BUTTERS & BUTTERS
[2017] FamCA 801
•11 October 2017
FAMILY COURT OF AUSTRALIA
| BUTTERS & BUTTERS | [2017] FamCA 801 |
| FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the father sought to vary the current interim orders so that the children live with the father and spend time with the mother under “light” supervision – Where the father contends that there has been a change in circumstances in relation to all three children and raised concern in relation to the mother’s parenting capacity – Court finds that there is no justification for revisiting previous parenting orders that currently apply to the two youngest children – Court finds that it would not be appropriate for the presumption of equal shared parental responsibility to be applied in these interim proceedings – Where the eldest child has expressed a reluctance to return to her mother’s care – Where there are concerns that the eldest child would run away in the event that she is forced to return to her mother’s care – Where there are concerns the eldest child may be alienated from the mother if not returned to her mother’s care – Court finds that there is an unacceptable risk that the child would be exposed to emotional distress and potentially psychological harm in being required to resume living with her mother – Orders made for the child to remain living with the father and for time with the mother to resume on a graduated basis – Orders made for the children to continue therapy. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA |
| B and B (1993) FLC 92-357 SS v AH [2010] FamCAFC 13 Salah & Salah (2016) FLC 93‑713 Sigley v Evor (2011) 44 Fam LR 439 | ||
| APPLICANT: | Ms Butters | |
| RESPONDENT: | Mr Butters |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW | ||||
| FILE NUMBER: | SYC | 7398 | of | 2014 | |
| DATE DELIVERED: | 11 October 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 28 August 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Kyle of Kyle Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Campton SC |
| SOLICITOR FOR THE RESPONDENT: | Gordon & Barry Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shae of Legal Aid NSW |
Orders
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Interim parenting
That pending further order, the Orders made on 5 February 2015 and 12 August 2016 be varied so that:
(a)The child, B born … 2006, live with the father.
(b) B spend time with the mother, during school term, as follows:
(i)For two consecutive Tuesdays following the date of these orders, from after school until 6.00pm.
(ii)Thereafter, for a period of two weeks, from after school on Friday until 5.00pm on Saturday.
(iii)Thereafter, each alternate weekend from after school Friday until before school Monday.
The time that B spends with her mother pursuant to Order 1(b)(iii) shall coincide with “week one” referred to in the orders made on 12 August 2016, so that B spends each weekend with her siblings.
B live with each parent during school holiday periods in accordance with Orders 13 and 14 of Exhibit 1 of the Orders made on 12 August 2016.
Restraints
That each parent be and hereby is restrained from:
(a) Denigrating or making critical or derogatory remarks about the other parent to or in the presence or hearing of any of the children; and
(b) Discussing these proceedings, or any of the issues raised in these proceedings, with any of the children, or in the presence or hearing of any of the children.
Therapy
That Orders 7, 8, 9, 10, 11 of Exhibit 1 of the Orders made on 12 August 2016 be discharged.
The mother and the father shall facilitate the children’s attendances upon C Group at such times and at such places as reasonably proposed by C Group from time to time and shall do all things to encourage the children to attend upon and participate in therapy with C Group.
The mother and father shall each comply with all reasonable requests, referrals and recommendations of C Group including:
(a) for them to participate in counselling if so directed; and
(b) steps that should be taken to facilitate B spending time with her mother in accordance with these orders.
The Independent Children's Lawyer has leave to liaise with C Group from time to time and be provided with information regarding the children’s attendance, compliance, progress and any recommendations and is at liberty to obtain a brief reporting letter, in relation to those matters only, which can be provided to the parties and to the Court.
The mother and father are equally responsible for any costs associated with the children attending on C Group.
Leave is granted to the Independent Children’s Lawyer to provide a copy of the Family Report prepared by Ms D on 17 February 2016 to C Group.
AND THE COURT NOTES THAT:
A. It is requested that the Independent Children’s Lawyer explain the effect of these orders to B.
B. The matter remains listed for final hearing for 5 days commencing on 7 May 2018.
C. The parties have agreed for a single expert report to be prepared by Ms E.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Butters & Butters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7398 of 2014
| Ms Butters |
Applicant
And
| Mr Butters |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
Legal Aid New South Wales
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to the parties’ three children, namely:
·B, born … 2006 (aged 11 years);
·F, born … 2009 (aged 8 and a half years); and
·G, born … 2010 (aged 7 years).
The catalyst for the current dispute between the parents is that since the July 2017 school holidays, B has remained in the full-time care of the father.
This is contrary to the current interim orders made on 12 August 2016 which provide for the children to live with the mother and spend time with the father:
·In week one from after school on Thursday until before school on Friday; and
·In week two from after school on Friday until before school on Monday.
The father filed an application on 12 July 2017 to vary the current interim orders to provide for the three children to live with him and spend time with the mother under “light” supervision with another adult being present in the house when the children are with her.
The mother has sought enforcement of the current interim orders.
Factual Contentions
The relevant background facts and, where noted as such, factual contentions are as follows:[1]
[1] Joint Chronology.
Date
Event
1975 Mr Butters (“Father/Father”) born. 41 years of age. 1977 Ms Butters (“Mother/Mother”) born. 40 years of age. 2005 Parties marry. 2006 B born. 11 years of age 2009 F born. 8 years of age 2010 G born. 7 years of age. 31.01.11 Mother alleges father “slammed the car door onto me” and she calls the police. 09.03.11 Mother alleges she speaks to counsellor at Café Counselling Service about family violence. May 2012 Mother alleges F commences to wet her pants several times a day. Mother alleges father is abusive to F about wetting and soiling her pants. 28.12.12 Mother alleges Police officer records that mother is ‘visibly shaken’ and reports the father ‘swears at her and puts her down and treats her with disrespect. Moody, snaps over little things and has little patience with the children. 31.12.12 Father contends parties separated on a final basis but remained living under the same roof. 14.11.14 Mother contends parties separated on a final basis and ceases residing at former matrimonial home at H Street, Suburb J (“Suburb J property”) with the children. 15.11.14 Mother alleges F says to the Mother, 'Please just kill me' and 'If you don't, I will. I will hold my breath forever.' Mother consults GP then takes F to K Hospital. A report is then made to DOCS and the Mother and children are referred to Child and Family East for support. 21.11.14 Mother alleges that she invites father to meet and spend time with the children at Suburb J. 25.11.14 Mother files Initiating Application at Federal Circuit Court at Sydney. 27.11.14 Order made for the appointment of an ICL and for parties to attend a Child Dispute Conference. 05.12.14 Child Dispute Conference. 07.12.14 Father moves out of the Suburb J property. 09.12.14 Mother and children return to live in Suburb J property. 25.12.14 Father spends approximately 2 hours with the children supervised. Dec 2014 Father forms personal relationship with Ms L. Ms L has 2 children, M and N. 23.01.15 Mother and the children commence participating in the Brighter Future program run through O Services. 05.02.15 ORDERS, children to spend supervised time with the father. Week 1- Thursday after school to 6.30pm; and 11.30am to 5pm Saturday; and week 2, from 8.30 to 2pm Sunday. Father's application for unsupervised time adjourned to 19/5/15. 06.05.15 to 08.07.15 B and F attend art therapy through P Group. 02.07.15 Further interim parenting orders made introducing further time and overnight visits. Supervision to be removed and time building to Week 1 3pm to 7.30pm Thursday; Week 2 9am Saturday to 5pm Sunday. 27.10.15 Mother publishes on Facebook request for nominations of psychologists to treat children for “trauma/abuse”. Father asserts that there was no consultation with him as to the necessity of appointment of a psychologist. 11.12.15 Father alleges he and Ms L commence to live together at rented accommodation at Q Street, Suburb R. 12.12.15 Children spend their first overnight time with Father since the physical separation of Mother and Father on 14 December 2014. Overnight alternate weekend visits from Saturday to Sunday commence 15.02.16 Conciliation Conference. 17.02.16 Family Report completed. 23.02.16 Divorce Order made. 28.02.16 Order made releasing Family Report of Ms D to parties and ICL. Mother’s Day weekend 2016 Children due to be in Father’s care for the weekend. Father proposes to Mother that she collect the girls on the Sunday 8 May (Mother’s Day) at 12.00 noon so she can spend lunch and dinner with the children on Mother’s Day. Father contends that the Mother did not make the children available for the weekend time with Father. 26.05.16 Children commence first mid-week overnight period with Father. 01.06.16 Legal Aid Conference. Agree to children having therapy. 10.06.16 Father files Application in a Case seeking interim parenting Orders, interim financial Orders and injunctive Orders. Mother files her Response seeking the enforcement of the interim spouse maintenance and interim financial Orders. 12.08.16 Judge Henderson makes further interim parenting Orders by consent but does not deal with Mother’s enforcement application and transfers the matter to the Family Court.
Children spend each alternate weekend with their father from after school on Friday to before school on Monday, alternate Thursday overnight and half the school holidays.
Order includes prohibition on either parent enrolling children in extra-curricular activities during time children are with other parent without consent.
Order made for children to commence to attend for counselling on Ms S.
1.02.17 Hearing of Mother’s Application to enforce orders is adjourned by consent for mention to the first day before the Trial Judge 18.04.17 Mother files Parenting Questionnaire 20.04.17 Children’s previously appointed joint therapist Ms S declines to treat them further due to her un availability and recommends “more fuller family support and intervention” 25.04.17 Mother informs Father she has enrolled children in Netball for 2017. 28.04.17 First day before a Judge – Justice McClelland. 02.06.17 Mother alleges F expresses suicidal ideation and she presents her to Emergency Department of K Hospital.
07.06.17 ICL proposes that children receive counselling at C Group. 08.06.17 Father first attends Dr T at C Group. 13.06.17 Dr T of C Group advises parents about F’s present state of wellbeing by email. 30.06.17 Children come into care of father during school holiday 09.07.17 F and G return to Mother’s care. B remains with father without mother’s consent. 12.07.17 Father files Application in a Case seeking change of residence of children. 19.07.17 Father seeks undertaking from Mother not to seek to collect B from Suburb J Public School. Father alleges the requests were unanswered. 21.07.17 Father seeks AVO for protection of B against Mother. Police decline to issue. 22.07.17 Phone communication between B and her mother. 03.08.17 Mother files Enforcement Application
08.08.17 F admitted to Hospital overnight due to alleged difficulties breathing. 21.08.17 Mention before Registrar Campbell and Justice McClelland. 28.08.17 Hearing before Justice McClelland.
applications
The mother’s application
The Minute of Order proposed by the Mother was as follows:
Enforcement
1. In respect to the child, [B] born on … 2006 (“[B]”), the father must resume compliance with all interim parenting orders currently in force as and from Friday 1 September 2017 and it is noted the next occasion [B] will spend with the father after she returns to the mother, is Sunday 3 September 2017 for Father’s Day with her sisters until 5pm.
2. The father must use his best endeavours to help [B] accept and comply with the orders of this court, including by personally delivering [B] to her appointment scheduled with [Dr T] at [C Group] on Thursday 31 August 2017 at 2.45pm, and subject to direction of [Dr T], the father must participate in that appointment.
3. The father must deliver [B’s] belongings to the [Suburb J] Public School office by 9am on Friday 1 September 2017, including all clothing, shoes, jewellery, and other products gifted to [B] since 30 June 2017.
4. Each parent will permit [B] to take what clothing or other personal items as she may wish and as is a reasonable quantity, from one parent’s household to the other.
5. If at the hearing on 28 August 2017, the father indicates to the court that he will not comply with the current interim orders, a Recovery Order issue pursuant to section 67Q of the Family Law Act 1975 (Cth), addressed to all officers of the State and Territory Police Forces, in the following terms:
5.1 The father is prohibited from again failing to return B, or failing to return [F] born … 2009 (“[F]”), or [G] born on … 2010 (“G”) to the mother at the conclusion of the times he is permitted to spend with the children pursuant to parenting orders of this court.
5.2 All officers of the State and Territory Police Forces and Services (“the Police”) are authorised and directed to find and recover [B], [F], and/or [G] if the father fails to return one or more of the children to the mother as required by this order or pursuant to orders of this court.
5.3 For the purpose of recovering the Child and returning her to her mother, the Police are authorised, with such assistance as is required, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place in which there is, at any time, reasonable cause to believe [B] may be found.
5.4 This order remains in force for a period of 12 months from the date of this order.
Injunctions
1. Each parent be restrained by injunction from speaking about any issue in these proceedings to any of the children, and/or in a negative manner about the other parent, to or within hearing distance of [B], [F], or [G].
2. Each parent be restrained by injunction from allowing any other person to speak to, or within hearing distance of any of the children about the mother in a negative manner, or about any issue in these proceedings.
3. Each parent be restrained by injunction from denigrating the other parent directly, including in correspondence between solicitors.
4. The Father pay the mother’s costs of and in relation to the hearing of the application.
Therapy
5. The orders requiring the children to attend therapy with [Ms S], being Orders 7 to 12 of the orders made by consent on 12 August 2016 be discharged.
6. The Mother and the Father shall facilitate the children’s attendances upon [C Group] at such times and at such places as directed and arranged by [C Group] from time to time and shall do all things to encourage the children to attend upon and participate in therapy with [C Group].
7. The Mother and Father shall each comply with all reasonable requests, referrals and recommendations of [C Group] including for them to participate in counselling if so directed.
8. The Independent Children's Lawyer has leave to liaise with [C Group] from time to time and be provided with information regarding the children’s attendance, compliance, progress and any recommendations and is at liberty to obtain a brief reporting letter, in relation to those matters only, which can be provided to the parties and to the Court.
9. The Mother and Father are equally responsible for any costs associated with the children attending on [C Group].
10. Leave is granted to the Independent Children’s Lawyer to provide a copy of the Family Report prepared by [Ms D] on 17 February 2016 to [C] Group, and once released by the Court, a copy of the updated report to be prepared pursuant or order 18 below.
Single expert
11. That Order 9 made on 28 April 2017 in relation to the preparation of a Family Report be discharged.
12. That pursuant to Division 15.5.2 of the Family Law Rules 2004, [Ms D] be appointed as a Single Expert Witness for the purposes of preparing an updated assessment and report in relation to the welfare of the children, and that in preparing her report to the Court, [Ms D] be requested to consider the matters proposed by the ICL in her Minute of Orders Proposed at 10.1 to 10.10, plus:
12.1 The nature of the relationship between each child and any other members of either parent’s family living in each parent’s household or who care for the children on a regular basis;
12.2 The willingness and ability of each parent to promote and support the children having a meaningful relationship with the other parent.
6. Orders in terms of the ICL’s Minute of Orders Proposed numbered 11 to 17 and the ICL’s notation proposed at paragraph 18.
Interim parenting orders
13. The Father’s application to vary interim parenting orders in relation to the children
13.1 [B] born on … 2006 (“B”)
13.2 [F] born on… 2009 (“F”),
13.3 [G[ born on … 2010 (“G”)
be dismissed.
14. If the court decides to order that [B] live primarily with the father until further order, there be orders for [B] to live with her mother and sisters as follows:
14.1 commencing on the first Friday after the order is made, every second week from Friday after school until the start of school Tuesday; and
14.2 each alternate Monday, being the Monday following the weekend [B] spends with the father, until the start of school on Tuesday; and
14.3 the mother may collect [B] from school and [B] will spend time with her mother and sisters on any afternoon the father is unavailable due to work or other commitments, and for this purpose the father must give the mother first option of collect [B] from school if he is unavailable to do so.
15. Each parent must do all things necessary to allow the other parent to communicate with that parent by SMS, and by mobile phone in the event of an emergency.
16. Each parent must use his/her best endeavours to communicate with the other parent in a respectful manner and encourage each child to speak about and to the other parent in a positive and respectful manner.
17. Each parent must facilitate the children communicating with the other parent by phone during school holiday periods at least once in every three days.
The father’s application
The orders sought by the father were as follows:
THE COURT NOTES:
1. The following definitions for the purpose of these Orders:
1.1 “[F]” means [F], born … 2009;
1.2 “[B]” means [B], born … 2006;
1.3 “[G]” means [G], born … 2010;
1.4 “2015 Order” means the Order made on 2 July 2015 in the Federal Circuit Court of Australia at Sydney; and
1.5 “2016 Order” means the Order made on 12 August 2016 in the Federal Circuit Court of Australia at Sydney.
2. Without admissions and for the avoidance of any doubt, except as otherwise provided in the 2016 Order, the Children currently live with the Mother.
3. Without admissions and for the avoidance of any doubt, the Children currently spend time with the Father pursuant to the 2016 Order during school terms as follows:
3.1 in week one, from after school or 3 pm Thursday until before school or 9 am Friday; and
3.2 in week two, from after school or 3 pm Friday until before school or 9 am Monday.
4. Without admissions and for the avoidance of any doubt, the Children spend time during special occasions with the parents pursuant to the 2016 Order.
5. The parents have made appointments for the Children to attend upon [Dr T] of [C Group] (“[Dr T]”) for the purpose of them attending therapy with Dr T.
THE COURT ORDERS:
6. Pending further Order, the Children live with the Father and the time the Children are due to live with the Mother pursuant to the 2015 Order, the 2016 Order and/or otherwise be and hereby is suspended.
7. Pending further Order and conditional on a member of the Mother’s family sleeping at the Mother’s home, [F] and [G] spend time with the Mother during school terms in week two of each alternate fortnight, from after school or 3 pm Friday until before school or 9 am Monday from Friday from after school to before school Monday.
8. In the alternative to paragraph 7 of this Order and pending further Order, [B] live with the Father and the time [B] is due to live with the Mother pursuant to the 2015 Order, the 2016 Order and/or otherwise be and hereby is suspended.
9. Pending further Order, [B] communicate with the Mother via facetime as follows:
9.1 Mondays and Wednesdays at 6.30pm; and
9.2 Saturdays at 1.00pm; and
9.3 on any other occasion requested by [B].
10. Pending further Order, pursuant to Section 68B of the Family Law Act 1975 the Mother is hereby restrained by injunction from directly or indirectly, whether through a third party or otherwise, from removing [B] from [Suburb J] Public School except for the purpose of attending agreed appointments with [Dr T].
11. Pending further Order, the Mother and the Father shall facilitate the children’s attendances upon [Dr T] at such times and at such places as directed and arranged by her from time to time and shall do all things to encourage the children to attend upon and participate in therapy with her.
12. The Mother and Father shall each comply with all reasonable requests, referrals and recommendations of [Dr T] including for them to participate in counselling if so directed.
13. The Independent Children's Lawyer has leave to liaise with [Dr T] from time to time and be provided with information regarding the children’s attendance, compliance, progress and any recommendations and is at liberty to obtain a brief reporting letter, in relation to those matters only, which can be provided to the parties and to the Court.
14. The Mother and Father are equally responsible for any costs associated with the Children attending on [Dr T] that are over and above those costs covered by any Mental Health Plan available for the children.
15. Pending further Order, the Mother and Father be and are hereby restrained from causing a subpoena to be issued to [C Group] and/or [Dr T].
16. Pending further Order, the Mother is restrained from causing any or all of [B], [F] and/or [G] from residing outside the Sydney Metropolitan area unless with the prior written agreement of the Father.
17. Within 48 hours of the making of this Order, the Mother disclose all doctors, counsellors or psychologists that she has attended on for treatment (including but not limited to mental health treatment) or counselling in the last 4 years.
18. The Mother pay the Father’s costs of and incidental to the Application in a Case filed 12 July 2017 and his costs associated with an appearance on 21 August 2017.
The Independent Children’s Lawyer’s proposed orders
The orders proposed by the Independent Children’s Lawyer (“ICL”) were as follows:[2]
[2] Exhibit ICL 1.
Interim parenting
1. That pending further order, the Orders made on 5 February 2015 and 12 August 2016 be varied so that:
1.1 The child, [B], born … 2006, shall live with the father.
1.2 [B] shall spend time with the mother during school terms on each alternate weekend from after school on Friday until before school on Monday, such time to coincide with “week one” in the orders made on 12 August 2016, so that [B] shall spend each weekend with her siblings.
1.3 [B] shall live with each parent during school holiday periods in accordance with Orders 13 and 14 of Exhibit 1 of the Orders made on 12 August 2016.
Restraints
2. That each parent be and hereby is restrained from:
2.1 Denigrating or making critical or derogatory remarks about the other parent to or in the presence or hearing of the children (or any of them);
2.2 Discussing these proceedings, or any of the issues raised in these proceedings, with any of the children, or in the presence or hearing of any of the children.
Therapy
3. That Orders 7, 8, 9, 10, 11 of Exhibit 1 of the Orders made on 12 August 2016 be discharged.
4. The Mother and the Father shall facilitate the children’s attendances upon [C Group] at such times and at such places as directed and arranged by [C Group] from time to time and shall do all things to encourage the children to attend upon and participate in therapy with [C Group].
5. The Mother and Father shall each comply with all reasonable requests, referrals and recommendations of [C Group] including for them to participate in counselling if so directed.
6. The Independent Children's Lawyer has leave to liaise with [C Group] from time to time and be provided with information regarding the children’s attendance, compliance, progress and any recommendations and is at liberty to obtain a brief reporting letter, in relation to those matters only, which can be provided to the parties and to the Court.
7. The Mother and Father are equally responsible for any costs associated with the children attending on [C Group].
8. Leave is granted to the Independent Children’s Lawyer to provide a copy of the Family Report prepared by [Ms D] on 17 February 2016 to [C Group].
Single expert
9. That Order 9 made on 28 April 2017 in relation to the preparation of a Family Report be discharged.
10. That pursuant to Division 15.5.2 of the Family Law Rules 2004, [Ms D] be appointed as a Single Expert Witness for the purposes of preparing an updated assessment and report in relation to the welfare of the children, and that in preparing her report to the Court, [Ms D] be requested to consider the following matters:
10.1 The benefit to each of the children in having a meaningful relationship with both parents;
10.2 Whether there is a need to protect the children (or any of them) from physical or psychological harm as a result of being subjected or exposed to abuse, neglect or family violence;
10.3 Any views expressed by any of the children, and the factors relevant to the weight to be given to those views;
10.4 The nature of the relationship between each child and each parent;
10.5 The nature of the sibling relationship;
10.6 The likely impact of each parent’s long terms proposals on each of the children;
10.7 The capacity of each parent to provide for the needs of each child, including each child’s emotional and intellectual needs;
10.8 Each parent’s attitudes towards the children and the responsibilities of parenthood;
10.9 Any family violence involving the parents or the children;
10.10 Any other matter the expert considers relevant to the welfare of the children.
11. In the course of preparing her report, [Ms D] is authorised to speak to and obtain information from any therapist involved in providing therapy to either of the parents or any of the children, including [C Group].
12. That within 14 days each parent shall pay into the Trust Account of Legal Aid NSW the sum of $4,400 for payment by the Legal Aid NSW to [Ms D] in respect of her fees upon completion of her updated expert’s report.
13. In the event that there remain monies available subsequent to the receipt of the memorandum of fees from [Ms D] these monies are to be returned to the father and the mother in equal shares.
14. In the event that there is a shortfall the father and the mother are to pay such additional sum to meet the costs of [Ms D] within 21 days of a request by Legal Aid NSW.
15. That in the event that either of the parties requests the Independent Children's Lawyer to make arrangements for the attendance of the Single Expert Witness for cross-examination in this matter, the parties shall be equally responsible for the Single Expert’s costs in respect of such attendance.
16. That the parties shall facilitate the preparation of the updated expert’s report including attending on and arranging for the children to attend upon [Ms D] as requested by her.
17. That leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to [Ms D] and that the fees in respect of that photocopying be waived.
18. AND THE COURT NOTES that the Independent Children’s Lawyer is under no obligation to brief the Single Expert in terms of Order 10 above until there has been compliance with Order 12.
Evidence and witnesses
The mother relied upon the following documents:
a)Application in a Case filed 3 August 2017;
b)Response to an Application in a Case filed 28 August 2017;
c)Family Report of Ms D dated 17 February 2016;
d)Affidavit of Ms Butters sworn 24 November 2014 and filed 25 November 2014;
e)Affidavit of Ms Butters sworn and filed 31 January 2015;
f)Affidavit of Ms Butters sworn 26 June 2015;
g)Affidavit of Ms Butters sworn 17 November 2016 and filed 18 November 2016;
h)Affidavit of Ms Butters sworn on 31 July 2017;
i)Affidavit of Ms Kyle affirmed on 2 August 2017 and filed 3 August 2017; and
j)Affidavit of Ms Butters sworn 27 August 2017 and filed 28 August 2017.
The father relied upon the following documents:
a)Amended Application in a Case filed 17 August 2017;
b)Response to an Application in a Case filed 18 August 2017;
c)Affidavit of Mr Butters sworn 11 July 2017 and filed 12 July 2017;
d)Affidavit of Mr Butters sworn 17 August 2017 and filed 18 August 2017;
e)Family Report of Ms D dated 17 February 2016;
f)Father’s Parenting Questionnaire filed 12 April 2017; and
g)Mother’s Parenting Questionnaire filed 18 April 2017.
The ICL relied upon the Family Report by Ms D dated 17 February 2016.
Rice v Asplund Issue
The ICL argued that, having regard to the principles set out in the decision of the Full Court in Rice & Asplund,[3] the Court could not be satisfied that there has been a change in circumstances that justifies alteration of previous parenting orders in respect to the parties’ two younger children, F and G.
[3] (1978) 6 FamLR 570.
The ICL, however, distinguished the situation in respect to B from that of F and G. I will firstly deal with the argument of the ICL in respect to F and G before considering whether there should be any variation in parenting arrangements concerning B.
The authorities applying the principles of Rice & Asplund[4] were helpfully considered in some detail by Macmillan J in Newton & Henzel [2016] FamCA 323 at paragraphs 12 to 18. By way of broad summary, the essential question for the Court to consider in determining whether it is appropriate to revisit previous orders is whether, in the circumstances of the case, there has been a sufficiency of new events that justify a new enquiry.
[4] Ibid.
In support of the father’s contention that that there have been changed circumstances that justify the Court revisiting parenting arrangements for all three children, senior counsel for the father referred the Court to paragraph 94 of the Family Report of Ms D dated 17 February 2016 which relevantly is as follows:
[Mr Butters’] application to have the girls live primarily with him is not supported at this time. Brighter Futures have indicated that [Ms Butters] has recently begun to respond positively to their intervention and this progress should be allowed to take its course. However, the girls do need to spend more time with their father then they currently are. If in the future, [Ms Butters’] functioning substantially deteriorates, then the girls will be in a better position to transition to the full-time care of their father, with minimal disruption.
The father submits that there has in fact been deterioration in Ms Butters’ effective functioning as a parent and that deterioration has impacted upon all three children.
On the basis of the matters that I can have regard to in these interim proceedings, I am not satisfied that there has been such a deterioration in Ms Butters’ functioning as a parent as would justify revisiting parenting arrangements in respect to the parties’ two youngest children F and G.
In those circumstances, I respectfully agree with the submissions of the ICL that, in respect to G and F, there is no justification for revisiting previous parenting orders that currently apply to those children. It is to be acknowledged that the Family Report of Ms D, dated 17 February 2016, raises concerns regarding the mother’s parenting capacity. However, those concerns were known when the previous orders were made. Further, there has been no evidence presented to the Court which suggests that the two younger children are at immediate risk of harm, or that there is a situation of urgency that needs to be addressed. Accordingly, I am not satisfied as to “the sufficiency of new events” that would “provoke a new enquiry” in respect to parenting arrangements for F and G.
As will be discussed, there have, however, been events that have occurred in the period since June 2017 that justify revisiting the existing parenting orders in respect to B.
Concepts and principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to parenting proceedings. Section 60B sets out the objects and principles of Part VII. The objects of Part VII, as found in subsection (1), are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring their parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes it clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”.[5]
[5]Family Law Act 1975 (Cth), s 43(1)(c).
Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Relevantly for these proceedings, section 61DA(3) provides that:
When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
In this matter, the father alleges that the mother lacks necessary parenting capacity to properly care for the children. The mother acknowledges that there are areas in which she needs to improve her parenting capacity. The mother asserts her parenting capacity has been impeded by the father’s conduct, including by way of bullying behaviour and his denigration of her. The mother further alleges that the father has engaged in conduct deliberately intended to alienate the children, and in particular, B, from her.
In these interim proceedings, I am unable to make a determination in respect to those competing factual contentions. Accordingly, in accordance with section 61DA(3) of the Act, the Court finds that it would not be appropriate for the presumption of equal shared parental responsibility to be applied in these interim proceedings. It is therefore unnecessary to consider whether the children should spend equal or substantial and significant time with each parent in accordance with section 65DAA. In those circumstances, the Court’s task is to determine directly what orders are in the best interests of the children.
Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. The main focus of the parties’ contentions have been the primary considerations set out in s 60CC(2). Those considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, section 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b)).
Additional Considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. I will discuss those considerations in greater detail below. Those considerations can conveniently be grouped under the following topics:
·Issues relating to the children - their views, level of maturity, culture and relationships. These considerations are set out in paragraphs (a), (b), (g) and (h) of section 60CC(3).
·Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility. These are set out in paragraphs (c), (ca), (f) and (i) of section 60CC(3).
·Issues of family violence and whether there has been a family violence order. These considerations are set out in paragraphs (j) and (k) of section 60CC(3).
·Effect of change. This consideration is set out in paragraph (d) of section 60CC(3).
·Practical difficulty of implementation of orders. This consideration is set out in paragraph (e) of section 60CC(3).
·Avoiding further proceedings. This consideration is set out in paragraph (l) of section 60CC(3).
·Other relevant matters. This consideration is set out in paragraph (m) of section 60CC(3).
Insofar as it is possible in these interim proceedings, it is appropriate to consider the matters set out in section 60CC(3) before addressing the primary considerations to which I have referred.
Applying Section 60CC(3) Considerations
Issues Relating to the Children - Their Views, Level of Maturity, Culture And Relationships
Any views expressed by the child
Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
Since early July 2017, B has expressed a desire to continue living with her father and a reluctance to return to living with her mother. In the circumstances of this case, it is appropriate to give weight to B’s wishes. B is 11 years old and, accordingly, she is at an age where some weight should be given to her opinion.
At paragraph 50 of her report, Ms D refers to B being “readily engaged” in her discussion about her situation.
B also shows a degree of maturity in that the mother acknowledges that B is helpful in the morning and, when living with the mother, would often assist the mother with making lunches for herself and her siblings.[6]
[6] Family Report dated 17 February 2016 at [25].
B has also consistently expressed her desire to live with her father. At paragraph 45 of the mother’s affidavit filed 28 August 2017, the mother states that on the first day back at school on 18 July 2017, she attended the children’s school in order to provide some medication for G. The mother referred to a conversation with an administrative staff member during the course of which the staff member said to the mother “[B] also told me herself that she doesn’t want to live with you anymore, she is now living with her dad and that if you try to collect her, she will run up here to the office”.
B has also expressed a similar view to therapists at C Group on 11 August 2017 and 18 August 2017.[7] Further, a similar desire has been expressed by B to the ICL.[8]
[7] Exhibit ICL 4.
[8] Affidavit of Ms Kyle filed 3 August 2017 at Annexure A.
I also agree with the ICL that the evidence that is available at this stage of the proceedings suggests that, from B’s perspective, there is a proper basis for B’s desire to live with her father and not her mother.
In that respect, in her report, Ms D notes concerns regarding the mother’s parenting capacity including in respect to setting boundaries, controlling the children’s behaviour, planning and organising. A specific concern was the mother’s inability to ensure that the children arrive at school on time. Ms D also notes some limitations in the mother’s ability to be emotionally attuned to the needs of the children.[9]
[9] Family Report dated 17 February 2016 at [24, 25, 58, 72 and 78].
Ms D records B answering a question as to her mother’s response to her siblings misbehaving with the reply “mum gets upset because [F] doesn’t listen to her”.[10] Ms D also notes that B advised her that she can become sad when she is with her mother because “mum plays on her phone a lot” and she does not pay attention to B or her sisters.[11]
[10] Ibid at [57].
[11] Ibid at [58].
B’s evidence is also consistent with that of her mother. At paragraph 17 of the mother’s affidavit filed on 3 August 2017, the mother expressed difficulty in emotionally coping with aspects of parenting because she is “filled with fear and anxiety”.
Further, the evidence that is before the Court indicates that B was exposed to distressing events when she lived with her mother. In that respect, at paragraph 13 of the mother’s affidavit sworn on 27 August 2017, the mother states:
In June 2017 [F’s] behaviour deteriorated and I wanted to get her therapeutic help. [F] was having almost daily tantrums, screaming and being violent to me and her sisters, and refusing to go to school some days, her meltdowns causing the other is to be late for class…
The mother contends that the Court should not have regard to the concerns expressed by B because she has been coached to make complaints by the father. In support of that contention, the mother refers to a letter, from Dr T and Ms V from C Group, to the ICL in which they report that, in recent therapy sessions, B has used adult language in referring to life in her respective parent’s households.[12] This, they opined, was more consistent with B repeating what she had been told by an adult than reflecting her own views.
[12] Exhibit ICL 4.
I agree with the ICL that, contrary to the suggestion by Dr T and Ms V, B has effectively been coached to make unfounded allegations. The concerns that B has expressed are more consistent with her experience of ill-discipline in her mothers’ household, her routine being disrupted by her sisters’ conduct and the fact that she has been physically hurt by F. B’s views are also consistent with the level of emotionality that the mother has acknowledged as existing in her household. It is entirely understandable that B’s wishes to have a reprieve from what she has described as disorganisation, lack of discipline and a highly emotional and volatile environment.
As will be discussed below, there is also evidence that B perceives that she has been blamed by her mother for F’s poor conduct.
In that context, at paragraph 71 of the mother’s affidavit filed 28 August 2017 at page 6 the mother states:
71. The most worrying and saddest thing [B] has said about why she doesn’t want to come home to me is, ‘you said you don’t want me around.’
71.1 I have talked this through with [B] at school on 18 July 2017 and in our first family therapy session with [Ms V]. I had said to [B] ‘it would be easier if you weren’t around’ only in the context of me trying to calm [F] down when she was having a meltdown when [B] was being unhelpful by teasing [F]. I have explained this to [B] and reassured her that I love her and do want her around. [B] appeared to accept my explanation about this misunderstanding.
The solicitor for the mother referred to that aspect of the mother’s evidence in submitting that the mother’s statement to B has been misinterpreted and was not a reflection of the mother’s actual desire.
The mother’s statement to B is however consistent with clinical notes provided by the K Hospital in respect to F’s admission on 2 June 2017. Those notes record the mother as reporting that B has little patience with F and “knows how to push her buttons”.
The mother’s report, that F’s conduct is, at least in part, due to the conduct of B in pushing F’s buttons, is consistent with the father’s affidavit filed 18 August 2017 at paragraph 35, where he states that B has expressed concern to him that her mother blames her for F’s poor conduct and being late for school.
I am satisfied that B’s perception that her mother blames her for F’s poor conduct is, together with the other considerations to which I have referred, a motivator for B not wishing to return to live with her mother.
The nature of the relationship of the child with each of the child’s parents and other persons
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
Counsel for the mother submitted that the Court would be reluctant to make an order that resulted in B being separated from not only her mother but also her siblings. I recognise that as being a concern in these proceedings.
However, that concern needs to be balanced against the issues of risk in making an order for B to resume living with her mother. The issue of risk is further discussed below.
The maturity, sex, lifestyle and background of the child and either of the child’s parents
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
The parties’ separation and subsequent hostilities have impacted upon all of the parties’ children, including B, who is suffering from emotional distress. Notes produced by P Group in respect to therapy provided to B in the period from May until July 2015[13] refer to B being tired and overwhelmed, feeling pushed aside and as being angry and annoyed. The notes predict that B will struggle as result of the parental conflict and her domestic situation. The notes also predict that those difficulties will become more acute over time. Regrettably this has occurred.
[13] Exhibit D6.
It is therefore necessary to recognise that the orders in these interim proceedings will impact upon a child who is already in an emotionally vulnerable condition.
The culture of the child if the child is Aboriginal or a Torres Strait Islander
Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander.
This consideration is not relevant.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
Long term decision making, time and communication
Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
This will be a matter requiring consideration at final hearing.
The parent’s obligations to maintain the child
Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
This will be a matter requiring consideration at final hearing.
The capacity of each of the child's parents
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
I have earlier referred to the concerns about the mother’s parenting capacity that were expressed by Ms D in her report.
At paragraphs 22, 28 and 29 of his affidavit filed 18 August 2017, the father outlines his concerns regarding the extent to which the children have had absences from school when they have been in the mother’s care. It is not possible to determine the reason for those absences in these interim proceedings. However, the mother acknowledges that she experiences difficulty in getting the children to school on time.[14]
[14] Affidavit of the mother filed 28 August 2017 at [72].
The mother also acknowledges that there are some limitations to her parenting capacity which she states have been impacted by fear and anxiety induced by the father’s conduct.
It also appears that F and G are having difficulties. In that respect, notes produced by O Services, which runs the Brighter Futures Program, includes a file note of a telephone discussion between a representative of O Services and a woman’s support service that is providing assistance to the mother. The report dated 29 May 2017 notes that the mother reported that G was, at that time, wetting her pants on a daily basis.[15]
[15] Exhibit ICL 3.
There is also evidence that F has had suicidal thoughts. The initial recording of that occurring was in November 2014. More recent references to that concern are in the clinical notes provided by the K Hospital in respect to F’s admission on 2 June 2017.[16] There is a further reference in the notes produced by C Group in respect to therapy provided on 7 and 9 June 2017.
[16] Exhibit D4 of F2.
F’s difficulties are also referred to at paragraphs 13 and 14 of the mother’s affidavit filed on 28 August 2017 in the following terms:
13. In June 2017 [F’s] behaviour deteriorated and I wanted to get her therapeutic help. [F] was having almost daily tantrums, screaming about being violent to me and her sisters, and refusing to go to school some days, her meltdowns causing the other is to be late for class. When [F] started talking about wanting to be dead, I talk to our GP, [Dr W].
14. When [F] had a meltdown and ran away and hid at school on Friday to June 2017 I took her to the [K] Hospital emergency. From the hospital, I called a clinical psychologist, [Ms X], who had been recommended to me by a friend, and made an appointment for [F] for the following Friday.
At paragraph 91 of her report, Ms D reports that the mother struggles to be emotionally attuned to the needs of her daughters and to cope with matters relating to their day-to-day care in a consistently adequate manner.
Clinical notes produced by C Group in respect to a therapeutic session on 10 August 2017 record B expressing her concern regarding her sisters’ dishevelled appearance. The therapist, who recorded B’s concerns, notes that there is some substance to B’s observations.
It is to be noted that the mother attributes the behavioural and personal difficulties of the daughters to the conduct of the father. It is not possible, in these interim proceedings to be definitive regarding the cause of the children’s difficulties. However, in the context of Ms D’s report, it is clear that there is a real issue to be considered at final hearing regarding the mother’s parenting capacity, the extent to which she has recognised that as an issue impacting upon the children, and steps that she is taking to address those difficulties.
Moreover, irrespective of the cause of the difficulties being experienced by both G and F, the evidence suggests that the mother is herself experiencing difficulty in coping with their behaviour and this is clearly impacting upon B. I respectfully agree with the submission of the ICL that, even on the mother’s own evidence, life in her household, at least since June 2017, has been emotionally volatile and unpredictable and that this has impacted upon B’s decision that she wishes to live with her father.
In contrast, in her report, Ms D notes that B described her father’s household as being more regimented.[17] In a conversation with a counsellor on 12 July 2017 B refers to life at her father’s place as being “normal” and as being a little more organised in that there is less chaos and tantrums. In that same conversation, B expressed the view that her mother needs to exert greater discipline and control over F and that F hurts not only B but also G.[18]
[17] Family Report dated 17 February 2016 at [53 and 55].
[18] Exhibit ICL 2.
The hospital discharge summary, regarding F’s admission to the K Hospital on 2 June 2017, recorded F’s presentation as being one of acute distress with behavioural disturbance at school that morning.[19] The summary also records that F was hiding behind a door, refusing to go to class and stating that she did not want to go to her father’s place that afternoon.
[19] Affidavit of the father filed 18 August 2017 at page 35 of annexures.
Correspondence between the parties indicates that the mother’s mental health is an issue in the proceedings. The solicitor for the mother denied that the mother has any mental health issues and that assertions made by the father through his solicitors to that effect, in itself, amounts to emotional abuse. Senior counsel for the father noted, however, that, at paragraph 8 of the mother’s Financial Questionnaire dated 18 April 2017, she asserts that she is suffering from depression and anxiety for which she is taking medication.
As I indicated during the course of the hearing, the Court will be required to inquire into the parties’ parenting capacity and any reasons why the parties may be experiencing difficulty in respect to their parenting capacity. This includes whether there are any mental health issues that are impacting upon their parenting capacity and if so, what steps, if any, are being taken to address those issues.
Attitude and parental responsibility
Section 60CC(3)(i) requires the Court to consider the attitude to the child, and parental responsibilities, by each of the child’s parents.
The mother has shown some insight into the factors that may be causing B difficulty insofar as she has acknowledged the need for change on her part. In a phone call with C Group on 27 July 2017, the mother acknowledged that her focus has been on F and that she needs to spend more time with B.[20]
[20] Exhibit ICL 2.
I have earlier referred to the fact that the mother made a statement to B that “it would be easier if you weren’t around”. The mother has explained the circumstances in which she made that comment, nevertheless, quite clearly, it was an irresponsible thing to say.
The mother’s actions in filming F’s tantrums, on her mobile phone, despite a specific request by F for her to stop, is also a concern.[21] There is no explanation as to why the mother was more interested in obtaining evidence regarding F’s conduct rather than attempting to soothe and comfort her.
[21] Clinical notes produced by C Group dated 9 June 2017.
There is also a concern regarding the fact that the mother has approached B at her school. This could reasonably be expected to have caused B distress and embarrassment in front of her classmates. If repeated, it also has the potential to remove the school as a sanctuary from the stresses B has been experiencing in her family life.
In terms of the father’s conduct, the mother asserts that the father has been irresponsible in keeping B in his care contrary to the applicable orders. On that basis, the mother asserts that the Court cannot feel confident that the father will promote B’s relationship with the mother.
The mother also expressed a concern that the father took B with him to the Suburb Y police station on 21 July 2017 for the purpose of obtaining an Apprehended Domestic Violence Order. This, the mother contended, was irresponsible because it further embroiled B in her parents’ dispute and can only have been extremely distressing for her. I agree the father’s conduct was irresponsible and could reasonably have been expected to cause B to be distressed.
The mother alleged that the father has also been irresponsible insofar as she asserts that the father has not cooperated in the children attending therapy. The father, on the other hand, asserts that the mother has attempted to use therapy for forensic purposes related to the litigation rather than to address the needs of the children. In these interim proceedings I am not in a position to make findings in respect to that issue. I note the parties are in agreement for the children to continue receiving therapy at C Group, however, the father objects to that therapy being provided by Ms V.
Issues of family violence
Any family violence involving a child or a member of the child’s family
Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
The mother alleges that the father has engaged in acts of family violence in the nature of emotional abuse. The mother refers to incidents that occurred in 2011 that necessitated police attendance as well as incidents that occurred in December 2012 and November 2014.[22]
[22] Exhibit F2.
The solicitor for the mother further submitted that, through his solicitors, the father has made accusations against the mother that she requires treatment to address her poor mental health. It was submitted that these accusations and denigration’s amounted to “psychological battering” of the mother.
The tone of some of that correspondence is perhaps unnecessarily confrontational, however, I do not, in these proceedings, propose to conduct an analysis of each of the letters sent to and from the parties’ solicitors with a view to making findings as to whether they were or were not appropriate.
In these interim proceedings I am unable to make findings in respect to the mother’s allegations that the father has engaged in acts of family violence. I note, however, that there are no allegations that the children are at risk of suffering physical harm in the father’s care.
Whether any family violence order has or continues to apply
Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
This consideration is not relevant.
Effect of change
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
B has been living with her father since the July 2017 school holidays. Requiring B to return to live with her mother would be a significant change for her. B states that she would respond to that change by running away. I am satisfied that there is every possibility that she would do so. This is a concern particularly where there is no evidence of a safety plan being in place to address that risk.
Senior counsel for the father submitted that, in the event of the Court making orders for B to spend time with her mother, it should occur on a graduated basis and after the ICL has had the opportunity to explain those orders to B. There is, with respect, merit in that submission and I propose adopting that course of action.
Practical difficulty of implementation
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is not a relevant consideration at this stage of the proceedings other than to the extent that I accept that arrangements for B to resume spending time with her mother should be undertaken with the assistance of therapy.
Avoiding further proceedings
Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The mother contends that, if the father succeeds in obtaining the relief that he seeks in these proceedings, he will be encouraged to also seek to persuade the two younger children to live with him. This, it was submitted, is likely to give rise to further litigation.
The issue before the Court in these proceedings is however, based on the immediate circumstances confronting B. Moreover, these orders are interim orders and more detailed consideration of the issues that have been traversed in these proceedings will be undertaken at the final hearing. Accordingly, this consideration is not relevant at this stage of the proceedings.
Other relevant matters
Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.
There are no other considerations that I have taken into account in these interim proceedings.
Primary considerations
Meaningful relationship
In this matter, both parties acknowledged that it is in the children’s best interests to have a meaningful relationship with both parents in terms of section 60CC(2)(a). I accept that to be the case. In Sigley v Evor [2011] FamCAFC 22 at paragraph 26, the Full Court confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.[23]
[23] Citing Mazorski & Albright (2007) 37 Fam LR 518 at [26].
The solicitor for the mother submitted that the Court should not make the orders sought by the ICL or the father. It was submitted that such an order, providing for B to continue residing with her father, would adversely impact upon B having a meaningful relationship with her mother and, indeed, her sisters. In that respect, the mother refers to the views expressed by Dr T from C Group in contending that there is a real risk of severing the relationship between B and her mother if B is permitted to continue residing with her father.
I accept that making such an order would impact upon B’s relationship with her mother. However, that consideration needs to be balanced against the issue of risk which I will discuss below.
Unacceptable risk
Determining whether a child would be at an unacceptable risk with a parent involves a balancing exercise. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the task of determining whether a child would be at an unacceptable risk in spending time with a parent as being to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access”. Specifically, the Full Court said it is necessary to determine whether “that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
In M v M (1988) 166 CLR 69 the High Court said at paragraph 78:
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of [harm].
Writing extra-judicially, Hon. John Fogarty AM, a former judge of this Court said):
… unacceptable risk in the High Court’s formulation [in M v M] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.[24]
[24] Hon. John Fogarty AM in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261.
Where an unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.[25]
[25] Stott & Holger and Anor [2017] FamCAFC 152 referring to (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
In interim proceedings it is difficult to identify unacceptable risk and determine whether reasonable safeguards can mitigate against that risk. In Cowling v Cowling [1998] FamCA 19 at paragraph 18 the Full Court said, in respect to interim proceedings:
Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Despite the limitations on the Court’s ability to make findings in respect to controversial facts, the Court is not relieved of its obligation to consider risk. In that respect as in SS v AH,[26] the majority of the Full Court (Boland and Thackray JJ) said:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[26] [2010] FamCAFC 13 at [100], see also Keats & Keats [2016] FamCAFC 156 at [9] and Salah & Salah (2016) FLC 93‑713 at 81,516 – 81,517 [39] – [40].
It is to be observed that the reference, by the Full Court in SS v AH,[27] to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk,[28] as long as there is a proper basis for those “possibilities”.
[27] Ibid.
[28] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
In terms of risk, the mother referred to an email from Ms S dated 20 April, 2017 to the father in which Ms S states:[29]
In regards to your question about how the girls are going… Having not seen them for many months, I can only comment on their presentation from late last year.
It is very evident to me with each of the girls’ presentations that the impact of the toxic relationship between you and [Ms Butters] is only affecting them negatively. I do believe that the girls would benefit from further counselling and support that this will only be beneficial if the therapeutic space is only used for this purpose. Any attempts to involve the legal issues or ongoing disputes in sessions only places unfair pressure on the children who are then unable to use the space for their own processing but instead worry about what they are saying and how it will be used and documented. This is obviously not in the best interests of their emotional and mental wellbeing.
I think each child displays clear indicators that they are struggling with these difficulties. [B] is very much caught in the middle of the conflict and I believe that she is being exposed to far too much of the details around the disputes and conflict. This is distressing for her and challenges her loyalties to both her parents which is unfair and potentially emotionally abusive. F is displaying a number of signs of emotional distress through her behavioural challenges. She may be unable to verbally express her distress but she is clearly overwhelmed and disturbed about all the ongoing conflict and this needs attention.
I think [G] possibly flies under the radar as the youngest but I believe that she is well aware of the issues which to have an impact on her and she is clearly able to articulate her distress around her dual loyalties, and the ongoing conflict and toxic relationship.
The lack of civil communication between you and [Ms Butters] is without doubt having a negative impact on the girls and I cannot implore you both enough to find a way to parent these children with some basic levels of open communication. Personal grievances need to be placed secondary to the needs of the children and I do not believe this is happening enough. Failing this, the children need to be completely quarantined from all discussion around disputes, frustrations and conflict as they find it distressing, confusing and it places them in an impossible position. They love both of their parents, as they should. They should never have to do be made to feel that either parent has done wrong, or even be exposed negatively relating to the other parent. They do not have the skills to navigate such complex dynamics and it is therefore up to you and [Ms Butters] to find a way of managing this for them, not in front of them.
[29] Affidavit of the mother filed 28 August 2017 at Annexure D.
Ms S is a child and family counsellor with the Counselling and Therapy Clinic who provided therapy to the family in the period between August and December 2016. I do not, with respect, accept the mother’s contention that Ms S’s email reflects primarily on the father’s conduct. Ms S’s comments are perceptive and pertinent and reflect on both parties. Both parents should regard themselves as having been put on notice as to the impact that their conduct is having on their children. This will be a very significant matter to consider at final hearing.
In the context of the children’s emotional vulnerability, there are clearly risks associated with making an order to change B’s living arrangements. Those risks were accurately summarised by the ICL as being the following:
·In the context of the intense parental conflict that exists in this case, it may be dangerously empowering for B, at 11 years of age, to perceive that her conduct has determined the outcome of her living arrangements.
·Making such orders would also involve separation of the sibling group which may have a negative impact on B’s long-term relationship with her sisters.
·There is also a risk that if, at final hearing it is found that the father has engaged in a course of conduct that has resulted in B being alienated from her mother, the orders would have the effect of giving validity to that conduct. It would also result in B being further exposed to and influenced by such conduct if she spends a greater amount of time with her father.
On the other hand, there are also risks associated with making orders for B to return to live with her mother in circumstances where it is contrary to her wishes. In those circumstances B may feel disempowered and form the view that her wishes have not been considered.
I also agree that there is a risk that such an order would be counter-productive in that there is a risk that B will “up the ante” in terms of engaging in more confrontational conduct with her mother. In that context, there is evidence that B may be using the forum that she has in therapy sessions at C Group to verbally abuse and berate her mother in front of the therapist as a witness.[30]
[30] Exhibit ICL 4.
Also of concern are statements, made by B to the effect that, if she is forced to return to live with her mother, she will run away.[31] I acknowledge that to be a possibility.
[31] Affidavit of the father filed 18 August 2017 at [72,76 and 80].
A matter of further concern is the possibility that B may not attend school if she wishes to avoid an order requiring her to return to the care of her mother. In that respect, notes made in a therapy session on 27 July 2017 record B as saying that, for a period of time, she did not attend school as she was scared that her mother would take her home to her mother’s place.[32]
[32] Exhibit ICL 2.
Evaluation of section 60CC considerations.
There are significant issues of factual controversy in this matter. Those issues primarily relate to the mother’s parenting capacity on the one hand and, on the other, whether the father has engaged in conduct to alienate the children, in particular B, from her mother. As previously noted, I am unable to determine matters of factual controversy in these interim proceedings.
The most significant factor that has influenced my decision to vary the previous orders, which provide for B to live with her mother, is B’s expression of desire to live with her father. That has occurred in circumstances where there is a reasonable basis for that desire.
This includes B’s account of ill-discipline that exists in her mother’s household, poor conduct, in particular by F, and the highly emotional and volatile atmosphere that exists in the mother’s household.
In contrast, there is evidence that the atmosphere in the father’s household is more stable and calm and that environment provides the opportunity for B to receive some reprieve and respite from the stress and tension that she has experienced in living in her mother’s household.
In those circumstances, there is an unacceptable risk that B would be exposed to emotional distress and potentially psychological harm if she was required to resume living with her mother.
There is also a physical risk to B if she carried out her threat to run away if orders are made for her to return to live with her mother. In the circumstances of this matter, that threat cannot be ignored as one that is hollow.
I note that my decision is at odds with the recommendations of Dr T and Ms V of C Group. By way of summary, they have expressed the view that if orders are not made requiring B to return to live with her mother, there is a substantial risk of even greater alienation from her mother and her sisters. I note that there is a question as to whether C Group has been provided with all relevant documentation that would enable the therapists to form a considered view of appropriate parenting arrangements. In particular, it does not appear that C Group has been provided with a copy of the Family Report prepared by Ms D.
In those circumstances, and in taking a cautious approach in these interim proceedings, I do not propose making orders sought by the mother. The views that have been articulated by Dr T and Ms V can of course be further articulated and the subject of more detailed consideration by way of cross-examination at the final hearing.
I note that subsequent to the hearing of this matter that the parties agreed to orders for the appointment of a single expert. Having regard to the matters that I have considered in this decision, I am of the opinion that the orders proposed by the ICL best address the Court’s concern. I will however, vary those proposed orders to provide for B to resume spending time with her mother on a graduated basis.
As noted, the father supports B attending therapy with C Group but voiced some concern regarding B receiving therapy from Ms V. The ICL, on the other hand, submitted that it would not be practical for the Court to purport to dictate how C Group provides therapy to the parties’ children. I accept the merit of that submission by the ICL.
For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 11 October 2017.
Associate:
Date: 11 October 2017
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