Ames & Caddy (No 3)
[2024] FedCFamC1F 725
•9 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ames & Caddy (No 3) [2024] FedCFamC1F 725
File number(s): BRC 2566 of 2022 Judgment of: BAUMANN J Date of judgment: 9 September 2024 Catchwords: FAMILY LAW – CHILDREN – Where the Court previously ordered the two children to live in separate homes, with no prescribed order for them to have time with each other, or the other parent with whom they did not live – Issue of alleged sexual abuse of the younger child by the older child – Specialist report obtained – Both children to live with the father until a final hearing Legislation: Family Law Act 1975 (Cth) ss 60CC Cases cited: Ames & Caddy (No 2) [2024] FedCFamC1F 219 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 9 September 2024 Place: Brisbane Solicitor for the Applicant: Mr Noble, James Noble Law Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Ms Berck, 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:
9 SEPTEMBER 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the report prepared by Dr J dated 7 August 2024 be forthwith released to both parties.
2.That the children, X born 2013 and Y born 2014 (“the children”) live with the father.
3.That the father collect both children from the Court Children’s Service section of the Court today.
4.That the mother be restrained from attending the Court Children’s Service section of the Court today.
5.That the children spend no time and have no communication with the mother.
6.That the Independent Children’s Lawyer be granted leave to provide to the mother’s recently retained therapeutic support/psychologist at N Psychologists, a copy of:
(a)the psychiatric report prepared by Dr M dated 25 August 2023;
(b)the family report prepared by Ms L dated 13 February 2024; and
(c)the risk assessment report prepared by Dr J dated 7 August 2024.
Explanation of these Orders
7.That within forty eight (48) hours of today, Dr J consult with the children by way of Zoom to explain these Orders.
8.That within forty eight (48) hours of today, Dr J consult with the father and the father’s partner by way of Zoom in relation to these Orders.
9.That the father meet the costs of Dr J in relation to the consultation in accordance with Orders 7 and 8 herein.
Therapeutic treatment
10.That the father ensure the children continue to attend upon Dr J in accordance with Dr J’s recommendations and for so long as Dr J deems appropriate.
11.That the father bear the costs of the children’s therapy.
Restraints
12.That pursuant to s 68B of the Family Law Act 1975 (Cth):
(a)the mother is hereby restrained from:
(i)collecting the children from school;
(ii)communicating with the children by any means, including but not limited to telephone, social media messenger service or application, or email;
(iii)interfering with or undermining the children’s therapy, including being restrained from lodging complaints against the children’s mental health practitioners, unless with the leave of the Court.
(b)the mother and her agent/s are hereby restrained from:
(i)attending, approaching or entering:
A.the father’s home;
B.the father’s partner’s home;
C.the father of his partner’s place of employment;
D.the grounds of any school that the children may attend from time to time;
E.any after school or extra-curricular activities that the children may participate in from time to time;
F.Dr J’s place of employment and/or treating rooms unless Dr J otherwise provides written consent.
Authorities
13.That Dr J be at liberty to provide all information, including her risk assessment report to other treating specialists treating the father, the mother or the children.
14.That all treating specialists engaged to support the father, the mother or the children shall liaise with Dr J and each other.
15.That the father and/or his solicitors be at liberty to provide a copy of these Orders to and discuss with the principal of the children’s school or its delegate.
16.That these proceedings be adjourned for Interim Hearing at 9.30am on 18 October 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
17.That each party be at liberty to file and serve by no later than 4.00pm on 11 October 2024 any further affidavit they seek to rely upon at the Interim Hearing listed 18 October 2024.
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
As a result of Orders I made on 13 March 2024, the background of which is identified in the Reasons delivered ex tempore but now published and cited (see Ames & Caddy (No 2) [2024] FedCFamC1F 219), Dr J, a consultant psychologist, was appointed by Order 5 “for the purpose of providing a report as to the risks arising from [X’s] recent behaviour.”
The context of that behaviour was criminal conduct, although it seems, not surprisingly, because the age of X (who is now 11 years), has not resulted in any criminal conviction, but there has been access to the restorative justice process. The mother says today that there is a report likely to be available from that assessor by the end of October 2024. As I said, I rely on the earlier Reasons to indicate why, on that day, I made an order that the children, Y born 2014 and X born 2013 (“the children”) actually live in separate homes, and effectively made no prescribed order for them to have time with each other, or the other parent with whom they did not live.
REPORT OF DR J
Exhibit 1 today is a report of Dr J released to the parties today. I take on board that the mother, who is not represented but has had some assistance from a Legal Aid lawyer – for which I am sure she is grateful – would have found this report highly confronting. The mother, not surprisingly and understandably, strongly and steadfastly opposes the recommendation by Dr J that the children be placed immediately into the father’s care.
Dr J talks about there being a moratorium of time for a minimum of three to six months of the children spending any time with the mother. I am not prepared to adopt that recommendation today.
I am satisfied, based on a combination of Dr J’s views, those expressed by Dr M, which were referred to in my earlier Judgment, and the family report dated 13 February 2024, that I must place the children’s safety at this stage at the highest priority. Of course, that is entirely what s 60CC of the Family Law Act 1975 (Cth) (“the Act”) requires.
Section 60CC(2)(a) of the Act asks the Court to consider, even on an interim basis:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
Dr J’s report dated 7 August 2024 is shaped by a limited discussion with the mother. She says one consultation went for 45 minutes. I am prepared to assume the consultation with the father may not have been much longer. What is important, however, is that Dr J has spent at least five sessions, on the mother’s estimation, with the children. Dr J had collateral information being, the psychiatric assessment of Dr M dated 24 August 2023 and a family report of Ms L dated 13 February 2024. The last interview that Dr J had with each of the children alone was on 19 July 2024 (with X) and on 18 July 2024 (with Y).
It is apparent from the mother’s submissions today that she believes there are things recorded by Dr J in the report as having been told to her by Y and/or X that are different than what she believes is the fact or that the children have told her. For example, the mother today indicates that she has information from the school teacher, perhaps a supply teacher, that as recently as the last three weeks, Y has been self-harming. Mr Noble, solicitor for the father, on instructions from the father and from the bar table, says the father is not aware of any such self-harming behaviour.
I am conscious that a very extensive response to a subpoena issued by the Independent Children’s Lawyer in March this year to Education Queensland, something over 500 pages, has been produced. The mother has spent some time reading a lot of that subpoena material but does not say she has read all of it yet. My impression is that the father’s solicitor has not read much of it at this stage. It is unclear how many of the documents produced pursuant to the subpoena, the Independent Children’s Lawyer has read. Be that as it may, as has been apparent from today’s exchanges with the mother, a fresh subpoena should be directed to the department to pick up records since the last subpoena was issued is important, as the mother says there are current issues of great concern.
Whilst Dr J is highly critical of the mother, she also raises whether or not there has been a proper diagnosis or any diagnosis of the children’s alleged condition of Autism Spectrum Disorder (ASD). The mother today provided the Court with a copy of a letter from Dr O dated 26 April 2024, addressed “to whom it may concern”, whereby Dr O, who appears to be a paediatrician, indicated that X fulfils diagnostic criteria for ASD at level 2. This letter has, the mother says, been used to support an application to NDIS for funding which is still in the process of review.
The mother says that it is her understanding that Y may have been diagnosed with ADHD and potentially ASD, but I have no evidence about this at this time.
As the Reasons I delivered orally on the last occasion make clear, these parents have been in conflict almost entirely since the parties separated in April 2019. There is significant material and subpoenaed evidence. The matter needs a trial. Between now and 16 October 2024, when the matter returns to me, I will be considering how quickly this matter can get a trial, although there are at least two impediments apart from the evidence the parties will produce that I would invite the Independent Children’s Lawyer to consider, namely:
(a)preparing and obtaining, if possible, an updated or new psychiatric assessment of the parties as Dr M has, since the preparation of his report, retired from practise and, as I understand it, is no longer available for cross-examination; and
(b)secondly, whether an updated family report would be assistance, noting that the report from Ms L dated 13 February 2024 related to interviews some time before then.
It is unlikely this matter could be ready for trial, with those two reports, if necessary, being available until the first part of 2025.
POSITIONS OF THE PARTIES
So, what do we do today?
The Independent Children’s Lawyer, supported by the father, asked me to make, on an interim basis, the orders set out in Exhibit 2, which are effectively:
(a)that the father have sole short and long-term decision-making responsibility for the children; that the children to live with the father and effectively he collect them from the Court Children’s Services today; and that the children shall spend no time with the mother;
(b)at paragraph 5, that a moratorium continue for at least a period of six months, during which time the mother is to obtain a report about certain matters, as outlined in the report of Dr J;
(c)the father is required to ensure the children continue to attend Dr J in accordance with her recommendations and to bear the costs of that therapy;
(d)at paragraphs 10 to 14, a number of restraints which are directed towards ensuring the parties do not come into contact with each other or that the mother seeks to contact the children; and
(e)by paragraph 15, Dr J is to be asked, on the Independent Children’s Lawyer’s minute, to explain these orders to the children via Zoom, and to then have a consultation with the father and his partner, Ms F, who is currently not living in the home, as soon as possible.
As I say, the father supports that order. The mother does not support the order. She says that the child, Y, who has been living with the father since the Orders of the 30 March 2024, and has not spent time with the mother or brother, other than it seems coincidentally at school, is highly traumatised and suffering bouts of self-harm. It is, of course, to be recalled that Y was the alleged “victim” of the actions of his older brother, X.
The circumstances of how those proceedings came to the attention of the father and to the police have already been dealt with in my earlier Reasons. Dr J’s report makes it clear that the father and mother have a different view about how that matter should have been dealt with, in their children’s best interests.
The concern with the order being proposed by the Independent Children’s Lawyer, supported by the father, that X returned to the father’s care today is how can the Court be satisfied that the behaviour that caused the children to be separated will not occur again?
In that regard, the mother says there is now a lot of evidence that a child, said to be a named child who is a neighbour of the father’s home, has been sexually abusive of one or the other of these children. I infer from what the mother says today that she blames the father for allowing that behaviour to occur in the proximity of his home. It is to be fair that the father, relying on a video that was taken in which the mother appeared to be present, although I have not seen the video, is critical of the mother allegedly doing nothing when her boys were involved in inappropriate sexual engagement. All these facts are facts which will have to be determined at a trial. However, I am not today able to ignore, as the mother would ask that I do, the recommendations of Dr J. I accept the mother will want to cross-examine Dr J and a number of other witnesses.
I accept the mother says there is more evidence that makes the decision today inappropriate. She sought an adjournment. These Reasons will reflect that I refused the application for adjournment because in my view, the report of Dr J requires critical actions by the Court.
However, I am not prepared to allow that decision today to extend before I have a chance to review the matter on 18 October 2024 at 9.30am. That should give both the father and the mother an opportunity, and I will so direct they do so, by close of business on 11 October 2024, to file any further affidavit upon which they will seek to rely at the further interim hearing to be conducted on 18 October 2024. However, in view of the contents of the Dr J report, I am prepared to order on an interim basis today, until 18 October 2024, the change of residence.
I am not going to today direct what the mother’s treatment should be, but I would implore her and invite her, if possible, to put to the Court before the next occasion any initial report from her new psychologist, having read the other expert reports, which I know the mother challenges, to see whether or not a treatment plan has been determined.
I can make it clear, notwithstanding what seems to be some serious criticism of the mother by Dr J, that on the next occasion I will be looking at how these children, if they continue to live with the father after 18 October 2024, can connect with their mother safely until a trial. Moratoriums that are often ordered by the Court should, in my view, generally only be ordered if the effect of the moratorium was to have some discernible effect upon the behaviour of the parent who is not spending time with the children, or on balance, support the children.
The mother of course says, and her new treating psychologist may well confirm, that there is nothing that the mother needs to change about her approach. I have an open mind to that, subject to the evidence that might be produced by the mother, and I invite her to put that evidence before the Court.
DECISION MAKING
I return to the issue that the mother understandably again opposes, and that is a request that the father have sole responsibility for short and long-term decision-making. I do not propose to make any orders in relation to decision-making today. I will review that matter on the 18 October 2024. There is no evidence before me that any precipitous, major decision needs to be made for these children. I have dealt with the therapeutic support from Dr J.
The mother’s refrain is that only she can ensure the children have the treatment they need to deal with their diagnosed conditions. She says that the father has opposed proper treatment of the children insofar as she says it has been the subject of intervention by him or prevention by him. When I have seen more sufficient evidence about these issues, I will return to the issue of decision-making for what will be a slightly longer period than 18 October 2024, bearing in mind that I would hope on 18 October 2024, with the benefit of any information from the Independent Children’s Lawyer about the availability of new forensic reports, to give the parties a trial date for this matter.
I do note in this matter, of course, that the parties are entitled to a grant of legal aid under the cross-examination scheme, but only for a trial, to the extent that the mother is unrepresented now and may not have the funds to obtain private representation that will be cured for the trial with a grant under s 102NA of the Act.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 5 November 2024