Green & Green
[2024] FedCFamC1F 896
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Green & Green [2024] FedCFamC1F 896
File number: SYC 1811 of 2023 Judgment of: MCCLELLAND DCJ Date of judgment: 19 December 2024 Catchwords: FAMILY LAW – PARENTING – Where the father seeks that the child live with him and spend no time with the mother for an indeterminate period– Where the mother seeks that the child spend supervised time with the father in accordance with the child’s wishes – Where the father’s criminal proceedings are outstanding – Where allegations of parental alienation are a live issue and require determination at final hearing – Where an order changing the child’s place of residence has the potential to cause significant emotional distress – Application of Banks & Banks (2015) FLC 93-637 – Where there is no evidence that the child is at an ongoing risk in respect to his physical safety in the father’s care – Orders made for the child to spend unsupervised time with the father in accordance with his wishes. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 43, 60B, 60CC(2)
United Nations Convention on the Rights of the Child arts 3, 5, 12
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
CF v Secretary of State for the Home Department [2004] 2 FLR 517
Cowling & Cowling (1998) FLC 92-801; [1998] FamCA 19
Cramond & Cramond [2013] FamCA 368
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Iphostrou & Iphostrou [2011] FamCA 20
Marvel v Marvel (2010) 240 FLR 367; [2010] FamCAFC 101
Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam)
Re GB (Parental Alienation: Factual Findings) [2024] EWFC 75 (B)
Re T [2004] 2 FLR 838
Simmons & Simmons (2023) FLC 94-137; [2023] FedCFamC1A 44
SS & AH [2010] FamCAFC 13
Warwickshire County Council v The Mother [2023] EWHC 399 (Fam)
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 19 December 2024 Place: Sydney Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: Joshua Blom Lawyers Counsel for the Respondent: Mr Brickwood Solicitor for the Respondent: Our Lawyers Solicitor for the Independent Children’s Lawyer: Ms Campbell, Bowral Legal ORDERS
SYC 1811 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GREEN
Applicant
AND: MS GREEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The father’s Application in a Proceeding filed 7 November 2024 is dismissed.
2.Y spend time with the father in accordance with his wishes.
THE COURT NOTES THAT:
A.The mother has undertaken to the Court that she will use her best endeavours to facilitate the child spending time with his father and his sister generally, and specifically, over the Christmas period.
THE COURT FURTHER ORDERS THAT:
3.Orders 5 and 6 of the orders dated 12 July 2024 are discharged.
4.Y born in 2012 (“Y”) attend C School, commencing Term 1 in 2025 (Year 7).
5.The parties shall do all acts and things necessary to cause Y to attend upon a psychologist for sessions to occur at a frequency as recommended by the psychologist in writing, with the costs of the psychologist to be shared equally by the parties.
6.For the purposes of selecting the psychologist, if the parties are unable to agree upon a psychologist by 13 January 2025, the mother shall provide the father will a list of 3 psychologists, for the father to choose from.
7.Y’s therapy shall be non-reportable and neither party may issue a subpoena or request a report from Y’s psychologist appointed pursuant to Orders 5 and 6.
8.By no later than 20 January 2025, the Independent Children’s Lawyer shall meet with Y to inform him of the nature and effect of these orders.
9.The costs of this interim hearing are reserved.
10.The Independent Children’s Lawyer is discharged in respect to the child, X.
Note: 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Green & Green has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
These are complicated proceedings about parenting arrangements for Y who is 12 years old and has lived with his mother since the party’s separation. There will be a five day trial in July 2025. The father has, however, made an application for interim orders for the child’s place of residence to be changed from that of his mother to himself prior to the final hearing. He contends that is necessary because the mother has engaged in ongoing alienating conduct impacting the child’s relationship with the father and, further, that the mother is unable to take steps to properly address the child’s mental health challenges which has resulted in poor relationships with his older sister, Ms B, and with his peers. It is further contended that the mother is unable to properly attend to the child’s needs including by ensuring regular attendance at school and assisting the child maximise his education potential.
Comparatively, the mother contends that the child suffers poor mental health which is directly linked to the child’s experience of family violence when the parties lived together. The mother contends the father’s lack of insight as to how his conduct has adversely impacted the child shows poor parental capacity.
The mother contends that the Court would not make the orders sought by the father as a result of potential risks, including the child ‘voting with his feet’ by leaving the father’s home if orders were made for a change of residence. Most concerningly, the mother contends that the child has experienced suicidal ideation and that there is a clear and present danger of the child self-harming if orders were made for there to be a change of residence to live with the father. The mother contends that in the circumstances of this case, having regard to the poor state of the child’s mental health, orders should be made providing for the child to spend time with the father in accordance with his wishes.
BACKGROUND
The father and the mother begin cohabitating in 2001, they were married in 2009, and in 2012, Y (“the child”) was born. The parties separated on a final basis in January 2023.
The parties have resided between South Australia and the Region D of New South Wales.
There have been various engagements with law enforcement authorities, however, they are not relevant in the context of this interim decision.
On 27 June 2023, interim consent orders were made that provide for the child to live with the mother and spend time with the father, supervised by the paternal grandparents. That time gradually increased to each Wednesday from after school to 7.00 pm; each alternate Saturday for eight hours; and each alternate Sunday until Monday morning.
On 12 July 2024, further interim orders were made, by consent, that provide for the child to live with the mother and spend unsupervised time with the father. Those orders also provide time with the father on Sunday night to Monday morning; and, on each alternate week, from Friday after school until the following Monday before school.
The child has not spent time with the father since 18 October 2024 (father’s affidavit filed 7 November 2024, paragraph 19).
On 7 November 2024, the father filed his Application in a Proceeding.
On 30 October 2024, the mother’s solicitor provided correspondence to the parties which identified the mother had significant concerns about the child entering back into the father’s care, as he would be at risk of running away and held “suicidal ideations” (Annexure “F” to the mother’s affidavit filed 13 December 2024).
The child has been engaged in therapy of various kinds referred to in the single expert report of Ms E dated 5 June 2024 and in the report of Ms F dated 5 December 2024.
There are outstanding criminal proceedings involving sexual assault allegations that the mother has made against the father. The criminal matter is listed in February 2025.
Currently, the child lives with his mother in the Region G. The father lives on a farming property in the township of Town H with his daughter, Ms B, and her partner.
DOCUMENTS RELIED UPON
The father relied upon the following documents:
·Case Outline filed 18 December 2024
·Father’s Application in a Proceeding filed 7 November 2024
·Father’s affidavit filed 7 November 2024
·Tender bundle
The mother relied on the following documents:
·Case Outline filed 18 December 2024
·Amended Response to Application in a Proceeding filed 2 December 2024
·Mother’s affidavit filed 12 December 2024
·Report of Ms F dated 5 December 2024
·Expert report of Dr K dated 2 February 2024
·Tender bundle
The Independent Children’s Lawyer (“the ICL”) relies upon the following documents:
·Case Outline filed 18 December 2024
·Single expert report of Ms E dated 5 June 2024
·Tender bundle
OUTLINE OF THE PARTIES ARGUMENTS
The father
Issues requiring adjudication
The father contends the following issues require adjudication:
1. Whether the child [Y] aged 12 is safe in the care of the mother.
2. Whether the mother is engaging in conduct geared towards undermining the father child relationship and also [Y]’s relationship with his sister [Ms B] aged 19.
3. The father seeks sole parental responsibility in relation to health care and education. The father is very concerned about [Y]’s present state including his failure to attend school or interact with his peers – whilst in the care of the mother.
4. What steps should be taken to address the complex family dynamics marred by allegations of violence where the mother is the complainant including alleging that the father perpetrated sexual violence.
5. Whether the mother is responsible for denigrating the father to [Y] and whether she has played a hand in coaching [Y] in this regard …
6. What steps will best promote [Y]’s mental health.
(Father’s Case Outline filed 18 December 2024, Part C, p.2)
Significantly, the father does not mention whether any steps should or should not be taken as a result of the prospect of the child self-harming. However, I note that has been addressed in discussions with counsel during the course of the proceedings.
Primary contentions
The father’s primary contentions (see father’s Case Outline filed 18 December 2024, Part D, pp. 2–3) include:
·The mother has failed to promote the child’s wellbeing, including his relationships with his father, sister and members of the paternal family.
·The mother has made false allegations of Y’s older brother, X, sexually abusing the child and falsely alleging that X has modelled conduct by the father. As a related issue, it is contended that if the abuse occurred, the mother is unable to protect the child.
·The mother’s interference in the child’s life, including interpersonal relationships, has resulted in a decline and regression in his mental health.
·The mother’s allegations against the father are a risk to the child, in circumstances where the mother has previously made allegations and subsequently withdrawn them upon the parties’ reconciliation.
·In the mother’s care, the child has had poor school attendance.
The mother
Issues requiring adjudication
The mother contends the following issues require adjudication:
1.Live with arrangements for the child [Y] (“[Y]”), born […] 2012, and currently aged 12.
2. Whether [Y] should be enrolled in:
(i) [C School] (as sought by the mother); or
(ii) [J School] (as sought by the father).
3. Psychological support for [Y].
4. Father’s application for mother to undergo psychological assessment.
(Mother’s Case Outline filed 18 December 2024, Part C, p.2)
The mother rejects the father’s application for her to undergo psychological assessment, contending that his pressing for that to occur is an extension of past coercive and controlling conduct. It has been unnecessary to consider that aspect of the mother’s submissions.
Mother’s contentions
In circumstances where I have rejected the father’s application for interim orders, I will not further set out the mother’s relevant factual contentions, but rather focus upon why I have not been persuaded to make the orders that the father is seeking.
INTERIM PARENTING PROCEEDINGS – LEGAL PRINCIPLES
In Cowling & Cowling (1998) FLC 92-801 at [18], the Full Court said:
The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
As noted in Goode and Goode (2006) FLC 93-286 at [68], the Court has a limited ability to resolve controversial factual issues in interim proceedings. In that respect, in Iphostrou & Iphostrou [2011] FamCA 20 at [44], Cronin J said that “[i]n any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact”.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of its responsibility to consider the best interests of the child and, by virtue thereof, issues of risk. In that respect, in SS & AH [2010] FamCAFC 13 at [100], the majority of the Full Court (Boland and Thackray JJ) said:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where risk is alleged in interim parenting proceedings, a conservative approach is warranted that is “likely to avoid harm to a child”: Marvel v Marvel (2010) 240 FLR 367 at 375.
In Banks & Banks (2015) FLC 93-637 (“Banks”), the Full Court made it clear that a common sense approach should be taken in interim parenting proceedings, having regard to the issues raised by the parties. In that context, at [48]–[50] of Banks, the Full Court stated:
It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial …
… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
(Emphasis in original)
CONSIDERATION
As earlier indicated, the father contends that the mother has engaged in alienating behaviour that has adversely impacted upon the child’s relationship with the father and other members of the paternal family.
The father notes that since the parties separated in January 2023, he has had limited contact with the child, who has expressed a desire to see him but has become increasingly withdrawn over the course of time (father’s affidavit filed 7 November 2024, paragraph 6).
He contends that the child has been exposed to negative comments that the mother has made about the father in the presence of the child, including revealing to the child that the father is the subject of criminal investigation (father’s affidavit filed 7 November 2023, paragraph 8).
During the course of today’s hearing, I have been referred to transcript extracts of discussions that have taken place between the mother and the child. Within those transcript extracts, for instance, on 9 January 2023, I note the mother reminded the child that the father “pulled” and “scratched” the child. Further, there are indications that the child was uncomfortable with the level of disputation and argumentation between his parents. There are other instances where there are discussions between the mother and the child regarding the father’s conduct, but I will not further analyse those in the context of these interim proceedings as they are issues or factual contentions that need to be further traversed at the final hearing.
The father submits that the mother has made unfounded allegations of the extent of the child’s mental health challenges including, questioning that he has in fact had suicidal ideation. He believes there is a minimal risk of that occurring and that allegations of that nature have been designed to further limit the amount of time that the child spends with him. The father contends that conduct of this nature is evidenced by the fact that the child uses sophisticated language in his discussions with him including, for example, saying that the father is “in denial” about the impact of his conduct on the mother and the children (father’s affidavit filed 7 November 2024, paragraph 14).
The difficulty I have in these interim proceedings, is that these are complex issues requiring determination at final hearing. In that respect, for instance, it is generally accepted that there are a multiplicity of factors at play that influence a child’s reluctance and/or resistance to spend time with a parent.
In Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam) (“Re C”), Sir Andrew McFarlane P suggested that, before a finding that “alienating conduct” has occurred, the Court would need to be satisfied that three elements are established. They are that:
(1)The child is refusing, resisting, or reluctant to engage in a relationship with a parent or carer. I note as an aside that, in these proceedings, both parties accept that to be the case.
(2)The refusal, resistance or reluctance is not consequent on the actions of the non-resident parent towards the child or the resident parent. I note that is an issue of contention in these proceedings, with the mother alleging that the child’s reluctance is as a result of the child being exposed to conduct on the part of the father.
(3)The resident parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s refusal, resistance, or reluctance to engage in a relationship with the other parent. As I have indicated, the father contends that is the case in the mother’s household.
Determining whether the mother has engaged in alienating behaviour is a complex issue in circumstances where there is a live issue to be determined at final hearing as to whether the father has engaged in violent and abusive behaviour or that such behaviour has been witnessed by the child.
There is at least some evidence that may have been the case. Attached to the father’s affidavit is a letter from Ms L dated 25 October 2024 (Annexure “B” to the father’s affidavit filed 7 November 2024). Ms L is an accredited mental health social worker who has provided counselling services to the child. I note at this point however, that it is likely the father will challenge Ms L’s qualifications to provide her opinions. What is significant is a hearsay account of a statement that the child made to Ms L, as follows: “[The child] does not wish to have unsupervised visits with his father. He states that his memories of witnessing his father hit, punch and kick him, and hold his brother against a wall and strangle him, cause him to have a stress response when with him”. Again, that is a hearsay comment included in a report that will be subject of challenge from the father but for the purpose of these interim proceedings, I give some weight to that account.
If it is determined, at final hearing, that the father has in fact engaged in conduct of that nature and that it was witnessed by the child, then that conduct may fall within the second category referred to in Re C. That is, if it is so found that the father has himself engaged in conduct that has resulted in the child’s reluctance and/or refusal to spend time with him or at least has been a causal factor.
Other possible motives are referred to by the family report writer at paragraph 97 of her report dated 5 June 2024, where she refers to a propensity of children, who are caught in the middle of high parental conflict, seeking to extricate themselves from ‘no man’s land’ by identifying with one parent and, potentially in this case, the parent who the child regards as being the most vulnerable.
Yet a further causal factor in the child’s unwillingness to spend time with his father is potentially the modelling that he has experienced, where his brother X is reluctant to spend time with their father. These are factual controversies that cannot be resolved in the context of interim proceedings and will require adjudication after a final hearing when the parties have been cross-examined.
Additionally, I note that careful consideration needs to be given to all relevant facts before orders are made requiring there to be a change in a child’s primary place of residence from one parent to the other. Such an order has the potential to cause significant emotional distress to the impacted child: Simmons & Simmons (2023) FLC 94-137 at [52].
In exercising jurisdiction under the Family Law Act 1975 (Cth) (“the Act”), I am required to have regard to “the need to protect the rights of children and to promote their welfare” (s 43(1)(c) of the Act). This necessarily involves “focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being” (Bielen & Kozma (2022) FLC 94-123 at [30]).
The making of such orders for a change in residence in this case is particularly complex. Decisions in respect to that issue must recognise the reality that older children are less open to being told what to do by adults, including by a judicial officer: Warwickshire County Council v The Mother [2023] EWHC 399 (Fam) at [23]. There is always a risk that in the case of older children, such as the child in this case, that they will ‘vote with their feet’ and not comply with orders for there to be a change in residence or indeed orders that he spend time with the father.
Even without taking into account the possibility that the child might refuse to comply with the orders, I refer to the decision of Re GB (Parental Alienation: Factual Findings) [2024] EWFC 75 (B) at [65], citing Re T [2004] 2 FLR 838 at [33], (Dame Elizabeth Butler-Sloss P) as follows:
The Court must not evaluate and assess the available evidence in separate compartments. Rather, regard must be had to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out on the balance of probabilities. The Court must take into account all of the evidence and consider each piece of evidence in the context of all the other evidence. A Judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out to the appropriate standard of proof.
That is the task required of me at final hearing and it is a task that I am unable to undertake in the context of these interim proceedings. I further note that the criminal proceedings against the father are still on foot, and while they will be determined on the basis of the criminal rather than civil onus of proof, the outcome of those proceedings may shed some light on the mother’s allegations that the father has engaged in family violence during the course of the parties relationship, including engaging in conduct that may have been witnessed by the child.
If such conduct has been witnessed by the child, it may go to explaining his reluctance to spend time with the father and place in context what appears to be his mental vulnerability.
Significantly, at this stage of the proceedings, I am unable to determine the extent of the child’s mental vulnerability, save to the extent that the parties recognise that the child has expressed suicidal ideation. In that respect, the father attaches to his affidavit a suicide safety plan that has been prepared by Ms L dated 22 October 2024 (Annexure “B” to the father’s affidavit filed 7 November 2024). I recognise that the father does not accept the veracity of Ms L’s report, nor the need for the safety plan that she has prepared.
It may well be that, at the final hearing, I accept a submission to that effect. However, the authorities are quite clear that I must take a cautious approach in interim proceedings.
In circumstances where the plan advises that when the child feels vulnerable, he should be around people who “make [him] feel better” and to significant people who he identifies in that category such as his mother, I consider it would be irresponsible to make orders removing the child from his mother’s care for an indefinite period of time as sought by the father.
Relevant s 60 CC factors
In terms of the best interests’ considerations, having regard to Banks, I will focus on the factors that are most relevant.
Firstly, s 60CC(2)(a) of the Act provides that in considering what orders are in the best interests of the child, the court is required to consider:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
In the circumstances to which I have referred, the father has failed to satisfy me that orders requiring the child to move from his primary place of residence and for there to be no contact with his mother for an indefinite period, would promote the safety of the child. As I will explain, I am satisfied that it would, in fact, be contrary to the safety of the child.
Section 60CC(2)(b) of the Act, requires me to consider any views expressed by the child.
Relevantly, it is appropriate that the obligation set out in paragraph (b) be construed in the context of the objects of Pt VII of the Act, including s 60B(b), to give effect to the United Nations Convention on the Rights of the Child (“the Convention”).
Article 12 of the Convention sets out the right of children to be provided the opportunity to be heard in respect to judicial and administrative proceedings affecting the child, providing:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2.For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Other articles of the Convention that are directly relevant to determining matters affecting children and young people in family law proceedings include art 3, which requires the best interests of the child to be a primary consideration and art 5, which recognises children’s evolving capacities.
It is important that family law professionals appreciate that the rights given to children under the Convention are real and that children are not merely passive objects of a paternalistic decision-making process (CF v Secretary of State for the Home Department [2004] 2 FLR 517 at [158]).
Further, I have had regard to s 60CC(2)(e) of the Act, which requires me to have regard to “the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so”.
On the basis of expert evidence presented to me, including the report of Ms E, Ms F and the Risk of Significant Harm reports from the Department of Communities and Justice, it is clear that it is in the child’s best interests to have an ongoing relationship with his father and members of the paternal family. Indeed, counsel for the mother acknowledges that the child would not be at physical risk in the care of the father, but rather, raises concerns about the child “suffering significant emotional harm” (mother’s Case Outline filed 18 December 2024, Part D, p.2). Nevertheless, the precondition to making an order for the child to spend such time with his father is my satisfaction that it is safe to do so. In circumstances where I am without a current report from a mental health professional regarding the state of the child’s mental health and in circumstances where the child has expressed suicidal ideation and has previously left the care of the father, I am not satisfied that it is safe for orders to be made requiring the child to change his primary residence to live with the father.
As an additional factor, I note that balancing the risk to which I have referred, needs to be considered in the context of the benefit that would be obtained. That benefit would be no more than a speculative possibility that the child’s relationship with the father would be restored by such a drastic order for change of residence. The Court is reluctant to make an order on such a speculative possibility: Cramond & Cramond [2013] FamCA 368 at [137].
Accordingly, I dismiss the father’s Application in a Proceeding filed on 7 November 2024.
ORDERS
The next question becomes what orders I make in the proceedings.
I have given consideration to the orders sought by the mother and the ICL. The ICL seeks that the Court make orders that are consistent with the recommendations of Ms F’s report dated 5 December 2024.
The issue is that those recommendations are reasonably complex in themselves and do not distil into orders. Relevantly, at paragraphs 177 and 178, Ms F states the following:
Consideration of increased block time between [Y] [sic] and [Mr Green] to help to rebuild the relationship, when deemed appropriate with the support of therapeutic professional(s).
Address reported suicidal ideation with immediate, co-ordinated mental health interventions via the ICL, ensuring all professionals involved are aligned and with court orders.
In light of those opinions, I note firstly, that there is no therapeutic professional currently engaged for the child, personally, or by way of family therapy and secondly, there is no coordinated mental health intervention taking place currently.
In those circumstances, it is extremely difficult to fathom from Ms F’s report what orders are appropriate in the context of what the ICL is seeking. The ICL has, however, indicated that it would be appropriate for the Court to make orders providing time to occur between the child and father between 12.00 pm on Wednesday to 12.00 pm on Saturday through the Christmas period.
Comparatively, the orders sought by the mother are for the child to spend time with the father in accordance with his wishes. That order is sought in the context where the mother has given an undertaking to the Court, through her counsel, that she will use her best endeavours to encourage the child to spend time with his father and his sister generally, but specifically, for the impending Christmas period.
I have considered making an order for the child to spend specific time with the father, but the reality is that I am without expert evidence from a mental health professional indicating what impact it would have in respect of the child’s suicidal ideation and the prospect of the child simply ignoring the orders or being placed in a position where he is exposed to risk by travelling home to the mother’s place late at night, as occurred in the middle of 2024. All parties acknowledge it would be inappropriate for the child to be locked in his room to prevent that occurring.
Having regard to the above and in circumstances where alternative orders have not been drafted at this point in the proceedings, and where there will be a final hearing in the middle of 2025, I make order 3 as proposed by the mother – that the child spend time with the father in accordance with his wishes. However, I will also make a notation that the mother has undertaken that she will use her best endeavours to facilitate the child spending time with his father and sister over the Christmas period.
In circumstances where I have made that order, it is necessary to discharge Orders 5 and 6 of the orders dated 12 July 2024.
In respect to the issue of schooling, both parties agree that the child will attend public school. In circumstances where C School, as I understand the evidence, has been determined appropriate by the Secretary of the Department of Education for children who reside where the mother currently lives, it is appropriate that I make order 1 sought by the mother that the child attend C School.
I note the report of Ms F indicates that despite the fact that the child has been churned through various therapeutic practitioners, and has been required to recite repeatedly the background of the parties dispute, it seems to be that in circumstances where the child is starting high school which will have its own stresses, and where the child has expressed suicidal ideation, the child should have access to mental health therapy.
In light of that observation, I propose making an order that the parties shall do all acts and things necessary to cause the child to attend a psychologist for sessions to occur at a frequency recommended by the psychologist in writing, with costs to be shared equally by the parties.
I will also make order 6 as proposed by the mother for the purpose of selecting a psychologist.
In this case, however, having regard to the dynamics of the parties, I am concerned that they will seek to capitalise on statements made by the child in therapy. Therefore, the next order I make is for the therapy to be non-reportable and that no party may issue a subpoena or request a report from the child’s psychologist. In making that order, I stress that the therapy should be solely for the purpose of supporting the child and is to be private – it is not to be used for the purpose of the litigation. He needs to be quarantined as best as possible from the impact of this ongoing litigation and he needs a safe haven where he can discuss, in confidence, what he has been through and the ongoing concerns he has.
The next order I make is for the ICL to meet with the child by no later than 20 January 2025. That order is consistent with the ICL’s obligations, and I have no difficulty in accepting that she will meet with the child expeditiously.
I do not make order 4 as sought by the mother that the child’s time with the father be supervised in circumstances where it is not suggested that the father will be a physical risk to the child. Any supervision may also impede the child and the father having a free and flowing expression of ideas.
At the parties’ request, I will reserve the question of costs of these proceedings to the final hearing.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 7 January 2025
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