HAINS & PALER

[2020] FamCA 632

FAMILY COURT OF AUSTRALIA

HAINS & PALER [2020] FamCA 632

FAMILY LAW – PARENTING – where parties reach agreement about which Independent Children's Lawyer expresses reservations – where orders are made in terms sought by consent.

APPLICANT: Ms Hains

RESPONDENT: Mr Paler

INDEPENDENT CHILDREN’S LAWYER: Ms Perisic

FILE NUMBER: MLC 9373 of 2017

DATE DELIVERED: 12 June 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ben Von Einem & Associates Pty Ltd

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Perisic Lawyers

Orders

BY CONSENT IT IS ORDERED THAT:

1. The parties have equal shared parental responsibility for the child X born … 2006 (“the child”).

2. The child live with the Mother.

3. The child spend time with and communicate with the Father as follows:

   (a)       Each alternate week from the conclusion of school Thursday (or 3.30pm in the event of a non school day) until the commencement of school Monday (or 9am in the event of a non school day);

   (b)       For one half of all Victorian gazetted school holiday periods by agreement and failing agreement, the first half being from the conclusion of school or 3.30pm on Friday until 5pm on the middle Saturday;

   (c)       From 3pm Christmas Eve until 3pm Christmas Day in the year 2020 and each alternate year thereafter;

   (d)       From 3pm Christmas Day until 3pm Boxing Day in the year 2021 and each alternate year thereafter;

   (e)       On the child’s birthday for a period of four hours by agreement and failing agreement from 10am until 2pm each year;

   (f)        On the Father’s birthday being for a period of six hours by agreement and failing agreement from 10am until 4pm each year;

   (g)       On Father’s Day from 5pm on the Saturday immediately prior to Father’s Day until 5pm on Father’s Day; and

   (h)       Such further and other times as agreed between the parties.

4. That the child’s time with the Father be suspended as follows:

   (a)       From 3pm Christmas Eve until 3pm Christmas Day in the year 2021 and each alternate year thereafter;

   (b)       From 3pm Christmas Day until 3pm Boxing Day in the year 2020 and each alternate year thereafter;

   (c)       On Mother’s Day from 5pm on the Saturday immediately prior to Mother’s Day until 5pm on Mother’s Day; and

   (d)       On the child’s birthday for a period of six hours by agreement and failing agreement from 2pm until 6pm in the event that the child is otherwise in the care of the Father;

   (e)       On the Mother’s birthday each year in the event of a school day for a period of four hours by agreement and failing agreement from 3.30pm until 7.30pm and in the event of a non school day for a period of six hours by agreement and failing agreement from 10am until 4pm;

   (f)        Such further and other times as agreed between the parties.

5. That for the purposes of changeover, if possible, same shall occur at the child’s school and on non-school days, changeover shall occur with the Father collecting the child from the Mother’s residence at the commencement of time and the Mother collecting the child from the Father’s residence at the conclusion of the Father’s time.

6. That the parent who is caring for the child shall ensure that the child is taken to school on each school day the child is in his or her care unless the child is unable to attend school due to ill health or scheduled medical or other health appointments.

7. That both parents shall be restrained from physically disciplining the child.

8. That each parent will permit the child to telephone the other parent in the event that the child expresses a wish to do so.

9. That each parent shall notify the other of their residential address and contact telephone number and shall advise the other not less than 24 hours prior to any change to same.

10. That the Mother and Father be restrained from denigrating the other parent or their family members in the presence or hearing of the child or permitting any other person to do so.

11. That the Mother and Father be restrained from discussing these proceedings or any other Court proceedings with or in the presence or hearing of the child or allowing any other person to do so.

12. That each parent comply with all recommendations of the child’s treating medical practitioner.

13. That both parents do all acts and things necessary to engage with the child’s treating medical experts, including but not limited to his General Practitioner, paediatrician, heart specialist and psychologist and that the Father do all acts and things to ensure his attendance upon same to be educated about the child’s issues and that Father to pay any fees incurred.

14. That both parents each obtain a mental health plan from their General Practitioner to facilitate attending individual counselling with a psychologist and continue to attend until his/her psychologist deems it no longer necessary provided that such attendance is supported by a mental health plan.

15. That each party be authorised to obtain copies of all school reports, newsletters and photograph order forms and be at liberty to attend any school or extracurricular events that parents would ordinarily attend.

16. That each parent notify the other in the event of any serious illness or injury to the child and authorise the treating medical practitioner to provide information to the other parent.

17. That the parents communicate by way of a weekly telephone call at a date and time to be agreed between the parents for the purposes of exchanging information in relation to the child.

IT IS ORDERED THAT:

1. The final hearing set down for 17 September 2020 be and is hereby vacated.

2. The case management mention listed for 27 July 2020 be and is hereby vacated.

3. The order for the s. 62G(2) report be discharged.

4. The Order for the Independent Children’s Lawyer be discharged.

5. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

6. Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

IT IS DIRECTED:

1. That the minute of consent orders as amended be marked Exhibit “A” and remain on the Court file.

2. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

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  Hains & Paler 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 MELBOURNE

FILE NUMBER: MLC 9373 of 2017

Ms Hains

Applicant

And

Mr Paler

Respondent

And

INDEPENDENT CHILDREN'S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. The parents having reached an agreement in this matter carries significant weight in relation to me being satisfied that the orders being made are in the best interests of X who is 13 years old.  This is a court of private law and, if I order an arrangement that both parents do not want, in preference to an arrangement upon which they agree, there would be considerable doubt as to the preparedness of the parents to follow through on the arrangement.  If I was not satisfied that the orders sought by the parents are consistent with X’s best interests, I can decline to make the order.

2. In this case, the Independent Children's Lawyer, Ms Perisic, has responsibly, in my view, voiced considerable concern about X’s wellbeing going into the future, and parental capacity on the part of both parents.  She also has significant concerns about the parents’ preparedness and capacity to adhere to arrangements generally let alone to adhere to arrangements to which they do not agree.

3. Ms Perisic informs the Court, and I accept, that the minutes of orders that she has prepared reflect what the parties agree and say they will abide, and do include provisions over and above any existing order, which are likely to benefit X.  On that basis, I am satisfied that this is a case in which the Court should make orders, and I will make them in the terms in which they are now submitted, which have been amended in two respects that I have discussed with the parties.

4. The applicant mother is about to turn 58 years old, and the father is 55 years old.  The mother resides in B City and has fulltime care of X.  The father resides alone in C Town, which is approximately 25 minutes from B City and is self-employed.  I am not certain of his current employment. Orders were previously made in relation to X in November 2017.  The parents commenced their relationship in 2000 and separated in 2011.  X resided primarily with the mother following separation.

5. X is 13 years old and has a medical condition and significant behavioural problems.  He attends D School.  The Independent Children's Lawyer informs the Court, and I accept, that the various specialists consulted who have assessed X, and those involved with his ongoing development such as his school, have significant concerns about X’s welfare going forward, and she describes some of the material as confronting.  The Independent Children's Lawyer has caused a significant number of subpoenas to be issued in these proceedings, and has inspected a large amount of documentation. 

6. A previous Family Report dated 1 August 2018, conducted by Family Consultant Ms K, following her interviews with the parties and X on 19 July 2018 provides some further context about this family. 

   EVALUATION

   114.X is a child with a significant disability and is therefore vulnerable. X will need ongoing support, both from family and professionals, as he grows.

   115.Ideally, given X’s special needs, his interests would be best served by his parents working together cooperatively to ensure his needs are being met and that his ongoing development is supported. Unfortunately, it does not appear that Ms Hains and Mr Paler could work together to provide that support. It appeared that both parents remain embroiled in hurt and anger about the past and in blaming the other for current difficulties. Both parents may benefit if they would be willing to meaningfully engage in counselling to overcome their hurt and anger. However, it seemed unlikely that either parent would meaningfully engage in such a process at this time.

   116.Neither parent has attended a Post Separation Parenting Program. It may benefit them, and X, for them to do so. It appeared that neither parent understands the impact that their ongoing conflict and lack of cooperation has on X.

   117.It seemed clear that Ms Hains has not been keeping Mr Paler informed of the professionals and services engaged to assist X. This may be due to her sense that he has little interest and/or respect for the benefits of X being engaged with such services. Mr Paler clearly stated that he does not trust X’s paediatrician (noting that he may not be referring to Dr G) and that he does not see the need for X to be engaged with other services, as he does not experience the difficulties with X that Ms Hains does.

   118.Again, ideally, X needs both of his parents to be engaged with whatever services the professionals involved in his care recommend. Regardless of what behaviour X exhibits with each parent, the goal should be to have X’s difficult and aggressive behaviours effectively addressed, wherever and with whomever they occur. Doing so will require consistency of strategies across both homes. While it may be difficult for the parents to attend appointments together, if necessary, it should be possible for them to attend appointments related to X individually, to ensure that they are both receiving the same information and recommendations.

   119.Given Mr Paler appears to have difficulty with reading, communication between the parents around X’s needs may need to occur verbally. Ms Hains expressed her preference to have no contact with Mr Paler. Given X’s needs, it will be essential for the parents to communicate. A scheduled weekly phone call may be the only way to ensure both parents are adequately informed about X’s day to day needs, appointments and requirements. It will be important for both parents to understand that such a phone communication should be brief and focussed entirely and only on matters of importance regarding X. If Mr Paler were to demonstrate that he can read text messages or emails, they would be the preferred methods of communication.

   120.Ms Hains may need some assistance through counselling to enable her to have such regular contact with Mr Paler.

   121.Given X’s special needs, it is difficult to make definitive recommendations about the time that X should spend with each parent.

   122.During observations, it appeared clear that X was less aggressive and more easily distracted or settled when with Mr Paler. Mr Paler seemed less intimidated by X’s behaviours and better able to keep X engaged to prevent him from becoming unsettled. Mr Paler was adamant that X does not display aggressive behaviours when in his care. Dr G commented that he was not surprised that X might be more responsive to Mr Paler given his size and gender.

   123.Ms Hains agreed that Mr Paler can settle X when he is acting out. She appeared to recognise that X needed Mr Paler at times to control his behaviours. Ms Hains talked about being supportive of X spending more time with Mr Paler if it was in his best interest. However, she also commented that X goes through phases where he appears more aligned with one parent over the other. She noted that X is currently more aligned to Mr Paler.

   124.Ms Hains appeared overwhelmed when X began to act out. She appeared frightened as his behaviour escalated. It was not hard to imagine that she may have aggressively defended herself at times, by lashing out at X. As X grows, he will become even bigger and stronger. The impression was left that Ms Hains is being regularly physically assaulted by X.

   125.A Behaviour Management specialist has been engaged to assist in developing strategies to control X’s behaviour. While Ms Hains should be applauded for ensuring X has access to such support, there is some doubt that she will be able to effectively implement any strategies developed. It appeared that a type of abusive dynamic exists between Ms Hains and X. During observation, she was quiet with X. It appeared possible that she may have developed the strategy to avoid behaviours that she considers may upset him. It was as if she was on tender hooks around him. Given his assaults, such a strategy would not be surprising or unreasonable. It may benefit both Ms Hains and X to limit their time together until X has better control over his behaviours.

   126.On the basis of a very limited observation and information, it would appear that X may benefit from spending significantly more time with Mr Paler. X seemed generally more settled and cooperative when with Mr Paler. If his behaviour during the observation was indicative of his behaviour more generally when with Mr Paler, it would appear that X could experience a calmer and less disruptive life with Mr Paler.

   127.However, Mr Paler may need to better understand that having X spend more time with him will not necessarily address his aggressive behaviours towards Ms Hains. Dr G suggested that Ms Hains may be more vulnerable to X’s aggression given her smaller stature. If so, X may learn to exhibit those behaviours with whomever he perceives that he can physically dominate. X will need assistance to learn to control his anger regardless of how much time he spends with each parent.

   128.There are also concerns about Mr Paler’s capacity to ensure that X is engaged in recommended services and that he attends school regularly. Given his stated difficulty with ‘paperwork’, Mr Paler may struggle to meet the documentary requirements of an organisations such as the NDIS. If X were to spend more time with Mr Paler, his NDIS package would need to be reviewed to ensure that both homes are provided with the level of support required for X. Mr Paler would need to cooperate with the professionals involved and seek their assistance as required.

   129.Mr Paler openly talked about his distrust of professionals and denied that X requires the level of assistance currently provided. If X were to spend more time with Mr Paler, Mr Paler may need to be under obligation to follow the recommendations of the professionals involved in X’s care.

   130.Mr Paler may also need to be under obligation to ensure X’s regular attendance at school if X were to spend more time with him. It may be in X’s interest for Mr Paler to be obliged to provide a medical certificate for any time that X is not attending school.

   131.Despite her preference for there to be flexibility in the time spent arrangements for X, Ms Hains asserted that X becomes anxious and confused when arrangements are not followed. Dr G clearly stated that structure and routine are essential for X. Dr G was open to a trial of X spending a week about with each parent or of X living primarily with Mr Paler.

   132.If X were to spend a week about with each parent or if he was living primarily with Mr Paler, each parent could do drop offs and pick-ups at X’s school, minimising the need for X to attend a changeover after he becomes settled at home. Doing so would also reduce the incidence of the parents coming in to contact, which appears to be a difficult experience for X. When observed with his parents together, X appeared to have a strong desire for his parents to be together. Exposure to them not getting along may be a significant contributor to X becoming unsettled at changeovers.

   133.While Dr G was open to trialling both a week about arrangement and for X to live primarily with Mr Paler, there are some concerns that a week about arrangement could be more disruptive for X. Assuming it is strictly complied with, X will eventually settle into any time spent arrangement. However, he may find the transition to a week about arrangement more difficult and confusing than a move to living primarily with Mr Paler.

   134.It is possible that, if it is determined that X should live primarily with Mr Paler, Ms Hains may find that change in arrangements very difficult. If such a decision were to be made, it may benefit Ms Hains to seek counselling to help her manage her inevitable sense of loss.

   RECOMMENDATIONS

   135.That both parents attend counselling, available through a referral from their GP’s, to address their anger and hurt. Ms Hains will also need assistance to find ways of communicating with Mr Paler about X without feeling dominated by him.

   136.That both parents attend a Post Separation Parenting Program available at F Services, Ph: … or H Services, Ph: ...

   137.That the parents equally share parental responsibility for X, ensuring they are keeping the other fully informed of any medical, academic or extracurricular activity appointments, requirements or recommendations.

   138.That parental communication occurs via a weekly phone call unless Mr Paler can demonstrate an adequate capacity to read text messages or emails, in which case, a weekly text or email.

   139.That both parents meaningfully engage with professional services including X’s paediatrician and the professionals available under X’s NDIS package and follow any recommendations made by those professionals, including X’s Behaviour Specialist to assist X to better control his aggression.

   140.That assuming Mr Paler can demonstrate a capacity to financially support X, that X live with Mr Paler.

   141.That if X were primarily living with Mr Paler, Mr Paler ensure X’s regular attendance at school and provide medical certificates to the school and Ms Hains for any absences from school.

   142.That X spend time with Ms Hains each Wednesday from conclusion of school to commencement of school Thursday, each alternate weekend from conclusion of school Friday to commencement of school Monday and half of all school holiday periods and special occasions.

   143.That if X were to live primarily with Mr Paler, X’s case coordinator at NDIS be provided with a copy of this report and/or Orders to inform them about X’s change in circumstance and therefore the need for a review.

   144.That if Mr Paler cannot satisfy the Honourable Court of his capacity to financially support X, the current arrangement remains in place, as per FCC Orders of November 2017, with the alteration that X spend time with Mr Paler from conclusion of school on the Friday of the weekends he is with Mr Paler.

   145.That the matter be reviewed in six months to ascertain the impact of the arrangement on X and Mr Paler’s compliance with the requirements mentioned above.

   146.That the review includes reports from the professionals involved in X’s care, and from X’s school, to ascertain the level of Mr Paler’s compliance to those requirements.

1. I am satisfied that the family and X will benefit from structure and the certainty of an order in the terms sought.

2. I am satisfied that the Order is consistent with X’s best interests.

3. This Order effectively finalises the proceedings.  I will vacate the hearing of this matter, which was otherwise listed for 14 September 2020.  I vacate the mention date on 27 July 2020.

4. I discharge the Order for the preparation of the Family Report.

5. I express my gratitude to Ms Perisic, the Independent Children's Lawyer, for bringing this matter to the attention of my Chambers at an early time, and so that the scarce resources of the Court were not applied to this family when this family indicate that they no longer need them.  This has freed up two hearing dates before me which can be taken by other matters and, most significantly, the Family Report, which was to be commenced next week, can now be otherwise applied.  That is precisely what an Independent Children's Lawyer should do, and I commend her for taking that action. 

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 June 2020.

Associate: 

Date:  4 August 2020