:

   3.4.supervise mothers time with the children at all times; and,

   3.5.forthwith notify the father and any ICL if appointed of any breach of this Order, such notice to be in writing.

   4.That the children, but relevantly [X], shall have telephone/Skype/Facetime with:

   4.1.the mother on each Friday, Saturday and Sunday; and

   4.2.the father on each Monday Tuesday and Wednesday.

   5.That for the purpose of Order 4, the person in whose care the children are at 6:00pm on the relevant day shall do all things necessary to facilitate and encourage [X] to so communicate with the other parent, including by dialling the other's number and/or establishing the necessary connection.

   6.That for the purpose of Orders l and 2:

   6.1.The Father shall deliver the children to [H Child Care Centre, Suburb D] on Mondays at 10.30am, being at the commencement of the children's time with the mother; and,

   6.2.the mother shall return the children to the Father's residence at 5pm on Thursdays, being the commencement of the children's time with the father.

   7.That on or before 4:00pm on 20/12/2018 the mother shall vacate the property known as and situate at [C Street, Suburb D] and:

   7.1.Pending that date and time:

   7.1.1.the mother have sole occupation of the same subject to 7.1 7.2 herein;

   7.1.2.the father be permitted to enter the [Suburb D] property in the company of an accompanying person to collect any of his outstanding computer and work equipment at a date and time in the period 20 June to 27 June 2018 as nominated by the mother with the mother not to be present but to be represented by a nominee; and,

   7.2.Thereafter the father shall have sole occupation of the same.

   8.Noted that the effect of these orders is to replace entirely those entered by consent on 21 May 2018.

   9.That both parties be retrained from making any denigrating remarks about the other parent in the presence of or hearing of either of the children.

   10.That both parties do all things Necessary to prevent any other person from denigrating the other party in the presence or hearing of either of the children.

   11.That both Parties do all things necessary to engage with either [J Group] or [K Group] to attend formal mediation with regard to parenting arrangements within 6 months of the date hereof.

   Notations

   1.The mother gives an undertaking in terms of Attachment "A" hereto;

   2.The Father gives an undertaking to the Court in terms of Attachment "B" hereto.

Evidence

1. The father relied upon the following documents:

   ·Notice of Child Abuse or Risk filed 18 April 2018;

   ·Affidavit of [Mr Wilde] sworn 16 April 2018 and filed 18 April 2018;

   ·Further affidavit of [Mr Wilde] sworn 15 June 2018 and filed  the same date;

   ·Affidavit of Ms M Wilde sworn on 17 June 2018 and filed on 18 April 2018; and

   ·Documents produced under subpoena.

2. The mother relied upon the following documents;

   ·Notice of Child Abuse or Risk filed 8 June 2018;

   ·Affidavit of Ms Foster sworn on 7 June 2018 and filed 8 June 2018;

   ·Affidavit of Ms G Foster sworn 7 June 2018 and filed 8 June 2018;

   ·Affidavit of Ms F Foster sworn 13 June 2018 and filed  the same date; and

   ·Documents produced under subpoena.

Background

1. As these are interim proceedings, there is a limit as to the extent to which I can make findings in respect to matters that remain in contention between the parties.  The following facts, however, appear to be substantially agreed.  Where there is no agreement, I have noted the parties’ respective contentions.

2. The father was born in 1973 and is currently 45 years of age.  The mother was born in 1983 and is currently 35 years of age.  In January 2011, the parties commenced living together at the Suburb D property.

3. The parties agree that the mother has received treatment for clinical depression in respect of various periods since approximately 2000.  The mother has taken antidepressant medication for various periods since approximately that time.  The father challenges whether the mother has complied with medical advice regarding appropriate medication.

4. In early March 2014, the mother lost her job.  She was also working for another employer at that time.

5. In 2014, the child known as X, was born.  X is now four years of age.

6. Fourteen (14) weeks after the birth of X, the mother returned to work.  After six months, she began working six days per week.

7. In late 2014, the mother took up an opportunity to buy three boarding houses.  She sought finance and renovated the boarding houses while also working six days per week.

8. In mid-2015, the mother commenced running the boarding houses she had renovated.

9. On 27 September 2016, following an argument between the parties, the mother contacted the Police.

10. The father contends that, after September 2016, he observed a significant decline in the mother’s mental state, which included the mother speaking faster and louder, engaging in attention seeking behaviour and becoming more easily agitated.

11. On 12 October 2016, following an argument between the parties, the father contacted the Police.

12. In late 2016, while pregnant with Y, the mother was referred by her obstetrician to Dr O (“Dr O”) for screening for possible bipolar disorder.

13. On 6 November 2016, following an argument between the parties, the mother contacted the Police.

14. On 14 December 2016, following an argument between the parties, the father contacted the Police.

15. In late March 2017, the mother attended an appointment with a social worker at the P Hospital.

16. On 31 March 2017, following an argument between the parties, the father contacted the Police.

17. In 2017, the child known as Y was born.  Y is now 13 months of age. 

18. On 18 July 2017, following an argument between the parties, the father contacted the Police.

19. The parties agree that they have formally separated, however, the father contends that separation occurred on 27 September 2017.  The mother contends that separation occurred on 12 May 2018, when the father left the matrimonial home with the children.

20. On 5 August 2017, after an incident occurred at the family home, the mother spent a week at the maternal grandmother’s home with Y.

21. On 23 August 2017, following an argument between the parties, the father contacted the Police.

22. On 8 August 2017, the parties attended a joint appointment with Dr Q.

23. From September 2017, X commenced attending daycare two days per week.  The mother contends that X was cared for by the paternal grandmother on a further two days per week.  The parties are in dispute as to which of them was the primary carer of the children.

24. On 18 September 2017, the parties attended Dr E and Ms R.  In a letter to Dr Q dated 3 October 2017 (“Exhibit 5-M”), Dr E states the following:

    What was very apparent was that [the father] and [the mother] have different accounts of the same events.  On balance my impression was that [the mother] tended to be quite dramatic and emotionally labile, at times in tears describing single things and then in the next moment quite relaxed and chatting away.

    The mother has attended several additional appointments with Dr E, in the period subsequent to that time.

25. On 26 September 2017, the mother returned to work following Y’s birth.

26. On 27 September 2017, according to the father, the parties separated.

27. On 18 April 2018, the father commenced these proceedings.

28. On 1 May 2018, the father filed an Application in the Case, seeking an extension of time for the service of documents.

29. On 12 May 2018, the father and the children moved out of the Suburb D property.

30. On 13 May 2018, the mother says she discovered that the father had moved out of the Suburb D property with the children the day before and that she understood that she and the father had separated from that date.  This occurred, the mother contends, upon service of the father’s Initiating Application and associated documents upon her.

31. On 18 May 2018, the father and the children commenced living with the paternal grandmother.

32. On 21 May 2018, consent orders were made.

Relevant Documentary Evidence

Clinical notes produced by Dr O (Psychiatrist)

1. The documents produced by Dr O (Exhibit “9-F”) are unsatisfactory to the extent that they have been produced from a computer disc, such that each note is recorded as having been printed on 5 June 2018.  In those circumstances, it is difficult to pinpoint advice provided by the doctor on particular dates.  Nevertheless, the clinical notes record several attendances between 6 November 2006 and 6 December 2016, including in respect to the mother having major depressive disorder and noting the need for psychiatric care.  There are also several references to a potential risk of deterioration in functioning if appropriate treatment is not received.

2. An entry in Dr O’s notes following an initial consultation with the mother on 6 November 2006, refers to the mother as being diagnosed with “Major Depressive Disorder, Recurrent, Severe Without Psychotic Features” and “Anorexia Nervosa, Restricting Type”.  That diagnosis remains consistent until his notes from a consultation on 9 November 2016, when he diagnoses the mother with “Persistent Depressive Disorder” and then on 28 November 2016 with “Bipolar I Disorder, Hypomanic”.  As at 6 December 2016, the mother was prescribed Zopiclone, Topiramate, and Quetiapine (Dr O notes the mother was not taking the Quetiapine).

3. Dr O’s notes also indicate that the mother had been prescribed Fluoxetine (Lovan), Reboxetine, Bupropion, Tranylcypromine, Citalopram and Escitalopram at various times.  Dr O’s notes state that the mother had “medicine concerns” and has “experimented with other antidepressant medication”.

4. A letter sent by Dr O to Dr S (“Dr S”), the mother’s treating obstetrician and gynaecologist, incorrectly dated 5 June 2018 states:

   I agree with the observations of [Dr S] that hypomanic behaviour is likely however [the mother] is not willing to consider treatment for bipolar disorder at this time.

5. In the next letter sent by Dr O to Dr S, as recorded in his notes, which was likely sent subsequent to 28 November 2016 and, as will be noted below, directly following a consultation on 6 December 2016, Dr O confirmed his diagnosis in respect to Bipolar 1 Disorder and Hypomania.  Relevantly, Dr O wrote:

   [The mother] is not willing to consider effective treatment for bipolar disorder, refusing lithium, quetiapine and olanzapine.  She reports that she will take Topiramate.  In my opinion, this is not an effective anti-manic medicine.  It is probable that she wishes to take this medicine as it results in mild weight loss and no increase in appetite.  She was prescribed Zopiclon as a hypnotic from her GP.  I did not write a prescription for Zopiclon that is not likely to remain effective and has no anti-manic properties as far as I know.

   I did not arrange a follow-up appointment because she was unwilling to return.  The mother says that she will support the use of Topiramate because of the anecdotal evidence.  She said that her daughter would not take medicines that reported weight gain.  The mother says that she will attempt to persuade her daughter to return to see me.

   [The mother] says she will take leave but her mother is sceptical.  Her mother also gave the opinion that [the mother]’s partner was a problem for her daughter.

6. The next letter sent by Dr O to Dr S, as recorded in his notes, states the following:

   [The mother] is now willing to consider treatment for bipolar disorder.  She reports racing thoughts, impulsivity and spending problems.

7. A further letter sent by Dr O to Dr S, as recorded in his notes, states the following:

   She refuses to take quetiapine 100 to 300 mg nocte and lorazepam 1-2 mg nocte prn.  She refuses to take quetiapine and reported that lorazepam made her agitation worse. 

8. Following the consultation on 6 December 2016, Dr O summarised the mother’s “interval history”, as follows:

   9 November 2016 referred by [Dr S] because of significant mood problems.

   28 November 2016 Admits to hypomanic behaviour with poor sleep, impulsivity, racing thoughts and excessive spending.

   6 December 2016 Taking Topiramate and Zopiclone.

   She says she would prefer to take leave rather than take quetiapine.  Refuses advice but will take time off work.  Unable to rebook appointments as I make it clear that my opinion is that Topiramate is the wrong medication to take.

Clinical notes produced by Dr E (Psychiatrist)

1. Clinical notes produced by Dr E in respect of a consultation on 11 September 2017 (Exhibit “8-F”) record an intention to “screen for bipolar”.  The clinical notes also record the mother describing “intense marital conflict” and reporting that the father had been “verbally abusive” to her and, on one occasion, had “pushed and kneed her, which was very distressing”.

2. The clinical notes also record the mother describing a busy work schedule from the end of 2014, including renovating three boarding houses “while working six days a week” and by mid-2015, running the properties as boarding houses, which the wife described as “just an insane project”.

3. Clinical notes made by Dr E on 18 September 2017 record the mother as scoring 37 on a bipolar self-assessment test.  In respect of that result, the notes record that a score of 22 or more, together with episodes of clinical depression, suggests possible Bipolar I or II Disorder and would warrant detailed clinical assessment. 

4. Clinical notes made on 28 May 2018 record interviews between Dr E and the mother’s sister, Ms G Foster, as well as the maternal grandmother, Ms F Foster. 

5. In respect to Dr E’s interview with the mother’s sister, the notes relevantly record her describing the mother as follows:

   More of a performer

   Drama and emotional approach to everything

   Chatty and talkative

   She has trouble choosing what to prioritise and focus on

   During [Y’s] preg she became very obsessive.

6. In respect to Dr E’s interview with the mother’s mother, the notes relevantly record her describing the mother as follows:

   … The preg  – she was different – hormonal

   Her speech was faster

   She was stuck in a loop – repeating what she was saying

   She was more impulsive

   Eating food in other people’s lockers.

7. The clinical notes made on 28 May 2018 also record Dr E’s view that the mother has “probable Bipolar II.”

Medical records produced by the T Hospital

1. Clinical notes from T Hospital (Exhibit “12-F”) made in respect to an admission of the mother on 6 February 2018 record: “2 months lethargy: reduced energy, some days unable to get out of bed”.

2. The clinical notes of that admission also record the mother reporting the following:

   … Normally works 7d/wk …

   Currently working 3d/wk, sleeping till 4pm other days, has hired a nanny

   Has eight investment properties, which she is struggling to manage

   Denies depression or mood change

3. Clinical notes entered on 8 June 2017 record that a social worker at T Hospital attempted to contact the mother for a “follow-up”.  The entry records: “[Ms N] states that she left a message, but no response from her.”

4. Clinical notes made on 3 July 2017 record the father as stating that he and the mother “share parenting” and that he does feeds overnight, while the mother does the morning feeds.  The clinical notes also report the father stating that “she was emotionally more unstable at the end of the pregnancy than now.”

5. Clinical notes made on 1 June 2017 record the mother as stating that “she has been stressed managing her 5 investment properties, but that she is now handing them over to agents”.  The clinical notes also record:

   [The mother] presents as chaotic, sometimes speaking rapidly and rambling, she interacted appropriately with [Y] and states she is enjoying him, but that the pregnancy affected her emotional health significantly.

Clinical notes produced by the V Medical Centre

1. Clinical notes made by Dr U (Exhibit “11-F”) on 25 September 2015 record the mother as advising that she “still seeing her psychiatrist, still on her current medication”.

2. Clinical notes made by Dr U on 14 April 2016 record the mother as advising him that she “does not see psychiatrist anymore”.

3. The clinical notes also contain a letter from Dr S dated 9 May 2014, in which he states: “She said that she was well and did not need to come in”.

Clinical notes produced by the P Hospital

1. Clinical notes produced by the P Hospital (Exhibit “10-F”) in respect to an interview on 18 December 2013 record the following with regard to the mother:

   She has a history of anxiety and depression and is medicated with Lovan and Edrinax.  [Dr S] [the mother’s Obstetrician] was also concerned about [the mother]’s lack of appetite.  She weighed 46 kg at the first antenatal visit and now weights 45 kgs.  [The mother] is a pharmacist.  She has been self medication [sic] to help her manage her insomnia.  [The mother]’s father and uncle have been diagnosed with Bipolar Disorder.

2. The parties met with Ms W, a social worker, on 29 March 2017.  Ms W’s notes record the following:

   [The mother] and [the father] experience a great deal of conflict in their relationship.  [The mother] indicates that [the father] has mental health issues.  She reports that he does not have friends, does not change his clothes as frequently as she would like, absents himself, is a hoarder etc.  She describes arguments where [the father] has been verbally abusive.  The Police have attended the home on an occasion.

3. Clinical notes made following the admission of the mother on 13 March 2017 record, under the item “Additional Information”, the following: “Bipolar disorder.  S/P Psychiatrist but not during this pregnancy due to differences about medications”.

4. Clinical notes made on 23 May 2017 include the following notes of a social worker:

   [Ms Foster] seen today following the birth of baby [Y].  Previous contact anti-natally.  [Ms Foster] was a complicated psychiatric history and is medicated.  She is not currently seeing a psychiatrist or psychologist.  I will meet with [Ms Foster] and [Mr Wilde] prior to discharge to discuss a plan for ongoing care and support.

5. Clinical notes made on 26 May 2017 at 6:00 am record: “[Ms Foster] post-natally well.  Observation stable… Baby feeding well in baby nursery overnight seems settled after tongue tie was snipped.  Nil complaints voiced”.

6. Further clinical notes made on 26 May 2017 at 2:00 pm record an interview between the mother and a social worker with the following notation being made:

   [Ms Foster] seen this afternoon.  Upset – crying and anxious.  Long discussion regarding her relationship with her partner [Mr Wilde] their explosive arguments and the manner in which their disharmony will potentially impact the development of their children. 

Clinical notes produced by Z Medical Centre

1. The clinical notes produced by Z Medical Centre (Exhibit “14-M”) include a notation by Dr L made on 15 November 2017, which recorded that the father advised her that he has “custody for 4 days a week.” 

Documents produced by the New South Wales Police Force

Incident on 12 October 2016

1. Documents produced by the New South Wales Police (Exhibit “13-M”) contain an entry made on 12 October 2016.  The entry relevantly records:

   …Wednesday the 12th of October, 2016 the [father] attended [BB] Police Station to report some issues he has been having with the [mother] who is his defacto partner.  The first words the [father] stated to Police were “My solicitor told me to come and get a report number in relation to some problems I’ve been have [sic] with my partner”.  Police asked the [father] what had been happening?  The [father] stated once again “My solicitor said I should get a report number for every issue I’ve had with my partner”… The [father] stated that the [mother] has been diagnosed with depression, anxiety and bipolar disorder.  The [father] also states he believes the [mother] has an eating disorder.  The [father] stated the [mother] only weighs 45kgs and will regularly binge eat and then not eat for several days on end.  The [father] stated to Police he has to lock certain types of food away from the [mother].

2. The Police notes record the father stating that the most recent prior incident between the parties had occurred on the previous day, 11 October 2016.  The report discusses attempts by the mother to obtain access to fast food, including “chips, m&m’s and breakfast serial [sic]”.  The father reported that the mother “has grabbed a knife from the kitchen and said ‘I’ll do it, I’ll do it’ – the [father] reiterated to Police on numerous occasions that he held NO fears for his safety and he believed the only reason the [wife] grabbed the knife was to force the lock open on the cupboard door [where such foods were being kept]”.

3. The Police notes later records the following:

   The [father] informed Police the only reason he was reporting the incidents was on his solicitor’s advice should the couple split and he is forced to go to Family Law Court seeking custody.  The [father] informed Police he has NO fears for his safety on numerous occasions and did not want an AVO or Police to speak to the [mother] as he is hopeful of saving the relationship and feared this may destroy any chance he has of saving his relationship.

Incident on 18 July 2017

1. The Police notes record an entry made on 18 July 2017.  The parties had had an argument, after which the mother went to bed and the father contacted the Police and the Ambulance Service.  When the father was questioned by Police, he would not say anything about the argument, only that he wanted to make a record about the mother’s mental health and that it seemed to be deteriorating.  When questioned by Police and Ambulance Officers, the mother stated that she was “sick of working doing all housework while [the father] is unemployed, and it’s come to a state where [the mother] is seeking to become separated”. 

2. The Police notes later record the following:

   A short time later ambulance personnel attend the location and spoke with the [mother], then police, it was the opinion of both ambulance personnel and police that the [mother] should not be scheduled as there was no evidence to suggest any form of threat of self harm made by the [mother].  The [father] stated to police that he wanted this recorded and that he is the “Primary Carer of the children” ambulance and police believe that the [father] is extremely dominant in the relationship and is using this as a means of preventing the [mother] from leaving.

Incident on 1 April 2017

1. The Police notes record an entry made on 1 April 2017, which is described in the following terms:

   About 6:00pm on 31st March 2017, the [mother] was in the kitchen and the [father] was in the living room, about 10 metres away.  The [mother] states that an argument has occurred where both parties were yelling at each other as she talked about leaving the [father] and the possibility of separating. In the argument, the [mother] has dropped a plate on the ground, with the [father] stating that this was originally thrown towards him however when asked where it landed, pointed behind the kitchen counter which was where the feet of the [mother] were. Not wanting to argue, the [father] has taken their son and left the premises, calling for Police. Police attended and spoke with the [father] outside the premises where he stated that he could hear the [mother] smashing furniture from the kitchen as he left.  On entering the house, it was apparent that there was no broken or smashed furniture as everything in the house was still intact. When Police spoke with the [father] for further information, he would not say anything about the argument, only that he called for Police as he wanted a record made as the [mother]’s mental health is getting worse and she is starting arguments more often.

Incident on 23 August 2017

1. The Police notes record an incident reported on 23 August 2017, when they attended the Suburb D property at the request of the father.  The notes record that when the Police arrived, the parties were in the lounge room and the mother “was crying uncontrollably, holding the youngest child”.  The notes record the father objecting to the mother taking the children out with her to obtain coffee, as he was concerned about the mother’s mental health.

2. Relevantly, the notes made on 23 August 2017 further record the following:

   Ambulance officers arrived on scene and spoke with [the mother] although came to the conclusion that there were not sufficient grounds to place her under an ambulance schedule.  Police were on scene for at least 3 hours trying to come to a solution as to sleeping arrangement for the night.  It was finally agreed that both parties would go in separate cars [to the maternal grandmother’s] house at [Suburb AA] and stay there. … It is clear to Police that [the mother] suffers from a variety of undiagnosed mental health problems, including postnatal depression, bipolar and she also suffers from an eating disorder.  [The mother] told Police she hadn’t consumed any food or drink that day. … No physical altercation or threats have taken place tonight and an alternative arrangement has been made for the parties to stay at a relative’s house for the night.

Reports of B Group

1. The mother tendered supervision reports of the professional supervision agency B Group in respect to her time spent with the children on five occasions between 28 May 2018 and 8 June 2018 (Exhibit “6-M”).

2. Those reports generally record the mother as interacting well with the children and that the children appeared calm, happy and settled in her care and that they enjoyed the play and interactions with their mother and each other.  The incident reports also record that the mother appeared to be warm, engaged and loving towards the children.

3. The clinical notes also record a number of instances where the younger child, Y, became distressed when the mother left the room, but quickly settled once she returned.  The notes also record the elder child, X, expressing a reluctance to leave the Suburb D property, where he was spending time with the mother.

Issues

1. The following issues require determination:

   ·Should there be an order for parental responsibility?

   ·What are the appropriate parenting arrangements?

   ·Is it necessary for there to be an order for the exclusive occupation of the Suburb D property?

   ·If so which party should have the right of exclusive occupation?

Parental responsibility

1. Section 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Relevantly for these proceedings, s 61DA(3) provides that:

   (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

2. The inability of the Court, in these interim proceedings, to make a determination in respect to the parties’ respective allegations against the other are such that it would not be appropriate, in the circumstances, for the presumption of equal shared parental responsibility to be applied.  

3. In those circumstances, the pathway set out in s 65DAA of the Act does not apply and the Court is not obliged to consider equal time or substantial and significant time. The Court is then “at large” to consider what arrangements will promote the best interests of the child having regard to s 60CC and the considerations contained therein.

Appropriate parenting orders

1. As these are parenting proceedings, it is necessary for me to make orders that are in the best interests of the children. Section 60CC of the Act sets out matters that the Court is required to consider in determining what is in the best interests of the child.

2. While there are a range of factors set out in section 60CC, adopting a common sense approach, in Banks & Banks [2015] FamCAFC 36 (“Banks & Banks”), the Full Court said:

   48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the [children], require determination prior to a proper determination at a trial.

3. I have considered all of the matters set out in section 60CC of the Act, however, in accordance with Banks & Banks, I propose to primarily focus on what the parties have correctly identified as the two primary considerations, which are set out in section 60CC(2) of the Act. That is, I am required to consider the benefit of the children having a meaningful relationship with both of their parents. On the other hand, I must consider the issue of risk of the children being subject to risk of physical or psychological harm, or neglect or abuse.

Meaningful relationship

1. In considering the first matter, that is the children maintaining a meaningful relationship with their parents,  I note that,  in McCall & Clark (2009) FLC 93-405 at [122], the Full Court said:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.

2. In Fitton & Kimble [2017] FCWA 106 at [36], Walters J said:

   The Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.

3. His Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) FLC 93-598 at [123] where the Court noted that:

   … having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.

4. Similarly, in Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both parents in the following terms:

   … that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.

5. In this matter I am satisfied that the children have a meaningful relationship with both parents.  I am satisfied that, despite the mental health challenges faced by the mother, the children have a meaningful relationship with her.  This is confirmed in the reports from B Group to which I have referred.

6. Both parties acknowledge that it is important for the children to have a meaningful relationship with both parents.  The question is how that can be achieved while protecting the children from any risks associated with the mother’s mental health challenges.

Protection from harm

1. In terms of the second issue to which I have referred, that is the need to protect the children from physical or psychological harm, I note that in, B & B (1993) FLC 92-357, the Full Court said that the task before the Court is essentially to achieve a balance between the risk of detriment to the children from abuse, and the possibility of benefit to the children from parental access. However, it is clear from s 60CC(2A) of the Act that greater weight is to be given to this primary consideration, over the benefit of maintaining meaningful relationships.

2. Specifically, it is necessary to determine whether the risk of harm to the children, in having access with a parent, outweighs the possible benefits to them from having that access.

3. Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility of determining risk.  In SS & AH [2010] FamCAFC 13 (“SS & AH”) at [100], the majority of the Full Court, Boland and Thackray JJ said:

   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. 

4. It is to be observed that the reference by the Full Court in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect children from that risk.  It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.

5. At the hearing on 20 June 2018, the mother, through her Counsel, acknowledged that she has mental health issues that potentially impact upon her parenting.  This is the necessary inference from the undertaking that she gave and tendered to the Court (Exhibit “4-M”), which read as follows:

   I, [Ms Foster], Respondent Mother, hereby undertake:

   1. To comply with all reasonable medical advice and recommendations with respect to the care of the children [X] born … 2014 and [Y] ("Y") born … 2017;

   2. Attend upon my treating psychiatrist [Dr E] at such times as reasonably required by him; and

   3. To comply with all reasonable medical advice and recommendations of [Dr E], including taking prescribed medications.

6. The Court also received an undertaking from Ms F Foster, the mother’s mother (Exhibit “3-M”), as follows:

   I, [Ms F Foster], hereby undertake that in the event I am asked to supervise time spent by my daughter, [Ms Foster] ("[Ms Foster]"), with the children [X] born … 2014 and [Y] ("[Y]") born … 2017 (hereinafter together referred to as "the children"):

   1. I will move in with my Daughter [Ms Foster] for a period of 6 months and I will be physically present at all times when the children are spending time with [Ms Foster], except in circumstances referred to in paragraph 2 hereof;

   2. If on occasion I cannot be present I will contact my daughter [Ms G] to request her to be available to supervise the children;

   3. If neither I nor my daughter [Ms G] can be available to supervise, at any time, I will immediately advise [Mr Wilde] and any Independent Children's Lawyer, if appointed.

   4. I will intervene and remove either of the children or both children from [Ms Foster]'s care in the event that I observe any behaviour from [Ms Foster] that I believe to be adverse to children's interests;

   5. I will advise [Mr Wilde] as soon as practicable if I remove the children from [Ms Foster]'s care, and the circumstances surrounding the event.

   6. In the event an Independent Children's Lawyer ("ICL") has been appointed, I will also advise the ICL as soon as practicable if I remove the children from [Ms Foster's] care, and the circumstances surrounding the event.

   7. I will comply with this undertaking until such time as the Court relieves of same.

7. The Court, further, received an undertaking from Ms G Foster, the mother’s sister (Exhibit “3-M”), as follows:

   I [Ms G Foster], Lawyer, hereby undertake that in the event I am asked to supervise time spent by my sister, [Ms Foster] ("[Ms Foster]"), with the children [X] born … 2014 and Y ("[Y]") born … 2017 (hereinafter together referred to as "the children"):

   1. When I am asked to supervise, I will be physically present at all times when the children are spending time with [Ms Foster];

   2. I will intervene and remove either of the children or both children from [Ms Foster]'s care in the event that I observe any behaviour from [Ms Foster] that I believe to be adverse to children's interests;

   3. I will advise [Mr Wilde] as soon as practicable if I remove the children from [Ms Foster]'s care, and the circumstances surrounding the event.

   4. In the event an Independent Children's Lawyer ("ICL") has been appointed, I will also advise the ICL as soon as practicable if I remove the children from [Ms Foster]'s care, and the circumstances surrounding the event.

   5. I will comply with this undertaking until such time as the Court relieves of same.

8. Further, the tender bundle provided by the mother, which was marked Exhibit “5-M” in the proceedings, included a letter from the mother’s treating psychiatrist, Dr E, in which he stated the following:

   At mental state examination [the mother] did have quite rapid speech, was over inclusive but was able to be interrupted easily.  She spent some hours in the waiting room here and was not observed to be intrusive or inappropriately interacting with other patients or staff.  I did not feel that she was thought disordered.  She did not display symptoms of psychosis or paranoia.  I did feel that she was emotionally liable and was quite dramatic and intense.  My impression is that currently the main problem is a relationship one.  [The mother] may have a bipolar spectrum illness, she may have a cluster B personality disorder and may possibly have both conditions.  She has had episodes of major depression.

9. The question becomes whether the mother’s mental health presents a risk to the children.

10. The mother contends that the father’s description of her conduct, at times when she has experienced an acute mental health episode, have been exaggerated.  The Police report in respect to the incident that occurred on 31 March 2017, to which I have referred above, lends support to the mother’s contention in that respect.

11. Nevertheless, there is sufficient evidence to satisfy me that there have been periods where the mother’s ability to properly care for the children has been affected by her lethargy and, at times, inability to get out of bed, as result of her depression.

12. Further, the Police report in respect to the incident that occurred on 23 August 2017, when they attended the Suburb D property, satisfies me that the mother may have difficulty in regulating her behaviour.  In particular, I note that the attending Police officer records observing the mother “crying uncontrollably” while holding the youngest child, Y.  This is clear evidence of the mother’s conduct impacting upon at least one of the children.

13. In those circumstances, I am satisfied that, as result of her current mental health difficulties, there is an unacceptable risk of the children suffering neglect and potentially psychological harm if left in the mother’s care.

14. Despite the father’s assertion that there have been occasions where the mother has threatened self-harm, as well as harm to the children, there is evidence that the father doubts this would actually occur.  In that respect, the clinical notes produced by Dr E, in respect to an interview with the parties on 17 September 2017, records that the father expressed concern about the mother’s “suicide risk”, but acknowledged that “she wouldn’t harm anyone intentionally.”

15. Accordingly, aside from the issue of potential neglect I do not find that the children would be at risk of physical harm in the mother’s care.

16. Nevertheless the findings that I have made that the children are at risk of psychological harm and potentially neglect the mother’s care requires me to consider what steps can be taken to mitigate against that risk.

17. In Blinko & Blinko [2015] FamCAFC 146, the Full Court confirmed that, in circumstances where the Court is satisfied that a parent represents an unacceptable risk of harm to a child, the Court is required to consider steps that can be taken to ameliorate this risk including, for instance: “supervision of any time or communication between the parent and the child”.

18. As previously noted, the mother proposes that either her mother or sister supervise the children’s time with her.  The father contends that such supervision is inadequate and proposes that the children’s time with the mother be professionally supervised, as has been the case since 21 May 2018, pursuant to the consent orders.

19. The issue of the identity of the supervisor is significant, because it impacts upon the amount of time that the children can practically spend with the mother, including whether the children spend overnight time with the mother.

20. However, I accept the contention of Senior Counsel for the father that, as a result of less than full and frank disclosure by the maternal grandmother and the maternal aunt regarding their knowledge of the mother’s mental health challenges, there is doubt as to whether they are appropriate supervisors. 

21. In that respect, in her Affidavit sworn on 13 June 2018, the maternal grandmother stated the following, in relation to the period when the mother was pregnant with Y:

    I recollect [Mr Wilde] told me he was concerned about [Ms Foster’s] mental health, but I do not recall [Mr Wilde] ever saying to me that [Ms Foster] should be scheduled.

    I also remember [Ms Foster] telling me that she did not know why [Mr Wilde] kept calling the Police, and expressing concern about his mental health.

    I am aware [Ms Foster] has suffered from bouts of depression in her teens and her early twenties.

    [Ms Foster] was aware of her depression and sought professional help.

    During this time [Ms Foster] was seen by psychiatrist, was prescribed medication for depression and took that medication.

    I noticed [Ms Foster]’s depression lift when she commenced the medication.  To my knowledge, [Ms Foster] continues to take this medication to prevent the depression coming back.

22. I agree with the submission of Senior Counsel for the father that the Affidavit invites the Court to infer that the mother’s mental health is essentially a problem of the past that has been appropriately managed by the taking of medication.  The evidence to which I have referred confirms that, unfortunately, this is not the case. 

23. Further, I have earlier referred to clinical notes produced by Dr O, where it is recorded that the maternal grandmother indicated that she would attempt to encourage the mother to take a particular type of medication, however, not the medication recommended by Dr O.  Further, the maternal grandmother expressed doubt as to whether she would be able to persuade the mother to take leave from work.

24. I further note that the Affidavit of the maternal aunt sworn on 6 June 2018 included the following statement:

    I am aware that my sister, [Ms Foster], has suffered from depression and during her second pregnancy I discussed with her and the [father] my sister’s mental health.  I was aware from my conversations with [Ms Foster] that she was having difficulties in her relationship with [Mr Wilde].

25. The maternal aunt further said:

    I felt [Mr Wilde] took every opportunity to criticise [Ms Foster].  I have no recollection that [Mr Wilde] spoke to me about having [Ms Foster] scheduled, although he did tell me he was concerned about her mental health.  I saw [Ms Foster] distressed in the context of arguments between them.  I heard [Mr Wilde] say to [Ms Foster] “you can go, but [X] stays with me”.  I was not of the view that [Ms Foster] was going to self-harm or posed any risk to [X].  I never saw [Ms Foster] in a rage.

26. I agree with the submission of Senior Counsel for the father that, once again, the maternal aunt’s account of her sister’s mental health challenges is significantly understated.

1. While I do not go so far as to find that there has been a deliberate intention on the part of the maternal grandmother or the maternal aunt to mislead the Court, it is regrettable that the Affidavits they have sworn amount to less than full and frank disclosure of the extent of the mother’s mental health challenges.  In that respect, at a minimum, both the maternal grandmother and the maternal aunt should have disclosed, in their respective Affidavits, that they attended upon Dr E on 28 May 2018 and the information they provided to him which, which has been set out above.

2. In those circumstances, I am not satisfied that either the maternal grandmother or the maternal aunt are appropriate persons to supervise the time that the children spend with the mother at this time.  Also of relevance to my finding, in that respect, is the evidence to which I have referred, in terms of the maternal grandmother being unprepared to support Dr O’s treatment regime for the mother’s mental health issues, including appropriate medication.

3. In those circumstances and in the absence of an alternative supervisor, I am satisfied that it is necessary for the time that the children spend with the mother to be supervised by a professional service.

4. The practicalities of such professional supervision are that there is a constraint on the amount of supervision that can be provided and hence, the amount of time that the children can spend with the mother.

5. In all the circumstances, the mother has not persuaded me that it is appropriate to significantly depart from the orders made by consent on 21 May 2018.

6. As will be discussed, this finding also impacts upon my decision in respect to occupation of the former matrimonial home.

Exclusive occupation

1. An order for exclusive occupation may be made under ss 114(1)(b) and 114(1)(f) of the Act.

2. In my view, it is appropriate for the Court to consider an application for orders for the exclusive occupation of a property in two stages.  The first stage involves considering whether the circumstances of the parties are such that an order for exclusive occupation is necessary.  If the answer to that first question is in the affirmative, the second question involves considering which party should have the right of exclusive occupation.

3. In respect to that first stage, I am bound by a comprehensive analysis of this issue undertaken by the Full Court in S & S [2002] FamCA 59. In that case, the Full Court (per Kay, Holden and Monteith JJ), after discussing several Australian and United Kingdom authorities, said:

   38. An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances.  We agree with the sentiments expressed in G v J (Ouster Order) [1993] 1 FLR 1008 where the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 at 73 where his Lordship said:

   "It must never be forgotten that an ouster order is a very serious order to make.  It is described by Ormrod LJ…as a ‘drastic order’ and an order that should only be made in cases of real necessity.  It must not be allowed to become a routine stepping-stone on the road to divorce on the ground that the marriage has already broken down and that the atmosphere in the matrimonial home is one of tension…"

   39. Butler Sloss LJ described it as "an extreme order …that should be looked at with the greatest possible care" in Tuck v Nicholls [1989] 1 FLR 283 at 286, and as an “exceptional remedy" in Silvester v Silvester [1997] EWCA Civ 1788.

   40. There are no words of limitation in s 114 other than the grant of the injunction must be "proper".  But, even so, it is difficult to see how the grant of such an injunction could be said to be proper unless there is an appropriate factual base supporting it.

4. In respect to the second stage I have identified, in Jyotisha & Jyotisha and Anor (2016) FamCA 738, Hogan J said:

   [15] It is clear the Court has power to make orders as sought by the parties, provided that such order is considered proper in the circumstances of the case.  It is also clear that authority establishes that:

   …

   in determining the manner in which a court will exercise its discretionary power [to make an order for one or other of the parties to have exclusive occupation of the former matrimonial home], relief should not depend merely on the balance of convenience of hardship; rather, the Court should have regard to the means and needs of the parties, the needs of any children, the conduct of the parties and should also properly balance the hardship to each party (and any children) of making or refusing to make the order sought.  [Original emphasis].

5. In addressing the first stage of consideration, that is, whether it is necessary to make an order for exclusive occupation of the Suburb D property, I note that the mother’s Affidavit refers to four separate incidents where the Police have been requested to attend.  One of those attendances occurred at the maternal grandmother’s home, at the request of the mother.  The other three attendances occurred at the Suburb D property and were as result of requests made for assistance by the father.

6. Counsel for the mother contends that the Court should not place significance on the fact that Police were required to attend the Suburb D property.  In that respect, reference was made to the documents produced by the Police, wherein there are two separate notations recorded by the Police referring to the father advising them that he had contacted them, for reasons that included creating a record of the event, in terms of potential family law proceedings.  I agree that with the submission of Counsel for the mother that the father’s comments to the Police raise issues regarding the genuineness of his request for their assistance.  It is unnecessary, however, to determine that issue in these interim proceedings.

7. The events of 23 August 2017, as recorded in the Police reports, satisfy me that it is necessary for an order to be made for one or other of the parties to have exclusive occupation of the Suburb D property.  It is of significance that the Police officers who attended on that evening formed the view that it was inappropriate for the parties to remain together at the Suburb D premises.  The Police were present at the Suburb D property for three hours, during which time arrangements were made for the parties to travel separately to the maternal grandmother’s house, where they and the children would spend time, in the maternal grandmother’s presence.

8. Having determined that it is necessary for there to be an order made for one or other of the parties to have exclusive occupation of the Suburb D property, the question becomes who should have that exclusive occupation.

9. In that respect, I shall now give consideration to the means and needs of the parties and the needs of the children.

10. It was agreed that, subject to appropriate notice, both parties have the capacity to obtain alternative accommodation, other than the Suburb D property.

11. In circumstances where I have made orders for the children to live with the father who, until further order, will be their primary carer, I am satisfied that an order should be made for the father to have exclusive occupation of the Suburb D property.

12. In that respect, I note that the reports produced by B Group, the professional supervision agency, state that the parties’ older child, X, in particular, as expressing a reluctance to leave the Suburb D property.  I accept the submission of Counsel for the mother that X’s reluctance may well have been due to a reluctance to leave his mother.  On the other hand, it is equally plausible that at least a factor in the reluctance of X to leave was the fact that he was leaving the comfort and security of the home where he has spent his entire life.

13. In summary, it is my view that it is in the children’s best interests for them to be able to return to live at the Suburb D property.  In circumstances where the father is their primary carer, orders should be made for the father to have exclusive occupation of the Suburb D property.

Ancillary Orders

1. In the circumstances of this matter, I am satisfied that a single expert should be appointed to advise the Court with regard to parenting matters and the parties’ respective contentions in terms of the mental health of the other party.  I, therefore, propose to make orders as sought by the father.  I note that the mother had no real objection to that course of action, other than perhaps in respect to the issue of costs.  The parties will have liberty to apply in respect to that issue and other issues relating to the appointment of the single expert, if they are unable to agree. 

2. The parties’ eldest child, X, is now four years of age and, on one view, he may be too young to communicate his views to an Independent Children’s Lawyer.  However, it is likely that this case will not be heard until after X turns five years of age.  In those circumstances, he will be at an age where it would be helpful for his interests to be represented by an Independent Children’s Lawyer. 

3. In determining that it is appropriate for an Independent Children’s Lawyer to be appointed, I note that each party has made serious allegations against the other, in circumstances where they both contend that such allegations made against themselves have been significantly exaggerated.  I would hope that an Independent Children’s Lawyer would positively encourage the parties to be as objective and child-focused in their contentions and approach to this litigation as is reasonably possible.  For those reasons, I will make orders for the appointment of an Independent Children’s Lawyer.

4. During the course of these proceedings I expressed some concern that the amount of time that the children would spend with the mother in accordance with the orders proposed by the father is, in the circumstances of their young age, less than desirable.  However, there has been less than full and frank disclosure by the mother of the extent of her mental health challenges, the treatment regime she is undertaking and her prognosis in light of that treatment regime.  When additional information is available, including, most relevantly, by way of the report of the single expert appointed in these proceedings, it would be appropriate for the parties and the Court to review the spend time arrangements for the children.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 6 July 2018.

Associate: 

Date:              6 July 2018