Hackley & Taggett

[2021] FCCA 583

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hackley & Taggett [2021] FCCA 583

File number:	MLC 11534 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	25 February 2021
Catchwords:	FAMILY LAW – Interim parenting – where the father’s time with the child is reserved – where there are allegations of psychological and physical abuse of the child – whether child should be home schooled – schooling.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	32
Date of hearing:	25 February 2021
Place:	Melbourne
Solicitor for the Applicant:	Ms R Oldham of Cathleen Corridon & Associates
Counsel for the Respondent:	Mr A Chislett
Solicitor for the Respondent:	No solicitor on the record

ORDERS

MLC 11534 of 2020

BETWEEN:

MS HACKLEY

Applicant

AND:

MR TAGGETT

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	25 FEBRUARY 2021

THE COURT ORDERS BY CONSENT THAT:

1.The Final Orders dated 16 January 2012 be suspended in relation to the child’s time with the Father.

2.The child X born in 2009 (“the child”) live with the Mother.

3.The Father’s time with the child be reserved.

4.The Father and Mother request in writing by joint letter that B School prepare a Report in relation to the Child’s readiness to begin year 7 both academically and emotionally in a Secondary school.

5.The parties do all such acts and things as necessary to engage in Family Therapy through C Counselling or another service as nominated by the ICL for the purposes of attending therapeutic counselling.

AND THE COURT ORDERS THAT:

6.Pursuant to section 68L(2) of the Family Law Act 1975 the child X born in 2009 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children’s Lawyer file a Notice of Address for Service; and

(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children’s Lawyer copies of all relevant documents.

7.The parties may inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) may inspect and photocopy the document produced by the Department of Families, Fairness and Housing on 24 February 2021.

8.The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.

9.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 25 March 2021 at 10.00am for Interim Defended Hearing.

AND THE COURT NOTES THAT:

A.In these proceedings there are allegations of psychological and physical abuse of the child by the Father (paragraph 14 of the Mother’s affidavit filed 22 October 2020 and exhibit C1 letter from Department of Families, Fairness and Housing dated 22 February 2021) and there are allegations by the Father relating to the Mother’s parenting that would impact on the psychological welfare of the child.

B.The information produced in the document released is confidential and cannot be disclosed to any other person without an order of this Court.

C.Penalties may apply pursuant to s.112AD and s.121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.

D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 under the pseudonym Hackley & Taggett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX-TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. This is a short ex-tempore judgment dealing with the welfare of the child, X (‘the child’), who was born in 2009.  In 2020, the child was for the bulk of the year, because of COVID-19 times, home schooled.  He had been enrolled and had attended a local Catholic primary school.  He spent regular time with his father Mr Taggett (‘the Father’).  At his Father's household he has a sibling aged two, and another sibling aged only two months.  The child’s mother is Ms Taggett (‘the Mother’).  The parents had commenced a relationship in about 2008 and finally separated in 2011.  The Mother is 52 years of age, and the Father is 37 years of age. 

2. This is a matter where there was a final hearing when the child was just a baby in proceedings between his Mother and his Father, before Cronin J which took place on 26 December 2011 and his Honour gave reasons on 16 January 2012, as his Honour was wanted to do instead of taking Christmas holiday.  The context of that decision was the Mother sought to relocate at that time to Tasmania.  In these proceedings, each party has alleged family violence against the others.  I would commend the reading of those 16 January 2012 reasons to anyone concerned with the case, albeit, at that time the child was only a baby.  I am not dismissive of the allegations of family violence.  However, those matters were able to be put before the Court at a time much closer to when the events had occurred. 

3. At that time, those events of family violence were not pursued by the parties. Significantly for my purposes, it must be noted that at that time the Mother sought an order for sole parental responsibility. His Honour determined that the parties should have equal shared parental responsibility. His Honour commented, at paragraph [39], about how successful the existing relationship was between the Father and the child and finds that that relationship involves much more than just weekend time. His Honour was impressed with the paternal grandmother as a witness. His Honour found that the evidence led by the Mother about the incidents in early 2011 in her residence did not enable him to find that the child was at any risk of physical or emotional harm from either his Mother or his Father. That is at paragraph [82].

4. At paragraph [86] his Honour observed: 

   [86]Nothing I heard suggests that either parent acts destructively of or undermines the other parent's relationship with X. 

5. His Honour also determined that the orders should describe the Father's time as living with, rather than spending time.  It must be noted that the judgment only dealt with that time and the next couple of years as the future was unable to be foreseen.  However, it cannot be ignored that the issue of sole parental responsibility had been agitated and the Court had determined that there should be equal shared parental responsibility.  That is relevant as to why I am adjourning this matter, albeit it is with the consent of the parties. 

6. There is now a significant dispute about the child's schooling this year.  It could be said, it is only for one year, and the Mother seeks that he repeats only one year at this point.  However, it is very important that the child's education is attended to as best it can be in the circumstances of him having the condition of autism spectrum disorder.  I am not able to determine many of the matters that are in dispute between the parties.  It is the Mother's case that the Father has not been informed of therapy that she has undertaken for X, and I quote from paragraph [11] of her affidavit filed 22 October 2020:

   [11]Dr D advised me to arrange for a psychologist and an occupational therapist to consult with X on an ongoing basis and I did so without advising the father, because in the past he had cancelled or disallowed help from professionals.  Further, the father has not adhered to the recommendations of the professionals X engages with, about which I depose further later in my affidavit. 

7. On 22 February 2020, I enquired of the Mother's counsel as to who were those professionals that it was said the Father was not adhering to, and I was advised that that was Ms E, the occupational therapist, and Ms F, the psychologist.  On the face of it, unless there is good reason to the contrary, for either parent to engage the child with specialist medical attention other than in an emergency may be contrary to an order for equal shared parental responsibility. 

8. The life of the parties was significantly interrupted when, according to the Mother, on 21 June 2020, after spending time with the Father, the child told the Mother that the Father had stood on his back. 

9. Ultimately, a notification was made that the Father had engaged in inappropriate physical discipline by standing on the child's back and causing a bruise.  The Mother says the Father claimed they were playing a game.  The Department of Health and Human Services (‘the Department’) as it was known then, intervened and Children's Court proceedings were undertaken.  I am assisted by the Department's letter dated 22 February 2021 also known as the section 67Z Response.  That sets out the Department’s motivations and attitude in regard to the child's welfare.  It is clear that having commenced the protective proceedings in the Children's Court, the Department then sought to withdraw those proceedings, but sought that be on the basis that the Mother would obtain a variation of the Family Court orders to effectively provide that the time the child would spend with the Father would be in accord with the child's wishes.  At that time the child was 10 years old. 

10. The parties sought and I was able to obtain on an emergency basis, the assistance of a family consultant, pursuant to section 11F of the Family Law Act 1975 (Cth), to interview the parties, and the child, and prepare a child inclusive memorandum. That memorandum also refers to the Department investigation wherein the child had reported or made disclosures of the Father using him as a foot stool, and having smacked and choked him. But the child also reported that he was not sure if the Father’s actions happened in the context of them playing a game as he often struggled to understand the intention of the Father’s actions.

11. The Department then sought to cease involvement, and the Father then insisted that that continue. He was concerned about the child's welfare in the care of the Mother. Paragraph [94] of his affidavit filed 4 January 2021 lists a number of matters about which he is concerned. The child told the report writer in the section 11F interview that he was aware that his parents do not like each other and do not get on well, and that he had not spent any time with his Father since 2020 and he does not want to spend any time with him now. However, the child commented that he missed his sister and he now has a new sister whom he has not met. The child said he likes living with his Mother.

12. I should note that the child also reported that the Father would regularly, “push me under the couch”, and smack him, and on three occasions had choked him around the neck.  On the other hand, one of the matters that the child complains about is the Father “pushes his hand in my hair back and forth, and it hurts”.

13. The report writer also stated what is obvious and that is the child is vulnerable due to his diagnosis of autism spectrum disorder, and that his parents hold differing views on how he should be supported.  The report writer also observed that the level of acrimony between the parties is such that it appears the parties are unable to separate their own emotional issues and needs from the child's. 

14. The report writer also observed that the Father advised that his partner, the mother of his children, has said that she does not want the child attending their family home.  It appears that in addition to the welfare of the child being investigated, that the welfare of the Father's other children was investigated.  The Father's partner is a primary school teacher.  No action was taken in regard to those children.  However, the chaos and burden of dealing with child protection from the point of view of the Father's partner must be appreciated.  Hence, at this point there is no dispute that at this point in time the child will not have time with his Father, or his Father's family, or his grandparents or his siblings.  That may or may not be in his best interests going forward. 

15. It must be noted that in the family report writer's opinion, the child presented as aligned with the Mother.  The report writer also advised that the Court should consider requesting a report from the child's primary school to assist the determination of whether the child continues to be home schooled or immediately starts high school.  I note that the Father is very concerned at the lack of socialisation in the child's life in the event that he continues to be home schooled.  The Father also maintains that academically and socially the child is ready for year seven.  In the Mother's affidavit of 22 October 2020, where the Mother commenced proceedings, the issue of the possible dispute about the child's schooling was touched on. 

16. At paragraph [13], the Mother observed that the child had attended an occupational therapist, Ms E, whose sessions with the child had ceased in January 2020.  I note that was the start of the grade six year.  As at the time of that affidavit, Ms E was of the view that it would be in the child’s best interest to repeat grade six next year, and that she was concerned that he was not socially and developmentally ready to start high school in 2021, and that the child should study from home the following year.  When the matter was before me, I was on a preliminary basis concerned about a professional expressing opinions about the child's welfare without considering any view from the other parent who had equal shared parental responsibility. 

17. The Father's position appeared to be that he had not ever been informed of that therapy.  On the other hand, his partner's affidavit seemed to suggest that he had been informed indirectly early in 2020.  The Father has deposed that he was informed via the school teacher and, effectively, accidentally by the school teacher.  The Mother's new affidavit exhibits text messages between the Father and the Mother where, as long ago as 16 July 2019, she informed the Father by inference that the child was already seeing an occupational therapist and the Father requested the name and details of “the occupational therapist you have taken the child to.”

18. The Mother sent the name and mobile phone number of that therapist.  It is clear the Father never called that therapist or sought to be involved in the therapy. 

19. It is also significant that, at paragraph [20] of the Mother's affidavit of 22 October 2020, she states:

    [20]That X is enrolled at B School in Grade 6 and is currently engaged in remote learning. I am a public servant and employed at the Employer G and I have been able to combine my work and supervision of X’s schooling during the Covid-19 pandemic restrictions. Throughout remote learning, X has had two additional support sessions per day from the school via video call and the school has been most supportive of him. Further, X’s workload is constantly monitored by the school. I maintain frequent contact with his teachers and X is subject to a personalised learning plan and behaviour support plan.

20. Ms E had provided to the Mother a report dated 20 October 2020.  That report was, or appears to be, in the Mother's hands at the time of her affidavit.  It is not clear why it wasn't provided to the Father at that time.  It was provided to child protection who provided it to the Father on 20 November 2020.  

21. It is the Mother's case that the child was referred to a paediatrician.  It is clear that the Father was aware of that referral and communicated with the paediatrician.  The Father's position is he asked to be included in therapy, or to be consulted thereafter.  He asked that therapy not occur unless he was involved.  It is the Mother's case that the therapy has continued without the involvement of the Father.  It also appears that the Father never followed up with the paediatrician what, if anything, was happening or was recommended.  Significantly, the Mother retained a psychologist, Ms F, to work with the child, and arising from a referral from Dr D. 

22. There is no evidence that would indicate that Dr D, or the Mother, or Ms F ever made the Father aware of that referral.  A referral to a paediatrician is an important matter.  Both parents should be aware of, and involved in, that matter ordinarily.  A referral by the paediatrician to a psychologist is an important matter.  Ordinarily, both parents should be involved or at least aware of that therapy.  It is now clear and common ground that the Father became aware of the psychologist when he received the psychologist's report on 20 November 2020.  It is not clear to me whether the psychologist was ever made aware of the fact that the Father had equal shared parental responsibility, or if she was aware of that, whether she considered that had any impact on her therapy with the child. 

23. It is significant that Ms F prepared a written report on 26 October 2020 that made very strong recommendations that were to the effect that the child should be home schooled in the context of repeating grade six.  It was the position that the child was not ready for year seven, and that repeating grade six at his existing school would be contrary to his interests.  Entirely contrary to what the Mother has set out about the support that she perceived she was receiving from the school (set out above), Ms F has made strong comments about the previous schools teaching of the child.  She opines, for example: 

    “The administration and X's classroom teachers seems to have neglected adapting the professional recommendations and, instead, taken a punitive approach to any of X's difficulties with interaction/behaviours due to his autism.”

24. She goes on to say that there has been a blocking of the implementation of professional recommendations for the child in his current school environment.  It has been suggested that this is due to his Father's hindering involvement in his education.  The report goes on to also observe that the current primary school have neglected to embrace the professional recommendations for the child which would be detrimental to the child’s mental health.  The report also goes on to express the opinion that it was the professional recommendation of Ms F that the child’s Father should be excluded from any further education decision-making for the child. 

25. The report further opines that the demonstrated block of professional recommendations from highly skilled practitioners who agree with the child’s diagnosis and have attempted to use their professional knowledge to inform best practise for the child has been continually overturned. 

1. There is some irony in the strength of that statement in the circumstances where it is common ground that certainly any recommendations that Ms F may have made cannot have been communicated to the Father as it is common ground that he was never aware of the child even attending her.  What other recommendations that have been blocked by the school and/or by the Father is not apparent on the evidence that I have.  The issue that I will have to deal with is what weight I put on Ms F's recommendation and observations.  It appears reasonably clear at this point, if not common ground, that Ms F did not consult or have any interaction at all with anyone from the child's school. 

2. I expect she would have obtained information from the Mother and from the child, but it is striking that there is no evidence of any information being obtained from the school. 

3. In terms of the attitude of child protection, the view was expressed that in the Children's Court jurisdiction, children over the age of 10 are afforded legal representation and given the ability to choose whether or not contact with any given parent proceeds.  I am not aware of legislative provisions that place the responsibility for choosing time with parents upon any child of 10 or more and requested that counsel assist me with such legislative provisions when the matter comes before me next. 

4. There is no doubt that while it may appear child focussed for the children to be able to determine their time with a parent, needing to do so firmly places them in the middle ground of parental conflict and can be an emotional burden.  The concept is further made more difficult in this child's circumstances when, on the evidence, it is said he is intellectually and emotionally not ready for year 7 and indeed, the treating psychologist observes that the child:

   “Does not have the maturity to deal with the more mature social interactions and nuances that will occur in such a setting at this time.”

5. The setting being progressing to secondary school.  At this time, and it is only a preliminary view, I am troubled as to how a child who is not ready for year 7, who has the diagnosis of autism spectrum disorder, and is in the midst of conflict between his parents, should have placed upon him what may be the burden of choosing his future parental relationships. 

6. I would hope that this is not a case where someone bumps into the child when he is at his graduation, or wedding, or some significant event in his life, and he is asked about whether he has a relationship with his Father.  The child will say, “there was some big trouble when I was in grade 6 and it was decided that it would be left to me to determine those matters, and so I have never seen my father again”.  However, these are only preliminary comments and observations, but I make them to indicate how complex the decision of the child's schooling will be for me and how I will need to be assisted by counsel and hopefully further information, and also an Independent Children's Lawyer.  I need to add I am not disregarding the professional observations of Ms F or Ms E.  I am simply concerned as to the weight that I can place on them on an interim hearing. 

7. So I will make those orders as sought, with the notation as discussed. 

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       24 March 2021