CUDMORE & SHEARER

[2015] FCCA 2215

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUDMORE & SHEARER [2015] FCCA 2215

Catchwords:
FAMILY LAW – Ex tempore ruling on whether children should attend counselling pending further hearing.

Legislation:  
Family Law Act 1975

Applicant: MR CUDMORE

Respondent: MS SHEARER

File Number: MLC 6488 of 2013

Judgment of: Judge Burchardt

Hearing date: 11 August 2015

Date of Last Submission: 11 August 2015

Delivered at: Melbourne

Delivered on: 11 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Parsons

Solicitors for the Applicant: J. P. Parsons

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms Kourtis

Solicitors for the Independent Children’s Lawyer: McKean Park Lawyers

IT IS NOTED that publication of this judgment under the pseudonym Cudmore & Shearer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 6488 of 2013

MR CUDMORE

Applicant

And

MS SHEARER

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is, as the Independent Children’s Lawyer correctly submits, a distressing and complex matter.  The mother’s position, when stated candidly, is simply that the children should not see their father again, given that they are now 12, 10 and 8.  That is, on any view, a significant sanction.  Investigations are underway to provide a report from Ms B, which the Independent Children’s Lawyer hopes will cast some greater light on why things are as difficult as they presently are.  The matter in dispute is whether the children should attend a counsellor in the meantime. 

2. The counsellor is a person approved of by the mother and if you strip everything away, ultimately, I think, it comes to this.  The mother says the children are distressed and need counselling to enable them to cope with that distress and I note that there is a letter from the general practitioner (“GP”) to that effect.  However, it is reasonable to suppose that the GP’s appreciation for the matter will come wholly from what the mother has told them.  The Independent Children’s Lawyer’s concern is essentially that the counselling process, far from being productive of greater security and wellbeing on the part of the children, will further muddy the water as to why they are as they are and she submits that things should await the report from Ms B.

3. I note that it appears to be common cause that the children have been distressed on occasions in February 2015 and more recently, when the prospect of seeing their father has been actively raised.  It is a surprise to me, even if I accept, as for these purposes I can, that everything Ms Shearer says about the father’s conduct is correct – that he should give rise to such distress.  One would have hoped that it would be capable of being assuaged in the ordinary way of things.  But in circumstances where the children clearly are experiencing some measure of distress, whether it is as great as the mother says or for the reasons she describes, is, of course, not yet known.

4. Where the GP has expressly asked for it, albeit, no doubt, on a kind of ex parte basis – if I can so describe it – it seems to me that their best interests are met by going to counselling if that is what the GP has recommended.  So I do not need to make an order about that.  I would only make an order if I was prohibiting counselling and I am not minded to make one.  However, Ms Shearer should be conscious that the endeavours she is obviously making to set in concrete the opposition presently experienced, is not something that is in any way attractive to the Court.

5. And it should not be presupposed that, as it were, seeking to embed the children’s concerns through any sort of process is something the Court will simply ignore.  Quite the contrary.  In any event, that is my view of the matter.  There will be interim orders by consent in terms of the minutes.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  14 August 2015