Hamblin & Hamblin
[2023] FedCFamC1F 324
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hamblin & Hamblin [2023] FedCFamC1F 324
File number: SYC 4918 of 2020 Judgment of: CAMPTON J Date of judgment: 27 April 2023 Catchwords: FAMILY LAW – PARENTING – Where the parents have reached agreement as to the final parenting arrangements for their children, save for one issue as to the length of time for which the father is to engage with a therapist with expertise in Emotionally Focussed Therapy – Orders made for the agreed therapist to determine the length of time for which the father is to engage in therapy. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 68B, 79 Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 26–27 April 2023 Place: Sydney Counsel for the Applicant: Mr Kenny Solicitor for the Applicant: Hennessy Dowd Lawyers Counsel for the Respondent: Mr Spicer Solicitor for the Respondent: Vaikom Law Solicitor for the Independent Children's Lawyer: Mr Cairns Solicitor for the Independent Children's Lawyer: Mason Mia & Associates-Solicitors & Advocates ORDERS
SYC 4918 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAMBLIN
Applicant
AND: MR HAMBLIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
27 April 2023
THE COURT NOTES THAT:
A.Each of the parents and the ICL agree that the psychologist proposed by the father, Ms B, is a therapist with the appropriate qualifications and expertise to provide the emotionally focussed therapy identified in these orders.
BY CONSENT, THE COURT ORDERS THAT:
1.Orders are made in accordance with paragraphs 1–4, 5(a) and 6–17 inclusive of Exhibit 8 and attached hereto.
AND ON A DEFENDED BASIS, THE COURT ORDERS THAT:
2.As soon as reasonably practicable, the father shall do all such things as are necessary to engage with and attend upon a psychiatrist or psychologist who specialises in emotionally focussed therapy (“the therapist”).
3.Each of the parents shall do all such things as are necessary to authorise and direct the communication of documents and information between Mr C of D Counselling, being the person the father contends he has attended upon for the past four or five months, and the therapist engaged pursuant to these orders, so as to enable the therapist to be appraised as to the fact and terms of the therapy asserted to have been undertaken by the father with Mr C.
4.Subsequent to the communication between Mr C and the therapist referred to herein, the therapist shall determine the period of time for which the father is to engage with them for the purposes of emotionally focussed therapy, provided that such period be between not less than eight months and not less than 12 months.
5.The father shall do all things as are reasonably necessary to comply with the directions and recommendations of the therapist engaged pursuant to these orders, as may be made from time to time.
6.Each of the parents and the ICL are to provide the therapist engaged pursuant to these orders with a copy of the Family Report of Mr E dated 16 October 2022 (Exhibit 1) and a copy of the ex tempore reasons for judgment delivered 27 April 2023.
7.The parties shall do all such things so as to authorise and direct the therapist to provide a report to the mother, father and ICL, identifying:
(a)the fact of the father’s attendance for therapy;
(b)the dates of the therapy;
(c)the father’s engagement or otherwise in the therapy process;
(d)the father’s presentation at that time of the report; and
(e)any recommendations for future treatment and/or therapy.
8.For the purpose of the preceding order, the report from the therapist is to be produced at such time as determined by the therapist within a four-month time frame, being not less than eight months from the date of these orders and not more than 12 months from the date of these orders.
9.The father shall meet the costs of therapy and of any report prepared by the therapist pursuant to these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Hamblin & Hamblin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
The proceedings between Ms Hamblin (“the mother”) and Mr Hamblin (“the father”) were listed for hearing over three days commencing on 26 April 2023 as to the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) and as to the parenting arrangements for their children:
(a)X, born 2012, currently aged 10;
(b)Y, born 2015, currently aged eight; and
(c)Z, born 2017, currently aged six.
The father was born in 1972 in the United Kingdom. The mother was born in 1978 in Australia.
The parents commenced a relationship in 2005 and commenced cohabitation in Western Australia in 2006. They married in 2011.
The history of the litigation
The parents separated on 26 June 2022. The following day, the mother and the children flew to New South Wales.
The mother commenced these proceedings by filing an Initiating Application in the Sydney Registry on 22 July 2020, seeking relief as to property adjustment and parenting.
The father filed an Initiating Application in Family Court of Western Australia on 28 July 2020, seeking parenting orders and an order for the recovery of the children.
There is a history between the parties of apprehended violence proceedings, and a number of interlocutory determinations made in both Western Australia and New South Wales courts.
In 2021, a Magistrate of the Family Court of Western Australia conducted a hearing over a period of three days and made orders dismissing the father’s recovery application and transferring the balance of the proceedings in the Family Court of Western Australia to the Sydney Registry. Other orders were made by way of Pt VII of the Act.
An order for divorce was made in late 2021.
Orders were made by a senior judicial registrar on 17 December 2021 for the children to live with the mother and spend supervised time with the father. An Independent Children’s Lawyer (“ICL”) was appointed and Mr E was appointed as the single expert witness to prepare a family report.
Orders for family therapy to occur were unsuccessful. Evidence exists of the father travelling to New South Wales to spend supervised time with the children at Easter 2022, and the children refusing to spend time with the father.
Mr E attended upon the parents and the children on 26 and 28 July 2022, and produced a comprehensive family report on 16 October 2022, which became Exhibit 1 in the proceedings before me (“the family report”).
The substantive property settlement proceedings between the parties were compromised on the making of consent orders late yesterday, 26 April 2023. Earlier today, consent orders were made regulating most aspects of the parenting of the children on a final basis. They broadly provide for:
(a)The mother to have sole parental responsibility for the children;
(b)The children to live with the mother and spend time with the father as agreed between the parents in writing;
(c)For the father (subject to compliance with a regime of therapy) to communicate electronically with the children once per month, facilitated by F Service;
(d)The conduct of the behaviour of the parents against one another to be subject to restraints pursuant to s 68B of the Act;
(e)For the father to be at liberty to send gifts, card, and letters to the children.
The outstanding issue for determination in the parenting case arises from the following recommendation made by Mr E in the family report:
273.That, if [the father] has undertaken [Emotional Focussed Therapy] EFT for a period of not less than 12 months, then the introduction of phone contact could be initiated between him and the children on a monthly basis.
The recommendation is cast against the tension identified in s 60CC(2) of the Act, being the balance to be achieved by way of the benefit of children having a meaningful relationship with each of their parents being consistent with their interests, and the need to protect the children from physical, emotional, or psychological harm and being exposed to abuse, neglect or family violence.
The mother’s case, supported by the ICL for the purposes of the parenting trial, was that the children were subject to an unacceptable risk of exposure to family violence by the father in the event they were to spend time with him in the future, either directly or indirectly, and that the children, arising from their past exposure to family violence, had been traumatised in a way that impacted on their relationship with the father and their views of the father. The mother relied on affidavit evidence from the children’s treating psychologist, who outlined the processes of intensive therapy in which he had engaged the children over a period of time to ameliorate the contended impacts of being exposed to such family violence.
Mr E, in undertaking an observation session between the children and the father, recorded that the session was difficult for the children. The general import of his evidence is that the children are, more likely than not, currently experiencing an estrangement from the father.
It has been some time since the children last spent face-to-face time with the father, the last aborted effort (outside the appointments with Mr E) being at Easter 2022. Electronic communication between the father and the children since July 2022 has been problematic.
In the family report, Mr E made the following observations and opined:
261. [The father’s] presentation suggests that he has an underlying emotional/psychological vulnerability that he is on some level aware of but defends against it by behaving in an aggressive and reactive manner…
262. Whilst cognitive behaviour therapy is considered to be the preferred therapeutic modality to treat anxiety and depression, as stated, this assessment suggests that [the father] would benefit more from engaging in longer-tern interpersonal psychotherapy, such as Emotion Focussed Therapy (EFT), so that he can develop greater insight into his emotional state and what drives him and his behaviour, which is possibly related to his early childhood and/or his formative attachment relationships, rather than managing the symptoms of either mental health condition per se. Such therapy ought to be confidential but he will need to demonstrate that he has undertaken therapy and has tried to develop a deeper understanding of himself.
The parents and the ICL agree that the father should attend upon a psychiatrist or psychologist who specialises in Emotionally Focussed Therapy (“EFT”) as recommended by Mr E (“the therapist”). Each of the parents and the ICL agree that Ms B, as proposed by the father, is an appropriately qualified person fulfilling this requirement to undertake the EFT. The parents and the ICL further agree that the therapist who undertakes the EFT with the father (assuming it is Ms B) ought to provide a report as to the father’s mental health presentation and any further recommended treatment, at the conclusion of the process or program of EFT. The parties and the ICL agree that an order should be made requiring the father to comply with the recommendations of the therapist. What remains in dispute is the length of time for which the father is to engage with the therapist. Mr E recommended that it be for a period of 12 months. The mother and the ICL seeks an order consistent with that recommendation to commence from the date of the making of final orders. The father, as will be recorded, seeks an order that it be for a period of eight months.
It may well be, having regard to the terms of the consent parenting orders made earlier today, that the process of the father undertaking and completing the EFT will give some solace to assist the mother to overcome her belief that the father presents a danger to her safety and to the children’s safety, such that it will give her encouragement to support the children having an ongoing relationship with the father in the future, including communicating with him and spending time with him.
This is cast against the following opinion and conclusions of the Mr E in the family report:
265.… However, if [Ms G’s] allegations are accurate, then, from an emotional and psychological perspective, [the father] is likely to have a parenting style that is rigid, controlling, and authoritative and he may not be emotionally available to the children because he is preoccupied with his own emotional/psychological state (anxious/controlling).
266. To some extent this behaviour was observed in [the father’s] interaction with [X] and [Y] when he was observed with the children for this assessment. [The father] seemed to focus on/target [X] and reinforce to [X] how proud he… is of him. He also gave X a rock from [H Region], which [the father] told [X] would keep them connected, and he insisted that he read [Y’s] birthday card even though [Y] made it perfectly clear he did not want him [the father] to.
267. If [the father] cannot accept that his behaviour towards the children was aggressive and caused them harm and he continues to have trouble regulating his emotions, in particular anger, or feels that his needs are not being met, then the children may be at risk of verbal and physical aggression, as has been alleged, and overt control.
At paragraph 268 of the family report, Mr E opined that the father, at the time of the report, “continue[d] to reject the proposition that he requires some assistance with his mental health and he resist[ed] psychological treatment”. The import of that opinion is put into issue by the father. The father asserts that he has undertaken either four or five months of EFT or an equivalent with Mr C from D Counselling. It his assertion that he is, in reality, one third of the way through the therapeutic process recommended if it is to be for 12 months. The father said he has met the costs of this therapy, albeit that he has not identified the quantum of that cost.
Some dispute exists between the father on one side, and the mother and the ICL on the other, as to:
(a)the qualifications and expertise of Mr C;
(b)the number of sessions (if any) attended by the father; and
(c)whether the sessions undertaken thus far would receive any “credit” from the new therapist (irrespective of whether it is Ms B or not) who is to undertake the agreed future EFT pursuant to the proposed orders.
The father did not give evidence as to the fact or terms of his engagement with Dr C in his 146‑page affidavit filed yesterday. The mother and the ICL highlight that there is no evidence to ground his assertions.
The importance of the process of the father not only commencing but also completing the EFT so as to promote the best interests of the children is highlighted in the family report. Mr E records that the father “will not develop the insight he needs to understand himself more fully and the impact that his behaviour has on others”, unless and until that therapeutic process is achieved. Mr E opines that:
268.… Rather than being able to respond to people and/or situations when under stress or pressure, [the father’s] behaviour will continue to have a reactivity about it in which he could continue to behave in an emotionally dysregulated way (lose control verbally or physically).
It was against this background that Mr E made the recommendation for 12 months of EFT, so that the father is less emotionally and psychologically vulnerable. It was his opinion that after the completion of that period of therapy, it is possible that time-spent, contact, or communication with the children may be in their best interests. Mr E sees this process of individual therapy as a building block for the father and the mother to attempt any reestablishment of a relationship between them as parents, and to facilitate the reestablishment of a meaningful relationship consistent with objects of Pt VII of the Act, between the father and the children.
To my mind, the person who undertakes the EFT in which the father will engage pursuant to the orders is the individual who is best appraised to make an assessment of the terms and/or content of the therapy asserted to have undertaken by the father for a period of four or five months with Mr C. In the event that therapist (whether it be Ms B or not) contacts Mr C and obtains the relevant particulars of the therapy undertaken thus far as they considered appropriate, it would then be a matter for that therapist (whether it is Ms B or not) to make a determination as to what “credit” if any the father should receive for the processes he has completed with Mr C.
For those reasons, an order shall be made for the parties to do all such things as are necessary to ensure the therapist engaged pursuant to these orders has a capacity to obtain such documents and information from Mr C for the purposes of making that assessment. It will be a matter for the therapist engaged pursuant to these orders to determine whether the father “credit” that he seeks for the work that he has undertaken with Mr C, such that his period with the therapists be reduced to a period of eight months, or whether the period be not less than 12 months.
It was agreed between the parties that the father should follow the recommendations of the therapist. It was further agreed that the father should meet the costs of any therapy undertaken. Having regard to the terms of the consent property orders made yesterday, I am satisfied it is appropriate that the father also meet the costs of the report to be obtained by the therapist and provided to the mother and the ICL.
For all of the above reasons, I shall make the orders as set out at the forefront of this judgment.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 15 May 2023
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