DICKSON & SALLER

[2017] FamCA 1086

FAMILY COURT OF AUSTRALIA

DICKSON & SALLER [2017] FamCA 1086

FAMILY LAW – CHILDREN – INTERIM – Where parties have reached consent on a number of interim parenting orders – Where such orders accord equal shared parental responsibility to the parents for all of their children – Where a number of issues required determination.

Family Law Act 1975 (Cth)

Banks v Banks (2015) FLC 93-637
Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Dickson

RESPONDENT: Ms Saller

FILE NUMBER: BRC 1522 of 2017

DATE DELIVERED: 14 December 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 14 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Ryan Kruger Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bunning

SOLICITOR FOR THE RESPONDENT: Pullos Lawyers

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

Further Interim Parenting Orders

1. All previous parenting orders are discharged.

Parental Responsibility

1. The parties have equal shared parental responsibility for the children, B born … 2004 (“B”), C born … 2007 (“C”) and D born … 2009 (“D”).  

2. The parties jointly make all relevant decisions regarding major long term issues in relation to the children except in a case of emergency, and the parties shall consult each other in relation to decisions to be made about major long term issues and make a genuine effort to come to a joint decision about that issue.

3. For the purposes of these orders a major long term issue includes but is not limited to issues such as:

   (a)education;

   (b)religion;

   (c)health;

   (d)extra curricula activities; and

   (e)any therapeutic intervention.

4. The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)they shall inform the other party about the decision to be made;

   (b)they shall consult with each other on terms that they agree; and

   (c)they shall make a genuine effort to come to a joint decision.

5. The parties shall each have responsibility for decisions that are not major long term issues during the time that the children are in their care.

Living Arrangements 

1. The children shall live, spend time and communicate with the parties as agreed between them in writing but failing an agreement in accordance with these orders.

2. The child B is to be encouraged to spend time with his father. 

During School Terms

1. As and from the date of this Order, the children C and D shall live with the father during school term time, calculated with reference to the school that C and D are attending:

   (a)from after school on Thursday to before school on Monday each alternate week (and in the even that Monday is a public holiday, the children shall remain with the father until before school on Tuesday) in the first fourteen (14) day cycle (to commence 1 February 2018); and

   (b)from after school on Wednesday until before school on Monday (and if Monday is a public holiday the children shall remain with the father until before school on Tuesday) each alternate week in the second fourteen (14) day cycle (to commence 14 February 2018).

2. The children shall live with the mother at all other times during the school term.

3. The changeovers for the children during term times shall occur at the children’s school where appropriate. 

School Holidays – Christmas School Holidays 2017-2018

1. During the 2017/2018 Christmas school holiday period the children, C and D shall spend time with the father:

   (a)from 17 December 2017 until 24 December 2017, with changeovers occurring at 3.00 pm;

   (b)from 1 January 2018 until 8 January 2018, with changeovers occurring at 3.00 pm;

   (c)from 15 January 2018 to 22 January 2018, with changeovers occurring at 3.00 pm;

   (d)thereafter, for all school holiday periods the parties spend time equally with the children alternating each seven (7) night period and dividing equally any surplus days in any school holiday period.

Special Occasions

1. Notwithstanding any order to the contrary the children shall spend time with the father overnight on each Wednesday on which a NRL State of Origin series game is fixed from after school (or 3.00 pm if a non-school day) on Wednesday until before school (or 9.00 am if a non-school day) on the following Thursday.

Changeovers

1. Where the changeover is to occur on a day that the children are attending school, changeovers are to occur at the school at which the children are enrolled at from time to time, with the parent who is concluding the time with the children to deliver the children to school and the parent who is commencing the time with the children to collect the children from school.

2. If the changeover is to occur on a day on which the children are not attending school, unless otherwise provided for in these orders the changeover will take place at the service station on the corner of E Street, Suburb F or such other nominated place as agreed to between the parents in writing.

Telephone Calls

1. The father shall facilitate the children making telephone calls to the mother at any reasonable time during the period the children are living with the father.

2. The mother shall facilitate the children making telephone calls to the father at any reasonable time during the period the children are living with the mother.

3. Both parents will encourage the children to communicate with the other parent and provide privacy for the children’s communication during such telephone calls.

Specific Issues

1. That other than as provided for in these Orders, the parents are restrained and an injunction issue restraining the parties from engaging any of the children, B, C or D with any professional (including but not limited to counsellors, psychologists or psychiatrists) without both parents first having an opportunity to meet with the professional and provide their consent to the child attending with that professional, prior to the child meeting the professional.

2. That both parents attend with Ms G for the purposes of discussing B’ treatment plan and attend as and when directed by Ms G for psychological evaluation and support, and B attend all appointments with Ms G as directed by Ms G.

3. This Order is authority for H School to give each parent information about the children’s progress at school and other school related activities and supply to them copies of school reports, photographs, certificates and awards obtained by the children at the request and parents’ cost and both parties are at liberty to attend any school event such as parent/teacher interviews, sports carnivals and productions.

4. This Order hereby authorises the general medical practitioner or any other health care professional providing services to the children to communicate with each parent and provide them with all such information and documents they may request from time to time regarding the children’s attendances with that professional, including any diagnosis, proposed treatment or prognosis for the children.

5. A copy of the Family Report of Peter K be provided to any professional engaged with the children or the parties (including but not limited to counsellors, psychologists or psychiatrists) and each parent has leave, pursuant to s 121 of the Family Law Act 1975 (Cth) to provide a copy of Mr K’s Report to that professional.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT

1. Each parent provide the other with the name and details of the experience and expertise and contact details of those professionals proposed to provide psychiatric and psychological support for C by 4.00 pm on 29 December 2017.

2. In the event that the parties agree in relation to the appointment of such psychiatrist and psychologist, then a Minute of Order reflecting such agreement shall be filed and served by 4.00 pm on Friday, 12 January 2018, accompanied by a joint request that an order be made by consent in terms of the proposed Minute.

3. In the event that the parties fail to file a Minute as referred to, then the issue of the appointment of a psychiatrist and psychologist to provide therapeutic support to C be listed for hearing at 10.00 am on Wednesday, 24 January 2018, and that all affidavit material sought to be relied upon by either party in support of their respective positions be filed and served by 4.00 pm on Friday, 19 January 2018.

4. The father and B attend on Mr J at all such times and in the manner advised by Mr J to assist with the father and son reconciliation.

5. C and D spend time with their mother on 20 December 2017 for a period of three (3) hours:  and

   (a)such time occur as nominated by the mother in writing no later than 4.00 pm on 15 December 2017;  and

   (b)changeovers for the purpose of this time occur in Suburb O at a place to be nominated by the mother in writing by 4.00 pm on 15 December 2017.

6. The parties are at liberty to provide to Mr J and Ms G a copy of the Reasons for Judgment once those are settled and provided to the parties.

AND IT IS FURTHER ORDERED

1. 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED THAT:

(A)Through Mr Richardson SC, the father expressed that he has no opposition to Ms G accompanying B in his attendance on Mr J, if Mr J and Ms G consider this appropriate and likely to be beneficial to B.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickson & Saller 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 BRISBANE

FILE NUMBER: BRC 1522 of 2017

Mr Dickson

Applicant

And

Ms Saller

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The parents of three children, B (born in 2004) and C (born in 2007) and D (born in 2009) are now agreed in respect of a number of interim parenting orders.  They wish such agreement to be recorded by the terms of orders which both seek be made by consent today. 

2. They have reached such agreement with the benefit of a detailed report prepared by Mr K, a psychologist, upon whom they and the children attended earlier this year and who has subsequently spoken with each parent again and with others from the school at which the children attend (being Dr L, an educational psychologist), a previous provider of psychological support for B (Ms G) who is, with parental agreement expressed today to resume that role, and a clinical social worker (a Mr J) upon whom the father has attended and whom the father seeks be enlisted and appointed to facilitate the reintroduction and restitution of his relationship with B.

3. The parental agreement has not been complete today, in the sense that a number of issues remain for determination. 

4. Resolution of these, obviously, occurs within the context of the relevant legislative framework and by reference to the well-known principles to be applied as to the manner of the resolution of interim parenting disputes, as such principles have been espoused by the Full Court of this Court in cases like Goode v Goode[1] and Banks v Banks[2]. 

   [1]Goode v Goode (2006) FLC 93-286.

   [2]Banks v Banks (2015) FLC 93-637.

5. Such resolution also occurs in the context of a proper consideration of the terms of orders agreed between the parents on an interim basis.

6. By way of broad summary, such orders accord equal shared parental responsibility to the parents for all three of their children; provide that the youngest two children spend time with their father during school term: in the first fortnight, from Thursday after school until Monday before school and, in the second fortnight, from Wednesday after school until Monday before school, (with time on Mondays to be extended to overnight time, if that day is a public holiday).

7. The orders also provide that C and D spend time with their father for specified time during the end of 2017 school holiday period, being: between 17 December 2017 and 24 December 2017; between 1 January 2018 and 8 January 2018; and between 15 January 2018 and 22 January 2018, with changeovers for these periods of time to occur at 3 pm. 

8. The orders also provide, insofar as holiday periods are concerned, that, thereafter, C and D spend time with their father for half of all school holiday periods, with such time to be taken in alternate week blocks and any time additional to week-block periods be shared equally.

9. The orders also record parental agreement that B is to be encouraged to spend time with his father.  This order is particularly significant, in my view, because it is undisputed that B has not spent time with, or interacted with, or communicated with his father since the parental separation in about mid-2016. 

10. This situation has arisen in circumstances where his younger brothers, C and D, have spent regular time with their father: originally, in terms recorded in the various parenting plans into which the parents entered and then in accordance with orders made by Judge Baumann in May, which provided for those children to spend time with their father each alternate weekend (from May 2017) from Friday afternoon until Monday morning and overnight time each Tuesday. 

11. Thus, the reality for all three children has been that, during these times, B has remained with his mother and his two younger brothers have spent time with their father.

12. Whilst the orders to be made by consent do not specifically outline any time that is to occur between B and his father, as I have already said, they do contain a record of the parental agreement that he is to be encouraged to spend time with his father.  In addition, the children’s mother in particular has expressed, in her affidavit material, her specific concerns about the impact on the children’s relationship with each other consequent upon the fact that, to date, B is separated from his younger brothers during the time they spend with their father. 

13. It is against that background, then, that a number of issues remain for determination.

14. The first relates to C and the manner by which his parents are to engage psychiatric and psychological support for him.  Both of his parents agree that this is necessary and beneficial for him. Both agree that such persons should be based in M Town or in the M Town area.  Unfortunately, they cannot agree about the process by which suitable professionals are to be identified and engaged to provide such support for their son. 

15. The father says that if, after appropriate inquiries and the exchange of the details of proposed professionals, the parents cannot agree, then Mr K should nominate such professionals for their engagement and use in providing therapeutic support to C.  C’s mother says that, if the parents cannot agree, then the parties should accept the recommendation or recommendations made by Dr N, a paediatrician upon whom C has previously attended and the professional by whom it was first diagnosed that he experienced anxiety, which has found itself expressed in ways which include school refusal.

16. Mr Richardson SC, on behalf of the children’s father, urges the appointment of Mr K because he is independent of the parents and has expressed, in his report, a willingness to “try” to assist in such recommendations.  Mr Richardson SC submits against the appointment of Dr N on the basis that that person is not as neutral as Mr K, noting the father’s contentions about the manner in which the mother has previously engaged with Dr N.  Mr Richardson SC further submitted that the success of the process for the identification and engagement of professionals appropriate and suitable to assist C requires, as its foundation, that both parents have faith in such system so as, in essence, to diminish the prospect of what I will describe as “implementation failure”.

17. Mr Bunning, who appears on behalf of the children’s mother, urged for the appointment of Dr N because that practitioner is local to the M Town; has previously been seen by C; Mr K’s report contains only that he would be prepared to “try” to assist the parties in this task and, therefore, it is preferable that someone (Dr N) who could be thought more likely to be able to assist the parents with this issue, be appointed. 

18. Mr Bunning also offered a third proposal: that “someone” from the rooms from which Ms G practices be appointed.  This course was opposed by Mr Richardson SC on behalf of the father.

19. I am not persuaded on the evidence before me that the third proposal is one which is appropriate. There is no evidence before me as to who might undertake such a task, their qualifications, etcetera.  I am not persuaded either, however, that either of the courses urged by Counsel for each of the parents is appropriate. 

20. I arrive at this conclusion for the following reasons. 

21. I consider that the nomination of either Mr K or Dr N to determine who or which professional shall be engaged to assist C amounts to an improper and impermissible abrogation of the Court’s function and authority.

22. In addition, insofar as Mr K is concerned, I am concerned (as I expressed during the course of discourse with Mr Richardson SC) that to involve him further in the process – despite his offer to try to assist – runs the very real risk that his future independence may be compromised and that he may, as a consequence, be lost to the process.  That result would be very unfortunate and something, in my view, which it is important to guard against, given that the parents and, more importantly, their sons have already attended upon Mr K.

23. Insofar as Dr N is concerned, I am not persuaded that this is appropriate or likely to be in the best interests of C (who is to benefit from the engagement of the professionals identified) because, whether valid or not, his father’s expressed concerns and/or mistrust in a process involving Dr N suggests to me that it is less, rather than more, likely to succeed if such professional is engaged.

24. I have concluded, therefore, even taking into account the overarching purpose of the Rules (to which Mr Richardson SC made specific reference) that the appropriate and proper course and that which is more likely to be in C’s best interests (because it is, I think, more likely to cause the identification and appointment of suitable professionals to assist him) – and one, also, which acknowledges the parents’ agreed position in relation to the allocation to each of them of equal shared parental responsibility for their children – is that by which each parent is to be at liberty to exchange the names of proposed professionals within a prescribed time frame (being 14 days from today); and that if, following the exchange of the names and details of such proposed professionals, parental agreement cannot be reached as to their engagement, the matter can return before me for determination with the benefit of evidence outlining the expertise and experience of any of the proposed professionals.

25. I turn now to provide reasons that deal with the second issue which requires determination: that is, whether, as the father seeks, an order be made now to require B to attend with him on Mr J to assist in the reconciliation of their relationship, or, as the mother seeks, that B and Ms G attend on Mr J, after which Mr J and Ms G prepare a joint report in relation to the process to be adopted to affect or assist to affect the reconciliation of B’ relationship with his father.

1. Given the term of the order agreed between the parents (namely, that B is to be encouraged to spend time with his father) and that it was submitted by Mr Bunning of Counsel for the mother that she is confident she can get him to attend on Mr J (at least absent the father’s presence), I proceed on the basis that both parents genuinely want to do all that can be done to facilitate the rectification of the current breakdown in B’ relationship with his father.

2. As was, in a sense, the situation with the parental approach to dealing with the appointment and engagement of professionals to assist C, the difficulty which has arisen is in obtaining a joint answer to the question ‘how is it to occur?’; namely, how and by what means are steps to be taken to support B and to facilitate and encourage the reunification or rectification of his relationship with his father?

3. Mr Richardson SC for the children’s father submits (in reliance on paragraph 10.15 of Mr K’s report) that, of the options there identified by Mr K as being the only means of repairing the relationship between B and his father, the second is that which is in B’ best interests.  The second option identified by Mr K is that B and his father engage in a therapeutic process that is applied from a family systems perspective. 

4. The first option identified by Mr K is that the father waits until B is prepared to attempt to repair their relationship, something that Mr K opines may never happen.

5. In essence, Mr Richardson SC emphasises Mr K’s opinion (at paragraph 10.13) which is to the effect, as I perceive it to be, that, given B’ age, the window of opportunity for the restitution of his relationship with his father may possibly be closing.  In addition, Mr Richardson SC notes, without criticism, Ms G’ comments to Mr K to the effect that she does not see it as her role to reunite B with his father (see paragraph 8.11).  Consequently, Mr Richardson SC submits that it is unlikely that the process of reconciliation of the relationship between B and his father will be truly advanced by simply relying on the fact of B’s re-attendance on Ms G, a matter in respect of which there is now parental agreement.

6. In essence, Mr Richardson SC urged that the Court do something, rather than simply watch the opportunity for reunification and reconciliation of B’ relationship with his father pass by; and that the “something” to be done is to take up and utilise the expertise of Mr J, particularly given that which is contained in paragraphs 8.23 to 8.43 of Mr K’s report and, also, Mr K’s opinion as expressed at paragraph 10.16 of the same.

7. Whilst Mr Bunning’s submissions on behalf of the children’s mother outlined her acceptance of the need to do “something”, it was submitted that a conservative approach is that which is in B’ best interests, given: the absence of interaction with his father since about mid-2016; the feelings he (B) expressed to Ms G during their sessions, which ceased a significant time ago as a result of an order following the father’s opposition to the same; and that the issues between B and his father are multilevel and complex.

8. Given this, it is submitted by Mr Bunning that the course which is in B’s best interests is that which would see B and Ms G attend upon Mr J at the first possible opportunity that accommodates both professionals; that a short report by those professionals be prepared jointly, in which they outline and propose the way forward insofar as B and his father’s relationship is concerned.

9. Mr Bunning emphasised that such a process is more appropriate and more likely to be in B’ best interests, given the absence of B’s ability, since the May Orders were made, to interact with and obtain therapeutic support to assist him to deal with his feelings toward his father: consequently, the process originally envisaged by the parents, as reflected in the terms of an earlier parenting agreement or parenting plan, should start over again. 

10. I am not persuaded that the course advocated by Mr Bunning on behalf of the mother is that which is most likely to facilitate B’s opportunity to reconcile his relationship with his father.

11. I am persuaded that the opportunity to see if such reconciliation can occur is something which is in B’s best interests.  I accept Mr K’s opinion about, and assessment of, Mr J as a person qualified and experienced to assist with such a task.  I consider that action should be taken now to assist to heal the rift in the relationship between the father and B. 

12. Given the absence of evidence from either Ms G or Mr J about their willingness to be involved in the type of process advocated for by Mr Bunning of Counsel on behalf of the mother and/or the appropriateness of such a course, and taking into account Mr K’s opinion of the importance of action now being taken to support the reconciliation of the relationship between B and his father, I have concluded, at this stage and on the evidence before me, that it is more likely to be in B’s best interests for there to be an order that he attend on Mr J with the father, at all times and in such manner as Mr J thinks appropriate and advises, so as to assist in the reconciliation of their relationship.

13. In arriving at this decision, I have also been influenced by the fact that B will again have the opportunity, via the agreement of his parents, to obtain therapeutic support from Ms G and that his attitude to whether he felt his relationship with his father could be repaired was expressed by him to Mr K at interview as being “not fully, because there’s always the memories of what he has done” (my emphasis): a comment which, to me, does not suggest that, at the time of that interview, he was completely closed to the prospect of repair to their relationship.

14. In addition, I have been influenced by, and have taken into account, the mother’s support for the order that B be encouraged to spend time with his father and her confidence (as expressed through Mr Bunning) that she will be able to get B to attend on Mr J.  That being the case, it appears highly likely, then, that Mr J may well have the opportunity to initially engage with B (at least as a starting point), subject, of course, to him exercising his professional opinion as to the appropriate course to follow.

15. I also consider that it is very important for all of the children that decisive steps are taken now to support the reconciliation of the breakdown in the relationship between B and his father – particularly given that the terms of the interim orders agreed between the parents today will see the youngest children spend four nights per fortnight with their father in fortnight 1 and five nights per fortnight with their father in fortnight 2 and half of all holiday periods (at least from the conclusion of the current school holiday periods). 

16. Given that such orders are jointly sought by the parents, it is obvious that the youngest two children’s opportunity to spend holiday and weekend time with their older brother will only be enhanced if, with therapeutic assistance, the relationship between B and his father can be reconciled.

17. I turn now to consider the issue of the time that the children should spend with their mother on C’s birthday. 

18. The mother’s application is that there should be accorded to the children (C and D) the opportunity to spend time with her on C’s birthday for a period of five hours between noon and 5.00 pm. 

19. As a result of the orders about which the parents are agreed, C and D will, at that time, be spending time with their father and, in the current circumstances, will not be spending time with their older brother.

20. The children’s father agrees that it is in the younger two children’s best interests to be able to spend time – in fact, all children’s best interests, I infer –together to celebrate C’s birthday with their mother on the day of his birthday. 

21. The differences between the parties ended up being about the duration of such time and, I infer, the manner in which the time should occur insofar as location is concerned.

22. As I have said, the mother’s proposal is that C and D spend time with her between noon and 5.00 pm.  The father’s proposal is that the children have the opportunity to spend three hours with their mother on that day, at a time nominated by her. 

23. Mr Richardson SC submitted that, as the children will then be spending that holiday time with their father, proper regard should be had to the fact of the imposition on that time, and the impact and reduction of the same. 

24. I consider that it is in the children’s best interests that all three siblings spend time together on C’s birthday.  I am persuaded, though, that a period of three hours will enable them to celebrate that event on that day.  I also accept the submission that, in the context of a seven-day period of time with their father, a half a day is not an insignificant amount of time and imposition.

25. Mr Richardson SC submitted that it is the father’s intention that the children will, at that time, be with him in Suburb O.  On that basis, if changeover occurred at E Street, Suburb F (as is provided for in the orders) then it would involve the children travelling for an hour each way. 

26. I consider it is more likely to be more beneficial for the children, C and D, if they are spared the impost of travelling on C’s birthday and, for that reason, consider it appropriate and in the children’s best interests that changeover occur at Suburb O at a place nominated by the mother.

27. Having considered the material specifically relied on by Counsel for each party for the resolution of the issues to which I have referred, and the contents of Mr K’s report in its entirety, and for the reasons I have expressed orally, I make interim orders by consent in accordance with the terms contained within Exhibit “A”, as amended in the manner outlined on the record by Mr Richardson SC earlier today. 

28. Given that the submissions made by Mr Richardson SC outlined the father’s position vis-à-vis the attendance of Ms G at or upon Mr J, and in support of B’s attendance upon Mr J, the orders will contain a notation in the following terms: it is noted that, through Mr Richardson SC, the father expressed that he has no opposition to Ms G accompanying B in his attendance on Mr J, if Mr J and Ms G consider this appropriate and likely to be beneficial to B. 

29. Whilst I appreciate that the form of the Notation I have expressed is a little different and in more detail than that expressed by Mr Richardson SC, I consider it to be the appropriate Notation, given the importance of according and recognising the exercise of professional judgment by Mr J and Ms G.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 14 December 2017.

Associate:                 KV

Date:    14 December 2017