ANA & ANA

[2013] FamCA 371

FAMILY COURT OF AUSTRALIA

ANA & ANA [2013] FamCA 371

FAMILY LAW – CHILDREN – Child to undergo therapy with a psychologist

APPLICANT: Ms Ana

RESPONDENT: Mr Ana

INDEPENDENT CHILDREN’S LAWYER: Mr B Sayer

FILE NUMBER: MLC 1367 of 2008

DATE DELIVERED: 2 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: TJ Mulvany & Co

Orders

IT IS ORDERED THAT:

1.The parents do all acts and things necessary to cause the child E born … February 2006 to undergo therapy with Mr F, psychologist, such therapy to address the child’s current emotional and psychological needs in a manner that might permit, but not require, the child to consider re-establishing a relationship with the father, including spending time face to face with the father, in the future. 

2.The final hearing fixed for 3 June 2013 (estimated to take 5 to 10 days) be vacated and in lieu thereof the matter be fixed for hearing before me to commence at 10.00 am on 19 August 2013.

3.Paragraph 13 of the Order made on 31 January 2013 be varied so that the further family report be published by not later than 8 July 2013.

4.This matter be listed for mention before me in Court on Thursday 25 July 2013 at 9.00 am for the purpose of directions for trial NOTING THAT the parties are required to have given thorough consideration to the further family report and be in a position to specify with precision what parenting order they seek be made at the final hearing.

5.IT IS REQUESTED THAT the independent children’s lawyer write to Mr F specifying what documents or things he asks Mr F to have regard to in the course of the therapy and a copy of all such correspondence be provided contemporaneously to the other parties to the proceedings and there be liberty to apply to me for orders to resolve any dispute in relation to materials which Mr F is requested to read.

6.The independent children’s lawyer be responsible for providing a copy of this Order to Mr F and a copy of my reasons for decision, when published.

7.For the avoidance of doubt, the family consultant may confer with Mr F as to the general progress of the child E’s therapy.

8.I reserve liberty to each of the parents and the independent children’s lawyer to have this matter re-listed for further directions on proper notice and the provisions of paragraph 7 of the Order made on 31 January 2013 continue in full force and effect.

9.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ana & Ana has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1367 of 2008

Ms Ana

Applicant

And

Mr Ana

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1.This matter came before me on 8 March 2013 for determination of whether I should order that E, (“the child”) who is seven years old, attend therapy as recommended by a family consultant, Mr G, prior to the final hearing of the parenting proceedings which is currently listed to commence before me on 3 June 2013 estimated to take five to ten days.

2.The independent children’s lawyer and the father support the immediate establishment of therapy. The mother opposes therapy.

3.The therapy proposed is to be provided by Mr F, psychologist, and is to address the child’s emotional and psychological needs in a manner that might allow him to consider re-establishing a relationship with the father in the future. The therapy is not to be linked to or to be in anticipation of a resumption of face to face time between the father and the child but, rather, is to focus on addressing the child’s current emotional needs which, the family consultant assesses, are acute.

4.This matter proceeded with all parents having an opportunity to cross examine the family consultant and doing so. No party sought to adduce viva voce evidence or to cross examine the other. Each party made submissions although the father largely adopted the submissions of the independent children’s lawyer.

5.I have had regard to the parents’ current evidence. I have also had regard to older documents on the file including the reasons for judgment of Riley J delivered on 4 September 2009, the reasons for judgment of Cronin J on 11 October 2011, and the transcript of proceedings before Bell J on 21 February 2012. I understand that these older documents are not exhaustive of all relevant facts. However the parents have referred to previous determinations and I sought some relevant historical context against which to view the application about therapy for the child.

6.At the conclusion of the hearing, I informed the parents that I would deliver my decision as soon as practicable, having regard to the time that I would be out of the Registry, together with my reasons for decision or that my reasons may be published subsequently. I reserved my decision and excused all parents from attending court. On 2 April 2013 I pronounced the Order set out at the beginning of these reasons. These are my reasons.

The parents

7.The father, Mr Ana, was born in Australia in 1957. He is 55 years of age and lives with his elderly parents, Mr and Ms Ana Snr. Mr Ana was previously employed as a driver but has been unemployed for some time. Mr Ana is not receiving any social security benefits.

8.The father is self represented.

9.The father is clearly frustrated and aggrieved that he has not spent time with the child for more than two years. On the earlier occasions before me (31 January 2013 and 18 February 2013) the father was prone to outbursts and spoke pejoratively of judicial officers and the Court. He commenced to do so again on this occasion but then, wisely, desisted. The father displays little sense of how his various strategies and behaviours may have worked against him in his quest to be reunified with the child and to have the child reunified with his paternal family which includes, but is not limited to, the child’s paternal grandparents.

10.The mother, Ms Ana, was born in European Country H in 1971. The mother is 41 years of age and lives on a rural property in Town B with the first and only child of the marriage, the child E.

11.The mother previously lived in Asian Country K for thirteen years with her first husband, a local healthcare professional. She has tertiary qualifications in public policy and Asian Country K studies and conducted an education based business while living in Asian Country K. The mother was previously diagnosed in October 2008 with Post-Traumatic Stress Disorder by her treating psychologist, Mr J. By August 2011 however, Mr J was of the opinion that her symptoms of that condition had largely resolved and she was instead suffering from a Major Depressive Disorder.

12.The mother is represented. Ms Thomas has appeared on her behalf at all hearings before me. Ms Thomas appears to have a comprehensive knowledge of the file and a good command of the history of the matter. She has made persuasive submissions including that the mother’s mental state is such that the mother can barely tolerate coming to court let alone deal with the possibility of the father having any positive or ongoing involvement in the child’s life, with or without the child having therapy. I have regard to the evidence of Dr L, medical practitioner for the mother, who deposed on 8 February 2013 that the mother “reports anxiety symptoms whenever she has to travel to Melbourne to attend a court case”.

13.Ms Thomas informed the court that the mother’s financial resources have required her client to seek accommodation in rural Victoria. I am left with the impression, however, that the mother finds solace and security in being isolated from all but a few friends and that it is quite purposeful that she and the child reside remotely from the father.

Historical context

14.The court file now comprises 12 volumes (147 folium) not counting a separate file for proceedings between the parents which have been before the Appeal Division of the Court. I will endeavour to set out some of the history, as I understand it or which relates to my involvement since 31 January 2013, before dealing with the issue of whether the child should now attend therapy as recommended by a family consultant.

15.The parents met in January 2004 while they were on holiday in Thailand. The mother returned to Asian Country K and the father returned to Australia after the holiday; however they later met by arrangement at holiday destinations on several occasions, usually in Asia. The mother divorced her first husband in June 2005 and the parents married in Geelong in August 2005. The mother then moved to Australia and the parents began living together in September 2005. The child was born in February 2006. The parents lived on a farm they had purchased near Geelong. They separated temporarily several times before separating finally in October 2007.

16.The parents were divorced in 2008.

17.The father commenced proceedings on 15 February 2008 seeking parenting orders in respect of the child who was then three years old. The mother sought a final alteration of property interests, urgent interim spousal maintenance and urgent interim child support. The parenting application was resolved by consent on 17 December 2008 and provided for the child to live with his mother and spend increasing time with the father.

18.The parenting order made on 17 December provided that the father was to spend four hours with the child on the first Sunday afternoon, followed by six hours each Sunday for a period of one month. The father was then to commence spending time with the child for four hours on a Saturday afternoon and six hours on a Sunday each alternate weekend, and four hours on a Monday following the weekend with no time, until 11 April 2009. From 11 April 2009 until the child commenced primary school and conditional upon the father securing his own residence, the father was to spend time with the child on each alternate weekend from 12.45 pm Saturday until 4.45 pm Sunday, and from 1.30 pm until 5.30 pm each Monday following the weekend with no time. Following the child commencing primary school the father was to spend time with the child each alternate weekend from after school on Friday until 4.45 pm Sunday and from after school until 6.30 pm each Monday following the weekend with no time. The consent orders also made provision for special occasions and telephone contact each Wednesday evening.

19.Pursuant to paragraph 2 of the Order made 17 December 2008, the parents have equal shared parental responsibility for the child.

20.Federal Magistrate Riley (as she then was) made final property orders on 4 September 2009 after a hearing of 10 days. Her Honour’s reasons for decision are extensive running to 108 pages (355 paragraphs). The mother appealed against Riley FM’s determination and there followed various interlocutory applications before Riley FM and other members of the Federal Magistrates Court.[1]

[1] On 12 April 2013 and by virtue of the Federal Circuit Court of Australia (Consequential Amendments) Act 2012, the Federal Magistrates Court was renamed the Federal Circuit Court of Australia (“FCCA”) and the judicial officers of that Court are now known  as Judges of the FCCA. Henceforth in these reasons I use the current nomenclature.

21.Before me the father complained that he did not know what had become of the mother’s appeal and his entitlement to be heard in respect of it. My impression is that the father believes, at the very least, that he has not been accorded procedural fairness and, at worst, that judges and officers of the court have conspired with the mother against him with the result that he has been unfairly deprived of the determination which he obtained from Riley J, after some 10 days of hearing. 

22.I must say, the outcome of the appeal was not immediately apparent to me either save that it did not appear to have been dismissed. From a perusal of the file of the Appeal Division it appears that on 2 October 2009 the mother filed a Notice of Appeal (File No. SA87/2009) against the final property orders of Riley J made on 4 September 2009. The mother sought to appeal all of the orders of Riley J in 108 grounds of appeal. On 16 October 2009 Riley J made an order granting a stay of the Order made on 4 September 2009 pending the outcome of the mother’s appeal. On 16 November 2009 the mother filed an Amended Notice of Appeal seeking leave to appeal against the orders relating to child support. On 18 December 2009 the Chief Justice ordered that the appeal be heard by a Full Court of three justices.

23.On 7 January 2010 the mother filed an Amended Initiating Application seeking to vary the stay ordered by Riley J. Her Honour dismissed the mother’s application to vary the stay on 28 January 2010. On 17 February 2010 the appeal (File No. SA87/2009) came before the Regional Appeals Registrar who made directions for the preparation of appeal books. The Regional Appeals Registrar wrote to the parents on 18 February 2010 drawing to the appellant’s attention that, if the appeal books were not filed by 1 April 2010, the appeal would be deemed to be abandoned by application of Rule 22.21 of the Family Law Rules 2004. The mother filed two applications in an appeal on 31 March 2010, one seeking an extension of time for the filing of the appeal books in her appeal against the orders of 4 September 2009 (File No. SA87/2009) and the other seeking an extension of time to file an appeal (File No. SOA22/2010) against the Order of Riley J made 28 January 2010. The mother’s applications came before O’Ryan J on 6 May 2010 and his Honour adjourned the applications on the basis that there was no appearance by either parent.

24.The applications (File Nos. SA87/2009 and SOA22/2010) in both files were relisted for hearing before O’Ryan J on 28 July 2010 who reserved judgment. On 9 September 2010 O’Ryan J dismissed the extension of time application in relation to the appeal against the orders of Riley J made 28 January 2010 and reinstated the mother’s appeal (File No. SA87/2009) against the orders of 4 September 2009 which had been taken to be abandoned. The appeal (File No. SA87/2009) was referred to the Regional Appeals Registrar.

25.No appeal books were subsequently filed by the mother in relation to that appeal. However, an email was received by the Regional Appeals Registrar on 18 April 2011 indicating that the matter had resolved. Ultimately, the matter returned to Riley J on 8 April 2011 at which time her Honour ordered, by consent, that the Order made 4 September 2009 be set aside pursuant to s 79A(1A) of the Family Law Act 1975 (Cth).

26.The mother has not filed a Notice of Discontinuance of her appeal. The father informed me that he did not consent to the orders of Riley J being set aside. To the contrary, he wished to argue that the orders and the findings underpinning the orders, which were critical of the mother, ought to be upheld. I merely record here what is apparent from the court file and what the father states; I draw no conclusions other than to identify a source of the father’s apparent bewilderment and dissatisfaction with the court system. I do not know if what the father says is accurate.

27.Riley J transferred the proceedings to this Court, the Family Court of Australia, on 8 April 2011 on the basis that the matter was complex, both parents were unrepresented, and the hearing was likely to take more than five days. It was, without doubt, a correct assessment by Riley J.

Suspension of father’s time with the child, parenting and financial orders made thereafter

28.Significantly in this case, on 11 July 2011 during a hearing before Cronin J in relation to financial matters and child support, the father stated that he was contemplating committing suicide from the eighth floor of the Court building. The father also made mention of the fact that he had earlier taken the child to the eighth floor of this building to show him what he was going to do. Counsel for the mother then applied for the time between the father and the child to be suspended until further order. Cronin J made orders suspending the parenting Order of 17 December 2008 insofar as it (by paragraph 4) provided for the father to spend limited time and communicate with the child, his Honour being satisfied that there was a real risk to the child. Cronin J also ordered that the father have liberty to apply to resume contact on the basis of an application supported by affidavit, however by that time the father had left the Court.

29.The parents’ equal shared parental responsibility of the child was not affected by Cronin J’s Order of 11 July 2011 and still remains in place.

30.By an Application in a Case filed on 29 August 2011 the father sought that he be allowed to resume contact with the child in time for Father’s Day on 4 September 2011. The father also sought an order that the parents attend mediation and that an independent children’s lawyer be appointed for the child. In his supporting affidavit, sworn on 29 August 2011, the father deposed that he had delayed filing his application while he awaited publication of the Reasons for Judgment of Cronin J in relation to the orders his Honour made on 11 July 2011. The father deposed that, after reading the transcript of the proceeding before Cronin J, he now understood what he had said in Court. The father deposed that his utterances were not what he had intended to convey. The father deposed that his outburst had been brought on by the anxiety and stress he had been experiencing during proceedings and stated that he had not spoken to the child about suicide either in the Court building or at any other time.

31.By an Application in a Case filed by the mother on 21 September 2011, the mother sought sole responsibility for making decisions about the child’s school enrolment for 2012 and beyond. Cronin J made orders on 30 September 2011 adjourning the father’s application filed 29 August 2011 (for a resumption of time) and the mother’s application filed 21 September 2011 (for sole parental responsibility about the child’s education) for hearing by Senior Registrar Fitzgibbon on 17 October 2011. Cronin J also requested that an independent children’s lawyer be appointed as a matter of urgency.

32.Cronin J made an order effecting a final alteration of property interests between the parents on 11 October 2011. Those orders have not been appealed or set aside. Apropos of the parents’ finances, the father says that he has “nothing” and Ms Thomas informs me that what cash reserves the mother has will be devoted to defending these proceedings. I am satisfied that the parents are of very modest means financially.

33.On 17 October 2011, Senior Registrar Fitzgibbon heard and determined on an interim basis the mother’s application for sole parental responsibility in relation to the child’s school enrolment for 2012. On that occasion, the father initially attended court but later left, indicating to the independent children’s lawyer that he did not intend to participate in proceedings. The Senior Registrar ordered that the mother have sole responsibility for determining which school the child was to attend in 2012 for preparatory grade. The Senior Registrar also dismissed all interim applications (which would have included the father’s application filed 29 August 2011 seeking a resumption of face to face time with the child in time for Father’s Day which had passed) and adjourned the mother’s application for sole parental responsibility on a final basis for hearing before Cronin J on 28 November 2011.

34.The mother filed a Further Amended Initiating Application on 24 November 2011 seeking that all previous parenting orders be discharged, that she have sole parental responsibility (not confined just to educational issues), that the father’s time with the child be reserved, that the child be removed from the airport watch list, that the mother be at liberty to obtain a passport for the child and remove him from Australia for not more than three months upon giving the father fourteen days notice, that the mother notify the father of any significant illness or injury impacting upon the child and that the father be restrained from making any application to the Court to vary the orders without first filing a report from a psychiatrist as to his mental health. In her affidavit sworn on 21 November 2011 the mother deposed that she intended to travel to European Country H with the child in order for him to meet his maternal grandparents.

35.On 28 November 2011 Cronin J ordered that the father undergo a psychiatric examination by Dr N.

36.Cronin J made further orders on 9 February 2012 adjourning all outstanding applications for final hearing before Bell J in the week commencing 20 February 2012.

37.Orders were sought by consent and made by Bell J on 21 February 2012 which provided for the suspension of the father’s time with the child to continue, the father to attend upon Dr N or such other professional as may be nominated by the independent children’s lawyer for psychiatric assessment and for the father to be at liberty to send cards and gifts to the child via the Independent Children’s Lawyer. Bell J also ordered the preparation of a family report. Before me, the father stated that he had been assured by Bell J that, if he (the father) obtained a clean bill of health from Dr N, then face to face time between himself and the child would be reinstated. The father’s recollection is not supported by the transcript of proceedings before Bell J. a portion of which reads as follows:

[The father]: But I’m expecting as soon as a clear psychiatric report is done that I will go back to---

His Honour: Well, the matter will go back into court and things will go right through again.

[The father]: ---will go straight back to the situation of unsupervised contact, I’m expecting.

His Honour: It all depends on the report and it depends on the judge…

38.On 16 March 2012, the mother filed a Contravention Application alleging that the father had contravened the Order made by Cronin J on 11 July 2011 which suspended the father’s time with the child. On 25 June 2012 Young J found the contravention proved only insofar as the father had attended the mother’s property in February 2012, waited outside the mother’s house in a friend’s vehicle and then attempted to speak to the child through the window. The explanation given by the father was that it was the child’s birthday and his intention in going to the mother’s property was to deliver presents from himself and from the paternal grandparents. No penalty was imposed on the father other than the recording of a conviction and the further counts alleged by the mother against the father were dismissed. Young J further ordered that the father attend a psychiatric assessment with Dr A and ordered that the preparation of a family report be expedited. Ultimately, the assessment of the family and preparation of the report was allocated to Mr G, family consultant, who is employed in this Registry.

Family Report of Mr G dated 21 September 2012

39.On 21 September 2012, Mr G (to whom I will refer subsequently by name or as “the family consultant”), published his family report. At the time of the interviews for the family report, the child was living with his mother and had not spent any time with his father since approximately July 2011. Mr G noted that despite consent orders of 17 December 2008 providing for equal shared parental responsibility, it seemed that the mother was exercising sole parental responsibility in practice.

40.Mr G noted that he was unable to interview the mother and father together due to the significant history of conflict between them and he was also unable to observe the child with the father due to the child’s adamant refusal to see the father.

41.Mr G described the mother’s presentation as “a significantly distressed person who at various times during the assessment openly wept and appeared as if she was on the verge of being physically ill”. The mother told Mr G that she suffered from anxiety and severe depression, had been diagnosed with post traumatic stress disorder and was prescribed medication for “massive depressive disorder”.

42.Mr G described the mother as being highly critical of the father. Mr G stated that the mother understood that the child was worried about her wellbeing and that the child had previously told the mother that he had to look after her. Mr G observed that the mother perceived herself as not being capable of managing the stresses associated with the child seeing his father.

43.Mr G reported that the mother was either significantly unwilling or unable to promote a relationship between the child and his father or to facilitate arrangements for them to spend time together.

44.Mr G described the father as presenting as “an articulate man who was able to clearly express his views”, albeit sometimes in an “audibly loud and emotionally forceful manner”. Mr G observed that the father sometimes became “highly emotional, as well as physically agitated and distressed” but was otherwise calm throughout the interview and was not threatening or intimidating. Mr G described the father as being highly critical of the Court process and of the mother, who he believed had influenced the child’s views about not wanting to spend time with his father.

45.The child described a positive relationship with his mother to Mr G, who observed that the child was “acutely aware…of his mother’s distress and poor health functioning” and associated “actions by his father as having significantly contributed to his mother’s poor health”. The child told Mr G that ‘Mum says that dad makes her sick’ but also, in seeming contradiction, denied that his mother spoke negatively of his father. Mr G further observed that at the conclusion of the interview the child appeared eager to reassure his mother that he had not seen his father.

46.The father’s proposal at the time of the assessment interview was that he and the child see Mr O, a child psychologist and former counsellor of the child, for the purposes of facilitating a re-introduction of arrangements for him to spend time with the child. Ultimately, however the father wished to return to the arrangements for him to spend time with the child contained within the Order of 17 December 2008 (see paragraph 18 earlier in these reasons).

47.The mother’s proposal at the time of the assessment interview was that the child should not spend any time with his father until she felt better able to cope with the child recommencing spending time with his father, but was unable to specify when that might be. She rejected the father’s proposal on the basis that she and the child now live at Town B which is a considerable distance from Mr O’s rooms and the travelling required would be onerous for her and for the child.

48.Mr G reported with concern the father’s history of not complying with orders and of “making statements and engaging in behaviours that have apparently caused concern and anxiety” for those making decisions about what time he should spend with the child. Mr G noted that the father’s recent attempts to make unauthorised contact with the child had “failed to allay [the child’s] anxiety and distress about his father” and so long as the father continued to denigrate the mother, the child would find it difficult to consider his father in a positive light or be prepared to spend time with him.

49.Mr G expressed reservations about supporting either of the parents’ proposals and was concerned about the high degree of conflict between the parents and their ability to communicate. Mr G suggested the following possible course of action:

1.For [the father] to write a letter to [the child] explaining the circumstances surrounding the removal of the dog from his care. The letter could also include an expression of apology for what has occurred in the past in respect of his mother and a commitment to his son not to repeat these mistakes in the future. It would also be appropriate for [the father] to provide [the child] with an assurance that he would not attempt to make unauthorised contact with him.

2.For [the father] to attend counselling to assist him to address the areas of his functioning that have created difficulties within the father/son relationship.

3.For [the child] to attend counselling [with Mr O or another counsellor] so that his views about his father, his anxieties about his mother, and the tensions created by the current parental dispute can be further explored and understood in a manner that might allow him to consider re-establishing a relationship with his father in the future.

4.For [the mother] to continue her regime of counselling and medication to assist her to better manage the stresses in her life.

5.For the INDEPENDENT CHILDREN’S LAWYER, within a reasonable timeframe, to review with [Mr O] and [the mother’s] counsellor, whether [the child] and his mother would be able to manage a resumption of the time that [the child] could spend with his father.

50.Mr G made the following recommendations:

i.That parental responsibility for making decisions in respect of major long-term issues relating to [the child] be primarily vested in [the mother] on the clear understanding that [the mother] ensures [the father] is kept informed about issues relating to [the child’s] care and that [the father] is able to access information about [the child].

ii.That [the child] live primarily with his mother.

iii.That the time [the child] spends with his father either be indefinitely suspended or suspended until a time in the future when the Court could ascertain whether [the mother] and [the child] might be able to manage a resumption of arrangements for [the child] to spend time with his father. The process of review could be conducted via the INDEPENDENT CHILDREN’S LAWYER contacting the relevant professionals involved with [the child] and [the mother], or the Court specifically adjourning the matter for the parents to present their respective submissions on the matter. A suggested timeframe for the review might be June 2013.

51.Mr G’s family report was completed and published prior to the psychiatric assessment of the father being published. The psychiatric assessment of the father was undertaken by Dr A.

52.Mr G was cross examined at length for this hearing but I will deal with that evidence later in these reasons.

Dr A’s psychiatric assessment of the father dated 12 October 2012

53.It was arranged by the independent children’s lawyer that the father be assessed by Dr A, in lieu of Dr N, and pursuant to Young J’s order of 25 June 2012. Dr A’s report was published on 12 October 2012, about three weeks after Mr G’s report. There is no record, that I can see, of the psychiatrist and the family consultant being requested to confer about their respective assessments in order to present comprehensive and perhaps shared expert assessment to the court (and the parents).

54.Dr A reported that the father said he did not have a history of psychiatric problems, although the father admitted he had experienced difficulty sleeping since the suspension of his time with the child. The father acknowledged to Dr A that he had made outbursts in Court including threats of suicide, but explained that they occurred as a result of feeling overwhelmed by the court process, rather than an actual intention to commit suicide. The father told Dr A that he had experienced bouts of depression and had previously experienced stress in his employment, but denied any current feelings of anxiety.

55.When questioned by Dr A about domestic violence during the marriage, the father admitted that the parents had yelled at each other during the relationship but stated that there was very little physical violence. Dr A reported that the father told him that the alleged breaches of orders all related to his attempts to see the child.

56.Dr A reported that the father told him he is ‘absolutely dedicated to [the child] and worries about his safety’. The father stated his concern that the mother might try to kill herself and the child if the father pursues his wish to see the child, however acknowledged that while the mother had threatened suicide she had never made threats to harm the child.

57.Dr A reported that the father’s history and presentation suggested “he was suffering from an Adjustment Disorder with depressed mood in response to his continued separation from his only child”. Dr A reported that the father presented as “an angry man who is aggrieved by the treatment he has received” in the Family Court and by the mother.

58.Dr A concluded that he was unable to accurately assess the potential risk to the child but had observed nothing to suggest that the father was planning to harm himself or the child.

After the Family Report and the psychiatric assessment of the father

59.The father filed an Application in a Case on 14 December 2012 seeking orders that the mother transport the child to see his gravely ill paternal grandfather. The father also sought time with the child on Christmas Day, the recommencement of regular time with the child and telephone contact on a weekly basis, copies of school reports and letters, monthly emails from the mother reporting on the child’s wellbeing, and the removal of orders preventing the father from approaching the child.

60.The father’s application was heard by Young J on 19 December 2012 who ordered that the father’s application be dismissed. Young J also ordered that the independent children’s lawyer engage Mr F, a psychologist, to conduct an initial intake interview with the child and confirm whether he was prepared to regularly meet with the child for the purposes of preparing a report making recommendations as to possible future arrangements for Court orders.

61.Mr F was first suggested by the independent children’s lawyer as being suitable to undertake the counselling. It was stated that Mr F had rooms in Town P, approximately one hour by car from the mother’s home in Town B, but had also indicated that he was willing to travel to the mother’s home in order to undertake therapeutic counselling with the child if need be. The independent children’s lawyer also submitted that there were limited options in the remote area of Town B in terms of suitable professionals who were prepared to facilitate the therapeutic counselling with the child. My impression is that the independent lawyer was diligent in locating a clinician in close proximity to the mother’s remotely situated residence.

62.Young J made orders on 19 December 2012 requiring the independent children’s lawyer to engage Mr F to conduct an initial intake interview with the child and his mother. The independent children’s lawyer was also ordered to obtain a brief report from Mr F after the initial interview confirming that he was prepared to continue meeting with the child. The father was restrained from attending at, or contacting Mr F prior to, the initial intake interview.

Recent hearings, proceedings before the Court and case management

63.In late January 2013 this matter was allocated to my docket from Young J’s docket of defended cases in anticipation of his Honour’s imminent retirement.

64.On 31 January 2013, I made orders setting the matter down for final hearing and that the matter be listed for mention before me on 18 February 2013 for the purpose of taking any application by the independent children’s lawyer or either of the parents in relation to the treatment/therapy of the child and the family by Mr F. I also made orders for a further family report to be prepared by Mr G and published no later than 1 May 2013 and, if possible, to include other significant persons such as the child’s paternal grandparents. There was some minor amendment to the machinery provisions as to Mr F’s initial interview with the child. In particular, I expanded the information to which Mr F could have reference but left to Mr F’s discretion whether or not he read the documents (or any of them) before or after meeting the child or at all.

65.The applications listed for final hearing were the mother’s application filed 24 November 2011 seeking that she have sole parental responsibility (for all major long term issues), that the father’s time with the child be reserved, that the child be removed from the airport watch list, that the mother be at liberty to obtain a passport for the child and remove him from Australia for not more than three months upon giving the father fourteen days notice, that the mother notify the father of any significant illness or injury impacting upon the child and that the father be restrained from making any application to the Court to vary the orders without first filing a report from a psychiatrist as to his mental health. By virtue of Young J’s dismissal on 19 December 2012 of the father’s application for parenting orders filed 14 December and the Senior Registrar having earlier dismissed the father’s then extant Application in a Case filed on 29 August 2011, I deduce that the father has no current application for parenting orders before the Court. Nonetheless, it is abundantly clear that the father seeks a resumption of his time with the child and that he opposes the mother’s application filed 24 November 2011. At some stage in the not too distant future the father ought to formalise his position so that the mother and independent children’s lawyer are afforded procedural fairness in respect of the relief (orders) he seeks.

Mr F’s letter about the introductory interview with the child

66.The first intake interview between Mr F and the child took place on 11 February 2013 within the vicinity of Mr F’s rooms. Mr F published a report of the introductory session by letter dated 11 February 2013.

67.Mr F’s letter began by explaining that he had actually conducted the intake interview with the child in the car park adjacent to his consulting rooms. Mr F recounted that the mother had attended the medical clinic in time for the appointment and requested help from the receptionist because the child had locked himself in the boot of her car. Mr F stated that the child began playing with objects in the car and refused his mother’s request to go inside the clinic. Mr F therefore decided to conduct the 40 minute interview in the car park. Mr F described the mother’s presentation as her experiencing “a full blown panic attack”.

68.Mr F reported that during the interview the mother told him that the father had removed the family dog to Darwin two years previously. The child told Mr F that he wanted his dog returned and stated that he did not want to see his father.

69.Mr F asked both the mother and the child if they would like to continue seeing him. The mother said that she would, however the child said ‘no’.

70.Mr F eventually coaxed the child out of the car. At the conclusion of the interview he told the child that he should decide whether he would like to see Mr F in the future.

71.Mr F reported that the child presented as an intelligent young boy whose obsession with his dog needed to be addressed. Mr F stated his understanding that the child was skilled at attending counselling and assessments and described the child as being “in two minds” as to whether he continues to see Mr F or not. Mr F’s opinion was that the child would benefit from continued counselling and expressed his preparation to provide the same.

Mother’s objections to Mr F

72.At the mention on 18 February 2013 the mother’s solicitor raised a number of matters by way of objections to the child commencing therapy with Mr F. Ms Thomas submitted that the mother held a number of concerns about Mr F’s professionalism. She submitted that the mother found Mr F’s approach to be unprofessional or inappropriate at times. In this respect the mother noted that at the initial interview:

(a)Mr F had effectively promised to arrange the return of the child’s dog which the father had returned to the original owner two years earlier. This was said by Mr F without prior consultation with the mother and necessarily without consultation with the father (who was restrained by Young J’s order from contacting Mr F prior to the introductory session) and, it would appear, without reading the family report by Mr G’s wherein the father’s removal of the dog is identified as an issue of significance in the case. It transpires that the mother does not want the dog to be returned to her household although my impression is that the child may not be aware of his mother’s resolve in this regard;

(b)Mr F asked the child if the father is a bit of a ‘weirdo’;

(c)Mr F told the child that ‘he [the child] was the boss’ and could decide whether the therapeutic counselling was to continue;

(d)Mr F suggested that the child could directly instruct the independent children’s lawyer, notwithstanding that this jurisdiction countenances and Division 10 of Part VII of the Act provides a best interests model of representation for children as opposed to direct representation which is used, for instance, in the Children’s Court of Victoria.

73.I recognise and give weight to the mother’s objections to Mr F but I am not thereby persuaded that Mr F is unsuitable. A psychologist dealing with children must be allowed some latitude as to content particularly when endeavouring to establish some rapport with a young boy. It may be that, with the passage of time, Mr F may wish he had expressed himself differently but these are early days. My impression is that engaging the child would have been a difficult task for any clinician and would not have been made easier by the mother presenting with a “full blown panic attack” and Mr F knowing that the child was to return to the care of the mother immediately following his assessment session.

74.I made myself tolerably clear on 31 January 2013 that Mr F was to be able to conduct the introductory interview without the mother being present. I did not anticipate that the mother would allow the child to secrete himself in the boot of her car for the introductory interview. This was not a positive contribution to the context within which Mr F had to get and hold the child’s attention and to start to build some rapport.

75.I reject the mother’s criticisms as a basis for Mr F not being engaged as a therapist.

76.The mother’s solicitor also submitted that there were practical issues involved with the child attending counselling with Mr F. She submitted that the mother’s mental health issues may impact upon her capacity to facilitate the child’s visits with Mr F and that the mother did not welcome Mr F attending her home for the counselling as it was effectively bringing the legal proceedings into her home environment.

77.The mother requested, through Ms Thomas, that the parameters of the therapy be more clearly defined so that there was a common understanding of whether the ultimate goal of therapy was to benefit the child or to gather information for the Court.

78.The independent children’s lawyers sought orders that Mr F be directed to read Mr G’s Family Report to better understand some of the issues in the case and to avoid further comments which may ultimately prove unhelpful. The independent children’s lawyer agreed that Mr G and Mr F have a discussion about the therapeutic goals and outcomes of the therapy.

79.It was the father’s submission that counselling should be ordered for the child.

80.On 18 February 2013, I made orders requesting that the Director of Child Dispute Services in the Melbourne Registry of this Court allocate Mr G (pursuant to s 11F) to formulate with greater precision the parameters and the goals of the therapy recommended by him in paragraph 67(c) of his Family Report. For this purpose, I authorised Mr G to talk to Mr F and formulate the parameters and goals of the therapy. I adjourned the matter to 8 March 2013 and ordered that Mr G attend Court for cross-examination in relation to his description of the therapy.

Refinement of the recommendations of Mr G as to therapy for the child and cross examination of the family consultant

81.Mr G set out the expectations and goals of therapy for the child in a memorandum dated 21 February 2013. He stated at paragraph 9 that the basis for his recommendation that the child attend counselling related to the following issues:

(e)That [the child] has been adversely affected by his exposure to an extended history of parental litigation and heightened levels of parental conflict.

(f)That [the child] is aware of his mother’s current problematic level of functioning and perceives that his father’s behaviours have significantly contributed to her ill health.

(g)That [the child’s] own level of personal functioning has been and will be significantly impacted by the state of his mother’s physical and emotional well-being.

(h)That [the child] is strongly resistant to spending any time with his father, and is highly unlikely to be prepared to consider re-establishing a relationship with his father without professional therapeutic intervention.

82.Mr G opined that therapy for the child should occur independently of legal proceedings and the re-introduction of face to face time between the father and the child. He also expressed an opinion that it was preferable for the counselling to be conducted in a neutral setting rather than the family home. It was Mr G’s view that it would be less likely that the child would feel constrained about what he could and couldn’t say in an “emotionally and psychologically neutral setting” rather than in his home environment. However, Mr G noted that given the practicalities of the situation, if it was the only option, counselling should take place in the home rather than not at all.

83.Mr G recommended that the focus of therapy should be to address the child’s needs, rather than placing too much emphasis on “parental issues” such as a resumption of time between him and the father. He suggested the Court direct that both parents are to be expected to support the child’s counselling, and in particular, that the mother should ensure that she facilitates the child’s participation in the therapy. Mr G stated that there is not necessarily an expectation that the therapy will lead to the re-establishing of a relationship between the child and the father or that they will be able to resume spending time together, however the father could possibly be incorporated into the therapeutic process “at some stage in the future, if it is deemed appropriate by the therapist to do so”.

84.Importantly, Mr G reported that the focus of the counselling was to provide an emotionally and psychologically safe environment in which the child could explore the complex dynamics associated with his relationship with his father, his anxieties about his mother, the possible impact on his mother of resuming a relationship with his father, the nature of the parental conflict and the effect it has upon him and any other relevant issues.

85.Mr G then attended court on 8 March 2013 for the purposes of cross-examination in relation to his description of the parameters and goals of the child’s counselling. He was cross examined by both parents and I asked him some questions as well.

86.During cross-examination by Ms Thomas for the mother, Mr G stated that it was his view that the mother’s proposal that the child not undertake any therapy and instead be allowed some “breathing space” was not sufficient having regard to the child’s presentation. Mr G acknowledged that, if the mother was required to facilitate the child attending therapy, it could potentially have a negative impact on her own mental health and stated that it would affect the child if he was aware of this. However, Mr G stated that it was his view that it was more important that the child have the opportunity to explore a range of things which are impacting adversely on his life in the hope that it would make life easier for him.

87.Ms Thomas for the mother also raised allegations of the father behaving inappropriately by approaching the school or attending the mother’s home in apparent breach of existing orders. Mr G stated that he did not see such behaviour by the father as being a reason why the child should not undertake therapy, but in fact it probably reinforced his view that the child needed an opportunity to talk to someone about what was happening in his life. Mr G further stated that, in his experience, children in the child’s situation frequently find it difficult to explore their own emotions with a parent who they are aware is in conflict with the other parent, and so it was important in his view that the child have an opportunity to address his conflicting thoughts and emotions with a counsellor, like Mr F.

88.In cross examination, the mother’s solicitor also raised with Mr G the mother’s concerns about comments made by Mr F during the initial interview and previously discussed on 18 February 2013 (see earlier in these reasons). Mr G was reluctant to comment other than to say that counsellors use a variety of methods of attempting to engage with a child and it was difficult for him to form an opinion without an understanding of all of the context.

89.During cross-examination by the father, Mr G was also asked whether the benefit of any counselling would be negated if the mother were to denigrate the father and his family to the child. Mr G agreed that such behaviour would not be helpful to the child and added that he would encourage the mother not to engage in such behaviour as it would adversely impact her relationship with her son in the future.

90.As indicated, neither parent sought to adduce further viva voce evidence or to cross examine the other parent. The independent children’s lawyer did not seek to cross examine either parent nor call any further evidence.

91.The independent children’s lawyer submitted that there should be therapy and suggested that, if the mother agreed to comply with orders to take the child to counselling in Town P, it would be preferable that the therapy occur in Town P.

92.The independent children’s lawyer agreed that the parameters of the counselling should be to address the child’s emotional and psychological needs in a manner which would allow him to consider re-establishing a relationship with his father in the future. It was the independent children’s lawyer’s position that counselling should occur and should be independent of, and certainly not because of, this litigation.

93.The independent children’s lawyer also requested that three matters be clarified with Mr F in addition to the scope of the therapy. These matters were:

(i)the process would be confidential save for any assessment by the counsellor of any change in the child’s views about his father;

(j)that a purpose of the counselling is to address any sense of responsibility the child feels for the parental conflict, and,

(k)to ensure that the child is given to understand that the therapy is for his benefit and separate to the father’s applications to the court to re-establish face to face time with him and/or the balance of legal proceedings between his parents.

94.The mother’s solicitor stated that it was the mother’s position that the child should not be ordered to attend counselling and again objected to counselling taking place in her home. She also reiterated the mother’s position that the child should not spend any time with his father.

95.The father’s position was that the child should receive counselling and the father stated that he largely agreed with the submissions of the independent children’s lawyer.

Other concerning behaviour by the child

96.I also have regard to the mother’s earlier evidence about the child’s behaviour. The mother’s affidavit sworn 11 October 2012 and filed 12 October 2012 describes behaviour by the child which, I accept, is concerning in a then six year old. The mother deposes to an alleged contravention of existing orders by the father, consisting of him approaching the front gate of her property and then firing shots in the area of her property the following day. The mother stated in her affidavit that as a result of the incidents, the child had become “very distressed”. She described behaviour by the child as including:

·carrying keys around and insisting on locking the gate and the doors at all times – the mother described the child as having become “obsessive”;

·refusing to go to sleep unless the sensor light outside the house has been left on;

·insisting on carrying the phone around outside for “dangerous emergencies”;

·building an invention “to catch [the father]”;

·worrying that his father will attend his school; and

·refusing to attend school out of concern for his mother.

97.The mother also alleged that approximately ten days after the asserted contraventions by the father, neighbours had driven into her property unannounced and this had resulted in the child shouting at his mother to “get the phone” and “lock the doors” before they could ascertain that it was not the father.

98.When asked if he had been to the mother’s property by Young J on 19 October 2012 the father strongly denied the allegations. However, whether the contravention alleged is true or not, if the child was displaying the kind of behaviour described by the mother it is of cause for concern and suggestive of his need for counselling.

99.No inroads were made by the mother or the other parents into the expert evidence of Mr G in the course of cross examination.

100.I accept Mr G’s evidence. It was reasonable and measured and I have regard to his views in my determination of this aspect of the case.

The legal principles

101.The order for and incidental to therapy for the child, as sought by the independent children’s lawyer and supported by the father, is an interim parenting order. The mother opposes the application.

102.In determining whether or not to make the order sought, the court must apply Part VII of the Family Law Act 1975 (Cth), as amended in July 2006, following the legislative pathway as set out by the Full Court in Goode & Goode[2] save that the procedure for making interim parenting orders will be an abridged process where the scope of the enquiry is “significantly curtailed” compared to the ultimate hearing. In Goode’s case the Full Court said (at paragraph 68):

…..Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parents and their children, and the parents’ respective proposals for the future.

[2] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422.

103.I can make such parenting order as I think proper once I either apply the presumption of equal shared parental responsibility in s 61DA or satisfy myself that the presumption does not apply and consider the matters in s 65DAA(1) and (2). The presumption does not apply where:

(l)I have reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence (s 61DA(2)); or

(m)It is not appropriate to apply the presumption because this is an interim proceeding and not appropriate in the circumstances of the case (s 61DA(3));

or rebutted by evidence that satisfies me that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s 61DA(4)).

104.Pursuant to the Order made (by consent) on 17 December 2008, the parents have equal shared parental responsibility in relation to the child. In this respect the mother filed an application on 24 November 2011 seeking sole parental responsibility. There is no extant application to alter parental responsibility (or any aspect of it) on an interim basis. The parents have equal shared parental responsibility for all the duties, powers, responsibilities and authority which, by law, parents have in relation to a child save for the Order made by SR Fitzgibbon in relation to the choice of the child’s schooling in 2012.

105.The final issues in the case will involve the allocation or reallocation of parental responsibility but that is not a matter which falls for determination before me now. I proceed on the basis that the parents have equal shared parental responsibility for major long term decisions about the child in the manner described above.  

106.I must consider the s 60CC matters that are relevant, as to the child’s best interests, and if possible, make findings about them (although again it must be acknowledged that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place). 

107.Section 60CC(2) sets out the primary considerations being: 

(n)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(o)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

108.Having now heard the family consultant’s evidence tested by cross examination, I am satisfied of two matters at this interim stage.

109.First, that the child is in need of therapy to assist him to function as normally as possible within the mother’s household having regard to the apparently significant limitations placed upon her functioning by her depressive disorder. This addresses various matters including the child’s expressed desire, and the responsibility he feels, to look after his mother. Doubtless, the child would need therapy to adjust to a re-introduction of time with the father but the most compelling point of the family consultant’s evidence is his expert opinion, which I accept as valid, that the child needs therapy regardless of whether or not he is going to spend time or communicate with the father.

110.Second, that the mother is unable or unwilling to prioritise the child’s needs over her own needs. That is, to place the child’s need for therapy, as described by the family consultant, over her need to dissociate herself and the child from the father. It may be that the mother assumes that, if therapy is in any way effective, it may subsequently be utilised as an introductory conduit between the child and the father. However, that is not necessarily the case and quite ignores the fact that the court would first have to be satisfied that it is in the child’s best interest for him to have a meaningful relationship with the father.

111.Section 60CC(3) sets out the additional considerations, only some of which are relevant or susceptible to findings at this stage interim stage of the proceedings. The additional considerations inform my consideration of the primary considerations.

112.I take into account[3] that the child is not enthusiastic about therapy with Mr F. However, my impression is that he is not closed to the idea either. I accept that the child wants his mother not to be distressed. Mr G’s evidence, which I accept, is that the child’s perception is that the father is a cause of the mother’s distress. It is feasible that the child may become oppositional to therapy if he perceives, through the mother’s demeanour or otherwise, that she is opposed to therapy or that his attendance upon the psychologist is upsetting for her emotionally or a hardship for her in a practical sense. I understand mental illness including the depressive disorder, with which the mother has been diagnosed, leads to disablement. However, the mother’s depressive disorder is a condition for which the mother receives treatment and, I assume, support. The mother should now take steps to get such further support as she needs so that she can transport the child as and when necessary and facilitate all aspects of the therapy so that it can run its course. This is particularly so given that the independent children’s lawyer sourced a therapist who would make home visits to the child and now the mother says that home visits are too intrusive.

[3] Family Law Act 1975 (Cth) s 60CC(3)(a).

113.I do not lose sight of the fact that Mr G’s impression of the parentification of the child vis a vis the mother and the associated responsibility which the child says he feels for the mother’s wellbeing are amongst the very matters which Mr G identifies as why it is imperative that the child should have therapy without delay.

114.Whilst the child may not view therapy with Mr F as an attractive proposition, and may dislike it once it commences, I am not satisfied that the child is sufficiently mature in his outlook or able to appreciate his needs to an extent that I ought to place much weight on his view.  

115.I have regard to the nature of the child’s relationship with each of the parents and other persons[4]. The latter is not relevant for the matter under determination. The capacity of the child to enjoy relationships outside the immediate environment provided by the mother is a matter I will be interested to hear about in the context of the final hearing.

[4] Ibid s 60CC(3)(b).

116.It seems that the child is emotionally closer to the mother than to any one else. Whether it approximates an unhelpful or potentially dangerous enmeshment is an issue for the final hearing. For the time being, the mother is the child’s primary carer and his acceptance of the therapy is likely to reflect the extent to which the mother can appear to the child to accept that it is beneficial for him.

117.The child’s relationship with the father has been disrupted. Whether or not it is contrary to the child’s best interests to spend time and communicate directly with the father is also an issue for the final hearing.

118.Similarly I will, in due course, consider the capacity of each of the parents to provide into the future for the child’s emotional and intellectual needs.[5] In the meantime, I am satisfied that the child should have the benefit of therapy in the manner described by the family consultant and that it is within the capacity of the mother to facilitate such therapy. Indeed there is an absence of specific evidence to the contrary. As it is, the family consultant and Mr F prefer that therapy be away from the child’s residence and the presence of the mother so the mother’s most recently expressed position, that therapy not occur at her home, can be accommodated.

[5] Ibid s 60CC(3)(f).

119.I have already indicated that I find that, whilst the child is of normal maturity, he lacks the knowledge and life experience to make decisions for himself. He is too young to make decisions for himself. Where his parents cannot or will not make appropriate arrangements for him, the court will do so on application, as in this case, by the independent children’s lawyer. Otherwise the child’s maturity, sex, lifestyle and background (including lifestyle, culture and traditions) do not concern me at this interim stage of the proceedings.[6]

[6] Ibid s 60CC(3)(g).

120.In the context of the final hearing, there is likely to be an examination of how the limitations in his parents’ personal resources can be best managed in the absence of change.

121.I have regard to the allegations of family violence in this case, to the father’s immoderate and alarming behaviour in court (such as saying that he would throw himself off this building), to his intemperate submissions (about my brother judges) and to the finding that he contravened an order restraining him from approaching the mother’s residence.[7] Common features of these behaviours are a lack of impulse control on the father’s part as well as a lack of insight about the likely impact that these behaviours will have on how the father will be regarded by others as a consequence of having acted in this way.

[7] Ibid s 60CC(3)(j).

122.It is of the utmost importance that the child and his mother are safe when they attend the therapy and do not stand to be approached by the father uninvited or unexpectedly.

123.I am satisfied that the therapy envisaged by the family consultant is in the child’s best interests.

124.Section 65DAA(1) provides that, having regard to the Order made on 17 December 2008, conferring shared parental responsibility on the parents, I am required to consider whether the child spending equal time with each of the parents is in his best interests and is reasonably practicable.

125.In relation to whether equal time is “reasonably practicable”, I have regard to the matters set out in s 65DAA(5). In practical terms, that:

(a)the parents live remotely from one another;

(b)the parents’ capacity to make any arrangements together or to communicate is non-existent; and

(c)the impact of such a change on the child would be disastrous without preparatory therapy and for many other reasons, not the least of which is that he is not currently disposed to communicate with the father.

A change in residential arrangements for the child is outside the ambit of the dispute now before me. Accordingly I will not make an order for the child to spend equal time with each of the parents.

126.Section 65DAA(2) provides that if the parents have equal shared parental responsibility (as they do) and I have not ordered equal time (which is the case), then I am required to consider whether the child spending substantial and significant time with each of the parents is:

(a)in his best interests; and

(b)reasonably practicable.

127.Within the context of s 65DAA(2), I have regard to the aforementioned matters in relation to substantial and significant time as defined by s 65DAA(3) which is so as to include weekdays, weekends and holidays and which allow the parents to be involved in the child’s daily routine as well as significant occasions and events.

128.I conclude that a change in parenting arrangements so that the child spends substantial and significant time with the father to be otherwise than in his best interests and not reasonably practicable. Again, this may not be the conclusion to which I come after hearing the whole of the case. However, as matters currently stand and within the limited scope of what I am required to determine, I have considered, but decline to make orders providing for the child to spend substantial and significant time with the father.

129.Having regard to the primary and additional considerations, I conclude that it is in the child’s best interests to participate in the therapy which the independent children’s lawyer seeks and the family consultant recommends and I have ordered accordingly.

Delaying the date of final hearing

130.A further issue arose as to the timing of the final hearing which is set down to commence in June with a further family report in May 2013.

131.It was Mr G’s opinion that the updated family report, which was originally scheduled to be released on 1 May 2013, should occur after the child has undertaken some therapy with Mr F. Mr G’s reasoning was that, if his interviews take place in April, it would be unlikely that the child’s views and psychological presentation would have changed at all. Mr G’s preference was to conduct interviews for an updated family report after the child had attended approximately three months of therapy.

132.Both parents indicated that they wished the hearing to proceed in June, however the independent children’s lawyer stated that it was his position that the hearing should be postponed for a few months to enable the proper processes to be completed before the final hearing.

133.The timing of the further family report and the final hearing are matters in which the child’s best interests are the paramount consideration. I accept the submission of the independent children’s lawyer and will postpone both the assessment and the final hearing so that each can be as comprehensive as possible in capturing matters relevant to the child’s best interests.

Conclusion

134.It is a complex case in its substance and is also likely to be complex in the manner in which it is presented. Large issues, such as the apportionment of parental responsibility, must await proper preparation and presentation of each party’s case. The outcome of, and extent of cooperation by the parents with, the therapy I have ordered is likely to be a matter of significance at the final hearing in the context of s 60CC(2)(b) – the need to protect the child from harm. By virtue of Mr G’s tested evidence, I am satisfied the child needs therapy. Facilitation by the parents of the therapy will also be relevant in the context of ss 60CC(3)(f)(i) and 60CC(3)(i).

135.For the above reasons, I made the orders set out at the beginning of this document.

I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 2 April 2013.

Associate: 

Date:  28 May 2013