DEAKES & DEAKES

[2018] FamCA 684

FAMILY COURT OF AUSTRALIA

DEAKES & DEAKES [2018] FamCA 684

FAMILY LAW – CHILDREN – Interim parenting orders – children to continue to live with the father until the conclusion of the trial in circumstances where there had been a change of the children’s residence from the mother’s care to the father’s care – Interim orders that initially children spend no time with the mother for a period of six weeks and then supervised time building up to unsupervised time – Specific issues orders – Injunctive orders.

FAMILY LAW – PRACTICE AND PROCEDURE – Part heard matter listed to a fixed trial date – Trial directions made for the filing and serving of documents.

Family Law Act 1975 (Cth)

APPLICANT: Mr Deakes

RESPONDENT: Ms Deakes

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: HBC 810 of 2014

DATE DELIVERED: 1 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 1 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Higgs

SOLICITOR FOR THE APPLICANT: Dobson Mitchell Allport

COUNSEL FOR THE RESPONDENT: Mr T FitzGerald

SOLICITOR FOR THE RESPONDENT: Fitzgerald & Browne

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr P Fitzgerald

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Legal Aid Commission

Orders

UNTIL FURTHER ORDER

1. All previous parenting orders in relation to B born … 2009 and C born … 2011 (collectively ‘the children’) are suspended.

2. Mr Deakes (‘the father’) and Ms Deakes (‘the mother’) shall have parental responsibility for the children save and except as follows:-

   (a)neither party may remove the enrolment of the children from P School without leave of the other party and the Independent Children’s Lawyer or without order of a court exercising jurisdiction under the Family Law Act 1975 (Cth); and

   (b)the father shall have parental responsibility in relation to the children’s health provided he informs the mother and the Independent Children’s Lawyer, in advance, of any appointments he is making and the purpose of those appointments except in the case of an emergency when he will inform the Independent Children’s Lawyer and the mother of any such appointment and the outcome of those appointments including provisions of any medical reports, certificates or the like.

3. The mother be restrained from attending P School or any other place where she knows or ought to know that the children may be attending, other than in accordance with these orders or in accordance with an agreement entered into in writing between the parties.

4. IT IS NOTED that nothing in this order shall prevent the mother or restrict the mother from contacting members of staff of the P School or obtaining school reports, school photographs or school magazines and the like in relation to the children.

5. The children live with the father.

6. The children will not spend time or directly communicate with the mother for a period of six (6) weeks as and from 25 July 2018.

7. At the conclusion of the six (6) week period referred to in order 6 above, the children shall spend time with the mother as follows:-

   (a)at the Q Contact Service each week on either a Saturday or Sunday or such other day of the week as is available to the Service and suitable to the mother, for a period of two (2) hours over eight (8) separate weekly visits; and

   (b)at the conclusion of the eight (8) visits referred to in order 7(a) above and commencing the following Saturday, every Saturday from 9.00am until 4.00pm with the changeover to occur at the R Park or such other place as is agreed between the parties.

8. The children and mother may communicate with each other by letters and cards for the six (6) weeks from 25 July 2018 and the father will encourage the children to write letters and cards and/or send drawings to the mother and the father will ensure that these are passed onto the mother through her solicitors, and the mother may, from time to time, forward letters and cards to the children via the paternal grandparents.

9. As and from after six (6) weeks from 25 July 2018 the children shall communicate with the mother by telephone, Skype, Facetime or other means of electronic communication, with the father to assist the children to make the communication to the mother as follows:-

   (a)for the period the children are spending time with the mother at the Q Contact Centre (‘the Contact Centre’), once each week on Tuesdays at 5.30pm;

   (b)when the children commence unsupervised time with the mother twice each week on Tuesdays and Thursdays at 5.30pm; and

   (c)such further or other times as is agreed in writing between the parties.

10. Each party shall contact the Q Contact Centre within seven (7) days and:-

    (a)arrange an appointment for assessment for suitability for supervised time;

    (b)attend the assessment;

    (c)   comply with any appointments made by the Contact Centre for supervised time;

    (d)comply with all reasonable rules of the Contact Centre; and

    (e)   comply with all reasonable requests and directions of the staff of the Contact Centre.

11. If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on the giving of fourteen (14) days written notice to the other party and to the Court. 

12. The Contact Centre may recommend that the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three (3) days notice to the other party and to the Court (liberty to relist the matter to apply twelve months from the date of this order).

13. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the mother is to spend time with the children as set out in this order at times nominated by the Contact Centre.

14. In the event that the Contact Centre offers supervised times only at times which are less regular than specified in this order then times will be spent at the times which are offered by the Contact Centre.

15. The mother shall not attend the Contact Centre or its vicinity before the time with the children is to start and shall promptly leave the Contact Centre and the vicinity when the time with the children is to end.

16. The periods of times to be spent provided in these orders may vary by reason of the closure of the Contact Centre’s services during holiday periods and in such event, time will be spent at times which the services can be provided by the Contact Centre.

17. The parties shall contribute equally to the cost of the Contact Centre.

18. The children spend from 9.00am Christmas Day until 5.00pm Christmas Day with the mother with changeover to occur at the R Park or such other place as is agreed between the parties.

19. Each of the parents are restrained from speaking negatively about the other parent or denigrating the other parent or members of the other parent’s family in the presence or hearing of the children.

20. Each of the parties are restrained from discussing with the children these proceedings or any dispute or disagreement arising out of or in relation to these proceedings or any orders of this Court.

21. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

22. Leave be given for either party and the Independent Children’s Lawyer to have the matter restored before me for interlocutory or interim hearing on the giving of twenty four (24) hours notice.

23. These proceedings be adjourned part-heard for five (5) days commencing 10.00am Monday 25 February, Tuesday 26 February, Wednesday 27 February, Thursday 28 February and Friday 1 March 2019 at Hobart.

24. The applicant father pay or seek remission of the hearing fee on or before 18 February 2019.

IT IS DIRECTED

1. The mother continue to attend upon her current psychologist or a new psychologist for treatment.

2. Leave be given to the mother’s solicitor to provide a copy of the single expert reports of 2015 and 2018 together with a copy of the affidavit of her general practitioner to her treating psychologist.

3. Each of the parties file and serve any further affidavit material upon which they rely on or before 30 January 2019.

4. Each of the parties shall file three (3) business days before the commencement of the hearing a case outline document setting out:-

   (a)the orders they seek;

   (b)the documents they rely upon;

   (c)a chronology; and

   (d)a dot point or summary of the argument.

5. The parties shall have available a tender book with the documents contained in them, page numbered and indexed and provide four (4) copies, one for each of the parties legal representatives, one for the witness and a spare copy for the Court.

6. A copy of the evidence and transcript of proceedings today be taken out and placed on the Court file and made available to the parties and the Independent Children’s Lawyer.

7. A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Deakes & Deakes 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:

Mr Deakes

Applicant

And

Ms Deakes

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. B (‘the elder child’) has recently celebrated his 11^th birthday.  C (‘the younger child’) is aged seven (collectively ‘the children’).  They have been in the primary care of their mother since separation in 2013, and it appears that she was at least the primary carer for the children up till the date of separation.  The children’s parents, Mr Deakes (‘the father’) and Ms Deakes (‘the mother’), have been engaged in parenting litigation in this Court since 2014, shortly after they separated.  Orders were made at the end of 2015 in the face or the run up to a hearing and after a report that had been prepared by Dr E (‘the Single Expert’) that the children live with the mother and spend significant and substantial with their father.

2. The mother’s concerns at that time, and it seems subsequent to that time, were serious concerns that the father may have acted in an inappropriate way with the younger child.  After the Single Expert’s first report (‘the 2015 report’) the parties reached an accommodation, but the demon came back, and these proceedings were commenced.  Time with the father was reduced and undertakings and orders were made, and I will have a bit to say about that later on.  The Single Expert prepared a report (‘the 2018 report), and the report was remarkable in that the Single Expert expressed concerns for the wellbeing of the children and the mother in terms of the matters which are set out in the 2018 report.  I do not intend to, at this stage, go through that in detail.

3. The Single Expert was concerned for the wellbeing of the mother and the children, even upon the mother reading that report.  One of my tasks is to read reports from time to time before they go out to parties, particularly when there are materials such as this.  I was concerned enough with this report to make a chambers order listing the matter before me on 24 July 2018 to consider what ought to happen, particularly in the light that the final hearing had been listed for this week.  The matter came before me and the parties read the report at that time, and I accept the mother may have had difficulty understanding the Single Expert report and absorbing the Single Expert report.

4. The children were placed in the care of the father, and it was made returnable to me today.  Today is now the first day of the hearing, and I accept the submissions of all parties that I should treat it as such.  I intend to adjourn the matter part heard from today to a hearing of up to five days commencing 25 February 2019.  Given the shock to both parties, and particularly the shock to the children, the matter was stood over until today, so that the parties could gather themselves and put evidence before the Court.

5. The questions the Court needed to consider was:-

   (a)whether the status quo, that is the arrangements for the children continuing to live with the mother, was restored today;

   (b)whether the status quo on an interim basis, that is that the children continue to live with the father from today, continue, and certain other orders in relation to when the children commence seeing their mother, how they see their mother, in what way that occurs;

   (c)if the children remain with the father, how time with the mother progresses with the father saying that there should be at least six weeks of no direct communication, the mother arguing that three weeks is sufficient;

   (d)what after the mother’s time of no direct contact, parental responsibility and various other issues, which I will address.

6. The background to this matter is as I have outlined above, that is that these children have been involved in litigation since 2014 following the 2013 separation, and that orders have been made.  I am conscious of the interim orders which I made late last year and earlier this year, and I am also conscious that the 2018 report is the second of the Single Expert’s reports in relation to this family and in relation to these children.  I intend to make further parenting orders today.  I am assisted by evidence, which I will enunciate.  I have the 2018 report of the Single Expert, contained in her affidavit filed 20 July 2018, and the Single Expert was the subject of limited cross-examination today by the Independent Children's Lawyer and by the lawyers for each of the parties.

7. I note, in passing, that each of the parties is represented and, presumably, this is funded, at least in part, by Legal Aid, and I encourage Legal Aid to continue to do so given the nature of this matter.  Evidence was provided today orally by Ms S, a psychologist, who had been treating the mother in the public hospital system.  Ms S was a part of a mental health group, and her task was to provide therapy.  She was careful and cautious in not making diagnostic comment.  Ms S is currently on long service leave and is unable to provide ongoing services to the mother.

8. Ms S gave evidence thoughtfully and carefully.  She is qualified and gave evidence of the background of the circumstances upon which those services were provided.  Her evidence, in many ways, was uncontentious and assisted in showing that the mother was endeavouring to deal with the mental health challenges which confront her from time to time.  The mother provided evidence in the form of an affidavit from her treating general practitioner, Dr M.  That affidavit was read into evidence and Dr M was, to a limited extent, cross-examined.

9. We should all wish that we had a general practitioner as positive and supportive as Dr M.  She clearly cares about the mother and offers her significant support.  Dr M and the Single Expert were present when Ms S gave her evidence, and Dr M respectfully disagrees with some of the conclusions of the Single Expert and that is set out in her affidavit.  Dr M is an experienced general practitioner having qualified in 1988, that is about 30 years ago, having diplomas in obstetrics and gynaecology and being a fellow the Society of General Practitioners in 1994.  She has no specialist training in psychology.

10. I treat her evidence as being reliable, however, it is, of course, limited and given her long-term treatment of the mother it is a little partisan.  I do not offer that as a criticism, because that is what is needed with a general practitioner in these circumstances. 

11. The father relied upon his two affidavits, the first filed 30 July 2018 following the movement of the children to his care, and the second being about an issue at school recently contained in his affidavit of 1 August 2018.  I have read both of those affidavits, which are, of course, as yet untested.  The mother relied upon her affidavit of 30 July 2018, which, in many ways, is quite a positive affidavit, particularly having regard to paragraph 6 where she says, and I quote:-

    With benefit of [the Single Expert’s] report, I accept that the father does not present a risk to the children, and I am willing to revert back to a shared care arrangement as per the Final Orders dated 4 December 2015 (made by consent).  …

12. She then provides much information in relation to the various matters raised by the Single Expert.  She also provided evidence in the terms of her affidavit of 1 August 2018 regarding the event at school and provides what is an innocuous answer to the concerns raised by the father as to those events, and I do not intend to go into them in detail.  These children, of course, do not live in a vacuum.  It seems to me that the events to which those affidavits refer are not, in the overall context of this aspect of the interim determination, a matter of huge concern.

13. It is, no doubt, concerning to the father, who sees every aspect of the mother’s behaviour as unfortunate in endeavouring to exclude the children from him or undermine his parenting, and, perhaps, from the mother as to the level of conflict that exists between the parties.  I have read and considered those affidavits.  Each of the parties provided a form of orders to which they say I ought to make, and the Independent Children's Lawyer made submissions taking different parts from each of the orders to which I will allude later.  The father’s proposed orders are Exhibit E1.  The mother’s proposed orders are Exhibit E2.

14. I was provided with emails from the paternal grandparents to the Single Expert as to how the children were coping.  Those emails are Exhibits E3 and E4 and are, in many ways, comforting, although any such huge change, and Mr Tony Fitzgerald was quite right when he says, “This change is massive for these children,” and must be looked at in the short, medium and long term.  Also before me was an email between the Independent Children's Lawyer and the principal at the children’s school.  I have had regard to that material.

THE LAW

1. I will also be ordering in this case a transcript of the evidence of today and a transcript of the submissions today, because, as I said, this is, in fact, the first day of the trial and the parties should have access to the material said today, so that they are able to deal with that when the trial resumes in late February next year.  The task I have to address, primarily, is that identified by the Independent Children's Lawyer: that is, the risk to the children and to the mother.  In that respect, I have given significant weight, although I make no absolute findings, in respect of the report of the Single Expert.

2. The evidence of the Single Expert at paragraph 2 of her 20 July 2018 report talked about an extensive analysis of available information and that the Single Expert reviewed, then re-reviewed much of that material.  She has read copious documents and has made inquiries of significant external objective sources.  She provided the context to the 2018 report, including quotations from the earlier 2015 report.  She observed, quite properly, that that mother raised further concerns regarding the youngest child having been abused by the father in 2017 and what followed from there.  This must be seen in the light of the mother’s comments in paragraph 6 of her affidavit.

1. What is of concern to the Single Expert is set out in paragraph 20 where she says, as to the children and I quote:-

   In summary, over the past 12 months there has been a marked deterioration in the situation with significant psychological and behavioural impacts on both [the children] at changeover.  During the past 12 months, there have been highly emotional incidents and behavioural disturbances displayed by both [the children] when it is time to go to their paternal family for a visit.  Both children have been engaged in psychological therapy in efforts to address this.

2. She goes on to say:-

   21.It is the report of [the mother] that the children are traumatised by what their father has done (e.g., sexual abuse when [the younger child] was aged 3), and are refusing to see him. [The mother] has made numerous further allegations that [the father] has bathed [the younger child] (contrary to Court Order), put cream on her vagina after her bath, and that [the younger child] has seen pornographic magazines while in the care of [the father]. It is [the mother’s] account that the children have told her these things, and [the elder child] has been a witness.

   22.It is [the mother’s] report to multiple physical and mental health service providers and authorities that the children are severely traumatised and engaging in regressive behaviours as a result of contact with their father (e.g., that the children are clingy, and [the younger child] has separation anxiety from her; sleeping in her room – where [the younger child] has always shared a bed; have frequent digestive upsets; and are soiling themselves). The children have frequently been reported as physically ill, and have missed school and other commitments as a result. [The elder child] has reportedly been sleeping on a mattress on the floor of his mother’s bedroom at times, where [the younger child] and her mother share a bed, due to both of the children’s level of trauma and anxiety.

   23.The paternal family report that changeovers have been a traumatic experience for all, with the children being observed to be highly emotional and behaviourally disturbed when it is time to come with them. The paternal family report that when they are able to encourage the children to engage with the visits, “a switch goes on”, and they have a wonderful time and enjoy themselves. The paternal family report that when the children are away from their mother, they engage affectionately and joyfully with their father and extended paternal family.

3. The Single Expert forms a view that the mother presents with features of a borderline personality disorder.  Whether that becomes a diagnosis or comes to proof is a matter of further evidence.  She then goes on at paragraph 50 to say, and I quote:-

   [The mother] is at risk of continuing engagement in a volatile co-parenting relationship as her emotions fluctuate regarding [the father].  [The mother] is vulnerable for misinterpreting situations and reacting emotionally without pragmatic analysis of the situations she faces.  I am concerned that [the mother’s] interpretation of sexual matters in relation to the father has become distorted over time, and she is becoming increasingly anxious about the children spending time with [their father], which has resulted in significant emotional and behavioural impacts for the children.  It is my clinical opinion that [the mother] has attachment issues from her own personal history that make it difficult for her to separate from her own children, [the younger child] in particular.

4. I might add at this stage, that there is evidence that the father and the paternal family have not at all times complied with the orders or acted in accordance with the undertakings made in October 2017 regarding the bathing of the younger child. I have asked the Independent Children's Lawyer to raise that with me at the end of the trial for significant reasons regarding the administration of justice.  But this would also, of course, have added to the mother’s distress, which would have impacted upon the children.  I make it clear to all of the parties that orders I make are not requests or gentle persuasion; they are orders, and if there are undertakings and if undertakings have been breached there are consequences and significant consequences that may follow.

5. The Single Expert observes that the mother’s parenting capacity is pervasively affected by psychological symptoms, and says at paragraph 89:-

   [The mother’s] parenting capacity is pervasively affected by psychological symptoms, as described above. It has been almost three years since my initial assessment in this matter, and the situation is worsening, not improving. Whether one considers [the mother’s] behaviour as unconsciously the result of her own psychological symptoms, or more calculating undermining of the relationship between the children and their father, the result is the same. The children are experiencing psychological harm in the care of their mother, and the apparent health impacts of unhealthy eating behaviours. In my opinion, these risks have reached an unacceptable level.

6. It is also the view of the Single Expert that the children have likely been coached.  She was cross-examined in that regard and made sensible comments in relation to it.  At this stage, I do not intend to make a positive or negative finding, although it is clear that there is a significant possibility, perhaps even may come to a probability in a later time, that the children have or had been coached.

7. The Single Expert observes, at paragraph 96 of her report:-

   I am acutely aware of the potential impact of this review and associated recommendations on [the mother] and children.  I am seriously concerned regarding how she will respond to the information, as I appreciate it will be very distressing for her.  She may have supports around her who will disagree with these recommendations, and foster a sense of injustice.  It is my recommendation that any medical or mental health practitioner involved in the mother’s care is privy to this review and reasoning behind the recommendations, so that [the mother] can be assisted to engage with the psychological work that will be helpful to her and the health of her relationship with the children into the future.  Risk management may be required.  …

8. It is the risk management, which is identified in the 2018 report of the single expert, which was of concern to the Court last week and is of concern to the Court now.  The mother’s change of view, which is set out in her affidavit, may or may not be of great significance.  If it is accurate then it will be of some significance and will have some significant effect on the final outcome of this hearing.  If it is simply an expression without substance behind it then it may not be as significant as the mother may hope.  As I have said, this is a risk analysis and given the 2018 report of the Single Expert, whilst partly tested is still at some levels untested, my task must be to put the interests of the children ahead of the interests of one or other party.

9. There were issues about weight and other matters to which I have not had any significant regard at this stage.  I intend, for the time being, to leave the children in the primary care of the father.  I intend, however, to make orders to enable the matter to be restored before me in the event that there is a substantial change in the wellbeing of the children between now and the hearing.  I am satisfied that this will provide an adequate level of protection for the children.  At the same time, I need to protect the children from the loss of their primary carer.  It will be terrible for the mother and it will be, and is, no doubt, a burden for the children.  That was the evidence of the Single Expert.

10. I intend to adopt the recommendation of the Single Expert in relation to the six week time period.  I intend to enable a build up over that time toward the final hearing of this matter in February 2019.  I intend to make orders that the mother and children may exchange letters and cards over the next five weeks, given the evidence of the Single Expert and the need to preserve the relationship between the children and the mother.  My understanding is that that was, in any event, conceded by counsel for the father.  There is a question of parental responsibility, and I listened carefully to the evidence of the Family Consultant, and I was also concerned about the need for the mother to be significantly involved in some levels of decision-making.

11. One of the decisions will be whether the children change schools, and I will be making orders that until further order the children remain at the current school.  Whether that will be February of next year or March or April when I deliver reasons or whether it will be longer will be a matter for the final hearing.  So that issue of parental responsibility ought not to be other than joint parental responsibility, and I intend to make that order subject to that injunction.  The other is the question of the children’s medical health.  I intend to enable the father to exercise parental responsibility in relation to the children’s health provided that he keeps the mother and the Independent Children's Lawyer involved, preferably in advance, unless there is an emergency, and if there is an emergency as soon as practicable.

12. There seems to be no reason why the mother ought not to be appraised of what is happening with the wellbeing of the children.  Similarly, there is no reason why the mother cannot make her own inquiries of the school subject to the injunctions I will make restraining the mother from attending the school for the time being.  There is no reason that she cannot make inquiries of the school in respect of how the children are progressing and collect information from the school, including school photographs and the like.  In relation to the eight or ten week period with the Children’s Contact Service, it seems to me that eight weeks is sufficient, and there is plenty of time between now and when that starts for that to be put in place.

13. I intend to give the mother’s solicitor leave to serve on the mother’s new psychologist a copy of the single expert 2018 report, and the affidavit of her own doctor as they are complete and the mother should, if she wishes, have permission to provide to that doctor the earlier 2015 report of the Single Expert.  This should apply to any mental health practitioner with whom the mother consults.  I intend to make an order that neither party approach the Single Expert other than through the Independent Children's Lawyer or as is requested by the single expert, who will, no doubt, keep the Independent Children's Lawyer informed of those circumstances.

14. I have considered each of the other relevant factors under s 60CC of the Act.  I do not intend to go through them ad seriatim, because these orders are made primarily on the concerns set out by the Single Expert in the 2018 report.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 1 August 2018.

Associate:     

Date:  6 September 2018