Ames & Caddy (No 2)
[2024] FedCFamC1F 219
•13 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ames & Caddy (No 2) [2024] FedCFamC1F 219
File number(s): BRC 2566 of 2022 Judgment of: BAUMANN J Date of judgment: 13 March 2024 Catchwords: FAMILY LAW – INTERIM – CHILDREN – Where two siblings are to live with each parent on an interim basis until specialist report is prepared – Issue of sexual abuse of the younger child by the older child – Where the children’s residence is separated Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 13 March 2024 Place: Sydney Solicitor for the Applicant: James Noble Law Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Berck Solicitors ORDERS
BRC 2566 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AMES
Applicant
AND: MS CADDY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
13 MARCH 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That all previous parenting Orders be suspended.
2.That, if necessary, the Court grants the Independent Children’s Lawyer a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) to produce documents to this Court, including documents from another court, involving the children.
3.That the child, Y born 2014 live with the father from after school today.
4.That the child, X born 2013 live with the mother.
5.That the parents and the children attend upon Dr J as and when requested by Dr J for the purpose of providing a report as to the risks arising from X’s recent behaviour.
6.That leave is granted for the Independent Children’s Lawyer to provide Dr J with all relevant documents.
7.That the father be responsible for the costs of Dr J for the attendance of the children and his attendance.
8.That the mother shall be responsible for the costs of Dr J for her attendance.
9.That both Y and X (collectively “the children”) not spend time with each other until the risk report is completed.
10.That both parents be restrained, and an injunction hereby issues restraining the parents from taking Y to participate in the Restorative Justice Process, unless recommended by Dr J.
11.That the mother be restrained, and an injunction hereby issues restraining the mother from collecting Y from school today, or any other day.
12.That the Independent Children’s Lawyer have leave to inspect and photocopy the documents produced pursuant to subpoena by the Queensland Police Service and the Department of Child Safety, Seniors and Disability Services.
13.That the proceeding be listed for further Case Management Hearing on the request of the Independent Children’s Lawyer, after Dr J’s report is filed with the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ames & Caddy has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The parents of two boys, X born 2013 (now aged 11 years) and Y born 2014 (now aged 9 and a half years), finally separated around April 2019. At least until the father commenced proceedings in March 2022, the parents, the father Mr Ames and the mother Ms Caddy, have been strenuously contesting parenting arrangements.
In these urgent interim proceedings, it is not necessary, nor could the Court deal with, every alleged and often denied factual issue between the parties, save that for context the following is recorded.
BRIEF CONTEXTUAL HISTORY
A family report was prepared by Ms C dated October 2022.
A cognitive assessment report on X was finalised on 14 October 2022.
A neuropsychological report on Y was finalised on 20 October 2022.
Suffice to say that arising from those reports it can be accepted that the children have individually some additional needs arising from a provisional diagnosis it seems of ADHD for both children, and perhaps ODD, and other issues as set out at paragraph 7 of the recent family report.
Since at least interim consent Orders by a Senior Judicial Registrar were made on 12 July 2022 (“the July 2022 Orders”), the Court supported, as did initially the father, the children living with the mother, with the father to spend time with the children each alternate weekend and week about during school holidays, all unsupervised.
Within six weeks of the July 2022 Orders, the mother, in a Response to an Application in a Proceeding filed by the father (seeking the children attend counselling), sought orders that the children’s time with the father be supervised.
In January 2023, the father filed a new Application in Proceeding seeking the children live with him, with the children to have supervised time with the mother.
The Applications came before the same Senior Judicial Registrar who had made previous Orders on 2 February 2023. The Senior Judicial Registrar ordered an immediate change of residence, with the mother restrained from contacting the children. The children immediately moved to the care of the father. The Senior Judicial Registrar’s Orders did not appear to prescribe any physical (even supervised time) to occur between the children and the mother. It was apparent from the Order that the Senior Judicial Registrar was aware a psychiatric assessment was being arranged with consultant psychiatrist Dr M.
The mother filed an Application for Review of the Senior Judicial Registrar’s decision, and after a hearing before a Division 1 Judge on 9 March 2023, McGuire J discharged the Order made for change of residence by the Senior Judicial Registrar and reinstated the Order of 9 September 2020 (for the children to live with the mother and have unsupervised time with the father).
EXPERT EVIDENCE
Dr M, as I say, a consultant expert psychiatrist, assessed both parents and published a report on 25 August 2023. I accept this evidence is untested, however the report raised some concerns about the mother’s mental health and described the mother’s prognosis as guarded because the mother:
…has accessed extensive counselling but remains symptomatic and impaired to be able to develop a child focused mode of function.
This means she needs to be able to resolve her preoccupation with issues concerning the father and to function better in a post-separation parenting plan.
I make it clear to the parties that the Court has not made a finding that it accepts this opinion about the mother expressed by Dr M, but for context, the expert opinion is noted.
The Court expert Dr M did not hold any concerns about the father, describing his prognosis as good.
This report of Dr M was part of the data considered by social worker Ms L who interviewed the parents and X (Y did not wish to be interviewed), and observed in her family report dated 13 February 2024 the children with each parent. Ms L opined, at paragraph 77, that, “there is a clear indication that both children are struggling and at risk of continuing to deviate from a healthy trajectory if their mental health and emotional needs are not addressed”.
X was identified at paragraph 81 as demonstrating a high level of protectiveness towards his mother.
Interestingly, the interviews that were conducted for the report on 9 January 2024 did not refer to any behaviour of X or of any pending police action against X at the time of the interviews. That is consistent with the parties’ evidence.
The recommendations of the family report writer can be found at paragraphs 90, 91 and 92 of the report, where the report writer says:
90.That the children live with one parent and spend every second weekend with the other parent.
91.That the primary parent should hold sole parental responsibility for both children.
92.The parent who [Y] and [X] live with will, in the writer’s opinion, hinge upon the court’s views about the validity of two issues: [Ms Caddy’s] willingness and ability to encourage and facilitate a relationship between the children and their father, and [Mr Ames’] capacity to prioritise and address his children’s needs over any feelings he might have towards [Ms Caddy].
The proceedings were on track for a case management hearing before me later this month after Alstergren CJ had ordered it to come to me as the case management Judge for Queensland. I had, as the parties know, delayed that case management hearing until the family report had issued.
WHAT HAS OCCURRED TO PERSUADE THE INDEPENDENT CHILDREN’S LAWYER TO SEEK AN URGENT INTERVENTION AND INTERIM HEARING IN THIS MATTER CONDUCTED TODAY?
On 26 February 2024, the father filed an Application in Proceeding seeking on an interim basis that both boys live with him, and for both boys to attend upon a psychologist as soon as possible.
The father’s affidavit in support deposes to events over the weekend of early 2024, which culminated with X being charged with the following offences:
(a)In mid-2023, X made child exploitation material, namely a video;
(b)In early 2024, X possessed child exploitation material; and
(c)In mid-2023, X assaulted his younger brother Y.
Exhibit 1 tendered today by the Independent Children’s Lawyer is a copy of the notice to X to attend a restorative justice process under section 22 of the Youth Justice Act 1992 (Qld).
In early 2024, X had signed the notice and had admitted to committing the offences.
The father’s evidence is that the subject video was filmed at the mother’s home, and the mother can be seen to enter the same room. The father describes the video as depicting how the children’s behaviour “deteriorates in a sexual manner”. He says Y can be heard “screaming”. The video shows around three minutes of filming. The Court has not yet viewed these videos. The father immediately reported the behaviour to police and an officer from the Department of Child Safety spoke to the father’s partner Ms F on two days in early 2024.
The children were subsequently interviewed by police in early February and X was then charged.
In February 2024, the father’s solicitors informed the mother, who is currently not legally represented, that the father was withholding the children. However, the mother (consistent with the current Court Orders) ultimately collected the children from their school a day or so later.
Although the father’s affidavit and his evidence about protective measures was shaped by his application that both boys live with him on an interim basis, at today’s interim hearing he consented to X remaining with the mother with Y coming into his care today. It was also agreed that counselling with Dr J commence urgently – a possibility only facilitated by the efforts of the Independent Children’s Lawyer, for which the Court is appreciative.
The mother, in a Response filed yesterday to the father’s Application in the Proceeding, seeks the children live with her; spend every second weekend and some school holidays with the father, and that the children be permitted to travel to the United Kingdom to meet their family in late 2024 – apparently, this may be a new issue, but I have not been able to ascertain whether that is the case or not.
The mother’s self-prepared (and handwritten) affidavit, which is legible, in respect of the current critical issue:
(a)complains that the father did not include her in any discussions about the videos, and the first she knew of the issue was when informed by police;
(b)expresses concerns that the father did not convey to the police details of the children’s behavioural diagnoses;
(c)that the criminal lawyer retained by the father (or his brother) in this matter has not spoken to the mother or the Independent Children’s Lawyer;
(d)that the father withheld the children contrary to the current Court Orders;
(e)suggests that “the children have made sexual natured disclosures to me regarding another child that they play with” at the father’s home. I can see no mention in the family report of this disclosure and/or this allegation raised by the mother. It may be there, but my quick reading of the report failed to reveal it quickly;
(f)the police intervention was traumatising for X, a child with disabilities;
(g)raises long term concerns about the father’s role in having medical professionals engaged to either diagnose or treat the children; seeks the father be deemed a vexatious litigant; refers to the intention of the Department to look at the father’s behaviour in withholding the child but acknowledges that the Department told her they do not investigate this “type of thing”. That is presumably the criminal behaviour of X.
The mother’s oral submissions oppose the Independent Children’s Lawyer’s proposal to separate the siblings on an interim basis. Her position on an interim basis is now supported by the father.
Currently, in my view, although this may be explained in the passage of time, there appears to be little comment or reference by the mother in her affidavit to the effect of X’s admitted behaviour on his little brother Y – although in her submissions, one of the mother’s concerns is how separation of the siblings might cause a difficulty in their sibling relationship, one acknowledged by the report writer to be close and warm. She expressed concerns that separation may cause Y to blame X or himself, and that X might suffer guilt or emotional harm dealing with the recent events if the siblings are separated.
DISCUSSION
Y needs to be protected by the potential harm that could arise from any repeat of the behaviour X has admitted to undertaking with his brother. The mother says she can do so if both boys live with her and says that the allegations of the father that X’s actions occurred, with either her knowledge or without her being vigilant, are untrue.
Separation for a period until a better assessment of the situation is undertaken is, in my view, as the Independent Children’s Lawyer contends, compelling. The test to be applied is the best interests of the children. Section 60CC(2)(b) of the Family Law Act 1975 (Cth) requires the Court to give greater weight to the risk to a child.
I accept there may not be ultimately a future risk to Y and/or to X, but these criminal charges are significant and the behaviour is potentially very concerning to the future development and welfare of both boys. That it has been possible to engage on an urgent basis the specialist therapeutic services of Dr J, gives the Court some enormous comfort today. She is well‑equipped to assess how the recent events have or could both affect X and Y, and importantly, as the mother has identified, their relationship.
I am not persuaded, as the mother submits, that the Court should not make orders until newly issued subpoena are returned or the Department’s interviews tomorrow are conducted of the parents. The apparent focus of those discussions has already been identified by the mother. They are not likely to deal with the serious criminal behaviour that has been uncovered. To the extent that the mother says that perhaps the Court should wait until the Department has conducted their investigations, that would be to encourage the Court not to exercise the jurisdiction which it is seized of. In my view, it should exercise that jurisdiction.
It is in the best interests of both X and Y that, on an interim basis, they live in separate homes. It is not possible to understand how that should change in the future at this point in time. As indicated, the report of the family report writer was, effectively, not to separate the children, but to identify which parent is able on all the evidence to offer the best long-term care.
This matter does need a trial. In my view, however, the matter should return to the Court once an initial report from Dr J has been prepared.
The Court will make itself available at the request of the Independent Children’s Lawyer (subject to normal operational considerations) to hear from the parties once a report from Dr J has been received. This is important because under the current orders proposed by The Independent Children’s Lawyers, which I basically agree to make with some small amendments, there is no ongoing physical or other time occurring from today when the father collects Y from school and the mother collects X from school, either between the siblings or the mother with Y or the father with X.
This is not an ideal situation and should not be allowed to linger longer than necessary to obtain an assessment at least from Dr J.
After I pronounce orders, I will hear from the parties as to the next optimal case management event. The orders that the Court pronounce today, which will be authenticated by the Court as soon as the Court rises today, will be emailed to the parties.
I make the orders which appear at the commencement of these Reasons which I find are in the best interests of X and Y at this time.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 24 May 2024
2
0
1