Byrne & Byrne
[2022] FedCFamC1F 343
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Byrne & Byrne [2022] FedCFamC1F 343
File number(s): PAC 2882 of 2019 Judgment of: BRASCH J Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – CHILDREN – Family Therapy – Where the matter was listed for a final hearing and the matter was adjourned part-heard – Where an oral application was made by the applicant father that the parties attend reportable family therapy to try to repair the relationship between the father and the older child – Where the Independent Children’s Lawyer supported the application – Where it was found that the therapy should be non-reportable– Non-reportable family therapy ordered. Legislation: Family Law Act 1975 (Cth) Part VII, ss 13A(1)(d), 60B, 60CA, 60CC Cases cited: M v M (1988) 166 CLR 69; [1988] HCA 68
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
U & U (2002) 211 CLR 238; [2002] HCA 36
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 13 May 2022 Place: Sydney Counsel for the Applicant: Mr Daniel Solicitor for the Applicant: Galluzzo Lawyers Counsel for the Respondent: Ms Wheeler Solicitor for the Respondent: Matthews Folbigg Pty Ltd Counsel for the Intervener: Ms Hayward Solicitor for the Intervener: Legal Aid NSW Sydney Central Family Law ORDERS
PAC 2882 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BYRNE
Applicant
AND: MS BYRNE
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
13 MAY 2022
PENDING FURTHER ORDER THE COURT ORDERS BY CONSENT THAT
1.The father’s Tuesday time with X, born 2014, from 4.00 pm to 7.00 pm be suspended.
PENDING FURTHER ORDER THE COURT ORDERS THAT:
2.The parties engage in intensive non-reportable family therapy with Dr C (“the Family Therapist”) if she deems the family suitable.
3.For the purposes of the non-reportable therapy in relation to Order 2 above, the following shall occur:
(a)the parties shall reasonably accept the date/s scheduled by Dr C to conduct the therapeutic sessions;
(b)the parties shall comply with all the reasonable requests and directions of the Family Therapist for the engagement of the children or either of them with the Family Therapist;
(c)the parties shall provide the Family Therapist with all the relevant authorities to ensure that the Family Therapist is able to discuss with any other health professional engaged with the children or either of them all matters deemed relevant to the Family Therapist;
4.With respect to the costs associated with Order 2:
(a)the father shall meet the costs associated with any therapy sessions for him and for both or either of the children; and
(b)the father shall meet the costs associated with the Outcomes and Further Directions Report referred to in Order 6.
5.In the event the mother is recommended to attend any family therapy sessions on her own with Dr C she will meet the costs in the first instance but is at liberty to seek a contribution from the father at the part-heard final hearing.
6.The father will request the Family Therapist in Order 2 above to prepare and release an “Outcomes and Future Directions Report”, to the parties and to the Court at least one (1) calendar month prior to the part-heard final hearing of the matter in relation to the following matters:
(a)any outcomes of family therapy; and
(b)any further directions and recommendations the Family Therapist makes with respect to family therapy.
7.That leave be granted to the Independent Children’s Lawyer (“ICL”) to provide Dr C with copies of the following documents:
(a)Child Inclusive Memorandum dated 5 November 2019;
(b)Family Report of Ms D dated 16 September 2020; and
(c)Report of Ms E dated 31 May 2021.
8.That the father at his election will do all acts and things and sign all documents in order to engage in Intensive Reportable Therapy with a trained psychologist or psychiatrist specialising in Family Violence as recommended or approved by the ICL (“the Therapist”) at his sole expense in relation to family violence committed by him, and its effect on the mother and/or the children and/or each of them.
9.If the father elects to attend upon Intensive Reportable Therapy, the father will request the Therapist in Order 8 above to prepare and release a report to the parties and to the Court at least one (1) calendar month prior to the part heard final hearing of the matter in relation to the following matters:
(a)Initial presentation of the father and whether the father is deemed suitable to engage in the therapy envisaged by this Order; and if not why not (and the father shall notify all parties if that be the case with liberty to apply to have the matter relisted before the Honourable Justice Brasch at the earliest opportunity) or in the event the Therapist deems the father suitable for such therapy then additionally;
(b)a summary of issues identified and which are the focus of therapy;
(c)a summary of therapeutic treatment, including length of treatment and frequency of sessions;
(d)the opinion of the Therapist in relation to the issues identified in (b) above in terms of
(i)the attitude of the father and his capacity to embrace, implement and follow the suggestions and or therapy;
(ii)any recommendations in relation to ongoing treatment; and
(iii)any other matters relevant that would assist the Court.
10.That leave be granted to the ICL to provide the Therapist with copies of the following documents:
(a)Child Inclusive Memorandum dated 5 November 2019;
(b)Family Report of Ms D dated 16 September 2020; and
(c)Report of Ms E dated 31 May 2021.
11.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and the children are directed to attend with a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (“the Family Consultant”) for the purposes of the preparation of an Updated Family Report, with such report to be released no later than one (1) month prior to the part-heard final hearing.
12.The parties and the children shall attend interviews at such times, dates and places, and by such means as the Family Consultant may advise.
13.No later than 4.00 pm 23 May 2022, the parties must provide their contact telephone numbers and email addresses to …@fcfcoa.gov.au.
14.The Family Consultant shall be at liberty to inspect any material filed by the parties or produced under subpoena in these proceedings.
15.That by this order the parties and ICL authorise the Family Therapist, any Therapist for the father as defined in Order 8 and the Family Consultant, be authorised to communicate with each other as each of them consider relevant.
16.The ICL is granted liberty to relist the matter, at short notice by notifying …@fcfcoa.gov.au, coping the other parties.
17.This matter is listed for part-heard final hearing for six (6) days commencing 27 March 2023 in relation to parenting issues.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Byrne & Byrne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE JUDGMENT
BRASCH J:
Before me are competing oral Applications in a Proceeding.
The father seeks that pending further order that the parties engage in Intensive Reportable Family Therapy with Dr C (“the Family Therapist”), and that the father’s time with X (“X”) be suspended until further order, the suspension is proposed by consent. The ICL supports an order for Intensive Reportable Family Therapy.
The mother in her Application in a Proceeding seeks that the father do all acts and things to engage in Intensive Reportable Therapy with a trained expert in family violence in relation to the family violence committed by him upon the mother and the children.
I gave the parties leave to bring their applications orally, contingent upon giving all other parties notice of the orders that they were proposing. These were outlined in a summary yesterday and Minutes of Order provided this morning.
The parties are in agreement that pending further order, the father’s time with X is suspended.
It is uncontroversial that Y attends supervised time with his father and that they have, to quote the mother in her evidence earlier this week, a good relationship, to which I add, albeit supervised. The Family Consultant at paragraph 81 of her report dated 16 September 2020 evaluates this relationship as positive and well established.
It is also uncontroversial and common ground that X has experienced distress around spending time with the father, and, since December 2021, has not been attending the supervised time, notwithstanding orders made on 2 September 2021 by Senior Judicial Registrar Crawford.
It is the mother’s case that a no contact order, if I could summarise it as that, would be made on a final basis. There are many reasons she advances for this, including family violence and abuse that would see me find, on her case on a final basis, that the father is an unacceptable risk to the children. She seeks an order for sole parental responsibility of the children.
On a final basis, the father proposes the children graduate their time with him to three nights a fortnight, unsupervised. I anticipate he will say he is not an unacceptable risk to the children. He seeks an order for equal shared parental responsibility.
Whilst I have many concessions made by the father about violence and abuse, unacceptable risk, as was appropriately acknowledged by counsel at the bar table, involves considerations wider that just those concessions. I will need to look at the evidence as a whole, not just the parts of it that I have before me, being day five of the trial
Thus I cannot determine the issues of unacceptable risk on an interim basis. Appropriately, no counsel suggested I would do so.
THE LAW
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it as set out in s 60B, form the framework for the part of the Act dealing with parenting. Section 60B(1) and s 60B(2) provide that:
(1) The objects are to ensure that the best interests of children are met by:-
(a) ensuring that children have the benefit of both of 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 that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, I must regard the best interests of the child, or children as it is here, as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a court in determining what is in a child’s, in this case children’s, best interests.
Importantly when it comes to matters of serious violence and abuse as are made here, it is important to recall what the High Court said in M v M (1988) 166 CLR 69 (“M v M”), that was of course a case in relation to sexual abuse, but principles being just as relevant to allegations of physical and emotional abuse. M v M stands for a number of important propositions, one of which is:
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion [as it was in that case] on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse [as it was there] on the balance of probabilities [76]
(emphasis added).
Whilst the allegations in this matter are serious and important, and whilst the father’s concessions are important too, they are serious allegations that remain at large. But mindful that I am bound by the High Court in M v M, the paramount issue in the exercise of my discretion is that the children’s best interests are paramount.
The High Court in U & U (2002) 211 CLR 238 (“U & U”) at 285-286 also recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Part VII of the Act.
Importantly though, as I have already said U & U acknowledges that there will be some cases of abusive relationships where that truth is not self-evident.
What is clear is that on the mother’s case on a final basis, not only will X’s opportunity for a meaningful relationship, that is safe, with her father be terminated, but so will Y’s, in reality.
Section 13A(1)(d) of the Act gives the Court the power to require parties to make use of court or non-court based family services appropriate to the needs of the parties. This power is entirely consistent with the Courts emphasis on families getting supports and assistance appropriate to the needs of that family. As s 11E requires, I have considered whether I ought seek advice from a family consultant about other services. I have decided not to do so in circumstances where
(a)the Family Report is very old; and
(b)the ICL supports family therapy.
I also pause to observe that the Act does not place an obligation on the Court to ensure that orders will provide for the children to have a meaningful relationship with each parent. Rather, as I am reminded by decisions such as McCall & Clark (2009) FLC 93-405 at 122, I should attempt to “craft orders to foster a relationship” with each of the parents where this is in the children’s best interests. Because of the current state of X’s relationship with her father, the only way I can see that an opportunity for a relationship to be fostered – and to do so safely is through family therapy.
X’s counsellor Ms E said in her report dated 31 May 2021 that at that time, not seeing the father had a positive effect on X’s mental health and overall wellbeing; she is yet to be cross-examined. She also said a resumption of time would require psychological support to manage X’s anxiety.
Ms E is of course seeing X for a completely different purpose than family therapy or indeed even a family report writer. She did however raise psychological support if any time was to be resumed.
I discussed with counsel this afternoon, that I am not proposing to make any time with orders on an interim basis. The orders of 2 September 2021 are still in place, albeit the order for X to spend time with her father is suspended by consent.
I heard the mother say in evidence in cross-examination that X needed, past tense, to hear the father take responsibility for his actions. She is understandably content with X’s current counselling, but I observe that it is plainly not a forum which provides for X to hear, if in any way that was thought appropriate for X by the Family Therapist, her father take such responsibility.
It is plain when I look at Mother’s Exhibit 7 tendered in these proceedings that as recently as towards the end of last year, X still had concerns about her father. The mother spoke in the past tense. Mother’s Exhibit 7 helps to, amongst the helpful submissions that were made before me, persuade me that X still has concerns and that we ought explore assisting her with.
It is submitted by the mother that Intensive Therapy is premature and that I should wait until the end of all the evidence being tested, but that will perhaps be 8-12 months away, and I am not prepared to risk an estrangement between X and her father that may be too entrenched by then.
What I am going to order is a safe, child focused and supportive family therapy process because that might give X an opportunity to hear her father take accountability for his past actions, if thought by the therapist to be appropriate. I agree with the mother’s evidence in cross-examination that X “deserves that chance” of the benefits of a good relationship with the father. I could not agree more that this would be in X’s best interest. However, for her to have that chance, deserving that chance, an opportunity to do so, and to do so safely, is required.
Equally, for Y, his best interests, at least on an interim basis, requires exploration of a therapeutic process of family therapy that if it improves X’s view of her father, or if it restores or rebuilds X’s relationship with her father, then that will only be of benefit to Y. This of course does not detract from either party running the cases that I have already described on a final basis.
I have confidence that the Family Therapist chosen by the ICL will proceed in a way which is safe and supportive for X and will not cause her undue or disproportionate distress.
However, I do not want this process to be a forum for evidence gathering so while I will order it be therapeutic, it will be non-reportable.
I will however make an order that the updating Family Report Writer, the Family Therapist and any person the father may see, will have the authorisation of the parents and ICL to communicate with each other.
It will be a matter for the Family Therapist how this is conducted; she is the expert. This will include whether or not Dr C brings X in contact with the father, the father in contact with X and the mother together, and Y’s involvement as well.
The father has given evidence that he will meet the costs of family therapy that involves, himself and X. He will also meet the cost if Y is included. His Minute of Order sought however that the parties equally meet one half of the costs associated with the therapy sessions and any reports that are produced.
Events overtook themselves and the costs issue came down to the father not resiling from the evidence he gave from the witness box; he will pay the costs of family therapy where it involves himself and either or both of the children and indeed if he will be attending at the same time that the mother is invited, he would be paying those costs anyway.
With respect to the costs, should there be a standalone session between the mother and the Family Therapist, I accept and I am grateful to counsel for the mother for the suggestions that she meet such costs in the first instance but have liberty to seek reimbursement at the trial.
I will also order that the parents follow any directions that may be required by the ICL to facilitate the family therapy process and any directions of the Family Therapist.
Whilst the counselling itself, or the therapy, will be non-reportable, I will make provision for what I will call an “Outcomes and Future Directions” report from the Family Therapist.
I note in making this order that the Family Consultant at paragraph 88 of her untested report evaluated that given the history of the parties the mother may find the children reporting negative experiences when spending time with the father, even those that do not pose a risk of harm to the children. Of course I am not proposing that X spend time with the father per the September 2021 Order, but I acknowledge that this order [for family therapy] may have some detrimental impact on the mother’s ability to respond to any difficulties experienced by the children in a child-focused and appropriate manner. I note that the Family Consultant recommended that the mother engage in counselling. To her credit, she has done so. I am, on an interim basis, confident the mother will seek the support that she may need if she finds the family therapy process challenging through her psychologist and/or psychiatrist.
I now turn to the mother’s Application in a Proceeding for the father to attend on Family Violence counselling.
I am not going to make that as a prescriptive order upon him. I am going to make an order that he is at liberty to do that, or any variation of that he so chooses. I have heard what he has had to say over almost four days in the witness box. He too has listened to what has been said of him, said about him, and said of the confidence that the mother needs. Whether he does those supports or further courses will be a matter for him.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 13 May 2022
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