Criminal offence not disclosed

Lawrie & Sheehy

Criminal offence not disclosed

Procedural history

6. On 30 October 2015 the mother filed an initiating application seeking both property and parenting orders. It is and has been the mother’s contention, since filing her initiating application, that:
   1. the child X should reside with the father;
   2. the child Y should reside with the mother.

Extensive ancillary orders were also sought, including that the parents should have equal shared parenting responsibility.

7. On 30 October 2015 a notice of risk of child abuse, family violence, or risk of family violence was filed on behalf of the mother.
8. On 18 November 2015 the father filed a notice of risk.
9. On 19 November 2015 the father filed a response which also made claims for property and parenting orders. The father’s position, then as now, was that both of their children, X and Y, should live with him. He too sought that the parties have equal shared parenting responsibility and ancillary orders.
10. Affidavits were sworn by the mother and father on 29 October 2015 and 16 November 2015 respectively.
11. On 9 December 2015 being the first return date in the proceeding, both parties applied for interim relief as to parenting. Consent interim orders were made, substantially in terms of the relief sought by the mother; namely, that the son, X, reside with the father, the daughter, Y, reside with her. The parties consented to orders that they should have equal shared parenting responsibility.
12. The parties’ positions appear to be that they have been able to comply with the interim parenting orders in the period December 2015 to date.
13. The proceeding was again heard on 22 February 2016. On that day, a family consultant, Ms I, interviewed the parties and their children. Ms I then gave a report to the court.
14. Two months later, on 20 April 2016, Mr S interviewed the parties, their children and their paternal grandparents together with the mother’s new partner, Mr J.
15. On 30 June 2016 Mr S completed his family report.
16. On 11 October 2016 orders were made by consent dealing on a final basis with the parties’ property applications.
17. As concerned the determination of the parties’ applications for parenting orders, on 11 October 2016 orders were made designed to regulate each of the steps required of the parties so that the matter could be ready for a final hearing (on a one day estimate). Orders made included that by 20 January 2017, the parties file and serve the affidavit of any witness intended to be relied upon at the final hearing. Other orders regulating the trial included that:
    1. each party file and serve a case outline setting out a precise minute of the final orders each sought, a relevant chronology, a list of affidavits and applications and/or responses intended to be relied upon at the final hearing and a statement of evidence which, they contended, supported the principles contained in s.60CC of the Family Law Act 1975 (Cth) (“Act”);
    2. the parties’ solicitors send to Mr S a joint letter of instruction enclosing any affidavit material to be relied upon by the parties and not already in Mr S’s possession and posing a series of no more than ten (10) questions from each party to elucidate some further clarification of Mr S’s opinion.

I was informed that the parties have formulated their questions for, and that these had been provided to, Mr S for the purposes of his giving evidence at the trial that was listed for 22 February 2017.

18. The father filed an affidavit sworn on 19 January 2017. His affidavit deposed to the acrimonious and dysfunctional nature of the parties’ relations, his poor relations with Mr J and of his good relations with each of the children. His affidavit provided evidence of the familial support that is available to him in Brisbane.
19. On 20 January 2017 an affidavit was sworn by the mother. The history as deposed to in that affidavit recounted the troubled nature of the parties’ relationship and contained repeated allegations concerning the conduct of the father. However, what it also did was address some of the criminal history of Mr J as was known to the mother at that time. The mother deposed of her knowledge as to Mr J stating:
    “[59] I think it is important for me to make this Honourable Court aware of the fact that in the mid to late 1990’s Mr J was convicted of an offence related to him having sex with an underage woman. I became aware of this offence approximately 12 years ago.”

The affidavit proceeded to give evidence as to how those events were of relevance to Y and that the mother “had no reason to believe that Y was in any danger” from Mr J.

20. On the same date, 20 January 2017, an affidavit was also sworn by Mr J which addressed his observed conduct of the father and of his relations with Y. Under the heading, Events since Ms Lawrie moved to (omitted), Mr J also deposed to his conviction for offences in 1997 as follows:
    “[38] I feel it is important to make this Honourable Court known (sic) that I have previously been convicted of carnal knowledge of a girl under 16, indecent treatment of a child under 16 and sodomy in 1997.”

Like the mother’s 20 January 2017 affidavit, Mr J deposed as to why he considered that he presented no risk to Y.

21. The matters as deposed to in each of the 20 January 2017 affidavits above were not disclosed to: (1) the court on 9 December 2015; or (2) either of the family experts, Ms I or Mr S.
22. On 16 February 2017 a new notice of risk was filed by the father.
23. A series of subpoenas were also filed on behalf of the parties being to:
    1. Commissioner of Police, Queensland Police Service;
    2. Director General, Department of Communities, Child Safety and Disability Services;
    100. Medical Director, (omitted) Public Hospital;
    4. Director General of the Department of Education, Training and Employment;
    5. Queensland Health, Director General of Queensland Health; and
    6. Queensland Health, Chief Executive of Health Service.
24. An examination of the subpoenas may suggest that both parties sought to trawl the available documentary records but that the inquiries being made were directed to the promotion of their competing cases.
25. The case outline filed on 7 February 2017 on behalf of the mother adhered to the position stated in her application: final parenting orders were sought that X live with the father in Brisbane and that Y should live with the mother in (omitted).
26. The case outline filed on behalf of the father on 10 February 2017 reiterated that both children should live with him.
27. Each party contended for equal shared parental responsibility and indicated their consensus in relation to many of the ancillary orders.
28. In consequence of the subpoenas, a large volume of new evidence came to light in the period after 20 January 2017. In particular, documents produced in response to the subpoena served on the Commissioner of Police, Queensland Police Service, disclosed that in relation to Mr J, his history included a history of domestic violence more extensive than had been disclosed by the affidavits of the mother or Mr J made on 20 January 2017.
29. Following the production to the parties of the documents made available in response to the subpoenas, a supplementary case outline was filed on behalf of the father.

Hearing on 21 February 2017

30. Given the recent discovery of Mr J’s criminal history, I declined to allow the parties to conduct a final hearing for final parenting orders. Instead, the matter proceeded on the basis of a hearing for interim relief by each party for the parenting orders that they have sought.
31. Proposed interim orders were provided that had been drafted, using as a template, the 9 December 2015 orders. The parties’ submissions confirmed that there was substantial agreement in relation to the majority of those orders. Relevantly, the substantive issue concerned Y and whether she should be allowed to continue to live with the mother.
32. Undertakings were proposed by the mother designed to provide some level of insulation from Mr J so that Y would not be exposed to any alleged risk. In substance, those undertakings entailed that Y would not at any time be left alone, or in the company of Mr J, that her bedroom would be fitted with a lock and that no-one would be entitled to enter her bedroom. An alternative regime was proposed whereby Mr J would reside in a caravan located on the (omitted) property where the mother and Y now live and that the doors to that home be locked. The court was informed Mr J agreed in the proffered undertakings.
33. Three matters of immediate concern to the court were whether:
    1. Mr J presented an unacceptable risk to Y;
    2. before giving his evidence, Mr S would wish to reconsider his expert opinions after having had an opportunity to consider Mr J’s offending and convictions for the 10 offences admitted to have occurred in 1997, together with the contraventions of domestic violence orders and notifications since that date;
    100. an Independent Child’s Lawyer should represent the children at a final hearing of the application for parenting orders.
34. Those considerations, in combination, compelled the court to decline to deal with this proceeding as a final hearing. The parties made applications for interim parenting orders in effectively the same terms as proposed by their case outlines.

74. As framed by the parties, the central issue was whether Mr J posed an unacceptable risk to the child. While the adoption of that approach represented a candid attempt by counsel to confront issues during the interim application, the authorities discussed above require that the question be framed as one that was focussed on the paramount issue of the best interests of the child Y giving greater weight to the need to protect her from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. I have treated the parties’ submissions as being focussed upon that issue.
75. Adopting that approach, it is convenient to consider the evidence, albeit that it may remain in contest in many respects, as follows:
    (1) 1997 offending
76. Mr J’s 1998 convictions related to a child younger than 16 years.
77. Counsel for the mother accepted that his client had known of the convictions for the 10 offences committed in 1997. So much was plain from the 20 January 2017 affidavits of the mother and Mr J.
78. The mother’s counsel asked that I view Mr J’s convictions for the 10 sexual offences with which he had been charged in 1998 as historical – rather than recent – offending. The conduct was portrayed as the conduct of a 23 year old man who had met a young woman in a hotel and, as he had seen her drinking, assumed her to be of adult age.
79. However, the evidence adduced may be understood as suggesting that this description of the circumstances of the offending were somewhat more complicated. In particular, as submitted by the father’s counsel, the material suggests that it may be that Mr J had been sharing a house with the girl and her parents. If that were so, it may undermine the notion that Mr J thought her to be an adult. But these are matters that may be explored further at trial.

(2) Domestic violence

80. Documents comprised in the Queensland Police files (Exhibit 1) suggested that Mr J’s history had included a history of domestic violence and a relevant history that was more extensive than had been disclosed by the mother’s case.
81. As noted above, the mother’s counsel recognised that his client had known of some – but not all – of the conduct disclosed by the records produced on subpoena. The concession in respect of convictions for conduct after 1998 was confined to the breaches of domestic violence orders as set out in the respondent’s supplementary case outline.
82. Much of the material disclosed by the Queensland Police records was repetitious as concerned the convictions of, and domestic violence orders relating to, Mr J. There may have been some overlap in those entries. Although the parties referred to some of that material, the contents of Exhibit 1 may suggest that there have been a wider series of incidents in the period 2008 – 2012.
83. It appears that none of the incidents involved the children with whom the present application is concerned.
84. It will be for the parties to consider what, if any, use is to be made at trial of the material recorded in, or said to be revealed by, the documents that were produced by Queensland Police.

(3) Notifications

85. In addition, the Queensland Police records also include records of the Notifications, which I accept remain in contest. Documents produced by Queensland Police include a number of Notifications. Whether the matters the subject of those Notifications were or were not well based remain in dispute and I cannot express a concluded view about them upon an interim application.
86. In relation to these Notifications three matters were raised.
87. First, it was said to be relevant that in one case, the victim had continued to reside with Mr J. This militated against a finding of unacceptable risk. The overall history of domestic violence does not support that submission. Persons may continue to reside in the same property irrespective of the conditions in which they are living.
88. Secondly, it was also put that Mr J had resided with the mother and father at various times in the period 2009 – 2013, and that this consideration demonstrated the ability of the father to have observed Mr J’s conduct in that period. It was said that the father’s affidavits were silent as to any observed conduct on the part of Mr J evidencing any risk posed to Y. It was said in response that the father’s vigilance in observing Mr J may well have been heightened by actual knowledge of the level of domestic violence incidents in which Mr J had been involved. I agree.
89. Thirdly, it was also pointed up that following a departmental investigation the conclusion was that Mr J was assessed as posing no risk to Y. It is necessary to say a little more as to that. The conclusions relied upon by the mother were drawn from a 2015 Safety Assessment which assessed the potential risk presented by Mr J to Y. The summary of that assessment was as follows:
    “a) Safety decision for household 30/07/2015: Safe

 

b) Final risk level 27/08/2015: Low”

Viewed in isolation those conclusions may have been reassuring. However, as the one page containing the assessment had been extracted from a CD of the documents produced on subpoena, a full version of the report was located, printed and provided to the parties.

90. The above summary extract from the Safety Assessment should be considered in the context of further entries in the full report which state:
    “Assessment of harm and Risk of Harm

 

During the investigation Y did not indicate that she has been groomed by Mr J.

 

Mr J does have a criminal history as a sex perpetrator against a minor and a (sic) adult, however, each of the allegations were unfounded and Mr J was not charged.”

91. As I was asked to take account of the conclusions expressed in that Safety Assessment, I cannot ignore that the premise on which it was reached included that, as concerned allegations of sex offending by Mr J, the assessor had been told that “the allegations were unfounded and Mr J was not charged”. The documentary record above – both as to breaches of domestic violence orders and of notifications – would undermine the premise on which the safety decision and final risk level assessment were reached. Once that flaw is exposed it is apparent that the opinion expressed in the report was based upon incomplete information and that this may well have infected the reasoning.

(4) Disclosure

92. I regard as relevant that the mother’s affidavit made on 29 October 2015 did not disclose the known offending of Mr J. Although the application before me proceeded initially with focus on the 1997-1998 offending and conviction, it soon expanded to consideration of the other admitted conduct of Mr J. Importantly, as the matter proceeded, the mother conceded to having also known of Mr J’s offending on 6 November 2009 and 21 September 2012. Again, neither of those matters had been disclosed in the mother’s 29 October 2015 affidavit (or indeed, in either of the 20 January 2017 affidavits).
93. None of those matters were disclosed to the court when interim orders were made on 9 December 2015.
94. Ms I’s report contained no mention of these matters. She therefore did not evaluate them (as she had not been told about them).
95. Mr S had interviewed Mr J and while his family report did address the position as concerned Mr J, it contained no reference to the convictions, domestic violence orders, the breach of those orders or the Notifications. When, on 30 June 2016, Mr S completed his family report, he had not been instructed or informed of Mr J’s offending. Accepting that some of the material and history is in contest, it remains the fact that there is no reference to the admitted criminal history, domestic violence orders, the breach thereof or the Notifications concerning Mr J as now disclosed.
96. The orders regulating the matter for final hearing required the parties to file and serve a case outline, a relevant chronology and a statement of evidence which, they contended, supported the principles contained in s.60CC. They did so. The mother’s case outline remained essentially silent as to Mr J’s conduct – this occurred despite the contents of the two 20 January 2017 affidavits in which both deponents deposed to the apparent importance (i.e. potential relevance) to the court being made aware of Mr J having been “convicted of an offence related to him having sex with an underage woman”. The fact that that offending had entailed 10 convictions was not made clear. The reasons why this was considered not to pose a risk to Y were not explained.
97. Although the mother did relate that she had known of “this offence” for about 12 years, her admitted knowledge of the other offending was not disclosed. At the least, the court is entitled to regard that non-disclosure as relevant to the mother’s ability to perceive the risk and of her ability to respond to it.
98. Several of the matters disclosed in those paragraphs of the mother’s 20 January 2017 affidavit are also of note. In particular, the mother: (1) recognised the importance of her making disclosure to the court of the fact Mr J’s conviction; (2) recognised the importance of such disclosure to her application for parenting orders; (3) was aware that the offence for which Mr J had been convicted related to him having had sex with a child under the age of 16 years; (4) disclosed that she had known of this offence for some 12 years; (5) recognised the need to address whether Mr J presented a risk to Y; (6) deposed of her perception that Mr J presented no risk to Y.
99. The significance of the applicant’s 20 January 2017 affidavit extends beyond the matters addressed above. In context, the mother’s disclosure that she had known of Mr J’s conviction some 12 years earlier allows inevitably for inferences that the mother had known of that conviction, both when she made her affidavit sworn on 29 October 2015 and when her application was made to this court on 9 December 2015 for interim relief that Y live with her (and thus, Mr J).
100. As noted, Mr J’s 20 January 2017 revealed his 1998 conviction but did so in limited terms. Mr J’s explanation of that conviction included that he had met the girl at a hotel, that she had appeared to him to be 18 or 19 years of age and, somewhat curiously, that he had never seen her go to school. Mr J deposed that:
     “[40] . . . it was her parents who told the police that we were sleeping together. I . . . was sentenced to a 12 month Intensive Corrections Order. I did not serve a term of imprisonment.”
101. Mr J deposed to his embarrassment about what had happened and that “all I can say is that I was young and stupid and made a huge mistake”. Mr J further deposed that “he could say absolutely that I am not in any way interested or attracted to young females and in fact I have raised two daughters on my own and find the idea of a man doing anything with a young girl absolutely abhorrent”.
102. Mr J’s 20 January 2017 affidavit did not disclose the actual extent of the – now admitted – convictions for domestic violence.
103. Under the heading, Events since Ms Lawrie moved to (omitted), Mr J set out some evidence as to what, he said, were false allegations that had been made by the respondent to various state departments. Notably, Mr J deposed at [33] that “none of these events have been proven”.

(5) Perception of risk

104. The mother’s case summary made no attempt to address whether the fact that Y was living with Mr J was of relevance to the determination of the application for parenting orders. Mr J’s conviction was not referred to in her chronology. Nor was it referred to when s.60CC factors were addressed. Under the heading, the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, there was no mention of the disclosures first made in the 20 January 2017 affidavits of the fact of Mr J’s convictions.
105. The omission to address the issue in the context that the case outlines were required to address s.60CC factors underlines the mother’s lack of perception of the nature of the risk. While this approach was perhaps explicable on the basis that the mother’s 20 January 2017 affidavit advanced a position that she considered Mr J posed no risk, nonetheless I regard this matter as relevant to the submission that the mother’s lack of perception of the risk posed by Y living with Mr J is of relevance to parenting orders.
106. Submissions made on behalf of the mother made clear that the mother had not known of the extent of Mr J’s offending until she had been served with the father’s case summaries. For present purposes this may be assumed in favour of the applicant.
107. As noted above, the mother did not cavil with the convictions of Mr J as set out in the father’s supplementary case outline. But they were not addressed in the 20 January 2017 affidavits or in the mother’s case outline.
108. My conclusion as to the mother’s lack of perception of the risk posed by Y living with Mr J and its relevance to an assessment of appropriate parenting orders is then reinforced by the mother’s concession that she did not cavil with the supplementary case outline which included reference to more recent domestic violence orders.

(6) Expert reports as to Y’s position

109. It was submitted that Y wishes to remain with her mother.
110. In Bondelmonte v Bondelmonte, the Court observed that by s.60D(2), the court may “inform itself of views expressed by a child” by a number of means, including a report given to the court by a family consultant under s.60G(2) or, subject to the Rules of Court, “by such other means as the court thinks appropriate”: [2017] HCA 8 at [19].
111. A matter which was not addressed during the course of the interim application concerned the family consultant, Ms I, who had interviewed the parties and their children and given a report to the court on 22 February 2016. She so reported on that day by way of sworn evidence in the course of which she deposed as to the children’s expressed views of the parenting arrangements. The parties’ lawyers (and I assume the parties themselves), had been present in court when Ms I gave her report. For the purposes of the present application, I note that her evidence included the following:
     “Now Y said that she was a bit scared of her dad when she first went up to (omitted) with her mother, which is near (omitted), because he got angry at her about the idea of her having her stuff up there. But subsequently, now that she’s spending lots of time with her dad she was very positive about both parents.”
112. Ms I opined that Y appeared more concerned about what was best for her respective parents than herself and said:

“Y, I think is too young to be making decisions herself about where she wants to live.”

113. In a similar vein, Mr S reported at [73] that “When she stays with her father, she feels fine, she finds it really fun, but she would like to go to school in (omitted) as it is better than (omitted) as she thought everyone was mean to her at (omitted) school.”
114. Mr S’s conclusions and recommendations set out in his family report at paragraphs [79] – [96] examined in detail the considerations which that expert took into account in reporting to this court upon the proposed parenting arrangements. In his report he stated:
     “79. The primary issue in this family is the current split arrangements of the children’s living conditions, . . .

 

82. The parties’ respective capacity to express insight as to the nature of their relationship and the difficulties that they experienced appeared to be limited on both sides. Mr Sheehy presented as a relatively articulate man, yet in his understanding of the issues which might have affected Ms Lawrie, it appeared that he was limited.

 

94. It is true that Y expresses a desire to remain there and that she is clear about her happiness with the current circumstances. However my view is that the insularity of her mother’s household, the distance between the two homes, and the stress upon her relationship with her brother, are consequential factors.

 

95. . . . there is a complex array of factors which are relevant to the welfare of the children. The parents are uncommonly subjective in their views and I formed a view that their respective insight is very limited.

 

96. This has been a fractured family for some time, and simply returning Y to her family home and [the] father’s care may not be in her best interests, irrespective of the concerns raised regarding the mother’s care. She has a strong bond with her mother. Left to their own devices, I do not have great confidence that either parent will facilitate the relationship between either child and the other parent to the degree which might be necessary.”

115. Mr S’s conclusions as to the complexity of the factors which are relevant to the welfare of the children in this matter are reinforced by the matters that have now been identified in relation to Mr J, including the domestic violence orders and the Notifications.
116. It was accepted by the mother that Mr S might well have reached a firmer and different conclusion as concerned parenting arrangements had he been fully informed of the true position in relation to Mr J. He was not so informed. One reason why his opinion was formed without Mr J’s criminal history was that it had been withheld from him by the mother in circumstances where she had known of it for 12 years. Mr S may well be concerned to reassess the applicant’s ability to perceive the risk posed to Y by Mr J in light of the non-disclosure of that knowledge.
117. Mr S’s conclusions bear scrutiny, and perhaps reconsideration, for a further reason. It seems that the family has been a fractured one for some time. However, it must be recognised that Mr S’s assessment – that returning Y to her family home and the father’s care may not be in her best interests – was a view that he had formed without knowledge of Mr J’s offending or the extent of it (including recent offences of which he has been convicted).

(7) Other matters

118. The mother and Mr J are now married. They have known one another since the applicant was a teenager.
119. Y is now 12 years of age.
120. No Independent Children’s Lawyer has considered the matter.
121. Notices of risk of child abuse, family violence, or risk of family violence have been filed on behalf of both parties since the institution of the proceeding. The presently available information leaves open to question whether the notification by either party was motivated, at least in part, by a desire to cause difficulty for the opposite party.
122. Other factors that were, it was submitted, to be weighed in the balance included consideration of the alternative scenario – that Y live with the father. Reference was made to Mr S’s report at [94]-[96] (see above). Further, as to this:
     1. an incident was relied upon as to cannabis usage by the son X in September 2016. It is said that the cannabis had been provided by a neighbour in Brisbane and that this was said to have been known by the father: see the 20 January 2017 affidavit’s (applicant at [28]-[31], Mr J at [20]-[24]);
     2. the mother’s mother in law is said to be over bearing and hostile to the mother.
123. Mr S’s concern was that if left to their own devices, it was questionable whether either parent would facilitate the relationship between either child or the other parent to the degree which might be necessary. However, that appears not to have been the case inasmuch as interim parenting orders have been in place since December 2015 and the parties seem to accept that parenting arrangements have worked reasonably well since that date.
124. The mother’s 20 January 2017 affidavit makes explicit that she does not regard the respondent as posing a physical threat to the children.
125. I take into account the needs of the father to be assured of Y’s protection as a relevant consideration: In the Marriage of Bieganski (1993) 16 FamLR 353 (Fogarty, Baker, Purvis JJ).
126. Reliance was placed on Y’s present circumstances. She has settled into her new school, she had been appointed school captain of her primary school and, having now progressed to secondary school, has been appointed sports captain in her year. As to this, I note that amongst the matters revealed by the documents produced on subpoena was the following:
     1. Y having had 30 full day absences from school in the period from July 2015 to November 2016;
     2. the father not being on the school contacts for Y.
127. The evidence shows that both the mother and Mr J have been diagnosed with or are being treated for various medical conditions of a psychological nature. The applicant’s affidavit sworn 29 October 2015 at [45] disclosed that she was then suffering from stress and anxiety in relation to her “family law situation”. Although the full extent of those has not been investigated the position revealed by the evidence to this point is that:
     “a) Ms Lawrie is seeing a psychologist at (omitted). . .

 

b) Mr J . . . medical condition include Borderline Personality Disorder (2009) and adjustment disorder (17 Oct 2012). . . Mr J medications include . . . ”

As concerned allowing the child to remain with the mother – attention was drawn to the psychological condition of the mother and Mr J respectively as disclosed by the available material. It was also put that there was, presently, no report from an independent doctor or psychologist. There appears in the records produced on subpoena a reference on 1 June 2010, to a serious incident involving the mother and one of the children.

CONCLUSION

128. Whether the evidence of the making and breach of domestic violence orders above is evaluated alone or together with the 1998 convictions of Mr J, I concluded that that evidence supported the making of the interim parenting orders pronounced in this matter. I was fortified in the conclusions that those parenting orders should be made in light of the documented record relating to the Notifications, my consideration of the progressive disclosure of Mr J’s conduct and the Other Matters addressed above.
129. I have concluded that it is in the best interests of the child Y that she reside with her father. That is in her best interests because the children are not split, and there is a risk of her coming to harm when living with her mother. The risk is of a kind and magnitude that, in the interim, warrants her not living with the mother but with her father.
130. The mother’s new partner has an admitted history and has both a proven and possible history travelling beyond what the experts have yet considered. The actual history suggests risk to the welfare of the child. The possible history (if proven) would increase the risk, but the admitted history presents a risk that, in the interests of the child, is to be avoided. The mother recognised as much by her proffering of undertakings that were designed to address the risk and to do so as it is necessary to avoid the risk. But the circumstances in which that came about suggest that the mother is not properly alert to what those risks are or the dimension of those risks.
131. As concerns the additional considerations identified in s.60CC(3), I have considered the likely effect on a change in circumstances, and weighed up how Y may cope living away from her mother who has been her primary carer. It may be recognised that any sense of loss she might feel in that regard will be comforted by her relationship with her father and her brother. Both Ms I and Mr S have identified that Y’s relations with her father and brother are at least tolerably good. Whilst the additional considerations presented by s.60CC(3) are of importance, the risk of harm must now be given greater weight: s.60CC(2A).
132. In light of the risk of harm issue being of such importance, I do not propose to address further the additional considerations set out in S60CC(3), but they will remain important at the final hearing.
133. The orders made will secure the result, at least on an interim basis, that the children’s split living arrangements will be replaced by one in which they are again together.
134. The final determination of the parties’ applications for parenting orders in this matter would be assisted by the further report of Mr S and the involvement of an independent children’s lawyer.
135. The matters addressed in these reasons explain why parenting orders were made on an interim basis that addressed the arrangements that should be made for these children.