Dansey & Dansey

Case [2023] FedCFamC1F 290

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dansey & Dansey [2023] FedCFamC1F 290

File number(s): SYC 3614 of 2021
Judgment of: CURRAN J
Date of judgment: 24 February 2023
Catchwords: FAMILY LAW – parenting – interim hearing – application in a proceeding – unacceptable risk – amelioration of risk – supervision of time – where father seeks variation of previous interim parenting orders – where father seeks a change of residence for children to live with him – where father seeks children to spend supervised time with mother – where mother seeks children remain living with her – where mother seeks maternal grandfather to be discharged of undertaking in relation to supervision – where mother seeks children remain living with her with new supervisor – where there are competing allegations of unacceptable risk of harm to children in care of the other parent – where single expert opines risk of “psychological harm” to children living with mother – where single expert recommends immediate change of residence and professional supervision – where second single expert opines there is “a risk to the children of emotional harm” in mother’s care – immediacy of risk of harm – where matter is listed for expedited final hearing – whether children exposed to unacceptable risk in care of mother necessitating immediate change of residence and supervision – mother’s ongoing treatment providers opine that mental health is improving – adjournment application on day of interim hearing by mother – orders made for increased time with father – orders made releasing maternal grandfather from undertaking – orders made for supervision of time with father to continue – orders made for supervision of mother’s time with children pursuant to undertaking
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CC, 60CA, 61DA, 64B, 69ZL, 69ZW

Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.08  
Cases cited:

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 93–296

Idanov & Dunstable [2019] FAMCA 77

Marvel & Marvel (No. 2) (2010) 43 Fam LR 348

Division: Division 1 First Instance
Number of paragraphs: 125
Date of hearing: 17 & 24 February 2023
Place: Sydney
Counsel for the Applicant: Mr Kearney SC
Solicitor for the Applicant: Pearson Emerson Family Lawyers
Counsel for the Respondent: Mr Othen
Solicitor for the Respondent: Burgess Family Law
Solicitor for the Independent Children's Lawyer: Mr Ulbrick of G & D Lawyers

ORDERS

SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DANSEY

Applicant
AND:

MS DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CURRAN J

DATE OF ORDER:

24 February 2023

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

1.Order 3 of the Orders dated 17 February 2023 be discharged.

2.Order 2 of the orders made by Justice Berman on 30 June 2021 be varied as follows:

(a)Pending further order the time the children spend with the mother will be supervised by Ms O.

3.Order 3 of the orders made by Justice Berman on…

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AGLC
Dansey & Dansey [2023] FedCFamC1F 290
Case
[2023] FedCFamC1F 290
Decision Date

CaseChat Overview and Summary

In the case of Dansey & Dansey, the father filed an application in the Family Court of Australia seeking an immediate change of residence for the children, who had been living primarily with their mother, and for the mother to have professionally supervised time with the children. This application followed the release of a report by a clinical psychologist, Ms U, who had opined that the children were at risk of "psychological harm" in the care of the mother and raised concerns about the potential for exaggeration or fabrication of the mother's self-reported symptoms. The court was required to decide whether the children should be immediately transferred to the father's care and if the mother's time with the children should continue to be supervised due to the risk of harm. The court considered the statutory pathway, the objects and principles of the Family Law Act, and the s 60CC factors, including the benefit of the children having a meaningful relationship with both parents and the need to protect the children from the risk of harm. The court found that the evidence did not warrant any changes other than to increase the time the children spend with their father and to set about a regime where the mother's time with the children will be supervised. The court ordered that the children spend one half of the school holidays with each of the parents and that the time the children spend with the father will begin immediately. The court also ordered that the children are placed on the Watch List and that the reports of the single experts are permitted to be made available to the mother's treating providers.

The court's reasoning was based on the consideration of the untested nature of the evidence and the fact that significant time had elapsed since the observations and report, with no evidence of significant reported concerns of the care of the children by the father or any other source. The court also noted that the mother's counsel submitted that any concerns she had were addressed by the supervision by the paternal grandparents. The court concluded that the evidence did not warrant any other changes, other than to increase the time the children spend with their father and to set about a regime where the mother's time with the children will be supervised. The court dismissed all other interlocutory applications and ordered that the children spend one half of the school holidays with each of the parents, with the father's time beginning immediately. The court also ordered that the children are placed on the Watch List and that the reports of the single experts are permitted to be made available to the mother's treating providers. The matter is listed for an expedited hearing for 8 days commencing on the 13 June 2023 before Altobelli J, and the matter is listed for Case Management at 9.30am on 10 March 2023.

Orders

Orders of the court

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Background

Background to the litigation

Both parties and the Independent Children’s Lawyer sought that the matter be expedited. The order for expedition was made and the matter was allocated eight days for final hearing in June 2023, commencing on 13 June 2023 which is just under 4 months from now.BACKGROUND The father spent time with the children once the children returned to Sydney from 9 September 2021, initially supervised by his parents. The father’s time was then professionally supervised by BB Service from 17 October 2021 until 17 November 2021, following the mother’s allegation that X had reported that she had given her father a massage. After 17 November 2021 the paternal grandparents resumed their supervision of the father’s time with the children. The evidence from the tender bundle of the father is that the children missed their father and paternal family whilst living in the G Town region, they expressed to multiple third parties a wish to see and spend time with their father, they were excited and happy to see the father and paternal family, and the time spent was reported as being overwhelmingly positive. Pursuant to orders made on 16 September 2021, Ms U, clinical psychologist, was appointed single expert. Pursuant to an order made by consent on 22 June 2022, Dr V, psychiatrist, was appointed a single expert. Ms U undertook assessment of the parties and children in May 2022 and a report was prepared dated 16 August 2022 (“the U Report”). The U Report was released to the Independent Children’s Lawyer on 10 November 2022, and orders were made on 11 November 2022 by Altobelli J for the report to be released to the parties following their interviews with Dr V on 21 December 2022. Following the release of the U Report in December 2022 the father filed the current Application in a Proceeding. The U Report opined that the children were at risk of “psychological harm” in the care of the mother and opined that the mother’s self-reported symptoms raise “concern about the potential for exaggeration or fabrication” or indicated that “she is delusional and experiencing a range of serious psychological issues.”[1] [1] U Report page 67. I note her observations were in May 2022 and the Report completed in August 2022 and note her recommendations for immediate change of residence and professional supervision. Significant time has elapsed since her observations and report, and the children have remained primarily in their mother’s care, without any evidence of significant reported concerns of the care of the children by the father, their school, any professionals who have seen the children or any other source. The father’s Application was listed for mention on 12 January 2023 and on that occasion Altobelli J accepted an undertaking from Dr CC (“the maternal grandfather”) that he would supervise the mother’s time with the children. On that same occasion counsel for the mother sought, and was granted, leave to provide the U Report to the mother’s treating psychiatrist, Dr T. It is not in evidence whether the U Report was provided to Dr T. The U Report was provided to the mother’s treating psychologist Ms S, and Ms S discussed the report and its recommendations with the mother on 11 January 2023.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note that such an increase in time gives the children more time for doing ordinary things with their father and it is not such a drastic change to their routine. I note that the mother’s counsel submitted that any concerns that she had are addressed by the supervision by the paternal grandparents.CONCLUSION In my view, for the reasons set out above, the evidence that I have considered does not warrant any other changes, other than to increase the time, and to set about a regime where the mother’s time with the children will be supervised. I do not propose to make the orders sought for sole occupancy of the home because the children will remain living in the home with their mother. I propose to make orders that the children spend one half of the school holidays with each of the parents. I will be making an order that the time the children spend with the father from Friday after school to the commencement of school on the Monday will begin today, and that will therefore line up with the period of time when Ms O is unavailable for supervision. I will make an order that if Ms O becomes unavailable to undertake the supervisory role that she has undertaken to be present for the children, that arrangements will be made for the children to reside with the father pending the hearing of this matter; and that is by consent. The reports of each single expert are permitted to be made available to Ms O but also the mother’s treating providers, being Ms S and Dr T. I order that it be provided to her general practitioner. I make by consent, an order that the children are placed on the Watch List. I note that the matter is listed for an expedited hearing for 8 days commencing on the 13 June 2023 before Altobelli J, and the matter is listed for Case Management at 9.30am on 10 March 2023. I note the undertaking provided by Ms O in relation to the supervision that she will provide and I direct that a copy of a signed undertaking is to be filed by close of business today. Otherwise, I dismiss all interlocutory applications.

Ratio Decidendi

Legal Principle Established

The opinion of Ms U at least is known to Ms S, the mother’s treating psychologist, who has treated and continues to treat the mother for PTSD and trauma. The mother is also under the care of, and is prescribed anti-depressant medication from her treating psychiatrist for PTSD. An order has been made for the V Report to be made available to both of the mother’s treating professionals. Section 60CC(3) – additional considerations The other relevant s 60CC considerations to which I have had some, although limited, regard given the untested nature of the evidence are as follows: (a)s 60CC(3)(a): the views of the children as set out in the tender bundles of both parties; (b)s 60CC(3)(b): the nature of the relationship between the children and their parents (and paternal grandparents, with whom they have a close relationship); (c)60CC(3)(d) the likely effect of the changes in the children’s circumstances; (d)60CC(3)(f) the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs; and (e)60CC(3)(j) & (k) the allegations of family violence and existence of the ADVO. I do not propose to go through, in detail, the material that has been identified and highlighted in the U Report.DISCUSSION Through following the statutory pathway, considering the objects and principles of the Act and considering the s 60CC factors, I must consider the primary considerations: the benefit of the children having a meaningful relationship with both parents, and the need to protect the children from the risk of harm, the first and most significant of the two primary factors. I then need to consider any relevant s 60CC(3) matters, noting the evidence is untested. The primary consideration here in this case that arises is the need to protect the children from physical and psychological harm caused by them having been subjected or exposed to abuse, neglect or family violence. The first issue for interim determination is whether, arising from the opinions of the single experts, or either of them, or other evidence, there should be an immediate change of residence on the basis that the risk of harm is unacceptable and that it cannot be ameliorated pending the final hearing of this matter in June. The second question for this interim determination is whether the father’s time with the children should continue to be supervised by either of the paternal grandparents as previously ordered by Berman J due to unacceptable risk.Risk of harm in Mother’s care as opined by the single experts Do the continuation of the current arrangements of the children living with the mother expose the children to a risk of harm? Is that risk unacceptable and can the risk, if unacceptable, be ameliorated? In other words, should the father’s application to immediately change the residence of the children and for the mother to have professionally supervised time be ordered due to the unacceptable risk of harm to the children identified in the single expert reports?