Yen and Lin

[2017] FCCA 1349

FEDERAL CIRCUIT COURT OF AUSTRALIA

YEN & LIN [2017] FCCA 1349

Catchwords:
FAMILY LAW – Proceeding listed for final hearing – late adjournment application sought by mother – interim hearing conducted to determine spend time – father’s time with child be unsupervised.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CC, 62B, 65DA

Applicant: MR YEN

Respondent: MS LIN

File Number: MLC 6943 of 2013

Judgment of: Judge A Kelly

Hearing date: 22 May 2017

Date of Last Submission: 22 May 2017

Delivered at: Melbourne

Delivered on: 23 June 2017

REPRESENTATION

Counsel for the Applicant: Ms Clark

Solicitors for the Applicant: Fitzroy Legal Service Inc.

Respondent: In person

Counsel for the Independent Children's Lawyer: Ms Dowler

Solicitors for the Independent Children's Lawyer: Beswick Foulkes Family Law

ORDERS

1. The matter be fixed for Final Hearing on 28 May 2018 at 10.00am in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 2 day/s.

2. The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court): and

   (a)the applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 4.00pm on 4 May 2018;

   (b)the respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 4.00pm on 11 May 2018; and

   (c)the Independent Children’s Lawyer electronically file and serve any further affidavits to be relied upon by them at the final hearing not later than 4.00pm 18 May 2018.

   AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:

   (d)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or

   (e)the party has first obtained leave of the court.

3. Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.

4. There be interim orders in terms of the Minute of Proposed Orders dated 22 May 2017 (Minute) and further:

   (a)the Minute be placed upon the court file and marked Exhibit “A”;

   (b)the solicitors for the father engross the Minute and deliver a clean, duly certified copy of the same in Microsoft Word format (Copy) by email to the Chambers of Judge A Kelly within 7 days;

   [email protected]

   (c)upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.

AND THE COURT NOTES THAT:

1. Dr K is requested to file a supplementary report, solely for the purpose of annexing in a sealed envelope marked Confidential each of the notes and documents that have been supplied to her by the respondent mother.

2. Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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 these particulars are included in these orders.

EXHIBIT “A”

1. The parties have equal and shared parental responsibility for the child X born (omitted) 2012 (child).

2. The child live with the mother.

3. The child spend time with the father:

   (a)commencing on the second Wednesday after these Orders are made and continuing until further order, every Wednesday from the conclusion of school until 5.30pm or on such other weekdays and until such time as nominated by any facilitated changeover service engaged by the parties without the requirement of the mother’s consent;

   (b)commencing on the first weekend after the making of these orders until 31 August 2017, each alternate Saturday from 10.00am until 5.30pm, with the first Saturday to be spent with the father to be Saturday 3 June 2017;

   (c)from 1 September 2017 until 30 November 2017, each alternate week from the conclusion of school on Friday (or 12.00pm if a non-school day) until 5.30pm Saturday;

   (d)from 1 December 2017 until further order, each alternate Friday from after school (or 2:30pm if the child is not at school) until 11.00am Sunday;

   (e)for the first five days of all school holidays from the conclusion of school on the last day of term with the father, commencing in Term 1, 2018; and

   (f)at such other times as agreed between the parties in writing.

4. On special occasions the child is to spend time with the father as follows:

   (a)at Christmas, the child is to spend time with the father in even numbered years from after school or 3.30pm on 23 December until 11.00am on 25 December;

   (b)at Christmas, the child is to spend time with the father in odd numbered years from 11.00am on 25 December until 6.00pm on Boxing Day;

   (c)on the child and the father’s birthdays from 9.00am to 2.00pm if a non-school day or from after school until 6:30pm if a school day;

   (d)on Father’s Day from 6pm on the day prior to Father’s Day until the commencement of school or 9am the day after Father’s Day.

5. On special occasions the child is to spend time with the mother as follows:

   (a)at Christmas, the child is to spend time with the mother in even numbered years from 11.00am on 25 December until 6.00pm on Boxing Day.

   (b)at Christmas, the child is to spend time with the mother in odd numbered years from after school or 3.30pm on 23 December until 11.00am on 25 December.

   (c)on the child and the mother’s birthdays from 2.00pm to 7.00pm if a non-school day or from 6.30pm until before school or 9.00am the following day if a school day

   (d)on Mother’s Day from 6.00pm on the day prior to Mother’s Day until the commencement of school or 9.00am the day after Mother’s Day.

6. The Paternal Grandparents, or either of them, may be in attendance during the father’s time with the child.

7. Changeover shall occur at the child’s school when time commences or concludes at the start or end of the school day and shall otherwise occur as follows:

   (a)if available, at Berry Street Richmond’s facilitated changeover service with parents to sign and do all things necessary to enrol in the service forthwith and the costs to be met equally by the parties; or

   (b)if Berry Street Richmond’s facilitated changeover is unavailable, changeover shall occur at (omitted) Train Station at the V/Line Customer Information Booth closest to the entrance to the station on the corner of (omitted) and (omitted); and

   (c)the parties may send an agent to facilitate changeover on their behalf or may attend changeover in the company of whomever they wish.   

8. The parties must forthwith sign and do all things necessary to commence and attend reportable family therapy with Dr J and must attend and ensure the child’s attendance as reasonably directed by Dr J, with the costs of the same to be met equally by the parties.

9. The parties must provide Dr J with copies of all reports and Affidavits of Dr E, the Family Report, a copy of these orders and any and all other documents requested by Dr J.

10. The parties have leave to provide Dr J with any documents filed or relied upon in these proceedings and Dr J has leave to inspect any and all documents subpoenaed in these proceedings, however, it is at her sole discretion to determine whether or not to do so.

11. The Mother must provide a medical certificate from the child’s GP, if the child does not spend time with the father due to illness. Any such time must be made up on the days and at the times as nominated by the father in writing to the mother without the requirement of the mother’s consent.

12. The parties must keep the other advised of their current residential address, postal address, email address and all contact telephone numbers and advise the other of any change to the same within 24 hours.

13. The parties must keep each other advised of the names of the children’s treating medical practitioners and provide all necessary authorities to such medical practitioners to enable the other to obtain information in relation to the child’s health.

14. The parties must forthwith select a single GP or medical clinic in the CBD area upon whom the child will attend and failing agreement the ICL shall nominate the single GP.

15. The Mother is restrained by injunction from allowing consultations between the child and Dr C, Dr Z or any other professional engaged with the Mother.

16. The parties keep each other advised of any serious illness or accident suffered by the child while in their care and advise the other as soon as practicable of each treating medical practitioner or like professional, and authorise each of them to speak with the other parent.

17. The parties shall communicate via email or text message and may communicate verbally if or when engaged in any form of mediation, counselling or similar activities or in an emergency.

18. Pursuant to s.68P(2) of the Family Law Act 1975 (Cth), these Orders are inconsistent with the Interim Family Violence Intervention Order made against the father and the Family Violence Intervention Order is invalid to the extent that it is inconsistent with these Orders.

19. The Mother must forthwith authorise and request that the principal of any school or extracurricular activities attended by the child provide the father copies of the following documents:

    (a)school reports for the child;

    (b)school or class photographs of the child;

    (c)any documents usually sent to parents.

20. The mother must forthwith ensure that the father is listed as an alternate emergency contact person on all school and any other formal registration forms, intake forms and related formal documents.

21. The parties are at liberty to attend the child’s care/school functions, sporting events and extracurricular activities and appointments at the school that parents are ordinarily invited to attend from time to time.

22. The mother must forthwith sign and do all things necessary to ensure the child is enrolled at school with the name X, as per her birth certificate.

23. The mother is restrained by injunction from using any name other than X on any information, documentation or official records related to the child.

24. The parties are restrained by injunction from removing the child from her current school and from enrolling her in any other school without the prior written consent of the other party.

25. The father must continue to attend upon and follow the directions of his treating health professionals at (omitted) Hospital or such other professionals as he is referred to by his treating team and must comply with any prescribed pharmacological treatment and or recommended therapy.

26. The mother must solely report any further allegations whether her own and/or the child’s made against the Father to one or more of the below persons/organisations: 

    (a)the child’s GP;

    (b)any member of Victoria Police; and

    (c)any member of the Department of Health and Human Services

    and contemporaneously with making such allegation she must provide Dr E's Reports of 28 October 2016 and 4 May 2017, the Family Report and a copy of these Orders.

27. The mother is restrained by injunction from allowing the child to be spoken to by anyone in relation to any allegations made against the father until she has complied with the Order 26 above and may only do so at the request of the person investigating the allegations.

28. Forthwith upon making any further allegations against the father, the mother must contact Dr J to request an urgent appointment and must report the allegations to Dr J and request that Dr J makes recommendations regarding whether the live with/spend time with arrangements under the these Orders should be maintained or varied and if varied, how, with the costs of attending upon Dr J to be met equally by the parties.

29. If both (but not either) of the Paternal Grandparents cease to stay overnight with the father at his home, including temporarily, solely on nights when the child is spending overnight time with the father, the father must advise the mother and consult with Dr J prior to spending overnight time with X in the absence of both Paternal Grandparents. The parties must follow the recommendations of Dr J regarding the alternative measures, if any, to be put into place to ensure the father’s ongoing compliance with his medication and monitoring of his mental health condition.

30. The parties shall follow any recommendations made by Dr J regarding changes to the live with and spend time with arrangements under these Orders and have liberty to apply if the recommendations extend beyond a short term alteration or suspension of the arrangements.

31. The Independent Children’s Lawyer must forthwith provide the following people/organisations with copies of Dr E's Reports dated 28 October 2016 and 4 May 2017, the Family Report and these Orders:

    (a)the child’s GPs as selected further to these Orders;

    (b)Dr J;

    (c)the Principal of the child’s school;

    (d)Department of Health and Human Services; and

    (e)Victoria Police SOCIT;

    (f)any counsellor, psychologist, psychiatrist, GP or other professional engaged with the Mother;

    (g)at least one psychiatrist in any team of mental health professionals working with the father and/or any individual mental health professionals working with the father.

32. The father shall forthwith provide written authority and request that his psychiatric team advise Dr J, the Paternal Grandparents and the mother at any time that they are concerned about the father spending time with the child due to his mental health.

33. The parties must forthwith destroy or caused to be destroyed by their servants or agents (including Dr Z) any and all physical and electronic information in their possession or control that contains a direct or indirect copy or record of information obtained from the subpoenaed materials (this Order does not extend to the parties’ lawyers).

34. The parties are restrained by injunction from obtaining any of the materials referred to in the preceding paragraph should they obtain a copy of any future or former solicitors’ files.

35. The parties, their servants and agents be and are hereby restrained by injunction from:

    (a)discussing these or related court proceedings in the presence or hearing of the child;

    (b)abusing, insulting, belittling, rebuking or otherwise denigrating the other party and/or any member of their extended family or household either directly or in the presence of the child or permitting any other person to do so; and

    (c)inappropriately questioning the child about their time with the other parent and/or instructing the child in a manner likely to unreasonably undermine their feelings of safety when spending time with the other parent. 

36. Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975 (Cth), 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 Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6943 of 2013

MR YEN

Applicant

And

MS LIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 22 May 2017, I made interim parenting orders in relation to the only child of a marriage, X, who was born on (omitted) 2012 and is presently aged five years.  Although the matter was set down for a final hearing on 22 May 2017, the matter proceeded as an interim application for the reasons which follow. 

2. The father, who is presently aged 33 years, has a diagnosed illness of schizophrenia. 

3. The mother is aged 36 years.  The mother now practises as a (occupation omitted).  While the mother was self-represented before me, I pause to notice that the mother has often been represented by both solicitors and counsel with particular experience in family law; however, the court file demonstrates that the mother has withdrawn instructions and re-appointed new solicitors and new counsel at frequent intervals.  Without intending any disrespect to the mother, a reasonable summary of her current position is that she opposes the father having unsupervised time with the child.

4. The parties met as undergraduates during their studies in the University of (omitted).  The father works as an (occupation omitted).

5. The parties’ marriage was of brief duration.  They were married and commenced living together in (omitted) 2011 and were separated in October 2012. 

6. On 1 October 2013, an order was made for the parties divorce.  Since that time the parties have engaged in almost constant litigation in this court.

Procedural history

1. On 29 October 2014, the father filed an initiating application by which he sought parenting orders.  His application may be explained in part by the mother’s almost implacable opposition to the father spending time with his daughter.

2. On 29 January 2015, interim orders were made for the father to undergo a psychiatric assessment in order that, amongst other things, an assessment could be made whether he posed a risk to himself, the mother or the child.

3. On 4 May 2015, an order was made that the father have supervised parenting time.

4. On 9 October 2015, a detailed report was prepared by Dr R, consultant psychiatrist.  Dr R’s report identified that he had earlier consulted the father for about a 12 month period in 2009 while the father was under the care of the youth early psychosis team based at the (omitted) Hospital.  Dr R reported that the father’s first episode of psychosis had been diagnosed in 2009 and as having occurred in the context of relationship issues and stress.  He recorded that the father had had a relapse in 2011. 

5. As concerned supervised access, Dr R reported that the father’s parenting time was “going well.”  Dr R opined that the father’s schizophrenia was currently well controlled and in remission.  Dr R’s considered opinion was that the father’s diagnosis did not put the father, the mother or the child at risk of any specific harm.  He did not believe that the father’s schizophrenia would have a detrimental impact upon the father having unsupervised time with his daughter.  Dr R observed:

   “. . . I can confidently state that I believe the impact of the father’s diagnosis is likely to have a minimal impact upon on his parenting capacity . . .

   As long as Mr Yen complies with his medication, his positive symptoms will remain controlled and will have a minimal impact on his day-to-day functioning”

6. Dr R concluded that the father was safe to have unsupervised access with his daughter as long as his treating team were aware of this unsupervised access occurring and of the potential need for review if there was an exacerbation of his condition on any occasion.

7. Shortly afterwards, on 26 October 2015, Dr T, a registrar of the (omitted) Hospital, reported that the father appeared to have remained strictly adherent to his prescribed medications since a relapse in 2013.

8. On 26 November 2015, orders were made that each of the parents attend and complete, as soon as was practicable, a post separation parenting program.

9. On 3 March 2016, an injunction was granted restraining the mother from removing, causing or permitting the removal of the child from Australia.

10. On 8 April 2016, an order was made that the father’s parenting application be set down for final hearing on 22 May 2017.  Orders were made for the provision of a family report together with the appointment of an Independent Children’s Lawyer (ICL). A further order was made pursuant to s 11F of the Family Law Act 1975 (Cth) for the parents and the child to attend upon a family consultant. The appointment for such attendance was fixed for 20 September 2016.

1. On 3 May 2016, the father filed an urgent application in a case.  On 7 June 2016, orders were made by consent allowing the father supervised parenting time, at intervals of two hours per fortnight, such supervision to be undertaken by (omitted) Community Services.

2. On 1 September 2016, further parenting orders were made which, in effect, regulated access to medical reports by the appointed family consultant.

3. On 10 November 2016, further orders were made which afforded the father more extensive spend time arrangements and for supervision to be provided by the child’s paternal grandparents.  Other orders were made requiring the mother to undertake therapy to assist her in dealing with the father’s mental health issues and her anxiety about the child spending time with the father.  The mother was further required to disclose the names and addresses of any treating counsellors, psychologists or psychiatrists.

4. On 31 January 2017, the mother was ordered to attend upon the psychiatrist, Dr E for the purpose of her undergoing a psychiatric assessment and that she disclose her medical and mental health records prior to consulting with Dr E.  Further, parenting orders were made allowing the father supervised spend time with his daughter.

5. On 19 May 2017, a family report of Dr K, forensic and clinical psychiatrist, was prepared and provided to the parties.  Dr K concluded that X should have time with the father, supervised by the father’s parents (so as to assuage the mother’s stated concerns) and with those parents able to authorise unsupervised spend time.

Hearing on 22 May 2017

1. When the matter was called on for hearing on Monday, 22 May 2017, the respondent mother requested an adjournment.  She stated from the bar table that she had been told for the first time, the previous Thursday, 18 May 2017, that her lawyer required payment ‘up-front’ if the mother was to have legal representation.

2. The application for an adjournment was made, in effect, without notice.  The mother’s response to the court’s compliance check on Thursday, 18 May 2017, merely indicated that, as far as the mother was concerned, the matter was proceeding, she would call eight witnesses and wished to cross-examine Dr R.  The mother also indicated that she desired to file additional documents and that the only remaining issue in dispute was “spend time.”

3. The application for an adjournment was opposed by both the father and the ICL.  The father identified, by sworn evidence, the number of occasions on which the mother had changed lawyers and counsel.

4. The ICL likewise opposed the adjournment, noting the significant public resources that had been dedicated to the preparation for the final hearing.

5. Notwithstanding that the respondent was self-represented, as noted the parties had met as undergraduates at the University of (omitted) whilst engaged in their study for a (qualifications omitted). The mother professed no specialised knowledge in family law.  She was, however, at something of a distinct advantage in comparison with many of the self-represented litigants who appear in this court.  The mother informed me that she presently practices as a (occupation omitted).

6. The mother then informed me that if the adjournment was refused there were further documents she wished to rely upon.  On that basis, I stood the matter down in order that the respondent could supply copies of those documents to both counsel for the applicant father and the ICL. The matter was stood down for perhaps an hour.  When the matter was called on, I ruled that I would grant the respondent mother’s adjournment application but that I would proceed with the fathers parenting application on the footing that it was an application for interim relief.

7. At that point the respondent mother sought leave to file the further documents to which she had referred earlier.  Only then did it emerge that the mother had prepared a detailed affidavit running over some 69 paragraphs together with a series of six exhibits.  The mother informed me that she had prepared that affidavit the previous Thursday, 18 May 2017.  It appeared that, despite my request that she do so, the mother had not served the affidavit on the other parties until just before the hearing of the matter had resumed.

8. In the circumstances I ruled that the respondent mother should have leave to rely upon the affidavit, but that she could do so on the basis that I would reserve the right of both the applicant father and the ICL to raise objections as to relevance and admissibility.

9. In the circumstances, counsel for the father and ICL provided the court with minutes of orders which, as between them, were sought by consent.

10. I informed the parties that the interim hearing would commence at 2.15pm.

Interim application

1. At the commencement of the hearing the father and ICL applied to call Dr K to clarify some aspects of her report.  Dr K, who was unable to attend by reason of geographical constraints, was contacted by telephone, and gave unsworn evidence.  She was questioned by the parties.  Dr K clarified that she supported progressively increasing periods of time spent with the father, adopting three month intervals and also during school term.  Dr K, while conscious of the mother’s objections, had no difficulty in the paternal grandparents being involved in X’s spend time arrangements with the applicant father.  She did not want to be misunderstood as recommending that those grandparents be involved in substantial attendance or supervision.

2. In cross-examination by the mother, Dr K confirmed that she had taken into consideration unproven allegations of sexual assault which were being raised against the father.  As to allegations that X had been tied to a tree and had paper stuffed in her mouth, Dr K was more sceptical, regarding them as difficult to believe in the circumstance that the alleged event had occurred during a period of supervised time.  As to the weight attached to allegations of sexual assault, Dr K considered that the allegations had been investigated but not substantiated.  Dr K likened the incident of alleged assault to a young child being asked if she needed to go to a toilet and her nappy or pull-ups being checked on that account.  Dr K also addressed this issue in the absence of any other forms of observed sexualised behaviour by the child.  She concluded that this was not a particularly pertinent risk factor.

3. Dr K also considered that the child had picked up her mother’s anxiety and was reporting to her mother that which she perceived her mother wanted to hear.

4. Dr K confirmed that she had examined the majority of the documents that had been produced on subpoena.  However, at this stage of the interim hearing, a number of matters emerged.  First, it was not entirely clear what documents had been provided to Dr K.  Secondly, and of greater concern was that the mother had, of her own initiative, supplied Dr K with notes that the mother had prepared. Thirdly, the fact of that supply to Dr K had not been disclosed to other parties.  Fourthly, copies of those notes had not been provided to the other parties.  Dr K confirmed that she would be able to provide a copy of those notes by filing a supplemental report to which she would annex a copy of those notes.

5. In addition, the ICL relied upon reports from Dr E dated 28 October 2016 and 4 May 2017. 

6. By the first report, Dr E opined that he saw no reason why the father ought have only supervised time with his daughter.  He found the father to be a pleasant, intelligent and slavishly honest man whose illness was now in remission.  He observed the father to have consistently pursued the issue of spend time with his daughter and noted that the reports of (omitted) Family Services described a close and abiding relationship between father and daughter.  Dr E concluded that “Mr Yen does not present a risk to his daughter’s wellbeing, and to the contrary, is likely to be a loving father to her. . . . Whilst Ms Lin continues to assert concerns about Mr Yen’s mental health, I believe those are without foundation.”  Dr E regarded the allegations of sexual assault and the paper stuffing incidents as bizarre and not borne out by the ongoing loving relationship between daughter and father.

7. By the second report, Dr E opined upon the mother and the father, concluding that the father continued to impress as a person who was slavishly honest.  By contrast, he found that the mother “mounted what appears to be a concerted campaign of baseless allegations against Mr Yen and aimed at undermining contact between X and her father.” 

8. Dr E was left with significant concerns about Ms Lin’s mental health and her judgment and capacity to support a relationship between the daughter and father.  He concluded that the father did not represent a risk to the daughter.

9. The ICL had also filed an affidavit from a child supervisor working with the (omitted) Family Services which exhibited the reports of supervised time between father and daughter.  Those reports, dated 4 October 2016, 17 March 2017 and 10 April 2017, did not identify matters adverse to the orders made on 22 May 2017.  By contrast, there were some reasons to identify concerns in relation to the mother and her capacity to undermine the father’s spend time with his daughter.

10. While the parties had filed and relied – for the purposes of a final hearing – on a litany of affidavits dating back to the institution of proceedings, I have concluded that it is not necessary for the purposes of an interim hearing to reproduce in these reasons the matters traversed in those affidavits.  I had considered them in advance of the final hearing and, in the case of the mother’s final affidavit handed to the parties at about midday, I considered the contents of that document in some detail before the interim hearing commenced at 2.15pm on 22 May 2017.

Consideration

1. It is well settled that on the hearing of an interim application the court is entitled to proceed upon disputed matters of fact but that in parenting proceedings, the court should adhere to the legislative pathway contained in Part VII of the Act.

2. As noted, the parties relied upon an extensive body of evidence.  In my opinion, it was of determinative significance in the context of an interim hearing, that not one but two independent experts concluded that the father did not present a risk to his daughter.  Further, it is clear that the mother’s allegations are open to scrutiny.  I need not finally decide those issues at present.

3. The submissions, written and oral, made on behalf of the ICL, were wholly supportive of the orders sought on the application. Each of the s 60CC primary and additional factors received careful consideration. The ICL considered that the father was to be acknowledged in a positive way for the candour demonstrated by him with respect to his diagnosed mental illness. The ICL observed that by contrast, the mother presents as highly anxious but denies any mental health issues. Support was given for the daughter to have a meaningful relationship with both parents. The ICL submitted that there did not appear to be substance in the mother’s allegations in relation to physical or sexual abuse by the father of the daughter. The daughter has a strong bond with both parents. The ICL was unsupportive of the mother’s proposal for indefinite supervised time as being extremely expensive and impractical. The making of orders for indefinite supervised time would also seem contrary to authority. The ICL noted that the parents each had a capacity to care for the child’s needs – although in this context I note that both parents are themselves currently residing with their own parents. I agree in the ICL’s submission that there is reason to be concerned about the capacity of the mother to facilitate and encourage a relationship between the daughter and her father. The propensity for the mother to engage in alienating behaviour was identified.

4. The father’s written and oral submissions also displayed care in the consideration of the issues that would arise on a final parenting application.  I do not rehearse the issues raised in those submissions save to acknowledge that the father has adopted a stance in relation to his application which displays a determination to do all that might reasonably be asked of him to reassure the mother.  I accept the submission that he has acted in a sensitive and compassionate way to address the mother’s concerns.  While there is force in the submission that the mother’s conduct is designed to undermine parenting orders that would facilitate the father having anything but supervised time, these matters need not be fully explored on an interim application.

5. Although the mother repeated that she did not practice as a (occupation omitted), the approach which she adopted displayed a forensic insight to the issues at hand.  The nature of the questions addressed to Dr K indicated the will to inquire whether there were matters that Dr K had not taken into account or matters to which she had not attached weight.  Likewise, the mother’s principal submission was that the child’s safety was paramount.  This must be accepted.  Next it was said that the child’s right to safety meant that she should be given the benefit of the doubt in any circumstances.  I do not accept that submission.  The court is entitled to give due weight to the whole of the lay and expert evidence that is available to it in deciding how the paramount interests of the child are best to be addressed, and that is particularly so on an interim application where so many facts and circumstances remain in dispute.  It is fortunate that there is a full range of independent expert reports in this matter and that those reports are consistently supportive of the father having unsupervised time with his daughter.  Insofar as the mother’s third submission was critical of the expert reports, I reject it.  These matters may be further explored at a final hearing.  The fourth submission was that there was no proof the father had recovered from his diagnosed illness – so much may be accepted for the purposes of this interim hearing – of greater significance is that the independent expert opinion in this matter is that the father presents no risk to the child.  Further, this has been the consistent position since Dr R expressed his opinion in October 2015.  The final submission made – which might also be thought to indicate a degree of insight to the principles applicable to the making of parenting orders – was that there was an existing intervention order in place, which meant that it would be unworkable to make orders to the effect sought by the father.  

6. In her closing submission, the mother provided a list of five orders that she submitted were more appropriate to be made.  The net effect of those orders was to set in place a regime for supervised time on a basis that was highly prescriptive.  The mother sought that there only be mutually agreed professionally supervised spend time, that such time be at a location that was ‘mutually’ agreed and in a public place.

7. In light of my consideration of the expert evidence and the matters submitted by the ICL, I rejected the mother’s belated proposal.

8. For the avoidance of doubt, I traversed with the mother each item in the minute of proposed order that had been agreed by the ICL and father’s counsel.  In large measure, the mother did not agree in those minutes; however, in some places there was agreement.  I had earlier asked the mother to indicate which of the recommendations made by Dr K were agreed or not agreed to.  It was difficult to engage with the mother on issues that could become relevant to the welfare of the child.  For example, the mother was disinclined to explain how the father should be informed of the child’s health, should an urgent occasion arise.  It was suggested by the mother that the school should bear that responsibility, since she refuses to communicate with the father at all.  Fortunately, many other practical issues addressed in the minute of order were agreed to by the mother.  I do not set these matters out.

9. It is highly regrettable that a matter that has been on foot for so long should have to be the subject of yet a further interim hearing as occurred in this instance by reason of the mother’s unannounced application for an adjournment.  The evidence available on this hearing was in my view supportive of the making of orders for extended parenting beyond that which has been regulated by earlier parenting orders in this proceeding.  The current orders will regulate the position until the final hearing.  For these reasons I held that orders should be made in the terms provided on 22 May 2017.  I consider that the daughter does have an immediate right to know and be cared for by both of her parents and to spend time on a regular basis with each of them.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date:  23 June 2017