Hall and Hall (No 4)

[2015] FamCA 994

FAMILY COURT OF AUSTRALIA

HALL & HALL (NO 4) [2015] FamCA 994

FAMILY LAW – CHILDREN – interim orders – where the applicant father seeks orders for therapeutic assessment with production of a report – where the applicant father seeks orders that both parties attend a meeting with the assessor – where the respondent mother opposes her attendance upon the assessor – where the court has heard extremely lengthy submissions – where it is considered that the assessment would assist the court in determining the best interests of the child – where it is ordered that both parties confer independently with the assessor and provide the assessor with updated reports of their respective therapists – where it is ordered that the assessor be provided with the Magistrates Court judgment relating to the intervention order sought by the mother – where the question of costs is reserved.

Family Law Act 1975 (Cth) – s 60CC

Goode & Goode (2006) FLC 93-286
APPLICANT:	Mr Hall

RESPONDENT: Ms Hall

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 10 November 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 10 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lindsay

SOLICITOR FOR THE APPLICANT: Jordan & Fowler

COUNSEL FOR THE RESPONDENT: Mr Ackman QC

SOLICITOR FOR THE RESPONDENT:	Barnes Brinsley & Shaw
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms Derewlany

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission Of South Australia

Orders

1. Within fourteen [14] days the husband’s solicitors request by letter that Mr CB indicate in writing to the Independent Children’s Lawyer if he is willing to undertake steps necessary to identify:

   (a)the issues that have been identified by him arising from his consultations with each of the children as being the source of anxiety or concern to the children or as matters compromising their psychological health and wellbeing;

   (b)the therapeutic strategies he has adopted in relation to those issues he has identified as requiring therapy;  and

   (c)his advice as to what strategy should now be adopted to enable the children to re-establish their relationship with their father and whether he is willing to carry out the steps to be put in place if possible to re-establish their relationship with their father.

2. If Mr CB indicates a willingness to do so then within fourteen [14] days or such time as is otherwise available to Mr CB each of the mother and father confer independently with Mr CB and each provide him with updated reports from their respective therapists.

3. If Mr CB indicates his willingness to carry out the aforementioned assessment the Independent Children’s Lawyer shall request him to indicate whether he is willing to receive a copy of the judgment of Magistrate Mr Whittle SM dated 5 June 2015 in relation to the intervention orders sought by the mother and if he indicates a willingness so to do that the Independent Children’s Lawyer provide the same to him.

4. The mother and father at their joint cost are then to request a written report from Mr CB concerning the outcome of those enquiries.

5. The question of both parties’ costs of today is reserved.

BY CONSENT IT IS FURTHER ORDERED THAT:

1. Leave is granted to the parties to inspect and if necessary copy documents produced pursuant to the subpoena to the ANZ Bank (Schedule 16) UPON NOTING the subpoena listing date for today at 2.15 pm before the Registrar is vacated.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hall & Hall (No 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3671 of 2013

Mr Hall

Applicant

And

Ms Hall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The orders that I am being asked to make by way of interim orders in this matter are set out in document 207, being the Application in a Case filed on 23 September 2015 in which the father seeks certain orders.

2. The father sought in his application the following:

   1.    Within 7 days the parties do jointly instruct [Mr CB] to convene a meeting between [Mr CB] and the parties for the purposes of having [Mr CB] identify:-

   (a)     the issues that have been identified by him arising from his consultations with each of the children as being the source of anxiety or concern to the children or as matters compromising their psychological health and wellbeing;

   (b)    the therapeutic strategies he has adopted in relation to those issues he has identified as requiring therapy;  and

   (c)    his advice as to what strategy should now be adopted to enable the children to re-establish their relationship with their father.

   2.    The parties be at liberty to instruct their legal representatives and/or their therapists, being [Ms JM] for the mother and [Ms KK] for the father, to attend the said meeting with [Mr CB].

   3.    If the Independent Children’s Lawyer has not already done so, the husband provide a copy of the Magistrates Court of South Australia judgment of Magistrate Mr Whittle SM dated 5 June 2015 to Mr CB.

   4.    Until further order, the mother be restrained and an injunction granted restraining the mother from:-

   (a)discussing these proceedings with the children;  and

   (b)     advising the children of the joint meeting with [Mr CB].

   5.    The wife pay the husband’s costs of and incidental to this Application.

   6.    Any other or further orders as this Honourable Court deems fit.

3. The Response to the Application in a Case, which was filed on 30 October 2015 seeks:

   1.  That the Application in a Case of the father filed on 23 September 2015 be dismissed.

   2.  That the parties and the ICL jointly instruct [Mr CB] to provide a written report directed to included, but not be limited to:

   2.1the therapeutic involvement he has had with the children [K] and [D];  and

   2.2  the purpose and scope of such therapeutic involvement.

   3.  That the father pay the costs of and incidental to this Response.

   4.  Such further or other orders as this Honourable Court considers appropriate.

4. In support of the Application in a Case, the Court has received the affidavit of the father.  The mother has filed an affidavit in response.  The Court also has the benefit of an affidavit of the Independent Children’s Lawyer to which is annexed correspondence with Mr CB and Mr CB’s report of 4 November 2015, which would seem to cover much of the orders sought by the mother in paragraph 2 of the orders which she seeks.

5. The Court has heard extremely lengthy submissions in relation to the interim order sought, both in support of the orders sought and in opposition to the orders sought. 

6. The Court needs to take into account the history of these long outstanding proceedings, which relate to both the financial matters and children’s issues, but there have been significant orders made in the past in relation to children’s issues and consideration given to interim orders which might be in the children’s best interest.

7. To summarise, the matter is difficult, but the judgment of this Court on 17 June 2014 sets out the background which is appropriate to consider for this hearing as well.  However, substantial changes have been made after those orders.  All time with the father and the children was brought to an end by orders of November 2014.  In the orders of 17 November 2014 the time that the father spent with the children was suspended until further order.  Other orders were made in relation to the provision of information to the husband in relation to the children.

8. An Independent Children’s Lawyer was appointed and the matter returned to Court.  On the return of the matter to the Court in December 2014 other orders were made, which provided for the children to continue to see Mr CB. 

9. The significant material now before the Court is the report of Mr CB, which indicates that he did not consider that he had been appointed to provide therapy for the children to bring about a reunification with the father.  His report has been referred to by counsel before me today.  The significant part of the report is that which says at the last paragraph on page 9:

   At no time have I considered my work with the children to have the specific goal of reintroducing their father into their life.  Rather I have worked towards promoting more optimistic beliefs regarding themselves, others and their world which, in turn, might be expected to support healthy adjustments and relationships.  I have also sought to alleviate the children’s apparent anxiety concerning their father.  I would anticipate that the course most likely to achieve an outcome of the children sharing a loving and satisfying relationship with [Mr Hall] would involve him engaging with them in a manner that offers them enriched experiences of his accessibility, understanding and emotional connectedness.  Each of these aspects of caregiving and relational behaviour are considered to be supportive of a child’s secure attachment to their parents. …

10. I have taken into account all of the report not just those parts which I have quoted. 

11. The matter is now before the Court on the basis that the father seeks to have certain orders made as a basis, I understand from counsel, to establish a graduated process for him to reunite with the children. 

12. The mother opposes the orders on the basis that the father can have authority to contact Mr CB and do what he likes in relation to the steps he considers might assist.  The information which is put before the Court emphasises on behalf of the mother that the father has had very limited counselling.

13. I accept that on that basis it appears that the mother is maintaining that he has not taken the steps that she would have expected him to take in order to convince the Court, and her, that he has overcome the difficulties in relation to his interaction with other adults and the children, which raised serious issues in the other interim hearings about the father’s alleged violent behaviour.  In that regard, the wife is also opposing the Independent Children’s Lawyer providing to Mr CB a copy of the Magistrate’s decision, which was a decision made in relation to domestic violence intervention orders proceedings, which I am told involved evidence being given over a period of eight days by the mother, father and another witness.

14. The difficulty the Court has in making these decisions is that the Court is not in the position to ascertain which of the facts alleged by way of significant background facts are true and correct.  Nor can the Court make a decision as to the attitude of the parties to their responsibilities as parents and their capacity to carry out their duties as parents, particularly in relation to the children’s emotional and psychological needs.  Those matters will have to be tested when the matter is finally listed for hearing before the Court.  However, it is clear from the authorities of Goode & Goode (2006) FLC 93-286 that the Court must take into account the various provisions of section 60CC when making a decision in such a matter regardless of those difficulties.

15. The proposals have been in the past that the parties have shared equal parental responsibility, but it is not difficult in this particular matter at an interim stage to determine that it is not in the best interests of the children for there to be equal time or substantial and significant time with the father, and they are not matters which are actually being pressed before me today.  Rather it is being pressed that steps be taken to bring about a situation where the Court will be in a better position to determine what is in the best interests of the children if the parents continue to be unable to reach agreement about those arrangements.

16. The orders which I am being asked to make in relation to the involvement of Mr CB are orders which would be steps to be taken along the way to assist the parties, and the Court, if necessary, in determining what is in the best interests of the children.  The report of Mr CB indicates that he has had some lengthy involvement with the children and would be in a position to provide the parties with information which would assist the parties, and, if necessary, the Court, in making the decisions. 

17. The orders sought were that the mother and the father attend a meeting with Mr CB and discuss with him the issues which need to be identified to take further steps in determining how the relationship between the father and the children can be re-established if appropriate, and that the parties be at liberty to provide information to Mr CB.

18. The mother opposed attending the meeting with the father and still opposes attending the meeting separately unless Mr CB specifically invites her there.  The difficulty in relation to these matters is that the independence of the experts needs to be maintained.  I therefore think it appropriate that as the parties are unable to make these decisions that the Court gives directions concerning the same, including the attendance of the parties to assist Mr CB if he considers that appropriate. 

19. The best interests of the children emphasise the benefit to the children of having a meaningful relationship with each of the child’s parents, but also as a primary consideration the need to protect the children not only from physical harm but from psychological and emotional harm.  The capacity and the steps of the parties taken to provide for the needs of the children are also significant in this matter. 

20. Having considered all of those and the submissions of counsel I consider that it is in the best interests of the children for steps to be taken to request that Mr CB indicate whether he is prepared to attend to identifying the next steps that he thinks would benefit the children, if appropriate, in renewing their relationship with their father and that both parents should participate in this.  I do not consider it appropriate, nor necessary that it be a joint meeting of the parents with Mr CB, but that they can do so individually. 

21. I also consider that taking in account Mr CB’s background in the matter it will be of benefit for him, if he considers it appropriate for him to receive a copy of the Magistrate’s decision.  In any event, I consider it appropriate for him to receive reports from the parties’ therapists, if he wishes to continue his participation in the treatment of the children, extending it to the issues in relation to reconciliation.

22. Otherwise, the matter will have to come back before the Court and the appropriate steps taken if the parties continue to be unable to agree upon steps taken to benefit their children.  The Court will then be required to indicate what steps can then be done by either a further independent person or, if necessary, the Family Consultant.  The Court has some reluctance to involve the Family Consultant as a therapist, because then that indicates the Family Consultant’s role is taking a step in a different direction, whereas a therapist can take the steps with the children, towards renewing the relationship with the father.

23. The father seeks an injunction restraining the mother from discussing these proceedings with the children or advising the children of the joint meeting with Mr CB.  There is now no joint meeting with Mr CB and that order therefore need not be made.  What needs to be considered is, however, whether the mother should be restrained from discussing the proceedings with the children.  The mother opposes the order sought on the basis that it is not necessary because she has not discussed the proceedings with the children and does not intend to do so.

24. The proceedings before the Court have been outstanding for some time, and whilst there have been considerable difficulties in the relationship between the parties and the behaviour in front of the children, which has brought about a situation where the father no longer has time with the children, I am not satisfied that the affidavit material before me at this stage indicates that it is necessary to make the injunction sought against the mother.

25. The Court, however, makes it quite clear that it is certainly not in the best interests of the children that either party discuss these proceedings with the children and that if it transpires that the children have been subjected to discussions by the parties or by other persons in the presence of the parties that the parties have not stopped, then the Court would consider that a significant issue in determining whether the parties have an appropriate attitude towards their responsibilities as parents and whether they have the capacity to carry out their role as parents and protect the children from the increasing risk of psychological and emotional harm caused by these proceedings.

26. What is clear, however, is that Mr CB has been involved in therapy with the children and may well have heard from the children comments the children might make as to their awareness of the proceedings.  Any comment I make about persons not discussing these proceedings with the children does not include Mr CB nor, in due course, a Family Consultant.

27. In relation to the question of costs, both parties seek an order for costs against the other.  The financial proceedings have been ongoing for a considerable period of time.  There are also issues in relation to financial matters listed for further hearing next month, 10 December.  At this stage I do not propose to hear argument about the question of costs, but reserve both parties’ costs.

28. By consent, I give leave and make orders in the usual terms for all parties to inspect and, if necessary, copy documents produced pursuant to the subpoena to the ANZ Bank and vacate the hearing before Registrar Paxton at 2.15 this afternoon.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 10 November 2015.

Associate: 

Date:  12 November 2015