Dickens and Dickens and Anor (No 3)

[2014] FamCA 1228

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS & ANOR (NO 3) [2014] FamCA 1228

FAMILY LAW – CHILDREN - Interlocutory Application – Where the mother sought the appointment of a therapist to provide support to the children – Where the Independent Children’s Lawyer supported the mother’s application – Where the father sought that he be able to spend unsupervised time with the younger child – Where the relationship between the older child and the father has broken down –  Where the father opposed the continuation of  either therapist who had previously treated the children – Orders made appointing one of the children’s previous therapists– Orders made for the continuation of an earlier order suspending time between the father and the younger child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Dickens

1^ST RESPONDENT: Mr Dickens

2^ND RESPONDENT: Mr D

INDEPENDENT CHILDREN’S LAWYER: Mr Moylan

FILE NUMBER: SYC 739 of 2010

DATE DELIVERED: 16 September 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 16 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Adams, solicitor of Hamish Cumming Family Lawyers

FOR THE 1^ST RESPONDENT: Mr Dickens in person

SOLICITOR FOR THE 2^ND RESPONDENT: Mr Kertesz, solicitor of Delaneys Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Moylan, solicitor of Moylan Family Lawyers

Orders

1. That pending further order there be no time spent between the child C born on … 2003 and his father.

2. That orders are made in accordance with paragraphs 2, 3 and 4 as amended of the Minute of Order filed in Court today by the mother, signed by [Johnston J] and placed with the Court papers as set out hereunder:-

   2.Each of the parties forthwith do all such acts and things necessary to have the children [B born … 2001 and C born … 2003] attend upon Mr Q of V Org for counselling.

   3.        For the purpose of counselling referred to in order 2 above:

   3.1The mother shall ensure the children’s attendance upon Mr Q;

   3.2The Mother shall meet the cost of the children’s attendances upon Mr Q;

   3.3The parties shall meet the cost of their own attendance with Mr Q;

   3.4Each of the parties shall attend as and when requested by Mr Q; and

   3.5Each of the parties shall follow and implement the recommendations of Mr Q.

   4.Order 10 of the orders of 4 September 2014 be varied to provide for C to communicate with the father on his birthday, …, by the father telephoning C on … before 6:00 pm.

   3.        That all current applications are adjourned to 27 January 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 739 of 2010

Ms Dickens

Applicant

And

Mr Dickens

1^st Respondent

And

Mr D

2^nd Respondent

REASONS FOR JUDGMENT

1. These are further interlocutory proceedings between Mr Dickens and Ms Dickens.  For convenience, I shall refer to them as “the father” and “the mother”.  There is longstanding litigation between these parties.  Things have broken down terribly in terms of their relationship which has had a serious effect on their children B born in 2001 and C born in 2003 (“the children”).

2. The matters which are immediately before the Court are an application by the mother and supported by the Independent Children’s Lawyer (“ICL”) for the appointment of a therapist to provide support to the children, as well as the father’s request that he be able to spend some unsupervised time with C.  These applications follow my involvement in contravention proceedings between these parents, and other proceedings which came before the Court on an urgent basis early in the year.  C had been retained by the father and there was an application made by the mother for a recovery order to issue so that the child could be recovered and returned to the mother’s care.

3. Most of my experience with the family has been in the context of contravention proceedings.  There has been an underlying issue about whether it is in C’s interest to have unsupervised time with his father in circumstances where the family situation has been described by the independent children’s lawyer, Mr Moylan, as “as bad as he has ever seen it”.  Mr Moylan informed me on an earlier occasion that he has been involved with this family now over a very considerable time.

4. I have explained to the father, on numerous occasions, that I am unable to deal with the issue of whether it is in C’s interests to resume spending unsupervised time with his father in circumstances where the father had put a multiplicity of contravention applications before the Court, probably the most contravention applications I have had to deal with in my career. 

5. I have previously made the observation that I have been unable to bring those matters to conclusion, because each occasion that the father appears before the Court, whatever time I am able to make available simply seems to be consumed in those proceedings.  I have endeavoured to explain to the father, now on a number of occasions, that I feel this Court is just going round and round in circles, and we can never get to address the primary issue about the best interests of C.

6. Such is the complexity of the proceedings and the relationship between the parents, that, sadly, the relationship between the elder boy, B, and his father has broken down.  For quite some time now B has declined to see his father.  That situation appears to be continuing. 

7. In relation to the first matter for consideration, that is the possible appointment of a therapist for the boys, Mr Moylan has indicated that these boys are in real difficulty.  Mr Moylan’s assessment of the situation is that there is real need for these boys to have support from an appropriately qualified and experienced behavioural scientist. 

8. They had undertaken therapy previously.  They have had at least two therapists, Mr Q, who is a clinical social worker, well‑known to this Court, and a Dr F.  The mother is asking for orders which would enable the boys to be again referred to Mr Q for counselling and support.  This would be on the basis that she would ensure that the children attend upon Mr Q in accordance with his directions, that she would meet the costs of the children’s attendance on Mr Q, that in the event that the parents were involved in attending Mr Q (and that is something which would be anticipated by the mother and by the ICL) they would each meet the cost of their attendance upon Mr Q and that they would follow and implement recommendations by him.  As indicated above, the mother’s application is supported by the ICL. 

9. The father vigorously opposes any involvement of the boys with either Dr Q or Mr Q, for reasons which I shall refer to below.

10. It seems to me the evidence supports the need for these boys to have the therapy as recommended by the ICL.  The mother tendered a letter prepared by her solicitors, addressed to Mr Moylan and the father to the effect that B is in real trouble at school.  The letter informs that B is now on a blue card, which requires that he is monitored in each class.  The solicitor for the mother says that they understand that this is a step before a further suspension for B.  The letter goes on to say that the mother believes the necessity to support B goes beyond the father’s opposition, and should be ordered forthwith.  There was an error in the letter.  Unfortunately, instead of the relevant paragraph referring to B and the blue card, it mistakenly referred to C.  That was the original form in which that particular paragraph came to be read by the father.

11. Ms Adams, solicitor for the boys’ mother, upon noticing that in court today, immediately corrected that, and offered an apology to the children’s father.  Such is the level of distrust between the children’s father and apparently anybody on the mother’s side, that Mr Dickens made the extraordinary statement that he would not accept the apology by the solicitor.  I could not let that go without remark.  I observed that I thought that was an extraordinary situation, that an officer of the Court offering an apology to a party on the opposite side in proceedings would face a situation of such hostility.

12. What I make of this is that B is in real trouble.  It explains the urging particularly by the ICL, and at the mother’s behest, that the court appoint an appropriately qualified therapist to assist the boys. 

13. The father proposes that the person who should be appointed to offer this therapy be a Mr W, whom the father has indicated is a clinical psychologist, in practice at X Street, Suburb Y.  The father has offered a very brief letter from Mr W, who describes himself as a clinical psychologist.

14. Omitting the formal parts of this brief, one-paragraph letter, Mr W says:

    I am a clinical psychologist working in private practice in [Suburb Y].  I have extensive experience in working with young people and their families, including separated families.  With regard to the latter, very strict principles of practice are applied to my work, which are consistent with the child’s best interests model.

15. The father says that there needs to be a change of therapist for these boys.  He says he has no confidence in Mr Q.  He says that either during or perhaps shortly after the time that C was previously being offered assistance by Mr Q, the father told C that Mr Q has not been able to help him and that, in all the circumstances, including those circumstances, to involve C further with Mr Q would immediately put pressure on C.  He says that it would not have the desired effect, as hoped for by the children’s mother and by the ICL.  In those circumstances, the father asks the Court to adjourn the application for appointment of a therapist so that he can obtain from Mr W a curriculum vitae and provide further evidence to the Court.

16. The ICL submits that it would not be in the interests of these boys to have to endeavour to adjust to yet another behavioural scientist, especially in circumstances where there are already two persons qualified who have already seen them being Dr F and Mr Q.  Mr Moylan understands from Mr Q that he regarded himself as having had quite a reasonable relationship with the boys, and he felt reasonably confident that he would be able to pick that up again.

17. In all the circumstances, in my view, it is in the interests of these boys to have Mr Q appointed as their therapist.  I propose to make orders, as sought by the mother. 

18. The mother has offered to accommodate C’s expressed wish to be able to speak with his father on C’s birthday.  The parents have been able to arrive at some agreement about that matter. 

19. I propose to make an order in slightly varied form from what is proposed at paragraph 4 of the minute of order offered by the mother in Court today which would facilitate C being able to have a conversation with his father on his birthday.  The father would telephone the mobile phone number which has been provided to him.

20. In relation to the father and C spending further time together, the ICL has striven to broker an arrangement acceptable to each of the parents, under which C would be able to spend some supervised time with his father.  Notwithstanding some effort on my part to encourage the father about the merits of this, I was unable to persuade the father that it would be in C’ interests for him to be able to have an opportunity for some supervised time with his father.  Mr Dickens made it perfectly clear to me and the others attending that any form of supervision was completely unacceptable to him, on the basis that he cannot accept that there is any need for supervision.  That position which he has so clearly put to the Court, in my view, is to be respected. 

21. Accordingly, in all the circumstances, I am not persuaded that, between now and when the matter next comes to Court, there can be opportunity which is acceptable to all parties and which the Court would have confidence in, which would enable C to spend time with his father.  In my view, based on my knowledge of the facts and complexities in this case over some time, including the fact that the father has been unable to protect C from police involvement and the acrimonious behaviour between the parents, there must be concern about emotional and psychological risk to C if he was to spend unsupervised time with his father. 

22. I will have to put in place a continuation of the earlier order suspending time between C and his father.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 16 September 2014.

Associate:     

Date:              13 April 2015