Garrison & Garrison
[2022] FedCFamC1F 585
Federal Circuit and Family Court of Australia
(DIVISION 1)
Garrison & Garrison [2022] FedCFamC1F 585
File number(s): SYC2452/2022 Judgment of: SMITH J Date of judgment: 5 August 2022 Catchwords: FAMILY LAW – parenting – interim application – oral reasons - child 15½ - suicide risk – child lives with mother – by consent no time with father - mother aware of risk –many consent orders agreed - single issue for decision –father seeks order that mother be physically proximate to and not permit child to be left alone at any time until he enters in-patient treatment in approximately 4 weeks: Order not reasonably practicable - unfair to impose potential liability on mother if she is unable to supervise 24 hours a day for 4 weeks and something happens – imposing unfair order may impair mother’s parenting capacity to child’s detriment – decline to make order. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65AA, 65D, 69ZL Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 4 August 2022 Place: Sydney by Microsoft Teams Solicitor for the Applicant: Ms Hennigan Solicitor for the Respondent: Mr Bazaliza Solicitor for the Independent Children's Lawyer: Ms Godfrey ORDERS
SYC2452/2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARRISON
Applicant
AND: MS GARRISON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
5 AUGUST 2022
THE COURT ORDERS THAT:
1.The Court declines to make proposed Order 6 of the document attached hereto.
AND BY CONSENT THE COURT ORDERS THAT:
2.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Interim Orders be made in accordance with the document attached hereto.
3.That the Directions Hearing listed for 18 August 2022 be vacated and the matter be adjourned to a date to be fixed.
AND THE COURT NOTES THAT:
A.Short oral reasons were delivered today in respect of Order 1.
B.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to correct typographical errors.
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FILE NO: (P)SYC2452/2022
FAMILY COURT OF AUSTRALIA
DIVISION 1BETWEEN:
MR GARRISON (Applicant)
AND:
MS GARRISON (Respondent)
AND:
INDEPENDENT CHILDREN’S LAWYER
BEFORE: THE HONOURABLE JUSTICE SMITH
DATE: 4 August 2022
MADE AT: SYDNEY
UPON APPLICATION MADE TO THE COURT by Ms Lawson, Counsel for the Applicant Father AND Mr Apelbaum, Counsel for the Respondent Mother AND Ms Godfrey, Independent Children’s Lawyer.
PENDING FURTHER ORDER THE COURT ORDERS:
1.That X (born in 2007) (the Child/X) live with the Mother.
2.Subject to order 3, without admission the Father, undertakes not to initiate any contact or communication with the Child, including but not limited to, attending any venue in which it is likely the Child will be present.
3.The Father is permitted to attend the Child’s sports games up until the completion of round 16.
4.That pending, further order, the parties are restrained from removing, attempting to remove or allowing any other person to remove the Child from the Commonwealth of Australia.
5.That pending further order, pursuant to section 67ZD of the Family Law Act 1975:
(a)the Father will deliver by 4.00pm 8 August 2022 to the office of the Mothers solicitors the Child’s Australian and Country B passports and the original of the Child’s birth certificate and Australian citizenship certificate;
(b)the Father forthwith do all acts and things to sign the Child’s Australian passport renewal application and return the Application to the Mothers solicitors;
(c)within 48 hours of the Mother lodging the Child’s Australian passport renewal application the Mother deliver the Child’s existing Australian and Country B passports to the Sydney Registry of the Federal Circuit and Family Court of Australia;
(d)within 48 hours of the Mother receiving the Child’s new Australian passport that the Mother deliver that passport to the Sydney Registry of the Federal Circuit and Family Court of Australia and deliver to the Father’s solicitors the original of the Child’s birth certificate and Australian citizenship certificate.
6.Omitted
7.That within seven (7) days of the date of these Orders, the parties do all acts and things to enrol in and complete the following parenting courses:
(a)Tuning into Teens;
(b)Circle of Security;
(c)Parenting after separation.
8.That without admission, in the event the AVO appeal is unsuccessful, the Father will within (7) days of such event, do all acts and things to enrol in and complete a Men’s Behaviour Change course.
9.That within seven (7) days of the date of these Orders, the Mother do all acts and things to enrol and facilitate X’s attendance in the Seasons for Growth Program.
10.That within seven (7) days of completion of the courses outlined in orders 7, 8 and 9 that the parties provide a copy of the certificates of completion to the other parent’s legal representatives and the Independent Children’s Lawyer.
11.That the Mother ensure the Child:
(a)attends upon Dr C, as recommended by Dr C;
(b)complies with all treatment and therapies recommended by Dr C including inpatient treatment;
(c)takes all medication as prescribed by Dr C and his general practitioner.
12.That the parents are restrained from having the Child attend upon any other treating psychiatrist except in the case of emergency or as part of an in patient program.
13.That the Mother and the Father provide information to X’s medical professionals, when requested by those medical professionals to do so.
14.That the Mother and the Father engage in family (and if recommended individual) therapy with Mr D, Child and Family Therapist, of E Counselling, in a manner and at a frequency, as recommended by Mr D, with the costs of such therapy sessions to be shared equally between the parties.
15.Pursuant to Rule 7.04(1) of the Federal Circuit and Family Court Rules 2021, the Court appoints Dr K, Psychiatrist, who has agreed to the appointment, as a Single Expert Witness, to complete an Expert Report and to enquire into and report upon matters relating to the welfare of the Child and that in preparing the Expert Report to the Court, the Single Expert consider and report on the following matters:
(a)The Child's wishes and any factors such as level of maturity, understanding, or influence by either or both parents, which would affect the weight to be accorded to those wishes.
(b)The relationship between the Child and the Mother and the Father.
(c)The relationship between the Child and the Mother’s extended family.
(d)The relationship between the Child and the Father’s extended family.
(e)The likely effect of any change in the Child's circumstances, including the likely effect on the Child of any separation from either of his parents.
(f)The capacity of the Mother and the Father to provide for the needs of the Child, including physical, mental, emotional and intellectual needs.
(g)Whether the Child is at risk of physical or psychological harm in either the Mother’s or Father’s households.
(h)The attitude to the Child and to the responsibilities of parenthood and boundary setting, demonstrated by the Mother and the Father.
(i)The mental health of the Child and any opinion on the medication and treatment being provided and whether additional supports are required.
(j)Whether the Child requires treatment for self-esteem issues, boundary respecting issues, compulsive shopping, drug use, pornography and/or alcohol issues and the recommended treatment, if any.
(k)Whether the Child is at risk of harm to himself and/or others, the perceived level of that risk and steps advised to be taken to reduce such risk.
(l)The extent to which the Child needs to be supervised given his mental health conditions and any risk of harm to himself and/or others.
(m)The effect the passing of Y (X’s sister) has had on the Child, the Mother and the Father and any action recommended to be taken to assist the family in this regard.
(n)The effect on the Child of any family violence, mental health, drug and alcohol issues, to which the Child may have been exposed or may be at risk of being exposed.
(o)The mental health of the Mother and Father including any diagnosis, prescribed medication regime, and prognosis, in so far as those issues relate to parenting issues.
(p)The Mother’s and Father’s attitudes to each other and the impact on the Child.
(q)The live with and spend time arrangements which the Single Expert considers will be in the best interests of the Child.
(r)Whether the Mother and Father should have equal or sole parental responsibility for the Child.
(s)Assess whether there are any concerns the single expert has with respect to parental alienation.
(t)Assess the cause of the Child’s reluctance to spend time with the Father and how this relationship may be improved.
(u)The Child and his Mother wish to travel overseas to visit family in Country B:
(i)What is your view of the Child undertaking such a trip, given his current medical condition and medical needs?
(ii)If the Child was not permitted to travel on such a trip, what implications, if any, could this have for his mental health? What action and strategies do you recommend be taken to reduce any such risks?
(iii)If the Child was not permitted to travel on such a trip, when do you envisage it may be appropriate for the Child to undertake such travel?
(iv)Is the Child at risk of suicide or self-harm from undertaking such a trip?
(v)Is the Child at risk of harming others in undertaking such a trip?
(vi)If the Child and his Mother were to take this trip, what duration do you consider would be safe to do so?
(vii)If the Child and his Mother were to take this trip, what action and strategies would you recommend be taken to reduce the risk of the Child harming himself or others or his mental health otherwise deteriorating?
(viii)If the Child were to become unwell during the trip, what action and strategies do you recommend be taken?
(ix)If the Child and his Mother were to take this trip, would you be available by telephone or zoom if a consultation were required whilst the Child was overseas?
(x)If the Child and his Mother were to take this trip, do you have any medical contacts in Country B or Country L you could recommend the Child utilise if this was required?
(v)Whether or not the Child should be:
(i)(attending school on a face to face basis? If so, what recommendations for a safety plan should be put in place by M School?
(ii)undertake home-schooling?
(iii)having a break from schooling? If so, for what time period?
(iv)enrolling in another course of interest or obtain employment?
(v)Do you have concerns with the Child having unguided free time, for example having too much time with his thoughts?
(vi)If you consider the Child should attend school, what additional safety plan measures should be put in place by M School? A copy of the current Safety Plan will be provided.
(w)Assess the risk of the Mother relocating overseas with the Child and not returning to Australia.
(x)Any other matter the Single Expert considers relevant.
16.That these orders serve as authority for the Single Expert to:
(a)interview any persons they consider relevant in the preparation of the expert’s report;
(b)consult with any medical practitioners, psychiatrists, counsellors, social workers, psychologist, school teachers, and or any other relevant persons who have information required by the expert.
17.For the purposes of the above Order, leave is granted to the Independent Children’s Lawyer to provide the Single Expert with copies of all relevant court orders (including a copy of these orders), affidavits, pleadings, Child Impact Assessment by Mr D, any report provided by Dr C in response to the Annexure A letter by the Independent Children’s Lawyer, all subpoenaed material and transcript of AVO proceedings dated 17 June 2022.
18.Upon completion of the Single Expert Report, that the Single Expert provide the report to the Associate to His Honour Judge Smith to determine, dependent on the content of the report, how it is best released to the parties and the Independent Children’s’ Lawyer.
19.The costs of the Single Expert Report shall be shared equally between the parties.
20.Leave is provided to the Independent Children’s Lawyer to provide a copy of the Child Impact Assessment report prepared by Mr D to Dr C, child psychiatrist and Ms J, psychologist.
21.That on or before 8 August 2022, the Independent Children’s Lawyer provide the letter at Annexure A of these Orders to the Child’s psychiatrist, Dr C.
22.That the cost of any report prepared by Dr C in response to the Independent Children’s Lawyer’s letter be shared equally between the Mother and the Father.
23.That the cost of any appointment for the Child with Dr C to enable her to provide her report, be shared equally between the Mother and the Father.
24.That within 7 days of the release of Dr C report that the Mother and the Father by their legal representatives and the Independent Children’s Lawyer confer by way of meeting, telephone or audio visual link, to discuss the recommendations of Dr C to determine whether any agreement can be reached about the issues upon which Dr C has provided her opinion.
25.To the extent there are any issues upon which Dr C has provided her opinion cannot be agreed between the parties, then the parties legal representatives or the Independent Children’s Lawyer may seek to relist the matter on an urgent basis.
26.That within 7 days of the date of this Order, the Mother and the Father provide to the Independent Children’s’ Lawyer a list of the names and contact details for all medical professionals, psychologists, social workers and counsellors the Mother, the Father and the Child have attended upon in the period 1 January 2020 to current, other than those medical professionals and organisations subpoenaed to date, with access to any such material produced being restricted to the parties legal representatives and the Independent Children’s Lawyer.
27.On a without admission basis, the Mother and Father agree:
(a)not to disparage each other in the presence or hearing of the Child;
(b)to take reasonable steps to prevent others from disparaging the Mother and/or the Father, in the presence or hearing of the Child;
(c)not to discuss the court proceedings with the Child;
(d)not to provide any material filed in the court proceedings to the Child;
(e)not to communicate with each other through the Child;
(f)to respectfully communicate with each other.
28.That the Mother or her nominee contact the Father as soon as practicable upon the happening of any of the following:
(a)the Child becoming seriously ill;
(b)the Child becoming hospitalised;
(c)the Child being involved in an accident;
(d)In the event that the Child’s absconds.
29.Leave is provided to the parties legal representatives and the Independent Children’s Lawyer to relist the matter, in a timeframe the circumstances of the relisting may require.
Notation
A.The parties will give consideration to the reports mentioned in these orders in relation to the Child attending family therapy.
B.The Mother seeks to travel overseas with the Child and in the event Dr C, psychiatrist advises there is no medical reason for X not to travel then the Mother has indicated she will file an urgent application with the Court
to the applicationwith respect to travel in circumstanceswherethat the Father continues to oppose such travel.C.The Mother will continue to abide by the recommendations from Dr C in relation to the Child’s treatment, including the supervision requirements for the child.
D.
Annexure A
Letter to X's Child PsychiatristDr C
F Health Clinic, H Street, Suburb G NSWDear Dr C,
X
I am the Independent Children’s Lawyer for X, born in 2007 (X). X’s parents are involved in family law proceedings which are currently before the court.
To assist the court make orders in the best interests of X it would be greatly appreciated if you could provide your medical opinion about the matters outlined below:(1)What are the medical conditions for which you are currently providing treatment to X?
(2)What medication is currently prescribed to X for these conditions?
(3)What is the prognosis for X’s medical conditions?
(4)How frequently are you seeing X?
(5)I understand you have been seeing X for approximately 1 year, have you noticed a deterioration in his mental health over this timeframe?
(a)If yes, what in your opinion is the cause of such deterioration?
(b)If yes, how can this be improved?
(6)In treating X what interactions do you have with the Mother and the Father about X’s medical conditions and treatment?
(7)Do you believe X requires treatment for self-esteem issues, boundary respecting issues, compulsive shopping, drug, pornography and/or alcohol issues?
(a)If yes, what treatment and by whom, do you recommend?
(8)Do you believe X is at risk of committing suicide?
(a)If yes, please advise what level of risk you consider this to be?
(b)If yes, what steps can be taken to reduce this risk?
(c)If yes, does X require admission as an inpatient to hospital for treatment?
(d)If yes, what level of supervision of X is required on a daily basis? For example, does he need to be supervised at all times by a parent or another responsible adult? If attending school, what level of supervision would X require?
(9)Do you believe X is at risk of harming others? I understand that it has been reported that X may hear voices which tell him to do bad things and may have purchased weapons such as blades and knives.
(a)If you believe X is at risk of harming others, please indicate what steps can be taken to reduce this risk and advise what treatment and by whom, should it be undertaken?
(10)Do you believe X requires grief counselling to assist him cope with the loss of his sister?
(a)If yes, what treatment and by whom, do you recommend?
(11)One of the options available to the Court is to order X to attend upon Family Therapy with his parents.
(a)From a mental health perspective, are there any concerns about X attending upon Family Therapy with his Father and his Mother? If so, what are your recommendations to address such concerns ?
(12)I understand X is not currently attending school face to face. Do you believe X requires a break from face to face schooling or should recommence attending school?
(a)If you consider he needs a break from face to face schooling,
(i)Should he undertake schooling from home?
(ii)Should he otherwise enrol in a course of interest or obtain employment?
(iii)How long a break do you recommend?
(iv)Do you have concerns with X having unguided free time, for example having too much time with his thoughts?
(b)If you consider he should attend school, what additional safety plan measures should be put in place by M School? A copy of the current Safety Plan is attached.
(13)What steps can be taken by X’s parents to support X from a mental health perspective?
(14)I understand X and his Mother wish to travel overseas to visit family in Country B at the end of September or Christmas:
(a)What is your view of X undertaking such a trip, given his current medical condition and medical needs?
(b)If X was not permitted to travel on such a trip, what implications, if any, could this have for his mental health? What action and strategies do you recommend be taken to reduce any such risks?
(c)If X was not permitted to travel on such a trip, when do you envisage it may be appropriate for X to undertake such travel?
(d)Is X at risk of suicide or self-harm from undertaking such a trip?
(e)Is X at risk of harming others in undertaking such a trip?
(f)If X and his Mother were to take this trip, what duration do you consider would be safe to do so?
(g)If X and his Mother were to take this trip, what action and strategies would you recommend be taken to reduce the risk of X harming himself or others or his mental health otherwise deteriorating?
(h)If X were to become unwell during the trip, what action and strategies do you recommend be taken?
(i)If X and his Mother were to take this trip, would you be available by telephone or zoom if a consultation were required whilst X was overseas?
(j)If X and his Mother were to take this trip, do you have any medical contacts in Country B or Country L you could recommend X utilise if this was required?
(15)I understand you have recommended X undergo some neurological assessments. What mental health conditions are these assessments testing for? Do you have the results of those assessments? If so, can you please advise those results.
(a)X has expressed resistance to information about himself, particularly, his medical conditions and schooling being provided to his Father. What are the risks to X associated with the provision of such information against his wishes? What are your recommendations to reduce such risks? What, if any, is a safe level of information which could be shared with X's Father?
Please feel free to comment on any other matters concerning X which you consider are important that myself, Mr and Ms Garrison and the court be made aware.
The costs associated with you providing your response to the issues raised in this letter will be shared by Mr and Ms Garrison. Prior to releasing your report to me, please provide a copy of your tax invoice so I can seek payment from the Mr and Ms Garrison's solicitors. I appreciate you may require a further appointment with X before providing your report. If this is the case then the costs of that appointment will also be equally shared between Mr and Ms Garrison.
Attached is a folder of documents which X’s parents have agreed to provide to you in providing your medical opinion. Within that folder is a copy of the Child Impact Assessment report dated 12 July 2022, prepared by Mr D, Child and Family Therapist, E Counselling.
Copies of documents in folder include:
(1)Court Book – Father - Reid Family Lawyers
(2)Court Book and Tender Bundle – Mother – Bazaliza Lawyers
(3)Case Outline – Independent Children’s Lawyer
We ask that you confirm that you have read the documentation provided in providing your report.
We attach a copy of the expert witness rules.
Your assistance is greatly appreciated.
If you have any questions please feel free to contact me.
Yours faithfully,
Family Lawyers Australia
Kelly Godfrey, Principal Solicitor & Notary Public, Family Lawyers Australia
BSc LLB (ANU), LLM MLLR (USyd) Certificate IV TrainerNote: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garrison & Garrison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Smith J:
These are short form oral reasons for decision, pursuant to section 69ZL of the Family Law Act 1975 (Cth).
This is an interim application for competing parenting orders where only a single order and/or notation remains in issue.
This is a complex and difficult case because the child the subject of the proceedings, X, who was born in 2007, is now 15 ½ and has complex psychological issues.
The matter was listed before a Judge of Division 2. However, due to that Judge’s list and my availability yesterday, the matter was transferred to Division 1 and to my docket for hearing.
The parties, who are the mother Ms Garrison, and the father Mr Garrison, with the assistance of their experienced solicitors and counsel and the ICL, have resolved all but one of the issues and have agreed on orders.
The agreements reached are comprehensive, broadly in line with the opinions expressed by Mr D in his child impact expert report dated 12 July 2022, and show that despite the high level of conflict between the parties, they are ultimately both focussed on X’s needs and best interests. They are to be congratulated for the good work they did yesterday and very sensibly in resolving most of the issues. I note that I will make the consent orders they agree upon as I am comfortably satisfied that they are in X’s best interests.
There is one issue outstanding and I was asked to provide short reasons only for the decision I have come to on that outstanding issue.
By way of short background, the parties commenced a relationship in Country B in about 1997, married in late 2003, migrated to Australia in 2009 and had two children, X and his younger sister, Y, who was born in 2010. Tragically, Y died unexpectedly in 2020. This happened in the presence of X and the father and was extraordinarily traumatic for the entire family.
Coming to the critical issue concerning X, Mr D said at paragraphs 72 and 73 of his report, on page 15 of that report, the following.
Under the heading “Mental Health Issues” at [72]:
[72] In the writer’s view, the paramount consideration in this matter is [X]’s mental health. He has been diagnosed by different accredited professionals in both in-patient and out-patient contexts as experiencing suicidal ideation. To the best of the writer’s knowledge, he has not attempted suicide. He has, however, written a note that clearly indicates that he has had suicidal thoughts.
Now, there is a dispute about [X]’s suicidality and the level of risk. There are disputes about whether certain conduct which would constitute suicide attempts has occurred while the mother was at home asleep in the house or otherwise. I am not, given the principles that apply to an interim hearing, in a position to determine those disputes.
But needless to say, there is grave concern that at 15½ and suffering from complex mental health problems, X poses a risk of suicide.
The other factor to note which influenced the orders, which I understand must have been very hard for the father to agree with but which, no doubt, are in X’s best interests, was set out by Mr D, at paragraph 73 of his report.
He said under the heading “Future Directions” [73]:
In the final analysis, [X] is at the present time adamant that he does not want to spend time with or have contact with his father. Against a background of substantial loss and trauma and some of evidence of suicidal ideation, the writer is of the view that it would be best to err on the side of caution and not make orders with respect to the time he spends with his father. Additionally, it seems highly likely that if he were ordered to live with or spend time with his father, he would be likely to consider such orders as an affront to his autonomy and act accordingly by absconding and/or self-harming.
In this context, I again emphasise that X is 15½, and though still legally a child and perhaps in many ways emotionally a child, like almost all people of his age approaching 16 he doubtless sees himself as an adult, and the orders made with regard to what is appropriate for him must give proper weight to his views.
They must also take into account the fact that at 15½ if he chooses to abscond while someone is asleep then he is more than able to do that.
Now, as I have said, there is some dispute about the degree of X’s suicidality, and while I cannot decide it, I certainly, in the context of an interim hearing, must take the most conservative view I can and accept that it is a real risk.
In that context, I was informed that within about four weeks it is anticipated that X will attend an in-patient facility for observation and assessment.
The last issue before I come to the orders and the outstanding issue is the dispute between the parties. Now, there is a lot of material before me but for the purposes of making this order, I think the issue is well summarised by Mr D at paragraphs 64 and 65 of his opinion where he said:
64. In summary, [Mr Garrison's] perspective is that [Ms Garrison] is by nature a disorganised person and parent who is insufficiently vigilant and overly permissive with respect to setting age-appropriate boundaries for [X].
65. [Ms Garrison's] perspective is that [Mr Garrison] is an angry, controlling person and parent who has alienated [X] through disproportionate hyper-vigilance with respect to [X]’s extra-familial engagements. She suggests that [Mr Garrison] was prone to angry rages towards herself and [X] for some years prior to [Y]’s death and the parent’s separation. She suggested that [Mr Garrison] showed a preference for [Y] as they grew up and that the trauma of [Y]’s death accentuated difficulties in the father/son relationship.
Now, obviously, there is a lot of conflicting evidence before me on the topic, but I cannot decide those issues, and also but given the single issue I will come to in a moment, I think that provides sufficient background.
It is in that context that the parties have proposed consent orders which I think are very sensible.
The effect of the orders is, at (1), that X will live with the mother. At (2) and (3), the father without admission undertakes not to initiate contact or communication with X - subject to being permitted to attend sports games until the completion of round . The parties have agreed that X is not to leave the Commonwealth of Australia and they have made certain agreements as to what should happen to X’s passport, orders 4 and 5.
Order 6 is a contentious issue. I will come back to that.
The parties have agreed, sensibly, that they are both going to do a series of parenting courses. There is an outstanding AVO application appeal. They have agreed that, in the event the father’s AVO appeal is unsuccessful, the father will do without admission a men’s behaviour change course.
They are arranging for X to attend Seasons for Growth program. They are going to have X continue to see Dr C, his treating practitioner who will be, as I understand it, supervising the in-patient treatment. They have agreed that they will not take X to any other treating psychiatrist except in the case of emergency, and excepting those involved in the in-patient treatment program, and that the mother and father are going to engage in family and, it is recommended, individual therapy with Mr D.
They are appointing Dr K as an independent psychiatrist in the context where it is understood Dr C has, reluctantly, as many treating practitioners are, agreed to provide an opinion, but the single expert will be Dr K, psychiatrist. The parties agree that after Dr C’s report is released, they will try and engage in of discussions, including with the ICL, to see whether they can reach some further agreements.
They have also made consent orders about non-denigration, the provision of information about treaters and, obviously, the mother has also agreed to inform the father if X becomes seriously ill, is hospitalised and so on in the usual way.
Now, the contentious order is at proposed order 6, which I will read. The order the father proposes in the context where he thinks the mother is disorganised, and is not sufficiently vigilant, and in the context of the concerns about X’s suicidality is as follows:
The mother be physically proximate to the child and not permit him to be left alone or to go out alone without the mother or another responsible adult being present.
During the course of oral submissions. That was verbally amended to add at the end:
The mother be physically proximate to the child and not permit him to be left alone or to go out alone without the mother or another responsible adult being present, until the time [X] attends the in-patient program.
That is said to be about four weeks.
The mother recognises, I am told through Counsel, X’s situation and the risk of suicidality, but says it is impractical to place that legal obligation on her.
She has indicated she prefers the proposed notation (C) which is included in the draft minutes before me, which reads:
The mother will continue to abide by the recommendations from [Dr C] in relation to the child’s treatment, including the supervision requirements for the child.
In summary, order the mother seeks that order 6 not be made and the father seeks that order 6 be made.
The father seeks the parenting orders defined in part VII, division 5, and I note section 64 and the power to make the order under 65D. The paramount consideration is, of course, X’s best interests, see sections 60CA and 65AA.
The primary considerations, at 60CC(2), are to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, and the benefit of meaningful relationship with both parents. There is no suggestion in this context that X is likely to be at risk of psychological or physical harm from being exposed to abuse, neglect or family violence in the immediate future, and unfortunately, because of the position X has taken and his age and other needs, the father has agreed reluctantly but sensibly, in my view, to accept that at the moment X does not want to see him.
Mr D thought enforcing time through court orders would be counterproductive and Mr D has indicated that hopefully there is going to family therapy, and he indicated later in his report, at 74:
[X] can envisage having a relationship with his father in the passage of time in his own time.
Again, I indicate I think the father has taken a very sensible and child-focussed approach in that regard.
There is clearly a risk issue with X, but there is a real question about this.
The mother lives alone with X. There are no other hypothetical adults to call on. It was not suggested to me that there are a plethora of uncles or aunts who are willing to come by and help. It is certainly not the kind of thing you can just ask colleagues from work or most friends to do, ie, “ would you mind coming over and being responsible for taking care of a 15½ year old who may be wilful and suicidal, and will you take on the legal responsibility to make sure he does not do anything?”.
Unfortunately, there are no pots of gold that these parties have for carers. I was told that there is no current child support payments being paid by the father. The mother is responsible for X and herself financially.
The mother says she understands the risk and she wants to supervise as best she can, but that it is impractical and unfair to place upon her the binding legal obligation to not permit X, effectively, to be left alone or to leave her side or to be unsupervised for the next four weeks, in circumstances where the breach of the order would render her liable for prosecution for contempt, which is always a possibility in a high-conflict case where there is a breach of orders.
That is the real question. Should she be subjected to that potential liability?
If there was a feasible way of providing 24-hour supervision for X, I would think that would be an order in his best interests, but I do not think it is appropriate to impose upon the mother, who needs to sleep and who will not be able to control what X at 15½ does while she is asleep, and who needs to work even though she works from home, and who needs to run the normal life for both them, I do not think it is appropriate to impose upon her potential liability for the fact that she may not, in fact, be able to constantly supervise him. I think it is an unfair burden. I think placing such an unfair burden upon the mother is not in X’s best interests. I think making an order that the mother cannot practically comply with, but which may render her liable to sanction is also not in X’s best interests.
I think X’s best interests, and the reasonable practicalities of the matter, require the Court to accept that the mother is aware of the risks, is aware of the need to supervise X as best she can, is living with X, is in fact the person providing care for him, and accept that she will do her best to protect X without seeking to impose a liability on her.
Now, obviously, the father’s view of the mother being disorganised and permissive means that he has concerns about that, but those concerns cannot be met by placing an order on the mother which is, I think, unfair and unrealistic.
That is the only issue that is outstanding. In those circumstances, I decline to make the father’s proposed order 6. I will make all of the consent orders, and I will include notation (C) on the basis that I understand that in the absence of order 6 the mother’s proposed notation (C) indicating that she will comply with what Dr C has suggested about supervision should stand.
I again emphasise that I understand the serious risks that X faces, but I think making an order that the mother cannot, I believe, realistically comply with, does not add to X’s safety, and placing that stress on the mother may in fact adversely affect her parenting and make it worse for X.
Those are my reasons.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 12 August 2022
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