HARLOW & HATHAWAY
[2018] FCCA 1083
•4 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARLOW & HATHAWAY | [2018] FCCA 1083 |
| Catchwords: FAMILY LAW – Parenting – live with – interim spend time arrangements – child with anxiety and depression – schooling arrangements – participation in family therapy – harm to the children due to parents high conflict – medical practitioners for the child. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 65DAE |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 Newlands & Newlands [2007] FamCA 168 R & R: Children’s Wishes (2000) FLC 93-000 Redmond & Redmond [2014] FamCAFC 155 SS & AH [2010] FamCAFC 13 |
| Applicant: | MR HARLOW |
| Respondent: | MS HATHAWAY |
| File Number: | SYC 4442 of 2014 |
| Judgment of: | Judge Kemp |
| Hearing date: | 15 March 2018 |
| Date of Last Submission: | 15 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Shorehills Legal Solicitors |
| Respondent: | Self-represented |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
By consent, order 2 of the consent orders made on 8 April 2016 be suspended.
By consent, the father shall spend time with the child [X], born …2001 (“[X]”) in accordance with her wishes.
For three (3) months from the date of these orders, the father spend time with the child [Y], born …2004 (“[Y]”)(known collectively with [X] as “the children”), as follows:
(a)from 9:00am until 8:00pm on Saturday and each alternate Saturday thereafter;
(b)each Wednesday night from the conclusion of school until 8:00pm; and
(c)at any other times as agreed between the parties.
Three (3) months after the time period in order 3 above concludes, the father commence spending time with [Y], as follows:
(a)from 9:00am on Saturday until 5:00pm on Sunday and each alternate weekend thereafter;
(b)each Wednesday night from the conclusion of school until 8:00pm; and
(c)at any other times as agreed between the parties.
For the purposes of the father spending time with [Y], in accordance with orders 3 and 4 above, the father shall send a text message to [Y] prior to such time occurring, seeking her suggestions in relation to activities they could do during their time together and incorporate these suggestions into his planned time with [Y].
By consent, the father advise the mother via text message of any planned trips that will prevent him from spending time with either of the children, 14 days prior to any such trip.
The mother and the father sign all documents and do all things reasonably necessary for [Y] to be enrolled with and to maintain her schooling at School 1 High School, in accordance with the school plans prepared/formulated by Mr A and School 1 High School, in consultation with Dr B.
The mother and the father sign all documents and do all things reasonably necessary to authorise the school counsellor at School 1 High School or other staff member as directed by the said school, to communicate with [Y]’s practitioners (health professionals) as follows:
(a)Family Therapist/Counsellor, Dr B;
(b)[Y]’s GP, Dr C;
(c)[Y]’s Psychiatrist, Dr D;
(d)[Y]’s Mental Health Social Worker, Mr A; and
(e)The Child Young Mental Health Service, Suburb G Hospital (“CYMHS”).
The parties do all acts and things to cause [Y] to attend upon the health professionals referred to in order 8 above, as and when [Y] is required to attend upon the above professionals.
Each of the parties shall follow all recommendations of the health professionals referred to in order 8 above, in relation to the ongoing treatment of [Y].
Each of the parties are restrained from causing [Y] to attend upon any other health professional than those referred to in order 8 above, without the prior written consent of the other party and as recommended by one or either of the professionals referred to in order 8, above.
Within 3 days of the date of these orders, the mother and the father shall do all acts and things to authorise [Y]’s health professionals, as set out at order 8 above, to communicate with one another. In the absence of any authorisation, these orders shall serve as the authority enabling the said professionals to do so.
By consent, the mother is restrained from leaving [Y] without adult supervision when [Y] is not in the mother’s care or not in attendance at School 1 High School.
Within 3 days of the date of these orders, the parties shall contact Dr B to arrange an appointment and shall attend any appointments, as scheduled by Dr B, as provided for in orders 5 to 10 of the orders made on 8 April 2016, with a view to assisting them to do the following:
(a)improve communication and collaboration between the parents;
(b)develop an understanding and skills in regard to the challenges facing the parents and family;
(c)improve communication between all family members;
(d)support the development of healthier family relationships; and
(e)assist the parties to develop a plan in relation to [Y]’s ongoing mental health needs.
The children shall attend the above family therapy in accordance with their wishes.
If Dr B is of the view that [Y] requires a separate and specific psychologist, the parties are to arrange for a referral from Dr B to such a psychologist and are to implement the same. Such appointed psychologist will be included in the list of health professionals referred to in order 8 above.
Within 14 days of the date of these orders, in consultation with Dr B, the parties shall prepare a plan in relation to [Y]’s mental health and provide a copy to each other and the Independent Children’s Lawyer and that plan is to include information relating to the following:
(a)the proposed services and treating practitioners that the parents suggest [Y] should engage with; and
(b)the steps they intend on taking to obtain information about each service/practitioner and the time frames in which these steps will be taken.
By consent, the mother and the father must not show or discuss any Court documents filed in these proceedings to or with the children.
By consent, the parties participate in a Litigation Intervention Conference to be arranged by the Independent Children’s Lawyer, prior to the adjourned date.
By consent, in preparation for the Litigation Intervention Conference the Independent Children’s Lawyer is to obtain an update as to the progress of the Family Therapy that is occurring with Dr B, any other medical practitioners that are engaged with the children and any school that the children may be attending from time to time.
Supplementary to order 12 above, each of the parties shall forthwith provide all necessary authorities to the health professionals referred to in order 8 above to authorise the said professionals to provide each other with all information relating to the treatment of the children to the extent they require same and in the absence of the provision of such authority these orders shall serve as the authority enabling the said professionals to do so.
The matter be listed on 30 October 2018 at 9:30am for mention.
The parties and the Independent Children’s Lawyer have liberty to restore the matter on 7 days’ written notice.
THE COURT NOTES:
The Court refers to the matters set out in paragraph 14(oooo) of the judgment below and while the Court acknowledges that [Y] seeks to be known as “[Y]” given the documents filed to date for the purposes of this decision and orders, the child has been referenced as “[Y]”.
IT IS NOTED that publication of this judgment under the pseudonym Harlow & Hathaway is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4442 of 2014
| MR HARLOW |
Applicant
And
| MS HATHAWAY |
Respondent
REASONS FOR JUDGMENT
Introduction
By Initiating Application filed on 18 July 2014 and as amended by a minute of proposed order, being Exhibit “A”, the father seeks certain interim parenting orders in respect of the children of the relationship, [Y], born …2004 (“[Y]”) and [X], born …2001 (“[X]”) (together described as “the children”), as follows:
(1)The children spend time with the father other than when the father is travelling internationally for work, as follows:
(a)Each alternate weekend, from 9:00am Saturday to 5:00pm on Sunday, recommencing 24 March 2018; and
(b)That in the event that [Y] is not at school during school term, [Y] shall spend time with the father in each week, as follows:
(i)On Monday, Tuesday and Friday from 1:00pm to 6:00pm; and
(ii)On Thursday from 7:30am to 6:00pm; and
(c)During each school term holidays, in the first week as follows:
(i)from 9:00am to 8:00pm each day for 3 consecutive days, being Monday, Tuesday and Wednesday; and
(ii)from 9:00am Thursday to 5:00pm Sunday.
(d)During Christmas school holidays 2018/2019 as follows:
(i)From 9:00am on 23 December 2018 to 5:00pm on 24 December 2018; and
(ii)From 9:00am 2 January 2019 until 5:00pm the following Sunday; and
(iii)From 9:00am 18 January 2019 to 8:00pm 24 January 2019; and
(e)At such other times as agreed between the parties in writing.
(2)That for purposes of order 1 above, as soon as practicable and upon the father being aware he shall advise the mother in writing to her email address of when he is to be travelling.
(3)The mother facilitate the children spend time with the father in accordance with Court orders made on 15 March 2018.
(4)IN THE EVENT the mother does not comply with and her legal obligations of orders made on 15 September 2017 and 4 October 2017 and 20 October 2017 and 8 February 2018 and 15 March 2018, the children forthwith live with the father.
(5)The mother and the father to sign all things necessary for [Y] to continue her school enrolment at School 1 High School and maintain her schooling at the school.
(6)The mother and the father to sign all things necessary for [Y]’s schooling at School 1 High School in accordance with the school plan prepared/formulated by School 1 High School in consultation with Dr B
(7)The mother and the father to comply and facilitate all school plans made by School 1 High School for [Y].
(8)The mother will not leave [Y] without adult supervision when [Y] is not in the mother’s care and not in attendance at School 1 High School.
(9)The mother and the father shall do all acts and things and sign all documents to authorise the school counsellor at School 1 High School or other staff member as directed by the school, to communicate with [Y]’s practitioners as follows:
(a)Family Therapist/Counsellor, Dr B;
(b)[Y]’s General Practitioner, Dr C; and
(c)[Y]’s Psychiatrist, Dr C
(10)The mother and the father shall do all acts and things to authorise [Y]’s practitioners as set out at order 9 to communicate with one another, within 3 days of the date of these orders. In the absence of any authorisation, these orders shall serve as the authority enabling the said professionals to do so.
(11)That the parties shall do all acts and things to cause [Y] to attend upon the following health professionals:
(a)Dr B;
(b)Dr C; and
(c)Dr D;
as and when [Y] is required to attend upon the above professionals.
(12)That each of the parties are restrained from causing [Y] to attend upon any other health professional than those referred to in order 9 above without the prior written consent of the other party and as recommended by one or either of the professionals referred to in order 9 above.
(13)That each of the parties shall follow all recommendations of the professionals referred to in order 9 above in relation to the ongoing treatment of [Y] including but not limited to causing [Y] to attend all necessary appointments with the said professionals.
(14)That each of the parties shall forthwith provide all necessary authorities to the health professionals referred to in order 9 above to authorise the said professionals to provide each other with all information relating to the treatment of [Y] and for [X] to the extent they require same and in the absence of the provision of such authority these orders shall serve as the authority enabling the said professionals to do so.
(15)The mother and father will confirm appointment times scheduled by Dr B for [Y] and or [X] and all the parents, within 5 days of receiving the scheduled times and dates.
(16)The mother and father will attend all appointment times scheduled with and by Dr B for counselling and/or therapy.
(17)The father to facilitate [Y] and [X] to attend all appointment times scheduled with and by Dr B.
(18)The mother to facilitate [Y] continuing to attend sessions with Dr C, as scheduled and as recommended by Dr C.
(19)The mother and father must not show or discuss any Court documents filed in these proceedings.
(20)The mother or the father must not make or enter any financial commitment for the children that they seek contributions from the other parent, without prior written consent of the other parent.
The Court confirmed with the parties and the Independent Children’s Lawyer that order 20, as set out in paragraph 1 above, would not be heard at the time of this interim hearing and that order was not further pressed by the father.
The mother did not file an Affidavit in accordance with the orders made on 8 February 2018 (in preparation for this hearing) and did not provide her proposed minute of order to the Court. The mother indicated, however, that she agreed with the orders as proposed by the Independent Children’s Lawyer in their totality, as detailed below.
At the hearing, the mother also indicated that she, substantially, agreed with the substance of the other orders proposed by the father, save for orders 1, 4 and 17, as set out in paragraph 1 above.
On the hearing, Mr Dura of Counsel appeared for the father. The mother appeared in person. Ms Kelso appeared for the Independent Children’s Lawyer.
The Independent Children’s Lawyer’s proposed minute of order was made Exhibit “ICL 1” and was to the following effect:
(1)Order 2 of the orders made on 8 April 2016 be suspended.
(2)The father shall spend time with [X] in accordance with her wishes.
(3)The father shall spend time with [Y] (with the time referrable to [Y] being willing to do so) as follows:
(a)On Saturday from 9:00am until 8:00pm and each alternate Saturday thereafter;
(b)Each Wednesday night from the conclusion of school until 8:00pm; and
(c)Any other times as agreed between the parties.
(4)For the purposes of the father spending time with [Y], each fortnight the father shall send a text message to [Y] seeking [Y]’s suggestions about activities they could do during their time together and incorporate these suggestions into his planned time with [Y].
(5)The father advise the mother via text message of any planned trips that will prevent him from spending time with either of the children 14 days prior to this trip.
(6)The mother and father are to:
(a)Sign all things necessary for [Y] to be enrolled and maintain her enrolment at School 1 High School; and
(b)Comply and facilitate all back to school plans made by School 1 High School and Dr A.
(7)The mother is restrained from leaving [Y] without adult supervision when [Y] is not in the mother’s care or not in attendance at School 1 High School.
(8)The mother and father continue to attend family therapy with Dr B as provided for in orders 5 through to 10 in orders made on 8 April 2016 with a view to assisting them to do the following:
(a)Improve communication and collaboration between the parents;
(b)Develop an understanding and skills in regard to the challenges facing the parents and family;
(c)Improve communication between all family members;
(d)Support the development of healthier family relationships; and
(e)Assist the parties to develop a plan in relation to [Y]’s ongoing mental health needs.
(9)The children shall attend this family therapy in accordance with their wishes.
(10)Within 3 days the parents shall contact Dr B to arrange an appointment and shall attend the appointment as scheduled by Dr B.
(11)Within 14 days, in consultation with Dr B, the parties shall prepare a plan in relation to [Y]’s mental health and provide a copy to the other party and the Independent Children’s Lawyer.
(12)That for the purposes of order 11, this plan is to include information relating to the following:
(a)The proposed services and treating practitioners that the parents suggest [Y] should engage with;
(b)The steps they intend on taking to obtain information about each service/practitioner and the time frames in which these steps will be taken.
(13)The parties participate in a Litigation Intervention Conference to be arranged by the Independent Children’s Lawyer in either May/June 2018.
(14)The proceedings be adjourned for further mention in July 2018.
(15)In preparation for the Litigation Intervention Conference the Independent Children’s Lawyer is to obtain an update as to the progress of the Family Therapy that is occurring with Dr B, any other medical practitioners that are engaged with either child and any school that either child may be attending from time to time.
(16)The Independent Children’s Lawyer has liberty to relist the matter on 7 days’ notice.
Principles to be applied and procedure to be followed
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, such as this, namely:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
To determine what time orders should be made under s.65DAA(1) and s.65DAA(2) of the Act, the Court must look to determine whether the actual spending of “equal time” or “substantial and significant time” is in the best interests of a child and, as a separate and distinct matter, whether the actual spending of such time is reasonably practicable. The Court must affirmatively answer both of these questions for it to have the power to make a time order of that nature: MRR v GR [2010] HCA 4. If it cannot do so, the Court must consider making such “other” time order as is, otherwise, in the best interests of the child concerned.
The best interests of the children remain the paramount consideration: s.60CA of the Act.
The best interests of the children are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
The Parties’ Evidence
The father relied on his Affidavit sworn and filed on 12 March 2018.
As stated above, the mother did not file any Affidavit in accordance with the orders made on 8 February 2018.
The following documents were placed into evidence:
Exhibit No
Document
Tendered by
A
The father’s proposed minute of order
Father
ICL 1
The Independent Children’s Lawyer’s proposed minute of order
Independent Children’s Lawyer
ICL 2
An agreed tender bundle
Independent Children’s Lawyer
Factual Matters
There appear to be a number of, largely, uncontested relevant facts, as follows:
a)The father was born on …1959 and is, currently, 58 years of age. His occupation is professional.
b)The mother was born on …1960 and is, currently, 57 years of age. Her occupation is professional.
c)The father lives at Suburb H, NSW.
d)The mother lives at Suburb J, NSW, with the children.
e)The parties commenced cohabitation in 1989 and were married on …1991.
f)[X] was born on …2001 and was, at the time of hearing, 16 years of age.
g)[Y] was born on …2004 and is, currently, 13 years of age.
h)The parties disagree as to the date of final separation. The mother alleges that the parties separated in 2007, but remained living together due to their financial circumstances. The father alleges that separation occurred in 2010.
i)On 3 September 2010, [Y] was examined by Behavioural Optometrist, Dr E (“Dr E”), as [Y] was: “Not coping as well at school. Reversing letters. Left handed. Scared of heights and difficult balance positions”. Dr E recommended that a series of exercises be done at home and with a visual therapist, in order to coordinate the visual and visual processing systems: “to allow for better and more comfortable visual information processing and [to] link-up the eyes, hand and brain to allow more efficient, comfortable learning”. Spectacle lenses were also prescribed for: “close work, class work and computer”.
j)On 8 October 2010 and 22 October 2010, [Y] was referred for assessment, by School 2, to Ms F, a speech pathologist (“Ms F”), due to a “concern about expressive language and comprehension skills”. Ms F’s report was tendered as part of Exhibit “ICL 2” and concludes that: “[Y] was referred for assessment of her oral, language skills. Her receptive language skills fall in the low-average to borderline range for her age, whilst expressive language skills are stronger, falling in the average range. [Y] has a mild delay in her speech sound development. In combination, these difficulties would have implications for [Y]’s classroom and literacy success”. Ms F recommended that [Y] should be seen for language therapy to work on her receptive language skills and that her hearing should be reassessed by an audiologist.
k)On 27 May 2013, [Y] underwent a psychometric assessment with Ms G, a Counsellor and Clinical Psychologist at School 2. The results of that testing were produced in a report dated 3 June 2013, which was also tendered as part of Exhibit “ICL 2”. That report stated that [Y] had previously been diagnosed with a mild delay in her speech-sound development and that, while her general intellectual ability fell within the “low average to average” ranges, her scores indicated no areas of significant weakness, relative to her overall performance.
l)On 12 December 2013, 19 December 2013 and in January 2014, the parties participated in Family Dispute Resolution. The parties, ultimately, agreed that the children would spend 5 nights per fortnight and half of the school holidays with the father.
m)In March 2014, the father moved out of the former matrimonial home to an apartment in Suburb H, close to School 1. The children spent their first weekend with the father, pursuant to the parties’ agreement, in March 2014. The mother says that the children did not want to go to the father’s home and that, upon their return, they took a day to settle and were clingy towards her.
n)In April 2014, the mother contacted the father, prior to the school holidays that month, and suggested that [Y] not spend overnight time with him. The father did not agree. The children then spent the first half of the school holidays with the father. The father said that [Y] would contact the mother and cry for the first few days of that period but that this, eventually, ceased. The father also said that the mother contacted the children during this period and that after that contact, the children would become unsettled and tearful and have difficulty getting to sleep.
o)On 5 May 2014, the father says that the mother told him that his time arrangements with the children would be changing, so that he would be spending Friday to Monday each fortnight with them.
p)On 16 June 2014, the mother contacted the father and advised him that he would not be spending time with the children in the upcoming school holidays, due to his harassing and bullying behaviour and his failure to provide a stable and supportive home environment for the children.
q)From June 2014, after the making of an application to the Child Support Agency that noted 365 nights of care, the father asserted that the mother, increasingly, restrained the children’s time with him. The father said that this disrupted the children maintaining a “flowing, continued” relationship with him, which then resulted in further issues.
r)On 18 July 2014, the father commenced these proceedings.
s)On 25 August 2014, the Court made orders, by consent, that the children spend time with the father on alternate Saturdays from 9:00am to 5:00pm and alternate Sundays from 9:00am to 5:00pm. The Court, further, made orders that the parties and the children attend a Child Inclusive Conference with a Family Consultant from the Child Dispute Services section of the Registry. The Memorandum of Ms H produced for the Court, following that Conference, is addressed below.
t)On 10 October 2014, the parties’ divorce became effective.
u)In October 2014, the mother asserted that, prior to spending time with the father, [Y] would say to her: “Do I have to go? I don’t want to stay with Dad” and that, upon returning from spending time with the father, [Y] would be unsettled. The father says that, although there was some initial separation anxiety with [Y], commonly after speaking with the mother, this diminished over time. He says, further, that generally the children enjoyed spending time with him and did not display any concerning behaviours.
v)On 23 October 2014, the Court made further orders, by consent, which finalised the parties’ property proceedings. On that date, parenting orders were also made, by consent, that the children live with the mother and spend time with the father on alternate weekends from after school on Friday until before school on Monday and that the children spend time with the father during the December 2014/January 2015 school holidays for block periods of up to 7 days. Those consent orders noted that the father would have regard to the children’s wishes and would accommodate those wishes by variations to the time arrangements. The mother acknowledged that it was in the children’s best interests that they develop a routine of time with the father.
w)On 5 December 2014, the mother asserts that [Y] became anxious and unsettled and began to ask whether she had to go to see the father. [Y] asked the mother not to leave and called her while spending time with the father, asking to come home.
x)On 19 December 2014, the children travelled with the father to Queensland. The mother alleges that the father told her to: “fuck off” when he returned the children to her care, while they were present. The children then reported to the mother that “[Z]” had teased [Y] and that they did not want to see the father again.
y)On 3 January 2015, the father did not spend time with the children in accordance with orders, after he received an email from the mother advising him that the children would not be coming to spend time with him. The father contends that he contacted the mother and the mother’s lawyer, the Court and the Police, at that time.
z)On 15 January 2015, the father alleged that the mother told him that the children would not be spending time with him, as per Court orders. The mother asserts that the children expressed a strong view not to spend time with the father.
aa)On 30 January 2015, the mother asserted that [Y] cried for 3 hours the night before spending time with the father and that she told the mother that she would run away if she was forced to spend time with him.
bb)On 24 February 2015, the Court made orders for the appointment of an Independent Children’s Lawyer.
cc)On 18 May 2015, the Court made orders, by consent, that the children spend time with the father on alternate weekends from 9:00am to 5:00pm on Saturday and 9:00am to 5:00pm on Sunday. The Court made an order for the preparation of a Family Report.
dd)On 8 December 2015, the Family Report of Ms J was released to the parties. This Report is addressed, further, below.
ee)On 11 February 2016, the parties participated in Family Dispute Resolution and agreed that overnight time with the father would recommence in April 2016.
ff)In March 2016, the father alleged that, while in his care, [Y] called the mother and the mother, subsequently, communicated to the father that she was going to collect [Y]. The father contacted Dr B and they discussed strategies to help. [Y] remained with the father and did not appear distressed.
gg)On 8 April 2016, the Court made further orders, by consent, that the children spend time with the father for various periods between April and July 2016, including overnight time. Those consent orders provided that, thereafter, the children spend alternate weekends with the father, alternating between 9:00am to 5:00pm on Saturday and Sunday and from 9:00am on Saturday to Monday before school. This gave effect to the parties’ agreement reached at Family Dispute Resolution in February 2016. These orders also provided for the parties to contact Dr B to arrange therapy for the purpose of improving the relationship between the father and the children and to improve communication between the parties. The Family Report was also released to Dr B. The father says that, following sessions with Dr B, he spent increased time with the children, during which they were relaxed and interactive. He says that they would spend time with friends and family and that he introduced the children to different experiences, including travelling from Sydney to Canberra and Town W, where they spent time with the father’s extended family
hh)On 26 July 2016, the father says that he attended the children’s Parent Teacher interviews at School 2, where he was informed that [Y] did a project that involved teamwork, which reflected more confidence and articulation in a peer group, on her part. The father says that the teachers did not mention any emotional issues or problems in respect of either of the children.
ii)On 22 August 2016, [Y] visited the Counsellor at School 2, whose notes form part of Exhibit “ICL 2”. Those notes indicate that:
i)[Y] is close to the mother and only wants to see the father once each week during the holidays and does not wish to spend time overnight with him;
ii)[X] wants more contact [presumably with the father] and is very quiet, while [Y] talks more;
iii)[Y]’s biggest concern is that the father does not help her with her homework and that she has to play with [W], who also attends School 2 and lives near the father, when she is at his house; and
iv)The mother helps [Y] with her homework.
jj)On 25 August 2016, [Y] again visited the Counsellor at School 2, whose notes form part of Exhibit “ICL 2”. Those notes indicate that:
i)[Y] was nervous about an upcoming meeting with lawyers “about custody”;
ii)[Y] would like to spend time with the father once each fortnight from Saturday to Sunday, during the day only; and
iii)[Y] was worried that she would be convinced to spend more time with the father and does not want to be forced by the father to always spend time with [W].
kk)In late 2016, the father says that his relationship with the children markedly declined, with overnight time ceasing and any progress with care arrangements, as discussed with Dr B, reversed by the mother, who gave excuses such as: “I never really agreed” and “the children do not want to”. The father says that, following the sessions with Dr B, the mother appeared to manipulate the children’s wishes and caused confusion, tension and stress for them.
ll)In late 2016, the father says that [Y] asked to attend a father and daughter camping event organised by School 2, which [W] was also attending. The father purchased tickets to that event and [Y] was eager in purchasing camping equipment. The father says that a week prior to the camping event, the mother emailed him stating that: “[Y] did not now want to go to camp” and that “she does not really have any friends going” and that [Y] was experiencing “anxiety”.
mm)In October 2016, the father says that upon collecting the children, they were withdrawn and nonresponsive towards him, showing rudeness on their arrival at his home. The father chastised them for this and asked them to clean their rooms. Following this, they all settled into a normal day, including purchasing muffins for breakfast the following morning. The father returned the children to the mother’s home that evening and was due to collect them again the following morning. Later on, the mother sent the father an email saying that “the children would not be coming over” the following day. The father discovered that he had been reported to the Department of Family and Community Services (“FACS”) for having allegedly shouted at and slapped one of the children. FACS interviewed the father some months later and the investigation was taken no further.
nn)In November 2016, the father says that, during a session with Dr B, the children said that they would like to spend time with him over Christmas “including overnight for a week or so”.
oo)On 14 November 2016, Dr B sent an email confirming the arrangement that the children would spend time with the father from Saturday at 9:00am to Sunday at 9:00pm in alternate weeks and on Wednesday from 3:00pm until 8:00pm in alternate weeks, from 16 November 2016. That arrangement also provided for the children to spend time with the father on 23 and 24 December 2016. The father says that in the following session, Dr B then informed him that the children did not want to stay overnight with him the following weekend or over Christmas and that they would spend “days only” with him. The father says that the mother insisted that the children not spend overnight time with the father until the commencement of Term 1 in 2017 and that their Wednesday time with the father be made fortnightly. The mother also said that he children would not be spending time with the father over Christmas, as they would be spending time with the maternal grandmother in Town V.
pp)On 9 December 2016, the matter was listed for a 3 day final hearing from 4 to 6 October 2017.
qq)On 22 December 2016, the father’s Contravention Applications filed on 8 January 2015 and 21 January 2015 were withdrawn and the Court noted that the father had elected to withdraw such applications, given the delays in obtaining any further hearing dates to deal with the parenting application.
rr)In early 2017, the father says that his access to information from School 2 was stopped, as the mother had cancelled all reporting to him from the school.
ss)On 16 February 2017, Ms L, Year 7 Adviser at School 2 sent an email to Ms M, the school Counsellor, which forms part of Exhibit “ICL 2”. That email stated that she had met with [Y], who: “is struggling at the moment with a number of changes in her life” and continues to find her parents’ divorce very hard. [Y] was absent from school the day before and said that this was because she was “worried about everything”, including her family, starting Year 7, her difficulties in Maths and missing school for appointments (for example, to see her Psychologist). Ms L requested that Ms M make some time to see [Y] to provide “extra support”.
tt)In early-2017, a Draft Learning Plan was created by School 2 for [Y] for the 2017 school year. This document also forms part of Exhibit “ICL 2”.
uu)On 18 February 2017, Ms M met with [Y] and her notes in relation to the same form part of Exhibit “ICL 2”. Those notes indicate that:
i)[Y] is anxious, gets stressed at school and easily forgets things;
ii)The mother gets stressed quite easily and has 3 jobs;
iii)The mother thinks that the children spending time with the father is a waste of time;
iv)The father does not want to pay school fees, mutters a lot and can be calm one minute, down the next and then mean the next;
v)[Y] does not like to spend overnight time at the father’s house, as people who live close by throw parties and that after being told by “Dad’s psychiatrist” that she had to stay at the father’s overnight, [Y] experienced physical symptoms of anxiety;
vi)The father wants [Y] to participate in school sports, but she does not like school sports;
vii)[Y] does not see [X] often, feels lonely at home and does not like to bother her friends; and
viii)[W] comes over from next door and she enjoys this, however, the mother does not like [Y] spending time with [W].
vv)On 6 March 2017, Ms K, Teacher-Librarian at School 2 emailed Ms L, explaining that the mother had contacted her to express concern about how [Y] was settling in to high school, as she was struggling to organise herself and form friendships.
ww)On 7 March 2017, Ms M met with [Y] and her notes in relation to the same form part of Exhibit “ICL 2”. Those notes indicate that:
i)[Y] is struggling with organisation and homework, is tired and stressed and has taken “lots of days off”;
ii)The mother is stressed and always swearing and has been taking out her stress on the children since [Y] was in Year 3;
iii)[Y] is stressed about whether to spend nights with the mother or the father, but would rather spend time with the father at the moment, as he is less stressed;
iv)[Y] goes to museums and the aquarium with the father and he buys books of interest for her; and
v)[W] is her best friend at school.
xx)On 8 March 2017, Ms L sent an email to each of [Y]’s teachers, requesting that they deal with [Y] in a, particularly, sensitive manner, as she “feels quiet anxious about many things, including her school work, home life, making friends and finding her place in Year 7. She can take things very seriously and becomes overwhelmed easily”.
yy)On 20 March 2017, Ms M met with [Y] and her notes in relation to the same form part of Exhibit “ICL 2”. Those notes indicate that:
i)The mother got angry when [Y] was late and she “gets angry all the time”; and
ii)Girls at school had mocked [Y], saying “she will be a girly girl when she grows up”.
zz)In April 2017, [Y] began to have difficulties with attending school and commenced attending Headspace. The father says that he took [Y] to several appointments at Headspace between April and May 2017.
aaa)In May 2017, staff at School 2 began to observe a change in [Y]’s mood. The father says that he re-established communication with the school around this time and that Ms M said that [Y] was having issues with her interpersonal relationships and felt isolated at school. Ms M had been seeing [Y] multiple times each week for some time, with little long term improvement in her anxiety levels or coping skills and suggested communications with Dr N (General Practitioner) about [Y]’s anxiety medication. The father had not been aware that [Y] was taking such medication.
bbb)On 15 May 2017, Ms M met with [Y] and her notes in relation to the same form part of Exhibit “ICL 2”. Those notes indicate that:
i)The mother is angry, annoyed and stressed and [Y] is unsure why;
ii)The father “keeps changing things at the last minute”, which causes tension between the parents, who argue on the telephone often;
iii)Her home situation is making [Y] stressed;
iv)[Y] enjoyed spending time with her “Gran”, who visited last week; and
v)Girls at school are being mean and giving [Y] “death stares” and school is hard because there is pressure to fit in.
ccc)On 19 May 2017, Ms M met with [Y] and her notes in relation to the same form part of Exhibit “ICL 2”. Those notes indicate that:
i)[Y] is currently struggling with the ongoing tension between her parents and feels like their fighting is her fault; and
ii)[Y] appeared teary and upset.
ddd)On 22 May 2017, Ms M met with [Y] and her notes in relation to the same form part of Exhibit “ICL 2”. Those notes indicate that:
i)The mother had been angry and stressed on the last weekend and had told [Y] that she is not allowed to talk to the father;
ii)When the mother is angry, [Y] does not feel that she can talk to her;
iii)[Y] was worried that she would be lonely at school because [W] was not present that day;
iv)[Y] feels that everyone is staring at her when she arrives in the morning;
v)[Y] is worried about gunshot noises at night in the neighbourhood;
vi)[Y] was looking forward to spending time with the father at the end of the week and wants to spend more time at home and with her dog; and
vii)[Y] has been consistently low in mood and tearful during the past few sessions and should see an external psychologist.
eee)On 23 May 2017, Ms M emailed Ms L, stating that she had spoken to the mother and expressed concern regarding [Y]’s persistent low mood. The mother said that she would take [Y] to see her General Practitioner, possibly for a referral to a psychologist.
fff)On 2 June 2017, Ms L met with [Y] and her notes in relation to the same form part of Exhibit “ICL 2”. Those notes indicate that:
i)[Y] was reticent to attend school and the mother said that [Y] had had a “meltdown” that morning;
ii)[Y] was nervous about attending her first period Music class, as she finds the Music teacher strict and had struggled to electronically submit her Music assignment, which was 2 weeks overdue;
iii)[Y] has a feeling that there is a presence with her at all times, as though someone is behind her, watching her, including at home and when she lays in bed at night;
iv)In the bedroom that [Y] shares with the mother, there is an antique mirror, which she feels is “watching her”; and
v)[Y] no longer sits with girls that she was previously friends with at school, as they have not been “warm” towards her and has become closer to [W].
ggg)On 5 June 2017, Ms M met with [Y] and her notes in relation to the same form part of Exhibit “ICL 2”. Those notes indicate that:
i)[Y] reported that her anxiety is like a person following her around constantly; and
ii)[Y]’s anxiety “reports” things like: “no one likes you”, “you should self-harm” and “you should kill yourself”.
hhh)On 9 June 2017, Ms L emailed Ms M and Ms O, stating that she had met with 3 girls in Year 7 that [Y] had previously been friends with, but who she now felt were being unkind to her. Ms M responded to that email stating that [Y] may be, to some extent, reading social cues incorrectly, due to her low mood and depressive thinking style, which may be limiting her ability to sustain friendships and that she does not always wish to engage in activities in her classes.
iii)On 13 June 2017, the father became aware that [Y] was suffering from anxiety and depression, was self-harming and making suicidal statements. He learned that [Y] had been involved in a number of incidents at School 2, where she had been the subject of bullying and had not attended school since the end of the previous term.
jjj)In mid-June 2017, the father says that [Y] began seeing Ms P, Psychologist, who recommended that [Y] not be left alone at home, given her state of mental health and propensity to self-harm again. The father was also concerned for the mother’s emotional and mental state and her ability to cope with the management of [Y].
kkk)On 16 June 2017, Ms M and Ms L met with the mother and the notes in relation to the same form part of Exhibit “ICL 2”. Those notes indicate that:
i)[Y] had agreed to attend school that week, but has not done so;
ii)[Y] was anxious, agitated and clingy the night before and tends to relax if she does not have to go to school;
iii)[Y] is not sophisticated in her thinking;
iv)[Y] only wears 2 sets of clothes; and
v)[Y] was secretive at the time of her self-harm and her Zoloft prescription has been helpful.
lll)[Y]’s Semester One 2017 School Report (tendered as part of Exhibit “ICL 2”) states that she was absent for 26 days during that period. However, the comments of her teachers do not raise any concerning issues.
mmm)The father says that, during this period, he noticed [Y] seemed more fragile to small issues, was unsettled and broke down in a session with Dr B in relation to a minor matter. The father says that [Y] did not attend school in any significant way after the end of Semester 1, 2017. During this period, [Y] spent more time in his care, including full and half days when she was not at school.
nnn)On 22 July 2017, the father says he was contacted by School 2 and informed that on 20 July 2017, [Y] had disclosed to her friend, [W], that she had self-harmed by cutting her arms and legs and that [W] had disclosed this to a sports coach at the school, that day. A plan was organised for [Y] to attend school on half days for a few days each week, however, she had difficulty attending at all on some days.
ooo)In August 2017, the father says that he, increasingly, received distressing text messages from [Y], including one on 12 August 2017 which stated: “I want to die”. [W]’s father, Mr R, also informed the father that [Y] was discussing self-harm and “ways to die” with [W].
ppp)On 10 August 2017, Ms P wrote to Dr C, stating that she had seen [Y] for 7 sessions of cognitive behavioural therapy and that [Y] presented with depression, emotional regulation difficulties, self-harm behaviour, daily panic attacks and school refusal. That letter, which forms part of Exhibit “ICL 2”, details that [Y] has thought about how she would kill or hurt people who have wronged her, particularly one girl at school who had bullied her. [Y] has had 2 characters in her head for 5 years, named “[name 1]” and “[name 2]”, who tell her to hurt herself, hide in the bathroom at school, rob banks and seek revenge on others. [Y] had repeatedly cut her arms and legs a few weeks earlier, but has not done so since that time, due to better emotional regulation and the mother removing all sharp objects from the house. Ms P informed the parties of this disclosure.
qqq)On 22 August 2017, the parties attended a meeting at School 2 to plan [Y]’s full time return to school.
rrr)On 3 September 2017, the children spent weekend time with the father and [Y] discussed “her problems” for some time with the father.
sss)On 5 September 2017, the parties and [Y] attended a session with Ms P, in which she recommended a psychiatric review of [Y], given that her “visions” had escalated.
ttt)On 11 September 2017, [Y] commenced attending upon Dr D, who advised that she was suffering from auditory and visual hallucinatory phenomena (for some years), depressive mood and severe anxiety.
uuu)On 12 September 2017, [Y] was admitted to Suburb G Hospital, after Ms P called an ambulance, due to concerns about [Y] experiencing visual and auditory hallucinations (including commands to self-harm) and her low mood. The Clinical Notes from this admittance form part of Exhibit “ICL 2” and state that [Y] had been interacting verbally with those hallucinations that day, in front of the mother. [Y] had come close to attempting suicide recently, having made a mixture of cleaning solution and bleach, which she intended to drink, but did not because “the voices” had told her to keep it for someone else. [Y] had only been attending school one to 2 days per week and alluded to bullying and voices telling her to harm other children at school. For the 2 years prior, if [Y] had a scratch on her skin, she would further scratch it and put salt on her wound. She had begun to deliberately cut herself 3 weeks prior and had 30 cuts on her arms and legs. A plan was made for [Y] to attend the Child Young Mental Health Service, Suburb G Hospital (“CYMHS”).
vvv)From about September 2017, the father says that the mother would not communicate with him regarding the care arrangements for the children, including supervision of [Y] while the mother was at work. The father says that the mother left [Y] at home alone for long periods and full days and that this greatly worried him and that he felt helpless in not being able to provide care for [Y]. The father says that he began communicating with [Y], almost daily, by text message. The father says that the mother became aware of these communications in late September 2017 and that he received a text message from [Y]’s phone saying: “stop tracking my message” and has not received any responses to his messages, since that date.
www)On 15 September 2017, the Court made orders, by consent, inter alia, that provided for the final hearing to be vacated, for the mother to inform the father of any upcoming medical appointments for [Y], for the father to be permitted to make appointments with any of [Y]’s treating practitioners and for the parties to attend Family Dispute Resolution.
xxx)On 21 September 2017, the father says that Dr B contacted the mother to plan [Y]’s return to school, but that the mother would not participate, saying: “until [Y]’s mental health is stable, a meeting to make any arrangements for Term 4 is premature”.
yyy)On 21 September 2017, Dr D wrote to the father explaining that [Y] was being medicated with Zoloft, an antidepressant and Seroquel to facilitate her sleep and stabilise her mood (see Exhibit “ICL 2”). [Y] was responding well to this medication. Dr D wrote that: “[Y] requires a common sense approach to giving her a calm, non-conflicting or demanding environment by all involved with her. Particular consideration…should be given regarding any legal matters and involvement”.
zzz)On 4 October 2017, the Court made orders, by consent of the father and the Independent Children’s Lawyer (the mother was not present and provided no explanation for her absence), that Dr D, Ms P and Dr B provide to the parties and the Independent Children’s Lawyer information about [Y]’s health, wellbeing, treatment plan and treatment recommendations, that the parties do all acts and things to attend a meeting with [Y]’s school to facilitate her return, that within 14 days the parties do all acts and things to facilitate a further appointment for the children with Dr B and, in the event that the mother does not make the children available, the father is at liberty to pick them up and take them to the appointment and that the mother provide the father with the details of who is looking after [Y], while she is at work.
aaaa)On 5 October 2017, the father met with Dr D, who expressed no concerns regarding the father’s wish to spend time with the children on weekends.
bbbb)On 19 October 2017, the parties attended a meeting at School 2 to discuss [Y]’s return to school. The notes from that meeting form part of Exhibit “ICL 2” and indicate that [Y]’s return to school should be gradual and that [Y] is concerned about “many things” in relation to this. The parties agreed that [Y] had last self-harmed in July/August 2017 and that [Y] should not continue to be removed from socialising with her peers.
cccc)On 20 October 2017, the Court made orders, by consent, that [Y] attend upon Dr B, Dr D, Ms P and Dr C. Those orders, further, restrained the parties from causing [Y] to attend upon any other health professionals, without the written consent of the other party and restrained the mother from leaving [Y] unsupervised by an adult, when she is not at school. The father says that, on that date, the mother informed the Court that her mother, the maternal grandmother, was caring for [Y], while she was at work. The father says that he, subsequently, contacted the maternal grandmother to ask how [Y] was feeling and that she informed him that she had not seen the children since 10 October 2017, when school resumed.
dddd)Shortly after 23 October 2017, the father says that the mother disengaged the care of Ms P and that [Y] had not seen her after that date.
eeee)On 1 December 2017, Dr D wrote to Ms P, indicating that he supported the involvement of CYMHS with [Y] and as such, would withdraw as her psychiatrist (see Exhibit “ICL 2”). As at 7 March 2018, CYMHS did not yet have availability to treat [Y] and Dr D continued to be involved with her.
ffff)On 2 December 2017, the father spent time with the children.
gggg)On 10 December 2017, the father spent time with [Y].
hhhh)In December 2017, the parties attended a meeting at School 1 High School, with respect to [Y]’s potential enrolment there.
iiii)On 17 January 2018, the mother wrote to School 2, stating that [Y] would not be returning there for the 2018 school year (see Exhibit “ICL 2”).
jjjj)On 22 January 2018, Ms P wrote to the Independent Children’s Lawyer, detailing the history of [Y]’s attendances on her and recommending that the parties contact one of the services she listed, which included CYMHS (see Exhibit “ICL 2“).
kkkk)On 8 February 2018, the Court made orders that the parties obtain a place for [Y] at School 1 High School. The Court made further orders, by consent, that the parties authorise the Counsellor at School 1 High School or any other staff member to communicate with [Y]’s “practitioners”, as listed in paragraph 14(cccc) above, with the addition of CYMHS and Mr A, a Mental Health Social Worker at …Health Centre. Those consent orders noted that Dr D would prepare a letter for the Court in relation to whether or not he recommended that [Y] continue sessions with Mr A and/or CYMHS.
llll)On 11 February 2018, the father spent time with the children.
mmmm)On 16 February 2018, the parties attended a meeting with the Counsellor at School 1 High School, who would be liaising with Dr B and Dr C in relation to a suitable return to school plan for [Y]. [Y]’s enrolment documentation was completed and accepted by the school.
nnnn)On 17 February 2018, the father spent time with the children.
oooo)On 20 February 2018, the parties and [Y] attended on Dr B, who shared with the father [Y]’s gender issues. [Y] sought to be known as “[Y]” and attend school as a male. The mother said that she had informed the Counsellor at School 1 High School of this at their meeting on 16 February 2018. The father says that he was unaware of this. The father says that the mother explained that [Y]’s gender issue had emerged from consultation with Dr D and Mr A over recent months. Notwithstanding this, the father says that when he contacted Dr D on 7 March 2018, Dr D informed him that he had not known of [Y]’s gender issues until the mother mentioned it after 20 February 2018. The Court notes that while [Y] seeks to be known as “[Y]”, given the documents filed to date for the purposes of this decision and orders, the child will continue to be referenced, at this time, as “[Y]”.
pppp)On 8 March 2018, the parties met with Dr B to request a broader definition of his service to the family, including family therapy in relation to the children’s relationship with the father, [Y]’s anxiety and depression management, return to school and gender issues and engagement with Dr D, Dr C and Suburb K Hospital.
qqqq)On 9 March 2018 Dr D wrote to the Independent Children’s Lawyer and confirmed that he had first heard of [Y]’s gender issues when the mother contacted him on 22 February 2018, but that, as he understood, [Y] had advised Dr B that she had taken this up in early consultation with himself (see Exhibit “ICL 2”). Dr D said this may be a “retrospective distortion” on the part of [Y].
rrrr)On 12 March 2018, Mr A prepared a report for the Independent Children’s Lawyer, which included recommendations that the parties continue to attend upon Dr B for therapy, specifically to build the skills and knowledge necessary to assist them to maintain open communication regarding [Y]’s needs through the implementation of the return to school plan and that [Y] would benefit from consulting with a practitioner that specialises in sexual fluidity and gender diversity (see Exhibit “ICL 2”).
ssss)On 13 March 2018, Dr B wrote to the Independent Children’s Lawyer, stating that the relationship between the children and the father had improved, following therapy, but that during periods of communication breakdowns between the parties, the children have had noticeably less contact with the father, which has been an impediment to consistent progress.
Expert Evidence
On 16 September 2014, the parties and the children attended a Child Inclusive Conference with Ms H. At that Conference, the parties agreed that the children would spend time with the father on various dates between September 2014 and January 2015, including overnight time. The parties, further, agreed that after that period, the children would spend time with the father on alternate weekends from Friday after school until Monday before school. The Court made orders, by consent, on 23 October 2014, which gave effect to that agreement.
Ms H prepared a Memorandum for the Court, following that Conference, which noted that the mother indicated that she felt somewhat intimidated by the father’s alleged aggressive approach towards her, but apart from this, no other risk factors were identified. Ms H noted that the parents had not developed effective communication since their separation and that there were trust issues existing between them, which impacted on the best interests of the children.
On 18 May 2015, the Court made an order for the preparation of a Family Report. Ms J completed that report and it was released to the parties on 8 December 2015. The full content of that Report is included as if fully set out, herein. The Court notes that given the interim nature of these proceedings, the Family Report has not been tested. However, the Court specifically notes the following recommendations made by Ms J, as follows:
a)That the parties equally share parental responsibility for the children.
b)That the children live with the mother.
c)That the children spend time with their father in the following way:
i)As per the current interim orders; and
ii)Other times as agreed to between the parties.
d)That the children be able to travel to Country A with the father for a 5 day period in the upcoming 2015/2016 school holidays.
e)That, subject to agreement between the parties, the children spend one overnight weekend with the father on at least 2 occasions per school term (coinciding with their regular weekend time) for the purposes of having a short holiday.
f)That the parties investigate the possibility of therapy for the children to enable them to safely explore any concerns they have about the father and to address these directly with him, to enable them to feel safe and secure when spending overnight time with him in the future.
The Court is concerned that the Family Report referred to above is now more than 2 years old. The Court is also concerned that a number of factors impacting on [Y]’s emotional and psychological health, as referred to above, have arisen since its release, which would impact upon its overall utility in these proceedings particularly in terms of the current application.
The Limitations of an Interim Hearing
The Court, as stated, hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief.
The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read, documents tendered and the submissions of the parties and legal representatives. There is no provision, at the interim hearing stage, for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
The combined practical effect of ss.60B, 61DA and 60CC of the Act is that, on an interim basis, the Court may have little practical alternative other than weighing the probabilities of the parties’ respective claims and balancing the questions of risk.
In this regard, the Full Court of the Family Court of Australia in Redmond & Redmond [2014] FamCAFC 155 acknowledged the limitations of interim hearings when determining questions of disputed facts. In response to the father’s submission in that case that the trial judge should have ignored or disregarded any allegations or matters of disputed fact that were adverse to the father on an interim hearing, the Full Court noted that:
This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.
In relation to this “weighing up” or balancing of risk, the Full Court of the Family Court of Australia in SS & AH [2010] FamCAFC 13 (Boland and Thackray JJ), stated that:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Further, in the decision of Banks & Banks [2015] FamCAFC 36, the Full Court of the Family Court of Australia stated that:
By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
…Furthermore, there is a risk that in discussing every s.60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s.60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s.60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
Proposals
The father, the mother and the Independent Children’s Lawyer seek the various competing orders, as set out above.
Issues
The essential issues in dispute the subject of determination are:
a)Issues in relation to [Y]’s return to school;
b)The father’s interim spend time with arrangements with the children; and
c)The appropriate medical practitioners and arrangements for [Y].
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the children concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the children for the parents to have such equal shared parental responsibility (s.61DA(4)).
As the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 states, unless displaced by Court order, the parties parental responsibility may be exercised either jointly or severally: s.61C of the Act. The effect of an order for equal shared parental responsibility, is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the children (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict provided there is a willingness and an ability to communicate.
The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
If the issue is not a “major long-term issue”, then consultation is unnecessary and parents may act unilaterally: s.65DAE of the Act.
Some aspects of parental responsibility may be allocated to one parent to exercise, but if this is done, the other aspects of parental responsibility may be exercised jointly or independently, and the way in which it is exercised should be provided for in any orders: Newlands & Newlands [2007] FamCA 168.
There have been no orders made for parental responsibility, in these proceedings, to date. The Court finds that the presumption will not apply in this case as, whilst the Court’s discretion is not to be exercised in a broad exclusionary manner on an interim hearing, the evidence before it makes the application of the presumption or it’s rebuttal difficult and supports reliance on s.61DA(3) of the Act to negate the application of the presumption, at this time.
Live with
It is not contentious that the children should, otherwise, live with the mother.
Time to spend
To determine what time orders should be made, the Court must look to the best interests of the children.
Primary considerations
In order to determine a child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b): s.60CC(2A) of the Act.
The following terms “abuse” (s.4 of the Act) and “family violence” (s.4AB(1) of the Act) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
The Independent Children’s Lawyer’s submits that:
a)The children have lived with the mother since separation and it is understood that the father accepts that there is a benefit to the children in having a meaningful relationship with her.
b)Since the commencement of these proceedings, orders have been made in relation to the father’s time with the children. In more recent times, the father’s time has been sporadic and has usually occurred shortly after family therapy sessions with Dr B. The father asserts that while his time with the children has been limited, this time has been a positive experience for them.
c)It is understood to be agreed by both parties that there is a benefit to the children in having a meaningful relationship with both of their parents, however the dispute between the parties for most of the duration of these proceedings has been related to how much time and whether this time should include overnight time with the father.
d)The father raises concerns about the mother influencing the children’s views and discouraging them from having an ongoing relationship with him. This is denied by the mother.
e)The mother asserts that the children have been uncomfortable around the father, and have been, particularly, resistant to the idea of spending overnight time with him and that neither of them coped with overnight time, when it was occurring.
f)It is noted that Ms J did not identify any risk of harm issues if the children were to recommence spending overnight time with the father. Weight is attached to that.
g)The children are at risk of considerable psychological harm, given the high level of conflict between these parties and the continuation of this litigation.
While the Court accepts that the primary consideration referred to in s.60CC(2)(a) of the Act is supportive of the children developing a meaningful relationship with the father and that spend time arrangements are necessary for this to occur, there is an ongoing issue in terms of numerous orders having been made over time, many with the consent of the parties, to facilitate such time arrangements. Over time, many of these time orders have not been effected. This has occurred in circumstances where the children have been involved in the implementation of the orders and have voiced their views largely to the mother in circumstances where such views have been acted upon by her to the effect that such spend time orders have not been complied with. There is some dispute as to whether, at those times, the views so reported and implemented by the mother have, in fact, been the true views of the children. Given the age of [X], the Court notes that the parties have now agreed that she spend time with the father in accordance with her wishes. However, the Court is concerned to ensure that [Y] is not placed in a position where her views become the determinant of whether she spends time with the father or not, given her younger age and, in particular her emotional and psychological vulnerabilities, as identified above. Further, the interpretation of her views has become a further fertile ground for dispute between the parents. This is addressed further below.
Further, the Court finds that the primary consideration referred to in s.60CC(2)(b) of the Act is, largely, inapplicable on the facts of this case. The Court accepts that neither of the children would be exposed to any harm, abuse, neglect or family violence through the implementation of orders for them to spend time with the father.
Further, under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings. The Court notes that the parties and the Independent Children’s Lawyer are in agreement on a number of proposed orders. Where there is such agreement, orders implementing the same will be made by consent.
Additional considerations
The Court refers to the decision of Banks & Banks [2015] FamCAFC 36 and in light of that decision will focus on the s.60CC factors that are plainly relevant to the determination that the parties ask the Court to make on this interim decision.
In this matter, the Court will focus on the following s.60CC factors.
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
The Court notes that it is not unusual for children, particularly where their parents are in conflict as to living arrangements for them, to tell their respective parents what they think the parent in question is most anxious to hear.
The Court finds that the children have clearly become aware of the parties’ dispute and its ambit and have been involved in that dispute themselves.
The father has provided evidence of the children having both expressed a desire to spend time with him and cancelling plans they had previously made with him, which, he says and infers, is a result of the mother having influenced them to do so. It does not appear contested by the mother that she has, in fact, cancelled the spend time arrangements, but she says she has done so in terms of the children’s expressed wishes, at the time.
The Family Report notes that [X] expressed a view that she wanted the current arrangements to remain the same because “[Y] and [the] mother would not get upset and everyone would be happy”. [Y] expressed a view that she did not wish to spend overnight time with the father because “he can be a bit temperamental and kind of angry”. Concerns were raised by Ms J that [Y] “presented her views about [the] father in language and in a tone that was quite adult” and that the matter had elements of realistic estrangement. This concern weighs in favour of a defined, Court ordered spend time arrangement with the father.
The Independent Children’s Lawyer met with both [X] and [Y] on 7 March 2018. [X] indicated that she wanted to spend time with the father in accordance with her wishes. [X] also indicated she wanted these proceedings to be over. [X] turned 17 years old in …2018. Noting [X]’s age, the Independent Children’s Lawyer submitted, and the Court accepts, that significant weight should be attributed to her views. An order will be made that [X] spend time with the father, in accordance with her wishes. Such an order is by consent of the parties.
The Independent Children’s Lawyer submitted that [Y] expressed a view to spend regular time with the father, but not overnight time. The notes produced under subpoena by School 2 and contained in the tender bundle (Exhibit “ICL 2”) show that [Y] was expressing concerns to Ms M, the Counsellor at School 2, on 22 August 2016, 25 August 2016 and 18 February 2017, about spending overnight time with the father and that she has continued to express firm views about not wanting to spend overnight time, most recently as 7 March 2018.
[Y] is, currently, 13 years of age and as such, the Independent Children’s Lawyer submitted and the Court accepts that some weight should be attributed to her views. The Independent Children’s Lawyer, further, submitted that, given [Y]’s diagnosis of anxiety and depression, which have caused her significant difficulties, the Court should also ensure that there is some flexibility, in terms of her spend time arrangements with the father, given the uncertainty and unpredictability of her mental health. The Court finds that too much pressure has been placed on [Y], to date, for her to determine whether or not she should be spending time with the father and notes that, in her Memorandum, Ms H commented that “[Y] appeared relieved when told that the parenting arrangements are not her decision”. [Y] expressed similar sentiments to Ms M, as set out above. The Independent Children’s Lawyer’s proposed minute of order (Exhibit “ICL 1”) provides that the time [Y] is to spend with the father should be “referrable to [Y] being willing to do so”. The Court does not accept that this is in [Y]’s best interests, but will ensure that a graduated scheme of time with the father, so that overnight time does not commence for 3 months after the recommencement of regular, weekly time. The Independent Children’s Lawyer proposed an order that the father forward a text message to [Y] prior to time occurring with him, so as to seek her suggestions in relation to activities they could do during their time together. The Court accepts that this order will assist the father in ensuring that [Y]’s suggestions can be taken into account when he plans their time together and will assist [Y] in potentially feeling that her views are being considered and that she has the opportunity to enjoy in a meaningful way, her time with the father.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
Both parties accept that the mother has been the children’s primary carer and that she has a close relationship with them. The Court accepts that position.
The father says that he, too, has a close relationship with the children, despite his time with them having been restricted in recent times.
The father says that his time with [X] has declined, as she is almost 17 years of age and she is more mature and independent. He says that they communicate through text messages and short phone calls and that he assists her with learning to drive.
The Independent Children’s Lawyer submitted that there is no current, objective evidence in relation to the nature of the relationship between the children and the father and that these relationships have been strained for some time and require ongoing therapeutic assistance. It was further submitted that the situation may improve if there are prospects of these proceedings ending, the children are given some flexibility and input into the time they spend with the father and that the parents continue to attend family therapy to develop their communication skills.
The Court finds that the children have a relationship with the father, but that it has, likely, been negatively affected by the communication difficulties between the parties and by the children’s recent separation from him. The Court is of the view that this can be remedied, particularly for [Y], by her spending defined time with the father, going forward.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
It is not understood to be disputed that the mother has taken all opportunities to participate in decisions, to spend time and to communicate with the children.
The father says that the interim orders made on 8 April 2016 stipulate that the children should be spending overnight time and block school holiday periods with him. The father says that he is available to assist in caring for [Y] during school hours, until she returns to school full time. The Court notes that it made orders on 8 February 2018 for [Y] to be enrolled at School 1 High School, but at the hearing, the mother informed the Court that she had not yet commenced attending there. The father, further, says that he is happy to have the children stay in his care when they are sick and unable to attend school or when the mother is sick. He asserts he is available to assist with taking them to their after school, sports and extracurricular activities.
The mother disputes the father’s level of commitment and involvement with the children.
The Independent Children’s Lawyer submitted and the Court accepts, that the extent to which the father has attempted to take opportunities to participate in making decisions for, spending time with and communicating with the children is unlikely to be able to be determined by the Court at this interim hearing stage.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
It is not disputed that the mother has fulfilled all of her obligations to maintain the children.
The father says that he pays approximately $60,000.00 per annum in child support, including $17,000.00 over the normal cap, which represents about 50% of his net income, based on taxation documents for the financial year ended 30 June 2016. He has also been paying for Dr B’s sessions with [Y] and contributes to other costs for the children, including [X]’s trip to Country B.
The father says that he has agreed to share [Y]’s medical costs with the mother.
Notwithstanding the above, the parties dispute whether or not the father has fulfilled all of his obligations to maintain the children. The Court is not in a position to determine this issue, at this interim stage.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The father proposes that the children recommence spending time with him overnight. It is noted that the children have not spent overnight time with the father since late 2016. Given [X]’s age and for the reasons stated above, the Court finds that the nature of the time she spends with the father should be in accordance with her wishes. [Y] should, however, commence spending overnight time not sooner than 3 months from the date of these orders, after a period of sustained day only time. The Court will so order.
The father also seeks an order that, in the event the children do not spend time with him in accordance with the orders (that is, as a result of the mother’s acts or influence), the children live with him. Given that the children have lived with the mother since separation, it is likely that this would have a significant impact on them. It is, particularly, unclear what that impact would be on [Y], given she is about to recommence school and has, over recent months, suffered from significant mental health issues. The Independent Children’s Lawyer submitted and the Court accepts, that there is no evidence that supports the father’s position that the children should live with him and that it would not be in the children’s best interests for this to occur, at this time, notwithstanding any non-compliance by the mother.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The Independent Children’s Lawyer submitted that the parties live within approximately 10 minutes of one another and the children’s schools. It is not submitted by either party that there is any practical difficulty or expense in the children in spending time with or communicating with the father.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The father says that there is no risk posed to the children in his care. The Court accepts that position.
Throughout the proceedings, the father has raised concerns about the mother influencing and aligning the children towards her point of view. It is understood to be a concern of the father that this impacts upon the capacity of the mother to meet the emotional needs of the children. This has, previously, been disputed by the mother.
The Independent Children’s Lawyer submitted that, while some concerns were raised in the Family Report about this issue, that Report is now more than 2 years old and no further objective evidence is available to assist the Court in determining whether the issues raised by Ms J could impact upon the mother’s capacity to meet the needs of the children. Significant time has passed since the preparation of the Family Report and the children are now older and of an age where their wishes (particularly [Y]’s) are likely to carry more weight. The Court accepts that position.
The Court accepts that both parties, however, have the relevant capacity to provide for the needs of the children.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The father and the Independent Children’s Lawyer have both submitted, and the Court accepts, that [Y] suffers from anxiety, depression and gender issues and in the past has self-harmed and expressed suicidal thoughts. It is necessary and critical that she receive appropriate support in relation to her transition back to school and for her to spend increased and more consistent time with the father. The Independent Children’s Lawyer submitted that it was evident from the reports provided by the treating professionals engaged with [Y] that there is a difference of opinion as to the way forward for her and that it also appears that the parents may also have differing opinions as to the way forward. The Independent Children’s Lawyer submitted that it may be too soon for the Court to consider making any final orders in relation to [Y]’s future treating practitioners, in this regard, and the Court accepts that. In that regard, the Independent Children’s Lawyer has proposed that the Court order that the parents collaboratively engage with Dr B and each prepare a plan which outlines their proposals for [Y]’s future medical treatment. The Court will so order.
The Independent Children’s Lawyer has also proposed an order that the parties comply with any back to school plans, as proposed by Mr A and Dr B. The Court will so order.
While Mr Dura submitted that the agreed tender bundle, being Exhibit “ICL 2”, contained documents which clearly recorded [Y]’s desire to spend time with the father, that material also contained documents which recorded her conflicted position and desire not to spend time with the father. Those documents also evidence that [Y] is under emotional and psychological pressure, which requires the assistance of professionals to assist her resolve those conflicts. The ongoing litigation between the parents, their inability to communicate and their inability to resolve parenting matters continues to expose [Y] to conflict.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to these children.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The Independent Children’s Lawyer submitted that the parties dispute the other’s attitude towards the children and their responsibilities of parenthood.
The Court finds that, despite each party maintaining that they hold an appropriate attitude towards the children and towards the responsibilities of parenthood, the ongoing conflict between them has, at times, negatively impacted upon their abilities to execute upon this. The Court accepts that the complexity of particularly [Y]’s issues have also, negatively, impacted upon the parents’ exercise of their responsibilities of parenthood.
(j) any family violence involving the child or a member of the child's family;
This factor does not apply to these children.
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
This factor does not apply to these children.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The Court finds that, as this is an interim hearing, this factor must be assessed in this light.
The track record of the parents’ decision making would suggest a high probability of future deadlocks, which would inevitably lead to further proceedings.
The Court accepts that the father’s time with [Y] needs to be reintroduced for a period of 3 months on a day time only basis. This time should occur on alternate Saturdays and on Wednesday nights from the conclusion of school until 8:00pm and at other times as agreed between the parties. After a period of 3 months, the father’s time should expand to 9:00am Saturday to 5:00pm Sunday each alternate weekend, with the weekly Wednesday evening time to continue. The Court will not make any order for mid-year block holiday time, at this time. The Court is of the view that the time orders should not require the agreement of [Y], as to do so would cause her to be embroiled in the parental conflict with each parent articulating what they believed were [Y]’s stated views and to some extent, [Y] may well inform each parent what she believes that parent would want to hear, which has the potential to further engage her in conflict.
Further, the Court will make the orders, largely, in terms of the Independent Children’s Lawyer’s proposal to ensure that the parents and [Y] receive family therapy, with [X] to be involved to the extent that she wishes. The Independent Children’s Lawyer’s orders in relation to [Y] receiving appropriate medical support will also be made and, particularly, so as to avoid any other medical expertise becoming involved without the agreement of both parties. The complexity of the issues concerning [Y]’s emotional and psychological treatment would appear to be a fertile area for further conflict between the parties, given the uncertainty as to diagnosis and treatment and it is critically important that the parties reach agreement about the levels of expertise for the practitioners involved and remain consistent with their involvement and compliance with the directions of those practitioners. Further orders to enable the practitioners to communicate to ensure that they are “on the same page” are critical and will be made as sought by the Independent Children’s Lawyer.
Further, the Court is of the view that it is in the best interests of [Y] that the parents sign all documents and do all things reasonably necessary to authorise the school counsellor at School 1 High School or other staff member as directed by the said school to communicate with [Y]’s relevant health professionals and an order will be made to implement that.
(m) any other fact or circumstance that the Court thinks is relevant;
The Independent Children’s Lawyer submitted that, while the parties’ and the children’s sessions with Dr B have led to an increase in the children’s time with the father, it is now recommended by Dr B that the goals of family therapy change. It is now proposed that the family therapy assist predominantly the parents and not directly involve the children, unless they are willing to attend.
Dr B has provided the family with therapy. Dr B’s position is that he is prepared to continue that therapeutic involvement but not to act as [Y]’s psychologist, as he believed there may be a conflict position, in that regard. Orders will be made to enable him to continue providing family therapy and refer [Y] to a separate psychologist, if he continues to be of that view.
Both children have communicated to the Independent Children’s Lawyer a clear wish to no longer attend family therapy. It is submitted by the Independent Children’s Lawyer that the children should no longer be required by order to attend family therapy, but instead may attend in accordance with their wishes. The Court accepts that position.
Conclusion
The Court is satisfied on balance, having considered and weighed the primary and additional considerations referred to above, that the orders set out above, at the commencement of these reasons, are in the children’s best interests and, accordingly, will so order.
Given the need to implement the balance of the orders made today, the proceedings will stand adjourned to 30 October 2018 for mention with the parties and the Independent Children’s Lawyer given liberty to restore the matter on 7 days written notice if there is an urgency to do so.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 4 May 2018
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