Ames & Caddy (No 4)
[2024] FedCFamC1F 797
•30 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ames & Caddy (No 4) [2024] FedCFamC1F 797
File number(s): BRC 2566 of 2022 Judgment of: BAUMANN J Date of judgment: 30 October 2024 Catchwords: FAMILY LAW – PARENTING – Interim hearing – Where the Court had previously made interim orders for both children to live with the father and spend no time with the mother – Interim orders made for the children to spend supervised time with the mother and for the father to have sole decision making responsibility Legislation: Family Law Act 1975 (Cth) Cases cited: Ames & Caddy (No 2) [2024] FedCFamC1F 219
Ames & Caddy (No 3) [2024] FedCFamC1F 725
Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 18 October 2024 Place: Brisbane Counsel for the Applicant: Mrs Bassano Solicitor for the Applicant: 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:
30 OCTOBER 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That interim Orders 2, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 remain in full force and effect save to the extent that the Court now orders the children, X born 2013 (“X”) and Y born 2014 (“Y”) (“collectively the children”) to spend time and communicate with the Respondent mother.
2.That the Applicant father shall have sole short-term and major long term decision making responsibility for the children.
3.That within forty-eight (48) hours of the father making a major long term decision, he shall give the mother written notice by email of the nature of the decision.
Time with mother
4.That the children shall spend time with the mother supervised by and taking place at P Contact Service (“the Service”), for two (2) hours each alternate weekend at the times and on the day the Service can accommodate for the family, on the following basis:
a.Within seven (7) days the mother and father shall complete the required intake process with each parent to be responsible for the costs of process of their intake; and
b.The costs of supervision shall be shared equally by the parents.
5.That the Independent Children’s Lawyer be granted leave to provide such information as may be appropriate to the Service.
6.That the children shall communicate with the mother by telephone or video service at 6.00pm each Wednesday for up to thirty (30) minutes, commencing 6 November 2024, on the following basis:
a.The mother shall initiate the call to a mobile service established by the father with the father to advise the mother of the number of the service by 4.00pm on Monday 2 November 2024;
b.The father shall ensure the children are available to receive the call from the mother, and that the device is charged and in a mobile reception area;
c.Noting the restraints set out in this Order, the father is permitted to observe and hear the telephone or video interaction between the children and the mother, and the father shall not interrupt the connection unless he has a reasonable belief that the mother is making comments to the children contrary to the restrictions imposed by this Order;
d.If the father has formed a view that the mother has failed to comply with the terms of the restrictions, then he shall be at liberty to cease that call as politely as possible; and
e.The calls shall not be recorded by the parents or the children.
Restraints
7.That when the mother is interacting with the children either physically at the Service or by telephone or video, the mother is restrained from:
a.discussing these proceedings; the events which caused police intervention or any other adult issues, with the children, or in their presence; and
b.making any hurtful or denigrating comments about the father, the father’s partner or the father’s family to or in the presence of the children.
8.That the father shall ensure he likewise does not, when the children are in his care:
a.discuss these proceedings; the events which caused police intervention or any other adult issues with the children, or in their presence; and
b.make any hurtful or denigrating comments about the mother or the mother’s family, to or in the presence of the children.
Other orders
9.That the Independent Children’s Lawyer is excused from meeting with the children as is prescribed by s 68LA(5A)(a) of the Family Law Act 1975 (Cth).
10.The Independent Children’s Lawyer shall have liberty to apply to have the matter re‑listed if absolutely necessary.
11.That these proceedings be adjourned for Case Management Hearing at 9.30am on 23 January 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
Final hearing
12.That these proceedings be set down for Final Hearing for not more than four (4) days commencing at 10.00am on 31 March 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
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).
REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
These interim parenting proceedings have been the subject of two significant interim decisions by me relating to two boys, X, born 2013, now 11 years of age and Y, born 2014, now 10 years of age. Particularly:
(a)13 March 2024, when I ordered that the boys live in separate homes (see Ames & Caddy (No 2) [2024] FedCFamC1F 219); and then
(b)9 September 2024, when I moved the residence of X to the father, such that the children now live with him (see Ames & Caddy (No 3) [2024] FedCFamC1F 725).
On 9 September 2024, as the Reasons which have now been published reflect, I provided the mother with a further opportunity to provide further evidence. I also invited the Independent Children’s Lawyer, Ms Berck, to obtain information about further forensic reports and availability of those reports.
Further material was filed between 9 September 2024 and 18 October 2024 as follows, all of which has been considered:
(a)The father’s case outline filed 10 October 2024;
(b)Affidavit of the father filed 10 October 2024;
(c)The mother’s case outline filed 11 October 2024;
(d)The mother’s written submissions attaching copies of Q School notes of March 2024; April 2024; May 2024 and August 2024;
(e)Affidavit of the mother filed 11 October 2024 (188 pages including annexures);
(f)The Independent Children’s Lawyer’s case outline filed 15 October 2024;
(g)Affidavit of Dr J filed 4 October 2024 attaching formally her report dated 7 August 2024 which was before me for the decision on 9 September 2024; and
(h)Further school records tendered by the Independent Children’s Lawyer and marked Exhibit 1.
COMPETING PROPOSALS
At page of her recent case outline, the mother sought a suite of orders, in particular that both children live with her; that she has sole decision-making responsibility; that the children spend time with the father as per previous Orders or as per the children’s wishes. Furthermore, the mother seeks orders related to travel overseas back to the United Kingdom where extended maternal family reside.
The father and the Independent Children’s Lawyer seek that the Orders made on an interim basis of 9 September 2024 continue until trial, save that the father have sole decision-making responsibility on an interim basis. These Orders do not permit the children to spend time or communicate with their mother.
For context, the following further matters have been considered from the material:
(a)At the further hearing on 18 October 2024, the Independent Children’s Lawyer informed the Court that Consultant Psychiatrist, Dr R, was available to undertake fresh psychiatric assessments of the parties on 31 October 2024, and that a new family report would be prepared, with interviews with a new report writer scheduled for 6 November 2024. The Court expresses its gratitude to both the Independent Children’s Lawyer and Legal Aid Queensland for both funding and arranging these new reports so quickly;
(b)After the interim hearing on 18 October 2024, further emails were received in chambers, which have collectively been marked as Exhibit 2, namely:
(i)an email from the Independent Children’s Lawyer dated the 23 October 2024 identifying two possible contact centres;
(ii)an email from the Independent Children’s Lawyer dated 25 October 2024 confirming the parents had informed her that they had the capacity to equally share the costs of supervised visits;
(iii)an email dated 24 October 2024 from the mother providing three different options for supervised time and noting the mother’s expression of fact that her current weekly income is $396; and
(iv)an email dated 24 October 2024 from the mother saying that X had “been accepted to NDIS”, as well as making a further (uninvited) submission, asserting the father does not acknowledge the children’s diagnosis and/or has been “obstructing medical care for the children for many years”, an assertion which has been consistently denied by the father.
I have considered the mother’s additional material and submissions which really continue to put in issue matters which can only properly be determined at a trial.
With the efforts of the Independent Children’s Lawyer in obtaining fresh forensic reports, likely to materialise in reports if not by the end of this year, then certainly early in 2025, I am confident this matter can proceed to a final hearing in the week commencing 31 March 2025. I will list the matter for four days in that week before me. The orders I make today, including the usual notations that identify s 102NA of the Family Law Act 1975 (Cth) (“the Act”) applying, with both parents being entitled to seek to activate a grant of aid accordingly if they wish.
With this timetable, the following discussion of the competing proposals applies, adopting the statutory pathway as earlier identified in the Court’s judgment of 9 September 2024, and these Reasons are in short form in circumstances where no issue of principle currently arises.
The orders which I will pronounce today, and which will appear at the commencement of these Reasons once published, combined with the interim Orders made on 9 September 2024, in my view, provide some stability for the children until all matters are considered fully at trial, namely:
(a)whilst I accept the mother is a very passionate advocate and holds strong views about the father’s acceptance of the children’s diagnosis, with NDIS funding now secured based on the mother’s email, it is necessary for one of the parents to have authority to engage with the NDIS and/or fund planner and/or therapists who are funded by that plan. As the children will be living with the father until the trial and where the parents have limited capacity to communicate (in fact, the family report suggests they can hardly talk civilly to each other) on an interim basis, it is in the best interests of the children that the father have sole decision-making responsibility. However, I would not restrain the mother from having the liberty to contact the NDIS and/or the plan manager to keep informed of developments. I am reasonably confident they have managed many situations where a funded patient or child has parents who are separated. As residence is hotly contested at the trial, it is in the best interests of the children that the mother maintains some contact with the health professionals, but in circumstances where the father has sole decision-making responsibility on an interim basis;
(b)the mother’s new material does not cause me to revisit the decision made three weeks ago for the children, on an interim basis, to live with the father. Although I accept the mother disputes the father’s evidence, at paragraphs 14 to 25, he deposes to events since 9 September 2024, including what he says are attempts made by the mother (allegedly) with an agent or another mother to contact the children. Whatever might turn out to be the situation at trial, the father says he is maintaining regular contact with the children’s school;
(c)at paragraphs 26 to 37, the father deposes to his management of the children in his care (including creating a “family safety plan” in the form of a contract) and how the children have settled in his care, have continued to attend school and maintain therapy with Dr J;
(d)the mother’s lengthy affidavit is understandably a precise critique and criticism of the report of Dr J, which was so influential to the Court on 9 September 2024. I explained to the mother she will, of course, have the opportunity to cross-examine Dr J at the trial. No doubt the Independent Children’s Lawyer will acquaint, as she should, Dr J with the criticisms, both as to fact and opinion raised by the mother, so that Dr J is in a position to consider those matters before the final hearing; and
(e)the mother strongly asserts that Y has been “self-harming”, and that X is also at risk in the father’s care. She seeks to rely upon numerous school records, but they do not establish what the mother currently asserts, in my view. In submissions, the mother referred to comments made to her by teachers at the school, which she says are highly supportive of her and highly critical of the father.
I accept the school has been placed in the invidious position of trying over many years to navigate the difficult relationship between these warring parents. However, it seems to me that the school is truly focused on the children’s best needs when at school, has now engaged with the father and is likely to do whatever they can to support the children at school, consistent with Orders made by the Court that has authority to make such orders. It has to be accepted that the school authorities did not have the same extensive material as does the Court to make decisions about where the children live and what time they might spend with their mother. They may be unhappy with the Court’s decision, but that is not their role.
THE ESSENTIAL DISPUTE TO BE DECIDED
I have reached a conclusion that on the current untested evidence, it is in the best interests of the children to spend time with their mother rather than to spend no time at all. In reaching this conclusion, I do not ignore the risks identified by Dr J. They are relied upon heavily by the Independent Children’s Lawyer and the father.
However, the boys’ history of care since their birth has involved the mother as primary carer, or at least a substantial carer until March 2024, and is reflected in earlier final parenting Orders made by the Court in September 2020. It is not in the boys’ best interests to spend no time with their mother, but the safety issues and risks are able to be, in my view, ameliorated by, on an interim basis, the time being spent in a supervised facility.
To the extent that the mother relies upon the report dated 4 October 2024 of Ms S, her treating Psychologist, to establish that there are no risks associated with her past behaviour or comments, even Ms S identified at paragraphs 49 and 50 some limitations on the report to which could be added; little to no awareness of the psychiatric report of Dr M, the recent family report opinions of Ms L and the report of Dr J.
If the mother does continue to engage Ms S therapeutically, which is a matter completely for her choice, that would likely provide support to the mother as the matter progresses to trial. It is not remotely possible to attempt to replicate in a supervised environment with limitations as to time and surroundings, which is a usual consequence, that which the mother enjoyed with the children when they lived with her. The Independent Children’s Lawyer asks that the contact centre should have “CCTV or equivalent video surveillance” so as to protect the children from the mother engaging in “non-verbal” communications. With children at this age, considering the limited time that will occur, I do not regard such surveillance as imperative.
The options for supervised time suggested by the Independent Children’s Lawyer after intake would amount to a cost of between $150 to $175 an hour. On the mother’s asserted income, it does not appear the mother can meet her share of that cost if it were to occur more than one hour a week. In the circumstances where I believe at least two hours is the appropriate length of time initially, and where to ensure as much stability is created in their current living arrangement with the father, the Court will order visits be fortnightly for two hours.
I adopt the Independent Children’s Lawyer’s proposal of P Contact Service where the intake fee is slightly less. I would expect time to occur as soon as possible after intake is completed, as appears to be possible. I have considered whether, with physical visits limited to alternate weekends, it is in the best interests of the children to incorporate any telephone communication orders. These will be difficult to monitor and if the father does so, concerned as he is about what the mother might say, this has the potential to create some discomfort for the children. Ideally, children of this age should be able to speak to a parent privately. Trying to balance all these issues, I have decided that the mother may initiate one telephone phone call/video call a week, each Wednesday at 6.00pm for no longer than 30 minutes.
The father seeks additional restraints and injunctions to those contained in order 12, particularly relating to school camps and other school or extracurricular activities. His Counsel expressed a fear that there is a chance that the mother might try to remove the children from the school authorities, even on school camp. The current injunctions, which will continue, will prevent that occurring. If the mother seeks to breach those orders, no doubt the Court will be informed as the Independent Children’s Lawyer will have liberty to apply.
I am not, however, at this stage, persuaded to extend the injunctions in the way suggested by the father.
I will list the matter for a case management hearing at 9.30am on 23 January 2025 to review the readiness for the final hearing and to make trial directions. Hopefully, by that stage, any lawyers retained under the s 102NA cross-examination scheme will have been appointed, and the mother will have briefed them. Also, the two fresh forensic reports from the Consultant Psychiatrist and the report writer will be available. For the Reasons which I now deliver, I find that the orders which I publish today and are now found at the commencement of these Reasons, are in the children’s best interests.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 22 November 2024
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