HABIB & IBRAHIM

[2020] FamCA 512

FAMILY COURT OF AUSTRALIA

HABIB & IBRAHIM [2020] FamCA 512

FAMILY LAW – CHILDREN – Interim Parenting – Best Interests – Where not appropriate to determine interim issues as sought by the parties pending receipt of the Single Expert Report – Interim proceedings adjourned generally pending receipt of the Single Expert Report.

Habib & Ibrahim [2018] FamCA 633
Habib & Ibrahim [2019] FamCA 116

APPLICANT: Mr Habib

RESPONDENT: Ms Ibrahim

INDEPENDENT CHILDREN’S LAWYER: Mr Bell

FILE NUMBER: PAC 3236 of 2016

DATE DELIVERED: 26 June 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 13 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Godden of Godden Lawyers

RESPONDENT – SELF-REPRESENTED LITIGANT: Ms Ibrahim (aka Ms H)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bell of Stephen W Bell & Associates

Orders

1. That the father’s Application in a Case filed 8 April 2020 and the mother’s Response thereto be adjourned generally pending receipt of the Single Expert Report from Dr D.

2. Liberty to apply to relist on not less than 14 days’ notice.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Habib & Ibrahim 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 PARRAMATTA

FILE NUMBER: PAC 3236 of 2016

Mr Habib

Applicant

And

Ms Ibrahim

Respondent

REASONS FOR JUDGMENT

1. The child X now aged 11 has been the subject of litigation between his parents since 2016.

2. Previously after a six day hearing orders were made on 19 July 2018 on a final basis: Habib & Ibrahim [2018] FamCA 633. Those orders provided as follows:

   (1)That all previous parenting orders in relation to the child X born … 2009 (“the child”) be discharged.

   (2)That the child live with the father.

   (3)That the father be at liberty to choose to have the child reside at the home of the paternal aunt Ms B for such period as determined by him in consultation with the paternal aunt and the therapist appointed pursuant to these orders.

   (4)That the father have sole parental responsibility for major long term issues relating to the child.

   (5)That prior to the father making decisions relating to major long term issues as to the child including but not limited to his health and education, the father shall notify the mother in writing, such writing to include SMS or email communication, of his proposal and seek her response in writing within 21 days and take into account the mother’s response provided such response is received within the stated period and notify the mother of his ultimate decision.

   (6)That the father as soon as practicable obtain a mental health referral for the child to attend upon Ms C (“the therapist”) for the purposes of therapeutic counselling and the child shall continue to attend on such therapist on such occasions as recommended by the therapist and for such period as recommended by the therapist.

   (7)That the mother and father shall cooperate with all reasonable requests made by the therapist for involvement by either or both of them in providing information to or in attending upon the therapist.

   (8)That leave is granted to the father to provide a copy of the Single Expert Report of Dr D dated 13 October 2017 and these Reasons for Judgment to the therapist.

   (9)That the child spend no time with the mother for a period of four (4) months from the date of these orders and thereafter the child spend time with the mother as follows:

   (a)for a period of three (3) months each Sunday from 10am to 2pm under community-based supervision by a supervision service agreed between the parties in writing or in default of agreement nominated by the Independent Children’s Lawyer and that for the purposes of the mother’s supervised time as provided for above the father shall deliver the child to the supervisor at the commencement of the time the child is to spend with the mother and collect the child from the supervisor at the conclusion of the time the child spends with the mother;

   (b)thereafter for a period of three (3) months each Sunday from 10am to 6pm;

   (c)thereafter for a period of six (6) months each alternate weekend from 10am Saturday to 6pm Sunday;

   (d)from the commencement of weekend overnight time from Saturday to Sunday as provided for in Order (9)(c) above the child shall if not otherwise spending time with the mother spend time with the mother:

   (i) on the Mother’s Day weekend from 10am Saturday to 6pm Sunday;

   (ii)each alternate year commencing in 2019 on New Year as follows:

   A.if the new year falls on a weekday then from the conclusion of school to the commencement of school the following day;

   B.if the new year falls on a weekend from 10am on that day to the commencement of school the following day or 10am the following day if a non‑school day

   C.in each other year the mother’s time with the child shall be suspended on New Year:

   (a)if the new year falls on a weekday then from the conclusion of school to the commencement of school the following day;

   (b)if the new year falls on a weekend from 10am on that day to the commencement of school the following day or 10am the following day if a non-school day;

   (iii)on the child’s birthday from 3pm to 8pm if the child is not otherwise spending time with the mother and provided that if the child is spending time with the mother such time shall be suspended from 3pm to 8pm;

   (iv)on the mother’s birthday from the conclusion of school to 8pm if a school day or from 10am to 6pm if on a weekend provided always that the child’s time with the mother shall be suspended on the father’s birthday from the conclusion of school to 8pm if a school day or from 10am to 6pm if on a weekend;

   (e)thereafter for a period of three (3) months each alternate weekend during school term from after school Friday to the commencement of school Monday with such time in each new school term to commence on the first weekend after school resumes;

   (f) thereafter each alternate weekend during school term from after school Thursday to the commencement of school Monday with such time in each new school term to commence on the first weekend after school resumes;

   (g) from the commencement of weekend overnight time from Friday to Monday as provided for in (9)(e) above for one week in each mid-year term school holiday period commencing the first week from after school on the day term ends to 6pm on the mid-point Saturday in odd-numbered years and the second week commencing at 6pm on the mid-point Saturday to 5pm on the day before school resumes in even-numbered years from 2020;

   (h)for two weeks in the Christmas school holiday period commencing in 2019/2020 school holidays  as agreed between the parties and in default of agreement from 9am on the first Saturday in January to 6pm on the second Saturday thereafter; and

   (i)at other times as agreed in writing, such writing to include SMS or email communication, between the parties. 

   (10)That as and from the expiration of a period of seven (7) months from the date of these orders the mother may attend events at the child’s school to which parents are normally invited including parent teacher interviews.

   (11)That the mother be and is hereby restrained from attending within 100 m of the child’s school when the child is in attendance unless, for the purpose of attending an event pursuant to the previous order or at other times as agreed between the parties in writing such writing to include SMS or email communication.

   (12)That the mother be at liberty to communicate with the child’s school and treating health practitioners and for such purposes the father shall do all things necessary to authorise such information to be made available to the mother as she may reasonably request.

   (13)That the mother and father shall notify each other of any serious illness or injury suffered by the child when he is in their respective care with such notification to include the name and location of any treating medical professional and an authority for the treating professional to provide to the other party information on the child’s treatment and prognosis.

   (14)That these Orders are authority for the school that the child attends to provide to the mother copies of all school reports, newsletters, notices of events to which parents are invited and copies of correspondence relating to the child’s education.

   (15)That unless otherwise provided changeovers for the child to spend time with the mother which do not occur at school will take place with the father or his nominee delivering the child to the mother’s nominated residence and the mother or her nominee returning the child to the father’s nominated residence unless otherwise agreed between the parties in writing, such writing to include SMS or email communication.

   (16)That the appointment of the Independent Children’s Lawyer be continued for a period of 12 months from the date of these orders and thereafter the Independent Children’s Lawyer be discharged.

   (17)That any application for costs by the Independent Children’s Lawyer in respect to the proceedings to date be by way of written submission filed and served within one month from this date with any submissions in response to be filed and served within a further14 days with judgment thereafter reserved to chambers.

   (18)That each party and the Independent Children’s Lawyer has liberty to relist as to enforcement or implementation of these Orders.

3. These reasons in the present further interim application assume familiarity with the reasons for judgment delivered 19 July 2018.

4. On 10 January 2019 the father filed an Initiating Application seeking orders that the mother’s time with the child be suspended pending there being a “comprehensive mental health assessment and report from a psychiatrist” as to the mother.

5. On 14 February 2019 the father filed an Amended Initiating Application that in addition to the orders sought in his earlier application, sought an order that the child be placed on the Family Law Watchlist and that in the alternative to a suspension of the mother’s time with the child the mother’s time shall be at a contact centre two hours each alternate Saturday. In his Amended Initiating Application the father sought interim orders in similar terms.

6. For her part, the mother filed a Response relevantly seeking that the father’s Initiating Application be dismissed and an interim order providing that the mother’s time in accordance with final orders made 19 July 2018 be substantially resumed. 

7. The interim applications were heard on 19 February 2019 and a judgment reserved.

8. Subsequently on 5 March 2019 (Habib & Ibrahim [2019] FamCA 116) following further issues in relation to the mother’s time with the child, interim orders were made that provided as follows:

   (1)That the mother’s time with the child X born … 2009 as provided for in Orders (9) and (10) made on 19 July 2018 be suspended.

   (2)By consent, that the mother within seven days from this date do all things necessary to obtain from her treating medical practitioner a referral to a specialist treating Psychiatrist and within a further seven days inform the Independent Children’s Lawyer and the father’s solicitor of the name and contact details of that specialist practitioner and the date of her first appointment with that practitioner.

   (3)That the mother do all things necessary to attend upon the specialist practitioner at dates and times appointed by that practitioner and obey all reasonable directions of that practitioner as to ongoing treatment and medication and attend upon any other medical practitioner or therapist recommended by the specialist practitioner.

   (4)That the mother authorise the specialist practitioner to provide, at the mother’s expense, to the Independent Children’s Lawyer and the father’s solicitor such information that may be reasonably requested by either of them as to the mother’s presentation, the history given by her, her diagnosis, if any, her prognosis and any recommendations for ongoing treatment or therapy, details of any medications prescribed and details of any referral of the mother to another practitioner or therapist.  

   (5)That the Independent Children’s Lawyer have leave to provide to the mother’s specialist treating practitioner a copy of the Orders and Reasons for judgment dated 19 July 2018, a copy of the Single Expert Report of Dr D dated 13 October 2017 and a copy of these Orders and Reasons for Judgment.

   (6)That the Independent Children’s Lawyer have leave to relist these proceedings on seven days’ notice to the parties either at the request of the Independent Children’s Lawyer or either or both of the parties.

   (7)That until further order each party Mr Habib born in 1971 and Ms Ibrahim born in 1977, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child X born in 2009 from the Commonwealth of Australia for a period of five years.

   AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period or until the Court orders its removal.

   (8)It is noted that the Orders made 19 July 2018 requiring the parties to engage in therapeutic intervention remain in force. 

9. Once again the reasons in the present interim application assume familiarity with reasons for judgment delivered 5 March 2019.  Those reasons for judgment include the following:

   72.The present circumstance focuses on the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This consideration is in itself determinative of the present application on an interim basis such that it calls for orders protective of the child.

   73.The circumstances in which the child found himself in shortly after the commencement of supervised time are very concerning and reflect concerns as to the mother’s capacity clearly outlined in the primary Reasons for Judgment. Those concerns need to be addressed in circumstances where the mother herself has not sought professional help following earlier final orders that saw the child moved to the father’s primary care. 

   74.Whilst the Court is presented with evidence that is not tested by cross-examination, the evidence of the therapist as to the child’s presentation after time with the mother referred to above is most concerning.

   75.It is clear that the mother needs to engage meaningfully in the therapeutic pathway in and not simply seek to use it to further her agenda as to the father.

   76.It is in the child’s best interests that his contact with the mother be carefully monitored by the therapist in an endeavour to overcome the child’s apprehensions as to her and to assist the mother in being more reflective as to the needs of her child and her role in the child life after final orders.

   77.The circumstances above raise significant concerns as to the mother’s mental health and appropriately she is prepared to seek intervention from a treating specialist.  It is important that such intervention be able to be monitored and assessed by the Independent Children’s Lawyer and the father.

   …

   78.Whilst the Court in detail considered the additional considerations in the context of the earlier orders and has regard to same in this application, the need to protect the child is overwhelmingly the primary issue.

   79.The child expresses reservations to the therapist as to time with the mother. Those wishes are, on the evidence available, cogently held and should be given weight. 

   80.The mother’s capacity as a parent remains clearly problematic particularly where the events of 15 December 2018 are disturbingly reflective of her previous conduct.

   81.It is agreed that she should seek psychiatric review and such orders will be made.

   82.The Independent Children’s Lawyer supported orders that the mother’s time be supervised in a contact centre and that the mother seek psychiatric assistance, although conceding that contact centre available time would be some months away.

   83.The circumstances demand that the mother’s time with the child, if any, and subject to the directions of the therapist be closely monitored in the context of therapy in the immediate future. 

   84.Otherwise the child’s time as provided for in earlier final orders with the mother shall not resume, other than in the normal course of therapy until such time as a psychiatric report is to hand and considered by the parties, the Independent Children’s Lawyer and the Court. 

10. On 13 August 2019 further orders were made as follows:

    UPON NOTING ORDERS MADE BY THE COURT ON 5 MARCH 2019 SUSPENDING THE MOTHER’S TIME AND UPON THE MOTHER INFORMING THE COURT TODAY THAT SHE SEEKS TO MAKE APPLICATION TO HAVE THAT SUSPENSION LIFTED, IT IS ORDERED THAT

    (1)The mother file and serve an Application in a Case setting out with particularity the orders sought by her together with any affidavits to be relied upon by her in support of the orders sought by no later than Tuesday, 10 September 2019.

    (2)The father file and serve any Response to that Application in a Case together with any affidavit sought to be relied upon by him by no later than Friday, 27 September 2019.

    (3)The parties and the Independent Children’s Lawyer are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Wednesday, 2 October 2019.

    (4)The proceedings be adjourned for hearing to 2.15pm on Friday, 4 October 2019.

11. Then on 4 October 2019 orders, directions and notations were made in the following terms:

    (1)The mother’s interim application as to parenting be adjourned part-heard for further judicial case management to 9.30 am on Tuesday, 17 December 2019.

    (2)Leave is granted to the Independent Children’s Lawyer to provide to Ms C a sealed copy of the orders made today.

    (3)Leave is granted to the parties and the Independent Children’s Lawyer to have access to the following documents produced on subpoena in these proceedings:

    (a)      GG School (Sleeve 20);

    (b)      HH Services (Sleeve 21).

    (4)The parties and the Independent Children’s Lawyer are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than 13 December 2019.

    THE COURT NOTES THAT

    (5)The document marked into evidence today as exhibit “A” being the report from Ms C reveals an ongoing therapeutic intervention with this family and, in particular, therapeutic intervention with the child X now aged 10 and the mother.

    (6)The report reveals significant progress in dealing with the child’s anxieties and expectations but is subject to some reservations by Ms C that are indicative of further period of appropriate therapeutic intervention.

    (7)The proceedings have been adjourned to facilitate such further therapeutic intervention in the hope that the Independent Children’s Lawyer in conjunction with Ms C can propose a further appropriate step in the development of the child’s relationship with the mother.

    (8)If the Independent Children’s Lawyer and the parties are in agreement as to further or other interim orders, the Independent Children’s Lawyer is at liberty to forward to the Court in chambers a minute of proposed orders for such orders to be made on a further interim basis and in that event the adjourned date will be vacated and an appropriate later adjourned date allocated.

1. Subsequently on 17 December 2019 orders were made by consent and notations were made as follows:

   (1)That the child born in 2009 (“the child”) shall spend time with the mother under community-based supervision by JJ Services, or such other supervision service agreed between the parties in writing as follows:

   Commencing 21 December 2019

   (a)Each Saturday for a period of four hours; and

   (b)On Christmas Day for a period of four hours.

   (2)That for the purposes of the child’s time with the mother pursuant to order 1:

   (a)the mother shall pay for all costs associated with supervision of the child’s time with the mother;

   (b)the father shall deliver the child to the supervisor at the commencement of the time the child is to spend with the mother and collect the child from the supervisor at the conclusion of the time the child spends with the mother; and

   (c)the mother and the father shall comply with all requests and directions of the supervision service, including and not limited to, only speaking to the child in English for the duration of all supervised visits.

   Notations

   1.It is intended that the child shall attended fortnightly sessions with the mother with Ms C. 

   2.The parties shall endeavour to negotiate further terms for the child to spend unsupervised time with the mother at the conclusion of the child spending an initial six (6) sessions with the mother pursuant to Order 1(a), in consultation with Ms C.

   3.The parties shall request Ms C provides a short report to the parties and the ICL after the meeting on 10 January 2020

   4.That the mother obtain visit reports from JJ Services within 5 days for each visit and serve a copy to the father’s solicitor and Independent Children’s Lawyer and Ms C.

2. Then on 25 February 2020 further interim orders were made by consent and notations made as follows:

   1.Orders made 17 December 2019 be varied as follows:

   (1)That the child X born in 2009 (“the child”) shall spend time with the mother under community-based supervision by JJ Services or such other supervision service agreed between the parties in writing as follows:

   (a)Each Saturday for a period of four hours until 4 April 2020 (1.30 pm to 5.30 pm) or otherwise as agreed.

   (2)That the mother will not attend the child’s school for any reason or attend within 100 metres of the school until further Order of the Court.

   (3)The mother withdraws her Application in a Case filed 21 February 2020.

   …

   THE COURT NOTES THAT

   3.For the purposes of attending upon Ms C, that for attendances involving the mother and the child the mother shall be responsible for Ms C’s fees and for attendances for family therapy involving both parties and the child the mother and the father shall pay those fees equally.

   4.The Independent Children’s Lawyer shall request Ms C to provide a short report to the parties, the Independent Children’s Lawyer and the Court before 9 April 2020 with the cost of any such report to be paid equally by the parties.

3. Subsequently on 8 April 2020 the father filed a further Application in a Case.  In that Application in a Case he again sought orders that the mother’s time with the child as previously ordered be suspended and that the mother undergo psychiatric examination and that the Independent Children’s Lawyer (“ICL”) have leave to provide to such psychiatrist copies of the Court’s earlier reasons for judgment and the single expert report of Dr D dated 13 October 2017.

4. The mother in her Response to the Application in a Case sought interim orders, in summary, in the following terms:

   a)that all previous parenting orders be discharged;

   b)that the parties have equal shared parental responsibility for the child;

   c)that the child live with the father;

   d)that the mother spend unsupervised time with the child each Saturday from 10.00 am to 7.00 pm for a period of three months;

   e)that the mother continue to spend time with the child from Friday after school to Sunday 10.00 am weekly for a period of six months;

   f)that the mother continue to spend time with the child from Thursday after school to Sunday 10.00 am weekly thereafter;

   g)that the mother be abstained from attending school events for the next three months thereafter be at liberty to attend all school calendar events; and

   h)that during the school holidays the child spend equal time with the parties.

5. The interim proceedings were listed for hearing on 13 May 2020 and on that day orders and directions were made as follows:

   (1)That pursuant to Rule 15.45 of the Family Court Rules 2004 Dr D (“the Single Expert”) be appointed as Single Expert Witness to enquire into and report upon matters relating to the welfare of X born in 2009 (“the child”), and in preparing said report to the Court the doctor be requested to consider the following matters:

   (a)Whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or to exposed to abuse, neglect, or family violence;

   (b)Any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to these views;

   (c)The relationship between the child and each other and with each of their parents and any other relevant person;

   (d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents, or any other person with whom the child has been living;

   (e)The capacity of each parent or any other person to provide for the needs of the child, including psychological, emotional and intellectual needs;

   (f)The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person);

   (g)The effect on the child of any family violence to which they may have been exposed;

   (h)The mental health of the mother and your opinion concerning the prognosis and recommendations for any ongoing treatment, therapy or medication for the mother in managing her mental health;

   (i)The mental state of both the parents insofar as it is related to parenting issues and the impact that the mental state has upon either parent’s capacity to co-parent the child and your opinion concerning the prognosis and recommendations for any ongoing treatment, therapy or medication for either parent in managing his/her mental health/special needs;

   (j)The mental health/ special needs of the child and your opinion concerning the prognosis and recommendations for any ongoing treatment, therapy or medication for the child in managing his mental health/special needs;

   (k)The expert’s opinion as to whether the child has behavioural and/or emotional issues and if so, then your assessment of each parent’s current and potential ability to meet those needs;

   (l)The expert’s recommendations as to the living arrangements for the child having regard to the best interests of the child and addressing the following matters:

   (i)The regime for the child in terms of the time (if any) the child is to spend with each of their parents;

   (ii)The parameters, restrictions and conditions (if any) for the time the child is to spend with each parent;

   (iii)Any other matter the Court Expert considers relevant.

   IT IS FURTHER ORDERED THAT

   (2)The Independent Children’s Lawyer provide to the Court in chambers a minute of order sought by him as to proper and timely funding of that report for the purposes of that order being made in chambers.

   (3)The Applicant father file and serve any further written submissions sought to be relied upon by him by no later than Friday, 22 May 2020.

   (4)The Respondent mother file and serve any further written submissions sought to be relied upon by her by no later than Friday, 5 June 2020.

   (5)The Independent Children’s Lawyer file and serve any further written submissions sought to be relied upon by no later than Friday, 12 June 2020.

   (6)Upon completion of written submissions judgment is reserved to chambers.

6. Subsequently on 12 June 2020 orders were made on the application of the ICL as to the funding of the single expert report as follows:

   1.The Mother and the Father a week before the date of the first interviews with Dr D shall deposit into the Trust Account of Godden Lawyers (the Father's solicitors) half of the cost of the Single Expert Report as advised by the Independent Children's Lawyer.  Godden Lawyers to hold such trust moneys in escrow.  Godden Lawyers to provide the Mother, the Father and the Independent Childrens’ Lawyer with a copy of all trust receipts and a Trust Account Statement.

   2.If the Mother and the Father fail to deposit into the Trust Account of Godden Lawyers (the Father's solicitors) half of the cost of the Single Expert Report a week before the date of the first interview with Dr D then the Mother’s solicitor is to advise Dr D and all parties. The interviews are not to take place until the cost of the Single Expert Report are paid into the Trust Account of Godden Lawyers.

   3.Godden Lawyers on notification by the Court or otherwise that the Single Expert Report has been forwarded to the Court his updated Report shall request an invoice from Dr D and on receipt of the invoice shall forward the trust monies held to Dr D in payment of Dr D’s invoice for the preparation of the Single Expert Report immediately. A copy of Dr D’s invoice to be provided to all parties before payment.

   4.If either party require Dr D for cross-examination the Mother and the Father two (2) weeks before the date of the first day of the hearing shall deposit into the Trust Account of Godden Lawyers (the Father's solicitors) half of the cost of Dr D’s attendance as advised by the Independent Children's Lawyer or the Father’s solicitor.

   5.That Godden Lawyers on conclusion of Dr D’s cross-examination shall request an invoice from Dr D and on receipt of the invoice shall forward the trust monies held to Dr D in payment of Dr D’s invoice for court attendance immediately.   A copy of Dr D’s invoice to be provided to all parties before payment.

   6.The parties be permitted to file and serve any further subpoenas they consider necessary within 14 days of the date of these Orders.

7. The father relied upon his affidavit sworn 8 April 2020.

8. The mother relied upon her affidavit filed 8 May 2020.

9. Both parties in their affidavits purport to give a history of what has transpired in relation to the mother’s supervised time and engagement with their family therapist Ms C over the previous few months.

10. Importantly, submissions from the ICL (Exhibit “E”) include a report to him from the family therapist Ms C dated 7 May 2020.  In that report Ms C says as follows:

    The question remains as it has been since the final orders were originally made – how to best manage his relationship with his mother so that it can continue as a positive aspect of his life.  This involves protecting him from feeling overwhelmed in the face of the emotional intensity of her reactions and the difficulty she has, which I have observed, in allowing him his separate point of view (in relation to issues/things in which she has a strong investment in her own point of view).  An example of this was seen in her insistence to X, as previously reported by me, that he was being manipulated by his father. (It is noted that, in her session with me on 23 April 2020, Ms H said that she no longer views X as being manipulated by his father. She said that she and others view her as having undergone significant positive change over the last year or so).

    When X becomes overwhelmed by his mother’s persistent insistence on her own way of defining/framing his experience, in combination with the intensity of her emotional reaction, his sense of self is threatened and he panics.  This then manifests as the anxiety that has been observed in him about either spending time with his mother for doing so without supervision.  When this does not occur or when he feels able to in some way or other avoid it (by, for example, avoiding certain conversations with her) he feels quite happy (and wants) to see his mother and to do so unsupervised.

    …

    I am currently reviewing how to best proceed with the family.  X has made progress in his ability, for example, to side-step or avoid certain conversations that he is aware his mother would find hard to let go of (for instance).  At this stage, Ms H engaging in individual therapy (to progress further along the pathway along which she feels herself to have travelled some way with me) may well be what would be most helpful.  I envisage that I could continue to work with X to consolidate, and strengthen him in, his ability to manage those aspects of his relationship with his mother which cause him anxiety and have review sessions with Mr Habib and Ms H (separately) from time to time.  In the alternative, I could continue to see Ms H and X at a frequency to be determined…

11. As discussed in the earlier reasons for judgment referred to above and as again reiterated by the family therapist, the nature of the mother’s interaction with the child is significantly concerning.  The orders sought by her on an interim basis demonstrate a significant absence of any reflective capacity on her part to focus on the needs and welfare of her son.

12. In the circumstances, as discussed above, it is not appropriate to engage in a determination of the interim issues as sought by the parties pending receipt of the Single Expert Report that is likely to be received by the Court shortly as a consequence of early appointments being available with Dr D.

13. Once the Single Expert Report is to hand and it is released and considered by the parties and the ICL, the parties and/or the ICL will be at liberty to relist the present interim applications.  Although it must be said that on present indications it is more appropriate that the present interim applications be consolidated with the matters for final hearing.

14. In the interim, orders remain in place for the child to have supervised time with the mother, those orders having been made by consent on 25 February 2020.

15. Orders will be made accordingly.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 June 2020.

Associate: 

Date:  26 June 2020