CHARD & YONG

[2020] FamCA 385

FAMILY COURT OF AUSTRALIA

CHARD & YONG [2020] FamCA 385

FAMILY LAW – CHILDREN – parenting – consent orders – where issues raised of family violence – ongoing relationship between the child and the Father – best interests of the child –  where consent orders made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Chard

RESPONDENT: Ms Yong

FILE NUMBER: CAC 1638 of 2016

DATE DELIVERED: 14 May 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 11-14 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Howard

SOLICITOR FOR THE APPLICANT: Stanfords Solicitors

SOLICITOR FOR THE RESPONDENT: Legal Aid, ACT

Orders

By Consent

1. That all previous orders in relation to the child X born … 2015 ("X") be vacated.

2. That the Mother have sole parental responsibility for X.

3. That notwithstanding Order 2 the Mother shall inform the Father:

   (a)if X suffers any serious illness, other than the usual childhood illnesses;

   (b)about X's progress at school at the end of Terms 2 and 4 in each year;

   (c)if she has travelled internationally with X, within 2 weeks of her return. In the event that she wishes to travel internationally then she must ensure that the Father does not miss more than 2 visits within the travel period, which shall be made up upon her return;

4. That the Father shall not spend any time with or communicate with X other than in accordance with these orders, or by written agreement with the Mother.

5. That within 30 days, the Father attend upon a therapist who is qualified to provide psychotherapy, as recommended by Dr D in his report dated 28 September 2017.

6. That the Father provide the therapist with copies of the following documents:

   (i)These orders;

   (ii)Report by Dr D dated 28 September 2017;

   (iii)Family Report by Ms J dated 30 October 2019;

   (iv)Letter from Dr K (being Exhibit ICL#2);

   (v)Progress notes by Dr G (being Exhibit ICL #3)

   (vi)Letter from Dr H (being Exhibit M#2)

   (vii)Hospital Discharge Summary (being Exhibit M#7)

   (viii)Dr L Report being annexure to Mothers affidavit Y20

   (ix)Dr M Report being annexure to Fathers Trial affidavit C21.

7. In the event that the Father is unable to comply with Order 5, due to financial constraints then within a further 30 days, he is to obtain a mental health plan from a GP as follows:

   (a)he shall do so for the purpose of attending on a psychologist, to obtain therapy to enable him to otherwise comply with these orders, in particular to assist him in maintaining a consistent relationship with X;

   (b)he shall provide the GP with copies of the documents set out in Order 6 herein and request that the GP to attach those documents to the mental health plan referral;

   (c)in the event that the GP does not attach the said documents to the referral then the Father shall provide copies of the documents to the psychologist.

8. That the Father attend upon the relevant therapist (in accordance with these orders) for at least 4 sessions, prior to him spending time with X. Thereafter that he attend monthly (or more frequent) sessions with the therapist until recommended otherwise by the therapist. It is intended that the Father receive therapy for at least 2 years, noting the treatment recommendation by Dr D.

9. That the Father commence spending supervised time with X at B Group on weekends and at times advised by B Group:

   (a)As soon as possible, following the Father obtaining a mental health plan; and

   (b)The Father attending at least 4 sessions with a therapist, in accordance with these orders;

   (c)Then for fortnightly visits at such times as B Group has available, noting that time may commence monthly until fortnightly places become available.

10. The Father must be consistent in his attendance at B Group for a period of at least 8 consecutive visits in accordance with Order 9 (c) herein. If he cancels any visits due to illness, he must provide a medical certificate stating the nature of the illness which prevents him attending. The missed visit may not be calculated as part of the 8 visit requirement. (Note: for example, if the father misses one visit with X for medical reasons then he will have satisfied the requirement in this paragraph after he has attended the 9^th scheduled visit, being 8 visits that he has attended and one visit missed).

11. If the Father ceases to attend the therapist he must inform the Mother immediately in writing.

12. The Father shall authorise the therapist to provide the Mother with progress reports at the end of the first 4 therapy sessions and then at the conclusion of every 2 therapy sessions for a period of 6 months.

13. After the Father spends 8 periods of time with X at B Group or after 8 months, whichever is the longer period, the Father will authorise the therapist to provide a report to the Mother recommending whether or not unsupervised visits would be safe for X.

14. No less than 14 days after the Mother receives the report referred to in Order 13, the Father shall commence spending unsupervised time with X as follows:

    (a)for 2 hours (from 12.00pm until 2.00pm) on each alternate weekend for a period of 4 visits;

    (b)for 4 hours (from 12.00pm until 4.00pm) on each alternate weekend for a period of 4 visits;

    (c)for a period of 6 hours (from 10am until 4.00pm) on each alternate weekend for a period of 4 visits;

    (d)thereafter, on each alternate weekend for a period of 6 hours (from 10.00 am until 4.00pm on Saturday). In addition, on those alternate weekends the Father may also spend 2.5 hours on the Sunday for the purpose of taking X to an independently organised swimming lesson or other similar independently organised extra-curricular activity. It is noted that the activity is unlikely to take the entire 2.5 hours but the Father is entitled to use the rest of that time to enjoy a refreshment or other short activity with X.

15. All handovers shall take place at B Group, unless otherwise agreed in writing.

16. If the Father does not attend at B Group for the initial 8 available consecutive visits, in accordance with these Orders, then time shall cease, unless otherwise agreed in writing.

17. If the Father does not continue to attend on the therapist in accordance with these Orders then he shall inform the Mother and time shall cease, unless the cessation of therapy is as a result of the therapist’s recommendation that the Father does not require further therapy, unless otherwise agreed in writing. In the event that the therapist recommends that the Father stop attending on them then the Father shall authorise the therapist to send the Mother a report setting out the reasons for ceasing therapy.

18. In the event that the Father is admitted to hospital due to a mental health event he is to inform the Mother prior to his next visit with X. He shall also authorise the treating medical practitioners to send a copy of a report and/or the discharge document to the Mother, which set out the reason for admission.

19. The parties shall each provide the other with an email address through which they can communicate and shall update that email address whenever it is changed.

20. The Father shall authorise all therapists, doctors and/ or health practitioner who are requested by the Father to provide reports to the Mother in accordance with these orders to provide the reports directly to the Mother and shall provide them with her email address for this purpose. If any of the practitioners decline the Father's request to do so then the Father is to obtain such a report from the therapist and send a copy to the Mother himself.

21. After 18 months, provided that the Father has been spending time with X in accordance with Orders 14(a) to (d), the parties shall attend mediation for the purpose of discussing an increase in time between the Father and X.

22. If mediation is not successful then the Father may make an application to the Court, no earlier than 2 years after making these orders, seeking that he spend more time with X.

23. That the mother will do all things necessary to ensure that X attends on a therapist/counsellor to obtain ongoing support for her mental and emotional wellbeing.

IT IS NOTED THAT

1. It is not necessary for the parties to be in the presence of each other, or to speak to the other party directly in order to comply with these orders.

2. Each party is entitled to provide the other party with an email address which is only utilised for the purpose of communication with the other party.

3. The parties agree that the Father may provide gifts and cards to X, during the periods of time he spends with her. The Mother will assist X to take with her, any gifts or cards she may wish to give her father when she is spending time with him.

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 Chard & Yong 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 CANBERRA

FILE NUMBER: CAC 1638 of 2016

Mr Chard

Applicant

And

Ms Yong

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. There were some issues of family violence that have been raised in the case. Some issues of family violence have been raised as against the Mother.  I do not consider that on the state of the evidence that it is established that those occurred nor that they establish an unacceptable risk for X with her Mother, particularly in the context where X appears to be thriving and has been in the sole care of the Mother for a number of years. 

2. There have been some issues of family violence raised in respect of the Father, again, given the forestalling of the completion of the hearing I do not yet regard those matters as established and in any event they are appropriately catered for by the terms of the orders which do not require the parties to come into contact with each other except in quite restricted circumstances.  I also note that the orders provide that, unless otherwise agreed in writing, the handovers will take place at B Group, which provides an extra level of comfort in respect of those issues. 

3. In terms of whether or not the orders reflect the best interests of X, I accept that they do.  As the bulk of the orders are made by consent, it is not necessary to go through all of the s 60CC considerations in determining what is in X’s best interests.

4. There are two particular matters which seem to be important in this case, both of which were explored in some detail with Dr D, who is the single expert.  Although Dr D’s report was prepared in 2017, he has been updated with relevant information from the much more recent family report and from the updating material provided by each of the parties.

5. The two particular issues that seem to be of importance are the potential benefits to X of having an ongoing relationship with her Father.  Those matters were explored with Dr D and it was explained that there are certainly benefits available from a relationship with the Father.  It seems crystal clear in these proceedings that the Father cares deeply for X, that he loves X and that he has had a close relationship with X.  Two of the indicators of that can be seen in the capacity for him to have maintained some form of relationship with X despite not having seen her.  That relationship being evidenced when he spent time with X in the presence of Dr D and then with Ms J, although notably it was with Ms J that there were more complications in terms of him relating to X or X relating to him.

6. Those benefits of relationship point towards there being a regime in place so that the Father and X can spend time with each other.  However, allied to that was the concern expressed by Dr D as to unpredictability or inconsistency in the maintenance of the relationship.  That issue seems to be allied to some mental health issues confronting the Father particularly in terms of his personality.  He has received a diagnosis from Dr D and has had long term involvement with various mental health professionals which indicate that he labours under some mental health difficulties.  These point to some issues about whether or not the Father would be able to maintain consistency in the relationship with X.  Perhaps the proof of that pudding has been in the eating over the last several years where the Father has not exercised time with X despite there being orders in place that permitted him to exercise supervised time. 

7. The conclusion reached by Dr D is that while there are benefits to X in having relationship with her Father, there are detriments to X if that relationship lacks reliability and consistency. 

8. The main detractor from there being reliability and consistency in that relationship seems to fall at the Father’s feet at present.  It also seems to be related to the mental health deficiencies or problems that he currently confronts.  Those issues led to a fairly serious difficulty in the case, being how is it that a relationship can be promoted which will help X in her long-term development, in the way that she enters into other relationships, in her experience of the relationship with her Father, which Dr D described as being one of the core experiences for X, the development of that sort of relationship.

9. In order to provide scaffolding for the relationship between X and her Father, so that it might be reliable and consistent and of benefit to her rather than detriment, it seems necessary that there would be particular safe-guards worked into the orders.  Absent the agreement of the parties, it would have been a very difficult thing for the Court to structure the adequate safeguards for it to take place. 

10. The parties have undoubtedly with great care come to a set of quite complex orders which provide the appropriate sort of mechanisms that surround the development of the relationship between X and her Father.  They provide for appropriate mental health care for him, which while it does not match what was recommended by Dr D, it matches what is practicably available in the circumstances. 

11. While Dr D recommended psychotherapy, it is clear that there is not the resources to enable that to occur.  Hence, despite that, the parties with the assistance of the Independent Children’s Lawyer have come to a suite of orders which will provide support for the Father as he embarks on reengaging with X, and not only support for him, but provide reassurance to the Mother which was another matter that Dr D indicated as being of importance, such that anxieties of the Mother might not be passed on to X.  On balance, these orders, with the very careful and comprehensive regime that is structured around them, even if that regime is unusual, are in X’s best interests because they promote her having proper parental care from her Mother, parental care in so far as it is available from the Father and a relationship with the Father in a way that is beneficial.  If there is not compliance with the orders then it removes that relationship going ahead in a way which is unstable and detrimental to X.

12. Accordingly, I consider that the Consent Terms are in X best interests and I make orders in accordance with those Consent Terms. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 May 2020.

Associate: 

Date:  19 May 2020